[Federal Register: November 15, 2000 (Volume 65, Number 221)]
[Rules and Regulations]
[Page 69209-69217]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15no00-32]
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Part VI
Environmental Protection Agency
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40 CFR Part 763
Asbestos Worker Protection; Final Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 763
[OPPTS-62125B; FRL-6751-3]
RIN 2070-AC66
Asbestos Worker Protection
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this Final Rule, EPA is amending both the Asbestos Worker
Protection Rule (WPR) and the Asbestos-in-Schools Rule. The WPR
amendment protects State and local government employees from the health
risks of exposure to asbestos to the same extent as private sector
workers by adopting for these employees the Asbestos Standards of the
Occupational Safety and Health Administration (OSHA). The WPR's
coverage is extended to State and local government employees who are
performing construction work, custodial work, and automotive brake and
clutch repair work. This final rule cross-references the OSHA Asbestos
Standards for Construction and for General Industry, so that future
amendments to these OSHA standards are directly and equally effective
for employees covered by the WPR. EPA also amends the Asbestos-in-
Schools Rule to provide coverage under the WPR for employees of public
local education agencies who perform operations, maintenance, and
repair activities. EPA is issuing this final rule under section 6 of
the Toxic Substances Control Act (TSCA).
DATES: This final rule is effective December 15, 2000.
FOR FURTHER INFORMATION CONTACT: For general information contact:
Barbara Cunningham, Acting Director, Environmental Assistance Division,
Office of Pollution Prevention and Toxics (7408), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: (202) 554-1404; e-mail address: TSCA-Hotline@epa.gov.
For technical information contact: Cindy Fraleigh, Attorney-
Advisor, National Program Chemicals Division (7404), Office of
Pollution Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202)
260-1537; fax number: (202) 260-1724; e-mail address:
fraleigh.cindy@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by this action if you are a State
or local government entity whose employees work with or near asbestos-
containing material. Potentially affected categories and entities may
include, but are not limited to:
------------------------------------------------------------------------
Examples of
Categories NAICS codes potentially affected
entities
------------------------------------------------------------------------
Educational services 61 Public educational
institutions,
including school
districts, not
subject to an OSHA-
approved State
asbestos plan or a
State asbestos
worker protection
plan that EPA has
determined is exempt
from the
requirements of the
WPR.
Public administration 92 State or local
government employers
not subject to an
OSHA-approved State
asbestos plan or a
State asbestos
worker protection
plan that EPA has
determined is exempt
from the
requirements of the
WPR.
------------------------------------------------------------------------
This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this table could also be
affected. The North American Industrial Classification System (NAICS)
codes are provided to assist you and others in determining whether or
not this action might apply to certain entities. To determine whether
you or your business is affected by this action, you should carefully
examine the applicability provisions in 40 CFR 763.121. If you have
questions regarding the applicability of this action to a particular
entity, consult the technical person listed under FOR FURTHER
INFORMATION CONTACT.
B. How Can I Get Additional Information, Including Copies of this
Document and Other Related Documents?
1. Electronically. You may obtain electronic copies of this
document, and certain other related documents from the EPA Internet
Home Page at http://www.epa.gov/. To access this document, on the Home
Page select ``Laws and Regulations,'' ``Regulations and Proposed
Rules,'' and then look up the entry for this document under the
``Federal Register--Environmental Documents.'' You can also go directly
to the Federal Register listings at http://www.epa.gov/fedrgstr/.
To access information about asbestos, go directly to the Asbestos
Home Page for the Office of Pollution Prevention and Toxics at http://
www.epa.gov/asbestos/.
2. In person. The Agency has established an official record for
this action under docket control number OPPTS-62125B. The official
record consists of the documents specifically referenced in this
action, any public comments received during an applicable comment
period, and other information related to this action, including any
information claimed as Confidential Business Information (CBI). This
official record includes the documents that are physically located in
the docket, as well as the documents that are referenced in those
documents. The record also contains any experience, as reflected in
this preamble and the preamble to the proposed rule, that the Agency
has gained over the years in implementing the WPR and the Asbestos-in-
Schools Rule. The public version of the official record does not
include any information claimed as CBI. The public version of the
official record, which includes printed, paper versions of any
electronic comments submitted during an applicable comment period, is
available for inspection in the TSCA Nonconfidential Information
Center, North East Mall Rm. B-607, Waterside Mall, 401 M St., SW.,
Washington, DC. The Center is open from noon to 4 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Center
is (202) 260-7099.
II. Background
A. What is the Agency's Authority for Taking this Action?
Under TSCA section 6(a), if EPA finds that the manufacture,
processing, distribution in commerce, use or disposal of a chemical
substance or mixture, or any combination of these activities, presents,
or will present, an unreasonable risk of injury to health or the
environment, EPA shall by rule apply requirements to the substance or
[[Page 69211]]
mixture to the extent necessary to protect adequately against the risk.
