Previous Article 65 FR 221 pgs. 69210-69217 - Asbestos Worker Protection
Type: RULEVolume: 65Number: 221Pages: 69210 - 69217
Docket number: [OPPTS-62125B; FRL-6751-3]
FR document: [FR Doc. 00-29232 Filed 11-14-00; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
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 AsbestosWorker Protection Rule (WPR) and the Asbestos-in-Schools Rule. The WPR amendmentprotects State and local government employees from the health risks of exposure to asbestos tothe same extent as private sector workers by adopting for these employees the AsbestosStandards of the Occupational Safety and Health Administration (OSHA). The WPR's coverageis 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 theOSHA Asbestos Standards for Construction and for General Industry, so that future amendmentsto 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 foremployees of public local education agencies who perform operations, maintenance, and repairactivities. 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:
Forgeneral information contact : Barbara Cunningham, Acting Director, Environmental Assistance Division, Office of Pollution Prevention and Toxics (7408), EnvironmentalProtection 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 governmententity whose employees work with or near asbestos-containing material. Potentially affectedcategories and entities may include, but are not limited to:
| Categories | NAICS codes | Examples of potentially affected entities |
|---|---|---|
| Educational services | 61 | Publiceducational institutions,including school districts, notsubject to anOSHA-approved Stateasbestos plan or a Stateasbestos worker protectionplan that EPA has determinedis exempt from therequirements of the WPR. |
| Public administration | 92 | State or localgovernment employers notsubject to anOSHA-approved Stateasbestos plan or a Stateasbestos worker protectionplan that EPA has determinedis exempt from therequirements of the WPR. |
This listing is not intended to be exhaustive, but rather provides a guide for readersregarding entities likely to be affected by this action. Other types of entities not listed in thistable 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 applyto certain entities. To determine whether you or your business is affected by this action, youshould carefully examine the applicability provisions in 40 CFR 763.121. If you have questionsregarding the applicability of this action to a particular entity, consult the technical person listedunder FOR FURTHER INFORMATION CONTACT .
B. How Can I Get Additional Information, Including Copies of this Document and OtherRelated 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 documentunder the " Federal Register -EnvironmentalDocuments." You can also go directly to the Federal Register listings athttp://www.epa.gov/fedrgstr/.
To access information about asbestos, go directly to the AsbestosHome 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 thisaction under docket control number OPPTS-62125B. The official record consists of thedocuments specifically referenced in this action, any public comments received during anapplicable comment period, and other information related to this action, including anyinformation claimed as Confidential Business Information (CBI). This official record includesthe documents that are physically located in the docket, as well as the documents that arereferenced in those documents. The record also contains any experience, as reflected in thispreamble and the preamble to the proposed rule, that the Agency has gained over the years inimplementing the WPR and the Asbestos-in-Schools Rule. The public version of the officialrecord does not include any information claimed as CBI. The public version of the officialrecord, which includes printed, paper versions of any electronic comments submitted during anapplicable comment period, is available for inspection in the TSCA Nonconfidential InformationCenter, 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. Thetelephone 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, distributionin commerce, use or disposal of a chemical substance or mixture, or any combination of theseactivities, presents, or will present, an unreasonable risk of injury to health or the environment,EPA shall by rule apply requirements to the substance or mixture to the extent necessary toprotect adequately against the risk. Asbestos is a chemical substance or mixture that falls withinthe 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; theenvironmental effects of asbestos and the magnitude of the exposure of the environment toasbestos; 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 ofthe effect on the national economy, small business, technological innovation, the environment, andpublic 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 onthe proposed rule. The following is a summary of EPA's evaluation, and the Economic Analysiscontains additional information on many of these factors (Ref. 5).
1. Health effects of asbestos . The primary route of human exposureis 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 buildingproducts such as insulation, ceiling and floor tiles, spackling tape for drywall, and roofingproducts. In general, asbestos-containing materials in good condition do not pose a risk ofexposure, but, if the matrix of asbestos fibers is disturbed or deteriorates, fibers may be releasedinto the air. Workers may be exposed to asbestos during new construction, asbestos abatement,renovation, building maintenance, custodial activities, and brake and clutch repair work. Buildingoccupants, including school children, may be exposed to asbestos fibers as a result of activitytaking place in their building. As a result of this regulation, EPA estimates that worker exposuresduring these activities will decrease by at least one order of magnitude, while building occupantexposures will decrease by 50%.
