65 FR 82 pgs. 24806-24831 - Asbestos Worker Protection
Type: PRORULEVolume: 65Number: 82Pages: 24806 - 24831
Docket number: [OPPTS-62125A; FRL-6493-5]
FR document: [FR Doc. 00-10517 Filed 4-26-00; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 763
[OPPTS-62125A; FRL-6493-5]
RIN 2070-AC66
Asbestos Worker Protection
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Proposed rule.
SUMMARY:
EPA proposes to modify a previously published proposed rule toamend the Asbestos Worker Protection Rule (WPR). This modified proposal would protect Stateand local government employees from the health risks of exposure to asbestos to the same extentas private sector workers by adopting for such employees the Asbestos Standards of theOccupational Safety and Health Administration (OSHA). The modified proposal would expand the WPR's coverage to State and local government employees who areperforming construction work, custodial work, and automotive brake and clutch repair work (theWPR now applies solely to asbestos abatement projects, a subset of construction work). The proposed rule would cross-reference the OSHA Asbestos Standards forConstruction and for General Industry, so that amendments to these OSHA standards are directlyand equally effective for employees covered by the WPR. It would also amend the Asbestos-in-Schools Rule to provide coverage under the WPR for employees of public local educationagencies who perform operations, maintenance and repair activities. EPA is proposing this ruleunder section 6 of the Toxic Substances Control Act (TSCA).
DATES:
Comments, identified by docket control number OPPTS-62125A, must be received on or before June 26, 2000. Requests that EPA hold an informal public hearing must be received on or before June 26, 2000. If a hearing is requested, EPA will publish a notice announcing the informal public hearing in the FederalRegister .
ADDRESSES:
Comments may be submitted by mail, electronically, or in person.Please follow the detailed instructions for each method as provided in Unit I. of the SUPPLEMENTARY INFORMATION . To ensure proper receipt by EPA, it is imperative thatyou identify docket control number OPPTS-62125A in the subject line on the first page of yourresponse.
FOR FURTHER INFORMATION CONTACT:
For general informationcontact: Barbara Cunningham, Director, Office of Program Management and Evaluation, Office of Pollution Prevention and Toxics (7401), Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW, Washington, DC 20460; telephone number: (202) 554-1404; e-mail address: 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, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW, Washington,DC 20460; telephone number: (202) 260-1537; fax number: (202) 260-1724; e-mail address:fraleigh.cindy@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by this action if you are a State or local 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 affectedentities |
|---|---|---|
| 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. |
| Publicadministration | 92 | State or local government employers not subject to an OSHA-approved State asbestos plan or a State asbestos worker protectionplan that EPA has determined isexempt from the requirements of theWPR. |
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 this tablecould also be affected. The North American Industrial Classification System (NAICS) codes areprovided to assist you and others in determining whether or not this action might apply to certainentities. 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 OtherRelated Documents?
1. Electronically . You may obtain electronic copies of this document, andcertain other related documents from the EPA Internet Home Page at http://www.epa.gov/. Toaccess this document, on the Home Page select "Laws and Regulations" and then look up theentry for this document under the " Federal Register -Environmental Documents." Youcan 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 ofPollution Prevention and Toxics at http://www.epa.gov/asbestos/.
2. In person . The Agency has established an official record for this actionunder docket control number OPPTS-62125A. The official record consists of the documentsspecifically referenced in this action, any public comments received during an applicable commentperiod, and other information related to this action, including any information claimed asConfidential Business Information (CBI). This official record includes the documents that arephysically located in the docket, as well as the documents that are referenced in those documents.The public version of the official record does not include any information claimed as CBI. Thepublic version of the official record, which includes printed, paper versions of any electroniccomments submitted during an applicable comment period, is available for inspection in the TSCANonconfidential Information Center (NCIC), North East Mall Rm. B-607, Waterside Mall, 401M St., SW., Washington, DC 20460, from noon to 4 p.m., Monday through Friday, excludinglegal holidays. The NCIC telephone number is (202) 260-7099.
C. How and to Whom Do I Submit Comments?
You may submit comments through the mail, in person, or electronically. To ensureproper receipt by EPA, it is imperative that you identify docket control number OPPTS-62125Ain the subject line on the first page of your response.
1. By mail . Submit comments to: Document Control Office (7407), Officeof Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, Ariel Rios Bldg.,1200 Pennsylvania Ave., NW, Washington, DC 20460.
2. In person or by courier . Deliver comments to: OPPT Document ControlOffice (DCO) in East Tower Rm. G-099, Waterside Mall, 401 M St., SW., Washington, DC.The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. Thetelephone number for the DCO is (202) 260-7093.
3. Electronically . You may submit your comments electronically by e-mailto: "oppt-docket@epa.gov," or you can submit a computer disk as described above. Do notsubmit any information electronically that you consider to be CBI. Avoid the use of specialcharacters and any form of encryption. Electronic submissions will be accepted in WordPerfect6.1/8.0 or ASCII file format. All comments in electronic form must be identified by docketcontrol number OPPTS-62125A. Electronic comments may also be filed online at many FederalDepository Libraries.
D. How Should I Handle CBI that I Want to Submit to the Agency?
Do not submit any information electronically that you consider to be CBI. You mayclaim information that you submit to EPA in response to this document as CBI by marking anypart or all of that information as CBI. Information so marked will not be disclosed except inaccordance with procedures set forth in 40 CFR part 2. In addition to one complete version ofthe comment that includes any information claimed as CBI, a copy of the comment that does notcontain the information claimed as CBI must be submitted for inclusion in the public version ofthe official record. Information not marked confidential will be included in the public version ofthe official record without prior notice. If you have any questions about CBI or the proceduresfor claiming CBI, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .
E. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that supportyour views.
4. If you estimate potential burden or costs, explain how you arrived at the estimatethat you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the proposed rule.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket control numberassigned to this action in the subject line on the first page of your response. You may alsoprovide the name, date, and Federal Register citation.
F. How and to Whom Do I Submit an Informal Public Hearing Request?
You may request that EPA hold an informal public hearing, at which interested persons or organizations may present oral comments, by contacting the technical person listed under FOR FURTHER INFORMATION CONTACT . Requests for an informal hearing must be received on or before June 26, 2000. If EPA decides to hold an informal hearing, it will publish a notice in the Federal Register announcing the time, place, and date of the hearing, explaining how interested persons or organizations can request to participate in the hearing, and describing the hearing procedures. EPA conducts informal hearings in accordance with the procedures in 40 CFR part 750, subpart A.
II. Background
OSHA has published comprehensive requirements for protecting against the healtheffects of exposure to asbestos in the workplace. However, these requirements apply toemployers in the private sector. OSHA has never had the authority to impose worker protectionmeasures directly on State and local government employers. While a State has the authority toprotect State and local government employees under a State plan approved by OSHA undersection 18 of the Occupational Safety and Health Act (OSH Act), 27 States do not do so.(Information regarding OSHA-approved State plans can be found athttp://www.osha-slc.gov/fso/osp.) EPA's WPR, 40 CFR part 763,subpart G, protects State and local government workers in States that do not have OSHA-approved State plans.
EPA determined when it first proposed the Worker Protection Rule in 1985 thatasbestos exposures pose an unreasonable risk of harm to unprotected State and local governmentemployees who conduct asbestos abatement projects, and that EPA has the authority under TSCA section 6 to establish asbestos worker protection standards for these employees (Ref.1). In finalizing that proposal, EPA considered several options for protecting these workers fromthe risks of asbestos, including providing public information and technical assistance; deferring tothe States; promulgating a regulation that provided greater protection than the then-currentOSHA Asbestos Standard; and promulgating a regulation that followed the OSHA Standard tomaintain consistency among Federal programs. EPA selected the last option, and implementedthis selection in the WPR by setting out the OSHA requirements in full at 40 CFR part 763,subpart G (Ref. 2). In keeping with its policy of maintaining a consistent level of protectionbetween the WPR and the OSHA Asbestos Standard, EPA amended the WPR in 1987 toincorporate recent changes to the Asbestos Standard that lowered the permissible exposure limit(PEL) to 0.2 fibers per cubic centimeter (f/cc) and that instituted new requirements forengineering and work practice controls and worker training (Ref. 3).
In response to further revisions to the OSHA Asbestos Standard forConstruction (OSHA Construction Standard) (Refs. 4 through 6), EPA published proposedamendments to the WPR in the Federal Register of November 1, 1994 (Ref. 7). EPA's 1994 proposal would have made the WPR consistent with the 1990 version of the OSHA Construction Standards, and would havebroadened the scope of the WPR to cover State and local government employees engaged in anyform of construction work and in automotive brake and clutch repair. Shortly before EPApublished its 1994 proposal, OSHA published major revisions to the OSHAConstruction Standard and the OSHA Asbestos Standard for General Industry (OSHA GeneralIndustry Standard) (Ref. 8). EPA responded to OSHA's new revisions by stating in its proposedamendments to the WPR that it intended to publish a separate rule to make the WPR consistentwith OSHA's 1994 changes. Commenters on the 1994 EPA proposal generally disfavored thisapproach, suggesting that EPA propose all the changes necessary for consistency between theWPR and the OSHA Construction Standard in one rulemaking.
EPA agrees with the commenters and is therefore modifying its 1994 proposal tomake the WPR consistent with the current OSHA Construction Standard, 29 CFR 1926.1101,including all revisions to that standard from 1994 through the present (Refs. 9 through 16). Thisproposal would also apply the current requirements of the OSHA General Industry Standard, 29CFR 1910.1001, to State and local government employers of employees engaged in brake andclutch repair work, as did EPA's 1994 proposed rule. In addition, this proposal would extend therequirements of the General Industry Standard to general custodial activities that are notassociated with construction projects.
In developing this proposal, EPA considered the comments submitted on its 1994proposal and incorporated them where appropriate. A Response to Comments Documentaddresses these comments more fully (Ref. 17). It is included in the public version of the officialrecord in the NCIC Docket described in Unit I.B.2.
A. What Action is the Agency Taking?
EPA is proposing to implement its long-standing policy of consistency betweenEPA's WPR and the OSHA Asbestos Standards by incorporating the 1994 revisions to theOSHA General Industry and Construction Standards into the WPR. Currently, employeesworking for some State and local governments are exposed to greater asbestos-related hazards inthe work place than are employees working for private employers or other State and localgovernments. These additional hazards are not trivial, but instead expose these State and localgovernment employees to meaningful additional risks that their colleagues working elsewhereare not asked to face. Fairness and equity dictate the same level of protection for all personswho work with asbestos-containing material (ACM), whether those persons are employed by theprivate sector or by a State or local government. Currently, all private sector workers, as well asState and local government employees in the 23 States that have OSHA-approved State plans,are protected by the more stringent OSHA regulations. The amendments in this proposed rulewould create equity for the remaining State and local government workers by making the new,more stringent, OSHA requirements applicable to those workers.
This proposal would create that equity for the present and for the future byamending the WPR to cross-reference the OSHA General Industry and Construction Standardsset out at 29 CFR 1910.1001 and 29 CFR 1926.1101 respectively, rather than by setting out theOSHA requirements in full at 40 CFR part 763, subpart G. Cross-referencing the OSHAAsbestos Standards in the WPR would mean that amendments to the OSHA General Industry orConstruction Standard would have the effect of changing the requirements under the WPR aswell. As such, State and local government employees would benefit from new OSHA provisionsprotecting workers against the risks of asbestos at the same time as private sector employees.Maintaining the same requirements for all workers dealing with asbestos would also avoidpotential confusion and mistakes by allowing all workers and their supervisors to learn a singlestandard and know the requirements that apply to their work without additional training if suchworkers or supervisors move from the public sector to the private sector or vice-versa.
EPA invites comment on its policy that all State and local government employees beprotected from the health risks of exposure to asbestos to the same extent as private sectorworkers. EPA also invites comment on whether it should use cross-referencing to achieveequitable protection for State and local government employees. Cross-referencing has theadvantage of ensuring that changes in workplace standards take effect at the same time forboth groups of workers. Without it, revisions to the OSHA Asbestos Standards could not takeeffect for State and local government employees until EPA had proposed and finalizedamendments incorporating those revisions into the WPR. This would have the undesirable effectof creating a period in which the requirements of the WPR and of the OSHA Asbestos Standardswould be inconsistent. Cross-referencing also has the advantage of deferring to OSHA's singularexpertise in establishing standards in the field of worker protection.
It is within EPA's statutory authority and substantive expertise to find, under TSCAsection 6, that the current amount of exposure to asbestos in State and local governmentworkplaces during use or disposal in construction, custodial, and brake and clutch repair workpresents an unreasonable risk of injury to human health (see Unit II.B.1. for adetailed discussion of the basis for this finding), and to establish a policy of equitable protectionfrom asbestos risks for State and local government employees. Moreover, TSCA section 9(d)requires EPA to consult and coordinate with other appropriate Federal agencies so as to achievethe maximum enforcement of TSCA while imposing the least burdens of duplicative requirementson regulated entities. EPA has therefore chosen to defer to OSHA's expertise and experience insetting workplace standards to protect workers from the risks of asbestos.
OSHA may, in the future, revise the Asbestos Standards. Cross-referencing wouldeliminate the need for a separate EPA rulemaking to amend the WPR, but State and localgovernments would still have the opportunity to participate in the rulemaking process. State andlocal governments with comments on specific worker protection measures could submit thosecomments directly to OSHA. State and local governments could also address comments to EPAasking that the Agency not adopt any new OSHA standard by filing a petition under TSCAsection 21 requesting that EPA amend 40 CFR part 763, subpart G, to revise the cross-referencing structure. The petition should explain why EPA should depart from its longstandingpolicy of consistency and equity between the OSHA Asbestos Standards and the WPR, andshould address EPA's rulemaking obligations under TSCA sections 6 and 9(d). In this context, adoption of the OSHA standard with the safeguard of the TSCA section 21petition process allows the Agency to comply with the congressional intent evidenced in TSCA section 9 that EPA coordinate its activities under TSCA with the activities of other Federalagencies. When a TSCA section 21 petition is filed, EPA must respond within 90 days, either grantingthe petition and promptly initiating a rulemaking, or denying the petition and explaining itsreasons for the denial.
Under the cross-referencing structure of this proposal, if you are a State or localgovernment employer whose employees perform the construction and building maintenanceactivities identified in 29 CFR 1926.1101(a), and associated custodial work, you must complywith the OSHA Construction Standard, 29 CFR 1926.1101; if you are a State or localgovernment employer whose employees perform general custodial work or repair, cleaning, orreplacement of asbestos-containing clutch plates and brake pads, shoes, and linings, or removal ofasbestos-containing residue from brake drums or clutch housings, you must comply with theOSHA General Industry Standard, 29 CFR 1910.1001. This proposal would effectively alterState and local government employer obligations as follows:
1. Expanded scope of coverage . The current (1987) WPR applies solely tofriable asbestos abatement projects. EPA has determined that there are substantial numbers ofState and local government employees performing other construction, building maintenance,custodial, and brake and clutch repair activities. EPA has also determined that these employees will beexposed to unacceptably high levels of airborne asbestos fibers if they are not protected by anOSHA-approved State plan. See the Proposed WPR EconomicAnalysis (Economic Analysis) (Ref. 18). Therefore, as in 1994, EPA is proposing to expand thescope of the WPR to include all construction activities and custodial work involving ACM. Thismeans that State and local government employees who remove non-friable ACM from buildingsor perform building operations and maintenance tasks would be covered by the WPR. Inaddition, EPA is proposing to expand the scope of the WPR to include all brake and clutchrepair work.
2. Specific differences between the 1994 OSHA Standards and the current WPR -a. Classification scheme for asbestos construction projects . In general, all of the requirements of the 1986 OSHA Construction Standard applied to all of the constructionactivities covered by the Standard. Projects of small-scale, short-duration were exempted fromseveral of the provisions of the 1986 OSHA Standard, including those for negative pressureenclosures, competent person supervision, and decontamination areas. The current WPRlikewise exempts small-scale, short-duration friable asbestos abatement projects from theserequirements.
This proposed rule would amend the current WPR by cross-referencing the OSHA Construction Standard, which creates a classification scheme for all asbestos constructionprojects and related custodial activities except for the installation of new asbestos-containingmaterials (29 CFR 1926.1101(b)). This classification scheme reflects the fact that manydifferent kinds of asbestos projects are regulated by the OSHA Construction Standard, andworker protection needs may vary according to the type of project. The revised OSHAConstruction Standard establishes the following four classes of asbestos projects, in descendingorder of risk:
• Class I projects, involving removal of asbestos-containing, or presumedasbestos-containing, thermal system insulation (TSI) and surfacing materials . Surfacingmaterials are materials that are sprayed or troweled or otherwise applied to surfaces. Thesematerials include, for example, decorative plaster, acoustical material on decking, andfireproofing on structural members. TSI includes material applied to pipes, boilers, tanks andducts. According to OSHA, these projects require the most stringent of controls, due to theprevalence of these materials and the likelihood of significant fiber release when disturbingthem. Class I projects are regulated by the current WPR because they involve friable ACM.
