[Federal Register Volume 65, Number 221 (Wednesday, November 15, 2000)]
[Rules and Regulations]
[Pages 69210-69217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29232]



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Part VI





Environmental Protection Agency





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40 CFR Part 763



Asbestos Worker Protection; Final Rule

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

[[Page 69210]]


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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.

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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: <a href="/cdn-cgi/l/email-protection#31656272701c795e455d585f54715441501f565e47"><span class="__cf_email__" data-cfemail="3b6f68787a1673544f5752555e7b5e4b5a155c544d">[email protected]</span></a>.
    For technical information contact: Cindy Fraleigh, Attorney-
Advisor, National Program Chemicals Division (7404), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 
260-1537; fax number: (202) 260-1724; e-mail address: 
<a href="/cdn-cgi/l/email-protection#462034272a232f212e68252f28223f0623362768212930"><span class="__cf_email__" data-cfemail="583e2a39343d313f30763b31363c21183d2839763f372e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

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

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

     This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this table could also be 
affected. The North American Industrial Classification System (NAICS) 
codes are provided to assist you and others in determining whether or 
not this action might apply to certain entities. 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

[[Page 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, asbestos-containing 
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 asbestos-containing 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 
OSHA-approved 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

[[Page 69212]]

construction, custodial, and automotive brake and clutch repair work. 
Finally, EPA proposed to amend the Asbestos-in-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 asbestos-containing 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 asbestos-containing 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 C-007, 
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

[[Page 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 MAP-accredited 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 third-party 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-in-Schools 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).

[[Page 69214]]

    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 asbestos-containing 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 
State-level 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 e-mailing a request to <a href="/cdn-cgi/l/email-protection#690f081b040c1b471a08070d10290c1908470e061f"><span class="__cf_email__" data-cfemail="513730233c34237f22303f3528113421307f363e27">[email protected]</span></a>. 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

[[Page 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 low-income 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

[[Page 69216]]

populations among State and local government employees. In other words, 
the rule does not impose disproportionately high- and adverse-human 
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 Sec. 763.91(b) to read as follows:


Sec. 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.
* * * * *


Sec. 763.92  [Amended]

    3. By revising Sec. 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


Sec. 763.120  What is the purpose of this subpart?

     This subpart protects certain State and local government employees 
who are not protected by the Asbestos Standards of the Occupational 
Safety and Health Administration (OSHA). This subpart applies the OSHA 
Asbestos

[[Page 69217]]

Standards in 29 CFR 1910.1001 and 29 CFR 1926.1101 to these employees.


Sec. 763.121  Does this subpart apply to me?

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


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

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


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

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


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