[Federal Register Volume 65, Number 82 (Thursday, April 27, 2000)]
[Proposed Rules]
[Pages 24806-24831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10517]



[[Page 24805]]

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Part VI





Environmental Protection Agency





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40 CFR Part 763



Asbestos Worker Protection; Proposed Rule

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / 
Proposed Rules

[[Page 24806]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 763

[OPPTS-62125A; FRL-6493-5]
RIN 2070-AC66


Asbestos Worker Protection

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to modify a previously published proposed rule to 
amend the Asbestos Worker Protection Rule (WPR). This modified proposal 
would protect State and local government employees from the health 
risks of exposure to asbestos to the same extent as private sector 
workers by adopting for such employees the Asbestos Standards of the 
Occupational Safety and Health Administration (OSHA). The modified 
proposal would expand the WPR's coverage to State and local government 
employees who are performing construction work, custodial work, and 
automotive brake and clutch repair work (the WPR now applies solely to 
asbestos abatement projects, a subset of construction work). The 
proposed rule would cross-reference the OSHA Asbestos Standards for 
Construction and for General Industry, so that amendments to these OSHA 
standards are directly and equally effective for employees covered by 
the WPR. It would also amend the Asbestos-in-Schools Rule to provide 
coverage under the WPR for employees of public local education agencies 
who perform operations, maintenance and repair activities. EPA is 
proposing this rule under section 6 of the Toxic Substances Control Act 
(TSCA).

DATES: Comments, identified by docket control number OPPTS-62125A, must 
be received on or before June 26, 2000. Requests that EPA hold an 
informal public hearing must be received on or before June 26, 2000. If 
a hearing is requested, EPA will publish a notice announcing the 
informal public hearing in the Federal Register.

ADDRESSES: Comments may be submitted by mail, electronically, or in 
person. Please follow the detailed instructions for each method as 
provided in Unit I. of the SUPPLEMENTARY INFORMATION. To ensure proper 
receipt by EPA, it is imperative that you identify docket control 
number OPPTS-62125A in the subject line on the first page of your 
response.

FOR FURTHER INFORMATION CONTACT: For general information contact: 
Barbara Cunningham, Director, Office of Program Management and 
Evaluation, Office of Pollution Prevention and Toxics (7401), 
Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania 
Ave., NW, Washington, DC 20460; telephone number: (202) 554-1404; e-
mail address: <a href="/cdn-cgi/l/email-protection#9ecacddddfb3d6f1eaf2f7f0fbdefbeeffb0f9f1e8"><span class="__cf_email__" data-cfemail="10444353513d587f647c797e75507560713e777f66">[email protected]</span></a>.
    For technical information contact: Cindy Fraleigh, Attorney-
Advisor, National Program Chemicals Division (7404), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, Ariel 
Rios Bldg., 1200 Pennsylvania Ave., NW, Washington, DC 20460; telephone 
number: (202) 260-1537; fax number: (202) 260-1724; e-mail address: 
<a href="/cdn-cgi/l/email-protection#224450434e474b454a0c414b4c465b624752430c454d54"><span class="__cf_email__" data-cfemail="4b2d392a272e222c23652822252f320b2e3b2a652c243d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are a State 
or local government entity whose employees work with or near asbestos-
containing material. Potentially affected categories and entities may 
include, but are not limited to:

 
------------------------------------------------------------------------
                                                         Examples of
           Categories                NAICS codes         potentially
                                                      affected entities
------------------------------------------------------------------------
Educational services             61                  Public educational
                                                      institutions,
                                                      including school
                                                      districts, not
                                                      subject to an OSHA-
                                                      approved State
                                                      asbestos plan or a
                                                      State asbestos
                                                      worker protection
                                                      plan that EPA has
                                                      determined is
                                                      exempt from the
                                                      requirements of
                                                      the WPR.
Public administration            92                  State or local
                                                      government
                                                      employers not
                                                      subject to an OSHA-
                                                      approved State
                                                      asbestos plan or a
                                                      State asbestos
                                                      worker protection
                                                      plan that EPA has
                                                      determined is
                                                      exempt from the
                                                      requirements of
                                                      the WPR.
------------------------------------------------------------------------

    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this table could also be 
affected. The North American Industrial Classification System (NAICS) 
codes are provided to assist you and others in determining whether or 
not this action might apply to certain entities. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the technical person listed under FOR FURTHER INFORMATION 
CONTACT.

B. How Can I Get Additional Information, Including Copies of this 
Document and Other Related Documents?

    1. Electronically. You may obtain electronic copies of this 
document, and certain other related documents from the EPA Internet 
Home Page at http://www.epa.gov/. To access this document, on the Home 
Page select ``Laws and Regulations'' and then look up the entry for 
this document under the ``Federal Register--Environmental Documents.'' 
You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. To access information about asbestos, go 
directly to the Asbestos Home Page for the Office of Pollution 
Prevention and Toxics at http://www.epa.gov/asbestos/.
    2. In person. The Agency has established an official record for 
this action under docket control number OPPTS-62125A. The official 
record consists of the documents specifically referenced in this 
action, any public comments received during an applicable comment 
period, and other information related to this action, including any 
information claimed as Confidential Business Information (CBI). This 
official record includes the documents that are physically located in 
the docket, as well as the documents that are referenced in those 
documents. The public version of the official record does not include 
any information claimed as CBI. The public version of the official 
record, which includes printed, paper versions of any electronic 
comments submitted during an applicable comment period, is

[[Page 24807]]

available for inspection in the TSCA Nonconfidential Information Center 
(NCIC), North East Mall Rm. B-607, Waterside Mall, 401 M St., SW., 
Washington, DC 20460, from noon to 4 p.m., Monday through Friday, 
excluding legal holidays. The NCIC telephone number is (202) 260-7099.

C. How and to Whom Do I Submit Comments?

    You may submit comments through the mail, in person, or 
electronically. To ensure proper receipt by EPA, it is imperative that 
you identify docket control number OPPTS-62125A in the subject line on 
the first page of your response.
    1. By mail. Submit comments to: Document Control Office (7407), 
Office of Pollution Prevention and Toxics (OPPT), Environmental 
Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW, 
Washington, DC 20460.
    2. In person or by courier. Deliver comments to: OPPT Document 
Control Office (DCO) in East Tower Rm. G-099, Waterside Mall, 401 M 
St., SW., Washington, DC. The DCO is open from 8 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
DCO is (202) 260-7093.
    3. Electronically. You may submit your comments electronically by 
e-mail to: ``<a href="/cdn-cgi/l/email-protection#6f001f1f1b420b000c040a1b2f0a1f0e41080019"><span class="__cf_email__" data-cfemail="593629292d743d363a323c2d193c2938773e362f">[email protected]</span></a>,'' or you can submit a computer disk 
as described above. Do not submit any information electronically that 
you consider to be CBI. Avoid the use of special characters and any 
form of encryption. Electronic submissions will be accepted in 
WordPerfect 6.1/8.0 or ASCII file format. All comments in electronic 
form must be identified by docket control number OPPTS-62125A. 
Electronic comments may also be filed online at many Federal Depository 
Libraries.

D. How Should I Handle CBI that I Want to Submit to the Agency?

    Do not submit any information electronically that you consider to 
be CBI. You may claim information that you submit to EPA in response to 
this document as CBI by marking any part or all of that information as 
CBI. Information so marked will not be disclosed except in accordance 
with procedures set forth in 40 CFR part 2. In addition to one complete 
version of the comment that includes any information claimed as CBI, a 
copy of the comment that does not contain the information claimed as 
CBI must be submitted for inclusion in the public version of the 
official record. Information not marked confidential will be included 
in the public version of the official record without prior notice. If 
you have any questions about CBI or the procedures for claiming CBI, 
please consult the technical person listed under FOR FURTHER 
INFORMATION CONTACT.

E. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide copies of any technical information and/or data you used 
that support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at the estimate that you provide.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternative ways to improve the proposed rule.
    7. Make sure to submit your comments by the deadline in this 
document.
    8. To ensure proper receipt by EPA, be sure to identify the docket 
control number assigned to this action in the subject line on the first 
page of your response. You may also provide the name, date, and Federal 
Register citation.

F. How and to Whom Do I Submit an Informal Public Hearing Request?

    You may request that EPA hold an informal public hearing, at which 
interested persons or organizations may present oral comments, by 
contacting the technical person listed under FOR FURTHER INFORMATION 
CONTACT. Requests for an informal hearing must be received on or before 
June 26, 2000. If EPA decides to hold an informal hearing, it will 
publish a notice in the Federal Register announcing the time, place, 
and date of the hearing, explaining how interested persons or 
organizations can request to participate in the hearing, and describing 
the hearing procedures. EPA conducts informal hearings in accordance 
with the procedures in 40 CFR part 750, subpart A.

II. Background

    OSHA has published comprehensive requirements for protecting 
against the health effects of exposure to asbestos in the workplace. 
However, these requirements apply to employers in the private sector. 
OSHA has never had the authority to impose worker protection measures 
directly on State and local government employers. While a State has the 
authority to protect State and local government employees under a State 
plan approved by OSHA under section 18 of the Occupational Safety and 
Health Act (OSH Act), 27 States do not do so. (Information regarding 
OSHA-approved State plans can be found at http://www.osha-slc.gov/fso/osp.) EPA's WPR, 40 CFR part 763, subpart G, protects State and local 
government workers in States that do not have OSHA-approved State 
plans.
    EPA determined when it first proposed the Worker Protection Rule in 
1985 that asbestos exposures pose an unreasonable risk of harm to 
unprotected State and local government employees who conduct asbestos 
abatement projects, and that EPA has the authority under TSCA section 6 
to establish asbestos worker protection standards for these employees 
(Ref.1). In finalizing that proposal, EPA considered several options 
for protecting these workers from the risks of asbestos, including 
providing public information and technical assistance; deferring to the 
States; promulgating a regulation that provided greater protection than 
the then-current OSHA Asbestos Standard; and promulgating a regulation 
that followed the OSHA Standard to maintain consistency among Federal 
programs. EPA selected the last option, and implemented this selection 
in the WPR by setting out the OSHA requirements in full at 40 CFR part 
763, subpart G (Ref. 2). In keeping with its policy of maintaining a 
consistent level of protection between the WPR and the OSHA Asbestos 
Standard, EPA amended the WPR in 1987 to incorporate recent changes to 
the Asbestos Standard that lowered the permissible exposure limit (PEL) 
to 0.2 fibers per cubic centimeter (f/cc) and that instituted new 
requirements for engineering and work practice controls and worker 
training (Ref. 3).
    In response to further revisions to the OSHA Asbestos Standard for 
Construction (OSHA Construction Standard) (Refs. 4 through 6), EPA 
published proposed amendments to the WPR in the Federal Register of 
November 1, 1994 (Ref. 7). EPA's 1994 proposal would have made the WPR 
consistent with the 1990 version of the OSHA Construction Standards, 
and would have broadened the scope of the WPR to cover State and local 
government employees engaged in any form of construction work and in 
automotive brake and clutch repair. Shortly before EPA published its 
1994 proposal, OSHA published major revisions to the OSHA Construction 
Standard and the OSHA Asbestos Standard for General Industry (OSHA

[[Page 24808]]

General Industry Standard) (Ref. 8). EPA responded to OSHA's new 
revisions by stating in its proposed amendments to the WPR that it 
intended to publish a separate rule to make the WPR consistent with 
OSHA's 1994 changes. Commenters on the 1994 EPA proposal generally 
disfavored this approach, suggesting that EPA propose all the changes 
necessary for consistency between the WPR and the OSHA Construction 
Standard in one rulemaking.
    EPA agrees with the commenters and is therefore modifying its 1994 
proposal to make the WPR consistent with the current OSHA Construction 
Standard, 29 CFR 1926.1101, including all revisions to that standard 
from 1994 through the present (Refs. 9 through 16). This proposal would 
also apply the current requirements of the OSHA General Industry 
Standard, 29 CFR 1910.1001, to State and local government employers of 
employees engaged in brake and clutch repair work, as did EPA's 1994 
proposed rule. In addition, this proposal would extend the requirements 
of the General Industry Standard to general custodial activities that 
are not associated with construction projects.
    In developing this proposal, EPA considered the comments submitted 
on its 1994 proposal and incorporated them where appropriate. A 
Response to Comments Document addresses these comments more fully (Ref. 
17). It is included in the public version of the official record in the 
NCIC Docket described in Unit I.B.2.

A. What Action is the Agency Taking?

    EPA is proposing to implement its long-standing policy of 
consistency between EPA's WPR and the OSHA Asbestos Standards by 
incorporating the 1994 revisions to the OSHA General Industry and 
Construction Standards into the WPR. Currently, employees working for 
some State and local governments are exposed to greater asbestos-
related hazards in the work place than are employees working for 
private employers or other State and local governments. These 
additional hazards are not trivial, but instead expose these State and 
local government employees to meaningful additional risks that their 
colleagues working elsewhere are not asked to face. Fairness and equity 
dictate the same level of protection for all persons who work with 
asbestos-containing material (ACM), whether those persons are employed 
by the private sector or by a State or local government. Currently, all 
private sector workers, as well as State and local government employees 
in the 23 States that have OSHA-approved State plans, are protected by 
the more stringent OSHA regulations. The amendments in this proposed 
rule would create equity for the remaining State and local government 
workers by making the new, more stringent, OSHA requirements applicable 
to those workers.
    This proposal would create that equity for the present and for the 
future by amending the WPR to cross-reference the OSHA General Industry 
and Construction Standards set out at 29 CFR 1910.1001 and 29 CFR 
1926.1101 respectively, rather than by setting out the OSHA 
requirements in full at 40 CFR part 763, subpart G. Cross-referencing 
the OSHA Asbestos Standards in the WPR would mean that amendments to 
the OSHA General Industry or Construction Standard would have the 
effect of changing the requirements under the WPR as well. As such, 
State and local government employees would benefit from new OSHA 
provisions protecting workers against the risks of asbestos at the same 
time as private sector employees. Maintaining the same requirements for 
all workers dealing with asbestos would also avoid potential confusion 
and mistakes by allowing all workers and their supervisors to learn a 
single standard and know the requirements that apply to their work 
without additional training if such workers or supervisors move from 
the public sector to the private sector or vice-versa.
    EPA invites comment on its policy that all State and local 
government employees be protected from the health risks of exposure to 
asbestos to the same extent as private sector workers. EPA also invites 
comment on whether it should use cross-referencing to achieve equitable 
protection for State and local government employees. Cross-referencing 
has the advantage of ensuring that changes in workplace standards take 
effect at the same time for both groups of workers. Without it, 
revisions to the OSHA Asbestos Standards could not take effect for 
State and local government employees until EPA had proposed and 
finalized amendments incorporating those revisions into the WPR. This 
would have the undesirable effect of creating a period in which the 
requirements of the WPR and of the OSHA Asbestos Standards would be 
inconsistent. Cross-referencing also has the advantage of deferring to 
OSHA's singular expertise in establishing standards in the field of 
worker protection.
    It is within EPA's statutory authority and substantive expertise to 
find, under TSCA section 6, that the current amount of exposure to 
asbestos in State and local government workplaces during use or 
disposal in construction, custodial, and brake and clutch repair work 
presents an unreasonable risk of injury to human health (see Unit 
II.B.1. for a detailed discussion of the basis for this finding), and 
to establish a policy of equitable protection from asbestos risks for 
State and local government employees. Moreover, TSCA section 9(d) 
requires EPA to consult and coordinate with other appropriate Federal 
agencies so as to achieve the maximum enforcement of TSCA while 
imposing the least burdens of duplicative requirements on regulated 
entities. EPA has therefore chosen to defer to OSHA's expertise and 
experience in setting workplace standards to protect workers from the 
risks of asbestos.
    OSHA may, in the future, revise the Asbestos Standards. Cross-
referencing would eliminate the need for a separate EPA rulemaking to 
amend the WPR, but State and local governments would still have the 
opportunity to participate in the rulemaking process. State and local 
governments with comments on specific worker protection measures could 
submit those comments directly to OSHA. State and local governments 
could also address comments to EPA asking that the Agency not adopt any 
new OSHA standard by filing a petition under TSCA section 21 requesting 
that EPA amend 40 CFR part 763, subpart G, to revise the cross-
referencing structure. The petition should explain why EPA should 
depart from its longstanding policy of consistency and equity between 
the OSHA Asbestos Standards and the WPR, and should address EPA's 
rulemaking obligations under TSCA sections 6 and 9(d). In this context, 
adoption of the OSHA standard with the safeguard of the TSCA section 21 
petition process allows the Agency to comply with the congressional 
intent evidenced in TSCA section 9 that EPA coordinate its activities 
under TSCA with the activities of other Federal agencies. When a TSCA 
section 21 petition is filed, EPA must respond within 90 days, either 
granting the petition and promptly initiating a rulemaking, or denying 
the petition and explaining its reasons for the denial.
    Under the cross-referencing structure of this proposal, if you are 
a State or local government employer whose employees perform the 
construction and building maintenance activities identified in 29 CFR 
1926.1101(a), and associated custodial work, you must comply with the 
OSHA Construction Standard, 29 CFR 1926.1101; if you are a State or 
local government employer

