[Federal Register Volume 89, Number 61 (Thursday, March 28, 2024)]
[Rules and Regulations]
[Pages 21970-22010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05972]
[[Page 21969]]
Vol. 89
Thursday,
No. 61
March 28, 2024
Part IV
Environmental Protection Agency
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40 CFR Part 751
Asbestos Part 1; Chrysotile Asbestos; Regulation of Certain Conditions
of Use Under the Toxic Substances Control Act (TSCA); Final Rule
Federal Register / Vol. 89 , No. 61 / Thursday, March 28, 2024 /
Rules and Regulations
[[Page 21970]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 751
[EPA-HQ-OPPT-2021-0057; FRL-8332-01-OCSPP]
RIN 2070-AK86
Asbestos Part 1; Chrysotile Asbestos; Regulation of Certain
Conditions of Use Under the Toxic Substances Control Act (TSCA)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
issuing this final rule under the Toxic Substances Control Act (TSCA)
to address to the extent necessary the unreasonable risk of injury to
health presented by chrysotile asbestos based on the risks posed by
certain conditions of use. The injuries to human health include
mesothelioma and lung, ovarian, and laryngeal cancers resulting from
chronic inhalation exposure to chrysotile asbestos.
DATES: This final rule is effective on May 28, 2024.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPPT-2021-0057, is available online
at https://www.regulations.gov. Additional instructions for visiting
the docket, along with more information about dockets generally, is
available at https://www.epa.gov/.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: Peter Gimlin, Existing Chemicals
Risk Management Division (7405M), Office of Pollution Prevention and
Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460-0001; telephone number: (202) 566-0515; email
address: [email protected].
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this final action if you
manufacture (including import), process, distribute in commerce, use,
or dispose of chrysotile asbestos. TSCA section 3(9) defines the term
``manufacture'' to mean to import into the customs territory of the
United States (as defined in general note 2 of the Harmonized Tariff
Schedule of the United States), produce, or manufacture. Therefore,
unless expressly stated otherwise, importers of chrysotile asbestos are
subject to any provisions regulating manufacture of chrysotile
asbestos. The following list of North American Industrial
Classification System (NAICS) codes is not intended to be exhaustive,
but rather provides a guide to help readers determine whether this
document applies to them. Potentially affected entities may include:
Oil and Gas Extraction (NAICS code 211).
Nuclear Electric Power Generation (NAICS code 221113).
Chemical Manufacturing (NAICS code 325).
Fabricated Metal Product Manufacturing (NAICS code 332).
Transportation Equipment Manufacturing (NAICS code 336).
Gasket, Packing, and Sealing Device Manufacturing (NAICS
code 339991).
Motor Vehicle and Motor Vehicle Parts and Supplies
Merchant Wholesalers (NAICS code 4231).
Motor Vehicle and Parts Dealers (NAICS code 441).
Automotive Repair and Maintenance (NAICS code 8111).
This action may also affect certain entities through pre-existing
import, including import certification, and export notification rules
under TSCA. Persons who import any chemical substance in bulk form, as
part of a mixture, or as part of an article (if required by rule) are
also subject to TSCA section 13 import certification requirements and
the corresponding regulations at 19 CFR 12.118 through 12.127; see also
19 CFR 127.28. Those persons must certify that the shipment of the
chemical substance complies with all applicable rules and orders under
TSCA. The EPA policy in support of import certification appears at 40
CFR part 707, subpart B. In addition, any persons who export or intend
to export a chemical substance that is the subject of this final rule
are subject to the export notification provisions of TSCA section 12(b)
(15 U.S.C. 2611(b)), and must comply with the export notification
requirements in 40 CFR part 707, subpart D. Asbestos (including
chrysotile asbestos) is already subject to TSCA section 6(a) (40 CFR
part 763, subparts G and I) rules and a significant new use rule under
TSCA section 5(a)(2) (40 CFR part 721.11095) that trigger the export
notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b); see
also 40 CFR 721.20). Any person who exports or intends to export
asbestos (including chrysotile asbestos) must comply with the export
notification requirements in 40 CFR part 707, subpart D.
If you have any questions regarding the applicability of this final
action to a particular entity, consult the technical information
contact listed under FOR FURTHER INFORMATION CONTACT.
B. What is the Agency's authority for taking this action?
Under TSCA section 6(a) (15 U.S.C. 2605(a)), if the EPA determines
through a TSCA section 6(b) risk evaluation that a chemical substance
presents an unreasonable risk of injury to health or the environment,
without consideration of costs or other non-risk factors, including an
unreasonable risk to a potentially exposed or susceptible subpopulation
identified as relevant to the risk evaluation, under the conditions of
use, EPA must by rule apply one or more requirements to the extent
necessary so that the chemical substance or mixture no longer presents
such risk.
C. What action is the Agency taking?
Pursuant to TSCA section 6(b), EPA determined that chrysotile
asbestos presents an unreasonable risk of injury to health, without
consideration of costs or other non-risk factors, including an
unreasonable risk to potentially exposed or susceptible subpopulations
identified as relevant to the 2020 Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos by EPA, under the following conditions of use
(Ref. 1):
Processing and Industrial use of Chrysotile Asbestos
Diaphragms in the Chlor-alkali Industry;
Processing and Industrial Use of Chrysotile Asbestos-
Containing Sheet Gaskets in Chemical Production;
Industrial Use and Disposal of Chrysotile Asbestos-
Containing Brake Blocks in the Oil Industry;
Commercial Use and Disposal of Aftermarket Automotive
Chrysotile Asbestos-Containing Brakes/Linings;
Commercial Use and Disposal of Other Chrysotile Asbestos-
Containing Vehicle Friction Products;
Commercial Use and Disposal of Other Chrysotile Asbestos-
Containing Gaskets;
Consumer Use and Disposal of Aftermarket Automotive
Chrysotile Asbestos-Containing Brakes/Linings; and
Consumer Use and Disposal of Other Chrysotile Asbestos-
Containing Gaskets.
