69210 Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 763

[OPPTS–62125B; FRL–6751–3]

RIN 2070–AC66

Asbestos Worker Protection

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: In this Final Rule, EPA is

amending both the Asbestos Worker

Protection Rule (WPR) and the

Asbestos-in-Schools Rule. The WPR

amendment protects State and local

government employees from the health

risks of exposure to asbestos to the same

extent as private sector workers by

adopting for these employees the

Asbestos Standards of the Occupational

Safety and Health Administration

(OSHA). The WPR’s coverage is

extended to State and local government

employees who are performing

construction work, custodial work, and

automotive brake and clutch repair

work. This final rule cross-references

the OSHA Asbestos Standards for

Construction and for General Industry,

so that future amendments to these

OSHA standards are directly and

equally effective for employees covered

by the WPR. EPA also amends the

Asbestos-in-Schools Rule to provide

coverage under the WPR for employees

of public local education agencies who

perform operations, maintenance, and

repair activities. EPA is issuing this

final rule under section 6 of the Toxic

Substances Control Act (TSCA).

DATES: This final rule is effective

December 15, 2000.

FOR FURTHER INFORMATION CONTACT: For

general information contact: Barbara

Cunningham, Acting Director,

Environmental Assistance Division,

Office of Pollution Prevention and

Toxics (7408), Environmental Protection

Agency, 1200 Pennsylvania Ave., NW.,

Washington, DC 20460; telephone

number: (202) 554–1404; e-mail address:

TSCA-Hotline@epa.gov.

For technical information contact:

Cindy Fraleigh, Attorney-Advisor,

National Program Chemicals Division

(7404), Office of Pollution Prevention

and Toxics, Environmental Protection

Agency, 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. To determine whether you or

your business is affected by this action,

you should carefully examine the

applicability provisions in 40 CFR

763.121. 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,’’ ‘‘Regulations

and Proposed Rules,’’ 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–62125B. 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 record also

contains any experience, as reflected in

this preamble and the preamble to the

proposed rule, that the Agency has

gained over the years in implementing

the WPR and the Asbestos-in-Schools

Rule. 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 available

for inspection in the TSCA

Nonconfidential Information Center,

North East Mall Rm. B–607, Waterside

Mall, 401 M St., SW., Washington, DC.

The Center is open from noon to 4 p.m.,

Monday through Friday, excluding legal

holidays. The telephone number for the

Center is (202) 260–7099.

II. Background

A. What is the Agency’s Authority for

Taking this Action?

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

Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations 69211

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

promulgate 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 rule, after

consideration of the effect on the

national economy, small business,

technological innovation, the

environment, and public health; and the

social impacts of the rule. See 15 U.S.C.

2601(c) and 2605(c)(1). EPA did not

change its consideration of any of these

factors based upon comments received

on the proposed rule. The following is

a summary of EPA’s evaluation, and the

Economic Analysis contains additional

information on many of these factors

(Ref. 5).

1. Health effects of asbestos. The

primary route of human exposure is

through the respiratory system, where

asbestos fibers may cause carcinoma of

the lung, malignant mesothelioma of the

pleura and peritoneum, asbestosis, and

other illnesses.

2. Human exposure to asbestos.

Asbestos is found in building products

such as insulation, ceiling and floor

tiles, spackling tape for drywall, and

roofing products. In general, asbestoscontaining materials in good condition

do not pose a risk of exposure, but, if

the matrix of asbestos fibers is disturbed

or deteriorates, fibers may be released

into the air. Workers may be exposed to

asbestos during new construction,

asbestos abatement, renovation,

building maintenance, custodial

activities, and brake and clutch repair

work. Building occupants, including

school children, may be exposed to

asbestos fibers as a result of activity

taking place in their building. As a

result of this regulation, EPA estimates

that worker exposures during these

activities will decrease by at least one

order of magnitude, while building

occupant exposures will decrease by

50%.

3. Environmental effects of asbestos.

This 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.