[[Page 24809]]

whose employees perform general custodial work or repair, cleaning, or 
replacement of asbestos-containing clutch plates and brake pads, shoes, 
and linings, or removal of asbestos-containing residue from brake drums 
or clutch housings, you must comply with the OSHA General Industry 
Standard, 29 CFR 1910.1001. This proposal would effectively alter State 
and local government employer obligations as follows:
    1. Expanded scope of coverage. The current (1987) WPR applies 
solely to friable asbestos abatement projects. EPA has determined that 
there are substantial numbers of State and local government employees 
performing other construction, building maintenance, custodial, and 
brake and clutch repair activities. EPA has also determined that these 
employees will be exposed to unacceptably high levels of airborne 
asbestos fibers if they are not protected by an OSHA-approved State 
plan. See the Proposed WPR Economic Analysis (Economic Analysis) (Ref. 
18). Therefore, as in 1994, EPA is proposing to expand the scope of the 
WPR to include all construction activities and custodial work involving 
ACM. This means that State and local government employees who remove 
non-friable ACM from buildings or perform building operations and 
maintenance tasks would be covered by the WPR. In addition, EPA is 
proposing to expand the scope of the WPR to include all brake and 
clutch repair work.
    2. Specific differences between the 1994 OSHA Standards and the 
current WPR--a. Classification scheme for asbestos construction 
projects. In general, all of the requirements of the 1986 OSHA 
Construction Standard applied to all of the construction activities 
covered by the Standard. Projects of small-scale, short-duration were 
exempted from several of the provisions of the 1986 OSHA Standard, 
including those for negative pressure enclosures, competent person 
supervision, and decontamination areas. The current WPR likewise 
exempts small-scale, short-duration friable asbestos abatement projects 
from these requirements.
    This proposed rule would amend the current WPR by cross-referencing 
the OSHA Construction Standard, which creates a classification scheme 
for all asbestos construction projects and related custodial activities 
except for the installation of new asbestos-containing materials (29 
CFR 1926.1101(b)). This classification scheme reflects the fact that 
many different kinds of asbestos projects are regulated by the OSHA 
Construction Standard, and worker protection needs may vary according 
to the type of project. The revised OSHA Construction Standard 
establishes the following four classes of asbestos projects, in 
descending order of risk:
    <bullet> Class I projects, involving removal of asbestos-
containing, or presumed asbestos-containing, thermal system insulation 
(TSI) and surfacing materials. Surfacing materials are materials that 
are sprayed or troweled or otherwise applied to surfaces. These 
materials include, for example, decorative plaster, acoustical material 
on decking, and fireproofing on structural members. TSI includes 
material applied to pipes, boilers, tanks and ducts. According to OSHA, 
these projects require the most stringent of controls, due to the 
prevalence of these materials and the likelihood of significant fiber 
release when disturbing them. Class I projects are regulated by the 
current WPR because they involve friable ACM.
    <bullet> Class II projects, involving removal of all other ACM or 
presumed ACM. These projects involve materials such as floor or ceiling 
tiles and wallboard, which are referred to as ``miscellaneous ACM'' in 
EPA's Asbestos-in-Schools Rule (40 CFR 763.83), and other ACM on the 
exterior of buildings such as siding and roofing. Most Class II 
projects are not covered by the current WPR, since they involve non-
friable ACM. This proposal would extend coverage of the WPR to all 
Class II projects.
    <bullet> Class III projects, repair and maintenance activities 
involving the intentional disturbance of ACM or presumed ACM. Removal 
of ACM or presumed ACM under Class III is limited to the incidental 
removal of a small amount of material, for example, in order to repair 
a pipe or to access an electrical box. Class III projects involving 
friable ACM are generally regulated under the current WPR as small-
scale, short-duration asbestos abatement projects.
    <bullet> Class IV activities, maintenance and custodial activities 
where employees contact ACM and presumed ACM. These projects involve 
activities such as the repair or replacement of ceiling tiles, repair 
or adjustment of ventilation or lighting, dusting of surfaces, mopping 
of floors, or vacuuming of carpets. Class IV activities may also 
include sweeping, mopping, dusting, or vacuuming incidental to a Class 
I-III regulated project. Most Class IV projects are not covered by the 
current WPR because they are not considered to be asbestos abatement 
projects.
    Some of the requirements (for example, the PELs, specified work 
practices and engineering controls, supervision by a competent person, 
and, in certain circumstances, regulated areas and training) apply to 
all construction projects and related custodial activities covered by 
the standard, including installation of new asbestos-containing 
materials. Work practices and engineering controls applicable to all 
projects include the use of wet methods (where feasible), HEPA vacuums, 
and, if necessary, ventilation systems to achieve compliance with the 
required PELs. All projects must be supervised by competent persons, 
but the training requirements for Class III and Class IV supervisors 
are much less stringent than for those persons supervising Class I and 
Class II projects.
    Beyond these basic requirements, the current OSHA work practice and 
engineering control requirements are specific to each class of project 
and, for Class II projects, specific to the type of material being 
removed. These requirements are discussed in more detail under the 
heading ``Methods of compliance for construction projects and 
associated custodial activities'' in Unit II.A.2.h.
    b. Hazard communication. This proposal would adopt the provisions 
from the OSHA General Industry and Construction Standards for the 
identification of asbestos hazards by building owners and employers and 
the communication of hazard information among building owners, 
employers, employees, and tenants (29 CFR 1910.1001(j), 29 CFR 
1926.1101(k)). Under these Standards, building owners and employers 
must identify the presence, location, and quantity of ACM in the 
worksite before work begins. Any TSI and surfacing materials in 
buildings constructed earlier than 1981 must be presumed to contain 
asbestos, unless a person with the appropriate qualifications 
determines, in accordance with recognized sampling and analytical 
methods, that the material does not contain asbestos.
    If the material to be analyzed is in a school or a public or 
commercial building, then EPA's Model Accreditation Plan (MAP) requires 
the sampling to be done by a person accredited as an inspector under 
the MAP (40 CFR part 763, subpart E, Appendix C). If the material is 
not in a building regulated by the MAP, e.g., it is on an outdoor 
installation, either a MAP-accredited inspector or a Certified 
Industrial Hygienist may perform the sampling. Resilient floor covering 
installed prior to 1981 must also be presumed to contain asbestos 
unless an industrial hygienist or a MAP-accredited inspector determines 
through

[[Page 24810]]

recognized analytical techniques that it does not contain asbestos. 
Again, if the material to be sampled is in a building regulated by the 
MAP, then the sampling must be done by a MAP-accredited inspector.
    Results obtained during an inspection that complies with the 
Asbestos-in-Schools Rule requirements at 40 CFR 763.85(a) are 
sufficient to rebut the presumption that TSI, surfacing material, or 
resilient floor covering contains asbestos. Although not required by 
the OSHA Standards or the EPA MAP, bulk samples taken from school 
buildings regulated by the Asbestos Hazard Emergency Response Act 
(AHERA) must be analyzed by laboratories accredited by the National 
Institute of Standards and Technology (NIST). For a fuller discussion 
on the hazard communication provisions, see the OSHA preamble in the 
Federal Register of August 10, 1994 (Ref. 8, p. 41013).
    Under these proposed amendments to the WPR, State and local 
government entities whose employees perform asbestos-related 
construction, custodial, or brake and clutch repair work would be 
required to determine the presence, location and quantity of ACM or 
presumed ACM in the worksite. Although EPA recommends that State and 
local governments make this determination based upon a full building 
inspection done by a MAP-accredited inspector, the minimum requirement 
is to identify three types of building materials (TSI, surfacing 
material, and resilient floor covering) that must be presumed to 
contain asbestos. EPA believes that the identification of types of 
building materials does not require the expertise of a MAP-accredited 
inspector, since no judgment as to asbestos content is being made. 
However, if there is some reason to suspect that other materials in the 
worksite may contain asbestos, or the employer wishes to rebut the 
presumption of asbestos content, and the project will be taking place 
within a public or commercial building, then the services of a MAP-
accredited inspector will be required.
    This proposal would then require State and local government 
employers to provide their own employees, and other on-site public and 
private employers, with information on the presence, location and 
quantity of ACM and presumed ACM in the worksite, along with specific 
details on the nature of the activity to be performed, requirements 
pertaining to regulated areas, and the measures that will be taken to 
prevent exposure to adjacent workers.
    Although the hazard communication provisions of the OSHA Standards 
apply to building owners as well as employers, EPA is not proposing to 
extend these requirements to State and local government building owners 
who are not also employers. EPA believes that, in most cases, the 
employer and the building owner will be the same, i.e., both will be 
State agencies, or City agencies. If the building owner and the 
employer are the same, then a separate provision imposing 
identification and communication obligations on the building owner is 
unnecessary. EPA requests comment on the extent to which this 
assumption may be incorrect.
    c. Project notifications. EPA is proposing to remove the current 
requirement that employers who plan an asbestos abatement project 
notify EPA at least 10 days in advance (40 CFR 763.124). In 1994, OSHA 
considered and rejected a requirement for employers to report all 
asbestos projects, except those of small-scale, short-duration, in 
advance. OSHA's decision was based on the fact that, since there are 
other existing Federal and State reporting requirements, additional 
reporting requirements in the OSHA Construction Standard would be 
burdensome for the employer without enhancing compliance. For a 
comprehensive discussion of OSHA's reasoning, see the Federal Register 
of August 10, 1994 (Ref. 8, pp. 40970-40971). EPA agrees with this 
logic, since it is easily able to use reports received under the 
asbestos National Emission Standard for Hazardous Air Pollutants 
(NESHAP) regulations, 40 CFR part 61, subpart M, to target worker 
protection inspections. Two commenters on the 1994 proposed amendments 
to the WPR argued that EPA should be consistent with OSHA on this 
subject. In addition, several other commenters noted that the 
notification requirement would become extremely burdensome with the 
increased number of projects covered by the expansion of the scope of 
the rule to non-friable removal projects and maintenance (Ref. 17). EPA 
would, however, adopt the OSHA reporting requirements for Class I 
alternative control methods as discussed under the heading ``Methods of 
compliance for construction projects and associated custodial 
activities'' in Unit II.A.2.h.
    d. Permissible exposure limits. This proposed amendment to the WPR 
would lower the PEL of 0.2 f/cc to 0.1 f/cc as an 8-hour, time-weighted 
average, OSHA's current PEL for all covered activities. 29 CFR 
1910.1001(c), 29 CFR 1926.1101(c). In 1994, OSHA lowered its PEL from 
0.2 f/cc to 0.1 f/cc. For a comprehensive discussion of OSHA's findings 
see the Federal Register of August 10, 1994 (Ref. 8, pp. 40978-40982). 
This proposal also retains a provision included in the 1994 proposed 
WPR amendments under which employees would be protected by a short-term 
excursion limit of 1.0 f/cc for a 30 minute sampling period. EPA did 
not receive any comments on this proposed excursion limit. Finally, EPA 
proposed in 1994 to allow employers to use an alternative PEL based 
upon results of Transmission Electron Microscopy (TEM). Several 
commenters stated that the proposed alternative PEL was not adequately 
supported by science (Ref. 17), so EPA is withdrawing that portion of 
its 1994 proposal.
    e. Multi-employer worksites. The current WPR requires State and 
local government employers to communicate information about the nature 
of asbestos work and regulated area requirements to other employers, 
whether public or private, on multi-employer worksites (40 CFR 
763.121(d)). This proposal would adopt by cross-reference the 
requirements of 29 CFR 1926.1101(d) of the OSHA Construction Standard 
for multi-employer worksites where construction and related custodial 
work is being performed. The OSHA Construction Standard requires 
employers whose employees are performing construction and associated 
custodial activities within regulated areas to provide other on-site 
employers with information concerning the nature of the asbestos-
related work, information on regulated areas, and information on the 
specific measures that will be taken to prevent exposure to other 
employees. In addition, this provision of the OSHA Construction 
Standard clarifies that while the employer who creates an asbestos 
hazard must abate it, other on-site employers are responsible for 
protecting their employees from the hazard by removing them from the 
area or conducting an exposure assessment and providing personal 
protective equipment if warranted.
    f. Regulated areas. Under the current WPR, employers must establish 
a regulated area where employee exposures on asbestos abatement 
projects exceed, or are expected to exceed, the PEL, and all persons 
entering regulated areas must wear respirators (40 CFR 763.121(e)). 
This proposal, by cross-referencing the OSHA General Industry Standard, 
would make these requirements applicable to State and local governments 
who employ brake and clutch repair workers (29 CFR 1910.1001(e)).

[[Page 24811]]

    This proposal, by cross-referencing 29 CFR 1926.1101(e) of the OSHA 
Construction Standard, would also require all Class I-III asbestos 
construction work to be conducted within a regulated area. This 
requirement is based upon OSHA's assessment of the construction 
activities most likely to produce exposures in excess of the PEL, as 
well as OSHA's concern with the significant risk that still remains for 
workers exposed to the PEL. OSHA's reasoning is discussed in the 
Federal Register of August 10, 1994 (Ref. 8, p. 40982). Although this 
proposal would require State and local government employers to 
establish, demarcate, and control access to regulated areas for most 
asbestos construction work, construction employees working within 
regulated areas would not automatically need to wear respirators unless 
otherwise required by the regulation.
    g. Exposure monitoring. The current WPR requires employers to 
perform initial employee exposure monitoring for each covered activity, 
unless the employer has historical data from similar operations showing 
exposures below the PEL, or the employer can produce objective data 
showing that the material involved cannot release asbestos fibers in 
excess of the action level of 0.1 f/cc (40 CFR 763.121(f)). With 
respect to employees performing construction activities and associated 
custodial work, this proposal, by cross-referencing the OSHA 
Construction Standard, would modify the requirements for initial and 
periodic monitoring to reflect increased awareness that numerous 
factors influence employee exposure on construction jobs and that 
initial monitoring alone may not be the best predictor of future 
exposures. For more information on these considerations, see the 
Federal Register of August 10, 1994 (Ref. 8, pp. 40983-40984).
    The OSHA Construction Standard requires a competent person to make 
an initial exposure assessment (29 CFR 1926.1101(f)). This assessment 
involves a review of initial monitoring data, previous monitoring data 
from the same workplace or employer, and other factors such as the 
training and experience of the employees who will perform the work, the 
work practices they will use, and the degree and quality of supervision 
that will be provided. In many cases, the competent person will be able 
to make a negative exposure assessment, a determination that employee 
exposures will be consistently below the PELs, based upon one of three 
things:
    <bullet> Objective data which demonstrate that the product or 
activity involved is incapable of producing airborne asbestos 
concentrations in excess of the PELs.
    <bullet> Recent monitoring data from previous asbestos jobs which 
closely resemble the current activity with respect to processes, 
material types, control methods, work practices, environmental 
conditions, and employee training and experience.
    <bullet> Initial monitoring data from the current asbestos job.
    Unless a negative exposure assessment can be made, the employer 
must conduct daily exposure monitoring to ensure compliance with the 
exposure limits.
    For general custodial work and brake and clutch repair activities, 
this proposal would, by cross-referencing the OSHA General Industry 
Standard, require air monitoring only for activities where exposures 
exceed, or can reasonably be expected to exceed a PEL, and the employer 
does not have historical data from similar operations or objective data 
concerning the material which indicates that exposures will be below 
the PEL (29 CFR 1910.1001(d)).
    h. Methods of compliance for construction projects and associated 
custodial activities. This proposal cross-references the OSHA 
Construction Standard requirements for engineering controls and work 
practices (29 CFR 1926.1101(g)). Where necessary to achieve the PEL, 
the current WPR requires one or more of the following: HEPA vacuums, 
wet methods where feasible, and prompt cleanup and disposal of 
asbestos-containing waste and debris. These three general control 
processes would become mandatory under this proposal for all asbestos 
construction work. The remaining control processes mentioned in the 
existing 40 CFR 763.121(g), local exhaust ventilation, general 
ventilation systems, and enclosure/isolation of dust-producing 
processes, are only required by the OSHA Construction Standard where 
necessary to achieve the PELs.
    Under the current WPR, employers are required, if feasible, to use 
negative pressure enclosures for all projects that are not of small-
scale, short-duration (40 CFR 763.121(e)(6)). For Class I projects, 
this proposal would cross-reference the OSHA Construction Standard, 
which gives employers the flexibility to choose, depending upon the 
type of project, from several different engineering control systems, 
including negative pressure enclosures, glove bags, negative pressure 
glove bag systems, negative pressure glove box systems, water spray 
process systems, or mini-enclosures (29 CFR 1926.1101(g)). Alternative 
control methods may be used, so long as a competent person is able to 
certify that the methods would be adequate to reduce employee exposures 
below the PEL and that asbestos contamination beyond the regulated area 
will not occur. If the Class I project involves more than 25 linear or 
10 square feet of ACM, this determination must be made by a certified 
industrial hygienist or a licensed professional engineer who is also 
qualified as a project designer, and the Director, National Program 
Chemicals Division, Office of Pollution Prevention and Toxics, EPA, 
must be notified in advance. Additional requirements for Class I 
projects include critical barriers, or other methods to prevent the 
migration of fibers off-site, impermeable drop cloths for surfaces, and 
sealing of the HVAC system.
    Class II projects are generally not covered by the current WPR 
unless they involve friable ACM or previously non-friable ACM which has 
become damaged to the point that it can be considered friable. This 
proposal, like the 1994 proposal, would extend coverage of the WPR to 
all construction work involving ACM, whether friable or non-friable. 
This proposal would cross-reference the OSHA Construction Standard 
which, in addition to the basic control requirements for all 
construction work, requires employers to follow specific work practices 
and use specific engineering controls for different types of ACM, 
including resilient floor coverings, roofing material, cementitious 
siding and transite panels, and gaskets. For example, with respect to 
the removal of resilient floor coverings, 29 CFR 1926.1101(g)(8)(i) 
prohibits sanding of flooring or backing, rip-up of resilient sheet 
material, and dry sweeping/scraping. In addition, mechanical chipping 
of resilient floor covering is prohibited unless it is performed in 
accordance with the requirements for Class I projects. For all 
specified Class II projects, critical barriers or other isolation 
methods must be used, and the surfaces must be covered with impermeable 
drop cloths. As with Class I projects, Class II projects may be 
conducted with alternative control methods, as long as a competent 
person evaluates the project area and certifies that the alternative 
controls are sufficient to reduce employee exposure below the PELs. For 
Class II projects, however, the employer is not required to notify the 
Agency.
    Many Class III activities are currently covered by the WPR as 
small-scale,