3. Environmental effects of asbestos . This rule is directedat risks posed by asbestos in the workplace, not in the ambient environment. EPA therefore didnot consider the environmental effects of asbestos.
4. The benefits of asbestos for various uses and the availability ofsubstitutes for those uses . This rule does not require asbestos-containing building material tobe removed and replaced with non-asbestos substitutes. Since this rule only applies once adecision has been made to disturb asbestos-containing material, EPA did not consider the benefitsof asbestos for various uses and the availability of substitutes for those uses.
5. Economic consequences of this rule . The EconomicAnalysis for this final rule provides a detailed analysis of the economic benefits of the reducedincidence of cancer and other diseases among workers and building occupants attributable to thisrule. EPA estimates that sixty-five years of exposure reduction under this rule will reduce thenumber of lung cancer and mesothelioma cases among exposed workers and building occupantsby 71.58 cases. According to EPA's analysis, this rule will also result in approximately 65.65avoided cases of cancer among individuals exposed as school children. EPA also found that thisrule is likely to result in other benefits, such as asbestosis cases avoided among workers, avoidedmedical costs associated with non-fatal diseases, and reduced exposures to worker families fromasbestos 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 localgovernments of complying with this rule. EPA estimates that this rule will impose first-yearcompliance costs of $63.34 million. Over the 65-year time frame of exposure reduction, thepresent value of compliance costs is estimated to be $1.12 billion.
6. Other effects . TSCA section 6(c)(1)(D) also requires EPA, whenconsidering the economic consequences of the rule, to take other factors into account, includingthe 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 andthe environment above. EPA's consideration of the effects on the national economy, smallgovernment entities, and technological innovation are discussed in Unit IV.
7. Social and other qualitative effects . TSCA section 2 requiresEPA, when taking any action under TSCA, to consider the social as well as environmental andeconomic impacts of the action. One important social consequence of this rule is the eliminationof inequitable legal protection for classes of persons based solely upon the identity and location oftheir employers. This rule, by ensuring that all public and private sector workers are entitled to thesame level of protection from asbestos exposures, serves important equity and environmentaljustice concerns. In addition, having a uniform set of standards for construction and brake andclutch repair employees will also ease implementation burdens, by allowing employers to use theexcellent guidance materials developed by OSHA and reducing confusion and mistakes caused bytwo different standards.
Having considered these factors, EPA finds under TSCA section 6 that the currentexposure to asbestos among unprotected State and local government employees during use ordisposal in construction work, custodial work, and brake and clutch repair work presents anunreasonable risk of injury to human health, and that this rule is necessary to provide adequateprotection 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 unprotectedState and local government employees who conduct asbestos abatement projects. EPA's 1987Asbestos Worker Protection Rule (WPR) requires certain work practices, personal protectiveequipment, and training for State and local government employees who perform asbestosabatement projects and who are not covered by a State Plan approved by the OccupationalSafety and Health Administration (OSHA) (40 CFR part 763, subpart G). There are 27 Statesthat do not have approved OSHA State Plans. On April 27, 2000, EPA published a proposal toamend the WPR to provide the same level of protection to State and local governmentemployees 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 at29 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, futureamendments to the OSHA General Industry or Construction Standard would also effect a changein the requirements under the WPR (Ref. 1, pp. 24808, 24822). EPA also proposed to expand thescope of the WPR from asbestos abatement projects to all construction, custodial, andautomotive 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 employeesperforming operations and maintenance activities would now be covered by the WPR bymodifying 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 commentson its proposal from the American Federation of State, County and Municipal Employees; theAmerican Industrial Hygiene Association; the Laborers' International Union of North America;the Texas A M University System; the Safe Buildings Alliance; the Asbestos InformationAssociation; the Board of Certified Safety Professionals; the Resilient Floor Covering Institute;the Service Employees International Union; the American Society of Safety Engineers; and theInternational Brotherhood of Teamsters. With the exception of Texas A M, all of thecommenters generally supported the proposal and encouraged EPA to be as consistent aspossible with the OSHA Asbestos Standards. The following discussion addresses all materialissues raised by the commenters, EPA's response to those comments, and how these commentsaffected the outcome of this final rule. Comments raising each issue are identified in parenthesesby docket control number.