Asbestos is a chemical substance or mixture that falls within the scope
of this authority. In deciding whether to promulgate this rule under
TSCA section 6(a), EPA considered the health effects of asbestos; the
magnitude of human exposure to asbestos; the environmental effects of
asbestos and the magnitude of the exposure of the environment to
asbestos; the benefits of asbestos for various uses and the
availability of substitutes for those uses; the reasonably
ascertainable economic consequences of the rule, after consideration of
the effect on the national economy, small business, technological
innovation, the environment, and public health; and the social impacts
of the rule. See 15 U.S.C. 2601(c) and 2605(c)(1). EPA did not change
its consideration of any of these factors based upon comments received
on the proposed rule. The following is a summary of EPA's evaluation,
and the Economic Analysis contains additional information on many of
these factors (Ref. 5).
1. Health effects of asbestos. The primary route of human exposure
is through the respiratory system, where asbestos fibers may cause
carcinoma of the lung, malignant mesothelioma of the pleura and
peritoneum, asbestosis, and other illnesses.
2. Human exposure to asbestos. Asbestos is found in building
products such as insulation, ceiling and floor tiles, spackling tape
for drywall, and roofing products. In general, asbestos-containing
materials in good condition do not pose a risk of exposure, but, if the
matrix of asbestos fibers is disturbed or deteriorates, fibers may be
released into the air. Workers may be exposed to asbestos during new
construction, asbestos abatement, renovation, building maintenance,
custodial activities, and brake and clutch repair work. Building
occupants, including school children, may be exposed to asbestos fibers
as a result of activity taking place in their building. As a result of
this regulation, EPA estimates that worker exposures during these
activities will decrease by at least one order of magnitude, while
building occupant exposures will decrease by 50%.
3. Environmental effects of asbestos. This rule is directed at
risks posed by asbestos in the workplace, not in the ambient
environment. EPA therefore did not consider the environmental effects
of asbestos.
4. The benefits of asbestos for various uses and the availability
of substitutes for those uses. This rule does not require asbestos-
containing building material to be removed and replaced with non-
asbestos substitutes. Since this rule only applies once a decision has
been made to disturb asbestos-containing material, EPA did not consider
the benefits of asbestos for various uses and the availability of
substitutes for those uses.
5. Economic consequences of this rule. The Economic Analysis for
this final rule provides a detailed analysis of the economic benefits
of the reduced incidence of cancer and other diseases among workers and
building occupants attributable to this rule. EPA estimates that sixty-
five years of exposure reduction under this rule will reduce the number
of lung cancer and mesothelioma cases among exposed workers and
building occupants by 71.58 cases. According to EPA's analysis, this
rule will also result in approximately 65.65 avoided cases of cancer
among individuals exposed as school children. EPA also found that this
rule is likely to result in other benefits, such as asbestosis cases
avoided among workers, avoided medical costs associated with non-fatal
diseases, and reduced exposures to worker families from asbestos fibers
brought home on clothing, but EPA was unable to reliably quantify these
benefits.
The Economic Analysis also evaluates the incremental costs to State
and local governments of complying with this rule. EPA estimates that
this rule will impose first-year compliance costs of $63.34 million.
Over the 65-year time frame of exposure reduction, the present value of
compliance costs is estimated to be $1.12 billion.
6. Other effects. TSCA section 6(c)(1)(D) also requires EPA, when
considering the economic consequences of the rule, to take other
factors into account, including the effects on the national economy,
small business, technological innovation, the environment, and public
health. EPA has already summarized its evaluation of the effects on
public health and the environment above. EPA's consideration of the
effects on the national economy, small government entities, and
technological innovation are discussed in Unit IV.
7. Social and other qualitative effects. TSCA section 2 requires
EPA, when taking any action under TSCA, to consider the social as well
as environmental and economic impacts of the action. One important
social consequence of this rule is the elimination of inequitable legal
protection for classes of persons based solely upon the identity and
location of their employers. This rule, by ensuring that all public and
private sector workers are entitled to the same level of protection
from asbestos exposures, serves important equity and environmental
justice concerns. In addition, having a uniform set of standards for
construction and brake and clutch repair employees will also ease
implementation burdens, by allowing employers to use the excellent
guidance materials developed by OSHA and reducing confusion and
mistakes caused by two different standards.
Having considered these factors, EPA finds under TSCA section 6
that the current exposure to asbestos among unprotected State and local
government employees during use or disposal in construction work,
custodial work, and brake and clutch repair work presents an
unreasonable risk of injury to human health, and that this rule is
necessary to provide adequate protection against that risk.
B. What Action is the Agency Taking?
In 1985, EPA first determined that exposure to asbestos poses an
unreasonable risk of harm to unprotected State and local government
employees who conduct asbestos abatement projects. EPA's 1987 Asbestos
Worker Protection Rule (WPR) requires certain work practices, personal
protective equipment, and training for State and local government
employees who perform asbestos abatement projects and who are not
covered by a State Plan approved by the Occupational Safety and Health
Administration (OSHA) (40 CFR part 763, subpart G). There are 27 States
that do not have approved OSHA State Plans. On April 27, 2000, EPA
published a proposal to amend the WPR to provide the same level of
protection to State and local government employees not covered by an
OSHA-approved State plan as non-government employees and State and
local government employees covered by an OSHA-approved State plan. EPA
proposed to provide this protection by incorporating OSHA's Asbestos
Standards for Construction and for General Industry set out at 29 CFR
1926.1101 and 29 CFR 1910.1001 respectively in the WPR (Ref. 1, p.