4. The benefits of asbestos for various

uses and the availability of substitutes

for those uses. This rule does not

require asbestos-containing building

material to be removed and replaced

with non-asbestos substitutes. Since this

rule only applies once a decision has

been made to disturb asbestoscontaining material, EPA did not

consider the benefits of asbestos for

various uses and the availability of

substitutes for those uses.

5. Economic consequences of this

rule. The Economic Analysis for this

final rule provides a detailed analysis of

the economic benefits of the reduced

incidence of cancer and other diseases

among workers and building occupants

attributable to this rule. EPA estimates

that sixty-five years of exposure

reduction under this rule will reduce

the number of lung cancer and

mesothelioma cases among exposed

workers and building occupants by

71.58 cases. According to EPA’s

analysis, this rule will also result in

approximately 65.65 avoided cases of

cancer among individuals exposed as

school children. EPA also found that

this rule is likely to result in other

benefits, such as asbestosis cases

avoided among workers, avoided

medical costs associated with non-fatal

diseases, and reduced exposures to

worker families from asbestos fibers

brought home on clothing, but EPA was

unable to reliably quantify these

benefits.

The Economic Analysis also evaluates

the incremental costs to State and local

governments of complying with this

rule. EPA estimates that this rule will

impose first-year compliance costs of

$63.34 million. Over the 65-year time

frame of exposure reduction, the present

value of compliance costs is estimated

to be $1.12 billion.

6. Other effects. TSCA section

6(c)(1)(D) also requires EPA, when

considering the economic consequences

of the rule, to take other factors into

account, including the effects on the

national economy, small business,

technological innovation, the

environment, and public health. EPA

has already summarized its evaluation

of the effects on public health and the

environment above. EPA’s consideration

of the effects on the national economy,

small government entities, and

technological innovation are discussed

in Unit IV.

7. 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

the action. One important social

consequence of this rule is the

elimination of inequitable legal

protection for classes of persons based

solely upon the identity and location of

their employers. This rule, by ensuring

that all public and private sector

workers are entitled to the same level of

protection from asbestos exposures,

serves important equity and

environmental justice concerns. In

addition, having a uniform set of

standards for construction and brake

and clutch repair employees will also

ease implementation burdens, by

allowing employers to use the excellent

guidance materials developed by OSHA

and reducing confusion and mistakes

caused by two different standards.

Having considered these factors, 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 this rule is necessary to

provide adequate protection against that

risk.

B. What Action is the Agency Taking?

In 1985, EPA first determined that

exposure to asbestos poses an

unreasonable risk of harm to

unprotected State and local government

employees who conduct asbestos

abatement projects. EPA’s 1987

Asbestos Worker Protection Rule (WPR)

requires certain work practices, personal

protective equipment, and training for

State and local government employees

who perform asbestos abatement

projects and who are not covered by a

State Plan approved by the

Occupational Safety and Health

Administration (OSHA) (40 CFR part

763, subpart G). There are 27 States that

do not have approved OSHA State

Plans. On April 27, 2000, EPA

published a proposal to amend the WPR

to provide the same level of protection

to State and local government

employees not covered by an OSHAapproved State plan as non-government

employees and State and local

government employees covered by an

OSHA-approved State plan. EPA

proposed to provide this protection by

incorporating OSHA’s Asbestos

Standards for Construction and for

General Industry set out at 29 CFR

1926.1101 and 29 CFR 1910.1001

respectively in the WPR (Ref. 1, p.

24806).

By actually cross-referencing the

OSHA Asbestos Standards in the WPR,

future amendments to the OSHA

General Industry or Construction

Standard would also effect a change in

the requirements under the WPR (Ref. 1,

pp. 24808, 24822). EPA also proposed to

expand the scope of the WPR from

asbestos abatement projects to all

69212 Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations

construction, custodial, and automotive

brake and clutch repair work. Finally,

EPA proposed to amend the Asbestosin-Schools Rule, 40 CFR part 763,

subpart E, to reflect the fact that public

school employees performing operations

and maintenance activities would now

be covered by the WPR by modifying 40

CFR 763.91(b) and removing appendix B

to subpart E (Ref. 1, p. 24814).