Texas A M expressed concern with the proposed extension of WPR coverageto building custodians (Docket #62125A, C-004). The University believes that it mighthave to survey all of its buildings for asbestos in order to comply with the requirements todetermine the presence, location, and quantity of asbestos-containing material (ACM) andpresumed asbestos-containing material (PACM) in custodial work sites, post signs at theentrances to mechanical rooms containing asbestos, and provide information and training tocustodians who work in areas that contain asbestos. EPA recommends that employers conductfull building inspections, using accredited inspectors, to determine the presence, location, andquantity of asbestos in their buildings. However, as discussed in the preamble to the proposedamendments, State and local government employers may comply with these requirementsmerely by identifying three types of building materials (thermal system insulation, surfacingmaterial, and resilient floor covering) and assuming that these materials contain asbestos, so longas there is no specific reason to suspect that other materials in the work site or mechanical roomcontain asbestos (Ref. 1, p. 24810).
Texas A M also believes that annual training for custodians, and theassociated recordkeeping, is "excessive" and "cumbersome " foremployers with large numbers of custodial employees. However, EPA believes that the annualeducational requirements for custodians are minimal, consisting of at least 2 hours of awarenesstraining on topics such as the health effects of asbestos, how to work around asbestos-containingmaterials 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 associatedrecordkeeping costs (Ref. 5, pp. 4-29). EPA continues to believe that the benefits of protectingcustodians under this regulation, including the 58 estimated cancer cases avoided andconsistency 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 bythis comment, because the only place that EPA uses a similar term ("asbestos abatementworkers") is in Unit I.B.1. of the Asbestos Model Accreditation Plan (MAP), 40 CFRpart 763, subpart E, appendix C. The proposed amendments to the WPR did not suggest thatcustodians be required to complete the 4-day training course for workers under Unit I.B.1. ofthe 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) expressedstrong support for consistency between EPA and OSHA rules and standards, and reminded EPAthat OSHA permits Certified Industrial Hygienists to perform certain functions required by theregulations (Docket #62125A, C-002). AIHA indicated that OSHA permits CIHs to collectsamples to rebut the presumption that surfacing materials and thermal system insulation containasbestos. AIHA also indicated that OSHA permits CIHs to serve as competent persons undercertain circumstances. EPA intends to be as consistent with the OSHA asbestos regulations aspossible. However, for projects in schools or in public or commercial buildings, EPA's MAPrequires persons who collect samples to be accredited as inspectors and persons who superviseasbestos response actions to be accredited as supervisors. (TSCA section 206(a), Units I.A. andI.B. of the MAP). Thus, CIHs collecting samples in schools or in public or commercialbuildings would also have to be MAP accredited inspectors, and CIHs supervising asbestosresponse actions in such buildings would have to be MAP accredited supervisors. Changes to theMAP are outside the scope of this rulemaking, but EPA will consider the issues raised by AIHAin any future actions to amend the MAP.
AIHA also noted in its comments that OSHA is more inclusive than EPA withrespect to laboratory accreditation programs. OSHA requires laboratories that analyze bulksamples of presumed asbestos-containing material (surfacing materials and thermal systeminsulation) to participate in a nationally recognized testing program (Ref. 4, pp. 41062, 41141). TheAIHA industrial hygiene laboratory accreditation program is one of the programs specificallymentioned by OSHA. EPA will also recognize AIHA laboratory accreditation for laboratoriesthat analyze bulk samples under the WPR, unless those samples are collected in a schoolbuilding that is regulated under the Asbestos Hazard Emergency Response Act (AHERA), TitleII 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 underthe authority of a local education agency to be accredited by the National Institute of Standardsand Technology (NIST). Therefore, EPA may not accept AIHA accreditation for laboratoriesthat analyze samples collected from school buildings.