• Class II projects, involving removal of all other ACM or presumedACM . These projects involve materials such as floor or ceiling tiles and wallboard, whichare referred to as "miscellaneous ACM" in EPA's Asbestos-in-Schools Rule (40 CFR 763.83),and other ACM on the exterior of buildings such as siding and roofing. Most Class II projectsare not covered by the current WPR, since they involve non-friable ACM. This proposal wouldextend coverage of the WPR to all Class II projects.
• Class III projects, repair and maintenance activities involving the intentionaldisturbance of ACM or presumed ACM . Removal of ACM or presumed ACM under ClassIII is limited to the incidental removal of a small amount of material, for example, in order torepair a pipe or to access an electrical box. Class III projects involving friable ACM aregenerally regulated under the current WPR as small-scale, short-duration asbestos abatementprojects.
• Class IV activities, maintenance and custodial activities where employeescontact ACM and presumed ACM . These projects involve activities such as the repair orreplacement of ceiling tiles, repair or adjustment of ventilation or lighting, dusting of surfaces,mopping of floors, or vacuuming of carpets. Class IV activities may also include sweeping,mopping, dusting, or vacuuming incidental to a Class I-III regulated project. Most Class IVprojects are not covered by the current WPR because they are not considered to be asbestosabatement projects.
Some of the requirements (for example, the PELs, specified work practices andengineering controls, supervision by a competent person, and, in certain circumstances, regulatedareas and training) apply to all construction projects and related custodial activities covered bythe standard, including installation of new asbestos-containing materials. Work practices andengineering controls applicable to all projects include the use of wet methods (where feasible),HEPA vacuums, and, if necessary, ventilation systems to achieve compliance with the requiredPELs. All projects must be supervised by competent persons, but the training requirements forClass III and Class IV supervisors are much less stringent than for those persons supervisingClass I and Class II projects.
Beyond these basic requirements, the current OSHA work practice and engineeringcontrol requirements are specific to each class of project and, for Class II projects, specific to thetype of material being removed. These requirements are discussed in more detail under theheading "Methods of compliance for construction projects and associated custodial activities" in Unit II.A.2.h.
b. Hazard communication . This proposal would adopt the provisionsfrom the OSHA General Industry and Construction Standards for the identification of asbestoshazards by building owners and employers and the communication of hazard information amongbuilding owners, employers, employees, and tenants (29 CFR 1910.1001(j), 29 CFR1926.1101(k)). Under these Standards, building owners and employers must identify thepresence, location, and quantity of ACM in the worksite before work begins. Any TSI andsurfacing materials in buildings constructed earlier than 1981 must be presumed to containasbestos, unless a person with the appropriate qualifications determines, in accordance withrecognized sampling and analytical methods, that the material does not contain asbestos.
If the material to be analyzed is in a school or a public or commercial building, thenEPA's Model Accreditation Plan (MAP) requires the sampling to be done by a person accreditedas an inspector under the MAP (40 CFR part 763, subpart E, Appendix C). If the material is notin a building regulated by the MAP, e.g., it is on an outdoor installation, either a MAP-accredited inspector or a Certified Industrial Hygienist may perform the sampling. Resilientfloor covering installed prior to 1981 must also be presumed to contain asbestos unless anindustrial hygienist or a MAP-accredited inspector determines through recognized analyticaltechniques that it does not contain asbestos. Again, if the material to be sampled is in a buildingregulated by the MAP, then the sampling must be done by a MAP-accredited inspector.
Results obtained during an inspection that complies with the Asbestos-in-Schools Rule requirements at 40 CFR 763.85(a) are sufficient to rebut the presumption that TSI,surfacing material, or resilient floor covering contains asbestos. Although not required by theOSHA Standards or the EPA MAP, bulk samples taken from school buildings regulated by theAsbestos Hazard Emergency Response Act (AHERA) must be analyzed by laboratoriesaccredited by the National Institute of Standards and Technology (NIST). For a fullerdiscussion on the hazard communication provisions, see the OSHA preamble in the FederalRegister of August 10, 1994 (Ref. 8, p. 41013).
Under these proposed amendments to the WPR, State and local government entitieswhose employees perform asbestos-related construction, custodial, or brake and clutch repairwork would be required to determine the presence, location and quantity of ACM or presumedACM in the worksite. Although EPA recommends that State and local governments make thisdetermination based upon a full building inspection done by a MAP-accredited inspector, theminimum requirement is to identify three types of building materials (TSI, surfacing material,and resilient floor covering) that must be presumed to contain asbestos. EPA believes that theidentification of types of building materials does not require the expertise of a MAP-accreditedinspector, since no judgment as to asbestos content is being made. However, if there is somereason to suspect that other materials in the worksite may contain asbestos, or the employerwishes to rebut the presumption of asbestos content, and the project will be taking place within apublic or commercial building, then the services of a MAP-accredited inspector will be required.
This proposal would then require State and local government employers to providetheir own employees, and other on-site public and private employers, with information on thepresence, location and quantity of ACM and presumed ACM in the worksite, along with specificdetails on the nature of the activity to be performed, requirements pertaining to regulated areas,and the measures that will be taken to prevent exposure to adjacent workers.
Although the hazard communication provisions of the OSHA Standards apply tobuilding owners as well as employers, EPA is not proposing to extend these requirements toState and local government building owners who are not also employers. EPA believes that, inmost cases, the employer and the building owner will be the same, i.e., both will be Stateagencies, or City agencies. If the building owner and the employer are the same, then a separateprovision imposing identification and communication obligations on the building owner isunnecessary. EPA requests comment on the extent to which this assumption may be incorrect.
c. Project notifications . EPA is proposing to remove the currentrequirement that employers who plan an asbestos abatement project notify EPA at least 10 daysin advance (40 CFR 763.124). In 1994, OSHA considered and rejected a requirement foremployers to report all asbestos projects, except those of small-scale, short-duration, in advance.OSHA's decision was based on the fact that, since there are other existing Federal and Statereporting requirements, additional reporting requirements in the OSHA Construction Standardwould be burdensome for the employer without enhancing compliance. For a comprehensivediscussion of OSHA's reasoning, see the Federal Register of August 10, 1994 (Ref. 8,pp. 40970-40971). EPA agrees with this logic, since it is easily able to use reports receivedunder the asbestos National Emission Standard for Hazardous Air Pollutants (NESHAP)regulations, 40 CFR part 61, subpart M, to target worker protection inspections. Twocommenters on the 1994 proposed amendments to the WPR argued that EPA should beconsistent with OSHA on this subject. In addition, several other commenters noted that thenotification requirement would become extremely burdensome with the increased number ofprojects covered by the expansion of the scope of the rule to non-friable removal projects andmaintenance (Ref. 17). EPA would, however, adopt the OSHA reporting requirements forClass I alternative control methods as discussed under the heading "Methods of compliance forconstruction projects and associated custodial activities" in Unit II.A.2.h.
d. Permissible exposure limits . This proposed amendment to the WPRwould lower the PEL of 0.2 f/cc to 0.1 f/cc as an 8-hour, time-weighted average, OSHA'scurrent PEL for all covered activities. 29 CFR 1910.1001(c), 29 CFR 1926.1101(c). In 1994,OSHA lowered its PEL from 0.2 f/cc to 0.1 f/cc. For a comprehensive discussion of OSHA'sfindings see the Federal Register of August 10, 1994 (Ref. 8, pp. 40978-40982). Thisproposal also retains a provision included in the 1994 proposed WPR amendments under whichemployees would be protected by a short-term excursion limit of 1.0 f/cc for a 30 minutesampling period. EPA did not receive any comments on this proposed excursion limit. Finally,EPA proposed in 1994 to allow employers to use an alternative PEL based upon results ofTransmission Electron Microscopy (TEM). Several commenters stated that the proposedalternative PEL was not adequately supported by science (Ref. 17), so EPA is withdrawing thatportion of its 1994 proposal.
e. Multi-employer worksites . The current WPR requires State and localgovernment employers to communicate information about the nature of asbestos work andregulated area requirements to other employers, whether public or private, on multi-employerworksites (40 CFR 763.121(d)). This proposal would adopt by cross-reference the requirementsof 29 CFR 1926.1101(d) of the OSHA Construction Standard for multi-employer worksiteswhere construction and related custodial work is being performed. The OSHA ConstructionStandard requires employers whose employees are performing construction and associatedcustodial activities within regulated areas to provide other on-site employers with informationconcerning the nature of the asbestos-related work, information on regulated areas, andinformation on the specific measures that will be taken to prevent exposure to other employees.In addition, this provision of the OSHA Construction Standard clarifies that while the employer whocreates an asbestos hazard must abate it, other on-site employers are responsible for protectingtheir employees from the hazard by removing them from the area or conducting an exposureassessment and providing personal protective equipment if warranted.
f. Regulated areas . Under the current WPR, employers must establish aregulated area where employee exposures on asbestos abatement projects exceed, or are expectedto exceed, the PEL, and all persons entering regulated areas must wear respirators (40 CFR763.121(e)). This proposal, by cross-referencing the OSHA General Industry Standard, wouldmake these requirements applicable to State and local governments who employ brake andclutch repair workers (29 CFR 1910.1001(e)).
This proposal, by cross-referencing 29 CFR 1926.1101(e) of the OSHAConstruction Standard, would also require all Class I-III asbestos construction work to beconducted within a regulated area. This requirement is based upon OSHA's assessment of theconstruction activities most likely to produce exposures in excess of the PEL, as well as OSHA'sconcern with the significant risk that still remains for workers exposed to the PEL. OSHA'sreasoning is discussed in the Federal Register of August 10, 1994 (Ref. 8, p. 40982).Although this proposal would require State and local government employers to establish,demarcate, and control access to regulated areas for most asbestos construction work,construction employees working within regulated areas would not automatically need to wearrespirators unless otherwise required by the regulation.
g. Exposure monitoring . The current WPR requires employers to performinitial employee exposure monitoring for each covered activity, unless the employer hashistorical data from similar operations showing exposures below the PEL, or the employer canproduce objective data showing that the material involved cannot release asbestos fibers inexcess of the action level of 0.1 f/cc (40 CFR 763.121(f)). With respect to employeesperforming construction activities and associated custodial work, this proposal, by cross-referencing the OSHA Construction Standard, would modify the requirements for initial andperiodic monitoring to reflect increased awareness that numerous factors influence employeeexposure on construction jobs and that initial monitoring alone may not be the best predictor offuture exposures. For more information on these considerations, see the FederalRegister of August 10, 1994 (Ref. 8, pp. 40983-40984).
The OSHA Construction Standard requires a competent person to make an initialexposure assessment (29 CFR 1926.1101(f)). This assessment involves a review of initialmonitoring data, previous monitoring data from the same workplace or employer, and otherfactors such as the training and experience of the employees who will perform the work, thework practices they will use, and the degree and quality of supervision that will be provided. Inmany cases, the competent person will be able to make a negative exposure assessment, adetermination that employee exposures will be consistently below the PELs, based upon one ofthree things:
• Objective data which demonstrate that the product or activity involved isincapable of producing airborne asbestos concentrations in excess of the PELs.
• Recent monitoring data from previous asbestos jobs which closely resemble thecurrent activity with respect to processes, material types, control methods, work practices,environmental conditions, and employee training and experience.
• Initial monitoring data from the current asbestos job.
Unless a negative exposure assessment can be made, the employer must conduct daily exposuremonitoring to ensure compliance with the exposure limits.
For general custodial work and brake and clutch repair activities, this proposalwould, by cross-referencing the OSHA General Industry Standard, require air monitoring onlyfor activities where exposures exceed, or can reasonably be expected to exceed a PEL, and theemployer does not have historical data from similar operations or objective data concerning thematerial which indicates that exposures will be below the PEL (29 CFR 1910.1001(d)).
h. Methods of compliance for construction projects and associated custodialactivities . This proposal cross-references the OSHA Construction Standard requirements forengineering controls and work practices (29 CFR 1926.1101(g)). Where necessary to achievethe PEL, the current WPR requires one or more of the following: HEPA vacuums, wet methodswhere feasible, and prompt cleanup and disposal of asbestos-containing waste and debris.These three general control processes would become mandatory under this proposal for allasbestos construction work. The remaining control processes mentioned in the existing 40 CFR763.121(g), local exhaust ventilation, general ventilation systems, and enclosure/isolation ofdust-producing processes, are only required by the OSHA Construction Standard wherenecessary to achieve the PELs.
Under the current WPR, employers are required, if feasible, to use negative pressureenclosures for all projects that are not of small-scale, short-duration (40 CFR 763.121(e)(6)).For Class I projects, this proposal would cross-reference the OSHA Construction Standard,which gives employers the flexibility to choose, depending upon the type of project, fromseveral different engineering control systems, including negative pressure enclosures, glove bags, negative pressure glove bag systems, negative pressure glove box systems, water sprayprocess systems, or mini-enclosures (29 CFR 1926.1101(g)). Alternative control methods maybe used, so long as a competent person is able to certify that the methods would be adequate toreduce employee exposures below the PEL and that asbestos contamination beyond the regulatedarea will not occur. If the Class I project involves more than 25 linear or 10 square feet ofACM, this determination must be made by a certified industrial hygienist or a licensedprofessional engineer who is also qualified as a project designer, and the Director, NationalProgram Chemicals Division, Office of Pollution Prevention and Toxics, EPA, must be notifiedin advance. Additional requirements for Class I projects include critical barriers, or othermethods to prevent the migration of fibers off-site, impermeable drop cloths for surfaces, andsealing of the HVAC system.
Class II projects are generally not covered by the current WPR unless they involvefriable ACM or previously non-friable ACM which has become damaged to the point that it canbe considered friable. This proposal, like the 1994 proposal, would extend coverage of the WPRto all construction work involving ACM, whether friable or non-friable. This proposal wouldcross-reference the OSHA Construction Standard which, in addition to the basic controlrequirements for all construction work, requires employers to follow specific work practices anduse specific engineering controls for different types of ACM, including resilient floor coverings,roofing material, cementitious siding and transite panels, and gaskets. For example, with respectto the removal of resilient floor coverings, 29 CFR 1926.1101(g)(8)(i) prohibits sanding offlooring or backing, rip-up of resilient sheet material, and dry sweeping/scraping. In addition,mechanical chipping of resilient floor covering is prohibited unless it is performed in accordancewith the requirements for Class I projects. For all specified Class II projects, critical barriers orother isolation methods must be used, and the surfaces must be covered with impermeable drop cloths. As with Class I projects, Class II projects may be conducted with alternative controlmethods, as long as a competent person evaluates the project area and certifies that thealternative controls are sufficient to reduce employee exposure below the PELs. For Class IIprojects, however, the employer is not required to notify the Agency.
Many Class III activities are currently covered by the WPR as small-scale, short-duration asbestos abatement projects. Several of the control methods required by 29 CFR1926.1101(g)(9) of the OSHA Construction Standard for Class III projects (wet methods, localexhaust ventilation as feasible, and, under specified circumstances, impermeable drop cloths andisolation methods) are essentially the same as the current WPR requirements in 40 CFR763.121(g). If, for a particular Class III project, the employer is unable to produce a negativeexposure assessment or monitoring results show the PEL has been exceeded, the OSHAConstruction Standard requires the employer to use impermeable drop cloths and plastic barriersor their equivalent or one of the listed Class I control methods, such as a negative pressureenclosure or a glove bag.
Class IV activities are not currently covered by the WPR. This proposal wouldextend the scope of the WPR to cover Class IV activities. In addition, this proposal would cross-reference the OSHA Construction Standard, which requires employers conducting Class IVactivities to use general control measures, such as wet methods, HEPA vacuums, and promptcleanup (29 CFR 1926.1101(g)(10)). However, employees performing Class IV activities mustbe provided with respirators if they are performing housekeeping activities in a regulated areawhere other employees are wearing respirators.
i. Methods of compliance for brake and clutch repair activities . Thisproposal would require State and local government employers whose employees perform brakeand clutch repair activities to comply with the OSHA General Industry Standard. In addition togeneral worker protection provisions, such as PELs, exposure monitoring,and respiratory protection, the OSHA General Industry Standard requires employers to use oneof two primary methods for controlling employee exposure to asbestos during brake and clutchrepair (Appendix F to 29 CFR 1910.1001).