A detailed description of the conditions of use that contribute to
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EPA's determination that chrysotile asbestos presents an unreasonable
risk is included in Unit II.C.2. Accordingly, to address the
unreasonable risk, EPA is issuing this final rule under TSCA section
6(a) to:
(i) Prohibit the manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, in
the chlor-alkali industry and require interim workplace controls;
(ii) Prohibit the manufacture (including import), processing, use,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
sheet gaskets in chemical production and require interim workplace
controls for certain commercial uses;
(iii) Prohibit the manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
oilfield brake blocks, aftermarket automotive brakes and linings, other
vehicle friction products and other gaskets;
(iv) Prohibit the manufacture (including import), processing, and
distribution in commerce of chrysotile asbestos, including any
chrysotile asbestos-containing products or articles, for consumer use
of aftermarket automotive brakes and linings and other gaskets; and
(v) Establish disposal and recordkeeping requirements.
D. Why is the Agency taking this action?
Under TSCA section 6(a), ``[i]f the Administrator determines in
accordance with subsection (b)(4)(A) that the manufacture, processing,
distribution in commerce, use or disposal of a chemical substance or
mixture, or that any combination of such activities, presents an
unreasonable risk of injury to health or the environment, the
Administrator shall by rule . . . apply one or more of the [section
6(a)] requirements to such substance or mixture to the extent necessary
so that the chemical substance no longer presents such risk.''
Chrysotile asbestos was the subject of a risk evaluation under TSCA
section 6(b)(4)(A) that was issued in December 2020 (Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos) (Ref. 1). On April 12, 2022,
EPA issued a proposed rule (87 FR 21706) (FRL-8332-02-OCSPP) under TSCA
section 6(a) to regulate those conditions of use evaluated in the 2020
Risk Evaluation for which EPA determined unreasonable risk, so that
chrysotile asbestos does not present unreasonable risk as determined in
the 2020 Risk Evaluation, and the Agency received public comment on the
proposal. After the close of the public comment period for the proposed
rule, EPA received comments and held meetings with stakeholders. EPA
issued a Notice of Data Availability on March 17, 2023 (88 FR 16389)
(FRL-8332-04-OCSPP), to request additional public comment on any
information received during and after the proposed rule public comment
period and how EPA should consider such information in the development
of this final rule. With this action, EPA is finalizing with
modifications the rule proposed on April 12, 2022 (87 FR 21706), so
that conditions of use of chrysotile asbestos do not present
unreasonable risk, as determined in the 2020 Risk Evaluation. The
unreasonable risk is described in Unit II.C.1. and the conditions of
use that are the subject of this final action are described in Unit
II.C.2.
E. What are the estimated incremental impacts of this action?
EPA has prepared an Economic Analysis of the potential incremental
impacts associated with this rulemaking. (Ref. 2).
1. Background
Asbestos use in the nation has been declining for decades and
current domestic consumption of raw asbestos is less than 0.1% of peak
consumption in the early 1970s. Chlor-alkali producers are the only
industry in the U.S. known to fabricate products from raw chrysotile
asbestos. In addition, EPA has concluded that imports of a few
asbestos-containing products are intended, known, or reasonably
foreseen to occur; while the total quantity of asbestos in those
products is uncertain, it is believed to be relatively small (see
Appendix C of the Risk Evaluation).
2. Costs
Three firms own a total of eight chlor-alkali facilities in the
U.S. that still use asbestos diaphragms to produce chlorine and sodium
hydroxide (also known as caustic soda). The eight facilities range in
age from 42 to 83 years old, although some have had new capacity added
as recently as 18 years ago, and others may have had recent
refurbishments. The share of total chlorine and caustic soda production
using asbestos diaphragm cells has been declining over time. The
diaphragm cells in these facilities currently represent about one-third
of U.S. chlor-alkali production capacity. EPA anticipates that firms
will respond to the rule by converting their asbestos diaphragm cells
to non-asbestos diaphragms or membrane cells, which do not use
asbestos. A more detailed discussion of the expected impacts of
conversion from asbestos-containing diaphragm cells to non-asbestos
diaphragms or membrane cells is located in Unit VII.B.5.
Converting the facilities using asbestos diaphragm cells to non-
asbestos technologies is predicted to require an investment of
approximately $2.8 billion to $3.4 billion across all eight facilities.