[[Page 24812]]

short-duration asbestos abatement projects. Several of the control 
methods required by 29 CFR 1926.1101(g)(9) of the OSHA Construction 
Standard for Class III projects (wet methods, local exhaust ventilation 
as feasible, and, under specified circumstances, impermeable drop 
cloths and isolation methods) are essentially the same as the current 
WPR requirements in 40 CFR 763.121(g). If, for a particular Class III 
project, the employer is unable to produce a negative exposure 
assessment or monitoring results show the PEL has been exceeded, the 
OSHA Construction Standard requires the employer to use impermeable 
drop cloths and plastic barriers or their equivalent or one of the 
listed Class I control methods, such as a negative pressure enclosure 
or a glove bag.
    Class IV activities are not currently covered by the WPR. This 
proposal would extend the scope of the WPR to cover Class IV 
activities. In addition, this proposal would cross-reference the OSHA 
Construction Standard, which requires employers conducting Class IV 
activities to use general control measures, such as wet methods, HEPA 
vacuums, and prompt cleanup (29 CFR 1926.1101(g)(10)). However, 
employees performing Class IV activities must be provided with 
respirators if they are performing housekeeping activities in a 
regulated area where other employees are wearing respirators.
    i. Methods of compliance for brake and clutch repair activities. 
This proposal would require State and local government employers whose 
employees perform brake and clutch repair activities to comply with the 
OSHA General Industry Standard. In addition to general worker 
protection provisions, such as PELs, exposure monitoring, and 
respiratory protection, the OSHA General Industry Standard requires 
employers to use one of two primary methods for controlling employee 
exposure to asbestos during brake and clutch repair (Appendix F to 29 
CFR 1910.1001).
    The Negative Pressure Enclosure/HEPA Vacuum System method requires 
the work to be performed within a sealed enclosure similar to a glove 
bag, with impermeable sleeves through which the worker may handle brake 
and clutch components. Negative pressure must be maintained within the 
enclosure while the work is being performed. This method is virtually 
identical to the Enclosed Cylinder/HEPA Vacuum method in EPA's 1994 
proposal, but OSHA changed the name of this method to reflect the fact 
that the enclosure does not necessarily have to be in the shape of a 
cylinder. The Low Pressure/Wet Cleaning method requires the brake and 
clutch components to be kept adequately wet, using a low pressure water 
flow and a catch basin, while repair activities are taking place. 
Employers whose employees perform 5 or fewer brake and clutch repair 
jobs per week may use less complex wet methods to control employee 
exposures during the projects. An employer could use an alternative 
control method if the method was demonstrated to control employee 
exposures at least as well as the Negative Pressure Enclosure/HEPA 
Vacuum method.
    j. Methods of compliance for general custodial activities. This 
proposal would require State and local government employers whose 
employees perform custodial activities not associated with construction 
projects to comply with the OSHA General Industry Standard. In addition 
to general worker protection provisions, such as PELs, exposure 
monitoring, and respiratory protection, the OSHA General Industry 
Standard and Construction Standard contain identical specifications for 
resilient floor covering maintenance. The Standards ban sanding, allow 
stripping only using wet methods with a low abrasion pad at slow 
speeds, and prohibit dry buffing unless the finish on the floor is 
sufficient to prevent the pad from coming into contact with the floor 
material (29 CFR 1910.1001(k)(7), 29 CFR 1926.1101(l)(3)). This is 
generally consistent with EPA's existing guidance on floor maintenance 
(Ref. 19).
    k. Respirators. The current WPR requires employers to supply 
respirators to employees entering regulated areas (40 CFR 
763.121(e)(4)). This proposal would cross-reference the OSHA General 
Industry and Construction Standards (29 CFR 1910.1001(e), 29 CFR 
1926.1101(h)), which require respiratory protection for employees 
performing the following activities:
    <bullet> Class I projects.
    <bullet> Class II projects where ACM is not removed intact.
    <bullet> Class II-III projects that do not use wet methods.
    <bullet> Class II-III projects for which a negative exposure 
assessment has not been made.
    <bullet> Class III projects involving the disturbance of TSI or 
surfacing material.
    <bullet> Class IV work in regulated areas where other employees are 
wearing respirators.
    <bullet> Any other activities where asbestos exposure exceeds 
either of the PELs.
    <bullet> Emergencies.
    OSHA determined that respiratory protection was necessary for 
employees performing these activities due to the variability in 
exposures experienced during asbestos work, the need to protect workers 
who are disturbing ACM with the greatest potential for significant 
fiber release, and the fact that exposure monitoring results are not 
always available in a timely fashion. OSHA's findings are discussed in 
the Federal Register of August 10, 1994 (Ref. 8, p. 41010).
    In addition, EPA's 1994 proposed amendments to the WPR cross-
referenced the relevant portions of 29 CFR 1910.134, the OSHA 
Respiratory Protection Standard. In 1998, OSHA substantially revised 
this Standard (Ref. 14). This proposal would adopt by cross-reference 
the appropriate provisions of the revised OSHA Respiratory Protection 
Standard. The following is a discussion of requirements of the OSHA 
Respiratory Protection Standard that are not a part of the current WPR 
respirator requirements.
    Employers who are required to supply their employees with 
respirators must develop and implement a respiratory protection 
program. Under 29 CFR 1910.134.(c), the program must be in writing, 
updated as necessary, with workplace-specific procedures addressing the 
following major elements:
    <bullet> Procedure for selecting respirators.
    <bullet> Medical evaluations of employees required to use 
respirators.
    <bullet> Fit testing procedures for tight-fitting respirators.
    <bullet> Procedures for proper use of respirators in routine and 
(reasonably foreseeable) emergency situations.
    <bullet> Procedures and schedules for cleaning, disinfecting, 
storing, inspecting, repairing, discarding, and otherwise maintaining 
respirators.
    <bullet> Procedures to ensure adequate air quality, quantity, and 
flow of breathing air for atmosphere-supplying respirators.
    <bullet> Training of employees in the respiratory hazards they are 
potentially exposed to.
    <bullet> Training of employees in proper use of respirators, 
including putting on and removing them, any limitations on their use, 
and their maintenance.
    <bullet> Procedures for regularly evaluating program effectiveness.
    Employers must designate a person to administer and evaluate the 
respiratory protection program (29 CFR 1910.134(c)(3)). This 
administrator must have training and/or experience commensurate with 
the complexity of the particular program.
    Under 29 CFR 1910.134(d), the employer must provide respirators 
that are appropriate to the workplace and to

[[Page 24813]]

user factors that affect respirator performance and reliability, such 
as humidity, communication needs, and exertion levels. (See discussion 
at Ref. 14, p. 1196.) The employer must choose from a sufficient number 
of respirator models and sizes in order to properly fit the wearer (29 
CFR 1910.134(f)).
    Currently, the WPR requires an initial fit test, then, for 
negative-pressure respirators only, fit tests every 6 months (40 CFR 
763.121(h)(4)). By adopting the OSHA Respiratory Protection Standard by 
cross-reference, this proposal would lengthen the interval to a year, 
but periodic fit test would be required for all tight-fitting 
respirators, whether positive or negative pressure. As in the current 
WPR, fit testing would have to be accomplished using one or more OSHA-
approved protocols. In addition to the rigorous fit testing 
requirements, the OSHA Respiratory Protection Standard requires brief, 
easy-to-perform fit checks each time the respirator is worn (29 CFR 
1910.134(g)(1)(iii)). (See discussion at Ref. 14, p. 1239.)
    The OSHA Respiratory Protection Standard at 29 CFR 1910.134(h) 
requires specific respirator cleaning and maintenance practices, 
although an employer may choose to follow the instructions of the 
respirator manufacturer if they are sufficient to accomplish the same 
objectives such as sanitation and proper operation. The specific 
practices to be incorporated were compiled by OSHA from various 
sources, including recommendations by the American National Standards 
Institute (ANSI), the National Institute for Occupational Safety and 
Health (NIOSH), and the American Industrial Hygiene Association (AIHA).
    Employees must be trained in specific elements of proper respirator 
use and care, including the need for respirators, their limitations, 
emergency procedures, maintenance, inspection, storage, and medical 
signs and symptoms that may limit respirator effectiveness (29 CFR 
1910.134(k)).
    Finally, 29 CFR 1910.134(m) requires employers to keep records of 
employee fit tests, including the employee's name, the type of test, 
the specific make/model of respirator tested, the date of the test, and 
the results of the test. The employer must only retain the most recent 
fit test records for each employee.
    l. Protective clothing. The current WPR requires properly 
maintained and laundered protective clothing for employees exposed 
above the PEL (40 CFR 763.121(i)). This proposal would adopt the OSHA 
General Industry and Construction Standards, which require protective 
clothing to be provided where employees are exposed above the PELs, 
where the possibility of eye irritation exists, where a negative 
exposure assessment cannot be made for a particular project, or where 
employees are performing Class I operations involving the removal of 
over 25 linear or 10 square feet of TSI or surfacing ACM or PACM (29 
CFR 1910.1001(h), 29 CFR 1926.1101(i)). In addition, rather than the 
periodic inspections required by the current WPR, the Construction 
Standard requires the competent person to inspect employee worksuits at 
least once each shift for rips or tears.
    m. Hygiene facilities and practices. This proposal would adopt the 
hygiene requirements of the OSHA General Industry and Construction 
Standards (29 CFR 2910.1001(i), 29 CFR 1926.1101(j)). For Class I 
construction projects involving more than 25 linear or 10 square feet 
of ACM, the OSHA requirements are identical to the current WPR 
provisions for projects that are not of small-scale, short-duration (40 
CFR 763.121(j)). OSHA determined in 1994 that such stringent measures 
were not necessary for smaller Class I projects or other classes of 
construction work. For smaller Class I projects, and Class II and III 
projects where exposures exceed a PEL or where a negative exposure 
assessment is not produced, the employer must provide an equipment room 
or area where contaminated worksuits are HEPA-vacuumed and then 
removed. Again, if Class IV workers are performing housekeeping 
activities within a regulated area, they must follow the same hygiene 
practices as the other employees working in that area. For general 
custodial workers and brake and clutch repair workers, the OSHA General 
Industry Standard, which would be adopted by cross-reference, requires 
employers to provide clean change rooms, showers, and clean lunch rooms 
(29 CFR 1910.1001(i)). For all workers, this proposal would also adopt, 
by cross-reference, OSHA's ban on smoking in work areas that was 
proposed by EPA in 1994 (29 CFR 1910.1001(i)(4), 29 CFR 
1926.1101(j)(4)).
    n. Communication of hazards. This proposal would adopt by cross-
reference the requirement in the OSHA General Industry and Construction 
Standards that employers determine the presence, location, and quantity 
of ACM and presumed ACM (TSI, surfacing material, and resilient floor 
covering) in the worksite before work begins (29 CFR 1910.1001(j), 29 
CFR 1926.1101(k)). If ACM or presumed ACM is discovered in the worksite 
after the project has been started, the employer must inform other on-
site employers of the discovery.
    Under the OSHA Standards, employers must also post signs at the 
entrance to mechanical rooms that contain ACM or presumed ACM. These 
signs must identify the material, its location, and appropriate 
procedures for preventing a disturbance. As currently required by the 
WPR at 40 CFR 763.121(k)(1)(i), signs must be posted for regulated 
areas, but the OSHA Standards language regarding respirators and 
protective clothing may be omitted if the employees are not required to 
wear them within that particular regulated area. The OSHA Standards 
include the requirement proposed by EPA in 1994 that employers ensure 
their employees comprehend the warning signs and labels, using, if 
necessary, such techniques as foreign languages, pictographs, graphics, 
and awareness training (29 CFR 1910.1001(j)(3), 29 CFR 
1926.1101(k)(3)).
    Also, by cross-referencing the OSHA Construction Standard, this 
proposal would adopt the different OSHA training requirements for 
different classes of construction work and associated custodial 
activities (29 CFR 1926.1101(k)(9)). Under the OSHA Construction 
Standard, employees performing Class I projects must have MAP worker 
accreditation or the equivalent. If the project will be undertaken in a 
school or a public or commercial building, MAP worker accreditation is 
required. If the project is in an area unregulated by the MAP, such as 
in an outdoor installation, equivalent training is permitted. Class II 
work generally involves non-friable ACM, so MAP accreditation is not 
required unless the project involves friable ACM and is located within 
a school or a public or commercial building. The OSHA Construction 
Standard requires Class II workers to receive training in the material-
specific work practice and engineering control requirements pertaining 
to the type of material(s) that they will be disturbing. Class II 
training must take at least 8 hours and include a hands-on component. 
Class III workers must have 16 hours of training in a course which 
meets the requirements of the maintenance and custodial training 
required under the AHERA regulations at 40 CFR 763.92(a)(2). Class IV 
workers must have at least two hours of awareness training equivalent 
to the training described in the AHERA regulations at 40 CFR 
763.92(a)(1). Notwithstanding the specific training provisions for each 
class, the OSHA Construction Standard at 29 CFR 1926.1101(k)(9) 
requires employers to ensure that employees performing Class I-IV 
projects and employees who are

[[Page 24814]]

likely to be exposed in excess of the PEL are trained in the basic 
elements currently identified in the WPR at 40 CFR 763.121(k)(3)(iii).
    The OSHA Construction Standard also includes the requirements to 
provide employees with smoking cessation information as well as 
information concerning posting signs and affixing labels and their 
meaning that were proposed by EPA in 1994 (29 CFR 
1926.1101(k)(9)(viii)(J)). Finally, the OSHA Construction Standard 
requires employers to teach Class III-IV workers the contents of 
``Managing Asbestos In Place'' (the Green Book) (EPA 20T-2003, July 
1990), or its equivalent (29 CFR 1926.1101(k)(9)(viii)(D)).
    With regard to training for general custodial employees and brake 
and clutch repair workers, this proposal would adopt the OSHA General 
Industry Standard, which includes required training elements similar to 
those found in the current WPR (29 CFR 1910.1001(j)(7), 40 CFR 
763.121(k)(3)(iii)).
    o. Housekeeping. By adopting the OSHA General Industry and 
Construction Standards by cross-reference, this proposal would 
establish requirements for resilient floor covering maintenance by 
State and local government employees. The Standards ban sanding, allow 
stripping only using wet methods with a low abrasion pad at slow 
speeds, and prohibit dry buffing unless the finish on the floor is 
sufficient to prevent the pad from coming into contact with the floor 
material (29 CFR 1910.1001(k)(7), 29 CFR 1926.1101(l)(3)). The 
Standards are generally consistent with EPA's existing guidance on 
floor maintenance (Ref. 19).
    p. Medical surveillance. The WPR currently requires medical 
surveillance for persons exposed at or above the action level of 0.1 f/
cc for 30 or more days per year (40 CFR 763.121(m)). For general 
custodial workers and brake and clutch repair workers, this proposal 
would adopt by cross-reference the OSHA General Industry Standard 
requirement for medical surveillance for all workers exposed to 
asbestos concentrations at or above the PELs for any number of days per 
year (29 CFR 1910.1001(l)). For construction workers, this proposal 
would require, by cross-reference to the OSHA Construction Standard, 
medical surveillance for employees who perform Class I, II, or III work 
on, or who are exposed at or above a PEL for, 30 or more days per year 
(Class II or III work for an hour or less on intact ACM does not count 
as a day for the purposes of this requirement) (29 CFR 
1926.1101(m)(1)(i)(A)).
    q. Recordkeeping. The current WPR recordkeeping requirements would 
not be changed by this proposal, except that data used to rebut the 
presumption that TSI, surfacing material, or resilient floor covering 
is ACM must be retained by the employer for as long as the data are 
relied upon to rebut the presumption (40 CFR 763.121(n); 29 CFR 
1919.1001(m); 29 CFR 1926.1101(n)). This proposal would also permit 
employers to use competent organizations to maintain necessary records.
    r. Competent person. The current WPR requires a competent person to 
supervise asbestos abatement projects that are greater than small-
scale, short-duration activities (40 CFR 763.121(e)(6)). The OSHA 
Construction Standard at 29 CFR 1926.1101(o), which this proposal would 
adopt by cross-reference, extends the competent person supervision 
requirement to all construction projects and associated custodial work. 
The Construction Standard also expands and clarifies the 
responsibilities and required training for competent persons. Competent 
persons who supervise Class I or Class II projects must be MAP-
accredited contractor/supervisors or the equivalent. Equivalent 
training is permitted unless the project being supervised involves 
friable material in a school or a public or commercial building. 
Competent persons who supervise Class III or Class IV activities must 
have at least 16 hours of training which meets the requirements of 40 
CFR 763.92(a)(2) for local education agency maintenance and custodial 
staff, or its equivalent in stringency, content and length. The 
competent person must make regular inspections of the worksite, at 
least once per workshift for Class I projects, and must also be 
available for inspections upon request. Competent persons are generally 
responsible for ensuring compliance with the various regulatory 
requirements, including notifications and initial exposure assessments. 
The competent person requirements do not apply to brake and clutch 
repair operations or to general custodial activities not associated 
with construction projects.
    3. Proposed amendment to the Asbestos-in-Schools Rule. As in 1994, 
EPA is again proposing to amend the Asbestos-in-Schools Rule to remove 
the provisions that extend WPR protections to employees of public 
school systems when they are performing operations, maintenance and 
repair (O&M) activities (40 CFR 763.91(b)). The expanded scope of the 
proposed WPR would make these provisions unnecessary.
    The current WPR covers State and local government employees, 
including employees of public schools who are involved in friable 
asbestos abatement projects. The Asbestos-in-Schools Rule (40 CFR part 
763, subpart E), issued under the authority of AHERA, extends WPR 
protections to employees of public local education agencies when they 
are performing small-scale, short-duration O&M activities involving 
asbestos-containing materials. Appendix B to the Asbestos-in-Schools 
Rule describes appropriate worker protection practices for these 
employees.
    Since this proposal would provide coverage for all construction 
work, including O&M activities, to employees of public local education 
agencies in States without OSHA-approved State plans, the specific 
provisions at 40 CFR 763.91(b) covering O&M activities by employees of 
public local education agencies, as well as the provisions of Appendix 
B, would be unnecessary. EPA is therefore proposing to delete Appendix 
B and amend Sec. 763.91(b) to refer readers to the WPR.
    4. Plain language. EPA has drafted the revised regulatory text of 
the WPR taking into account the June 1, 1998, Presidential Memorandum 
on Plain Language (available at http://www.plainlanguage.gov/cites/memo.htm), and its implementing guidance. Using plain language 
clarifies what the WPR requires, and saves the government and the 
private sector time, effort, and money. EPA has used plain language to 
give the WPR a logical organization and easy-to-read design features. 
In the process, EPA has deleted from the proposed rule the current 
sections on enforcement and inspections (40 CFR 763.125 and 763.126). 
These sections are unnecessary, as they restate requirements in TSCA 
sections 11, 15, 16, and 17. Accordingly, EPA will continue to enforce 
the WPR and conduct inspections.
    5. State exemptions. The 1994 proposal would have revised 
Sec. 763.122 to adopt a process of State exclusions from the WPR that 
was substantively the same as that followed under the Asbestos-in-
Schools Rule (40 CFR 763.98). EPA has re-examined its authority under 
TSCA section 18, and is not including those changes in this proposed 
rule. Instead, EPA is proposing to revise the current language to 
conform to TSCA section 18 and to use plain language. This proposal 
would also redesignate this section as Sec. 763.123 because of other 
structural changes to 40 CFR part 763, subpart G.