The American Society of Safety Engineers (ASSE) strongly endorsed EPA'sproposal to protect State and local government employees from the health risks of exposure toasbestos to the same extent as private sector employees. ASSE and the Board of Certified SafetyProfessionals (BCSP), however, both commented that Certified Safety Professionals (CSPs), byvirtue 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 thepreamble to the proposal should have recognized CSPs as qualified to collect bulk samples ofsurfacing materials and thermal system insulation (Ref. 1, p. 24809) and to determine, in certaincircumstances, 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 contains guidance for OSHA compliance inspectors on the asbestos standards. Appendix C,"Questions and Answers on the Occupational Exposure to Asbestos Standard," toCPL 2-2.63 says that an employer should not be cited for a violation of the asbestos standards ifa CSP was used to evaluate alternate control methods for Class I work, so long as a review of theparticular 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 forClass I projects. However, OSHA does not permit CSPs to collect bulk samples of thermalsystem insulation or surfacing material for the purpose of rebutting the presumption that thesematerials contain asbestos (Ref. 6). EPA will defer to OSHA's expertise in this matter, andmaintain consistency by requiring samples to be taken by either a MAP-accredited inspector or aCIH.
The comments from the Resilient Floor Covering Institute (RFCI) expressed concernthat, because EPA had not expressly adopted OSHA's interpretations of the Asbestos Standardsas set out in OSHA Instruction CPL 2-2.63, EPA would not apply the WPR consistent with theOSHA asbestos standards, particularly with regard to removal and/or replacement of resilientfloor covering materials (Docket #62125A, C-008). Specifically, RFCI pointed out thatAppendix D to OSHA's CPL 2-2.63 includes the terms of a Settlement Agreement between theflooring industry and OSHA on the application of the OSHA asbestos standards to resilient floorcovering. Although RFCI recommended that EPA specifically cite OSHA Instruction CPL 2-2.63in 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) supportedconsistency between the OSHA and EPA asbestos regulations, but objected to thecharacterization of the risk to State and local government employees as"unreasonable" (Docket #62125A, C-006). In support of this comment, AIAimplied that workers would be exposed only to chrysotile asbestos and stated that EPA's (andOSHA's) asbestos risk assessments were outdated, and that the latest scientific findings indicatethat the risk from products made with chrysotile asbestos is actually much lower than predictedby current EPA and OSHA risk assessments. However, AIA did not submit any additionalinformation to support this claim. The issue of the risk from chrysotile asbestos has been raisedand considered in previous EPA and OSHA rulemakings, and both Agencies have declined todistinguish 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 PhaseoutRule (Ref. 3, pp. 29470-29471) and the discussion in the preamble to the 1994 final OSHAAsbestos Standards (Ref. 4, pp. 40978, 40979). Furthermore, EPA reviewed the literature availablein 1999 on asbestos hazards in order to assist in the preparation of the United States third-partysubmissions to a dispute resolution panel of the World Trade Organization regarding the Frenchasbestos ban (Refs. 7-8). EPA found nothing during this literature review that persuasivelycontradicted the risk assessment approach followed by EPA and OSHA.
The balance of the comments expressed only support for the proposal and containedno substantive comments. These comments were received from the Laborers' InternationalUnion of North America, the International Brotherhood of Teamsters, the Safe BuildingsAlliance, 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 allfuture amendments. If you are a State or local government employer whose employees performasbestos abatement activities, you must now comply with the OSHA Asbestos ConstructionStandard. This rule will effectively lower the permissible exposure limit (PEL) for theseemployees to 0.1 fibers per cubic centimeter (f/cc) and incorporate additional hazardcommunication and respiratory protection program requirements.
In addition, this rule extends the requirements of the OSHA Asbestos ConstructionStandard to State and local government employees who perform any construction activitiesidentified in 29 CFR 1926.1101(a), including demolition, alteration, repair, maintenance,renovation, installation of asbestos-containing products, and housekeeping. For general custodialactivities not associated with construction projects, this rule requires State and local governmentemployers to comply with the Asbestos General Industry Standard in 29 CFR 1910.1001.