For a number of these facilities, the non-asbestos technologies,
particularly membrane cells, are more energy efficient than asbestos
diaphragm cells, so those conversions are expected to result in savings
for the companies that would accrue over the lifetimes of the
facilities. The dollar value of the expected change in energy usage
(which is a net energy savings across all the facilities) is included
in the estimated net annualized costs. Membrane cells also produce a
higher grade of caustic soda that has historically commanded a higher
price than the product from asbestos diaphragm cells, and which may
continue to do so in the future. EPA anticipates that the conversions
to non-asbestos diaphragms and membranes would occur in the coming
decades even without this final rule, following existing trends in the
chlor-alkali industry to transition away from asbestos. Compared to
this baseline trend, the incremental net effect of the rule on the
chlor-alkali industry over a 35-year period using a 3 percent discount
rate is estimated to range from an annualized cost of $7 million per
year to an annualized savings of $1 million per year, depending on
whether the higher grade of caustic soda produced by membrane cells
continues to command a premium price. Using a 7 percent discount rate,
the incremental annualized net effect is a cost ranging from $34
million to $43 million per year, again depending on whether there are
revenue gains from the caustic soda production.
EPA also estimates that approximately 1,800 sets of automotive
brakes or brake linings containing asbestos may be imported into the
U.S. each year, representing 0.002% of the total U.S. market for
aftermarket brakes. The cost of a prohibition would be minimal due to
the ready availability of alternative products that are only slightly
more expensive (an average cost increase of about $5 per brake). The
rule is estimated to result in total annualized costs for aftermarket
automotive brakes
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of approximately $300,000 per year using a 3% discount rate and
$200,000 per year using a 7% discount rate.
EPA did not have information to estimate the costs of prohibiting
asbestos for the remaining uses subject to the rule (sheet gaskets used
in chemical production, including titanium dioxide production and
nuclear material processing; brake blocks in the oil industry; other
vehicle friction products; or other gaskets), so there are additional
unquantified costs. EPA believes that the use of these asbestos-
containing products has declined over time, and that, depending on
which products, they are now either used in very small segments of the
industries, or possibly not at all.
More information on the estimated costs is available in EPA's
Economic Analysis for the rule (Ref. 2).
3. Benefits
EPA's Economic Analysis for the rule (Ref. 2), quantified the
benefits from avoided cases of lung cancer, mesothelioma, ovarian
cancer, and laryngeal cancer due to reduced asbestos exposures to
workers, occupational non-users (ONUs), and do-it-yourselfers (DIYers)
related to the rule's requirements for chlor-alkali diaphragms,
aftermarket automotive brakes, and sheet gaskets used for titanium
dioxide production. The combined national quantified benefits of
avoided cancer cases associated with these products are approximately
$6,000 per year using a 3% discount rate and $3,000 per year using a 7%
discount rate, based on the cancer risk estimates from the Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos. EPA did not
estimate the aggregate avoided cancer benefits of the requirements for
sheet gaskets used for other forms of chemical production, oilfield
brake blocks, other vehicle friction products or other gaskets because
the Agency did not have sufficient information on the number of
individuals likely to be affected by the rule. To the extent that such
products are still manufactured, processed, distributed in commerce,
used, or disposed of, there would be additional benefits from reducing
exposures from these use categories.
There are also unquantified benefits due to other avoided adverse
health effects associated with asbestos exposure including respiratory
effects (e.g., asbestosis, non-malignant respiratory disease, deficits
in pulmonary function, diffuse pleural thickening and pleural plaques).
The rule will also generate unquantified benefits from other exposure
pathways and life cycle stages for which exposures were not estimated.
To the extent that the number of individuals exposed or exposure levels
in the baseline were underestimated, EPA's analysis underestimates the
benefits of the regulatory requirements.
In addition to the benefits of avoided adverse health effects
associated with chrysotile asbestos exposure, the rule is expected to
generate significant benefits from reduced air pollution associated
with electricity generation. Chlor-alkali production is one of the most
energy-intensive industrial operations in the United States. To the
extent that alternative technologies are more energy efficient,
converting asbestos diaphragm cells to non-asbestos technologies
reduces overall electricity consumption and thus the total level of
pollutants associated with electric power generation, including carbon
dioxide, particulate matter, sulfur dioxide, and nitrogen oxides.
Converting asbestos diaphragm cells to non-asbestos technologies could
yield millions of dollars per year in environmental and health benefits
from reduced emissions of these pollutants. EPA's Economic Analysis,
which can be found in the rulemaking docket (Ref. 2), contains more
information on the potential magnitude of these monetized benefits from
reduced criteria air pollutants and carbon dioxide emissions.
4. Small Entity Impacts
As described in more detail in Unit X.C. and in section 6.2 of the
Economic Analysis (Ref. 2), EPA estimates that 14 to 1,372 small
entities would be subject to the rule.
Chlor-alkali facilities account for nearly all of the quantified
costs of the rule, and none of the firms operating chlor-alkali
facilities are small businesses.
Eleven to 1,369 of the affected small businesses perform brake
replacements using aftermarket automotive brake linings and pads
containing asbestos. The estimate of 11 affected small entities assumes
that each affected business performs between 40 and 700 brake
replacements per year using asbestos brake linings or pads. The
estimate of 1,369 affected small entities assumes that each affected
business installs a single set of asbestos brake linings or pads per
year. Affected firms are expected to incur a cost of approximately $18
per brake replacement job for the additional expense of a set of four
non-asbestos brake linings or pads, and about $1 for recordkeeping
about their asbestos waste disposal activities. This results in annual
costs between $20 and $14,000 per firm (depending on the number of
brake replacements they perform). At the low-end estimate of 11
affected brake replacement firms, approximately 85% of firms would have
cost impacts of less than 1% of their annual revenues, about 10% would
have cost impacts between 1% and 3%, and around 6% would have cost
impacts of greater than 3%. At the high-end estimate of 1,369 affected
brake replacement firms, 100% of firms would have a cost impact of less
than 1% of their annual revenues.