[[Page 24815]]

B. What is the Agency's Authority for Taking this Action?

    1. Finding of unreasonable risk. Under TSCA section 6(a), if EPA 
finds that the manufacture, processing, distribution in commerce, use 
or disposal of a chemical substance or mixture, or any combination of 
these activities, presents, or will present, an unreasonable risk of 
injury to health or the environment, EPA shall by rule apply 
requirements to the substance or mixture to the extent necessary to 
protect adequately against the risk. Asbestos is a chemical substance 
or mixture that falls within the scope of this authority. In deciding 
whether to propose this rule under TSCA section 6(a), EPA considered:
    <bullet> The health effects of asbestos.
    <bullet> The magnitude of human exposure to asbestos.
    <bullet> The environmental effects of asbestos and the magnitude of 
the exposure of the environment to asbestos.
    <bullet> The benefits of asbestos for various uses and the 
availability of substitutes for those uses.
    <bullet> The reasonably ascertainable economic consequences of the 
proposed rule, after consideration of the effect on the national 
economy, small business, technological innovation, the environment, and 
public health.
    <bullet> The social impacts of the proposed rule.
    See 15 U.S.C. 2601(c) and 2605(c)(1). EPA's consideration of these 
factors in proposing this rule is summarized in this unit. Additional 
information on many of these factors can be found in the Economic 
Analysis (Ref. 18).
    a. Health effects of asbestos. Asbestos is found in building 
products such as insulation, ceiling and floor tiles, spackling tape 
for drywall, and roofing products. In general, asbestos contained in 
such products is considered harmless unless the matrix of asbestos 
fibers is disturbed or deteriorates. A disturbance occurs when ACM is 
abraded, cut, torn or penetrated in such a way that fibers are 
separated from one another and are released into the air where workers 
and others can inhale them. The primary route of human exposure is 
through the respiratory system, although other exposure routes (through 
ingestion or dermal contact, for example) are possible. Five 
respiratory illnesses are associated with asbestos exposure.
    <bullet> Carcinoma of the lung (lung cancer). Carcinoma of the lung 
is a term used to refer to several types of cancer of lung tissue. The 
cancers usually affect the larger airways in the lungs, but may 
sometimes also appear in the smaller airways and peripheral parts of 
the lungs. Asbestos-related lung cancer occurs primarily in people with 
some degree of asbestosis (especially moderate to severe asbestosis) 
who also smoke. The combination of asbestos exposure and smoking is 
between additive and multiplicative; some studies cite a 5-fold 
increase in the risk of lung cancer in asbestos-exposed nonsmokers 
versus a 60-fold increase in asbestos-exposed smokers. Lung cancer 
usually occurs many years after asbestos exposure, and is nearly always 
fatal.
    <bullet> Malignant mesothelioma of the pleura and peritoneum. 
Mesothelioma is a form of cancer that produces malignancies in the 
lining of the lung and chest cavity (pleura) and the lining of the 
abdominal organs and cavity (the peritoneum). The disease appears to be 
largely or wholly unrelated to smoking. Unlike lung cancer, which 
occurs in asbestos-exposed and unexposed smokers alike, malignant 
mesotheliomas occur mainly in asbestos-exposed individuals. Like lung 
cancer, mesothelioma usually occurs many years after exposure, and is 
always fatal. Mesothelioma is much less common than lung cancer, 
representing about 10% of lung cancer incidents.
    <bullet> Asbestosis. Asbestosis is a chronic and progressive lung 
disease caused by inhaling asbestos fibers, which penetrate and 
irritate the outer parts of the lungs. This, in turn, causes 
inflammation and, eventually, increasingly severe pulmonary fibrosis 
(thickening and scarring of lung tissue). As the tiny airways, air 
sacs, and related lung tissue become thicker and scarred, there is less 
space for air to pass through, so lung capacity declines. In addition, 
the lung tissue stiffens, making it more difficult to push air in and 
out. In the extreme, extensive fibrosis of the lungs causes the airways 
and air sacs to become so scarred and stiff that they cannot function 
well enough to sustain life, and respiratory failure and death ensue. 
The time from asbestos exposure to onset of asbestosis varies with the 
level of exposure, with higher exposures reducing the time till onset. 
Asbestosis will exacerbate other respiratory diseases (e.g., carcinoma 
of the lung) and will hasten death in individuals with other 
respiratory risk factors (i.e., smokers).
    <bullet> Pleural effusion leading to diffuse pleural thickening. 
Inhalation of asbestos fibers can lead to pleural conditions as the 
fibers become trapped on the pleural membranes. Asbestos-related 
pleural effusion is an accumulation of fluid between the two pleural 
membranes caused when asbestos fibers become trapped between the 
pleural membranes. One pleural membrane lines the lungs, while the 
other membrane lines the chest cavity. Normally, the two membranes lie 
very close to each other, sliding gently across each other during 
breathing. Accumulation of fluid causes the membranes to separate in 
the area of the fluid, usually making breathing more difficult and 
painful. Pleural effusion can cause the pleural membranes to thicken 
from irritation and infiltration of immune cells. Occasionally, the 
pleural membranes may fold in on themselves, crowding and trapping a 
piece of lung tissue. The resulting condition, called rounded 
atelectasis, is more likely to be symptomatic, but nevertheless is 
fairly benign, although the folding and lung tissue trapping can become 
larger over time, decreasing lung capacity and leading to shortness of 
breath. Pleural effusion usually occurs 10 to 15 years after continuous 
exposure to asbestos, and is rarely fatal.
    <bullet> Pleural plaques. Deposits of asbestos fibers on the 
pleural membrane can sometimes become calcified, forming asbestos-
related pleural plaques. Local areas of pleural thickening resemble 
pleural plaques and have similar clinical features. Pleural plaques are 
more common in overweight people, including many smokers. By causing 
portions of lung tissue to stiffen, they can impair lung function, 
making it harder to breathe, especially during exertion. In general, 
though, they are relatively benign and rarely fatal. Pleural plaques 
occur approximately 10 to 15 years after asbestos exposure.
    b. Human exposure to asbestos. The proposed rule would provide 
protection for State and local government employees involved in 
asbestos-related work in States that do not have OSHA-approved State 
plans. The activities that would be covered by the proposed rule 
include the following six categories of work:
    <bullet> New construction activities, which include all projects 
involving the installation of new asbestos-containing building 
materials, expected to be predominately asbestos-cement sheet and 
asbestos-cement pipe.
    <bullet> Abatement activities, which include the removal of 
asbestos-containing TSI from pipes and boilers and other types of ACM 
or presumed ACM in buildings.
    <bullet> Renovation activities, which include general building 
renovation projects. EPA believes that most of these projects will 
involve the demolition of drywall that has been sealed with asbestos-
containing taping materials, and the removal of asbestos-containing 
roofing felts.

[[Page 24816]]

    <bullet> Maintenance activities, which include repair and 
maintenance of pipes, boilers, furnaces, roofing, drywall, floor and 
ceiling tiles, lighting, and ventilation, heating, and air conditioning 
systems.
    <bullet> Custodial work, which includes dusting, sweeping and 
vacuuming.
    <bullet> Brake and clutch repair work.
    The following table summarizes the baseline asbestos exposures for 
workers performing these activities, as well as the incremental 
exposure reductions expected to be achieved through this rulemaking. 
For most activity categories, EPA estimates that worker exposures will 
decrease by at least one order of magnitude.

                                     Exposed Population and Exposure Levels
----------------------------------------------------------------------------------------------------------------
                                                      Population exposed              Exposure levels
                                   Class/category of    in the initial   ---------------------------------------
            Activity                     work          year of the rule
                                                            (FTEs)             Baseline            Post-rule
----------------------------------------------------------------------------------------------------------------
New Construction
  A/C pipe installation.........   NA...............   8................  0.0350............  0.0025
  A/C sheet installation........   NA...............   100..............   0.1000...........  0.0072
Subtotal                                              108
Abatement
  Building abatements...........   I................   25...............   0.1801...........   0.0104
  Boiler/pipe abatements........   I................   15...............   0.1801...........   0.0104
Subtotal                                              40
Renovation
  Drywall demolition............   II...............   2,050............   0.1130...........   0.0065
  Roofing felt removal..........   II...............   89...............   0.0900...........   0.0063
Subtotal                                              2,140
Maintenance (Class III)
  Repair leaking pipes..........   III..............   70...............   0.1624...........   0.0014
  Repair/maintain furnaces/        III..............   72...............   0.1624...........   0.0094
   boilers.
  Repair roofing................   III..............   148..............   0.0900...........   0.0063
  Repair drywall................   III..............   226..............   0.1130...........   0.0002
  Repair/replace floor tiles....   III..............   376..............   0.0240...........   0.0003
Subtotal                                              892
Maintenance (Class IV)
  Repair/replace ceiling tiles..   IV...............   4................   0.0714...........   0.0018
  Repair/adjust ventilation/       IV...............   68...............   0.0319...........   0.0008
   lighting.
  Repair heating/air               IV...............   62...............   0.0319...........   0.0008
   conditioning.
  Other work above drop ceilings   IV...............   19...............   0.0492...........   0.0013
Subtotal                                              153
Custodial work..................   IV...............   51,752...........   0.0459...........   0.0004
Brake and clutch repair
  Low pressure/wet cleaning        GI...............   2.032............   0.0041...........   0.0041
   method.
  Aerosol spray method..........   GI...............   1,451............   0.0141...........   0.0041
  Wet methods...................   GI...............   2,322............   0.0122...........   0.0041
Subtotal                                              5,805
Building occupants..............   NA...............   4,007,710........   0.00008..........   0.00004
School children.................   NA...............   20,781,696.......   0.00008..........   0.00004
Totals
  All activities................     ...............   24,850,296.......     ...............
  All activities, excluding          ...............   4,068,600........     ...............
   school children.
  All activities, excluding          ...............   60,890...........     ...............
   school children and building
   occupants.
----------------------------------------------------------------------------------------------------------------

    See Table 3-3 of the Economic Analysis (Ref. 18).
    EPA finds that reducing asbestos worker exposures will also result 
in reduced exposures for incidentally exposed populations, i.e., 
individuals who are exposed to asbestos without actually performing 
work on ACM. These populations are:
    <bullet> School children. The proposed rule covers State and local 
government employees performing asbestos-related work in States without 
OSHA-approved State plans. A number of the activities that would be 
covered by the proposed rule occur in public schools. Thus, one 
incidentally exposed population that would benefit from the proposed 
rule would be individuals exposed to asbestos as children while 
attending public schools in the covered States. EPA expects that these 
individuals primarily face risks from lung cancer and mesothelioma as 
adults based on their exposure as children.
    <bullet> Building occupants, workers' families, and other 
individuals who enter buildings covered by the proposed rule. OSHA has 
determined that building occupants where asbestos work takes place 
(e.g., office workers), construction workers performing non-asbestos 
related work, individuals entering buildings where asbestos work is 
taking place (e.g., building visitors), and workers' families are at 
risk of harmful asbestos exposure. NIOSH has determined that workers' 
families may be at particular risk of developing asbestosis or 
mesothelioma from the contaminated clothes of asbestos workers in the 
family. The proposed rule takes steps to reduce asbestos exposure among 
family members through the use of decontamination units (29 CFR 
1926.1101(j)) and the use of protective clothing that remains at the 
workplace or is disposed of (29 CFR 1926.1101(i)). Except for building 
occupants, custodial workers and school children, no quantitative 
estimates are available regarding the number of people that are 
incidentally exposed or their exposure level. The provisions of the 
proposed rule would decrease the

[[Page 24817]]

potential of harmful exposure for these individuals and consequently 
decrease the expected incidence of asbestos-related death and disease 
among family members.
    The preceding table also presents the estimated exposure reductions 
attributable to this rule for school children and other building 
occupants. EPA believes that the controls that would be imposed by this 
proposal would reduce the incidental asbestos exposures for these 
populations by 50%.
    c. Environmental effects of asbestos. This proposed rule is 
directed at risks posed by asbestos in the workplace, not in the 
ambient environment. EPA therefore did not consider the environmental 
effects of asbestos in proposing this rule.
    d. The benefits of asbestos for various uses and the availability 
of substitutes for those uses. This proposed rule would protect workers 
exposed to asbestos during construction work and during automotive 
brake and clutch repair work. Some of this work could involve removal 
of asbestos. This proposed rule would not, however, require any person 
to remove asbestos from an existing installation. The person 
responsible for managing existing installations of asbestos must make 
the decision whether the benefits of retaining or managing that 
installation exceed the benefits of removing the asbestos and replacing 
it with another material. As part of that decision, that person will 
evaluate the cost and availability of substitutes for asbestos. If the 
person concludes that satisfactory substitutes are not available at an 
acceptable price, the person is free to decide that the benefits of 
maintaining the installation exceed the costs of removing it, and on 
that basis may leave the asbestos in place. EPA therefore did not 
consider the benefits of asbestos for various uses and the availability 
of substitutes for those uses in proposing this rule.
    e. Economic consequences of this proposed rule. This proposed rule 
would reduce workers' and building occupants' exposure to asbestos, and 
would thereby reduce the incidence of cancer and other injurious health 
effects among these populations. The Economic Analysis for this 
proposed rule (Ref. 18) provides a detailed analysis of the economic 
benefits associated with the reduced incidence of these diseases. This 
proposal would also impose new requirements on State and local 
governments that would require these entities to incur compliance 
costs. The Economic Analysis also analyzes in detail the incremental 
costs to State and local governments of complying with the proposed 
rule. In evaluating these incremental costs, EPA assumes that affected 
State and local governments are in compliance with requirements of the 
current WPR, the asbestos National Emission Standard for Hazardous Air 
Pollutants (40 CFR part 61, subpart M), and the Asbestos-in-Schools 
Rule (40 CFR part 763, subpart E). These incremental benefits and 
compliance costs are summarized in this unit.
    i. Economic benefits. EPA has assessed the economic benefits of the 
proposed rule and has provided quantitative estimates for some of these 
benefits.
    <bullet> Avoided cases of lung cancer and mesothelioma. Sixty-five 
years of exposure reduction under the proposed rule would reduce the 
number of lung cancer and mesothelioma cases among exposed workers and 
building occupants by 71.58 cases. A majority of these avoided cases 
occur among custodial workers, where 58.14 cases (81.2% of the number 
of cases among exposed workers and building occupants) are avoided. The 
next largest number of avoided cases, 3.96, occurs among building 
occupants. The proposed rule would also affect some activities in 
public schools in States without OSHA-approved State plans. This would 
result in a reduction in the risk to school children in these States. 
EPA estimates that 65.3 million students over a 65-year period would 
benefit from reduced exposure under the proposed rule. EPA estimates 
that 65 years of exposure reduction under the proposed rule would 
result in 65.65 avoided cancer cases among individuals exposed as 
school children.
    The Economic Analysis supporting this proposed rule uses a ``value 
of statistical life'' (VSL) technique to associate a dollar value with 
these avoided cancer cases. There are several types of economic studies 
that have attempted to determine the VSL. Of these, most use labor 
market data to determine workers' trade-offs between wages and risk. In 
addition, some researchers have used contingent valuation to evaluate 
willingness to pay to avoid risk. One researcher reviewed a large 
number of studies, with a range of $2 million to $11 million per 
statistical life, and recommended use of the entire range. The most 
recent review of the results of research using these approaches found a 
range of values from $700,000 to $16.2 million. EPA's Office of Indoor 
Air selected 26 studies and calculated their mean estimated value of 
life to be $5.5 million (1994 dollars), with a standard deviation of 
$3.6 million. The Economic Analysis accompanying this proposed rule 
uses the Office of Indoor Air estimate, updated to $6.53 million in 
anticipated 2001 dollars. The Economic Analysis uses the VSL estimate 
to value avoided risk at the point of exposure reduction, and discounts 
the value of avoided risk occurring in years beyond 2001 back to 2001, 
using a discount rate of 3%.
    Based on a VSL analysis, this proposed rule would result in $405.45 
million in monetized benefits attributable to 137.23 avoided cases of 
lung cancer and mesothelioma. EPA estimates that the 65-year present 
monetary value of reducing cancer incidence among exposed workers and 
building occupants under the proposed rule is $248.09 million. Avoided 
cancer cases among custodial workers represent the largest share of the 
total, with a 65-year present monetary value of $202.34 million (81.6% 
of the total). In addition, EPA estimates the present monetary value of 
the avoided cancer risk among individuals exposed as school children to 
be $157.36 million.
    <bullet> Avoided cases of asbestosis. EPA estimates that 
approximately five cases of asbestosis would be avoided under the 
proposed rule. EPA does not include this estimate among the quantified 
benefits of the proposed rule, however, because of the uncertainties 
about applying the available models to activities involving the 
relatively low doses to which construction, custodial, and brake and 
clutch repair workers are exposed. In addition, EPA has determined that 
many individuals who develop asbestosis also develop lung cancer, so 
presenting estimates of the number of avoided asbestosis cases in 
conjunction with estimates of the number of avoided lung cancer cases 
may result in double-counting (i.e., some of the asbestosis cases may 
also be cases of lung cancer). EPA considers this estimate of avoided 
asbestosis cases to be only an indication of the potential magnitude of 
the number of avoided asbestosis cases.
    <bullet> Avoided productivity losses associated with non-fatal 
diseases. In addition to lung cancer and mesothelioma, asbestos 
exposure is associated with numerous other diseases such as pleural 
plaques and pleural effusion. These conditions are caused by the 
inhalation of asbestos fibers that eventually become lodged in the 
lungs and airways of exposed individuals. Reducing asbestos exposure 
levels, along with the use of protective equipment such as respirators, 
would reduce the amount of asbestos fibers inhaled by exposed 
individuals, reducing the risk of developing these conditions. However, 
EPA was not able to quantify the reduction in these cases.

[[Page 24818]]

    Although these conditions are not fatal, workers who develop them 
may need to reduce their work time or retire early, resulting in lost 
productivity. Lost productivity during the period of illness represents 
a cost associated with the disease. Exposure models that predict the 
number of these diseases and conditions are not available, making it 
impossible to quantify the number of cases and the resulting loss in 
productivity. Nonetheless, a reduction in asbestos exposure would 
decrease the incidence of non-fatal asbestos-related disease and thus 
productivity losses associated with these conditions. The reduced 
incidence of non-fatal diseases would in turn reduce the number of 
workers who are out of work due to illness. Thus the proposed rule 
would reduce the amount of lost productivity due to illness, but by an 
unknown amount.
    <bullet> Avoided medical costs associated with non-fatal diseases. 
Medical costs are also incurred by individuals who experience non-fatal 
asbestos-related diseases (pleural plaques and pleural effusion). 
Estimates of the costs of treating these illnesses, as well as models 
that predict their incidence, are not available. A reduction in 
asbestos exposure will reduce the incidence of asbestos-related disease 
and consequently the medical costs associated with treating those 
diseases. Reduced exposures should also decrease the severity of cases 
of illness not prevented by the proposed rule. Less severe cases will 
require less medical care and lower medical care costs. Thus this 
proposal would also reduce medical costs of non-fatal asbestos-related 
diseases, but by an unknown amount.
    <bullet> Decreased risk for exposed individuals not working with 
asbestos, including workers' families. Occupants of buildings where 
asbestos work takes place (e.g., office workers), construction workers 
performing non-asbestos related work, individuals entering buildings 
where asbestos work is taking place (e.g., building visitors), and 
workers' families may be incidentally exposed to asbestos. NIOSH has 
determined that workers' families may be at particular risk of 
developing asbestosis or mesothelioma from the contaminated clothes of 
asbestos workers in the family. The proposed rule takes steps to reduce 
asbestos exposure among family members through the use of 
decontamination units and the use of protective clothing that remains 
at the workplace or is disposed of.
    Except for building occupants, custodial workers and school 
children, no quantitative estimates are available regarding the number 
of people that are incidentally exposed or their exposure level. The 
provisions of the proposed rule would decrease the potential of harmful 
exposure for these individuals and consequently decrease the expected 
incidence of asbestos-related death and disease among family members.
    ii. Compliance costs. EPA estimates that the proposed rule would 
impose first-year compliance costs of $63.34 million. Annually 
thereafter, the real compliance costs are assumed to decline due to 
attrition of buildings from the stock of those that contain asbestos 
(i.e., due to abatements or demolitions). Over the 65-year time frame 
of exposure reduction, the present value of compliance costs is 
estimated to be $1.12 billion. The following table provides a summary 
of the estimated compliance costs (both first-year costs and the 65-
year present value of costs) by paragraph of the OSHA Standard, and by 
the individual requirements for those paragraphs. In the construction 
sector, the ``Methods of compliance'' paragraph of the OSHA 
Construction Standard (29 CFR 1926.1101(g)) accounts for the greatest 
share of compliance costs. This paragraph results in estimated costs of 
$35.84 million in the first year and $636.16 million over the 65-year 
period, which represent 56.6% of the total costs of the proposed rule. 
Within this paragraph, the wet methods requirement accounts for the 
greatest share of compliance costs. The estimated costs of the wet 
methods requirement are $21.65 million in the first year and $384.35 
million over the 65-year period, representing 34.2% of the total costs 
of the proposed rule.