1. What comments did EPA receive on

the proposed rule? EPA received

comments on its proposal from the

American Federation of State, County

and Municipal Employees; the

American Industrial Hygiene

Association; the Laborers’ International

Union of North America; the Texas A &

M University System; the Safe Buildings

Alliance; the Asbestos Information

Association; the Board of Certified

Safety Professionals; the Resilient Floor

Covering Institute; the Service

Employees International Union; the

American Society of Safety Engineers;

and the International Brotherhood of

Teamsters. With the exception of Texas

A & M, all of the commenters generally

supported the proposal and encouraged

EPA to be as consistent as possible with

the OSHA Asbestos Standards. The

following discussion addresses all

material issues raised by the

commenters, EPA’s response to those

comments, and how these comments

affected the outcome of this final rule.

Comments raising each issue are

identified in parentheses by docket

control number.

Texas A & M expressed concern with

the proposed extension of WPR

coverage to building custodians (Docket

#62125A, C-004). The University

believes that it might have to survey all

of its buildings for asbestos in order to

comply with the requirements to

determine the presence, location, and

quantity of asbestos-containing material

(ACM) and presumed asbestoscontaining material (PACM) in custodial

work sites, post signs at the entrances to

mechanical rooms containing asbestos,

and provide information and training to

custodians who work in areas that

contain asbestos. EPA recommends that

employers conduct full building

inspections, using accredited inspectors,

to determine the presence, location, and

quantity of asbestos in their buildings.

However, as discussed in the preamble

to the proposed amendments, State and

local government employers may

comply with these requirements merely

by identifying three types of building

materials (thermal system insulation,

surfacing material, and resilient floor

covering) and assuming that these

materials contain asbestos, so long as

there is no specific reason to suspect

that other materials in the work site or

mechanical room contain asbestos (Ref.

1, p. 24810).

Texas A & M also believes that annual

training for custodians, and the

associated recordkeeping, is ‘‘excessive’’

and ‘‘cumbersome ’’ for employers with

large numbers of custodial employees.

However, EPA believes that the annual

educational requirements for custodians

are minimal, consisting of at least 2

hours of awareness training on topics

such as the health effects of asbestos,

how to work around asbestos-containing

materials safely, and where asbestoscontaining materials are located in the

building (Ref. 1, pp. 24813–24814).

Texas A & M did not dispute EPA’s

incremental cost estimate of $49.79 per

full-time equivalent employee per year

for custodial training, including the

associated recordkeeping costs (Ref. 5,

pp. 4–29). EPA continues to believe that

the benefits of protecting custodians

under this regulation, including the 58

estimated cancer cases avoided and

consistency with OSHA, outweigh the

expense.

Finally, Texas A & M does not believe

that custodians should be considered

‘‘asbestos workers.’’ EPA is unsure as to

what Texas A & M intended by this

comment, because the only place that

EPA uses a similar term (‘‘asbestos

abatement workers’’) is in Unit I.B.1. of

the Asbestos Model Accreditation Plan

(MAP), 40 CFR part 763, subpart E,

appendix C. The proposed amendments

to the WPR did not suggest that

custodians be required to complete the

4-day training course for workers under

Unit I.B.1. of the MAP (Ref. 1, pp.

248137–24814). As discussed in this

unit, this rule requires, at a minimum,

2 hours of awareness training for

custodians.