Two small businesses are assumed to manufacture sheet gaskets
containing asbestos for titanium dioxide production. EPA does not have
data on the cost to these businesses resulting from the prohibition on
sheet gaskets containing asbestos. Therefore, EPA was unable to
estimate the magnitude of the impacts for these small entities.
Asbestos-free products in this application reportedly require more
frequent replacement than items containing asbestos. As a result, the
rule could increase revenues for the affected small business suppliers
if they sell a larger volume of non-asbestos products to the end users
as replacements.
One small business is known to import and distribute oilfield brake
blocks containing asbestos. EPA does not have data on the cost for this
use category resulting from the prohibition on products containing
asbestos. Therefore, EPA was unable to estimate the magnitude of the
impacts for this small entity. Asbestos-free products in this
application reportedly require more frequent replacement than items
containing asbestos. As a result, the rule could increase revenues for
the affected small business supplier if it sells a larger volume of
non-asbestos products to the end users as replacements.
No small businesses have been identified as using sheet gaskets for
chemical production or brake blocks in the oil industry.
EPA has not identified specific firms (of any size) manufacturing,
processing, distributing or using products containing asbestos for the
aftermarket automotive brakes, other gaskets, and other vehicle
friction products use categories. To the extent that there are any
small businesses engaged in these activities, there are likely only a
few firms facing a small cost increase for asbestos-free products.
5. Environmental Justice
This rule is expected to increase the level of environmental
protection for all affected populations without having disproportionate
and adverse health or environmental effects on any population,
including any communities
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with environmental justice concerns (Ref. 2). Most of the affected
chlor-alkali facilities and one other chemical manufacturer affected by
this rule are located in or near communities with high levels of
polluting industrial activities, elevated disease risk, and a high
proportion of people of color. For example, communities that contain
affected chlor-alkali facilities have a cumulative baseline cancer risk
from air toxics that is nearly twice the national average, and the
share of Black/African American persons in these communities is almost
three times the national average. This rule is not expected to increase
these pre-existing environmental justice concerns. Units III.B. and
X.J. discuss outreach conducted to advocates for communities with
environmental justice concerns that might be subject to
disproportionate exposure to chrysotile asbestos.
6. Children's Environmental Health
Consistent with Executive Order 13045 (62 FR 19885, April 23,
1997), EPA evaluated the health and safety effects of this action on
children. This action is also subject to EPA's Policy on Children's
Health (https://www.epa.gov//childrens-health-policy-and-plan) because
the environmental health risk addressed by this action has a
disproportionate effect on children.
Chrysotile asbestos has a disproportionate effect on children. The
health effect of concern relates to exposures to chrysotile asbestos
are mesothelioma, lung and other cancers, all of which have a long
latency period following exposure. The risk evaluation (Ref. 1)
demonstrated in sensitivity analyses that age at first exposure
affected risk estimates, with earlier exposures in life resulting in
greater risk. For children, exposures can be anticipated (1) as
bystanders for consumer uses such as aftermarket brakes and (2) in
consumer uses and occupational uses given that the risk evaluation
presented information indicating that children as young as 16 years of
age may engage in these activities. Furthermore, EPA recognizes it is
possible that workers exposed to chrysotile asbestos at work may cause
unintentional exposure to individuals in their residence, including
children, due to take-home exposure from contaminated clothing or other
items, although this additional pathway was not specifically evaluated
in the risk evaluation. This rule protects children from these
disproportionate environmental health risks.
The results of EPA's evaluation are contained in the risk
evaluation (Ref. 1) and the Economic Analysis (Ref. 2).
7. Effects on State, Local, and Tribal Governments
As discussed in Unit X.E., this action has federalism implications
because regulation under TSCA section 6(a) may preempt state law. It
does not impose costs on small governments or have tribal implications.
II. Background
A. Overview of Chrysotile Asbestos
Asbestos is defined in section 202 of TSCA Title II as:
``Asbestiform varieties of six fiber types--chrysotile (serpentine),
crocidolite (riebeckite), amosite (cummingtonite-grunerite),
anthophyllite, tremolite or actinolite.'' EPA used this definition of
asbestos at the onset of the asbestos risk evaluation in 2016. However,
EPA determined that chrysotile asbestos is the only type of asbestos
where import, processing, and distribution in commerce for use is
known, intended, or reasonably foreseen in the U.S. As such, EPA
assessed these non-legacy conditions of use of chrysotile asbestos in
the December 2020 Risk Evaluation for Asbestos, Part 1: Chrysotile
Asbestos (Ref. 1). Following a decision by the Ninth Circuit Court of
Appeals (Safer Chemicals Healthy Families v. EPA, 943 F.3d 397 (9th
Cir. 2019)) concerning legacy use and associated disposal of asbestos
(conditions of use that were not included in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos), EPA began developing a
supplemental risk evaluation to address legacy and associated disposal
conditions of use. The Risk Evaluation for Asbestos, Part 2:
Supplemental Evaluation Including Legacy Uses and Associated Disposals
of Asbestos will include evaluation of those conditions of use of
chrysotile asbestos, the five amphibole fiber types identified in the
TSCA Title II definition (crocidolite (riebeckite), amosite
(cummingtonite-grunerite), anthophyllite, tremolite and actinolite) and
Libby Amphibole Asbestos (mainly consisting of tremolite, winchite, and
richterite). Additionally, some talc deposits and articles containing
talc have been shown to contain asbestos. Thus, EPA recognizes that
certain uses of talc may present the potential for asbestos exposure.