                            Summary of Compliance Costs by Paragraph and Requirement
----------------------------------------------------------------------------------------------------------------
                                                                 65-year present value
             Requirement                First-year compliance     of compliance costs     Percent of total costs
                                           Cost ($millions)           ($millions)
----------------------------------------------------------------------------------------------------------------
CONSTRUCTION ACTIVITIES:
29 CFR 1926.1101(d)--Multi-employer
 worksites
  Second employer inspections........  $0.39..................  $6.91..................  0.61%
  Paragraph subtotal.................  $0.39..................  $6.91..................  0.61%
29 CFR 1926.1101(e)--Regulated areas
  Signs and tape.....................  $3.10..................  $55.02.................  4.89%
  Paragraph subtotal.................  $3.10..................  $55.02.................  4.89%
29 CFR 1926.1101(f)--Exposure
 assessment and monitoring
  Initial exposure assessment........  $0.61..................  $10.75.................  0.96%
  Paragraph subtotal.................  $0.61..................  $10.75.................  0.96%
29 CFR 19261101(g)--Methods of
 compliance
  HEPA vacuums.......................  $10.31.................  $183.09................  16.28%
  Wet methods........................  $21.65.................  $384.35................  34.18%
  Leak-tight containers..............  $0.37..................  $6.61..................  0.59%
  Local exhaust ventilation..........  $0.60..................  $10.58.................  0.94%
  Impermeable drop cloths............  $1.80..................  $31.96.................  2.84%
  Critical barriers..................  $0.06..................  $1.00..................  0.09%
  Plastic around HVAC systems........  $0.01..................  $0.25..................  0.02%
  Negative pressure enclosures.......  $0.00..................  $0.00..................  0.00%
  Glove bag systems..................  $1.03..................  $18.32.................  1.63%
  Paragraph subtotal.................  $35.84.................  $636.16................  56.58%
29 CFR 1926.1101(h)--Respiratory
 protection
  Respirators........................  $3.63..................  $64.42.................  5.73%
  Develop respirator programs........  $0.76..................  $13.52.................  1.20%
  Fit testing for respirators........  $0.03..................  $0.53..................  0.05%
  Paragraph subtotal.................  $4.42..................  $78.46.................  6.98%
29 CFR 1926.1101(i)--Protective
 clothing

[[Page 24819]]

 
  Provide clothing...................  $0.00..................  $0.00..................  0.00%
  Inspect clothing...................  $0.05..................  $0.80..................  0.07%
  Paragraph subtotal.................  $0.05..................  $0.80..................  0.07%
29 CFR 1926.1101(j)--Hygiene
 facilities and practices
  Paragraph subtotal.................  $0.00..................  $0.00..................  0.00%
29 CFR 1926.1101(k)--Communication of
 hazards
  Notify employees...................  $1.46..................  $25.99.................  2.31%
  Notify other employees/employers...  $1.47..................  $26.01.................  2.31%
  Training...........................  $2.97..................  $52.71.................  4.69%
  Paragraph subtotal.................  $5.90..................  $104.71................  9.31%
29 CFR 1926.1101(l)--Housekeeping
  Paragraph subtotal.................  $0.00..................  $0.00..................  0.00%
29 CFR 1926.1101(m)--Medical
 surveillance
  Medical exams......................  $0.75..................  $13.27.................  1.18%
  Paragraph subtotal.................  $0.75..................  $13.27.................  1.18%
29 CFR 1926.1101(n)--Recordkeeping
  EPA access to records..............  $2.37..................  $42.14.................  3.75%
  Employee access to records.........  $0.26..................  $4.67..................  0.41%
  Paragraph subtotal.................  $2.64..................  $46.81.................  4.16%
29 CFR 1926.1101(o)--Competent person
  Training...........................  $5.96..................  $105.76................  9.41%
  Inspection by competent person.....  $0.01..................  $0.22..................  0.02%
  Paragraph subtotal.................  $5.97..................  $105.98................  9.42%
TOTAL FOR CONSTRUCTION...............  $59.65.................  $1,015.68..............  94.17%
GENERAL INDUSTRY BRAKE AND CLUTCH
 REPAIR:
29 CFR 1910.1001(d)--Exposure
 monitoring
  Establish exemption................  $0.40..................  $7.16..................  0.64%
  Paragraph subtotal.................  $0.40..................  $7.16..................  0.64%
29 CFR 1910.1001(f)--Work practices
 and controls
  Adopt low pressure/wet cleaning      $1.24..................  $21.99.................  1.96%
   method.
  Paragraph subtotal.................  $1.24..................  $21.99.................  1.96%
29 CFR 1910.1001(j)--Hazard
 communication
  Notify employees...................  $1.72..................  $30.54.................  2.72%
  Paragraph subtotal.................  $1.72..................  $30.54.................  2.72%
29 CFR 1910.1001(k)--Housekeeping
  Leak-tight containers..............  $0.32..................  $5.65..................  0.50%
  Paragraph subtotal.................  $0.32..................  $5.65..................  0.50%
29 CFR 1910.1001(m)--Recordkeeping
  EPA access to records..............  $0.01..................  $0.18..................  0.02%
  Employees access to records........  $0.001.................  $0.022.................  0.00
  Paragraph subtotal.................  $0.01..................  $0.20..................  0.02%
TOTAL FOR GENERAL INDUSTRY...........  $3.69..................  $108.74................  5.83%
GRAND TOTALS.........................  $63.34.................  $1,124.42..............  100.00%
----------------------------------------------------------------------------------------------------------------

    See Table 4-11 of the Economic Analysis (Ref. 18).
    In the brake and clutch repair sector, compliance costs are highest 
for the ``Communication of hazards to employees'' paragraph of the OSHA 
General Industry Standard (29 CFR 1910.1001(j)), which includes one 
requirement applicable to brake and clutch repair work, namely to 
notify employees. This paragraph results in estimated compliance costs 
of $1.72 million in the first year and $30.54 million over the 65-year 
time period. This represents 2.72% of the total costs of the proposed 
rule. The ``Methods of compliance'' paragraph of the OSHA General 
Industry Standard (29 CFR 1910.1001(f)) contains one requirement 
applicable to brake and clutch work, namely to adopt the low pressure/
wet cleaning method. This requirement accounts for $1.24 million in 
first year compliance costs and $21.99 million over the 65-year period, 
representing 1.96% of the total costs of the proposed rule.
    iii. Other effects. TSCA section 6(c)(1)(D) also requires EPA, when 
considering the economic consequences of the rule, to take into account 
effects on the national economy, small business, technological 
innovation, the environment, and public health. The effects of this 
rule on the national economy are addressed in the Economic Analysis 
(Ref. 18) and Unit IV. As this rule affects only State and local 
government employers, there are no anticipated impacts on small 
businesses. The impacts on small government entities are evaluated in 
the Economic Analysis (Ref. 18) and Unit IV. With respect to 
technological innovation, EPA does not believe that this rule will be 
unduly restrictive, since the underlying OSHA Construction and General 
Industry Standards allow sufficient flexibility for the development of 
new technology for asbestos-related work. In addition, this rule's 
impacts on technology issues in general and the use of technical 
standards are discussed in Unit IV. As described in Unit II.B.1.c., EPA 
did not consider environmental effects in this rulemaking as it is 
directed towards asbestos exposures in the workplace. Finally, the 
public health effects of this rule are discussed in Units II.B.1.a. and 
b.
    f. Social and other qualitative effects. TSCA section 2 requires 
EPA, when taking any action under TSCA, to consider the social as well 
as environmental and economic impacts of

[[Page 24820]]

the action. EPA considers social and other non-economic beneficial 
impacts when determining whether a particular level of risk is 
``unreasonable'' and requires mitigation under TSCA section 6. In 
evaluating the reasonableness of the risk posed by occupational 
asbestos exposures to State and local government workers, EPA 
considered the following social and other qualitative effects of the 
proposed rule.
    <bullet> Equity. One important social consequence of the proposal 
would be the elimination of inequitable legal protections for classes 
of persons based solely upon the identity and location of their 
employers. Currently, private sector building maintenance and custodial 
workers enjoy comprehensive protection from excessive asbestos 
exposures under the OSHA Construction Standard. State and local 
government building maintenance and custodial workers in the 23 States 
with OSHA-approved State Plans already enjoy this same level of 
protection, since the protection afforded by such plans must be as 
effective as that provided to workers in the private sector. However, 
asbestos workers engaged in the same activities in the remaining 27 
States are currently unprotected. There is an obvious inequity in 
offering different levels of protection to employees who are performing 
the same tasks, or even working side-by-side in a common job space. 
These inequitable conditions are unreasonable, and the fact that 23 
States have already provided equivalent protections for their State and 
local government employees is evidence of the strong general societal 
interest in providing State and local government workers with a level 
of protection similar to that enjoyed by their counterparts in the 
private sector.
    <bullet> Reduced implementation burdens. Having a uniform set of 
standards for construction and brake and clutch repair employees would 
have the added social benefit of easing implementation burdens. The 
OSHA standards are highly detailed and complex, but many excellent 
training, guidance, and reference resources are available. See http://www.osha-slc.gov/SLTC/asbestos/. Yet, because of the lack of 
consistency between the WPR and the OSHA standards, State and local 
government workers and their employers in 27 States cannot take 
advantage of these resources. The burden on the regulated community of 
essentially re-creating these resources to reflect the minor 
differences between the WPR and the OSHA standards exists only because 
of the difficulty in amending the WPR to keep pace with changes in the 
OSHA standards. Adoption of the proposal would also avoid potential 
confusion and mistakes by allowing all workers and their supervisors to 
learn a single standard and know the requirements that apply to their 
work without additional training if such workers or supervisors move 
from the public sector to the private sector or vice-versa.
    <bullet> Environmental justice. Many of the employees who would 
benefit from the protections of this proposed rule are members of 
minority and low-income populations. In testimony before OSHA in 1991, 
the Service Employees International Union (SEIU) described building 
maintenance workers as being among the ``least protected members in our 
society--largely comprised of ethnic minority groups, new immigrants to 
our country, what economists refer to as the working poor, many forced 
to work permanent part-time...'' (Ref. 20). As discussed in the 
Economic Analysis, some minorities are disproportionally represented in 
certain occupations that would be regulated by this proposal. In 
addition, EPA's analysis has determined that the median weekly income 
of workers in most of the occupations that would be covered by this 
rule is below the median income of all workers nationwide. No segment 
of the population, regardless of race, color, national origin, or 
income, should, as a result of EPA's policies, programs, or activities, 
be more affected by adverse health effects, and all people should live 
and work in clean, healthy, and sustainable environments.
    <bullet> Quality of life. The health effects of asbestos are 
discussed in detail in Unit II.B.1.a. Two forms of cancer, carcinoma of 
the lung and malignant mesothelioma, can result from inhaling asbestos 
fibers. Another asbestos-related disease, asbestosis, is a chronic and 
progressive lung disease causing extensive fibrosis of the lungs and, 
in extreme cases, respiratory failure and death. Exposure to asbestos 
can cause other respiratory diseases, that, while non-fatal, can 
significantly impair lung function, reduce lung volume, and cause lung 
stiffness, making breathing difficult and very painful. Pleural 
effusion impairs lung function by causing an accumulation of fluid in 
the lung membranes; and pleural plaques cause a stiffening of the lung 
tissue that particularly affects breathing during exertion. All these 
diseases cause physical and psychological pain for the diseased person 
and psychological pain for friends and family. Reducing the incidence 
of asbestos-related diseases improves the quality of life for both 
workers and workers' friends and families by mitigating these negative 
consequences. The legislative history of TSCA shows that quality of 
life was an important Congressional concern as the provisions of TSCA 
were debated and enacted.
    <bullet> Children's health. EPA's analysis indicates that the 
proposed rule would significantly reduce the incidence of cancer among 
individuals with childhood asbestos exposures from school buildings. 
EPA estimates that 65.65 such cases would be avoided under this rule as 
a result of exposure reductions over a period of 65 years. Children are 
more vulnerable than adults to the risks of asbestos for a number of 
physiological reasons. Children have less well-developed defense 
mechanisms, they breathe more rapidly, and their metabolic rates are 
different. The smaller respiratory systems of children may be less 
likely to clear particles than adult respiratory systems. EPA places a 
high priority on identifying and assessing environmental health risks 
and safety risks that may disproportionately affect children. By 
reducing ambient asbestos concentrations in school buildings, this rule 
would help protect children from the disproportionate asbestos exposure 
risk they face.
    g. Finding of unreasonable risk. Therefore, having considered the 
factors discussed in Unit II.B.1., including the serious and 
irreversible health effects of exposure to asbestos; the present 
exposure levels among State and local government employees; the 
economic benefits of the proposed rule, including avoided cases of lung 
cancer and mesothelioma; the costs to State and local governments of 
complying with the proposed rule; and the beneficial social and other 
qualitative consequences of the proposal, especially that of equity; 
EPA finds under TSCA section 6 that the current exposure to asbestos 
among unprotected State and local government employees during use or 
disposal in construction work, custodial work, and brake and clutch 
repair work presents an unreasonable risk of injury to human health, 
and that rulemaking is necessary to provide adequate protection against 
that risk.
    2. Selection of least burdensome requirements. Under TSCA section 
6(a), once EPA has determined that a chemical substance or mixture 
presents an unreasonable risk to health or the environment, EPA must 
use the least burdensome requirements to protect against that risk. 
This standard requires EPA to consider the alternative regulatory 
options presented in TSCA section 6(a), and to choose the least 
burdensome option. The options set out

[[Page 24821]]

in TSCA section 6(a), and EPA's analysis of those options, follows.
    a. A requirement prohibiting or limiting the manufacture, 
processing, or distribution in commerce of asbestos (TSCA section 
6(a)(1)). EPA did not select this option because such a requirement 
would only protect workers from the risks of future uses of asbestos. 
This proposal would protect workers from the risks posed by both future 
asbestos uses and existing installations of asbestos, which have 
already been manufactured, processed, or distributed in commerce and 
are now in use. Moreover, prohibiting or limiting the manufacture, 
processing, or distribution in commerce of particular uses of asbestos 
would be an unduly burdensome way to protect State and local government 
construction, custodial and brake and clutch repair workers from the 
risks of exposure to asbestos. There may still be appropriate uses for 
asbestos and products containing asbestos. It is not necessary to 
burden the economy by prohibiting or limiting the manufacture, 
processing, or distribution in commerce of asbestos in order to protect 
a small segment of the population from exposure to asbestos from such 
products.
    b. A requirement prohibiting or limiting the manufacture, 
processing, or distribution in commerce of asbestos for a particular 
use or for a particular use in excess of a specified concentration 
(TSCA section 6(a)(2)). As with the option under TSCA section 6(a)(1), 
EPA did not select this option because such a requirement would only 
protect workers from the risks of future uses of asbestos. This 
proposal would protect workers from the risks posed by both future 
asbestos uses and existing installations of asbestos, which have 
already been manufactured, processed, or distributed in commerce and 
are now in use. Moreover, prohibiting or limiting the manufacture, 
processing, or distribution in commerce of particular uses of asbestos 
would be an unduly burdensome way to protect a small segment of the 
population from exposure to asbestos from such uses.
    c. A requirement that asbestos and asbestos-containing material be 
marked or accompanied by a warning and instructions for its use, 
distribution in commerce, and/or disposal (TSCA section 6(a)(3)). This 
proposal would require, in effect, that employers ensure their 
employees comprehend warning signs, labels, and instructions posted 
where asbestos is present, using, if necessary, such techniques as 
foreign languages, pictographs, graphics, and awareness training. 
Markings, warnings, or instructions by themselves, however, would not 
adequately reduce State and local government workers' exposure to 
asbestos. These workers' exposure to asbestos during construction work 
or brake and clutch repair and service work is dependent on the 
industrial hygiene practices in the workplace, which are largely in the 
control of the employer. Therefore, this rule would require employers 
to provide additional protections to reduce their employees' exposure 
to asbestos.
    d. A requirement controlling manufacture and processing of asbestos 
and requiring manufacturers and processors to keep records of their 
manufacturing or processing processes and monitor those processes (TSCA 
section 6(a)(4)). EPA did not select this option because such a 
requirement would only protect workers from the risks of future uses of 
asbestos. This proposal would protect workers from the risks posed by 
both future asbestos uses and existing installations of asbestos, which 
have already been manufactured, processed, or distributed in commerce 
and are now in use. Moreover, controlling the manufacture or processing 
of particular uses of asbestos would be an unduly burdensome way to 
protect a small segment of the population from exposure to asbestos 
from such uses.
    e. A requirement prohibiting or otherwise regulating any manner or 
method of commercial use of asbestos (TSCA section 6(a)(5)). The 
asbestos present in buildings and in vehicles was sold as commercial 
products. Therefore, construction work or brake and clutch repair is 
commercial activity subject to this section. This proposed rule would 
regulate the manner and method of use of these commercial products by 
establishing worker protection, training, and hazard communication 
requirements for State and local government employers whose employees 
install and maintain these products.
    f. A requirement prohibiting or otherwise regulating any manner or 
method of disposal of asbestos by anyone who manufactures, processes, 
uses, or disposes of asbestos for commercial purposes (TSCA section 
6(a)(6)). The removal of asbestos is disposal for commercial purposes 
subject to this section. Management of asbestos in place is use for 
commercial purposes. This proposed rule would regulate the manner and 
method of disposal of these commercial products by establishing worker 
protection, training, and hazard communication requirements for State 
and local government employers whose employees remove these products.
    g. A requirement directing manufacturers or processors of asbestos 
to notify distributors of asbestos, and others in possession of or 
exposed to asbestos, of unreasonable risks of injury from asbestos, to 
give public notice of those risks, and to replace or repurchase 
asbestos (TSCA section 6(a)(7)). EPA did not select this option for 
this proposed rule. As with labeling and marking requirements, 
notifications by themselves would not adequately reduce State and local 
government workers' exposure to asbestos. These workers' exposure to 
asbestos during construction work or brake and clutch repair and 
service work is dependent on the industrial hygiene practices in the 
workplace, which are largely in the control of the employer. This 
proposed rule would require employers to use appropriate engineering 
controls and work practices, and provide their employees with personal 
protection equipment to reduce their employees' exposure to asbestos. A 
requirement for the manufacturers to replace or repurchase asbestos-
containing building products would also not protect the State and local 
government workers who must remove installed building products.
    h. Conclusion. Therefore, having considered the regulatory options 
in TSCA section 6(a)(1) through 6(a)(7), EPA finds that the least 
burdensome option for protecting State and local government employees 
is a regulation based on TSCA sections 6(a)(3), 6(a)(5), and 6(a)(6). 
This determination is specific to this rulemaking, and EPA may, if 
warranted, take additional actions to address asbestos risks in the 
future. If any commenter believes that there is a feasible, less 
burdensome alternative to the action proposed here that would 
sufficiently mitigate the unreasonable risk that is the subject of this 
rulemaking and outweigh the Agency's strong interest in consistency and 
equity, the commenter should identify this option in the comments and 
explain how it would sufficiently mitigate the unreasonable risk in a 
less burdensome manner than the option proposed by the Agency.
    3. Consideration of other Federal laws. TSCA sections 6(c) and 9 
require EPA to consider whether other Federal statutes and regulations 
are available to address a risk that would otherwise merit regulatory 
action under TSCA section 6(a). EPA's consideration of other relevant 
Federal authorities follows.
    a. Actions under other Federal laws administered by EPA. Under TSCA 
section 6(c), EPA may not promulgate a rule under TSCA section 6(a) if 
EPA