This rule also applies the current requirements of the OSHA General IndustryStandard, 29 CFR 1910.1001, to State and local government employers of employees engaged inautomotive brake and clutch repair work. If your employees repair, clean, or replaceasbestos-containing clutch plates and brake pads, shoes, and linings, or removeasbestos-containing residue from brake drums or clutch housings, you must comply with theOSHA standards in 29 CFR 1910.1001.
This rule amends the Asbestos-in-Schools Rule, 40 CFR part 763, subpart E, toremove the provisions in 40 CFR 763.91(b) that extend WPR protections to employees of publicschool systems when they are performing operations, maintenance and repair (OM) 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 agencyemployer in a State without an OSHA-approved State plan, and your employees perform OMactivities, you will need to follow the requirements of the WPR.
III. References
1. U.S. Environmental Protection Agency (USEPA), Office of Pollution Preventionand 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 HealthAdministration (OSHA). Instruction CPL 2-2.63 (November 3, 1995), revised and renamedDirective CPL 2-2.63 (January 9, 1996).
3. USEPA, OPPT. Asbestos Manufacture, Importation, Processing, and Distributionin 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).
5. USEPA, OPPT. Final Asbestos Worker Protection Rule Economic Analysis (September 25, 2000).
6. USDOL, OSHA. Letter to Richard L. Barcum re: procedures for demonstratingthat presumed asbestos-containing material does not contain more than 1 percent asbestos (July1, 1998).
7. U.S. Department of Commerce (USDOC), U.S. Trade Representative (USTR).Third Party Written Submission of the United States, European Communities- MeasuresAffecting Asbestos and Products Containing Asbestos (May 28, 1999).
8. USDOC, USTR. United States Responses to Questions Posed by the EuropeanCommunities, European Communities-Measures Affecting Asbestos and Products ContainingAsbestos (June 21, 1999).
9. USDOL, OSHA. Letter to the Honorable Jay Johnson re: Occupational Safety andHealth 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 regulatoryaction" subject to review by the Office of Management and Budget (OMB), because thisaction is not likely to result in a rule that meets any of the criteria for a "significantregulatory 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 tocost $63.34 million in the first year of the rule and then decline annually thereafter. The analysisis contained in a document entitled "Final Asbestos Worker Protection Rule EconomicAnalysis" (Ref. 5). This document is available as a part of the public version of theofficial record for this action (instructions for accessing this document are contained in UnitI.B.).
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), as amended by theSmall 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 significanteconomic impact on a substantial number of small entities. The factual basis for EPA'sdetermination is presented in the small entity impact analysis prepared as part of the EconomicAnalysis for the rule (Ref. 5), and is briefly summarized here. For purposes ofanalyzing potential impact on small entities, EPA used the definition for small entities in RFAsection 601. Under RFA section 601, "small entity" is defined as:
1. A small business that meets Small Business Administration size standards codified at13 CFR 121.201.
2. A small governmental jurisdiction that is a government of a city, county, town, schooldistrict, or special district with a population of less than 50,000.
3. A small organization that is any not-for-profit enterprise which is independentlyowned and operated and is not dominant in its field.
Of the three categories of small entities, only small governmental jurisdictions areaffected by this final rule. As such, EPA's analysis of potential small entity impacts assesses thepotential impacts on small governmental jurisdictions.
Based on the definition of "small governmental jurisdiction," noState-levelgovernment covered by the asbestos WPR can be considered small. Therefore, the smallgovernment 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 Stateswithout approved OSHA State plans by imposing incremental compliance costs forasbestos-related maintenance, renovation, and brake and clutch repair. There are 24,495 smallgovernmental jurisdictions that are potentially impacted by the asbestos WPR. However, theestimated amounts of the impact are all extremely low. In each of the States, the impact for allsmall 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 availablerevenues is estimated to be 0.051%. For small local governments as a whole, compliance costsassociated 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 impacton small government entities.