Where EPA identifies reasonably available information demonstrating the
presence of asbestos in talc, and where such talc applications fall
under TSCA authority, those asbestos-containing talc conditions of use
will be evaluated in Part 2 of the risk evaluation for asbestos. Once
the Risk Evaluation for Asbestos, Part 2: Supplementary Evaluation
Including Legacy Uses and Associated Disposals is complete, EPA intends
to revisit the unreasonable risk determination issued in the 2020 Risk
Evaluation for Asbestos Part 1, and, as appropriate, make an
unreasonable risk determination for asbestos as a whole chemical
substance.
In addition, on April 25, 2019, EPA finalized a significant new use
rule for asbestos under TSCA section 5(a)(2) (40 CFR 721.11095) for
manufacturing (including importing) or processing of asbestos for
discontinued uses. This rule requires that persons notify EPA at least
90 days before commencing any manufacturing (including importing) or
processing of asbestos (including as part of an article) for uses other
than the uses evaluated under the Risk Evaluation for Asbestos, Part I:
Chrysotile Asbestos and uses that are already prohibited under TSCA.
The required notification would initiate EPA's evaluation of the risks
associated with the intended significant new use. Manufacturing
(including importing) and processing (including as part of an article)
for the significant new use may not commence until EPA has conducted a
review of the notice, made an appropriate determination on the notice,
and taken such actions as are required in association with that
determination. Also, on July 12, 1989, EPA issued a rule under TSCA
section 6 entitled: Asbestos: Manufacture, Importation, Processing, and
Distribution in Commerce Prohibitions (54 FR 29460, July 12, 1989)
(FRL-3476-2), that prohibited the manufacture (including import),
processing and distribution of commerce of almost all asbestos-
containing products. On October 18, 1991, in Corrosion Proof Fittings
v. EPA, 947 F.2d 1201, the United States Court of Appeals for the Fifth
Circuit vacated and remanded most of the 1989 rule. However, as a
result of the Court's decision, certain asbestos-containing products
remain banned including the manufacture, importation, processing, and
distribution in commerce of corrugated paper, rollboard, commercial
paper, specialty paper and flooring felt. Also, any ``new use'' remains
banned--defined by that rule as uses of asbestos for which the
manufacture, importation, or processing would be initiated for the
first time after August 25, 1989.
This final rule applies only to chrysotile asbestos (Chemical
Abstract Services Registry Number (CASRN) 132207-32-0). Chrysotile
asbestos is a hydrated magnesium silicate mineral, with relatively long
and flexible crystalline fibers that are capable of being woven.
Chrysotile asbestos fibers used in most commercial applications consist
of aggregates and usually contain a broad distribution of fiber
[[Page 21974]]
lengths. Chrysotile asbestos fiber bundle lengths usually range from a
fraction of a millimeter to several centimeters, and diameters range
from 0.1 to 100 micrometers. More information on the physical and
chemical properties of chrysotile asbestos is in Section 1.1 of the
Risk Evaluation (Ref. 1).
EPA evaluated the conditions of use associated with six ongoing use
categories of chrysotile asbestos (chlor-alkali diaphragms, sheet
gaskets used in chemical production, oilfield brake blocks, aftermarket
automotive brakes/linings, other vehicle friction products, and other
gaskets). There is no longer any domestic mining of asbestos. All
imported raw asbestos is chrysotile asbestos, and it is used in the
manufacture of chlor-alkali diaphragms. According to the United States
Geological Survey (USGS), 152 metric tons of raw chrysotile asbestos
were imported in 2022 (Ref. 3) from Brazil; however, as discussed in
this preamble, public comments to the proposed rule indicate the
importation of raw chrysotile asbestos for chlor-alkali use has ceased
for now, while imports for the other use categories may be ongoing. EPA
is also aware that Brazil's Federal Supreme Court banned asbestos
mining, processing and export in 2022.
B. Regulatory Actions Pertaining to Chrysotile Asbestos
Because of its adverse health effects, chrysotile asbestos is
subject to numerous State, Federal, and international regulations
restricting and regulating its use. A summary of EPA regulations
pertaining to chrysotile asbestos, as well other Federal, State, and
international regulations, is in the docket (Ref. 1; Ref. 4).
C. Summary of EPA's Risk Evaluation Activities on Chrysotile Asbestos
In July 2017, EPA published a scope of the chrysotile asbestos risk
evaluation (82 FR 31592, July 7, 2017) (FRL-9963-57), and after
receiving public comment, published a problem formulation in June 2018
(83 FR 26998, June 11, 2018) (FRL-9978-40). In March 2020, EPA released
a draft risk evaluation for asbestos (EPA-HQ-OPPT-2019-0501-0002), and
in December 2020, following public comment and peer review by the
Science Advisory Committee on Chemicals (SACC), EPA finalized the Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos (Ref. 1).
In the Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos,
EPA evaluated risks associated with the conditions of use involving six
non-legacy use categories of chrysotile asbestos including: Chlor-
alkali diaphragms, sheet gaskets in chemical production, other gaskets,
oilfield brake blocks, aftermarket automotive brake/linings, and other
vehicle friction products. EPA evaluated the conditions of use within
these categories, including manufacture (including import), processing,
distribution, commercial use, consumer use, and disposal (Ref. 1).