The Negative Pressure Enclosure/HEPA Vacuum System method requires the workto be performed within a sealed enclosure similar to a glove bag, with impermeable sleevesthrough which the worker may handle brake and clutch components. Negative pressure must bemaintained within the enclosure while the work is being performed. This method is virtuallyidentical to the Enclosed Cylinder/HEPA Vacuum method in EPA's 1994 proposal, but OSHAchanged the name of this method to reflect the fact that the enclosure does not necessarily haveto be in the shape of a cylinder. The Low Pressure/Wet Cleaning method requires the brake andclutch components to be kept adequately wet, using a low pressure water flow and a catch basin,while repair activities are taking place. Employers whose employees perform 5 or fewer brakeand clutch repair jobs per week may use less complex wet methods to control employeeexposures during the projects. An employer could use an alternative control method if themethod was demonstrated to control employee exposures at least as well as the NegativePressure Enclosure/HEPA Vacuum method.
j. Methods of compliance for general custodial activities . This proposalwould require State and local government employers whose employees perform custodialactivities not associated with construction projects to comply with the OSHA General IndustryStandard. In addition to general worker protection provisions, such as PELs, exposure monitoring, and respiratory protection, the OSHA General Industry Standardand Construction Standard contain identical specifications for resilient floor coveringmaintenance. The Standards ban sanding, allow stripping only using wet methods with a lowabrasion pad at slow speeds, and prohibit dry buffing unless the finish on the floor is sufficientto prevent the pad from coming into contact with the floor material (29 CFR 1910.1001(k)(7),29 CFR 1926.1101(l)(3)). This is generally consistent with EPA's existing guidance on floormaintenance (Ref. 19).
k. Respirators . The current WPR requires employers to supply respiratorsto employees entering regulated areas (40 CFR 763.121(e)(4)). This proposal would cross-reference the OSHA General Industry and Construction Standards (29 CFR 1910.1001(e), 29CFR 1926.1101(h)), which require respiratory protection for employees performing thefollowing activities:
• Class I projects.
• Class II projects where ACM is not removed intact.
• Class II-III projects that do not use wet methods.
• Class II-III projects for which a negative exposure assessment has not been made.
• Class III projects involving the disturbance of TSI or surfacing material.
• Class IV work in regulated areas where other employees are wearing respirators.
• Any other activities where asbestos exposure exceeds either of the PELs.
• Emergencies.
OSHA determined that respiratory protection was necessary for employees performingthese activities due to the variability in exposures experienced during asbestos work, the need toprotect workers who are disturbing ACM with the greatest potential for significant fiber release,and the fact that exposure monitoring results are not always available in a timely fashion.OSHA's findings are discussed in the Federal Register of August 10, 1994 (Ref. 8, p. 41010).
In addition, EPA's 1994 proposed amendments to the WPR cross-referenced therelevant portions of 29 CFR 1910.134, the OSHA Respiratory Protection Standard. In 1998,OSHA substantially revised this Standard (Ref. 14). This proposal would adopt by cross-reference the appropriate provisions of the revised OSHA Respiratory Protection Standard. Thefollowing is a discussion of requirements of the OSHA Respiratory Protection Standard that arenot a part of the current WPR respirator requirements.
Employers who are required to supply their employees with respirators mustdevelop and implement a respiratory protection program. Under 29 CFR 1910.134.(c), theprogram must be in writing, updated as necessary, with workplace-specific proceduresaddressing the following major elements:
• Procedure for selecting respirators.
• Medical evaluations of employees required to use respirators.
• Fit testing procedures for tight-fitting respirators.
• Procedures for proper use of respirators in routine and (reasonably foreseeable)emergency situations.
• Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining respirators.
• Procedures to ensure adequate air quality, quantity, and flow of breathing air for atmosphere-supplying respirators.
• Training of employees in the respiratory hazards they are potentially exposed to.
• Training of employees in proper use of respirators, including putting on andremoving them, any limitations on their use, and their maintenance.
• Procedures for regularly evaluating program effectiveness.
Employers must designate a person to administer and evaluate the respiratoryprotection program (29 CFR 1910.134(c)(3)). This administrator must have training and/orexperience commensurate with the complexity of the particular program.
Under 29 CFR 1910.134(d), the employer must provide respirators that areappropriate to the workplace and to user factors that affect respirator performance and reliability,such as humidity, communication needs, and exertion levels. (See discussion at Ref. 14, p.1196.) The employer must choose from a sufficient number of respirator models and sizes inorder to properly fit the wearer (29 CFR 1910.134(f)).
Currently, the WPR requires an initial fit test, then, for negative-pressure respiratorsonly, fit tests every 6 months (40 CFR 763.121(h)(4)). By adopting the OSHA RespiratoryProtection Standard by cross-reference, this proposal would lengthen the interval to a year, butperiodic fit test would be required for all tight-fitting respirators, whether positive or negative pressure. As in the current WPR, fit testing would have to be accomplished using one or moreOSHA-approved protocols. In addition to the rigorous fit testing requirements, the OSHARespiratory Protection Standard requires brief, easy-to-perform fit checks each time therespirator is worn (29 CFR 1910.134(g)(1)(iii)). (See discussion at Ref. 14, p. 1239.)
The OSHA Respiratory Protection Standard at 29 CFR 1910.134(h) requiresspecific respirator cleaning and maintenance practices, although an employer may choose tofollow the instructions of the respirator manufacturer if they are sufficient to accomplish thesame objectives such as sanitation and proper operation. The specific practices to beincorporated were compiled by OSHA from various sources, including recommendations by theAmerican National Standards Institute (ANSI), the National Institute for Occupational Safetyand Health (NIOSH), and the American Industrial Hygiene Association (AIHA).
Employees must be trained in specific elements of proper respirator use and care,including the need for respirators, their limitations, emergency procedures, maintenance,inspection, storage, and medical signs and symptoms that may limit respirator effectiveness (29CFR 1910.134(k)).
Finally, 29 CFR 1910.134(m) requires employers to keep records of employee fittests, including the employee's name, the type of test, the specific make/model of respiratortested, the date of the test, and the results of the test. The employer must only retain the mostrecent fit test records for each employee.
l. Protective clothing . The current WPR requires properly maintained andlaundered protective clothing for employees exposed above the PEL (40 CFR 763.121(i)). Thisproposal would adopt the OSHA General Industry and Construction Standards, which requireprotective clothing to be provided where employees are exposed above the PELs, where thepossibility of eye irritation exists, where a negative exposure assessment cannot be made for aparticular project, or where employees are performing Class I operations involving the removalof over 25 linear or 10 square feet of TSI or surfacing ACM or PACM (29 CFR 1910.1001(h),29 CFR 1926.1101(i)). In addition, rather than the periodic inspections required by the currentWPR, the Construction Standard requires the competent person to inspect employee worksuits atleast once each shift for rips or tears.
m. Hygiene facilities and practices . This proposal would adopt the hygienerequirements of the OSHA General Industry and Construction Standards (29 CFR 2910.1001(i),29 CFR 1926.1101(j)). For Class I construction projects involving more than 25 linear or 10square feet of ACM, the OSHA requirements are identical to the current WPR provisions forprojects that are not of small-scale, short-duration (40 CFR 763.121(j)). OSHA determined in1994 that such stringent measures were not necessary for smaller Class I projects or other classesof construction work. For smaller Class I projects, and Class II and III projects where exposuresexceed a PEL or where a negative exposure assessment is not produced, the employer mustprovide an equipment room or area where contaminated worksuits are HEPA-vacuumed andthen removed. Again, if Class IV workers are performing housekeeping activities within aregulated area, they must follow the same hygiene practices as the other employees working inthat area. For general custodial workers and brake and clutch repair workers, the OSHA GeneralIndustry Standard, which would be adopted by cross-reference, requires employers to provideclean change rooms, showers, and clean lunch rooms (29 CFR 1910.1001(i)). For all workers,this proposal would also adopt, by cross-reference, OSHA's ban on smoking in work areas thatwas proposed by EPA in 1994 (29 CFR 1910.1001(i)(4), 29 CFR 1926.1101(j)(4)).
n. Communication of hazards . This proposal would adopt by cross-reference the requirement in the OSHA General Industry and Construction Standards thatemployers determine the presence, location, and quantity of ACM and presumed ACM (TSI,surfacing material, and resilient floor covering) in the worksite before work begins (29 CFR1910.1001(j), 29 CFR 1926.1101(k)). If ACM or presumed ACM is discovered in the worksiteafter the project has been started, the employer must inform other on-site employers of thediscovery.
Under the OSHA Standards, employers must also post signs at the entrance tomechanical rooms that contain ACM or presumed ACM. These signs must identify the material,its location, and appropriate procedures for preventing a disturbance. As currently required bythe WPR at 40 CFR 763.121(k)(1)(i), signs must be posted for regulated areas, but the OSHAStandards language regarding respirators and protective clothing may be omitted if theemployees are not required to wear them within that particular regulated area. The OSHAStandards include the requirement proposed by EPA in 1994 that employers ensure theiremployees comprehend the warning signs and labels, using, if necessary, such techniques asforeign languages, pictographs, graphics, and awareness training (29 CFR 1910.1001(j)(3), 29CFR 1926.1101(k)(3)).
Also, by cross-referencing the OSHA Construction Standard, this proposal wouldadopt the different OSHA training requirements for different classes of construction work andassociated custodial activities (29 CFR 1926.1101(k)(9)). Under the OSHA ConstructionStandard, employees performing Class I projects must have MAP worker accreditation or theequivalent. If the project will be undertaken in a school or a public or commercial building,MAP worker accreditation is required. If the project is in an area unregulated by the MAP, suchas in an outdoor installation, equivalent training is permitted. Class II work generally involvesnon-friable ACM, so MAP accreditation is not required unless the project involves friable ACMand is located within a school or a public or commercial building. The OSHA ConstructionStandard requires Class II workers to receive training in the material-specific work practice andengineering control requirements pertaining to the type of material(s) that they will bedisturbing. Class II training must take at least 8 hours and include a hands-on component. ClassIII workers must have 16 hours of training in a course which meets the requirements of themaintenance and custodial training required under the AHERA regulations at 40 CFR763.92(a)(2). Class IV workers must have at least two hours of awareness training equivalent tothe training described in the AHERA regulations at 40 CFR 763.92(a)(1). Notwithstanding thespecific training provisions for each class, the OSHA Construction Standard at 29 CFR1926.1101(k)(9) requires employers to ensure that employees performing Class I-IV projects andemployees who are likely to be exposed in excess of the PEL are trained in the basic elementscurrently identified in the WPR at 40 CFR 763.121(k)(3)(iii).
The OSHA Construction Standard also includes the requirements to provideemployees with smoking cessation information as well as information concerning posting signsand affixing labels and their meaning that were proposed by EPA in 1994 (29 CFR1926.1101(k)(9)(viii)(J)). Finally, the OSHA Construction Standard requires employers to teachClass III-IV workers the contents of "Managing Asbestos In Place" (the Green Book) (EPA 20T-2003, July 1990), or its equivalent (29 CFR 1926.1101(k)(9)(viii)(D)).
With regard to training for general custodial employees and brake and clutch repairworkers, this proposal would adopt the OSHA General Industry Standard, which includesrequired training elements similar to those found in the current WPR (29 CFR 1910.1001(j)(7),40 CFR 763.121(k)(3)(iii)).
o. Housekeeping . By adopting the OSHA General Industry andConstruction Standards by cross-reference, this proposal would establish requirements forresilient floor covering maintenance by State and local government employees. The Standardsban sanding, allow stripping only using wet methods with a low abrasion pad at slow speeds, andprohibit dry buffing unless the finish on the floor is sufficient to prevent the pad from cominginto contact with the floor material (29 CFR 1910.1001(k)(7), 29 CFR 1926.1101(l)(3)). TheStandards are generally consistent with EPA's existing guidance on floor maintenance (Ref. 19).
p. Medical surveillance . The WPR currently requires medical surveillancefor persons exposed at or above the action level of 0.1 f/cc for 30 or more days per year (40 CFR763.121(m)). For general custodial workers and brake and clutch repair workers, this proposalwould adopt by cross-reference the OSHA General Industry Standard requirement for medicalsurveillance for all workers exposed to asbestos concentrations at or above the PELs for anynumber of days per year (29 CFR 1910.1001(l)). For construction workers, this proposal wouldrequire, by cross-reference to the OSHA Construction Standard, medical surveillance foremployees who perform Class I, II, or III work on, or who are exposed at or above a PEL for, 30or more days per year (Class II or III work for an hour or less on intact ACM does not count as aday for the purposes of this requirement) (29 CFR 1926.1101(m)(1)(i)(A)).
q. Recordkeeping . The current WPR recordkeeping requirements wouldnot be changed by this proposal, except that data used to rebut the presumption that TSI,surfacing material, or resilient floor covering is ACM must be retained by the employer for aslong as the data are relied upon to rebut the presumption (40 CFR 763.121(n); 29 CFR1919.1001(m); 29 CFR 1926.1101(n)). This proposal would also permit employers to usecompetent organizations to maintain necessary records.
r. Competent person . The current WPR requires a competent person tosupervise asbestos abatement projects that are greater than small-scale, short-duration activities(40 CFR 763.121(e)(6)). The OSHA Construction Standard at 29 CFR 1926.1101(o), which thisproposal would adopt by cross-reference, extends the competent person supervision requirementto all construction projects and associated custodial work. The Construction Standard alsoexpands and clarifies the responsibilities and required training for competent persons.Competent persons who supervise Class I or Class II projects must be MAP-accreditedcontractor/supervisors or the equivalent. Equivalent training is permitted unless the projectbeing supervised involves friable material in a school or a public or commercial building.Competent persons who supervise Class III or Class IV activities must have at least 16 hours oftraining which meets the requirements of 40 CFR 763.92(a)(2) for local education agencymaintenance and custodial staff, or its equivalent in stringency, content and length. Thecompetent person must make regular inspections of the worksite, at least once per workshift forClass I projects, and must also be available for inspections upon request. Competent persons aregenerally responsible for ensuring compliance with the various regulatory requirements,including notifications and initial exposure assessments. The competent person requirements donot apply to brake and clutch repair operations or to general custodial activities not associatedwith construction projects.
3. Proposed amendment to the Asbestos-in-Schools Rule . As in 1994, EPAis again proposing to amend the Asbestos-in-Schools Rule to remove the provisions that extendWPR protections to employees of public school systems when they are performing operations,maintenance and repair (OM) activities (40 CFR 763.91(b)). The expanded scope of theproposed WPR would make these provisions unnecessary.
The current WPR covers State and local government employees, including employeesof public schools who are involved in friable asbestos abatement projects. The Asbestos-in-Schools Rule (40 CFR part 763, subpart E), issued under the authority of AHERA, extends WPRprotections to employees of public local education agencies when they are performing small-scale,short-duration OM activities involving asbestos-containing materials. Appendix B to theAsbestos-in-Schools Rule describes appropriate worker protection practices for these employees.
Since this proposal would provide coverage for all construction work, includingOM activities, to employees of public local education agencies in States without OSHA-approved State plans, the specific provisions at 40 CFR 763.91(b) covering OM activities byemployees of public local education agencies, as well as the provisions of Appendix B, would beunnecessary. EPA is therefore proposing to delete Appendix B and amend § 763.91(b) to referreaders to the WPR.
4. Plain language . EPA has drafted the revised regulatory text of the WPRtaking into account the June 1, 1998, Presidential Memorandum on Plain Language (available athttp://www.plainlanguage.gov/cites/memo.htm), and its implementing guidance. Using plainlanguage clarifies what the WPR requires, and saves the government and the private sector time,effort, and money. EPA has used plain language to give the WPR a logical organization andeasy-to-read design features. In the process, EPA has deleted from the proposed rule the currentsections on enforcement and inspections (40 CFR 763.125 and 763.126). These sections areunnecessary, as they restate requirements in TSCA sections 11, 15, 16, and 17. Accordingly,EPA will continue to enforce the WPR and conduct inspections.
5. State exemptions . The 1994 proposal would have revised § 763.122 toadopt a process of State exclusions from the WPR that was substantively the same as thatfollowed under the Asbestos-in-Schools Rule (40 CFR 763.98). EPA has re-examined itsauthority under TSCA section 18, and is not including those changes in this proposed rule.Instead, EPA is proposing to revise the current language to conform to TSCA section 18 and touse plain language. This proposal would also redesignate this section as § 763.123 because ofother structural changes to 40 CFR part 763, subpart G.
B. What is the Agency's Authority for Taking this Action?
1. Finding of unreasonable risk . Under TSCA section 6(a), if EPA findsthat the manufacture, processing, distribution in commerce, use or disposal of a chemicalsubstance or mixture, or any combination of these activities, presents, or will present, anunreasonable risk of injury to health or the environment, EPA shall by rule apply requirements tothe substance or mixture to the extent necessary to protect adequately against the risk. Asbestosis a chemical substance or mixture that falls within the scope of this authority. In decidingwhether to propose this rule under TSCA section 6(a), EPA considered:
• The health effects of asbestos.
• The magnitude of human exposure to asbestos.
• The environmental effects of asbestos and the magnitude of the exposure of the environment to asbestos.
• The benefits of asbestos for various uses and the availability of substitutes for those uses.