Small school districts are defined as school districts serving a resident population of lessthan 50,000. In the 27 covered States, there are 17,846 small school districts that are potentiallyimpacted by the asbestos WPR. The estimated impact of compliance costs on all small schooldistricts is estimated to be less than 0.01% of available revenues. The largest impact is estimated forMississippi where compliance costs as a percent of available revenues are estimated to equal0.013%. The Agency has therefore concluded that the asbestos WPR will not have a significanteffect on the revenues of small school districts.
Additional details regarding EPA's basis for this certification are presented in the FinalEconomic Analysis (Ref. 5), which is included in the public version of the official record for thisaction. 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 OMBfor review and approval pursuant to the PRA and OMB implementing regulations at 5 CFR part1320. The burden and costs related to the information collection requirements contained in thisrule are described in an Information Collection Request (ICR). This ICR proposes toamend 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 isidentified as EPA ICR No. 1246.08, is available electronically athttp://www.epa.gov/opperid1/icr.htm, or by e-mailing a request tofarmer.sandy@epa.gov. You may also request a copy by mail from Sandy Farmer,Collection Strategies Division, Environmental Protection Agency (2822), 1200 PennsylvaniaAve., NW., Washington, DC 20460, or by calling (202) 260-2740. The informationrequirements are not enforceable until OMB approves them.
This amendment to the WPR requires employers to collect, disseminate, and maintaininformation relating to employee asbestos exposures, respiratory protection, medicalsurveillance, and training. The records maintained as a result of this information collection willprovide EPA with the data necessary for effective enforcement of the WPR.
The public reporting burden for this collection of information is estimated to average, onan 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 ofinformation. EPA estimates that 25,312 respondents would incur these burdens, for a totalannual respondent burden of 436,289 hours.
As defined by the PRA and 5 CFR 1230.3(b), "burden" means the totaltime, effort, or financial resources expended by persons to generate, maintain, retain, or discloseor provide information to or for a Federal agency. This includes the time needed to reviewinstructions; develop, acquire, install, and utilize technology and systems for the purposes ofcollecting, validating, and verifying information, processing and maintaining information, anddisclosing and providing information; adjust the existing ways to comply with any previouslyapplicable instructions and requirements; train personnel to be able to respond to a collection ofinformation; search data sources; complete and review the collection of information; andtransmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to respond to acollection of information unless it displays a currently valid OMB control number. The OMBcontrol numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. TheOMB control number(s) for the information collection requirements in this rule will be listed inan amendment to 40 CFR part 9 in a subsequent Federal Register documentafter OMB approves the ICR.
D. Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, (UMRA), PublicLaw 104-4, EPA has determined that this rule does not contain a Federal mandate thatmay result in expenditures of $100 million or more for State, local, and tribal governments, inthe 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. Inaddition, EPA has determined that this rule will not significantly or uniquely affect smallgovernments. For small local governments as a whole, compliance costs associated with theWPR represent 0.023% of revenues assumed to be available for compliance. Moreover, theimpact of compliance costs on small school districts as a whole would be less than 0.01% of availablerevenues. 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 timelyinput by State and local government officials in the development of regulatory policies that havefederalism implications." "Policies that have federalism implications" isdefined in the Executive Order to include regulations that have "substantial direct effectson the States, on the relationship between the national government and the States, or on thedistribution of power and responsibilities among the various levels of government."
Under section 6 of Executive Order 13132, EPA may not issue a regulation that hasfederalism implications, that imposes substantial direct compliance costs, and that is not requiredby statute, unless the Federal government provides the funds necessary to pay the directcompliance costs incurred by State and local governments, or EPA consults with State and localgovernment officials early in the process of developing the proposed regulation. EPA also maynot issue a regulation that has federalism implications and that preempts State law, unless theAgency consults with State and local government officials early in the process of developing theproposed regulation.