24806).
By actually cross-referencing the OSHA Asbestos Standards in the
WPR, future amendments to the OSHA General Industry or Construction
Standard would also effect a change in the requirements under the WPR
(Ref. 1, pp. 24808, 24822). EPA also proposed to expand the scope of
the WPR from asbestos abatement projects to all
[[Page 69212]]
construction, custodial, and automotive brake and clutch repair work.
Finally, EPA proposed to amend the Asbestos-in-Schools Rule, 40 CFR
part 763, subpart E, to reflect the fact that public school employees
performing operations and maintenance activities would now be covered
by the WPR by modifying 40 CFR 763.91(b) and removing appendix B to
subpart E (Ref. 1, p. 24814).
1. What comments did EPA receive on the proposed rule? EPA received
comments on its proposal from the American Federation of State, County
and Municipal Employees; the American Industrial Hygiene Association;
the Laborers' International Union of North America; the Texas A & M
University System; the Safe Buildings Alliance; the Asbestos
Information Association; the Board of Certified Safety Professionals;
the Resilient Floor Covering Institute; the Service Employees
International Union; the American Society of Safety Engineers; and the
International Brotherhood of Teamsters. With the exception of Texas A &
M, all of the commenters generally supported the proposal and
encouraged EPA to be as consistent as possible with the OSHA Asbestos
Standards. The following discussion addresses all material issues
raised by the commenters, EPA's response to those comments, and how
these comments affected the outcome of this final rule. Comments
raising each issue are identified in parentheses by docket control
number.
Texas A & M expressed concern with the proposed extension of WPR
coverage to building custodians (Docket #62125A, C-004). The University
believes that it might have to survey all of its buildings for asbestos
in order to comply with the requirements to determine the presence,
location, and quantity of asbestos-containing material (ACM) and
presumed asbestos-containing material (PACM) in custodial work sites,
post signs at the entrances to mechanical rooms containing asbestos,
and provide information and training to custodians who work in areas
that contain asbestos. EPA recommends that employers conduct full
building inspections, using accredited inspectors, to determine the
presence, location, and quantity of asbestos in their buildings.
However, as discussed in the preamble to the proposed amendments, State
and local government employers may comply with these requirements
merely by identifying three types of building materials (thermal system
insulation, surfacing material, and resilient floor covering) and
assuming that these materials contain asbestos, so long as there is no
specific reason to suspect that other materials in the work site or
mechanical room contain asbestos (Ref. 1, p. 24810).
Texas A & M also believes that annual training for custodians, and
the associated recordkeeping, is ``excessive'' and ``cumbersome '' for
employers with large numbers of custodial employees. However, EPA
believes that the annual educational requirements for custodians are
minimal, consisting of at least 2 hours of awareness training on topics
such as the health effects of asbestos, how to work around asbestos-
containing materials safely, and where asbestos-containing materials
are located in the building (Ref. 1, pp. 24813-24814). Texas A & M did
not dispute EPA's incremental cost estimate of $49.79 per full-time
equivalent employee per year for custodial training, including the
associated recordkeeping costs (Ref. 5, pp. 4-29). EPA continues to
believe that the benefits of protecting custodians under this
regulation, including the 58 estimated cancer cases avoided and
consistency with OSHA, outweigh the expense.
Finally, Texas A & M does not believe that custodians should be
considered ``asbestos workers.'' EPA is unsure as to what Texas A & M
intended by this comment, because the only place that EPA uses a
similar term (``asbestos abatement workers'') is in Unit I.B.1. of the
Asbestos Model Accreditation Plan (MAP), 40 CFR part 763, subpart E,
appendix C. The proposed amendments to the WPR did not suggest that
custodians be required to complete the 4-day training course for
workers under Unit I.B.1. of the MAP (Ref. 1, pp. 248137-24814). As
discussed in this unit, this rule requires, at a minimum, 2 hours of
awareness training for custodians.
The comments from the American Industrial Hygiene Association
(AIHA) expressed strong support for consistency between EPA and OSHA
rules and standards, and reminded EPA that OSHA permits Certified
Industrial Hygienists to perform certain functions required by the
regulations (Docket #62125A, C-002). AIHA indicated that OSHA permits
CIHs to collect samples to rebut the presumption that surfacing
materials and thermal system insulation contain asbestos. AIHA also
indicated that OSHA permits CIHs to serve as competent persons under
certain circumstances. EPA intends to be as consistent with the OSHA
asbestos regulations as possible. However, for projects in schools or
in public or commercial buildings, EPA's MAP requires persons who
collect samples to be accredited as inspectors and persons who
supervise asbestos response actions to be accredited as supervisors.
(TSCA section 206(a), Units I.A. and I.B. of the MAP). Thus, CIHs
collecting samples in schools or in public or commercial buildings
would also have to be MAP accredited inspectors, and CIHs supervising
asbestos response actions in such buildings would have to be MAP
accredited supervisors. Changes to the MAP are outside the scope of
this rulemaking, but EPA will consider the issues raised by AIHA in any
future actions to amend the MAP.