• The reasonably ascertainable economic consequences of the proposed rule, after consideration of the effect on the national economy, small business, technological innovation, the environment, and public health.
• The social impacts of the proposed rule.
See 15 U.S.C. 2601(c) and 2605(c)(1). EPA's consideration of these factors in proposing this rule issummarized in this unit. Additional information on many of these factors can be found in theEconomic Analysis (Ref. 18).
a. Health effects of asbestos . Asbestos is found in building products such asinsulation, ceiling and floor tiles, spackling tape for drywall, and roofing products. In general,asbestos contained in such products is considered harmless unless the matrix of asbestos fibers isdisturbed or deteriorates. A disturbance occurs when ACM is abraded, cut, torn or penetrated insuch a way that fibers are separated from one another and are released into the air where workersand others can inhale them. The primary route of human exposure is through the respiratorysystem, although other exposure routes (through ingestion or dermal contact, for example) arepossible. Five respiratory illnesses are associated with asbestos exposure.
• Carcinoma of the lung (lung cancer) . Carcinoma of the lung is a termused to refer to several types of cancer of lung tissue. The cancers usually affect the largerairways in the lungs, but may sometimes also appear in the smaller airways and peripheral parts ofthe lungs. Asbestos-related lung cancer occurs primarily in people with some degree of asbestosis(especially moderate to severe asbestosis) who also smoke. The combination ofasbestos exposure and smoking is between additive and multiplicative; some studies cite a 5-foldincrease in the risk of lung cancer in asbestos-exposed nonsmokers versus a 60-fold increase inasbestos-exposed smokers. Lung cancer usually occurs many years after asbestos exposure, andis nearly always fatal.
• Malignant mesothelioma of the pleura and peritoneum . Mesothelioma isa form of cancer that produces malignancies in the lining of the lung and chest cavity (pleura) andthe lining of the abdominal organs and cavity (the peritoneum). The disease appears to be largelyor wholly unrelated to smoking. Unlike lung cancer, which occurs in asbestos-exposed andunexposed smokers alike, malignant mesotheliomas occur mainly in asbestos-exposed individuals.Like lung cancer, mesothelioma usually occurs many years after exposure, and is always fatal.Mesothelioma is much less common than lung cancer, representing about 10% of lungcancer incidents.
• Asbestosis . Asbestosis is a chronic and progressive lung disease causedby inhaling asbestos fibers, which penetrate and irritate the outer parts of the lungs. This, in turn,causes inflammation and, eventually, increasingly severe pulmonary fibrosis (thickening andscarring of lung tissue). As the tiny airways, air sacs, and related lung tissue become thicker andscarred, there is less space for air to pass through, so lung capacity declines. In addition, the lungtissue stiffens, making it more difficult to push air in and out. In the extreme, extensive fibrosis ofthe lungs causes the airways and air sacs to become so scarred and stiff that they cannot functionwell enough to sustain life, and respiratory failure and death ensue. The time from asbestosexposure to onset of asbestosis varies with the level of exposure, with higher exposures reducingthe time till onset. Asbestosis will exacerbate other respiratory diseases (e.g., carcinoma of thelung) and will hasten death in individuals with other respiratory risk factors (i.e., smokers).
• Pleural effusion leading to diffuse pleural thickening . Inhalation ofasbestos fibers can lead to pleural conditions as the fibers become trapped on the pleuralmembranes. Asbestos-related pleural effusion is an accumulation of fluid between the two pleuralmembranes caused when asbestos fibers become trapped between the pleural membranes. Onepleural membrane lines the lungs, while the other membrane lines the chest cavity. Normally, thetwo membranes lie very close to each other, sliding gently across each other during breathing.Accumulation of fluid causes the membranes to separate in the area of the fluid, usually makingbreathing more difficult and painful. Pleural effusion can cause the pleural membranes to thickenfrom irritation and infiltration of immune cells. Occasionally, the pleural membranes may fold inon themselves, crowding and trapping a piece of lung tissue. The resulting condition, calledrounded atelectasis, is more likely to be symptomatic, but nevertheless is fairly benign, althoughthe folding and lung tissue trapping can become larger over time, decreasing lung capacity andleading to shortness of breath. Pleural effusion usually occurs 10 to 15 years after continuousexposure to asbestos, and is rarely fatal.
• Pleural plaques . Deposits of asbestos fibers on the pleural membrane cansometimes become calcified, forming asbestos-related pleural plaques. Local areas of pleuralthickening resemble pleural plaques and have similar clinical features. Pleural plaques are morecommon in overweight people, including many smokers. By causing portions of lung tissue tostiffen, they can impair lung function, making it harder to breathe, especially during exertion. Ingeneral, though, they are relatively benign and rarely fatal. Pleural plaques occur approximately10 to 15 years after asbestos exposure.
b. Human exposure to asbestos . The proposed rule would provideprotection for State and local government employees involved in asbestos-related work in Statesthat do not have OSHA-approved State plans. The activities that would be covered by theproposed rule include the following six categories of work:
• New construction activities , which include all projects involving theinstallation of new asbestos-containing building materials, expected to be predominately asbestos-cement sheet and asbestos-cement pipe.
• Abatement activities, which include the removal of asbestos-containingTSI from pipes and boilers and other types of ACM or presumed ACM in buildings.
• Renovation activities , which include general building renovation projects.EPA believes that most of these projects will involve the demolition of drywall that has beensealed with asbestos-containing taping materials, and the removal of asbestos-containing roofingfelts.
• Maintenance activities , which include repair and maintenance of pipes,boilers, furnaces, roofing, drywall, floor and ceiling tiles, lighting, and ventilation, heating, and airconditioning systems.
• Custodial work , which includes dusting, sweeping and vacuuming.
• Brake and clutch repair work .
The following table summarizes the baseline asbestos exposures for workers performing these activities, as well as the incremental exposure reductions expected to be achieved through this rulemaking. For most activity categories, EPA estimates that worker exposures will decrease by at least one order of magnitude.
| Activity | Class/category of work | Population exposed in the initial year of the rule (FTEs) | Exposure levels | Baseline | Post-rule |
|---|---|---|---|---|---|
| New Construction | |||||
| A/C pipe installation | NA | 8 | 0.0350 | 0.0025 | |
| A/C sheet installation | NA | 100 | 0.1000 | 0.0072 | |
| Subtotal | 108 | ||||
| Abatement | |||||
| Building abatements | I | 25 | 0.1801 | 0.0104 | |
| Boiler/pipe abatements | I | 15 | 0.1801 | 0.0104 | |
| Subtotal | 40 | ||||
| Renovation | |||||
| Drywall demolition | II | 2,050 | 0.1130 | 0.0065 | |
| Roofing felt removal | II | 89 | 0.0900 | 0.0063 | |
| Subtotal | 2,140 | ||||
| Maintenance (Class III) | |||||
| Repair leaking pipes | III | 70 | 0.1624 | 0.0014 | |
| Repair/maintain furnaces/boilers | III | 72 | 0.1624 | 0.0094 | |
| Repair roofing | III | 148 | 0.0900 | 0.0063 | |
| Repair drywall | III | 226 | 0.1130 | 0.0002 | |
| Repair/replace floor tiles | III | 376 | 0.0240 | 0.0003 | |
| Subtotal | 892 | ||||
| Maintenance (Class IV) | |||||
| Repair/replace ceiling tiles | IV | 4 | 0.0714 | 0.0018 | |
| Repair/adjust ventilation/lighting | IV | 68 | 0.0319 | 0.0008 | |
| Repair heating/air conditioning | IV | 62 | 0.0319 | 0.0008 | |
| Other work above drop ceilings | IV | 19 | 0.0492 | 0.0013 | |
| Subtotal | 153 | ||||
| Custodial work | IV | 51,752 | 0.0459 | 0.0004 | |
| Brake and clutch repair | |||||
| Low pressure/wet cleaning method | GI | 2.032 | 0.0041 | 0.0041 | |
| Aerosol spray method | GI | 1,451 | 0.0141 | 0.0041 | |
| Wet methods | GI | 2,322 | 0.0122 | 0.0041 | |
| Subtotal | 5,805 | ||||
| Building occupants | NA | 4,007,710 | 0.00008 | 0.00004 | |
| School children | NA | 20,781,696 | 0.00008 | 0.00004 | |
| Totals | |||||
| All activities | 24,850,296 | ||||
| All activities, excluding school children | 4,068,600 | ||||
| All activities, excluding school children and building occupants | 60,890 |
See Table 3-3 of the Economic Analysis (Ref. 18).
EPA finds that reducing asbestos worker exposures will also result in reducedexposures for incidentally exposed populations, i.e., individuals who are exposed to asbestoswithout actually performing work on ACM. These populations are:
• School children . The proposed rule covers State and local governmentemployees performing asbestos-related work in States without OSHA-approved State plans. Anumber of the activities that would be covered by the proposed rule occur in public schools.Thus, one incidentally exposed population that would benefit from the proposed rule would beindividuals exposed to asbestos as children while attending public schools in the covered States.EPA expects that these individuals primarily face risks from lung cancer and mesothelioma asadults based on their exposure as children.
• Building occupants, workers' families, and other individuals who enterbuildings covered by the proposed rule . OSHA has determined that building occupantswhere asbestos work takes place (e.g., office workers), construction workers performing non-asbestos related work, individuals entering buildings where asbestos work is taking place (e.g.,building visitors), and workers' families are at risk of harmful asbestos exposure. NIOSH hasdetermined that workers' families may be at particular risk of developing asbestosis ormesothelioma from the contaminated clothes of asbestos workers in the family. The proposedrule takes steps to reduce asbestos exposure among family members through the use ofdecontamination units (29 CFR 1926.1101(j)) and the use of protective clothing that remains atthe workplace or is disposed of (29 CFR 1926.1101(i)). Except for building occupants, custodialworkers and school children, no quantitative estimates are available regarding the number ofpeople that are incidentally exposed or their exposure level. The provisions of the proposed rulewould decrease the potential of harmful exposure for these individuals and consequently decreasethe expected incidence of asbestos-related death and disease among family members.
The preceding table also presents the estimated exposure reductions attributable tothis rule for school children and other building occupants. EPA believes that the controls thatwould be imposed by this proposal would reduce the incidental asbestos exposures for thesepopulations by 50%.
c. Environmental effects of asbestos . This proposed rule is directed at risksposed by asbestos in the workplace, not in the ambient environment. EPA therefore did notconsider the environmental effects of asbestos in proposing this rule.
d. The benefits of asbestos for various uses and the availability of substitutes forthose uses . This proposed rule would protect workers exposed to asbestos duringconstruction work and during automotive brake and clutch repair work. Some of this work couldinvolve removal of asbestos. This proposed rule would not, however, require any person toremove asbestos from an existing installation. The person responsible for managing existinginstallations of asbestos must make the decision whether the benefits of retaining or managing thatinstallation exceed the benefits of removing the asbestos and replacing it with another material.As part of that decision, that person will evaluate the cost and availability of substitutes forasbestos. If the person concludes that satisfactory substitutes are not available at an acceptableprice, the person is free to decide that the benefits of maintaining the installation exceed the costsof removing it, and on that basis may leave the asbestos in place. EPA therefore did not considerthe benefits of asbestos for various uses and the availability of substitutes for those uses inproposing this rule.
e. Economic consequences of this proposed rule . This proposed rule wouldreduce workers' and building occupants' exposure to asbestos, and would thereby reduce theincidence of cancer and other injurious health effects among these populations. The EconomicAnalysis for this proposed rule (Ref. 18) provides a detailed analysis of the economic benefitsassociated with the reduced incidence of these diseases. This proposal would also impose newrequirements on State and local governments that would require these entities to incur compliancecosts. The Economic Analysis also analyzes in detail the incremental costs to State and localgovernments of complying with the proposed rule. In evaluating these incremental costs, EPAassumes that affected State and local governments are in compliance with requirements of thecurrent WPR, the asbestos National Emission Standard for Hazardous Air Pollutants (40 CFRpart 61, subpart M), and the Asbestos-in-Schools Rule (40 CFR part 763, subpart E). Theseincremental benefits and compliance costs are summarized in this unit.
i. Economic benefits . EPA has assessed the economic benefits of theproposed rule and has provided quantitative estimates for some of these benefits.
• Avoided cases of lung cancer and mesothelioma . Sixty-five years ofexposure reduction under the proposed rule would reduce the number of lung cancer andmesothelioma cases among exposed workers and building occupants by 71.58 cases. A majorityof these avoided cases occur among custodial workers, where 58.14 cases (81.2% of the numberof cases among exposed workers and building occupants) are avoided. The next largest numberof avoided cases, 3.96, occurs among building occupants. The proposed rule would also affectsome activities in public schools in States without OSHA-approved State plans. This would resultin a reduction in the risk to school children in these States. EPA estimates that 65.3 millionstudents over a 65-year period would benefit from reduced exposure under the proposed rule.EPA estimates that 65 years of exposure reduction under the proposed rule would result in 65.65avoided cancer cases among individuals exposed as school children.
The Economic Analysis supporting this proposed rule uses a "value of statistical life"(VSL) technique to associate a dollar value with these avoided cancer cases. There are severaltypes of economic studies that have attempted to determine the VSL. Of these, most use labormarket data to determine workers' trade-offs between wages and risk. In addition, someresearchers have used contingent valuation to evaluate willingness to pay to avoid risk. Oneresearcher reviewed a large number of studies, with a range of $2 million to $11 million perstatistical life, and recommended use of the entire range. The most recent review of the results ofresearch using these approaches found a range of values from $700,000 to $16.2 million. EPA'sOffice of Indoor Air selected 26 studies and calculated their mean estimated value of life to be$5.5 million (1994 dollars), with a standard deviation of $3.6 million. The Economic Analysisaccompanying this proposed rule uses the Office of Indoor Air estimate, updated to $6.53 millionin anticipated 2001 dollars. The Economic Analysis uses the VSL estimate to value avoided riskat the point of exposure reduction, and discounts the value of avoided risk occurring in yearsbeyond 2001 back to 2001, using a discount rate of 3%.
Based on a VSL analysis, this proposed rule would result in $405.45 million in monetized benefits attributable to 137.23 avoided cases of lung cancer and mesothelioma. EPA estimatesthat the 65-year present monetary value of reducing cancer incidence among exposed workers andbuilding occupants under the proposed rule is $248.09 million. Avoided cancer cases amongcustodial workers represent the largest share of the total, with a 65-year present monetary valueof $202.34 million (81.6% of the total). In addition, EPA estimates the present monetary value ofthe avoided cancer risk among individuals exposed as school children to be $157.36 million.
• Avoided cases of asbestosis . EPA estimates that approximately five casesof asbestosis would be avoided under the proposed rule. EPA does not include this estimateamong the quantified benefits of the proposed rule, however, because of the uncertainties aboutapplying the available models to activities involving the relatively low doses to whichconstruction, custodial, and brake and clutch repair workers are exposed. In addition, EPA hasdetermined that many individuals who develop asbestosis also develop lung cancer, so presentingestimates of the number of avoided asbestosis cases in conjunction with estimates of the numberof avoided lung cancer cases may result in double-counting (i.e., some of the asbestosis cases mayalso be cases of lung cancer). EPA considers this estimate of avoided asbestosis cases to be onlyan indication of the potential magnitude of the number of avoided asbestosis cases.
• Avoided productivity losses associated with non-fatal diseases . In addition tolung cancer and mesothelioma, asbestos exposure is associated with numerous other diseases suchas pleural plaques and pleural effusion. These conditions are caused by the inhalation of asbestosfibers that eventually become lodged in the lungs and airways of exposed individuals. Reducingasbestos exposure levels, along with the use of protective equipment such as respirators, wouldreduce the amount of asbestos fibers inhaled by exposed individuals, reducing the risk ofdeveloping these conditions. However, EPA was not able to quantify the reduction in these cases.
Although these conditions are not fatal, workers who develop them may need toreduce their work time or retire early, resulting in lost productivity. Lost productivity during theperiod of illness represents a cost associated with the disease. Exposure models that predict thenumber of these diseases and conditions are not available, making it impossible to quantify thenumber of cases and the resulting loss in productivity. Nonetheless, a reduction in asbestosexposure would decrease the incidence of non-fatal asbestos-related disease and thus productivitylosses associated with these conditions. The reduced incidence of non-fatal diseases would in turnreduce the number of workers who are out of work due to illness. Thus the proposed rule wouldreduce the amount of lost productivity due to illness, but by an unknown amount.
• Avoided medical costs associated with non-fatal diseases . Medical costsare also incurred by individuals who experience non-fatal asbestos-related diseases (pleuralplaques and pleural effusion). Estimates of the costs of treating these illnesses, as well as modelsthat predict their incidence, are not available. A reduction in asbestos exposure will reduce theincidence of asbestos-related disease and consequently the medical costs associated with treatingthose diseases. Reduced exposures should also decrease the severity of cases of illness notprevented by the proposed rule. Less severe cases will require less medical care and lowermedical care costs. Thus this proposal would also reduce medical costs of non-fatal asbestos-related diseases, but by an unknown amount.