[[Page 24822]]

determines that a risk of injury to health or the environment could be 
eliminated or reduced to a sufficient extent by actions taken under 
another statute administered by EPA, unless EPA finds it is in the 
public interest to protect against the risk by action under TSCA. (See 
also TSCA section 9(b).) EPA has analyzed other statutes administered 
by EPA and concludes that none provide sufficient authority to 
eliminate or reduce the risks to State and local government workers 
from asbestos.
    <bullet> Clean Air Act (CAA). On April 6, 1973, EPA used the 
authority of the CAA to list asbestos as a hazardous air pollutant, 
establish a ``no visible emissions'' standard for manufacturers, and 
ban the use of spray-applied asbestos-containing material as insulation 
in buildings (Ref. 21). EPA amended this regulation on October 12, 
1975, to ban asbestos-containing pipe lagging (Ref. 22), and on June 
19, 1978, extended the ban to all uses of sprayed-on asbestos (Ref. 
23). Under the CAA, EPA also regulates operations involving the 
demolition or renovation of buildings containing friable asbestos and 
the disposal of wastes generated by such operations. However, the CAA 
does not apply directly to the protection of workers exposed to indoor 
air. Consequently any possible additional use of that statute could 
leave many workers inadequately protected from asbestos in indoor air.
    <bullet> Resource Conservation and Recovery Act (RCRA). Under RCRA, 
42 U.S.C. 6901-6992k, EPA could list asbestos as a hazardous waste and 
subject asbestos waste to general requirements designed to protect 
human health. However, RCRA jurisdiction is limited to those materials 
that the Agency has determined are wastes. Many of the activities 
covered by this rule do not involve handling of asbestos as waste. For 
example, this proposed rule would adopt by cross-reference standards 
for repair, maintenance and installation of asbestos-containing 
materials referenced at 29 CFR 1926.1101(a)(3) and (4). While RCRA 
authority could extend to reduction of worker exposure to the extent 
activities covered by this proposed rule involve waste handling, it 
could not cover all the risks these activities pose to workers. Thus, 
RCRA regulations could not reduce risks to a sufficient extent.
    b. Actions under Federal laws not administered by EPA. Under TSCA 
section 9(a), EPA is required to review other Federal authorities not 
administered by EPA to determine whether action under those authorities 
may prevent or reduce a given risk. The only statute not administered 
by EPA that addresses risks from workplace exposure to asbestos is the 
OSH Act. However, the OSH Act does not apply to State and local 
government employees. The OSH Act does provide that a State can adopt 
an asbestos standard as part of its own State worker protection plan, 
subject to approval by the Secretary of Labor. Twenty-three States have 
implemented State plans. Twenty-seven States do not have OSHA-approved 
State plans. EPA has therefore determined that there is no statute 
administered by another Federal agency that can prevent or reduce the 
risk of asbestos exposure presented to State and local government 
employees not covered by OSHA-approved State plans during asbestos-
related construction and brake and clutch repair work. EPA's analysis 
of this issue is discussed in the Federal Register of April 25, 1986 
(Ref. 2).
    c. Consultation and coordination with other Federal agencies. TSCA 
section 9(d) directs that in implementing TSCA, EPA consult and 
coordinate with other Federal agencies for the purpose of achieving the 
maximum enforcement of TSCA while imposing the least burdens of 
duplicative requirements on those who must comply with those 
requirements. As a result of the close working relationship with OSHA, 
EPA finds that the most effective way of eliminating duplication and 
overlap and ensuring consistency between the WPR and the OSHA Asbestos 
Standards is by cross-referencing the OSHA Asbestos Standards set out 
at 29 CFR 1910.1001 and 29 CFR 1926.1101.
    The goals both of Congress and of the Administration would be 
advanced by ensuring that the WPR and the OSHA Asbestos Standards offer 
consistent protections and offer them at the same time to both public 
and private sector workers. The legislative history of TSCA reflects 
Congress' concern that some of the greatest risks from exposure to 
toxic chemicals occur in the workplace. Congress clearly intended that 
TSCA be available to address those risks, but, at the same time, 
acknowledged OSHA's expertise in establishing workplace standards. TSCA 
section 9(d) reflects Congress' desire that EPA and OSHA work together 
in identifying and protecting against risks to workers from toxic 
chemicals. Therefore, EPA has, since 1985, exercised its authority 
under TSCA section 6 to fill the gap in coverage in the OSH Act by 
protecting State and local government employees from the risks of 
asbestos, and has done so in a way that imposes the least burden of 
duplicative requirements by maintaining consistency where possible 
between the WPR and the OSHA Asbestos Standards.
    While it has always been EPA policy to maintain consistency between 
the WPR and the OSHA Asbestos Standards, prior to this proposal EPA has 
implemented this policy by reprinting those requirements in full at 40 
CFR part 763, subpart G. However, OSHA has frequently revised its 
standard (the CFR lists thirteen rules revising the Asbestos Standard 
since 1986). EPA must wait until the OSHA revisions are finalized 
before initiating conforming changes to the WPR. By the time EPA's 
conforming changes take effect, OSHA has issued new revisions to the 
Asbestos Standard. The result is that the WPR has, in fact, rarely been 
completely consistent with the OSHA Standards, and, as more protective 
and less burdensome standards have gone into effect for the private 
sector, protections for State and local government employees have 
lagged behind. If the WPR cross-referenced the OSHA Asbestos Standards 
instead of reprinting them in full, revisions to the OSHA standard 
would take effect at the same time in the WPR, and public and private 
sector employees would be protected equally against the risks of 
asbestos.
    d. Conclusion. Therefore, having considered whether other Federal 
statutes and regulations are available to address the risks from 
exposure to asbestos among State and local government employees during 
use or disposal in construction work and in brake and clutch repair 
work, EPA concludes that rulemaking under TSCA section 6 is necessary 
to provide adequate protection against that risk to State and local 
government employees who are not otherwise covered under an OSHA-
approved State plan that is as effective as the OSHA regulations, or a 
State asbestos worker protection plan exempted from the requirements of 
the WPR by EPA under 40 CFR 763.123.
    4. Analysis of regulatory alternatives. EPA considered and analyzed 
four regulatory alternatives or options in developing this proposed 
rule:
    <bullet> Option A. Both the PEL and the scope of the proposed rule 
remain unchanged (i.e., no action).
    <bullet> Option B. The PEL is lowered from 0.2 f/cc to 0.1 f/cc, 
but the scope of the proposed rule remains the same.
    <bullet> Option C. The PEL remains the same, but the scope of the 
proposed rule is expanded to include new construction, maintenance, 
renovation, custodial, and brake and clutch repair activities.
    <bullet> The proposed rule. The PEL is lowered from 0.2 f/cc to 0.1 
f/cc, and the

[[Page 24823]]

scope of the proposed rule is expanded to include new construction, 
maintenance, renovation, custodial, and brake and clutch repair 
activities.

                      Summary of Regulatory Options
------------------------------------------------------------------------
             Option                       PEL                Scope
------------------------------------------------------------------------
A (no action)                     0.2 f/cc            Abatement
                                                       activities only
B                                 0.1 f/cc            Abatement
                                                       activities only
C                                 0.2 f/cc            New construction,
                                                       abatement,
                                                       maintenance,
                                                       renovation,
                                                       custodial, and
                                                       brake and clutch
                                                       repair activities
Proposed rule                     0.1 f/cc            New construction,
                                                       abatement,
                                                       maintenance,
                                                       renovation,
                                                       custodial, and
                                                       brake and clutch
                                                       repair activities
------------------------------------------------------------------------

    See Table 5-1 of the Economic Analysis (Ref. 18). For each of the 
four options, the State-level coverage would remain the same: The rule 
(or option) would continue to cover State and local government 
employees in States without OSHA-approved State plans.
    a. Quantified costs and benefits. EPA estimated the costs and 
benefits for Options A, B, C, and the proposed rule. In estimating the 
benefits for each option, EPA estimated the number of avoided cancer 
cases among exposed workers, building occupants, and school children, 
associated with 65 years of reduced asbestos exposure. EPA also placed 
a monetary value on the avoided risk associated with the 65 years of 
reduced exposure and then calculated the present monetary value of the 
avoided cancer risk. EPA estimated compliance costs by calculating the 
first-year compliance cost of each option. This estimate was 
extrapolated over 65 years of exposure reduction, assuming building 
attrition would cause the costs of abatement, renovation, maintenance, 
and custodial activities to decline over time, while administrative, 
new construction, and brake and clutch repair activity costs would not 
be affected by building attrition.
    <bullet> Option A--PEL unchanged, scope unchanged (baseline). Under 
Option A, the current version of the WPR (40 CFR part 763, subpart G) 
would remain in effect. The PEL would remain unchanged at 0.2 f/cc and 
the proposed rule would apply only to abatement activities. This option 
would result in no incremental costs or benefits.
    <bullet> Option B--reduced PEL, scope unchanged. Under Option B, 
the PEL would be reduced from 0.2 f/cc to 0.1 f./cc, but the scope of 
the proposed rule would remain unchanged. Thus, compared to the current 
rule, Option B would reduce exposure to asbestos among abatement 
workers and incidentally exposed populations in affected buildings, but 
would not apply to additional activities. EPA estimates that, over 65 
years, Option B would reduce asbestos exposure to a total of 201,275 
people, of whom 65 would be exposed workers and the remainder would be 
building occupants and school children. EPA estimates that this 
exposure reduction would, over 65 years, prevent 0.36 cases of 
asbestos-related cancer among this total population, which translates 
into an estimated present value of $1.07 million. Excluding building 
occupants and school children, Option B results in 0.17 avoided cancer 
cases associated with 65 years of exposure reduction, which has an 
estimated present value of $0.59 million. The estimated 65-year present 
value of compliance costs for Option B is $24.00 million.
    <bullet> Option C--PEL unchanged, expanded scope. Option C would 
leave the PEL unchanged from the current WPR at 0.2 f/cc, but would 
expand the scope of the WPR to include new construction, maintenance, 
renovation, custodial, and brake and clutch repair activities, in 
addition to the abatement activities covered by the current WPR. 
Compared to the current rule, Option C would provide an expanded scope 
of coverage, but would not increase the level of protection (i.e., the 
PEL would remain 0.2 f/cc). EPA estimates that, over 65 years, Option C 
would reduce asbestos exposure for a total population of 71.9 million 
individuals, 102,700 of whom would be directly exposed workers and the 
remainder of whom would be incidentally exposed building occupants and 
school children. EPA estimates that 65 years of exposure reduction 
would lead to 26.85 avoided cases of asbestos-related cancer among this 
total population, with an estimated present value of $83.46 million. 
Among exposed workers, the reduction in cancer incidence is estimated 
to be 17.2 cases associated with 65 years of exposure reduction, which 
has an estimated present value of $59.48 million. The estimated 65-year 
present value of total compliance costs for Option C is $939.53 
million.
    <bullet> The proposed rule--reduced PEL, expanded scope. The 
proposed rule would lower the PEL from 0.2 f/cc to 0.1 f/cc and expand 
the scope of the asbestos WPR to include new construction, maintenance, 
renovation, custodial, and brake and clutch repair activities in 
addition to the abatement activities covered by the current WPR. The 
proposed rule would provide protection to a total population of 71.9 
million over 65 years of exposure reduction, 102,765 of whom are 
exposed workers. Furthermore, the proposed rule would reduce the number 
of asbestos-related cancers associated with 65 years of exposure by 
137.23 cases, valued at an estimated present value of $405.45 million. 
Excluding building occupants and school children (i.e., focusing on 
just exposed workers), the proposed rule results in 67.63 avoided 
cancer cases associated with 65 years of exposure reduction, with an 
estimated present value of $234.32 million. The estimated 65-year 
present value of compliance costs is $1,124.42 million.
    b. Comparison of quantified costs and benefits. For each option and 
the proposed rule, EPA estimated the costs, benefits, and net benefits 
for all populations (exposed workers, building occupants, and school 
children) and for exposed workers only. The cost, benefit, and net 
benefit estimates for exposed workers are singled out because the rule 
is directed at reducing the exposure of this population and because 
building occupants and school children are only incidentally exposed. 
EPA compared the four options using six quantitative criteria.
    <bullet> Protectiveness. The proposed rule and Option B would set 
the PEL at 0.1 f/cc, while Options A and C would set the PEL at 0.2 f/
cc. Thus, the proposed rule and Option B are both more protective than 
Options A and C.
    <bullet> Scope. The proposed rule and Option C would both provide

[[Page 24824]]

incremental protection to significantly larger populations than Options 
A and B. Both the proposed rule and Option C would provide incremental 
protection to a population of 71.9 million, of which slightly less than 
103,000 are exposed workers. Option B would provide additional 
protection to a population of only 201,275 (0.28% of the population 
protected by the proposed rule), of which 65 are exposed workers (0.06% 
of the exposed workers protected by the proposed rule). Option A, which 
would not change the current asbestos WPR, would not provide additional 
protection to any populations.
    <bullet> Estimated benefits. The proposed rule would result in 
significantly more avoided cancer cases and, consequently, a 
significantly larger level of monetized benefits when compared with the 
other regulatory options. The proposed rule would reduce the incidence 
of asbestos-related cancers associated with 65 years of exposure 
reduction by 137 cases, which would result in a monetary benefit of 
$405 million. Among exposed workers, the proposed rule would reduce the 
incidence of asbestos-related cancer associated with 65 years of 
exposure reduction by 68 cases, valued at $234 million. Option C would 
reduce the asbestos-related cancer incidence by only 27 cases (19.6% of 
the proposed rule's total), valued at $83 million (20.6% of the 
proposed rule's total). Among exposed workers, Option C would reduce 
the incidence of asbestos-related cancer by 17 cases (25.4% of the 
proposed rule's total), valued at $59 million (25.4% of the proposed 
rule's total). Option B would result in approximately $1.0 million in 
monetized benefits while Option A would result in no incremental 
avoided cases and thus no incremental monetized benefits.
    <bullet> Estimated compliance costs. Option A is the least costly 
of the four options, resulting in no ($0) incremental compliance costs 
because no incremental action would be required. The proposed rule is 
the most costly option, resulting in a 65-year present value compliance 
cost of $1.1 billion. For Option B, the 65-year present value of 
compliance costs is $24.00 million (2.1% of the proposed rule's total), 
while for Option C, the 65-year present value of compliance costs is 
$939.53 million (83.6% of the proposed rule's total).
    <bullet> Efficiency. Option A would result in the largest monetized 
net benefit (monetized benefits minus monetized costs), which is $0. 
Each of the other options would result in negative net benefits, or a 
net cost. The proposed rule would result in the second largest net 
cost, with costs exceeding estimated benefits by $719 million. The 
estimated costs for Option C exceed its estimated benefits by $856 
million (19.1% larger than the net cost for the proposed rule), and the 
estimated costs for Option B exceed its estimated benefits by $22.93 
million (3.2% of the proposed rule's total).
    <bullet> Ratio of estimated compliance costs to estimated benefits. 
. The following table presents the cost-benefit ratio for each option. 
The cost-benefit ratio, measured as the ratio of compliance costs to 
monetized benefits, measures the cost that would be incurred for each 
dollar of benefits. The proposed rule has the lowest (i.e., most 
preferable) cost benefit ratio for both all exposed populations (2.77) 
and exposed workers alone (4.80). Option C has a cost-benefit ratio of 
11.26 for all exposed populations (4.07 times the cost-benefit ratio 
for the proposed rule) and 15.80 for exposed workers alone (3.29 times 
the cost-benefit ratio for the proposed rule). Option B has a cost-
benefit ratio of 22.43 for all exposed populations (8.10 times the 
cost-benefit ratio for the proposed rule) and 40.68 for exposed workers 
alone (8.48 times the cost-benefit ratio for the proposed rule). Cost-
benefit ratios could not be calculated for Option A because costs and 
monetized benefits are both $0.

                                Summary of Estimated Costs, Benefits, and Net Benefits for Alternative Regulatory Options
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Estimated benefits
                                                    Incremental   ------------------------------------  Present value    Estimated net
        Option/section            PEL  (f/cc)       population                            Present       of compliance       benefit        Cost-benefit
                                                     protected      Avoided cancer    monetary value        costs         ($millions)         ratio
                                                                         cases          ($millions)      ($millions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed Rule--PEL Reduced,
 expanded scope:
  All populations              0.1               71,887,159        137.23            $405.45           $1,124.42        ($718.97)        2.77
  Exposed workers              0.1               102,765           67.63             $234.32           $1,124.42        ($890.09)        4.80
--------------------------------------------------------------------------------------------------------------------------------------------------------
Option A (baseline)--PEL
 unchanged,
      scope unchanged:.......
  All populations              0.2               0                 0.00              $0.00             $0.00            $0.00            ...............
  Exposed workers              0.2               0                 0.00              $0.00             $0.00            $0.00            ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Option B--PEL Reduced, scope
 unchanged:
  All populations              0.1               201,275           0.36              $1.07             $24.00           ($22.93)         22.43
  Exposed workers              0.1               65                0.17              $0.59             $24.00           ($23.41)         40.68
--------------------------------------------------------------------------------------------------------------------------------------------------------
Option C--PEL unchanged,
 expanded scope:
  All populations              0.2               71,886,942        26.85             $83.46            $939.53          ($856.07)        11.26
  Exposed workers              0.2               102,548           17.20             $59.48            $939.53          ($880.05)        15.80
--------------------------------------------------------------------------------------------------------------------------------------------------------

    See Table 5-8 of the Economic Analysis (Ref. 18).
    Based on these comparisons, EPA has selected the proposed rule as 
the preferred option for the following reasons:
    <bullet> The proposed rule would be the most protective (i.e., 
would result in the lowest PEL).
    <bullet> The proposed rule would provide incremental protection to 
the largest population.
    <bullet> The proposed rule would result in the largest benefits.

