24806 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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.

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 Asbestosin-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: TSCAHotline@epa.gov.

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: fraleigh.cindy@epa.gov.

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:

Categories NAICS codes Examples of 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

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 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: ‘‘oppt-docket@epa.gov,’’ 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

24808 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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. Crossreferencing 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. Crossreferencing 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. Crossreferencing 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

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

• 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.

• 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.

• 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.

• 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 MAPaccredited inspector determines through

24810 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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 MAPaccredited inspector.

Results obtained during an inspection

that complies with the Asbestos-inSchools 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 MAPaccredited 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, shortduration, 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)).

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

• Objective data which demonstrate

that the product or activity involved is

incapable of producing airborne

asbestos concentrations in excess of the

PELs.

• 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.

• 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 crossreferences 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 nonfriable 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 crossreference 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,

24812 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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:

• Class I projects.

• Class II projects where ACM is not

removed intact.

• Class II–III projects that do not use

wet methods.

• Class II–III projects for which a

negative exposure assessment has not

been made.

• Class III projects involving the

disturbance of TSI or surfacing material.

• Class IV work in regulated areas

where other employees are wearing

respirators.

• Any other activities where asbestos

exposure exceeds either of the PELs.

• 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 crossreferenced 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:

• Procedure for selecting respirators.

• Medical evaluations of employees

required to use respirators.

• Fit testing procedures for tightfitting respirators.

• Procedures for proper use of

respirators in routine and (reasonably

foreseeable) emergency situations.

• Procedures and schedules for

cleaning, disinfecting, storing,

inspecting, repairing, discarding, and

otherwise maintaining respirators.

• Procedures to ensure adequate air

quality, quantity, and flow of breathing

air for atmosphere-supplying

respirators.

• Training of employees in the

respiratory hazards they are potentially

exposed to.

• Training of employees in proper use

of respirators, including putting on and

removing them, any limitations on their

use, and their maintenance.

• 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

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

24814 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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 crossreference, 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 crossreference 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, shortduration activities (40 CFR

763.121(e)(6)). The OSHA Construction

Standard at 29 CFR 1926.1101(o), which

this proposal would adopt by crossreference, 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 asbestoscontaining 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 § 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 § 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

§ 763.123 because of other structural

changes to 40 CFR part 763, subpart G.

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

• The health effects of asbestos.

• The magnitude of human exposure

to asbestos.

• The environmental effects of

asbestos and the magnitude of the

exposure of the environment to

asbestos.

• The benefits of asbestos for various

uses and the availability of substitutes

for those uses.

• 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.

• 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.

• 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.

• 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.

• 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).

• 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. Asbestosrelated 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.

• 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 OSHAapproved State plans. The activities that

would be covered by the proposed rule

include the following six categories of

work:

• 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.

• Abatement activities, which include

the removal of asbestos-containing TSI

from pipes and boilers and other types

of ACM or presumed ACM in buildings.

• 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.

24816 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

• 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.

• Custodial work, which includes

dusting, sweeping and vacuuming.

• 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

Activity Class/category of

work

Population exposed

in the initial year of

the rule (FTEs)

Exposure levels

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/boilers ...... III .............................. 72 .............................. 0.1624 ............................. 0.0094

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/lighting ....... IV ............................. 68 .............................. 0.0319 ............................. 0.0008

Repair heating/air conditioning ......... IV ............................. 62 .............................. 0.0319 ............................. 0.0008

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 method .. GI ............................. 2.032 ......................... 0.0041 ............................. 0.0041

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 school children.............................. 4,068,600 .................. ....................................

All activities, excluding school children and building occupants.............................. 60,890 ....................... ....................................

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:

• 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.

• 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 nonasbestos 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

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24817

potential of harmful exposure for these

individuals and consequently decrease

the expected incidence of asbestosrelated 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.

• 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.

• 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.

• 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.

24818 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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.

• 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.

• 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

Requirement First-year compliance

Cost ($millions)

65-year present

value of compliance

costs ($millions)

Percent of total

costs

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

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24819

SUMMARY OF COMPLIANCE COSTS BY PARAGRAPH AND REQUIREMENT—Continued

Requirement First-year compliance

Cost ($millions)

65-year present

value of compliance

costs ($millions)

Percent of total

costs

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 method .................................................... $1.24 ........................... $21.99 ..................... 1.96%

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

24820 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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.

• 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.

• 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.

• 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.

• 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.

• 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

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

24822 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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.

• 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 sprayedon 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.

• 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 OSHAapproved 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:

• Option A. Both the PEL and the

scope of the proposed rule remain

unchanged (i.e., no action).

• 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.

• 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.

• The proposed rule. The PEL is

lowered from 0.2 f/cc to 0.1 f/cc, and the

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

• 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.

• 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 asbestosrelated 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.

• 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.

• 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 asbestosrelated 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.

• 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.

• Scope. The proposed rule and

Option C would both provide

24824 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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.

• 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 asbestosrelated 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 asbestosrelated 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.

• 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).

• 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).

• 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 costbenefit 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

Option/section PEL

(f/cc)

Incremental

population

protected

Estimated benefits

Present value

of compliance

costs

($millions)

Estimated net

benefit

($millions)

Cost-benefit ratio Avoided

cancer

cases

Present

monetary

value

($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:

• The proposed rule would be the

most protective (i.e., would result in the

lowest PEL).

• The proposed rule would provide

incremental protection to the largest

population.

• The proposed rule would result in

the largest benefits.

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules 24825

• 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 ÷ $939.53 million), but the

number of avoided cancer cases

increases by a factor of 5.1 (137.23 cases

÷ 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 ÷ $24.00 million), but

the number of avoided cancer cases

increases by a factor of 381 (137.23

cases ÷ 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:

• Reductions in the incidence of

asbestosis.

• Reductions in the incidence of

pleural plaques and pleural effusion.

• Reductions in productivity losses

associated with non-cancerous health

effects.

• Reductions in medical costs

associated with non-cancerous health

effects.

• Improved quality of life.

• 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 asbestosis 1 4 2 2

Reductions in the incidence of pleural plaques and pleural effusion 1 4 2 2

Reductions in productivity losses associated with non-cancerous health effects 1 4 2 2

Reductions in medical costs associated with non-cancerous health effects 1 4 2 2

Improved quality of life 1 4 2 2

Decreased risk for individuals who may be incidentally exposed to asbestos,

including workers’ families

1 422

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 asbestoscontaining 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

24826 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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 nonquantified 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.

• 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.

• 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.

• 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/

toclfedlreg.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.oshaslc.gov/OCIS/toclfedlreg.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/

toclfedlreg.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/

toclfedlreg.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.oshaslc.gov/OCIS/toclfedlreg.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.oshaslc.gov/OCIS/

toclfedlowbarm;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.oshaslc.gov/OCIS/toclfedlreg.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/

toclfedlreg.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.oshaslc.gov/OCIS/toclfedlreg.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/

toclfedlreg.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/

toclfedlreg.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/

toclfedlreg.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;

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

24828 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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 farmer.sandy@epa.gov. 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

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

24830 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Proposed Rules

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 inplace 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-TrowelApplied Friable Asbestos-Containing

Building Materials’’ (Ref. 28). The

ASTM documents also represent stateof-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 § 763.91(b) to read as

follows:

§ 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:

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

§ 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.

§ 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 § 763.123, you must

follow the requirements of this subpart

to protect your employees from

occupational exposure to asbestos.

§ 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.

§ 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