AIHA also noted in its comments that OSHA is more inclusive than
EPA with respect to laboratory accreditation programs. OSHA requires
laboratories that analyze bulk samples of presumed asbestos-containing
material (surfacing materials and thermal system insulation) to
participate in a nationally recognized testing program (Ref. 4, pp.
41062, 41141). The AIHA industrial hygiene laboratory accreditation
program is one of the programs specifically mentioned by OSHA. EPA will
also recognize AIHA laboratory accreditation for laboratories that
analyze bulk samples under the WPR, unless those samples are collected
in a school building that is regulated under the Asbestos Hazard
Emergency Response Act (AHERA), Title II of TSCA, 15 U.S.C. 2641 et
seq. (Ref. 1, p. 24810). TSCA section 206(d), within AHERA, requires
laboratories that analyze samples collected from school buildings under
the authority of a local education agency to be accredited by the
National Institute of Standards and Technology (NIST). Therefore, EPA
may not accept AIHA accreditation for laboratories that analyze samples
collected from school buildings.
The American Society of Safety Engineers (ASSE) strongly endorsed
EPA's proposal to protect State and local government employees from the
health risks of exposure to asbestos to the same extent as private
sector employees. ASSE and the Board of Certified Safety Professionals
(BCSP), however, both commented that Certified Safety Professionals
(CSPs), by virtue of their extensive training, should be permitted to
perform the same tasks as CIHs (Docket #62125A, C-010 and C-007,
respectively). Specifically, these commenters stated that the preamble
to the proposal should have recognized CSPs as qualified to collect
bulk samples of surfacing materials and thermal system insulation (Ref.
1, p. 24809) and to determine, in certain circumstances, when alternate
control methods for Class I projects are adequate (Ref. 1, p. 24811).
As indicated by ASSE, CSPs are recognized in OSHA Directive CPL 2-2.63
(Ref. 2), which
[[Page 69213]]
contains guidance for OSHA compliance inspectors on the asbestos
standards. Appendix C, ``Questions and Answers on the Occupational
Exposure to Asbestos Standard,'' to CPL 2-2.63 says that an employer
should not be cited for a violation of the asbestos standards if a CSP
was used to evaluate alternate control methods for Class I work, so
long as a review of the particular CSP's past work history and training
indicates that the CSP possessed the skills, professional judgment, and
background to perform the evaluation.
EPA intends to follow OSHA's lead in the interpretation and
application of the WPR, so EPA will likewise allow properly qualified
CSPs to evaluate alternate control methods for Class I projects.
However, OSHA does not permit CSPs to collect bulk samples of thermal
system insulation or surfacing material for the purpose of rebutting
the presumption that these materials contain asbestos (Ref. 6). EPA
will defer to OSHA's expertise in this matter, and maintain consistency
by requiring samples to be taken by either a MAP-accredited inspector
or a CIH.
The comments from the Resilient Floor Covering Institute (RFCI)
expressed concern that, because EPA had not expressly adopted OSHA's
interpretations of the Asbestos Standards as set out in OSHA
Instruction CPL 2-2.63, EPA would not apply the WPR consistent with the
OSHA asbestos standards, particularly with regard to removal and/or
replacement of resilient floor covering materials (Docket #62125A, C-
008). Specifically, RFCI pointed out that Appendix D to OSHA's CPL 2-
2.63 includes the terms of a Settlement Agreement between the flooring
industry and OSHA on the application of the OSHA asbestos standards to
resilient floor covering. Although RFCI recommended that EPA
specifically cite OSHA Instruction CPL 2-2.63 in the text of the WPR,
EPA does not believe that this is appropriate, particularly since CPL
2-2.63 is not cited in the text of the OSHA asbestos standards.
However, EPA will follow CPL 2-2.63, including all of the appendices
and any possible future changes, in implementing the WPR, so long as
the Directive is not contrary to other EPA statutes and regulations,
such as TSCA, AHERA, the Asbestos-in-Schools Rule, and the MAP.
Finally, comments from the Asbestos Information Association (AIA)
supported consistency between the OSHA and EPA asbestos regulations,
but objected to the characterization of the risk to State and local
government employees as ``unreasonable'' (Docket #62125A, C-006). In
support of this comment, AIA implied that workers would be exposed only
to chrysotile asbestos and stated that EPA's (and OSHA's) asbestos risk
assessments were outdated, and that the latest scientific findings
indicate that the risk from products made with chrysotile asbestos is
actually much lower than predicted by current EPA and OSHA risk
assessments. However, AIA did not submit any additional information to
support this claim. The issue of the risk from chrysotile asbestos has
been raised and considered in previous EPA and OSHA rulemakings, and
both Agencies have declined to distinguish between asbestos fiber types
in performing risk assessments for regulatory purposes. See, for
example, the discussion in the preamble to EPA's 1989 final Asbestos
Ban and Phaseout Rule (Ref. 3, pp. 29470-29471) and the discussion in
the preamble to the 1994 final OSHA Asbestos Standards (Ref. 4, pp.
40978, 40979). Furthermore, EPA reviewed the literature available in
1999 on asbestos hazards in order to assist in the preparation of the
United States third-party submissions to a dispute resolution panel of
the World Trade Organization regarding the French asbestos ban (Refs.
7-8). EPA found nothing during this literature review that persuasively
contradicted the risk assessment approach followed by EPA and OSHA.