[[Page 24825]]

    <bullet> The proposed rule would offer the lowest ratio of costs to 
benefits.
    The proposed rule, however, would also be the most costly and would 
result in the second largest net cost among the four options. 
Nevertheless, EPA has determined that the increased cost and net cost 
are justified by the additional benefits and protection offered by the 
proposed rule. In moving from Option C to the proposed rule, the 
compliance costs increase by a factor of 1.2 ($1.1 billion <divide> 
$939.53 million), but the number of avoided cancer cases increases by a 
factor of 5.1 (137.23 cases <divide> 26.85 cases). Likewise, in moving 
from Option B to the proposed rule, the compliance costs increase by a 
factor of 46.85 ($1.1 billion <divide> $24.00 million), but the number 
of avoided cancer cases increases by a factor of 381 (137.23 cases 
<divide> 0.36 cases). EPA does not consider Option A to be a viable 
option because it does not result in any additional protection.
    c. Comparison of non-quantified benefits. EPA has identified a 
number of benefits that could not be quantified (see Unit II.B.1.a.). 
Included among these benefits are:
    <bullet> Reductions in the incidence of asbestosis.
    <bullet> Reductions in the incidence of pleural plaques and pleural 
effusion.
    <bullet> Reductions in productivity losses associated with non-
cancerous health effects.
    <bullet> Reductions in medical costs associated with non-cancerous 
health effects.
    <bullet> Improved quality of life.
    <bullet> Decreased risk for individuals who may be incidentally 
exposed to asbestos, including building visitors and members of 
workers' families.
    As discussed in Unit II.B.1.a., EPA was unable to provide 
quantitative estimates for the benefit categories listed in this unit. 
It is possible, however, to compare the four options in terms of their 
protectiveness and scope, and draw some conclusions with regard to the 
option that would provide the largest level of benefits for each 
benefit category. Each of the benefits listed in this unit are 
positively influenced by the level of protection (i.e., a lower PEL 
implies more benefits) and by the incremental population covered (i.e., 
a larger incremental population implies more benefits). Thus, options 
can be compared and ranked based on these two criteria.
    The following table provides EPA's ranking of the proposed rule and 
the three alternative options in terms of the level of the benefit that 
each would provide. In the table, a ranking of 1 indicates that EPA 
expects that option to provide the largest level of benefits among the 
four options, while a ranking of 4 indicates that EPA expects that 
option to provide the least benefits among the four options.
    These rankings reveal three distinct trends in comparing the four 
options. First, the proposed rule is always expected to produce the 
largest level of benefits. The proposed rule is at least as protective 
(i.e., in terms of value of the PEL) as each of the other options and 
provides protection to a larger incremental population than the other 
three options. Based on these two considerations, the proposed rule 
should provide a larger level of each non-quantified benefit, compared 
to the other options. This is consistent with ranking of the quantified 
benefits, where the proposed rule would result in the largest reduction 
in asbestos-related cancer. Second, Option A would provide the lowest 
level of benefits in each non-quantified benefit category. This follows 
from the fact that Option A involves no changes to the current WPR. 
Thus, since the proposed rule and both Options B and C provide either 
additional coverage or a reduced PEL, all three options must provide a 
larger level of benefit compared to Option A. Finally, it is not 
possible to determine the relative ranks of Options B and C. On the one 
hand, Option B offers more protection (in terms of a lower PEL) but on 
the other hand Option C provides incremental protection to a larger 
population.

 Ranking of Proposed Rule and Options A, B, and C for the Non-Quantified Benefits of Reducing Asbestos Exposure
----------------------------------------------------------------------------------------------------------------
     Non-quantified benefit          Proposed rule         Option A            Option B            Option C
----------------------------------------------------------------------------------------------------------------
Reductions in the incidence of    1                   4                   2                   2
 asbestosis
Reductions in the incidence of    1                   4                   2                   2
 pleural plaques and pleural
 effusion
Reductions in productivity        1                   4                   2                   2
 losses associated with non-
 cancerous health effects
Reductions in medical costs       1                   4                   2                   2
 associated with non-cancerous
 health effects
Improved quality of life          1                   4                   2                   2
Decreased risk for individuals    1                   4                   2                   2
 who may be incidentally exposed
 to asbestos,
  including workers' families...
----------------------------------------------------------------------------------------------------------------
Note: These are subjective rankings based on EPA's best professional judgement only.

    See Table 5-9 of the economic Analysis (Ref. 18).
    d. Qualitative measures of costs and benefits. This proposed rule 
would establish consistency between the protections offered under the 
WPR to State and local government employees working with asbestos-
containing materials and under the OSHA Construction and General 
Industry Standards to private sector employees working with those 
materials. Fairness and equity dictate equivalent protection for all 
persons who work with asbestos-containing materials, whether those 
persons are employed by the private sector or by a specific State or 
local government. Currently, all private sector workers, as well as 
State and local government employees in the 23 States that have OSHA-
approved State plans, are protected by the more stringent OSHA 
regulations. EPA is proposing to achieve equity for the remaining State 
and local government workers by amending the WPR to adopt recent 
amendments to the OSHA Asbestos Standards that provide additional 
worker protections.
    The OSHA Asbestos Standards, as amended in 1994, establish a PEL of 
0.1 f/cc for all exposed workers. EPA's current asbestos WPR covers 
only abatement workers and sets a PEL of 0.2 f/cc. Thus, the current 
EPA rule is less protective (i.e., is based on a higher PEL) and covers 
fewer exposed workers (i.e., only abatement workers) than the OSHA 
standards. The proposed rule would eliminate these inequities by 
providing identical protection and coverage to State and local 
government employees performing asbestos-related work in States without 
OSHA-approved State plans.
    Options A, B, or C would not provide these State and local 
government employees with the same protection and

[[Page 24826]]

coverage as the OSHA Standards provide to private sector workers. 
Option A would provide less protection (i.e., a higher PEL) and would 
cover workers in fewer activities compared to those covered by OSHA. 
Option B would provide the same level of protection (i.e., the same 
PEL), but would cover workers in fewer activities compared to those 
covered by OSHA. Option C would cover the same number of activities, 
but would provide less protection (i.e., a higher PEL).
    Therefore, the proposed rule is preferable to the other three 
options considered because it would provide equity in terms of 
protectiveness and coverage between workers in the private sector and 
State and local government employees.
    e. Summary. Based on its comparison of the four options' estimated 
quantified costs and benefits, estimated non-quantified benefits, and 
qualitative measures of costs and benefits, EPA has determined that the 
proposed rule provides the greatest net benefits compared to the other 
three options considered, especially in light of the equity 
considerations discussed in Unit II.B.4.
    <bullet> Estimated quantified costs and benefits. The proposed rule 
is the most protective (i.e., lowest PEL), provides incremental 
protection to the largest exposed population, results in the largest 
benefits, and offers the lowest ratio of costs to benefits. The 
proposed rule, however, is the most costly and results in the second 
largest net cost among the four options (though all options with the 
exception of Option A result in a negative net benefit). Nevertheless, 
EPA finds that the increased cost is justified by the additional 
benefits and protection offered by the proposed rule.
    <bullet> Estimated non-quantified benefits. EPA expects that the 
proposed rule would result in a larger level of benefits for each 
unquantifiable category of benefits in comparison with each of the 
other three options. EPA bases this conclusion on the fact that the 
proposed rule is at least as protective (i.e., in terms of value of the 
PEL) as each of the other options and provides protection to a larger 
incremental population than the other three options.
    <bullet> Qualitative measures of costs and benefits. The proposed 
rule is the only option that would provide coverage comparable to the 
OSHA Asbestos Standards. The proposed rule would provide public 
employees in States without approved OSHA State plans with the same 
level of protection (i.e., the PEL) and would cover the same set of 
activities as is covered in the OSHA standards. The other options would 
provide less protection (Options A and C) or less scope of coverage 
(Options A and B) compared to OSHA's Asbestos Standards.

III. References

    1. U.S. Environmental Protection Agency (USEPA), Office of Toxic 
Substances (OTS). Asbestos Abatement Projects; immediately effective 
proposed rule. Federal Register (50 FR 28530, July 12, 1985).
    2. USEPA, OTS. Asbestos Abatement Projects; final rule. Federal 
Register (51 FR 15722, April 25, 1986).
    3. USEPA, OTS. Asbestos Abatement Projects, Worker Protection; 
final rule. Federal Register (52 FR 5618, February 25, 1987).
    4. U.S. Department of Labor (DOL), Occupational Safety and Health 
Administration (OSHA). Occupational Exposure to Asbestos, Tremolite, 
Anthophyllite and Actinolite; final rules, amendment. Federal Register 
(53 FR 35610, September 14, 1988). (Available on the OSHA web site at 
http://www.osha-slc.gov/OCIS/toc__fed__reg.htmlhtml).
    5. DOL, OSHA. Occupational Exposure to Asbestos, Tremolite, 
Anthophyllite and Actinolite; final rule, partial response to court 
remand. Federal Register (54 FR 52024, December 20, 1989). (Available 
on the OSHA web site at http://www.osha-slc.gov/OCIS/
toc__fed__reg.htmlhtml).
    6. DOL, OSHA; Occupational Exposure to Asbestos; final rule, 
partial response to court remand. Federal Register (55 FR 3724, 
February 5, 1990). (Available on the OSHA web site at http://www.osha-
slc.gov/OCIS/toc__fed__reg.htmlhtml).
    7. USEPA, OPPTS. Asbestos Worker Protection; Asbestos-Containing 
Materials in Schools; proposed rule. Federal Register (50 FR 54746, 
November 1, 1994) (FRL-3801-3).
    8. DOL, OSHA. Occupational Exposure to Asbestos; final rule. 
Federal Register (59 FR 40964, August 10, 1994). (Available on the OSHA 
web site at http://www.osha-slc.gov/OCIS/toc__fed__reg.htmlhtml).
    9. DOL, OSHA. Occupational Exposure to Asbestos; final rule, 
extension of start-up dates for compliance. Federal Register (60 FR 
33343, June 28, 1995). (Available on the OSHA web site at http://
www.osha-slc.gov/OCIS/toc__fed__reg.htmlhtml).
    10. DOL, OSHA. Occupational Exposure to Asbestos; corrections to 
final rule. Federal Register (60 FR 33974, June 29, 1995). (Available 
on the OSHA web site at http://www.osha-slc.gov/OCIS/
toc__fedlowbarm;reg.htmlhtml).
    11. DOL, OSHA. Occupational Exposure to Asbestos; corrections to 
final rule. Federal Register (60 FR 36043, July 13, 1995). (Available 
on the OSHA web site at http://www.osha-slc.gov/OCIS/
toc__fed__reg.htmlhtml).
    12. DOL, OSHA. Occupational Exposure to Asbestos; final rule, 
amendments. Federal Register (60 FR 50411, September 29, 1995). 
(Available on the OSHA web site at http://www.osha-slc.gov/OCIS/
toc__fed__reg.htmlhtml).
    13. DOL, OSHA. Occupational Exposure to Asbestos, Tremolite, 
Anthophyllite and Actinolite; final rule, corrections. Federal Register 
(61 FR 43454, August 23, 1996). (Available on the OSHA web site at 
http://www.osha-slc.gov/OCIS/toc__fed__reg.htmlhtml).
    14. DOL, OSHA. Respiratory Protection; final rule, request for 
comment on paperwork requirements. Federal Register (63 FR 1152, 
January 8, 1998). (Available on the OSHA web site at http://www.osha-
slc.gov/OCIS/toc__fed__reg.htmlhtml).
    15. DOL, OSHA. Respiratory Protection; final rule, correction. 
Federal Register (63 FR 20098, April 23, 1998). (Available on the OSHA 
web site at http://www.osha-slc.gov/OCIS/toc__fed__reg.htmlhtml).
    16. DOL, OSHA. Occupational Exposure to Asbestos; final rule. 
Federal Register (63 FR 35137, June 29, 1998). (Available on the OSHA 
web site at http://www.osha-slc.gov/OCIS/toc__fed__reg.htmlhtml).
    17. USEPA, Office of Prevention, Pesticides and Toxic Substances 
(OPPTS), National Program Chemical Division (NPCD), Fibers and Organics 
Branch (FOB). Response to Comments Document, Proposed Amendments to 
Asbestos Worker Protection Rule. November 1, 1994.
    18. USEPA, OPPTS, Economics, Exposure, and Technology Division 
(EETD). Proposed Asbestos Worker Protection Rule Economic Analysis. 
February 22, 2000.
    19. USEPA, OTS. Recommended Interim Guidance for Maintenance of 
Asbestos-Containing Floor Coverings. January 25, 1990.
    20. Service Employees International Union. Comments on Asbestos 
Worker Protection: Asbestos-Containing Materials in Schools; Proposed 
Amendment (Testimony of Bill Borwegen before the Occupational Safety 
and Health Administration). OPPTS Docket #62125, C1-011. January 3, 
1995.
    21. USEPA. National Emission Standards for Hazardous Air 
Pollutants;

[[Page 24827]]

Asbestos, Beryllium, and Mercury. Federal Register (38 FR 8820, April 
6, 1973).
    22. USEPA. National Emission Standards for Hazardous Air 
Pollutants; Asbestos and Mercury. Federal Register (40 FR 48292, 
October 14, 1975).
    23. USEPA.; National Emission Standards for Hazardous Air 
Pollutants; Asbestos Standard; amendments. Federal Register (43 FR 
26372, June 19, 1978).
    24. DOL, OSHA. Letter to the Honorable Jay Johnson re: OSH Act 
applicability to tribal land workplaces and employers. March 12, 1998.
    25. National Institute of Building Sciences. Asbestos Abatement and 
Management in Buildings, Model Guide Specifications. 3rd Edition 
Document #2101-2. August 12, 1988.
    26. National Institute of Building Sciences. Guidance Manual, 
Asbestos Operations and Maintenance Work Practices. 2nd Edition. 
Document #5076-7. December 1996.
    27. American Society for Testing and Materials. Standard Practice 
for Visual Inspection of Asbestos Abatement Projects (E 1368-99).
    28. American Society for Testing and Materials. Standard Practice 
for Encapsulants for Spray-or-Trowel-Applied Friable Asbestos-
Containing Building Materials (E 1494-92).
    29. American National Standards Institute. American National 
Standard for Respiratory Protection (ANSI Z88.2-1992).

IV. Regulatory Assessment Requirements

A. Regulatory Planning and Review

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this action is not a 
``significant regulatory action'' subject to review by the Office of 
Management and Budget (OMB), because this action is not likely to 
result in a rule that meets any of the criteria for a ``significant 
regulatory action'' provided in section 3(f) of the Executive Order.
    EPA has prepared an analysis of the potential impact of this 
action, which is estimated to cost $63.34 million in the first year of 
the rule and then decline annually thereafter. The analysis is 
contained in a document entitled ``Economic Analysis of the Asbestos 
Worker Protection Rule'' (Ref. 18). This document is available as a 
part of the public version of the official record for this action 
(instructions for accessing this document are contained in Unit I.B.), 
and is briefly summarized in Unit II.B.

B. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), 5 U.S.C. 601 et seq., EPA hereby certifies that this 
proposed action, if promulgated as proposed, will not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for EPA's determination is presented in the small 
entity impact analysis prepared as part of the Economic Analysis for 
this proposed rule (Ref. 18), and is briefly summarized here.
    For purposes of analyzing potential impact on small entities, EPA 
used the definition for small entities in RFA section 601. Under RFA 
section 601, ``small entity'' is defined as:
    1. A small business that meets Small Business Administration size 
standards codified at 13 CFR 121.201.
    2. A small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000.
    3. A small organization that is any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    Of the three categories of small entities, only small governmental 
jurisdictions are affected by this proposed rule. As such, EPA's 
analysis of potential small entity impacts assesses the potential 
impacts on small governmental jurisdictions.
    Based on the definition of ``small government jurisdiction,'' no 
State-level government covered by the asbestos WPR can be considered 
small. Therefore, the small government entities potentially impacted by 
the proposed asbestos WPR are local governments (e.g., county, 
municipal, or towns) and school districts.
    The proposed amendments to the asbestos WPR may impact local 
governments in the 27 States without approved OSHA State plans by 
imposing incremental compliance costs for asbestos-related maintenance, 
renovation, and brake and clutch repair. There are 24,495 small 
government jurisdictions that are potentially impacted by the asbestos 
WPR. However, the estimated amounts of the impact are all extremely 
low. In each of the States, the impact for all small local governments 
is estimated to be less than 0.1% of revenues available for compliance. 
EPA estimated that the largest impact would occur for small local 
governments in Arkansas and Delaware, where the upper bound estimate of 
compliance costs as a percent of available revenues is estimated to be 
0.051%. For small local governments as a whole, compliance costs 
associated with the asbestos WPR are estimated to represent 0.024% of 
available revenues. Therefore, the Agency has concluded that the 
asbestos WPR will not have a significant impact on small government 
entities.
    Small school districts are defined as school districts serving a 
resident population of less than 50,000. In the 27 covered States, 
there are 17,846 small school districts that are potentially impacted 
by the asbestos WPR. The estimated impact of compliance costs on all 
small school districts is estimated to be 0.01% of available revenues. 
The largest impact is estimated for Mississippi where compliance costs 
as a percent of available revenues are estimated to equal 0.013%. The 
Agency has therefore concluded that the proposed asbestos WPR will not 
have a significant effect on the revenues of small school districts.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA is interested in 
comments and suggestions for further reducing the potential impact for 
small entities. In particular, EPA is interested in how any further 
reductions might be achieved while ensuring that the WPR remains 
consistent with the OSHA Asbestos Construction and General Industry 
Standards. EPA requests comment on opportunities for burden reduction 
and other issues related to impacts on small entities.
    Additional details regarding EPA's basis for this certification are 
presented in the Economic Analysis (Ref. 18), which is included in the 
public version of the official record for this action. This information 
will also be provided to the SBA Chief Counsel for Advocacy upon 
request. Any comments regarding the impacts that this action may impose 
on small entities should be submitted to the Agency in the manner 
specified in Unit I.C.

C. Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., an agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number. The OMB control numbers for EPA's 
regulations, after appearing in the preamble to the final rule, are 
listed in 40 CFR part 9, and included on the related collection 
instrument.
    The information collection requirements contained in this proposed 
rule have been submitted to OMB for

[[Page 24828]]

review and approval pursuant to the PRA and OMB implementing 
regulations at 5 CFR 1320 et seq. The burden and costs related to the 
information collection requirements contained in this proposed rule are 
described in an Information Collection Request (ICR). This ICR proposes 
to amend the existing ICR for the current WPR which is approved through 
September 30, 2001, under OMB No. 2070-0072 (EPA ICR No. 1246.06). A 
copy of this ICR, which is identified as EPA ICR No. 1246.07, has been 
included in the public version of the official record described in Unit 
1.B.2., and is available electronically as described in Unit I.B.1., at 
http://www.epa.gov/opperid1/icr.htm, or by e-mailing a request to 
<a href="/cdn-cgi/l/email-protection#3c5a5d4e51594e124f5d5258457c594c5d125b534a"><span class="__cf_email__" data-cfemail="d3b5b2a1beb6a1fda0b2bdb7aa93b6a3b2fdb4bca5">[email protected]</span></a>. You may also request a copy by mail from Sandy 
Farmer, Collection Strategies Division, Environmental Protection Agency 
(2822), Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 
20460, or by calling (202) 260-2740.
    As described in Unit II.A.2., this amendment would require 
employers to collect, disseminate, and maintain information relating to 
employee asbestos exposures, respiratory protection, medical 
surveillance, and training. The records maintained as a result of this 
information collection will provide EPA with the data necessary for 
effective enforcement of the WPR, as authorized under TSCA sections 6 
and 8.
    The public reporting burden for this collection of information is 
estimated to average, on an annual basis, 21.96 hours per respondent, 
including the time for reviewing instructions, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. EPA estimates that 25,312 respondents would 
incur these burdens, for a total annual respondent burden of 555,870 
hours.
    As defined by the PRA and 5 CFR 1230.3(b), ``burden'' means the 
total time, effort, or financial resources expended by persons to 
generate, maintain, retain, or disclose or provide information to or 
for a Federal agency. This includes the time needed to review 
instructions; develop, acquire, install, and utilize technology and 
systems for the purposes of collecting, validating, and verifying 
information, processing and maintaining information, and disclosing and 
providing information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
be able to respond to a collection of information; search data sources; 
complete and review the collection of information; and transmit or 
otherwise disclose the information.
    Comments are requested on EPA's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to EPA as 
part of your overall comments on this proposed rule in the manner 
specified in Unit I.C. Send a copy of your comments on the ICR to OMB 
as specified by 5 CFR 1320.11(a), by mailing them to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th St., NW., Washington, DC 20503, marked ``Attention: Desk 
Officer for EPA.'' Include the ICR number in any correspondence. Since 
OMB is required to make a decision concerning the ICR between 30 and 60 
days after April 27, 2000, a comment to OMB is best assured of having 
its full effect if OMB receives it by May 30, 2000. In developing the 
final action, EPA will consider any OMB or public comments received 
regarding the information collection requirements contained in this 
proposal.

D. Unfunded Mandates Reform Act

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
(UMRA), Public Law 104-4, EPA has determined that this rule does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any 1 year. As discussed in the 
Economic Analysis accompanying this proposed rule, the rule would 
result in estimated expenditures of at most $63.34 million in any 1 
year. In addition, EPA has determined that this proposed rule would not 
significantly or uniquely affect small governments. For small local 
governments as a whole, compliance costs associated with the WPR 
represent 0.024% of revenues assumed to be available for compliance. 
Moreover, the impact of compliance costs on small school districts as a 
whole would be 0.01% of available revenues. Thus, this proposed rule is 
not subject to the requirements of UMRA sections 202, 203, 204, and 
205.

E. Federalism

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local government officials 
in the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local government officials early in the process 
of developing the proposed regulation. EPA also may not issue a 
regulation that has federalism implications and that preempts State 
law, unless the Agency consults with State and local government 
officials early in the process of developing the proposed regulation.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt State or local law, even if those rules do not 
have federalism implications (i.e., the rules will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government). Those 
requirements include providing State and local government officials 
notice and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
express or implied statutory authority, EPA also must consult, to the 
extent practicable, with appropriate State and local government 
officials regarding the conflict between State law and federally 
protected interests within the agency's area of regulatory 
responsibility.
    This proposed rule does not have federalism implications. This 
proposal would amend the existing WPR to cover additional asbestos-
related activities and to bring the WPR into conformance with recent 
changes to the OSHA Asbestos Standards. The proposed changes are not 
expected to result in a significant intergovernmental mandate under the 
UMRA, and thus, EPA concludes that the rule would not impose 
substantial direct compliance costs. Nor would the rule substantially 
affect the relationship between the national government and the States, 
or the distribution of power and responsibilities among the various 
levels of government. Those relationships have already been

[[Page 24829]]

established under the existing WPR, and these amendments would not 
alter them. Thus, the requirements of section 6 of the Executive Order 
do not apply to this proposed rule.
    This proposed rule would preempt State and local law in accordance 
with TSCA section 18(a)(2)(B). By publishing and inviting comment on 
this proposed rule, EPA hereby is providing State and local government 
officials notice and an opportunity for appropriate participation. 
Thus, EPA has complied with the requirements of section 4 of the 
Executive Order.

F. Consultation and Coordination with Indian Tribal Governments

    Under Executive Order 13084, entitled Consultation and Coordination 
with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not 
issue a regulation that is not required by statute, that significantly 
or uniquely affects the communities of Indian tribal governments, and 
that imposes substantial direct compliance costs on those communities, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments, or EPA 
consults with those governments.
    This rule does not significantly or uniquely affect the communities 
of Indian tribal governments, nor does it impose substantial direct 
compliance costs on such communities. Since the OSHA Asbestos Standards 
cover tribal governments and tribal employees, the WPR does not apply 
to these groups (Ref. 24.). Accordingly, the requirements of section 
3(b) of Executive Order 13084 do not apply to this proposed rule.

G. Environmental Justice

    Pursuant to Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994), the Agency has considered 
environmental justice-related issues with regard to the potential 
impacts of this action on the environmental and health conditions in 
minority and low-income populations. As discussed above in Unit 
II.B.1.e., many of the employees who would benefit from the protections 
of this proposed rule are members of minority and low- income 
populations. By providing protection for currently unprotected State 
and local government building maintenance and custodial employees and 
their families, this rule would address the lesser levels of protection 
in the workplace experienced by minority and low-income populations 
among State and local government employees. In other words, the 
proposed rule would not impose disproportionately high and adverse 
human health or environmental effects on minority or low-income 
populations, but would actually decrease such effects.
    Public participation is an important environmental justice concern. 
EPA encourages State and local government employees, and organizations 
representing them, to participate in this rulemaking process by 
submitting comments (see Unit I.C.). In addition, interested persons or 
organizations may request that EPA hold an informal public hearing on 
this proposed rule, at which they may present oral comments (see Unit 
I.C.3.). If EPA decides to hold an informal hearing, it will publish a 
notice in the Federal Register announcing the time, place, and date of 
the hearing, explaining how interested persons or organizations can 
request to participate in the hearing, and describing the hearing 
procedures.
    EPA has considered the comments submitted on its November 1, 1994, 
proposal in developing this modified proposal. Labor organizations 
representing State and local government employees were among the 
commenters. EPA also met with those organizations prior to developing 
this modified proposal.

H. Children's Health

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), does not apply to this proposed rule because it is not 
``economically significant'' as defined under Executive Order 12866. 
However, it is EPA's policy to consistently and explicitly consider 
risks to infants and children in all risk assessments generated during 
its decisionmaking process, including the setting of standards to 
protect public health and the environment.
    EPA has determined that children are physiologically more 
vulnerable to asbestos exposures than adults, and that this rule would 
prevent approximately 65.65 cancer cases among persons with childhood 
exposures to asbestos from school buildings. EPA also expects that this 
proposed rule would result in other benefits associated with lower 
asbestos exposures, such as a reduced incidence of non-cancerous health 
effects such as asbestosis, pleural plaques, and pleural effusion. EPA 
expects the proposed rule to substantially benefit children by reducing 
the incidental exposures children face while attending affected 
schools. By reducing ambient asbestos concentrations in school 
buildings, this rule would help protect children from the 
disproportionate asbestos exposure risk they face. Additional details 
are contained in Unit II.B.1.f. and in the Economic Analysis (Ref. 18).

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This rulemaking involves several technical standards and EPA has 
searched for potentially applicable voluntary standards. The results of 
this search are described in this unit. However, EPA's primary goal in 
proposing these amendments to the WPR is to achieve consistency with 
the 1994 OSHA Standards. As noted elsewhere in this preamble, EPA has 
determined that having different standards for public and private 
sector workers is inefficient and unfair, and that EPA should generally 
defer to OSHA's expertise in the matter of worker protection. 
Therefore, EPA finds that any voluntary consensus standard which is 
inconsistent with the applicable OSHA Standards is impractical under 
NTTAA section 12(d)(3).
    One of the technical standards in the WPR is the method for 
analyzing personal air monitoring samples. Under the 1987 WPR, personal 
air monitoring samples must be analyzed using the method prescribed in 
Appendix A to 40 CFR 763.121 (phase-contrast microscopy) or an 
equivalent method. The 1994 OSHA Standards, which this proposal would 
adopt by cross-reference, contain the identical requirement and 
analytical method. EPA has performed a search to identify any 
potentially applicable voluntary consensus standards, but is unable to 
identify any alternatives to the current method of analysis. In 
addition, as discussed in Unit II.A.2.d., EPA's 1994 proposal would 
have allowed an alternative PEL based on personal air monitoring 
samples analyzed through

[[Page 24830]]

transmission electron microscopy. Commenters called into question the 
scientific basis for setting the alternative PEL and, as a result, EPA 
is withdrawing that portion of its 1994 proposal.
    These amendments to the WPR adopt specific engineering controls and 
work practices, which could be considered a technical standard for 
conducting asbestos construction work and brake and clutch repair 
operations. EPA has identified several voluntary consensus documents 
that address aspects of the proper performance of asbestos abatement 
actions and asbestos operations and maintenance activities. The 
National Institute of Building Sciences (NIBS) has developed two 
documents to assist building owners and employers who are performing 
asbestos abatement and operations and maintenance projects. ``Asbestos 
Abatement and Management in Buildings, Model Guide Specifications'' 
(Ref. 25), is designed to be used as a guide to developing appropriate 
contract specifications. In addition to particular provisions for 
minimizing worker exposure to asbestos, the comprehensive ``Model 
Guide'' includes specifications for all other aspects of worker safety 
and fire prevention, as well as general contract language establishing 
the rights and responsibilities of the contractor and building owner.
    NIBS has also developed guidance materials for building operations 
and maintenance projects that involve asbestos-containing materials. 
The ``Guidance Manual, Asbestos Operations and Maintenance Work 
Practices'' (Ref. 26), is designed to help the building owner or 
employer properly manage in-place asbestos-containing materials. The 
``Manual'' contains extensive recommendations, including sample 
checklists and forms, on the administration of a building operations 
and maintenance program. The ``Manual''also provides explicit guidance 
on how to protect workers and building occupants from asbestos exposure 
during normal building maintenance activities such as pipe repair, 
wiring installation, and floor cleaning and polishing.
    EPA highly recommends the use of these NIBS documents for building 
owners and employers. Both of these documents were revised in 1996 to 
reflect the 1994 amendments to the OSHA Standards, and EPA believes 
that the use of these documents would facilitate compliance with the 
asbestos abatement and building operations and maintenance requirements 
in the proposed WPR. However, since each of these documents are 
extremely detailed and encompass many circumstances beyond the scope of 
this rulemaking, EPA does not believe that it is practical or 
appropriate to incorporate these consensus documents into the WPR. In 
addition, the Preface to the ``Guidance Manual'' explicitly states that 
this particular document is not intended to be used for regulatory 
purposes.
    The American Society for Testing and Materials (ASTM) has developed 
two potentially applicable documents: ``Standard Practice for Visual 
Inspection of Asbestos Abatement Projects'' (Ref. 27), and ``Standard 
Practice for Encapsulants for Spray-or-Trowel- Applied Friable 
Asbestos-Containing Building Materials'' (Ref. 28). The ASTM documents 
also represent state-of-the-art knowledge regarding the performance of 
these particular aspects of asbestos abatement and operations and 
maintenance activities, and EPA highly recommends their use. However, 
as with the NIBS documents, EPA is not proposing to incorporate them 
into the WPR because, in many instances, the specifications are more 
comprehensive and rigorous than the requirements of the current OSHA 
standard. As a result, EPA has determined that adoption of the ASTM and 
NIBS documents would be impractical under NTTAA section 12(d)(3).
    Finally, EPA is proposing to adopt by cross-reference the 
appropriate provisions of the OSHA Respiratory Protection Standard at 
29 CFR 1910.134. As discussed in Unit II.A.2.j., the OSHA Respiratory 
Protection Standard establishes comprehensive requirements for the 
selection, use, and maintenance of respirators. When this Standard was 
amended in 1998, OSHA incorporated nearly all of the provisions of the 
ANSI Z88.2-1992 respiratory protection standard, a voluntary consensus 
standard (Ref. 29). OSHA's limited number of departures from the ANSI 
standard involved instances where OSHA determined on the record that 
the ANSI standard was either insufficiently protective or unduly 
burdensome. The preamble to the OSHA Respiratory Protection Standard 
(Ref. 14, pp.1152-1300) discusses in detail the differences between the 
OSHA Standard and the ANSI standard. EPA agrees with OSHA's analysis on 
the incorporation of the ANSI standard. Therefore, by proposing to 
adopt, by cross-reference, the revised OSHA Respiratory Protection 
Standard, EPA is incorporating a voluntary consensus standard to the 
maximum practical extent under the NTTAA.
    EPA welcomes comments on this aspect of the proposed rulemaking. 
The public is specifically invited to identify potentially applicable 
voluntary consensus standards and to explain why the benefits of using 
such standards in this regulation would outweigh the problems 
associated with promulgating a worker protection regulation that 
differs from the OSHA Standards.

J. Constitutionally Protected Property Rights

    EPA has complied with Executive Order 12630, entitled Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights (53 FR 8859, March 15, 1988), by examining the takings 
implications of this rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the Executive Order.

K. Civil Justice Reform

    In issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct, as required by 
section 3 of Executive Order 12988, entitled Civil Justice Reform (61 
FR 4729, February 7, 1996).

List of Subjects in 40 CFR Part 763

    Environmental protection, Asbestos, Schools, Hazardous substances, 
Reporting and recordkeeping requirements, Worker protection.

    Dated: April 20, 2000.
Carol M. Browner,
Administrator.
    Therefore, it is proposed that 40 CFR chapter I, subchapter R, be 
amended as follows:

PART 763--[AMENDED]

    1. The authority citation for part 763 would continue to read as 
follows:

    Authority: 15 U.S.C. 2605, 2607(c), 2643, and 2646.
    2. By revising Sec. 763.91(b) to read as follows:


Sec. 763.91  Operations and maintenance.

* * * * *
    (b) Worker protection. See subpart G of this part.
* * * * *


Appendix B to Subpart E  [Removed and reserved]

    3. By removing and reserving Appendix B to subpart E.
    4. By revising subpart G to read as follows:

[[Page 24831]]

Subpart G--Asbestos Worker Protection
Sec.
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 G--Asbestos Worker Protection


Sec. 763.120  What is the purpose of this subpart?

    This subpart protects certain State and local government employees 
who are not protected by the Asbestos Standards of the Occupational 
Safety and Health Administration (OSHA). This subpart applies the OSHA 
Asbestos Standards in 29 CFR 1910.1001 and 29 CFR 1926.1101 to these 
employees.


Sec. 763.121  Does this subpart apply to me?

    If you are a State or local government employer and you are not 
subject to a State asbestos standard that OSHA has approved under 
section 18 of the Occupational Safety and Health Act or a State 
asbestos plan that EPA has exempted from the requirements of this 
subpart under Sec. 763.123, you must follow the requirements of this 
subpart to protect your employees from occupational exposure to 
asbestos.


Sec. 763.122  What does this subpart require me to do?

    If you are a State or local government employer whose employees 
perform:
    (a) Construction activities identified in 29 CFR 1926.1101(a), you 
must:
    (1) Comply with the OSHA standards in 29 CFR 1926.1101.
    (2) Submit notifications required for alternative control methods 
to the Director, National Program Chemicals Division (7404), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, Ariel 
Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (b) Custodial activities not associated with the construction 
activities identified in 29 CFR 1926.1101(a), you must comply with the 
OSHA standards in 29 CFR 1910.1001.
    (c) Repair, cleaning, or replacement of asbestos-containing clutch 
plates and brake pads, shoes, and linings, or removal of asbestos-
containing residue from brake drums or clutch housings, you must comply 
with the OSHA standards in 29 CFR 1910.1001.


Sec. 763.123  May a State implement its own asbestos worker protection 
plan?

    This section describes the process under which a State may be 
exempted from the requirements of this subpart.
    (a) States seeking an exemption. If your State wishes to implement 
its own asbestos worker protection plan, rather than complying with the 
requirements of this subpart, your State must apply for and receive an 
exemption from EPA.
    (1) What must my State do to apply for an exemption? To apply for 
an exemption from the requirements of this subpart, your State must 
send to the Director of EPA's Office of Pollution Prevention and Toxics 
(OPPT) a copy of its asbestos worker protection regulations and a 
detailed explanation of how your State's asbestos worker protection 
plan meets the requirements of TSCA section 18 (15 U.S.C. 2617).
    (2) What action will EPA take on my State's application for an 
exemption? EPA will review your State's application and make a 
preliminary determination whether your State's asbestos worker 
protection plan meets the requirements of TSCA section 18.
    (i) If EPA's preliminary determination is that your State's plan 
does meet the requirements of TSCA section 18, EPA will initiate a 
rulemaking, including an opportunity for public comment, to exempt your 
State from the requirements of this subpart. After considering any 
comments, EPA will issue a final rule granting or denying the 
exemption.
    (ii) If EPA's preliminary determination is that the State plan does 
not meet the requirements of TSCA section 18, EPA will notify your 
State in writing and will give your State a reasonable opportunity to 
respond to that determination.
    (iii) If EPA does not grant your State an exemption, then the State 
and local government employers in your State are subject to the 
requirements of this subpart.
    (b) States that have been granted an exemption. If EPA has exempted 
your State from the requirements of this subpart, your State must 
update its asbestos worker protection regulations as necessary to 
implement changes to meet the requirements of this subpart, and must 
apply to EPA for an amendment to its exemption.
    (1) What must my State do to apply for an amendment? To apply for 
an amendment to its exemption, your State must send to the Director of 
OPPT a copy of its updated asbestos worker protection regulations and a 
detailed explanation of how your State's updated asbestos worker 
protection plan meets the requirements of TSCA section 18. Your State 
must submit its application for an amendment within 6 months of the 
effective date of any changes to the requirements of this subpart, or 
within a reasonable time agreed upon by your State and OPPT.
    (2) What action will EPA take on my State's application for an 
amendment? EPA will review your State's application for an amendment 
and make a preliminary determination whether your State's updated 
asbestos worker protection plan meets the requirements of TSCA section 
18.
    (i) If EPA determines that the updated State plan does meet the 
requirements of TSCA section 18, EPA will issue your State an amended 
exemption.
    (ii) If EPA determines that the updated State plan does not meet 
the requirements of TSCA section 18, EPA will notify your State in 
writing and will give your State a reasonable opportunity to respond to 
that determination.
    (iii) If EPA does not grant your State an amended exemption, or if 
your State does not submit a timely request for amended exemption, then 
the State and local government employers in your State are subject to 
the requirements of this subpart.

[FR Doc. 00-10517 Filed 4-26-00; 8:45 am]
BILLING CODE 6560-50-F


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