The comments from the American

Industrial Hygiene Association (AIHA)

expressed strong support for

consistency between EPA and OSHA

rules and standards, and reminded EPA

that OSHA permits Certified Industrial

Hygienists to perform certain functions

required by the regulations (Docket

#62125A, C-002). AIHA indicated that

OSHA permits CIHs to collect samples

to rebut the presumption that surfacing

materials and thermal system insulation

contain asbestos. AIHA also indicated

that OSHA permits CIHs to serve as

competent persons under certain

circumstances. EPA intends to be as

consistent with the OSHA asbestos

regulations as possible. However, for

projects in schools or in public or

commercial buildings, EPA’s MAP

requires persons who collect samples to

be accredited as inspectors and persons

who supervise asbestos response actions

to be accredited as supervisors. (TSCA

section 206(a), Units I.A. and I.B. of the

MAP). Thus, CIHs collecting samples in

schools or in public or commercial

buildings would also have to be MAP

accredited inspectors, and CIHs

supervising asbestos response actions in

such buildings would have to be MAP

accredited supervisors. Changes to the

MAP are outside the scope of this

rulemaking, but EPA will consider the

issues raised by AIHA in any future

actions to amend the MAP.

AIHA also noted in its comments that

OSHA is more inclusive than EPA with

respect to laboratory accreditation

programs. OSHA requires laboratories

that analyze bulk samples of presumed

asbestos-containing material (surfacing

materials and thermal system

insulation) to participate in a nationally

recognized testing program (Ref. 4, pp.

41062, 41141). The AIHA industrial

hygiene laboratory accreditation

program is one of the programs

specifically mentioned by OSHA. EPA

will also recognize AIHA laboratory

accreditation for laboratories that

analyze bulk samples under the WPR,

unless those samples are collected in a

school building that is regulated under

the Asbestos Hazard Emergency

Response Act (AHERA), Title II of

TSCA, 15 U.S.C. 2641 et seq. (Ref. 1, p.

24810). TSCA section 206(d), within

AHERA, requires laboratories that

analyze samples collected from school

buildings under the authority of a local

education agency to be accredited by the

National Institute of Standards and

Technology (NIST). Therefore, EPA may

not accept AIHA accreditation for

laboratories that analyze samples

collected from school buildings.

The American Society of Safety

Engineers (ASSE) strongly endorsed

EPA’s proposal to protect State and

local government employees from the

health risks of exposure to asbestos to

the same extent as private sector

employees. ASSE and the Board of

Certified Safety Professionals (BCSP),

however, both commented that Certified

Safety Professionals (CSPs), by virtue of

their extensive training, should be

permitted to perform the same tasks as

CIHs (Docket #62125A, C-010 and C007, respectively). Specifically, these

commenters stated that the preamble to

the proposal should have recognized

CSPs as qualified to collect bulk

samples of surfacing materials and

thermal system insulation (Ref. 1, p.

24809) and to determine, in certain

circumstances, when alternate control

methods for Class I projects are

adequate (Ref. 1, p. 24811). As indicated

by ASSE, CSPs are recognized in OSHA

Directive CPL 2-2.63 (Ref. 2), which

Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations 69213

contains guidance for OSHA

compliance inspectors on the asbestos

standards. Appendix C, ‘‘Questions and

Answers on the Occupational Exposure

to Asbestos Standard,’’ to CPL 2-2.63

says that an employer should not be

cited for a violation of the asbestos

standards if a CSP was used to evaluate

alternate control methods for Class I

work, so long as a review of the

particular CSP’s past work history and

training indicates that the CSP

possessed the skills, professional

judgment, and background to perform

the evaluation.

EPA intends to follow OSHA’s lead in

the interpretation and application of the

WPR, so EPA will likewise allow

properly qualified CSPs to evaluate

alternate control methods for Class I

projects. However, OSHA does not

permit CSPs to collect bulk samples of

thermal system insulation or surfacing

material for the purpose of rebutting the

presumption that these materials

contain asbestos (Ref. 6). EPA will defer

to OSHA’s expertise in this matter, and

maintain consistency by requiring

samples to be taken by either a MAPaccredited inspector or a CIH.

The comments from the Resilient

Floor Covering Institute (RFCI)

expressed concern that, because EPA

had not expressly adopted OSHA’s

interpretations of the Asbestos

Standards as set out in OSHA

Instruction CPL 2-2.63, EPA would not

apply the WPR consistent with the

OSHA asbestos standards, particularly

with regard to removal and/or

replacement of resilient floor covering

materials (Docket #62125A, C-008).