The balance of the comments expressed only support for the proposal
and contained no substantive comments. These comments were received
from the Laborers' International Union of North America, the
International Brotherhood of Teamsters, the Safe Buildings Alliance,
the Service Employees International Union, and the American Federation
of State, County, and Municipal Employees.
No commenter requested an informal public hearing on the proposed
rule.
2. What does this final rule require? This final rule makes the WPR
consistent with the OSHA Asbestos Construction Standard, 29 CFR
1926.1101, including all revisions to that standard from 1994 through
the present, and all future amendments. If you are a State or local
government employer whose employees perform asbestos abatement
activities, you must now comply with the OSHA Asbestos Construction
Standard. This rule will effectively lower the permissible exposure
limit (PEL) for these employees to 0.1 fibers per cubic centimeter (f/
cc) and incorporate additional hazard communication and respiratory
protection program requirements.
In addition, this rule extends the requirements of the OSHA
Asbestos Construction Standard to State and local government employees
who perform any construction activities identified in 29 CFR
1926.1101(a), including demolition, alteration, repair, maintenance,
renovation, installation of asbestos-containing products, and
housekeeping. For general custodial activities not associated with
construction projects, this rule requires State and local government
employers to comply with the Asbestos General Industry Standard in 29
CFR 1910.1001.
This rule also applies the current requirements of the OSHA General
Industry Standard, 29 CFR 1910.1001, to State and local government
employers of employees engaged in automotive brake and clutch repair
work. If your employees repair, clean, or replace asbestos-containing
clutch plates and brake pads, shoes, and linings, or remove asbestos-
containing residue from brake drums or clutch housings, you must comply
with the OSHA standards in 29 CFR 1910.1001.
This rule amends the Asbestos-in-Schools Rule, 40 CFR part 763,
subpart E, to remove the provisions in 40 CFR 763.91(b) that extend WPR
protections to employees of public school systems when they are
performing operations, maintenance and repair (O&M) activities. This
rule also deletes appendix B to subpart E and the reference to appendix
B in 40 CFR 763.92(a)(2)(iii). If you are a public local education
agency employer in a State without an OSHA-approved State plan, and
your employees perform O&M activities, you will need to follow the
requirements of the WPR.
III. References
1. U.S. Environmental Protection Agency (USEPA), Office of
Pollution Prevention and Toxics (OPPT). Asbestos Worker Protection;
Proposed Rule. Federal Register (65 FR 24806, April 27, 2000) (FRL-
6493-5).
2. U.S. Department of Labor (USDOL), Occupational Safety and Health
Administration (OSHA). Instruction CPL 2-2.63 (November 3, 1995),
revised and renamed Directive CPL 2-2.63 (January 9, 1996).
3. USEPA, OPPT. Asbestos Manufacture, Importation, Processing, and
Distribution in Commerce Prohibitions; Final Rule. Federal Register (54
FR 29460, July 12, 1989).
4. USDOL, OSHA. Occupational Exposure to Asbestos; Final Rule.
Federal Register (59 FR 40964, August 10, 1994).
[[Page 69214]]
5. USEPA, OPPT. Final Asbestos Worker Protection Rule Economic
Analysis (September 25, 2000).
6. USDOL, OSHA. Letter to Richard L. Barcum re: procedures for
demonstrating that presumed asbestos-containing material does not
contain more than 1 percent asbestos (July 1, 1998).
7. U.S. Department of Commerce (USDOC), U.S. Trade Representative
(USTR). Third Party Written Submission of the United States, European
Communities-- Measures Affecting Asbestos and Products Containing
Asbestos (May 28, 1999).
8. USDOC, USTR. United States Responses to Questions Posed by the
European Communities, European Communities--Measures Affecting Asbestos
and Products Containing Asbestos (June 21, 1999).
9. USDOL, OSHA. Letter to the Honorable Jay Johnson re:
Occupational Safety and Health Act applicability to tribal land
workplaces and employers (March 12, 1998).
IV. Regulatory Assessment Requirements
A. Regulatory Planning and Review
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' subject to review by the Office of
Management and Budget (OMB), because this action is not likely to
result in a rule that meets any of the criteria for a ``significant
regulatory action'' provided in section 3(f) of the Executive Order.
EPA has prepared an analysis of the potential impact of this
action, which is estimated to cost $63.34 million in the first year of
the rule and then decline annually thereafter. The analysis is
contained in a document entitled ``Final Asbestos Worker Protection
Rule Economic Analysis'' (Ref. 5). This document is available as a part
of the public version of the official record for this action
(instructions for accessing this document are contained in Unit I.B.).
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act
(RFA), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., EPA hereby certifies that
this final action will not have a significant economic impact on a
substantial number of small entities. The factual basis for EPA's
determination is presented in the small entity impact analysis prepared
as part of the Economic Analysis for the rule (Ref. 5), and is briefly
summarized here. For purposes of analyzing potential impact on small
entities, EPA used the definition for small entities in RFA section
601. Under RFA section 601, ``small entity'' is defined as:
1. A small business that meets Small Business Administration size
standards codified at 13 CFR 121.201.
2. A small governmental jurisdiction that is a government of a
city, county, town, school district, or special district with a
population of less than 50,000.