• Decreased risk for exposed individuals not working with asbestos, includingworkers' families . Occupants of buildings where asbestos work takes place (e.g., officeworkers), construction workers performing non-asbestos related work, individuals enteringbuildings where asbestos work is taking place (e.g., building visitors), and workers' families maybe incidentally exposed to asbestos. NIOSH has determined that workers' families may be atparticular risk of developing asbestosis or mesothelioma from the contaminated clothes ofasbestos workers in the family. The proposed rule takes steps to reduce asbestos exposure amongfamily members through the use of decontamination units and the use of protective clothing thatremains at the workplace or is disposed of.
Except for building occupants, custodial workers and school children, no quantitativeestimates are available regarding the number of people that are incidentally exposed or theirexposure level. The provisions of the proposed rule would decrease the potential of harmfulexposure for these individuals and consequently decrease the expected incidence of asbestos-related death and disease among family members.
ii. Compliance costs . EPA estimates that the proposed rule would imposefirst-year compliance costs of $63.34 million. Annually thereafter, the real compliance costs areassumed to decline due to attrition of buildings from the stock of those that contain asbestos (i.e.,due to abatements or demolitions). Over the 65-year time frame of exposure reduction, thepresent value of compliance costs is estimated to be $1.12 billion. The following table provides asummary of the estimated compliance costs (both first-year costs and the 65-year present value ofcosts) by paragraph of the OSHA Standard, and by the individual requirements for thoseparagraphs. In the construction sector, the "Methods of compliance" paragraph of the OSHAConstruction Standard (29 CFR 1926.1101(g)) accounts for the greatest share of compliancecosts. This paragraph results in estimated costs of $35.84 million in the first year and $636.16million over the 65-year period, which represent 56.6% of the total costs of the proposed rule.Within this paragraph, the wet methods requirement accounts for the greatest share of compliancecosts. The estimated costs of the wet methods requirement are $21.65 million in the first year and $384.35 million over the 65-year period, representing 34.2% of the total costs of the proposed rule.
| Requirement | First-year compliance Cost ($millions) | 65-year present value of compliance costs ($millions) | Percent of total costs |
|---|---|---|---|
| CONSTRUCTION ACTIVITIES: | |||
| 29 CFR 1926.1101(d)-Multi-employer worksites | |||
| Second employer inspections | $0.39 | $6.91 | 0.61% |
| Paragraph subtotal | $0.39 | $6.91 | 0.61% |
| 29 CFR 1926.1101(e)-Regulated areas | |||
| Signs and tape | $3.10 | $55.02 | 4.89% |
| Paragraph subtotal | $3.10 | $55.02 | 4.89% |
| 29 CFR 1926.1101(f)-Exposure assessment and monitoring | |||
| Initial exposure assessment | $0.61 | $10.75 | 0.96% |
| Paragraph subtotal | $0.61 | $10.75 | 0.96% |
| 29 CFR 19261101(g)-Methods of compliance | |||
| HEPA vacuums | $10.31 | $183.09 | 16.28% |
| Wet methods | $21.65 | $384.35 | 34.18% |
| Leak-tight containers | $0.37 | $6.61 | 0.59% |
| Local exhaust ventilation | $0.60 | $10.58 | 0.94% |
| Impermeable drop cloths | $1.80 | $31.96 | 2.84% |
| Critical barriers | $0.06 | $1.00 | 0.09% |
| Plastic around HVAC systems | $0.01 | $0.25 | 0.02% |
| Negative pressure enclosures | $0.00 | $0.00 | 0.00% |
| Glove bag systems | $1.03 | $18.32 | 1.63% |
| Paragraph subtotal | $35.84 | $636.16 | 56.58% |
| 29 CFR 1926.1101(h)-Respiratory protection | |||
| Respirators | $3.63 | $64.42 | 5.73% |
| Develop respirator programs | $0.76 | $13.52 | 1.20% |
| Fit testing for respirators | $0.03 | $0.53 | 0.05% |
| Paragraph subtotal | $4.42 | $78.46 | 6.98% |
| 29 CFR 1926.1101(i)-Protective clothing | |||
| Provide clothing | $0.00 | $0.00 | 0.00% |
| Inspect clothing | $0.05 | $0.80 | 0.07% |
| Paragraph subtotal | $0.05 | $0.80 | 0.07% |
| 29 CFR 1926.1101(j)-Hygiene facilities and practices | |||
| Paragraph subtotal | $0.00 | $0.00 | 0.00% |
| 29 CFR 1926.1101(k)-Communication of hazards | |||
| Notify employees | $1.46 | $25.99 | 2.31% |
| Notify other employees/employers | $1.47 | $26.01 | 2.31% |
| Training | $2.97 | $52.71 | 4.69% |
| Paragraph subtotal | $5.90 | $104.71 | 9.31% |
| 29 CFR 1926.1101(l)-Housekeeping | |||
| Paragraph subtotal | $0.00 | $0.00 | 0.00% |
| 29 CFR 1926.1101(m)-Medical surveillance | |||
| Medical exams | $0.75 | $13.27 | 1.18% |
| Paragraph subtotal | $0.75 | $13.27 | 1.18% |
| 29 CFR 1926.1101(n)-Recordkeeping | |||
| EPA access to records | $2.37 | $42.14 | 3.75% |
| Employee access to records | $0.26 | $4.67 | 0.41% |
| Paragraph subtotal | $2.64 | $46.81 | 4.16% |
| 29 CFR 1926.1101(o)-Competent person | |||
| Training | $5.96 | $105.76 | 9.41% |
| Inspection by competent person | $0.01 | $0.22 | 0.02% |
| Paragraph subtotal | $5.97 | $105.98 | 9.42% |
| TOTAL FOR CONSTRUCTION | $59.65 | $1,015.68 | 94.17% |
| GENERAL INDUSTRY BRAKE AND CLUTCH REPAIR: | |||
| 29 CFR 1910.1001(d)-Exposure monitoring | |||
| Establish exemption | $0.40 | $7.16 | 0.64% |
| Paragraph subtotal | $0.40 | $7.16 | 0.64% |
| 29 CFR 1910.1001(f)-Work practices and controls | |||
| Adopt low pressure/wet cleaning method | $1.24 | $21.99 | 1.96% |
| Paragraph subtotal | $1.24 | $21.99 | 1.96% |
| 29 CFR 1910.1001(j)-Hazard communication | |||
| Notify employees | $1.72 | $30.54 | 2.72% |
| Paragraph subtotal | $1.72 | $30.54 | 2.72% |
| 29 CFR 1910.1001(k)-Housekeeping | |||
| Leak-tight containers | $0.32 | $5.65 | 0.50% |
| Paragraph subtotal | $0.32 | $5.65 | 0.50% |
| 29 CFR 1910.1001(m)-Recordkeeping | |||
| EPA access to records | $0.01 | $0.18 | 0.02% |
| Employees access to records | $0.001 | $0.022 | 0.00 |
| Paragraph subtotal | $0.01 | $0.20 | 0.02% |
| TOTAL FOR GENERAL INDUSTRY | $3.69 | $108.74 | 5.83% |
| GRAND TOTALS | $63.34 | $1,124.42 | 100.00% |
See Table 4-11 of the Economic Analysis (Ref. 18).
In the brake and clutch repair sector, compliance costs are highest for the"Communication of hazards to employees" paragraph of the OSHA General Industry Standard(29 CFR 1910.1001(j)), which includes one requirement applicable to brake and clutch repairwork, namely to notify employees. This paragraph results in estimated compliance costs of $1.72million in the first year and $30.54 million over the 65-year time period. This represents 2.72% ofthe total costs of the proposed rule. The "Methods of compliance" paragraph of the OSHAGeneral Industry Standard (29 CFR 1910.1001(f)) contains one requirement applicable to brakeand clutch work, namely to adopt the low pressure/wet cleaning method. This requirementaccounts for $1.24 million in first year compliance costs and $21.99 million over the 65-yearperiod, representing 1.96% of the total costs of the proposed rule.
iii. Other effects . TSCA section 6(c)(1)(D) also requires EPA, whenconsidering the economic consequences of the rule, to take into account effects on the nationaleconomy, small business, technological innovation, the environment, and public health. Theeffects of this rule on the national economy are addressed in the Economic Analysis (Ref. 18) and Unit IV. As this rule affects only State and local government employers, there are no anticipatedimpacts on small businesses. The impacts on small government entities are evaluated in the Economic Analysis (Ref. 18) and Unit IV.With respect to technological innovation, EPA does not believe that this rule will be undulyrestrictive, since the underlying OSHA Construction and General Industry Standards allowsufficient flexibility for the development of new technology for asbestos-related work. Inaddition, this rule's impacts on technology issues in general and the use of technical standardsare discussed in Unit IV.As described in Unit II.B.1.c., EPA did not consider environmental effects in this rulemaking asit is directed towards asbestos exposures in the workplace. Finally, the public health effects ofthis rule are discussed in Units II.B.1.a. and b.
f. Social and other qualitative effects . TSCA section 2 requires EPA, when taking any action under TSCA, to consider the social as well as environmental and economic impacts of the action. EPA considers social and other non-economic beneficial impacts when determining whether a particular level of risk is "unreasonable" and requires mitigation under TSCA section 6. In evaluating the reasonableness of the risk posed by occupational asbestos exposures to State and local government workers, EPA considered the following social and other qualitative effects of the proposed rule.
• Equity . One important social consequence of the proposal would be theelimination of inequitable legal protections for classes of persons based solely upon the identityand location of their employers. Currently, private sector building maintenance and custodialworkers enjoy comprehensive protection from excessive asbestos exposures under the OSHAConstruction Standard. State and local government building maintenance and custodial workersin the 23 States with OSHA-approved State Plans already enjoy this same level of protection,since the protection afforded by such plans must be as effective as that provided to workers inthe private sector. However, asbestos workers engaged in the same activities in the remaining 27States are currently unprotected. There is an obvious inequity in offering different levels ofprotection to employees who are performing the same tasks, or even working side-by-side in acommon job space. These inequitable conditions are unreasonable, andthe fact that 23 States have already provided equivalent protections for theirState and local government employees is evidence of the strong general societal interest inproviding State and local government workers with a level of protection similar to that enjoyedby their counterparts in the private sector.
• Reduced implementation burdens . Having a uniform set of standards forconstruction and brake and clutch repair employees would have the added social benefit of easingimplementation burdens. The OSHA standards are highly detailed and complex, but manyexcellent training, guidance, and reference resources are available. Seehttp://www.osha-slc.gov/SLTC/asbestos/. Yet, because of the lack of consistencybetween the WPR and the OSHA standards, State and local government workers and theiremployers in 27 States cannot take advantage of these resources. The burden on the regulatedcommunity of essentially re-creating these resources to reflect the minor differences between theWPR and the OSHA standards exists only because of the difficulty in amending the WPR to keeppace with changes in the OSHA standards. Adoption of the proposal would also avoid potentialconfusion and mistakes by allowing all workers and their supervisors to learn a single standardand know the requirements that apply to their work without additional training if such workers orsupervisors move from the public sector to the private sector or vice-versa.
• Environmental justice . Many of the employees who would benefit fromthe protections of this proposed rule are members of minority and low-income populations. Intestimony before OSHA in 1991, the Service Employees International Union (SEIU) describedbuilding maintenance workers as being among the "least protected members in our society-largely comprised of ethnic minority groups, new immigrants to our country, what economistsrefer to as the working poor, many forced to work permanent part-time..." (Ref. 20). Asdiscussed in the Economic Analysis, some minorities are disproportionally represented in certainoccupations that would be regulated by this proposal. In addition, EPA's analysis has determinedthat the median weekly income of workers in most of the occupations that would be covered bythis rule is below the median income of all workers nationwide. No segment ofthe population, regardless of race, color, national origin, or income, should, as a result of EPA'spolicies, programs, or activities, be more affected by adverse health effects, and all peopleshould live and work in clean, healthy, and sustainable environments.
• Quality of life . The health effects of asbestos are discussed in detail inUnit II.B.1.a. Two forms of cancer, carcinoma of the lung and malignantmesothelioma, can result from inhaling asbestos fibers. Another asbestos-related disease,asbestosis, is a chronic and progressive lung disease causing extensive fibrosis of the lungs and, inextreme cases, respiratory failure and death. Exposure to asbestos can cause other respiratorydiseases, that, while non-fatal, can significantly impair lung function, reduce lung volume, andcause lung stiffness, making breathing difficult and very painful. Pleural effusion impairs lungfunction by causing an accumulation of fluid in the lung membranes; and pleural plaques cause astiffening of the lung tissue that particularly affects breathing during exertion. All these diseasescause physical and psychological pain for the diseased person and psychological pain for friendsand family. Reducing the incidence of asbestos-related diseases improves the quality of life forboth workers and workers' friends and families by mitigating these negative consequences. Thelegislative history of TSCA shows that quality of life was an important Congressional concern asthe provisions of TSCA were debated and enacted.
• Children's health . EPA's analysis indicates that the proposed rule wouldsignificantly reduce the incidence of cancer among individuals with childhood asbestos exposuresfrom school buildings. EPA estimates that 65.65 such cases would be avoided under this rule as aresult of exposure reductions over a period of 65 years. Children are more vulnerable than adultsto the risks of asbestos for a number of physiological reasons. Children have less well-developeddefense mechanisms, they breathe more rapidly, and their metabolic rates are different. Thesmaller respiratory systems of children may be less likely to clear particles than adult respiratorysystems. EPA places a high priority on identifying and assessing environmental health risks andsafety risks that may disproportionately affect children. By reducing ambient asbestosconcentrations in school buildings, this rule would help protect children from the disproportionateasbestos exposure risk they face.
g. Finding of unreasonable risk . Therefore, having considered the factors discussed in Unit II.B.1., including the serious and irreversible health effects of exposure to asbestos; thepresent exposure levels among State and local government employees; the economic benefits ofthe proposed rule, including avoided cases of lung cancer and mesothelioma; the costs to Stateand local governments of complying with the proposed rule; and the beneficial social and otherqualitative consequences of the proposal, especially that of equity; EPA finds under TSCA section6 that the current exposure to asbestos among unprotected State and local government employeesduring use or disposal in construction work, custodial work, and brake and clutch repair workpresents an unreasonable risk of injury to human health, and that rulemaking is necessary toprovide adequate protection against that risk.