Specifically, RFCI pointed out that

Appendix D to OSHA’s CPL 2-2.63

includes the terms of a Settlement

Agreement between the flooring

industry and OSHA on the application

of the OSHA asbestos standards to

resilient floor covering. Although RFCI

recommended that EPA specifically cite

OSHA Instruction CPL 2-2.63 in the text

of the WPR, EPA does not believe that

this is appropriate, particularly since

CPL 2-2.63 is not cited in the text of the

OSHA asbestos standards. However,

EPA will follow CPL 2-2.63, including

all of the appendices and any possible

future changes, in implementing the

WPR, so long as the Directive is not

contrary to other EPA statutes and

regulations, such as TSCA, AHERA, the

Asbestos-in-Schools Rule, and the MAP.

Finally, comments from the Asbestos

Information Association (AIA)

supported consistency between the

OSHA and EPA asbestos regulations,

but objected to the characterization of

the risk to State and local government

employees as ‘‘unreasonable’’ (Docket

#62125A, C-006). In support of this

comment, AIA implied that workers

would be exposed only to chrysotile

asbestos and stated that EPA’s (and

OSHA’s) asbestos risk assessments were

outdated, and that the latest scientific

findings indicate that the risk from

products made with chrysotile asbestos

is actually much lower than predicted

by current EPA and OSHA risk

assessments. However, AIA did not

submit any additional information to

support this claim. The issue of the risk

from chrysotile asbestos has been raised

and considered in previous EPA and

OSHA rulemakings, and both Agencies

have declined to distinguish between

asbestos fiber types in performing risk

assessments for regulatory purposes.

See, for example, the discussion in the

preamble to EPA’s 1989 final Asbestos

Ban and Phaseout Rule (Ref. 3, pp.

29470–29471) and the discussion in the

preamble to the 1994 final OSHA

Asbestos Standards (Ref. 4, pp. 40978,

40979). Furthermore, EPA reviewed the

literature available in 1999 on asbestos

hazards in order to assist in the

preparation of the United States thirdparty submissions to a dispute

resolution panel of the World Trade

Organization regarding the French

asbestos ban (Refs. 7-8). EPA found

nothing during this literature review

that persuasively contradicted the risk

assessment approach followed by EPA

and OSHA.

The balance of the comments

expressed only support for the proposal

and contained no substantive

comments. These comments were

received from the Laborers’

International Union of North America,

the International Brotherhood of

Teamsters, the Safe Buildings Alliance,

the Service Employees International

Union, and the American Federation of

State, County, and Municipal

Employees.

No commenter requested an informal

public hearing on the proposed rule.

2. What does this final rule require?

This final rule makes the WPR

consistent with the OSHA Asbestos

Construction Standard, 29 CFR

1926.1101, including all revisions to

that standard from 1994 through the

present, and all future amendments. If

you are a State or local government

employer whose employees perform

asbestos abatement activities, you must

now comply with the OSHA Asbestos

Construction Standard. This rule will

effectively lower the permissible

exposure limit (PEL) for these

employees to 0.1 fibers per cubic

centimeter (f/cc) and incorporate

additional hazard communication and

respiratory protection program

requirements.

In addition, this rule extends the

requirements of the OSHA Asbestos

Construction Standard to State and local

government employees who perform

any construction activities identified in

29 CFR 1926.1101(a), including

demolition, alteration, repair,

maintenance, renovation, installation of

asbestos-containing products, and

housekeeping. For general custodial

activities not associated with

construction projects, this rule requires

State and local government employers

to comply with the Asbestos General

Industry Standard in 29 CFR 1910.1001.

This rule also applies the current

requirements of the OSHA General

Industry Standard, 29 CFR 1910.1001, to

State and local government employers

of employees engaged in automotive

brake and clutch repair work. If your

employees repair, clean, or replace

asbestos-containing clutch plates and

brake pads, shoes, and linings, or

remove asbestos-containing residue

from brake drums or clutch housings,

you must comply with the OSHA

standards in 29 CFR 1910.1001.