3. A small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.
Of the three categories of small entities, only small governmental
jurisdictions are affected by this final rule. As such, EPA's analysis
of potential small entity impacts assesses the potential impacts on
small governmental jurisdictions.
Based on the definition of ``small governmental jurisdiction,'' no
State-level government covered by the asbestos WPR can be considered
small. Therefore, the small government entities potentially impacted by
the asbestos WPR are local governments (e.g., county, municipal, or
towns) and school districts.
The amendments to the asbestos WPR may impact local governments in
the 27 States without approved OSHA State plans by imposing incremental
compliance costs for asbestos-related maintenance, renovation, and
brake and clutch repair. There are 24,495 small governmental
jurisdictions that are potentially impacted by the asbestos WPR.
However, the estimated amounts of the impact are all extremely low. In
each of the States, the impact for all small local governments is
estimated to be less than 0.1% of revenues available for compliance.
EPA estimated that the largest impact would occur for small local
governments in Arkansas, Delaware, and West Virginia, where the upper
bound estimate of compliance costs as a percent of available revenues
is estimated to be 0.051%. For small local governments as a whole,
compliance costs associated with the asbestos WPR are estimated to
represent 0.023% of available revenues. Therefore, the Agency has
concluded that the asbestos WPR will not have a significant impact on
small government entities.
Small school districts are defined as school districts serving a
resident population of less than 50,000. In the 27 covered States,
there are 17,846 small school districts that are potentially impacted
by the asbestos WPR. The estimated impact of compliance costs on all
small school districts is estimated to be less than 0.01% of available
revenues. The largest impact is estimated for Mississippi where
compliance costs as a percent of available revenues are estimated to
equal 0.013%. The Agency has therefore concluded that the asbestos WPR
will not have a significant effect on the revenues of small school
districts.
Additional details regarding EPA's basis for this certification
are presented in the Final Economic Analysis (Ref. 5), which is
included in the public version of the official record for this action.
This information will also be provided to the Small Business
Administration (SBA) Chief Counsel for Advocacy upon request.
C. Paperwork Reduction Act
The information collection requirements contained in this rule have
been submitted to OMB for review and approval pursuant to the PRA and
OMB implementing regulations at 5 CFR part 1320. The burden and costs
related to the information collection requirements contained in this
rule are described in an Information Collection Request (ICR). This ICR
proposes to amend the existing ICR for the current WPR which is
approved through September 30, 2001, under OMB No. 2070-0072 (EPA ICR
No. 1246.06). A copy of this ICR, which is identified as EPA ICR No.
1246.08, is available electronically at http://www.epa.gov/opperid1/
icr.htm, or by e-mailing a request to farmer.sandy@epa.gov. You may
also request a copy by mail from Sandy Farmer, Collection Strategies
Division, Environmental Protection Agency (2822), 1200 Pennsylvania
Ave., NW., Washington, DC 20460, or by calling (202) 260-2740. The
information requirements are not enforceable until OMB approves them.
This amendment to the WPR requires employers to collect,
disseminate, and maintain information relating to employee asbestos
exposures, respiratory protection, medical surveillance, and training.
The records maintained as a result of this information collection will
provide EPA with the data necessary for effective enforcement of the
WPR.
The public reporting burden for this collection of information is
estimated to average, on an annual basis, 17.24 hours per respondent,
including the time for reviewing instructions, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. EPA estimates that 25,312 respondents would
incur these
[[Page 69215]]
burdens, for a total annual respondent burden of 436,289 hours.
As defined by the PRA and 5 CFR 1230.3(b), ``burden'' means the
total time, effort, or financial resources expended by persons to
generate, maintain, retain, or disclose or provide information to or
for a Federal agency. This includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. The OMB
control number(s) for the information collection requirements in this
rule will be listed in an amendment to 40 CFR part 9 in a subsequent
Federal Register document after OMB approves the ICR.
D. Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
(UMRA), Public Law 104-4, EPA has determined that this rule does not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any 1 year. As discussed in the
Final Economic Analysis (Ref. 5), the rule will result in estimated
expenditures of at most $63.34 million in any 1 year. In addition, EPA
has determined that this rule will not significantly or uniquely affect
small governments. For small local governments as a whole, compliance
costs associated with the WPR represent 0.023% of revenues assumed to
be available for compliance. Moreover, the impact of compliance costs
on small school districts as a whole would be less than 0.01% of
available revenues. Thus, this final rule is not subject to the
requirements of UMRA sections 202, 203, 204, and 205.
E. Federalism
Executive Order 13132, entitled Federalism (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local government officials
in the development of regulatory policies that have federalism
implications.'' ``Policies that have federalism implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local government officials early in the process
of developing the proposed regulation. EPA also may not issue a
regulation that has federalism implications and that preempts State
law, unless the Agency consults with State and local government
officials early in the process of developing the proposed regulation.
Section 4 of the Executive Order contains additional requirements
for rules that preempt State or local law, even if those rules do not
have federalism implications (i.e., the rules will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government). Those
requirements include providing State and local government officials
notice and an opportunity for appropriate participation in the
development of the regulation. If the preemption is not based on
express or implied statutory authority, EPA also must consult, to the
extent practicable, with appropriate State and local government
officials regarding the conflict between State law and federally
protected interests within the agency's area of regulatory
responsibility.