Descriptions of these conditions of use are included in Unit II.C.2.
The risk evaluation identified potential adverse health effects
associated with exposure to chrysotile asbestos, including the risk of
mesothelioma, lung cancer, and other cancers from chronic inhalation. A
further discussion of the chrysotile asbestos hazards is included in
Unit II.C.1. The chrysotile asbestos conditions of use that EPA
determined contribute to the chemical substance's unreasonable risk to
health include processing and industrial use of diaphragms in the
chlor-alkali industry; processing and industrial use of sheet gaskets
used in chemical production; industrial use and disposal of brake
blocks in the oil industry; commercial use and disposal of aftermarket
automotive brakes/linings; commercial use and disposal of other vehicle
friction products; commercial use and disposal of other gaskets;
consumer use and disposal of aftermarket automotive brakes/linings; and
consumer use and disposal of other gaskets. This determination includes
unreasonable risk of injury to health to both workers and occupational
non-users (ONUs) during occupational exposures, and to consumers and
bystanders during exposures to consumer uses.
EPA determined that ongoing uses of chrysotile asbestos do not
present unreasonable risk to the environment (Ref. 1).
As previously discussed, following the November 2019 decision of
the Ninth Circuit Court of Appeals in Safer Chemicals Healthy Families
v. EPA, 943 F.3d 397, the agency is also conducting a Part 2 of the
Asbestos Risk Evaluation: Supplemental Evaluation Including Legacy Uses
and Associated Disposals of Asbestos, which is occurring in parallel
with its effort to pursue risk management to address unreasonable risk
identified in the Risk Evaluation for Asbestos, Part 1. Legacy uses and
associated disposals for asbestos are conditions of use for which
manufacture (including import), processing, and distribution in
commerce for a use no longer occur, but where use (e.g., in situ
building material) and disposal are still known, intended, or
reasonably foreseen to occur.
The October 13, 2021, consent decree in the case Asbestos Disease
Awareness Organization et al v. Regan et al, 4:21-cv-03716-PJH (N.D.
Cal.) requires the agency to publish a final Part 2 asbestos risk
evaluation on or before December 1, 2024. EPA published a draft scope
for the Part 2 asbestos risk evaluation on December 29, 2021 (86 FR
74088) (FRL-9347-01-OCSPP), and a final scope for the Part 2 asbestos
risk evaluation on June 29, 2022 (87 FR 38746) (FRL-9347-02-OCSPP).
As part of the problem formulation for the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos, EPA found that exposures to the
general population may occur from the conditions of use considered.
(Ref. 5). EPA determined, in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos, that exposure to the general population via
surface water, drinking water, ambient air, and disposal pathways falls
under the jurisdiction of other environmental statutes administered by
EPA. The Agency, therefore, at that time explained that it was
tailoring the scope of the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos using authorities in TSCA sections 6(b) and
9(b)(1). As such, EPA did not evaluate hazards or exposures to the
general population, and the unreasonable risk determinations made in
the Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos do not
account for exposures to the general population. However, EPA expects
that any potential exposures to the general population would be
adequately addressed through the prohibition on the manufacture
(including import), processing, distribution in commerce and commercial
use of chrysotile asbestos to address the unreasonable risk posed to
workers, ONUs, consumers and bystanders. EPA does plan to evaluate
exposures to the general population in the Risk Evaluation for
Asbestos, Part 2: Supplemental Evaluation Including Legacy Uses and
Associated Disposals of Asbestos.
EPA also concluded that, based on the reasonably available
information in the published literature provided by industries using
asbestos and reporting to EPA databases, there are minimal or no
releases of asbestos to surface water associated with the conditions of
use that EPA evaluated in Part 1. Therefore, EPA concluded that there
is low or no risk to aquatic and sediment-dwelling organisms from
exposure to chrysotile asbestos. Terrestrial pathways, including
biosolids from wastewater treatment plants, were excluded from the
analysis at the problem formulation stage (Ref. 1; Ref. 5). However,
EPA
[[Page 21975]]
expects that any potential exposures to terrestrial species, as with
the general population, would be adequately addressed through the
prohibition on the manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos.
1. Description of Unreasonable Risk
The health endpoint driving EPA's determination of unreasonable
risk for chrysotile asbestos under the conditions of use is cancer from
inhalation exposure (Ref. 1). This unreasonable risk includes the risk
of mesothelioma and lung, ovarian, and laryngeal cancers from chronic
inhalation exposure. Inhalation unit risk (IUR) is typically defined as
a plausible upper bound on the estimate of cancer risk per micrograms
per cubic meter ([micro]g/m\3\) air breathed for 70 years. For
asbestos, the IUR is expressed as cancer risk per fibers per cubic
centimeter (f/cc) (in units of the fibers as measured by Phase Contrast
Microscopy (PCM)). The IUR represents the total cancer incidence risk
from chronic inhalation exposure of chrysotile asbestos and was based
on epidemiological studies on mesothelioma and lung cancer in cohorts
of workers using chrysotile asbestos in commerce. The inhalation unit
risk for mesothelioma and lung cancer were directly estimated from the
selected epidemiologic studies reporting exposure-response
relationships between exposure to chrysotile asbestos and those
cancers. Since there was no exposure-response data for ovarian and
laryngeal cancer effects in the epidemiological literature, a direct
estimate of risk from ovarian and laryngeal cancer could not be made
for the inhalation unit risk calculation. An adjustment factor for
ovarian and laryngeal cancer effects was applied to risk value
estimates to correct for the underestimated total cancer risk derived
from only lung cancer and mesothelioma that yielded an IUR for total
cancer risk encompassing all four cancers known to be caused by
exposure to chrysotile asbestos. And, as discussed in Section 4.2.1 of
the Risk Evaluation (Ref. 1), for workers and ONUs exposed in a
workplace, EPA used as a benchmark extra risk of 1 cancer per 10,000
people, that is, a risk level of 1x10-4 (or 1E-4). In
addition, because non-cancer effects of asbestosis and pleural
thickening may also contribute to overall health risk resulting from
workplace exposures to chrysotile asbestos, the quantified health risks
of chrysotile asbestos are underestimates because they are based on
cancer risk alone.