This rule amends the Asbestos-inSchools Rule, 40 CFR part 763, subpart

E, to remove the provisions in 40 CFR

763.91(b) that extend WPR protections

to employees of public school systems

when they are performing operations,

maintenance and repair (O&M)

activities. This rule also deletes

appendix B to subpart E and the

reference to appendix B in 40 CFR

763.92(a)(2)(iii). If you are a public local

education agency employer in a State

without an OSHA-approved State plan,

and your employees perform O&M

activities, you will need to follow the

requirements of the WPR.

III. References

1. U.S. Environmental Protection

Agency (USEPA), Office of Pollution

Prevention and Toxics (OPPT). Asbestos

Worker Protection; Proposed Rule.

Federal Register (65 FR 24806, April 27,

2000) (FRL–6493–5).

2. U.S. Department of Labor (USDOL),

Occupational Safety and Health

Administration (OSHA). Instruction

CPL 2-2.63 (November 3, 1995), revised

and renamed Directive CPL 2-2.63

(January 9, 1996).

3. USEPA, OPPT. Asbestos

Manufacture, Importation, Processing,

and Distribution in Commerce

Prohibitions; Final Rule. Federal

Register (54 FR 29460, July 12, 1989).

4. USDOL, OSHA. Occupational

Exposure to Asbestos; Final Rule.

Federal Register (59 FR 40964, August

10, 1994).

69214 Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations

5. USEPA, OPPT. Final Asbestos

Worker Protection Rule Economic

Analysis (September 25, 2000).

6. USDOL, OSHA. Letter to Richard L.

Barcum re: procedures for

demonstrating that presumed asbestoscontaining material does not contain

more than 1 percent asbestos (July 1,

1998).

7. U.S. Department of Commerce

(USDOC), U.S. Trade Representative

(USTR). Third Party Written Submission

of the United States, European

Communities— Measures Affecting

Asbestos and Products Containing

Asbestos (May 28, 1999).

8. USDOC, USTR. United States

Responses to Questions Posed by the

European Communities, European

Communities—Measures Affecting

Asbestos and Products Containing

Asbestos (June 21, 1999).

9. USDOL, OSHA. Letter to the

Honorable Jay Johnson re: Occupational

Safety and Health Act applicability to

tribal land workplaces and employers

(March 12, 1998).

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 ‘‘Final

Asbestos Worker Protection Rule

Economic Analysis’’ (Ref. 5). 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.).

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 final

action 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 the rule (Ref. 5),

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 final

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

governmental jurisdiction,’’ no Statelevel government covered by the

asbestos WPR can be considered small.

Therefore, the small government entities

potentially impacted by the asbestos

WPR are local governments (e.g.,

county, municipal, or towns) and school

districts.

The 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

governmental 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,

Delaware, and West Virginia, 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

0.023% 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 less than 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 asbestos WPR will

not have a significant effect on the

revenues of small school districts.

Additional details regarding EPA’s

basis for this certification are presented

in the Final Economic Analysis (Ref. 5),

which is included in the public version

of the official record for this action. This

information will also be provided to the

Small Business Administration (SBA)

Chief Counsel for Advocacy upon

request.

C. Paperwork Reduction Act

The information collection

requirements contained in this rule have

been submitted to OMB for review and

approval pursuant to the PRA and OMB

implementing regulations at 5 CFR part

1320. The burden and costs related to

the information collection requirements

contained in this 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. 1246.08, is

available electronically at http://

www.epa.gov/opperid1/icr.htm, or by emailing 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), 1200 Pennsylvania Ave., NW.,

Washington, DC 20460, or by calling

(202) 260–2740. The information

requirements are not enforceable until

OMB approves them.

This amendment to the WPR requires

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.

The public reporting burden for this

collection of information is estimated to

average, on an annual basis, 17.24 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

Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations 69215

burdens, for a total annual respondent

burden of 436,289 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.

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 are listed

in 40 CFR part 9 and 48 CFR chapter 15.