This final rule does not have federalism implications. This rule
amends the existing WPR to cover additional asbestos-related activities
and to conform the WPR to the OSHA Asbestos Standards. The changes do
not result in a significant intergovernmental mandate under the UMRA,
and thus, EPA concludes that the rule does not impose substantial
direct compliance costs. Nor does the rule substantially affect the
relationship between the national government and the States, or the
distribution of power and responsibilities among the various levels of
government. Those relationships have already been established under the
existing WPR, and these amendments do not alter them. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
This rule preempts State and local law in accordance with TSCA
section 18(a)(2)(B). By publishing and inviting comment on the proposed
rule, EPA provided State and local government officials notice and an
opportunity for appropriate participation. Thus, EPA complied with the
requirements of section 4 of the Executive Order.
F. Consultation and Coordination with Indian Tribal Governments
Under Executive Order 13084, entitled Consultation and
Coordination with Indian Tribal Governments (63 FR 27655, May 19,
1998), EPA may not issue a regulation that is not required by statute,
that significantly or uniquely affects the communities of Indian tribal
governments, and that imposes substantial direct compliance costs on
those communities, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by the tribal
governments, or EPA consults with those governments. This rule does not
significantly or uniquely affect the communities of Indian tribal
governments, nor does it impose substantial direct compliance costs on
such communities. Since the OSHA Asbestos Standards cover tribal
governments and tribal employees, the WPR does not apply to these
groups (Ref. 9). Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply to this rule.
G. Environmental Justice
Pursuant to Executive Order 12898, entitled Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994), the Agency considered
environmental justice-related issues with regard to the potential
impacts of this action on the environmental and health conditions in
minority and low-income populations. Many of the employees who will
benefit from the protections of this rule are members of minority and
low-income populations. By providing protection for currently
unprotected State and local government building maintenance and
custodial employees and their families, this rule addresses the lesser
levels of protection in the workplace provided under federal
regulations to minority and low-income
[[Page 69216]]
populations among State and local government employees. In other words,
the rule does not impose disproportionately high- and adverse-human
health or environmental effects on minority or low-income populations,
but actually decreases such effects.
As described in the proposal (Ref. 1, p. 24829), public
participation is an important environmental justice concern. EPA
received comments on the proposed rule from organizations representing
State and local government employees, but no requests for an informal
public hearing on the proposed rule. (See Unit II.A.1).
H. Children's Health
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), does not apply to this final rule because it is not
``economically significant'' as defined under Executive Order 12866.
However, it is EPA's policy to consistently and explicitly consider
risks to infants and children in all risk assessments generated during
its decision making process, including the setting of standards to
protect public health and the environment.
EPA has determined that children are physiologically more
vulnerable to asbestos exposures than adults, and that this rule will
prevent approximately 65.65 cancer cases among persons with childhood
exposures to asbestos from school buildings. EPA also expects this rule
to result in other benefits associated with lower asbestos exposures,
such as a reduced incidence of non-cancerous health effects such as
asbestosis, pleural plaques, and pleural effusion. EPA expects the rule
to substantially benefit children by reducing the incidental exposures
children face while attending affected schools and when at home from
workers' clothing. By reducing ambient asbestos concentrations in
school buildings, this rule will help protect children from the
disproportionate asbestos exposure risk they face.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
EPA described the applicability of the NTTAA to this rule in the
proposal (Ref. 1, pp. 24829-24830). The Agency received no comments or
suggestions regarding alternative approaches to technical standards.
One of EPA's primary goals in finalizing these amendments to the WPR is
to achieve consistency with the OSHA Asbestos Standards. EPA has
determined that having different standards for public and private
sector workers is inefficient and unfair, and that EPA should generally
defer to OSHA's expertise in the matter of worker protection.
Therefore, EPA finds that any voluntary consensus standard which is
inconsistent with the applicable OSHA Standards is impractical under
NTTAA section 12(d)(3).
J. Constitutionally Protected Property Rights
EPA has complied with Executive Order 12630, entitled Governmental
Actions and Interference with Constitutionally Protected Property
Rights (53 FR 8859, March 15, 1988), by examining the takings
implications of this rule in accordance with the ``Attorney General's
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings'' issued under the Executive Order.
K. Civil Justice Reform
In issuing this rule, EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct, as required by
section 3 of Executive Order 12988, entitled Civil Justice Reform (61
FR 4729, February 7, 1996).
V. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the Agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 763
Environmental protection, Asbestos, Schools, Hazardous substances,
Reporting and recordkeeping requirements, Worker protection.
Dated: November 3, 2000.
Carol M. Browner,
Administrator.
Therefore, 40 CFR chapter I, subchapter R, is amended as follows:
PART 763--[AMENDED]
1. The authority citation for part 763 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607(c), 2643, and 2646.
2. By revising Sec. 763.91(b) to read as follows:
Sec. 763.91 Operations and maintenance.
* * * * *
(b) Worker protection. Local education agencies must comply with
either the OSHA Asbestos Construction Standard at 29 CFR 1926.1101, or
the Asbestos Worker Protection Rule at 40 CFR 763.120, whichever is
applicable.