For processing and industrial use of chrysotile asbestos diaphragms
in the chlor-alkali industry, EPA found unreasonable risk to workers
and ONUs from chronic inhalation exposure to chrysotile asbestos, based
on industry data including personal air monitoring (i.e., worker
breathing zone results) and area air monitoring (i.e., fixed location
air monitoring results) that led to the high-end risk estimates
exceeding the 1x10-4 risk benchmark (Section 5.2.1 of the
Risk Evaluation).
For both the processing (i.e., gasket cutting) and industrial use
activities of chrysotile asbestos-containing sheet gaskets for chemical
production, EPA found unreasonable risk to workers and ONUs from
chronic inhalation exposure to chrysotile asbestos based on monitoring
data provided by industry and data in the published literature (Section
5.2.1 of the Risk Evaluation).
For the industrial use and disposal of chrysotile asbestos-
containing oilfield brake blocks, EPA found unreasonable risk to
workers and ONUs from chronic inhalation exposure to chrysotile
asbestos based on a published literature (Section 5.2.1 of the Risk
Evaluation).
For the commercial use and disposal of aftermarket automotive
chrysotile asbestos-containing brakes/linings and other vehicle
friction products (except for the NASA Super Guppy Turbine aircraft
use), EPA found unreasonable risk to workers from chronic inhalation
exposure to chrysotile asbestos based on published literature and OSHA
data (Section 2.3.1.8.1 of the Risk Evaluation). EPA determined, based
on exposure data provided by NASA to EPA (Section 2.3.1.8.2 of the Risk
Evaluation), that the use and disposal of chrysotile asbestos-
containing brakes for NASA's Super Guppy Turbine aircraft did not
present an unreasonable risk of injury to health or the environment.
For the commercial use and disposal of other chrysotile asbestos-
containing gaskets, EPA found unreasonable risk to workers and ONUs
from chronic inhalation exposure to chrysotile asbestos based on
exposure scenarios from occupational monitoring data for asbestos-
containing gasket replacement activities in vehicles.
For consumer use and disposal of aftermarket automotive chrysotile
asbestos-containing brakes/linings and other chrysotile asbestos-
containing gaskets, EPA found unreasonable risk to consumers and
bystanders from chronic inhalation exposure to chrysotile asbestos,
using as a benchmark cancer risk level of 1x10-6 (1E-6) for
consumers and bystanders.
EPA also noted in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos that it is possible for industrial workers or
consumers working with aftermarket automotive products or other types
of asbestos-containing gaskets to cause unintentional exposure to
individuals in their residence due to take-home exposure from
contaminated clothing or other items.
The provisions of the final rule are described in Unit VI. and the
health effects of chrysotile asbestos and the magnitude of the
exposures to chrysotile asbestos are described in Unit VII.B.1.
2. Description of Conditions of Use
This unit describes the conditions of use subject to this final
action. Although EPA identified both industrial and commercial uses in
the Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos for
purposes of distinguishing scenarios, the Agency clarified then and
clarifies now that EPA interprets the authority over ``any manner or
method of commercial use'' under TSCA section 6(a)(5) to apply to both
industrial and commercial uses identified in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos.
The conditions of use for this final action do not include any
legacy uses or associated disposal for chrysotile asbestos or other
asbestos fiber types. EPA will consider legacy uses and associated
disposals in Part 2 of the risk evaluation for asbestos (Ref. 1).
a. Processing and industrial use of chrysotile asbestos diaphragms
in the chlor-alkali industry.
Chrysotile asbestos historically has been imported and used by the
chlor-alkali industry for the fabrication of semi-permeable diaphragms.
The chrysotile asbestos diaphragms are used in an industrial process
for the production of chlorine and sodium hydroxide (caustic soda).
Asbestos is chemically inert and able to effectively separate chlorine
and sodium hydroxide in electrolytic cells. The chlor-alkali chemical
production process involves the separation of the sodium and chloride
atoms of salt in saltwater (brine) via electricity to produce sodium
hydroxide (caustic soda), hydrogen, and chlorine. The electrolytic cell
contains two compartments separated by a semi-permeable diaphragm,
which is made mostly of chrysotile asbestos. The diaphragm prevents the
reaction of the caustic soda with the chlorine and allows for the
separation of both materials for further processing. Diaphragms are
typically used for 1-3 years before they must be replaced (Ref. 1).
b. Processing and industrial use of chrysotile asbestos-containing
sheet gaskets in chemical production.