Section 4 of the Executive Order contains additional requirements for rules that preemptState or local law, even if those rules do not have federalism implications (i.e., the rules will nothave substantial direct effects on the States, on the relationship between the national governmentand the States, or on the distribution of power and responsibilities among the various levels ofgovernment). Those requirements include providing State and local government officials noticeand an opportunity for appropriate participation in the development of the regulation. If thepreemption is not based on express or implied statutory authority, EPA also must consult, to theextent practicable, with appropriate State and local government officials regarding the conflictbetween State law and federally protected interests within the agency's area of regulatoryresponsibility.
This final rule does not have federalism implications. This rule amends the existing WPRto cover additional asbestos-related activities and to conform the WPR to the OSHA AsbestosStandards. The changes do not result in a significant intergovernmental mandate under theUMRA, and thus, EPA concludes that the rule does not impose substantial direct compliancecosts. Nor does the rule substantially affect the relationship between the national governmentand the States, or the distribution of power and responsibilities among the various levels ofgovernment. Those relationships have already been established under the existing WPR, andthese amendments do not alter them. Thus, the requirements of section 6 of the Executive Orderdo not apply to this rule.
This rule preempts State and local law in accordance with TSCA section 18(a)(2)(B). Bypublishing and inviting comment on the proposed rule, EPA provided State and localgovernment officials notice and an opportunity for appropriate participation. Thus, EPAcomplied 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 withIndian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not issue a regulationthat is not required by statute, that significantly or uniquely affects the communities of Indiantribal governments, and that imposes substantial direct compliance costs on those communities,unless the Federal government provides the funds necessary to pay the direct compliance costsincurred by the tribal governments, or EPA consults with those governments. This rule does notsignificantly or uniquely affect the communities of Indian tribal governments, nor does it imposesubstantial direct compliance costs on such communities. Since the OSHA Asbestos Standardscover 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 thisrule.
G. Environmental Justice
Pursuant to Executive Order 12898, entitled Federal Actions to AddressEnvironmental Justice in Minority Populations and Low-Income Populations (59 FR 7629,February 16, 1994), the Agency considered environmental justice-related issues with regard tothe potential impacts of this action on the environmental and health conditions in minority andlow-income populations. Many of the employees who will benefit from the protections of thisrule are members of minority and low-income populations. By providing protection forcurrently unprotected State and local government building maintenance and custodial employeesand their families, this rule addresses the lesser levels of protection in the workplace providedunder federal regulations to minority and low-income populations among State and localgovernment employees. In other words, the rule does not impose disproportionatelyhigh- and adverse-human health or environmental effects on minority or low-incomepopulations, but actually decreases such effects.
As described in the proposal (Ref. 1, p. 24829), public participation is an importantenvironmental justice concern. EPA received comments on the proposed rule fromorganizations representing State and local government employees, but no requests for aninformal public hearing on the proposed rule. (See Unit II.A.1).
H. Children's Health
Executive Order 13045, entitled Protection of Children from EnvironmentalHealth Risks and Safety Risks (62 FR 19885, April 23, 1997), does not apply to this finalrule because it is not "economically significant" as defined under ExecutiveOrder 12866. However, it is EPA's policy to consistently and explicitly consider risks to infantsand children in all risk assessments generated during its decision making process, including thesetting of standards to protect public health and the environment.
EPA has determined that children are physiologically more vulnerable to asbestosexposures than adults, and that this rule will prevent approximately 65.65 cancer cases amongpersons with childhood exposures to asbestos from school buildings. EPA also expects this ruleto result in other benefits associated with lower asbestos exposures, such as a reduced incidenceof non-cancerous health effects such as asbestosis, pleural plaques, and pleural effusion. EPAexpects the rule to substantially benefit children by reducing the incidental exposures childrenface while attending affected schools and when at home from workers' clothing. By reducingambient asbestos concentrations in school buildings, this rule will help protect children from thedisproportionate 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 usevoluntary consensus standards in its regulatory activities unless to do so would be inconsistentwith applicable law or otherwise impractical. Voluntary consensus standards are technicalstandards (e.g., materials specifications, test methods, sampling procedures, and businesspractices) that are developed or adopted by voluntary consensus standards bodies. The NTTAAdirects EPA to provide Congress, through OMB, explanations when the Agency decides not touse 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 regardingalternative approaches to technical standards. One of EPA's primary goals in finalizing theseamendments to the WPR is to achieve consistency with the OSHA Asbestos Standards. EPA hasdetermined that having different standards for public and private sector workers is inefficientand unfair, and that EPA should generally defer to OSHA's expertise in the matter of workerprotection. Therefore, EPA finds that any voluntary consensus standard which is inconsistentwith 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 GovernmentalActions 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 Avoidanceof 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 andambiguity, 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 bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before arule may take effect, the Agency promulgating the rule must submit a rule report, which includes acopy of the rule, to each House of the Congress and the Comptroller General of the UnitedStates. 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 Statesprior 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 andrecordkeeping 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 eitherthe OSHA Asbestos Construction Standard at 29 CFR 1926.1101, or theAsbestos Worker Protection Rule at 40 CFR 763.120, whichever isapplicable.