2. Selection of least burdensome requirements . Under TSCA section 6(a), once EPA has determined that a chemical substance or mixture presents an unreasonablerisk to health or the environment, EPA must use the least burdensome requirements to protectagainst that risk. This standard requires EPA to consider the alternative regulatory optionspresented in TSCA section 6(a), and to choose the least burdensome option. The options set out inTSCA section 6(a), and EPA's analysis of those options, follows.
a. A requirement prohibiting or limiting the manufacture, processing, ordistribution in commerce of asbestos (TSCA section 6(a)(1)) . EPA did not select this optionbecause such a requirement would only protect workers from the risks of future uses of asbestos.This proposal would protect workers from the risks posed by both future asbestos uses andexisting installations of asbestos, which have already been manufactured, processed, or distributedin commerce and are now in use. Moreover, prohibiting or limiting the manufacture, processing, or distribution in commerce of particular uses of asbestos would be an unduly burdensome way to protect State andlocal government construction, custodial and brake and clutch repair workers from the risks ofexposure to asbestos. There may still be appropriate uses for asbestos and products containingasbestos. It is not necessary to burden the economy by prohibiting or limiting the manufacture,processing, or distribution in commerce of asbestos in order to protect a small segment of thepopulation from exposure to asbestos from such products.
b. A requirement prohibiting or limiting the manufacture, processing, ordistribution in commerce of asbestos for a particular use or for a particular use in excess of aspecified concentration (TSCA section 6(a)(2)) . As with the option under TSCA section 6(a)(1),EPA did not select this option because such a requirement would only protect workers from therisks of future uses of asbestos. This proposal would protect workers from the risks posed byboth future asbestos uses and existing installations of asbestos, which have already beenmanufactured, processed, or distributed in commerce and are now in use. Moreover, prohibiting or limiting the manufacture, processing, or distribution in commerce of particular uses of asbestoswould be an unduly burdensome way to protect a small segment of the population from exposureto asbestos from such uses.
c. A requirement that asbestos and asbestos-containing material be marked oraccompanied by a warning and instructions for its use, distribution in commerce, and/ordisposal (TSCA section 6(a)(3)) . This proposal would require, in effect, that employersensure their employees comprehend warning signs, labels, and instructions posted where asbestosis present, using, if necessary, such techniques as foreign languages, pictographs, graphics, andawareness training. Markings, warnings, or instructions by themselves, however, would notadequately reduce State and local government workers' exposure to asbestos. These workers'exposure to asbestos during construction work or brake and clutch repair and service work isdependent on the industrial hygiene practices in the workplace, which are largely in the control ofthe employer. Therefore, this rule would require employers to provide additional protections toreduce their employees' exposure to asbestos.
d. A requirement controlling manufacture and processing of asbestos andrequiring manufacturers and processors to keep records of their manufacturing or processingprocesses and monitor those processes (TSCA section 6(a)(4)) . EPA did not select thisoption because such a requirement would only protect workers from the risks of future uses ofasbestos. This proposal would protect workers from the risks posed by both future asbestos usesand existing installations of asbestos, which have already been manufactured, processed, ordistributed in commerce and are now in use. Moreover, controlling the manufacture or processing of particular uses of asbestos would be an undulyburdensome way to protect a small segment of the population from exposure to asbestos fromsuch uses.
e. A requirement prohibiting or otherwise regulating any manner or method ofcommercial use of asbestos (TSCA section 6(a)(5)) . The asbestos present in buildings and invehicles was sold as commercial products. Therefore, construction work or brake and clutchrepair is commercial activity subject to this section. This proposed rule would regulate themanner and method of use of these commercial products by establishing worker protection,training, and hazard communication requirements for State and local government employerswhose employees install and maintain these products.
f. A requirement prohibiting or otherwise regulating any manner or method ofdisposal of asbestos by anyone who manufactures, processes, uses, or disposes of asbestos forcommercial purposes (TSCA section 6(a)(6)) . The removal of asbestos is disposal forcommercial purposes subject to this section. Management of asbestos in place is use forcommercial purposes. This proposed rule would regulate the manner and method of disposal ofthese commercial products by establishing worker protection, training, and hazard communicationrequirements for State and local government employers whose employees remove these products.
g. A requirement directing manufacturers or processors of asbestos to notifydistributors of asbestos, and others in possession of or exposed to asbestos, of unreasonablerisks of injury from asbestos, to give public notice of those risks, and to replace or repurchaseasbestos (TSCA section 6(a)(7)) . EPA did not select this option for this proposed rule. Aswith labeling and marking requirements, notifications by themselves would not adequately reduceState and local government workers' exposure to asbestos. These workers' exposure to asbestosduring construction work or brake and clutch repair and service work is dependent on theindustrial hygiene practices in the workplace, which are largely in the control of the employer.This proposed rule would require employers to use appropriate engineering controls and workpractices, and provide their employees with personal protection equipment to reduce theiremployees' exposure to asbestos. A requirement for the manufacturers to replace or repurchaseasbestos-containing building products would also not protect the State and local governmentworkers who must remove installed building products.
h. Conclusion . Therefore, having considered the regulatory options inTSCA section 6(a)(1) through 6(a)(7), EPA finds that the least burdensome option for protectingState and local government employees is a regulation based on TSCA sections 6(a)(3), 6(a)(5),and 6(a)(6). This determination is specific to this rulemaking, and EPA may, if warranted, takeadditional actions to address asbestos risks in the future. If any commenter believes that there is afeasible, less burdensome alternative to the action proposed here that would sufficiently mitigatethe unreasonable risk that is the subject of this rulemaking and outweigh the Agency's stronginterest in consistency and equity, the commenter should identify this option in the comments andexplain how it would sufficiently mitigate the unreasonable risk in a less burdensome manner thanthe option proposed by the Agency.
3. Consideration of other Federal laws . TSCA sections 6(c) and 9 requireEPA to consider whether other Federal statutes and regulations are available to address a risk thatwould otherwise merit regulatory action under TSCA section 6(a). EPA's consideration of otherrelevant Federal authorities follows.
a. Actions under other Federal laws administered by EPA . Under TSCA section 6(c), EPA may not promulgate a rule under TSCA section 6(a) if EPA determines that arisk of injury to health or the environment could be eliminated or reduced to a sufficient extent byactions taken under another statute administered by EPA, unless EPA finds it is in the publicinterest to protect against the risk by action under TSCA. (See also TSCA section 9(b).) EPAhas analyzed other statutes administered by EPA and concludes that none provide sufficientauthority to eliminate or reduce the risks to State and local government workers from asbestos.
• Clean Air Act (CAA) . On April 6, 1973, EPA used the authority of the CAA to list asbestos as a hazardous air pollutant, establish a "no visible emissions" standardfor manufacturers, and ban the use of spray-applied asbestos-containing material as insulation inbuildings (Ref. 21). EPA amended this regulation on October 12, 1975, to ban asbestos-containing pipe lagging (Ref. 22), and on June 19, 1978, extended the ban to all uses of sprayed-on asbestos (Ref. 23). Under the CAA, EPA also regulates operations involving the demolition orrenovation of buildings containing friable asbestos and the disposal of wastes generated by suchoperations. However, the CAA does not apply directly to the protection of workers exposed toindoor air. Consequently any possible additional use of that statute could leave many workersinadequately protected from asbestos in indoor air.
• Resource Conservation and Recovery Act (RCRA) . Under RCRA, 42 U.S.C. 6901-6992k, EPA could list asbestos as ahazardous waste and subject asbestos waste to general requirements designed to protect humanhealth. However, RCRA jurisdiction is limited to those materials that the Agency has determinedare wastes. Many of the activities covered by this rule do not involve handling of asbestos aswaste. For example, this proposed rule would adopt by cross-reference standards for repair,maintenance and installation of asbestos-containing materials referenced at 29 CFR1926.1101(a)(3) and (4). While RCRA authority could extend to reduction of worker exposureto the extent activities covered by this proposed rule involve waste handling, it could not cover allthe risks these activities pose to workers. Thus, RCRA regulations could not reduce risks to asufficient extent.
b. Actions under Federal laws not administered by EPA . Under TSCAsection 9(a), EPA is required to review other Federal authorities not administered by EPA todetermine whether action under those authorities may prevent or reduce a given risk. The onlystatute not administered by EPA that addresses risks from workplace exposure to asbestos is theOSH Act. However, the OSH Act does not apply to State and local government employees. TheOSH Act does provide that a State can adopt an asbestos standard as part of its own State workerprotection plan, subject to approval by the Secretary of Labor. Twenty-three States haveimplemented State plans. Twenty-seven States do not have OSHA-approved State plans. EPAhas therefore determined that there is no statute administered by another Federal agency that canprevent or reduce the risk of asbestos exposure presented to State and local governmentemployees not covered by OSHA-approved State plans during asbestos-related construction andbrake and clutch repair work. EPA's analysis of this issue is discussed in the Federal Register of April 25, 1986 (Ref. 2).
c. Consultation and coordination with other Federal agencies . TSCAsection 9(d) directs that in implementing TSCA, EPA consult and coordinate with other Federalagencies for the purpose of achieving the maximum enforcement of TSCA while imposing theleast burdens of duplicative requirements on those who must comply with those requirements.As a result of the close working relationship with OSHA, EPA finds that the most effective way of eliminating duplication and overlap and ensuringconsistency between the WPR and the OSHA Asbestos Standards is by cross-referencing theOSHA Asbestos Standards set out at 29 CFR 1910.1001 and 29 CFR 1926.1101.
The goals both of Congress and of the Administrationwould be advanced by ensuring that the WPR and the OSHA Asbestos Standards offer consistent protections and offerthem at the same time to both public and private sector workers. The legislative history of TSCAreflects Congress' concern that some of the greatest risks from exposure to toxic chemicals occurin the workplace. Congress clearly intended that TSCA be available to address those risks, but, atthe same time, acknowledged OSHA's expertise in establishing workplace standards. TSCA section 9(d) reflects Congress' desire that EPA and OSHA work together inidentifying and protecting against risks to workers from toxic chemicals. Therefore, EPA has,since 1985, exercised its authority under TSCA section 6 to fill the gap in coverage in the OSHAct by protecting State and local government employees from the risks of asbestos, and has doneso in a way that imposes the least burden of duplicative requirements by maintaining consistencywhere possible between the WPR and the OSHA Asbestos Standards.
While it has always been EPA policy to maintain consistency between the WPR andthe OSHA Asbestos Standards, prior to this proposal EPA has implemented this policy byreprinting those requirements in full at 40 CFR part 763, subpart G. However, OSHA hasfrequently revised its standard (the CFR lists thirteen rules revising the Asbestos Standard since1986). EPA must wait until the OSHA revisions are finalized before initiating conformingchanges to the WPR. By the time EPA's conforming changes take effect, OSHA has issued newrevisions to the Asbestos Standard. The result is that the WPR has, in fact, rarely beencompletely consistent with the OSHA Standards, and, as more protective and less burdensomestandards have gone into effect for the private sector, protections for State and local governmentemployees have lagged behind. If the WPR cross-referenced the OSHA Asbestos Standardsinstead of reprinting them in full, revisions to the OSHA standard would take effect at the sametime in the WPR, and public and private sector employees would be protected equally against therisks of asbestos.
d. Conclusion . Therefore, having considered whether other Federal statutesand regulations are available to address the risks from exposure to asbestos among State and localgovernment employees during use or disposal in construction work and in brake and clutch repairwork, EPA concludes that rulemaking under TSCA section 6 is necessary to provide adequateprotection against that risk to State and local government employees who are not otherwisecovered under an OSHA-approved State plan that is as effective as the OSHA regulations, or aState asbestos worker protection plan exempted from the requirements of the WPR by EPA under40 CFR 763.123.
4. Analysis of regulatory alternatives . EPA considered and analyzed fourregulatory alternatives or options in developing this proposed rule:
• Option A . Both the PEL and the scope of the proposed rule remainunchanged (i.e., no action).
• Option B . The PEL is lowered from 0.2 f/cc to 0.1 f/cc, but the scope ofthe proposed rule remains the same.
• Option C . The PEL remains the same, but the scope of the proposed ruleis expanded to include new construction, maintenance, renovation, custodial, and brake and clutch repair activities.
• The proposed rule . The PEL is lowered from 0.2 f/cc to 0.1 f/cc, and the scope of the proposed rule is expanded to include new construction, maintenance, renovation, custodial, and brake and clutch repair activities.
| Option | PEL | Scope |
|---|---|---|
| A (no action) | 0.2 f/cc | Abatement activities only |
| B | 0.1 f/cc | Abatement activities only |
| C | 0.2 f/cc | New construction, abatement, maintenance, renovation, custodial, and brake and clutch repair activities |
| Proposed rule | 0.1 f/cc | New construction, abatement, maintenance, renovation, custodial, and brake and clutch repair activities |
See Table 5-1 of the Economic Analysis (Ref. 18). For each of the four options, the State-level coverage would remain the same: The rule (or option) would continue to cover State and local government employees in States without OSHA-approved State plans.
a. Quantified costs and benefits . EPA estimated the costs and benefits forOptions A, B, C, and the proposed rule. In estimating the benefits for each option, EPAestimated the number of avoided cancer cases among exposed workers, building occupants, andschool children, associated with 65 years of reduced asbestos exposure. EPA also placed amonetary value on the avoided risk associated with the 65 years of reduced exposure and thencalculated the present monetary value of the avoided cancer risk. EPA estimated compliancecosts by calculating the first-year compliance cost of each option. This estimate was extrapolatedover 65 years of exposure reduction, assuming building attrition would cause the costs ofabatement, renovation, maintenance, and custodial activities to decline over time, whileadministrative, new construction, and brake and clutch repair activity costs would not be affectedby building attrition.
• Option A-PEL unchanged, scope unchanged (baseline) . Under OptionA, the current version of the WPR (40 CFR part 763, subpart G) would remain in effect. ThePEL would remain unchanged at 0.2 f/cc and the proposed rule would apply only to abatementactivities. This option would result in no incremental costs or benefits.
• Option B-reduced PEL, scope unchanged . Under Option B, the PELwould be reduced from 0.2 f/cc to 0.1 f./cc, but the scope of the proposed rule would remainunchanged. Thus, compared to the current rule, Option B would reduce exposure to asbestosamong abatement workers and incidentally exposed populations in affected buildings, but wouldnot apply to additional activities. EPA estimates that, over 65 years, Option B would reduceasbestos exposure to a total of 201,275 people, of whom 65 would be exposed workers and theremainder would be building occupants and school children. EPA estimates that this exposurereduction would, over 65 years, prevent 0.36 cases of asbestos-related cancer among this totalpopulation, which translates into an estimated present value of $1.07 million. Excluding buildingoccupants and school children, Option B results in 0.17 avoided cancer cases associated with 65years of exposure reduction, which has an estimated present value of $0.59 million. The estimated65-year present value of compliance costs for Option B is $24.00 million.
• Option C-PEL unchanged, expanded scope . Option C would leave thePEL unchanged from the current WPR at 0.2 f/cc, but would expand the scope of the WPR toinclude new construction, maintenance, renovation, custodial, and brake and clutch repairactivities, in addition to the abatement activities covered by the current WPR. Compared to thecurrent rule, Option C would provide an expanded scope of coverage, but would not increase thelevel of protection (i.e., the PEL would remain 0.2 f/cc). EPA estimates that, over 65 years,Option C would reduce asbestos exposure for a total population of 71.9 million individuals,102,700 of whom would be directly exposed workers and the remainder of whom would beincidentally exposed building occupants and school children. EPA estimates that 65 years ofexposure reduction would lead to 26.85 avoided cases of asbestos-related cancer among this totalpopulation, with an estimated present value of $83.46 million. Among exposed workers, thereduction in cancer incidence is estimated to be 17.2 cases associated with 65 years of exposurereduction, which has an estimated present value of $59.48 million. The estimated 65-year presentvalue of total compliance costs for Option C is $939.53 million.
• The proposed rule-reduced PEL, expanded scope . The proposed rulewould lower the PEL from 0.2 f/cc to 0.1 f/cc and expand the scope of the asbestos WPR toinclude new construction, maintenance, renovation, custodial, and brake and clutch repairactivities in addition to the abatement activities covered by the current WPR. The proposed rulewould provide protection to a total population of 71.9 million over 65 years of exposurereduction, 102,765 of whom are exposed workers. Furthermore, the proposed rule would reducethe number of asbestos-related cancers associated with 65 years of exposure by 137.23 cases,valued at an estimated present value of $405.45 million. Excluding building occupants and schoolchildren (i.e., focusing on just exposed workers), the proposed rule results in 67.63 avoidedcancer cases associated with 65 years of exposure reduction, with an estimated present value of$234.32 million. The estimated 65-year present value of compliance costs is $1,124.42 million.
b. Comparison of quantified costs and benefits . For each option and theproposed rule, EPA estimated the costs, benefits, and net benefits for all populations (exposedworkers, building occupants, and school children) and for exposed workers only. The cost,benefit, and net benefit estimates for exposed workers are singled out because the rule is directedat reducing the exposure of this population and because building occupants and school childrenare only incidentally exposed. EPA compared the four options using six quantitative criteria.
• Protectiveness . The proposed rule and Option B would set the PEL at 0.1f/cc, while Options A and C would set the PEL at 0.2 f/cc. Thus, the proposed rule and Option Bare both more protective than Options A and C.
• Scope . The proposed rule and Option C would both provide incrementalprotection to significantly larger populations than Options A and B. Both the proposed rule andOption C would provide incremental protection to a population of 71.9 million, of which slightlyless than 103,000 are exposed workers. Option B would provide additional protection to apopulation of only 201,275 (0.28% of the population protected by the proposed rule), of which65 are exposed workers (0.06% of the exposed workers protected by the proposed rule). OptionA, which would not change the current asbestos WPR, would not provide additional protection toany populations.
• Estimated benefits . The proposed rule would result in significantly moreavoided cancer cases and, consequently, a significantly larger level of monetized benefits whencompared with the other regulatory options. The proposed rule would reduce the incidence ofasbestos-related cancers associated with 65 years of exposure reduction by 137 cases, whichwould result in a monetary benefit of $405 million. Among exposed workers, the proposed rulewould reduce the incidence of asbestos-related cancer associated with 65 years of exposurereduction by 68 cases, valued at $234 million. Option C would reduce the asbestos-related cancerincidence by only 27 cases (19.6% of the proposed rule's total), valued at $83 million (20.6% ofthe proposed rule's total). Among exposed workers, Option C would reduce the incidence ofasbestos-related cancer by 17 cases (25.4% of the proposed rule's total), valued at $59 million(25.4% of the proposed rule's total). Option B would result in approximately $1.0 million inmonetized benefits while Option A would result in no incremental avoided cases and thus noincremental monetized benefits.
• Estimated compliance costs . Option A is the least costly of the fouroptions, resulting in no ($0) incremental compliance costs because no incremental action would berequired. The proposed rule is the most costly option, resulting in a 65-year present valuecompliance cost of $1.1 billion. For Option B, the 65-year present value of compliance costs is$24.00 million (2.1% of the proposed rule's total), while for Option C, the 65-year present valueof compliance costs is $939.53 million (83.6% of the proposed rule's total).