* * * * *
Sec. 763.92 [Amended]
3. By revising Sec. 763.92(a)(2)(iii) to remove the phrase
``Appendices A, B, C, D of this subpart E of this part'' and add in its
place the phrase ``Appendices A, C, and D of this subpart E of this
part.''
Appendix B to Subpart E [Removed and reserved]
4. By removing and reserving Appendix B to subpart E.
5. By revising subpart G to read as follows:
Subpart G--Asbestos Worker Protection
Sec.
763.120 What is the purpose of this subpart?
763.121 Does this subpart apply to me?
763.122 What does this subpart require me to do?
763.123 May a State implement its own asbestos worker protection
plan?
Subpart G--Asbestos Worker Protection
Sec. 763.120 What is the purpose of this subpart?
This subpart protects certain State and local government employees
who are not protected by the Asbestos Standards of the Occupational
Safety and Health Administration (OSHA). This subpart applies the OSHA
Asbestos
[[Page 69217]]
Standards in 29 CFR 1910.1001 and 29 CFR 1926.1101 to these employees.
Sec. 763.121 Does this subpart apply to me?
If you are a State or local government employer and you are not
subject to a State asbestos standard that OSHA has approved under
section 18 of the Occupational Safety and Health Act or a State
asbestos plan that EPA has exempted from the requirements of this
subpart under Sec. 763.123, you must follow the requirements of this
subpart to protect your employees from occupational exposure to
asbestos.
Sec. 763.122 What does this subpart require me to do?
If you are a State or local government employer whose employees
perform:
(a) Construction activities identified in 29 CFR 1926.1101(a), you
must:
(1) Comply with the OSHA standards in 29 CFR 1926.1101.
(2) Submit notifications required for alternative control methods
to the Director, National Program Chemicals Division (7404), Office of
Pollution Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460.
(b) Custodial activities not associated with the construction
activities identified in 29 CFR 1926.1101(a), you must comply with the
OSHA standards in 29 CFR 1910.1001.
(c) Repair, cleaning, or replacement of asbestos-containing clutch
plates and brake pads, shoes, and linings, or removal of asbestos-
containing residue from brake drums or clutch housings, you must comply
with the OSHA standards in 29 CFR 1910.1001.
Sec. 763.123 May a State implement its own asbestos worker protection
plan?
This section describes the process under which a State may be
exempted from the requirements of this subpart.
(a) States seeking an exemption. If your State wishes to implement
its own asbestos worker protection plan, rather than complying with the
requirements of this subpart, your State must apply for and receive an
exemption from EPA.
(1) What must my State do to apply for an exemption? To apply for
an exemption from the requirements of this subpart, your State must
send to the Director of EPA's Office of Pollution Prevention and Toxics
(OPPT) a copy of its asbestos worker protection regulations and a
detailed explanation of how your State's asbestos worker protection
plan meets the requirements of TSCA section 18 (15 U.S.C. 2617).
(2) What action will EPA take on my State's application for an
exemption? EPA will review your State's application and make a
preliminary determination whether your State's asbestos worker
protection plan meets the requirements of TSCA section 18.
(i) If EPA's preliminary determination is that your State's plan
does meet the requirements of TSCA section 18, EPA will initiate a
rulemaking, including an opportunity for public comment, to exempt your
State from the requirements of this subpart. After considering any
comments, EPA will issue a final rule granting or denying the
exemption.
(ii) If EPA's preliminary determination is that the State plan
does not meet the requirements of TSCA section 18, EPA will notify your
State in writing and will give your State a reasonable opportunity to
respond to that determination.
(iii) If EPA does not grant your State an exemption, then the
State and local government employers in your State are subject to the
requirements of this subpart.
(b) States that have been granted an exemption. If EPA has
exempted your State from the requirements of this subpart, your State
must update its asbestos worker protection regulations as necessary to
implement changes to meet the requirements of this subpart, and must
apply to EPA for an amendment to its exemption.
(1) What must my State do to apply for an amendment to its
exemption? To apply for an amendment to its exemption, your State must
send to the Director of OPPT a copy of its updated asbestos worker
protection regulations and a detailed explanation of how your State's
updated asbestos worker protection plan meets the requirements of TSCA
section 18. Your State must submit its application for an amendment
within 6 months of the effective date of any changes to the
requirements of this subpart, or within a reasonable time agreed upon
by your State and OPPT.
(2) What action will EPA take on my State's application for an
amendment? EPA will review your State's application for an amendment
and make a preliminary determination whether your State's updated
asbestos worker protection plan meets the requirements of TSCA section
18.
(i) If EPA determines that the updated State plan does meet the
requirements of TSCA section 18, EPA will issue your State an amended
exemption.
(ii) If EPA determines that the updated State plan does not meet
the requirements of TSCA section 18, EPA will notify your State in
writing and will give your State a reasonable opportunity to respond to
that determination.
(iii) If EPA does not grant your State an amended exemption, or if
your State does not submit a timely request for amended exemption, then
the State and local government employers in your State are subject to
the requirements of this subpart.
[FR Doc. 00-29232 Filed 11-14-00; 8:45 am]
BILLING CODE 6560-50-S