§ 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 thissubpart?
This subpart protects certain State and local government employees who are notprotected by the Asbestos Standards of the Occupational Safety and Health Administration(OSHA). This subpart applies the OSHA Asbestos Standards in 29 CFR 1910.1001 and 29 CFR1926.1101 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 Stateasbestos standard that OSHA has approved under section 18 of the Occupational Safety andHealth Act or a State asbestos plan that EPA has exempted from the requirements of this subpartunder § 763.123, you must follow the requirements of this subpart to protect youremployees from occupational exposure to asbestos.
§ 763.122 What does this subpart requireme 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 29CFR 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 brakepads, shoes, and linings, or removal of asbestos-containing residue from brake drums or clutchhousings, you must comply with the OSHA standards in 29 CFR 1910.1001.
§ 763.123 May a State implement its ownasbestos worker protection plan?
This section describes the process under which a State may be exempted from therequirements of this subpart.
(a) States seeking an exemption . If your State wishes to implement itsown asbestos worker protection plan, rather than complying with the requirements of thissubpart, 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 anexemption from the requirements of this subpart, your State must send to the Director of EPA'sOffice of Pollution Prevention and Toxics (OPPT) a copy of its asbestos worker protectionregulations and a detailed explanation of how your State's asbestos worker protection plan meetsthe requirements of TSCA section 18 (15 U.S.C. 2617).
(2) What action will EPA take on my State's application for anexemption ? EPA will review your State's application and make a preliminary determinationwhether your State's asbestos worker protection plan meets the requirements of TSCA section18.
(i) If EPA's preliminary determination is that your State's plan does meet therequirements of TSCA section 18, EPA will initiate a rulemaking, including an opportunity forpublic comment, to exempt your State from the requirements of this subpart. After consideringany 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 therequirements of TSCA section 18, EPA will notify your State in writing and will give your Statea reasonable opportunity to respond to that determination.
(iii) If EPA does not grant your State an exemption, then the State and localgovernment employers in your State are subject to the requirements of this subpart.
(b) States that have been granted an exemption . If EPA has exemptedyourState from the requirements of this subpart, your State must update its asbestos workerprotection regulations as necessary to implement changes to meet the requirements of thissubpart, 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 anamendment to its exemption, your State must send to the Director of OPPT a copy of its updatedasbestos worker protection regulations and a detailed explanation of how your State's updatedasbestos worker protection plan meets the requirements of TSCA section 18. Your State mustsubmit its application for an amendment within 6 months of the effective date of any changes tothe requirements of this subpart, or within a reasonable time agreed upon by your State andOPPT.
(2) What action will EPA take on my State's application for anamendment ? EPA will review your State's application for an amendment and make apreliminary determination whether your State's updated asbestos worker protection plan meetsthe requirements of TSCA section 18.
(i) If EPA determines that the updated State plan does meet the requirements ofTSCA section 18, EPA will issue your State an amended exemption.
(ii) If EPA determines that the updated State plan does not meet the requirements ofTSCA section 18, EPA will notify your State in writing and will give your State a reasonableopportunity to respond to that determination.
(iii) If EPA does not grant your State an amended exemption, or if your State doesnot submit a timely request for amended exemption, then the State and local governmentemployers 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