• Efficiency . Option A would result in the largest monetized net benefit(monetized benefits minus monetized costs), which is $0. Each of the other options would resultin negative net benefits, or a net cost. The proposed rule would result in the second largest netcost, with costs exceeding estimated benefits by $719 million. The estimated costs for Option Cexceed its estimated benefits by $856 million (19.1% larger than the net cost for the proposedrule), and the estimated costs for Option B exceed its estimated benefits by $22.93 million (3.2%of the proposed rule's total).
• Ratio of estimated compliance costs to estimated benefits .. The following table presents the cost-benefit ratio for each option. The cost-benefit ratio,measured as the ratio of compliance costs to monetized benefits, measures the cost that would beincurred for each dollar of benefits. The proposed rule has the lowest (i.e., most preferable) costbenefit ratio for both all exposed populations (2.77) and exposed workers alone (4.80). Option Chas a cost-benefit ratio of 11.26 for all exposed populations (4.07 times the cost-benefit ratio forthe proposed rule) and 15.80 for exposed workers alone (3.29 times the cost-benefit ratio for theproposed rule). Option B has a cost-benefit ratio of 22.43 for all exposed populations (8.10times the cost-benefit ratio for the proposed rule) and 40.68 for exposed workers alone (8.48 times the cost-benefit ratio for the proposed rule). Cost-benefit ratios could not be calculated for Option A because costs and monetized benefits are both $0.
| Option/section | PEL (f/cc) | Incremental population protected | Estimated benefits | Avoided cancer cases | Present monetary value ($millions) | Present value of compliance costs ($millions) | Estimated net benefit ($millions) | Cost-benefit ratio |
|---|---|---|---|---|---|---|---|---|
| Proposed Rule-PEL Reduced, expanded scope: | ||||||||
| All populations | 0.1 | 71,887,159 | 137.23 | $405.45 | $1,124.42 | ($718.97) | 2.77 | |
| Exposed workers | 0.1 | 102,765 | 67.63 | $234.32 | $1,124.42 | ($890.09) | 4.80 | |
| Option A (baseline)-PEL unchanged, scope unchanged: | ||||||||
| All populations | 0.2 | 0 | 0.00 | $0.00 | $0.00 | $0.00 | ||
| Exposed workers | 0.2 | 0 | 0.00 | $0.00 | $0.00 | $0.00 | ||
| Option B-PEL Reduced, scope unchanged: | ||||||||
| All populations | 0.1 | 201,275 | 0.36 | $1.07 | $24.00 | ($22.93) | 22.43 | |
| Exposed workers | 0.1 | 65 | 0.17 | $0.59 | $24.00 | ($23.41) | 40.68 | |
| Option C-PEL unchanged, expanded scope: | ||||||||
| All populations | 0.2 | 71,886,942 | 26.85 | $83.46 | $939.53 | ($856.07) | 11.26 | |
| Exposed workers | 0.2 | 102,548 | 17.20 | $59.48 | $939.53 | ($880.05) | 15.80 |
See Table 5-8 of the Economic Analysis (Ref. 18).
Based on these comparisons, EPA has selected the proposed rule as the preferred option for the following reasons:
• The proposed rule would be the most protective (i.e., would result in the lowestPEL).
• The proposed rule would provide incremental protection to the largest population.
• The proposed rule would result in the largest benefits.
• The proposed rule would offer the lowest ratio of costs to benefits.
The proposed rule, however, would also be the most costly and would result in thesecond largest net cost among the four options. Nevertheless, EPA has determined that theincreased cost and net cost are justified by the additional benefits and protection offered by theproposed rule. In moving from Option C to the proposed rule, the compliance costs increase by afactor of 1.2 ($1.1 billion ÷ $939.53 million), but the number of avoided cancer cases increases bya factor of 5.1 (137.23 cases ÷ 26.85 cases). Likewise, in moving from Option B to the proposedrule, the compliance costs increase by a factor of 46.85 ($1.1 billion ÷ $24.00 million), but thenumber of avoided cancer cases increases by a factor of 381 (137.23 cases ÷ 0.36 cases). EPAdoes not consider Option A to be a viable option because it does not result in any additionalprotection.
c. Comparison of non-quantified benefits . EPA has identified a number ofbenefits that could not be quantified (see Unit II.B.1.a.). Included among these benefits are:
• Reductions in the incidence of asbestosis.
• Reductions in the incidence of pleural plaques and pleural effusion.
• Reductions in productivity losses associated with non-cancerous health effects.
• Reductions in medical costs associated with non-cancerous health effects.
• Improved quality of life.
• Decreased risk for individuals who may be incidentally exposed to asbestos,including building visitors and members of workers' families.
As discussed in Unit II.B.1.a., EPA was unable to provide quantitative estimates for the benefit categories listed in this unit. It is possible, however, to compare the four options interms of their protectiveness and scope, and draw some conclusions with regard to the option thatwould provide the largest level of benefits for each benefit category. Each of the benefits listed inthis unit are positively influenced by the level of protection (i.e., a lower PEL implies morebenefits) and by the incremental population covered (i.e., a larger incremental population impliesmore benefits). Thus, options can be compared and ranked based on these two criteria.
The following table provides EPA's ranking of the proposed rule and the threealternative options in terms of the level of the benefit that each would provide. In the table, aranking of 1 indicates that EPA expects that option to provide the largest level of benefits amongthe four options, while a ranking of 4 indicates that EPA expects that option to provide the leastbenefits among the four options.
These rankings reveal three distinct trends in comparing the four options. First, theproposed rule is always expected to produce the largest level of benefits. The proposed rule is atleast as protective (i.e., in terms of value of the PEL) as each of the other options and providesprotection to a larger incremental population than the other three options. Based on these twoconsiderations, the proposed rule should provide a larger level of each non-quantified benefit,compared to the other options. This is consistent with ranking of the quantified benefits, wherethe proposed rule would result in the largest reduction in asbestos-related cancer. Second, OptionA would provide the lowest level of benefits in each non-quantified benefit category. This followsfrom the fact that Option A involves no changes to the current WPR. Thus, since the proposedrule and both Options B and C provide either additional coverage or a reduced PEL, all threeoptions must provide a larger level of benefit compared to Option A. Finally, it is not possible todetermine the relative ranks of Options B and C. On the one hand, Option B offers more protection (in terms of a lower PEL) but on the other hand Option C provides incremental protection to a larger population.
| Non-quantified benefit | Proposed rule | Option A | Option B | Option C |
|---|---|---|---|---|
| Reductions in the incidence of asbestosis | 1 | 4 | 2 | 2 |
| Reductions in the incidence of pleural plaques and pleural effusion | 1 | 4 | 2 | 2 |
| Reductions in productivity losses associated with non-cancerous health effects | 1 | 4 | 2 | 2 |
| Reductions in medical costs associated with non-cancerous health effects | 1 | 4 | 2 | 2 |
| Improved quality of life | 1 | 4 | 2 | 2 |
| Decreased risk for individuals who may be incidentally exposed to asbestos, including workers' families | 1 | 4 | 2 | 2 |
| Note: These are subjective rankings based on EPA's best professional judgement only. | ||||
See Table 5-9 of the economic Analysis (Ref. 18).
d. Qualitative measures of costs and benefits . This proposed rule would establishconsistency between the protections offered under the WPR to State and local governmentemployees working with asbestos-containing materials and under the OSHA Construction andGeneral Industry Standards to private sector employees working with those materials. Fairnessand equity dictate equivalent protection for all persons who work with asbestos-containingmaterials, whether those persons are employed by the private sector or by a specific State or localgovernment. Currently, all private sector workers, as well as State and local governmentemployees in the 23 States that have OSHA-approved State plans, are protected by the morestringent OSHA regulations. EPA is proposing to achieve equity for the remaining State andlocal government workers by amending the WPR to adopt recent amendments to the OSHAAsbestos Standards that provide additional worker protections.
The OSHA Asbestos Standards, as amended in 1994, establish a PEL of 0.1 f/cc forall exposed workers. EPA's current asbestos WPR covers only abatement workers and sets aPEL of 0.2 f/cc. Thus, the current EPA rule is less protective (i.e., is based on a higher PEL) andcovers fewer exposed workers (i.e., only abatement workers) than the OSHA standards. Theproposed rule would eliminate these inequities by providing identical protection and coverage toState and local government employees performing asbestos-related work in States withoutOSHA-approved State plans.
Options A, B, or C would not provide these State and local government employeeswith the same protection and coverage as the OSHA Standards provide to private sector workers.Option A would provide less protection (i.e., a higher PEL) and would cover workers in feweractivities compared to those covered by OSHA. Option B would provide the same level ofprotection (i.e., the same PEL), but would cover workers in fewer activities compared to thosecovered by OSHA. Option C would cover the same number of activities, but would provide lessprotection (i.e., a higher PEL).
Therefore, the proposed rule is preferable to the other three options consideredbecause it would provide equity in terms of protectiveness and coverage between workers in theprivate sector and State and local government employees.
e. Summary . Based on its comparison of the four options' estimatedquantified costs and benefits, estimated non-quantified benefits, and qualitative measures of costsand benefits, EPA has determined that the proposed rule provides the greatest net benefitscompared to the other three options considered, especially in light of the equity considerationsdiscussed in Unit II.B.4.
• Estimated quantified costs and benefits . The proposed rule is the mostprotective (i.e., lowest PEL), provides incremental protection to the largest exposed population,results in the largest benefits, and offers the lowest ratio of costs to benefits. The proposed rule,however, is the most costly and results in the second largest net cost among the four options(though all options with the exception of Option A result in a negative net benefit). Nevertheless,EPA finds that the increased cost is justified by the additional benefits and protection offeredby the proposed rule.
• Estimated non-quantified benefits . EPA expects that the proposed rulewould result in a larger level of benefits for each unquantifiable category of benefits in comparisonwith each of the other three options. EPA bases this conclusion on the fact that the proposed ruleis at least as protective (i.e., in terms of value of the PEL) as each of the other options andprovides protection to a larger incremental population than the other three options.
• Qualitative measures of costs and benefits . The proposed rule is the onlyoption that would provide coverage comparable to the OSHA Asbestos Standards. The proposedrule would provide public employees in States without approved OSHA State plans with the samelevel of protection (i.e., the PEL) and would cover the same set of activities as is covered in theOSHA standards. The other options would provide less protection (Options A and C) or lessscope of coverage (Options A and B) compared to OSHA's Asbestos Standards.
III. References
1. U.S. Environmental Protection Agency (USEPA), Office of Toxic Substances (OTS). Asbestos Abatement Projects; immediately effective proposed rule. Federal Register (50 FR 28530, July 12, 1985).
2. USEPA, OTS. Asbestos Abatement Projects; final rule. Federal Register (51 FR 15722, April 25, 1986).
3. USEPA, OTS. Asbestos Abatement Projects, Worker Protection; final rule. Federal Register (52 FR 5618, February 25, 1987).
4. U.S. Department of Labor (DOL), Occupational Safety and Health Administration(OSHA). Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite; final rules,amendment. Federal Register (53 FR 35610, September 14, 1988). (Available on theOSHA web site at http://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
5. DOL, OSHA. Occupational Exposure to Asbestos, Tremolite, Anthophyllite andActinolite; final rule, partial response to court remand. Federal Register (54 FR 52024,December 20, 1989). (Available on the OSHA web site athttp://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
6. DOL, OSHA; Occupational Exposure to Asbestos; final rule, partial response tocourt remand. Federal Register (55 FR 3724, February 5, 1990). (Available on theOSHA web site at http://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
7. USEPA, OPPTS. Asbestos Worker Protection; Asbestos-Containing Materials inSchools; proposed rule. Federal Register (50 FR 54746, November 1, 1994) (FRL-3801-3).
8. DOL, OSHA. Occupational Exposure to Asbestos; final rule. FederalRegister (59 FR 40964, August 10, 1994). (Available on the OSHA web site athttp://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
9. DOL, OSHA. Occupational Exposure to Asbestos; final rule, extension of start-updates for compliance. Federal Register (60 FR 33343, June 28, 1995). (Available on theOSHA web site at http://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
10. DOL, OSHA. Occupational Exposure to Asbestos; corrections to final rule. Federal Register (60 FR 33974, June 29, 1995). (Available on the OSHA web site athttp://www.osha-slc.gov/OCIS/toc_fedlowbarm;reg.htmlhtml).
11. DOL, OSHA. Occupational Exposure to Asbestos; corrections to final rule. Federal Register (60 FR 36043, July 13, 1995). (Available on the OSHA web site athttp://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
12. DOL, OSHA. Occupational Exposure to Asbestos; final rule, amendments. Federal Register (60 FR 50411, September 29, 1995). (Available on the OSHA web siteat http://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
13. DOL, OSHA. Occupational Exposure to Asbestos, Tremolite, Anthophyllite andActinolite; final rule, corrections. Federal Register (61 FR 43454, August 23, 1996). (Available on the OSHA web site at http://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
14. DOL, OSHA. Respiratory Protection; final rule, request for comment onpaperwork requirements. Federal Register (63 FR 1152, January 8, 1998). (Available onthe OSHA web site at http://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
15. DOL, OSHA. Respiratory Protection; final rule, correction. FederalRegister (63 FR 20098, April 23, 1998). (Available on the OSHA web site athttp://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
16. DOL, OSHA. Occupational Exposure to Asbestos; final rule. FederalRegister (63 FR 35137, June 29, 1998). (Available on the OSHA web site athttp://www.osha-slc.gov/OCIS/toc_fed_reg.htmlhtml).
17. USEPA, Office of Prevention, Pesticides and Toxic Substances (OPPTS), National Program Chemical Division (NPCD), Fibers and Organics Branch (FOB). Response to Comments Document, Proposed Amendments to Asbestos Worker Protection Rule. November 1, 1994.
18. USEPA, OPPTS, Economics, Exposure, and Technology Division (EETD). Proposed Asbestos Worker Protection Rule EconomicAnalysis. February 22, 2000.
19. USEPA, OTS. Recommended Interim Guidance for Maintenance of Asbestos-Containing Floor Coverings. January 25, 1990.
20. Service Employees International Union. Comments on Asbestos WorkerProtection: Asbestos-Containing Materials in Schools; Proposed Amendment (Testimony of Bill Borwegen before the Occupational Safety and Health Administration). OPPTS Docket #62125, C1-011. January 3, 1995.
21. USEPA. National Emission Standards for Hazardous Air Pollutants; Asbestos,Beryllium, and Mercury. Federal Register (38 FR 8820, April 6, 1973).
22. USEPA. National Emission Standards for Hazardous Air Pollutants; Asbestosand Mercury. Federal Register (40 FR 48292, October 14, 1975).
23. USEPA.; National Emission Standards for Hazardous Air Pollutants; AsbestosStandard; amendments. Federal Register (43 FR 26372, June 19, 1978).
24. DOL, OSHA. Letter to the Honorable Jay Johnson re: OSH Act applicability totribal land workplaces and employers. March 12, 1998.
25. National Institute of Building Sciences. Asbestos Abatement and Management in Buildings, Model Guide Specifications. 3rd Edition Document #2101-2. August 12, 1988.
26. National Institute of Building Sciences. Guidance Manual, Asbestos Operationsand Maintenance Work Practices. 2nd Edition. Document #5076-7. December1996.
27. American Society for Testing and Materials. Standard Practice for VisualInspection of Asbestos Abatement Projects (E 1368-99).
28. American Society for Testing and Materials. Standard Practice for Encapsulantsfor Spray-or-Trowel-Applied Friable Asbestos-Containing Building Materials (E 1494-92).
29. American National Standards Institute. American National Standard forRespiratory Protection (ANSI Z88.2-1992).
IV. Regulatory Assessment Requirements
A. Regulatory Planning and Review
Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a "significant regulatory action" subject toreview by the Office of Management and Budget (OMB), because this action is not likely toresult in a rule that meets any of the criteria for a "significant regulatory action" provided insection 3(f) of the Executive Order.
EPA has prepared an analysis of the potential impact of this action, which isestimated to cost $63.34 million in the first year of the rule and then decline annually thereafter.The analysis is contained in a document entitled "Economic Analysis of the Asbestos WorkerProtection Rule" (Ref. 18). 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.), and is briefly summarized in Unit II.B.
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), as amended bythe Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq ., EPA hereby certifies that this proposed action, if promulgated as proposed, willnot have a significant economic impact on a substantial number of small entities. The factualbasis for EPA's determination is presented in the small entity impact analysis prepared as part ofthe Economic Analysis for this proposed rule (Ref. 18), and is briefly summarized here.
For purposes of analyzing potential impact on small entities, EPA used thedefinition 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 13CFR 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 independently ownedand operated and is not dominant in its field.
Of the three categories of small entities, only small governmental jurisdictions are affectedby this proposed rule. As such, EPA's analysis of potential small entity impacts assesses thepotential impacts on small governmental jurisdictions.