The OMB control number(s) for the

information collection requirements in

this rule will be listed in an amendment

to 40 CFR part 9 in a subsequent

Federal Register document after OMB

approves the ICR.

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 Final Economic

Analysis (Ref. 5), the rule will result in

estimated expenditures of at most

$63.34 million in any 1 year. In

addition, EPA has determined that this

rule will not significantly or uniquely

affect small governments. For small

local governments as a whole,

compliance costs associated with the

WPR represent 0.023% of revenues

assumed to be available for compliance.

Moreover, the impact of compliance

costs on small school districts as a

whole would be less than 0.01% of

available revenues. Thus, this final 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 final rule does not have

federalism implications. This rule

amends the existing WPR to cover

additional asbestos-related activities

and to conform the WPR to the OSHA

Asbestos Standards. The changes do not

result in a significant intergovernmental

mandate under the UMRA, and thus,

EPA concludes that the rule does not

impose substantial direct compliance

costs. Nor does 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

established under the existing WPR, and

these amendments do not alter them.

Thus, the requirements of section 6 of

the Executive Order do not apply to this

rule.

This rule preempts State and local

law in accordance with TSCA section

18(a)(2)(B). By publishing and inviting

comment on the proposed rule, EPA

provided State and local government

officials notice and an opportunity for

appropriate participation. Thus, EPA

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. 9). Accordingly, the requirements

of section 3(b) of Executive Order 13084

do not apply to this 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 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. Many of the

employees who will benefit from the

protections of this 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

addresses the lesser levels of protection

in the workplace provided under federal

regulations to minority and low-income

69216 Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations

populations among State and local

government employees. In other words,

the rule does not impose

disproportionately high- and adversehuman health or environmental effects

on minority or low-income populations,

but actually decreases such effects.

As described in the proposal (Ref. 1,

p. 24829), public participation is an

important environmental justice

concern. EPA received comments on the

proposed rule from organizations

representing State and local government

employees, but no requests for an

informal public hearing on the proposed

rule. (See Unit II.A.1).

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 final 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

decision making 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 will prevent approximately

65.65 cancer cases among persons with

childhood exposures to asbestos from

school buildings. EPA also expects this

rule to 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 rule to substantially benefit

children by reducing the incidental

exposures children face while attending

affected schools and when at home from

workers’ clothing. By reducing ambient

asbestos concentrations in school

buildings, this rule will help protect

children from the disproportionate

asbestos exposure risk they face.

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.

EPA described the applicability of the

NTTAA to this rule in the proposal (Ref.

1, pp. 24829–24830). The Agency

received no comments or suggestions

regarding alternative approaches to

technical standards. One of EPA’s

primary goals in finalizing these

amendments to the WPR is to achieve

consistency with the OSHA Asbestos

Standards. 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).

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).

V. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

Agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and the Comptroller General of

the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

List of Subjects in 40 CFR Part 763

Environmental protection, Asbestos,

Schools, Hazardous substances,

Reporting and recordkeeping

requirements, Worker protection.

Dated: November 3, 2000.

Carol M. Browner,

Administrator.

Therefore, 40 CFR chapter I,

subchapter R, is amended as follows:

PART 763—[AMENDED]

1. The authority citation for part 763

continues 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. Local

education agencies must comply with

either the OSHA Asbestos Construction

Standard at 29 CFR 1926.1101, or the

Asbestos Worker Protection Rule at 40

CFR 763.120, whichever is applicable.

* * * * *

§ 763.92 [Amended]

3. By revising § 763.92(a)(2)(iii) to

remove the phrase ‘‘Appendices A, B, C,

D of this subpart E of this part’’ and add

in its place the phrase ‘‘Appendices A,

C, and D of this subpart E of this part.’’

Appendix B to Subpart E [Removed and

reserved]

4. By removing and reserving

Appendix B to subpart E.

5. By revising subpart G to read as

follows:

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

Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations 69217

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, 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 its exemption? 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. 00–29232 Filed 11–14–00; 8:45 am]

BILLING CODE 6560–50–S