Based on the definition of "small government jurisdiction," no State-levelgovernment covered by the asbestos WPR can be considered small. Therefore, the smallgovernment entities potentially impacted by the proposed asbestos WPR are local governments(e.g., county, municipal, or towns) and school districts.
The proposed amendments to the asbestos WPR may impact local governments inthe 27 States without approved OSHA State plans by imposing incremental compliance costs forasbestos-related maintenance, renovation, and brake and clutch repair. There are 24,495 smallgovernment 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 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 inArkansas and Delaware, where the upper bound estimate of compliance costs as a percent ofavailable revenues is estimated to be 0.051%. For small local governments as a whole,compliance costs associated with the asbestos WPR are estimated to represent 0.024% ofavailable revenues. Therefore, the Agency has concluded that the asbestos WPR will not have asignificant impact on small government entities.
Small school districts are defined as school districts serving a resident population ofless than 50,000. In the 27 covered States, there are 17,846 small school districts that arepotentially impacted by the asbestos WPR. The estimated impact of compliance costs on allsmall school districts is estimated to be 0.01% of available revenues. The largest impact isestimated for Mississippi where compliance costs as a percent of available revenues areestimated to equal 0.013%. The Agency has therefore concluded that the proposed asbestosWPR will not have a significant effect on the revenues of small school districts.
Although this proposed rule will not have a significant economic impact on asubstantial number of small entities, EPA is interested in comments and suggestions for furtherreducing the potential impact for small entities. In particular, EPA is interested in how anyfurther reductions might be achieved while ensuring that the WPR remains consistent with theOSHA Asbestos Construction and General Industry Standards. EPA requests comment onopportunities for burden reduction and other issues related to impacts on small entities.
Additional details regarding EPA's basis for this certification are presented in theEconomic Analysis (Ref. 18), which is included in the public version of the official record forthis action. This information will also be provided to the SBA Chief Counsel for Advocacyupon request. Any comments regarding the impacts that this action may impose on smallentities should be submitted to the Agency in the manner specified in Unit I.C.
C. Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq .,an agency may not conduct or sponsor, and a person is not required to respond to, a collection ofinformation unless it displays a currently valid OMB control number. The OMB control numbersfor EPA's regulations, after appearing in the preamble to the final rule, are listed in 40 CFR part 9,and included on the related collection instrument.
The information collection requirements contained in this proposed rule have beensubmitted to OMB for review and approval pursuant to the PRA and OMB implementingregulations at 5 CFR 1320 et seq . The burden and costs related to the informationcollection requirements contained in this proposed rule are described in an Information CollectionRequest (ICR). This ICR proposes to amend the existing ICR for the current WPR which isapproved through September 30, 2001, under OMB No. 2070-0072 (EPA ICR No. 1246.06). Acopy of this ICR, which is identified as EPA ICR No. 1246.07, has been included in the publicversion of the official record described in Unit 1.B.2., and is available electronically as describedin Unit I.B.1., at http://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, CollectionStrategies Division, Environmental Protection Agency (2822), Ariel Rios Bldg., 1200Pennsylvania Ave., NW., Washington, DC 20460, or by calling (202) 260-2740.
As described in Unit II.A.2., this amendment would require employers to collect,disseminate, and maintain information relating to employee asbestos exposures, respiratoryprotection, 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 theWPR, as authorized under TSCA sections 6 and 8.
The public reporting burden for this collection of information is estimated to average,on an annual basis, 21.96 hours per respondent, including the time for reviewing instructions,gathering and maintaining the data needed, and completing and reviewing the collection ofinformation. EPA estimates that 25,312 respondents would incur these burdens, for a totalannual respondent burden of 555,870 hours.
As defined by the PRA and 5 CFR 1230.3(b), "burden" means the total time, effort,or financial resources expended by persons to generate, maintain, retain, or disclose or provideinformation 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 andproviding information; adjust the existing ways to comply with any previously applicableinstructions 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 otherwisedisclose the information.
Comments are requested on EPA's need for this information, the accuracy of theprovided burden estimates, and any suggested methods for minimizing respondent burden,including through the use of automated collection techniques. Send comments on the ICR toEPA as part of your overall comments on this proposed rule in the manner specified in Unit I.C.Send a copy of your comments on the ICR to OMB as specified by 5 CFR 1320.11(a), by mailingthem to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW., Washington, DC 20503, marked "Attention: Desk Officer for EPA."Include the ICR number in any correspondence. Since OMB is required to make a decisionconcerning the ICR between 30 and 60 days after April 27, 2000, a comment to OMB is best assured of having its full effect if OMB receives it by May 30, 2000. In developing the final action, EPA will consider any OMB or public comments received regarding the information collection requirements contained in this proposal.
D. Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, (UMRA),Public Law 104-4, EPA has determined that this rule does not contain a Federal mandatethat may result in expenditures of $100 million or more for State, local, and tribal governments,in the aggregate, or the private sector in any 1 year. As discussed in the Economic Analysisaccompanying this proposed rule, the rule would result in estimated expenditures of at most$63.34 million in any 1 year. In addition, EPA has determined that this proposed rule would notsignificantly or uniquely affect small governments. For small local governments as a whole,compliance costs associated with the WPR represent 0.024% of revenues assumed to beavailable for compliance. Moreover, the impact of compliance costs on small school districts asa whole would be 0.01% of available revenues. Thus, this proposed rule is not subject to therequirements 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 Stateand local government officials in the development of regulatory policies that have federalismimplications." "Policies that have federalism implications" is defined in the Executive Order toinclude regulations that have "substantial direct effects on the States, on the relationship betweenthe national government and the States, or on the distribution of power and responsibilitiesamong 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 thatpreempt State or local law, even if those rules do not have federalism implications (i.e., the ruleswill not have substantial direct effects on the States, on the relationship between the nationalgovernment and the States, or on the distribution of power and responsibilities among thevarious levels of government). Those requirements include providing State and localgovernment officials notice and an opportunity for appropriate participation in the developmentof the regulation. If the preemption is not based on express or implied statutory authority, EPAalso must consult, to the extent practicable, with appropriate State and local government officialsregarding the conflict between State law and federally protected interests within the agency'sarea of regulatory responsibility.
This proposed rule does not have federalism implications. This proposal wouldamend the existing WPR to cover additional asbestos-related activities and to bring the WPRinto conformance with recent changes to the OSHA Asbestos Standards. The proposed changesare not expected to result in a significant intergovernmental mandate under the UMRA, and thus, EPA concludes that the rule would not imposesubstantial direct compliance costs. Nor would the rule substantially affect the relationshipbetween the national government and the States, or the distribution of power and responsibilitiesamong the various levels of government. Those relationships have already been establishedunder the existing WPR, and these amendments would not alter them. Thus, the requirements ofsection 6 of the Executive Order do not apply to this proposed rule.
This proposed rule would preempt State and local law in accordance with TSCAsection 18(a)(2)(B). By publishing and inviting comment on this proposed rule, EPA hereby isproviding State and local government officials notice and an opportunity for appropriateparticipation. Thus, EPA has complied with the requirements of section 4 of the ExecutiveOrder.
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 not significantly or uniquely affect the communities of Indian tribalgovernments, nor does it impose substantial direct compliance costs on such communities. Sincethe OSHA Asbestos Standards cover tribal governments and tribal employees, the WPR does notapply to these groups (Ref. 24.). Accordingly, the requirements of section 3(b) of ExecutiveOrder 13084 do not apply to this proposed rule.
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 has considered environmental justice-related issues with regardto the potential impacts of this action on the environmental and health conditions in minority andlow-income populations. As discussed above in Unit II.B.1.e., many of the employees whowould benefit from the protections of this proposed rule are members of minority and low-income populations. By providing protection for currently unprotected State and localgovernment building maintenance and custodial employees and their families, this rule wouldaddress the lesser levels of protection in the workplace experienced by minority and low-incomepopulations among State and local government employees. In other words, the proposed rulewould not impose disproportionately high and adverse human health or environmental effects onminority or low-income populations, but would actually decrease such effects.
Public participation is an important environmental justice concern. EPA encouragesState and local government employees, and organizations representing them, to participate inthis rulemaking process by submitting comments (see Unit I.C.). In addition, interested personsor organizations may request that EPA hold an informal public hearing on this proposed rule, atwhich they may present oral comments (see Unit I.C.3.). If EPA decides to hold an informalhearing, it will publish a notice in the Federal Register announcing the time, place, anddate of the hearing, explaining how interested persons or organizations can request to participatein the hearing, and describing the hearing procedures.
EPA has considered the comments submitted on its November 1, 1994, proposal indeveloping this modified proposal. Labor organizations representing State and local governmentemployees were among the commenters. EPA also met with those organizations prior todeveloping this modified proposal.
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 thisproposed rule because it is not "economically significant" as defined under Executive Order12866. However, it is EPA's policy to consistently and explicitly consider risks to infants andchildren in all risk assessments generated during its decisionmaking 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 would prevent approximately 65.65 cancer cases amongpersons with childhood exposures to asbestos from school buildings. EPA also expects that thisproposed rule would result in other benefits associated with lower asbestos exposures, such as areduced incidence of non-cancerous health effects such as asbestosis, pleural plaques, andpleural effusion. EPA expects the proposed rule to substantially benefit children by reducing theincidental exposures children face while attending affected schools. By reducing ambientasbestos concentrations in school buildings, this rule would help protect children from thedisproportionate asbestos exposure risk they face. Additional details are contained in Unit II.B.1.f. and in the Economic Analysis (Ref. 18).
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement Act of 1995(NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to 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.
This rulemaking involves several technical standards and EPA has searched forpotentially applicable voluntary standards. The results of this search are described in this unit.However, EPA's primary goal in proposing these amendments to the WPR is to achieveconsistency with the 1994 OSHA Standards. As noted elsewhere in this preamble, 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).
One of the technical standards in the WPR is the method for analyzing personal airmonitoring samples. Under the 1987 WPR, personal air monitoring samples must be analyzedusing the method prescribed in Appendix A to 40 CFR 763.121 (phase-contrast microscopy) oran equivalent method. The 1994 OSHA Standards, which this proposal would adopt by cross-reference, contain the identical requirement and analytical method. EPA has performed a searchto identify any potentially applicable voluntary consensus standards, but is unable to identify anyalternatives to the current method of analysis. In addition, as discussed in Unit II.A.2.d., EPA's1994 proposal would have allowed an alternative PEL based on personal air monitoring samplesanalyzed through transmission electron microscopy. Commenters called into question thescientific basis for setting the alternative PEL and, as a result, EPA is withdrawing that portionof its 1994 proposal.
These amendments to the WPR adopt specific engineering controls and workpractices, which could be considered a technical standard for conducting asbestos constructionwork and brake and clutch repair operations. EPA has identified several voluntary consensusdocuments that address aspects of the proper performance of asbestos abatement actions andasbestos operations and maintenance activities. The National Institute of Building Sciences(NIBS) has developed two documents to assist building owners and employers who areperforming asbestos abatement and operations and maintenance projects. "Asbestos Abatementand Management in Buildings, Model Guide Specifications" (Ref. 25), is designed to be used asa guide to developing appropriate contract specifications. In addition to particular provisions forminimizing worker exposure to asbestos, the comprehensive "Model Guide" includesspecifications for all other aspects of worker safety and fire prevention, as well as generalcontract language establishing the rights and responsibilities of the contractor and buildingowner.
NIBS has also developed guidance materials for building operations andmaintenance projects that involve asbestos-containing materials. The "Guidance Manual,Asbestos Operations and Maintenance Work Practices" (Ref. 26), is designed to help thebuilding owner or employer properly manage in-place asbestos-containing materials. The"Manual" contains extensive recommendations, including sample checklists and forms, on theadministration of a building operations and maintenance program. The "Manual"also providesexplicit guidance on how to protect workers and building occupants from asbestos exposureduring normal building maintenance activities such as pipe repair, wiring installation, and floorcleaning and polishing.
EPA highly recommends the use of these NIBS documents for building owners andemployers. Both of these documents were revised in 1996 to reflect the 1994 amendments to theOSHA Standards, and EPA believes that the use of these documents would facilitate compliancewith the asbestos abatement and building operations and maintenance requirements in theproposed WPR. However, since each of these documents are extremely detailed and encompassmany circumstances beyond the scope of this rulemaking, EPA does not believe that it ispractical or appropriate to incorporate these consensus documents into the WPR. In addition, thePreface to the "Guidance Manual" explicitly states that this particular document is not intendedto be used for regulatory purposes.
The American Society for Testing and Materials (ASTM) has developed twopotentially applicable documents: "Standard Practice for Visual Inspection of AsbestosAbatement Projects" (Ref. 27), and "Standard Practice for Encapsulants for Spray-or-Trowel-Applied Friable Asbestos-Containing Building Materials" (Ref. 28). The ASTM documents alsorepresent state-of-the-art knowledge regarding the performance of these particular aspects ofasbestos abatement and operations and maintenance activities, and EPA highly recommendstheir use. However, as with the NIBS documents, EPA is not proposing to incorporate them intothe WPR because, in many instances, the specifications are more comprehensive and rigorousthan the requirements of the current OSHA standard. As a result, EPA has determined thatadoption of the ASTM and NIBS documents would be impractical under NTTAA section 12(d)(3).
Finally, EPA is proposing to adopt by cross-reference the appropriate provisions ofthe OSHA Respiratory Protection Standard at 29 CFR 1910.134. As discussed in Unit II.A.2.j.,the OSHA Respiratory Protection Standard establishes comprehensive requirements for theselection, use, and maintenance of respirators. When this Standard was amended in 1998,OSHA incorporated nearly all of the provisions of the ANSI Z88.2-1992 respiratory protectionstandard, a voluntary consensus standard (Ref. 29). OSHA's limited number of departures fromthe ANSI standard involved instances where OSHA determined on the record that the ANSIstandard was either insufficiently protective or unduly burdensome. The preamble to the OSHARespiratory Protection Standard (Ref. 14, pp.1152-1300) discusses in detail the differencesbetween the OSHA Standard and the ANSI standard. EPA agrees with OSHA's analysis on theincorporation of the ANSI standard. Therefore, by proposing to adopt, by cross-reference, therevised OSHA Respiratory Protection Standard, EPA is incorporating a voluntary consensusstandard to the maximum practical extent under the NTTAA.
EPA welcomes comments on this aspect of the proposed rulemaking. The public is specifically invited to identify potentially applicable voluntary consensus standards and to explain why the benefits of using such standards in this regulation would outweigh the problems associated with promulgating a worker protection regulation that differs from the OSHA Standards.
J. Constitutionally Protected Property Rights
EPA has complied with Executive Order 12630, entitled Governmental Actions and Interference with Constitutionally Protected Property Rights (53 FR 8859, March 15, 1988), by examining the takings implications of this rule in accordance with the "Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings" issued under the Executive Order.
K. Civil Justice Reform
In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, entitled Civil Justice Reform (61 FR 4729, February 7, 1996).
List of Subjects in 40 CFR Part 763
Environmental protection, Asbestos, Schools, Hazardous substances, Reporting andrecordkeeping requirements, Worker protection.
Dated: April 20, 2000.
Carol M. Browner,
Administrator.
Therefore, it is proposed that 40 CFR chapter I, subchapter R, be amended as follows:
PART 763-[AMENDED]
1. The authority citation for part 763 would continue to readas follows:
Authority:
15 U.S.C. 2605, 2607(c), 2643, and 2646.
2. By revising § 763.91(b) to read as follows:
§ 763.91 Operations and maintenance.
(b) Worker protection . See subpart G of this part.
Appendix B to Subpart E [Removed and reserved]
3. By removing and reserving Appendix B to subpart E.
4. By revising subpart G to read as follows:
Subpart G-Asbestos Worker Protection
Sec. 763.120 What is the purpose of this subpart?763.121 Does this subpart apply to me?763.122 What does this subpart require me to do?763.123 May a State implement its own asbestos worker protection plan?
Subpart G-Asbestos Worker Protection
§ 763.120 What is the purpose of this subpart?
This subpart protects certain State and local government employees who are 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 your employeesfrom occupational exposure to asbestos.
§ 763.122 What does this subpart require me to do?
If you are a State or local government employer whose employees perform:
(a) Construction activities identified in 29 CFR 1926.1101(a), you must:
(1) Comply with the OSHA standards in 29 CFR 1926.1101.
(2) Submit notifications required for alternative control methods to the Director,National Program Chemicals Division (7404), Office of Pollution Prevention and Toxics,Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington,DC 20460.
(b) Custodial activities not associated with the construction activities identified in 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 own asbestos 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 its ownasbestos 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 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 an exemption ?EPA will review your State's application and make a preliminary determination whether yourState'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 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 exempted yourState 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 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. 00-10517 Filed 4-26-00; 8:45 am]
BILLING CODE 6560-50-F