[[Page 21976]]
Sheet gaskets are used to form a leakproof seal between fixed
components. Chrysotile asbestos-containing gaskets are used primarily
in industrial applications with extreme operating conditions, such as
high temperatures, high pressures, and the presence of chlorine or
other corrosive substances. Such extreme operating conditions are found
in many chemical manufacturing and processing operations, including:
the manufacture of titanium dioxide and chlorinated hydrocarbons;
polymerization reactions involving chlorinated monomers; and steam
cracking at petrochemical facilities. Chrysotile asbestos-containing
gaskets used for titanium dioxide production are fabricated from sheets
composed of 80% (minimum) chrysotile asbestos fully encapsulated in
styrene butadiene rubber. The chrysotile asbestos-containing sheets are
articles which are imported into the U.S. in large rolls where they are
cut to shape by a fabricator and subsequently used at titanium dioxide
manufacturing facilities. Installed gaskets typically remain in use
anywhere from a few weeks to three years (Ref. 1). In addition to the
industrial uses specifically identified in the risk evaluation, the use
of sheet gaskets in the processing of nuclear material is also covered
by this condition of use because it involves processing chemicals under
extreme operating conditions, in this case operations involving
radioactive materials.
c. Industrial use and disposal of chrysotile asbestos-containing
brake blocks in oil industry.
The rotary drilling rig of an oil well uses a drawworks hoisting
machine to raise and lower the traveling blocks during drilling. The
drawworks is a permanently installed component of a mobile drilling
rig. The drawworks consists of a large-diameter steel spool, a motor, a
main brake, a reduction gear, and an auxiliary brake. The brake of the
drawworks hoisting machine is an essential component that is engaged
when no motion of the traveling block is desired. Chrysotile asbestos-
containing brake blocks are imported articles for use in some
drawworks, reportedly most often on larger drilling rigs. Spent brake
blocks must periodically be replaced by workers in the oilfield
industry who maintain the rig (Ref. 1).
d. Commercial use and disposal of aftermarket automotive chrysotile
asbestos-containing brakes/linings.
The two primary types of automobile brakes are drum brakes and disc
brakes, and chrysotile asbestos has been found in both, in linings for
drum brake assemblies and pads in disc brake assemblies. Disc brakes
are much more common today than drum brakes, but many passenger
vehicles have a combination of disc brakes for the front wheels and
drum brakes for the rear wheels. Chrysotile asbestos fibers offer many
properties that are desired for brake linings and brake pads, and up
through the 1990s many new automobiles manufactured in the United
States had brake assemblies with asbestos-containing components. By
2000, asbestos was no longer used in the brakes of virtually any
original equipment manufacturer (OEM) automobiles sold domestically;
however, asbestos-containing brake products continue to be imported and
sold in the United States. The quantity of asbestos-containing brake
part articles imported is unknown. Therefore, asbestos could be found
in the United States: (1) In vehicles on the road that have asbestos-
containing brakes, whether from older and vintage vehicles or
aftermarket parts; and (2) In vehicles that have new replacement
asbestos-containing brakes installed by establishments or individuals
that use certain imported products. Brakes must be repaired and
replaced periodically, which involves activities that create dust and
potential occupational exposure to asbestos (Ref. 1).
e. Commercial use and disposal of other chrysotile asbestos-
containing vehicle friction products.
While EPA has verified that U.S. automotive manufacturers are not
installing asbestos-containing brakes on new cars for domestic
distribution, EPA identified a company that claimed to import asbestos-
containing brakes and then install them on cars in the United States
for export only. Following completion of the risk evaluation, and
during the risk management phase following publication of the final
risk evaluation, this company disavowed this practice (Ref. 6).
In addition, there is a limited use of asbestos-containing brakes
for a special, large transport plane, the ``Super-Guppy'' Turbine (SGT)
aircraft, owned and operated by the National Aeronautics and Space
Administration (NASA). The SGT aircraft is a specialty cargo plane that
transports oversized equipment, and it is considered a mission-critical
vehicle. Only one SGT aircraft is in operation today, and NASA acquired
it in 1997. The SGT aircraft averages approximately 100 flights per
year. When not in use, it is hangered and maintained at a NASA facility
in El Paso, Texas. The SGT aircraft has eight landing gear systems, and
each system has 32 brake blocks, which contain chrysotile asbestos.
Potential worker exposures are associated with servicing the brakes. As
explained in the risk evaluation, the following two conditions of use
do not present unreasonable risk, and therefore do not require
mitigation by this final rule: Use of chrysotile asbestos-containing
brakes for a specialized, large NASA transport plane; and the disposal
of chrysotile asbestos-containing brakes for a specialized, large NASA
transport plane (Ref. 1).
f. Commercial use and disposal of other asbestos-containing
gaskets.
EPA also identified the use of chrysotile asbestos-containing
gaskets in the exhaust system of a specific type of utility vehicle
manufactured and available for purchase in the United States. The
utility vehicle manufacturer purported at the time to receive the pre-
cut gaskets which are then installed during manufacture of the vehicle.
The gaskets may be removed during servicing of the exhaust system at
utility vehicle dealerships and other repair and maintenance shops.
Exhaust gasket installation and repair activities create asbestos
exposure. (Ref. 1).
g. Consumer use and disposal of aftermarket automotive chrysotile
asbestos-containing brakes/linings.
Asbestos could be found in the United States: (1) In vehicles on
the road that have asbestos-containing brakes, whether from original
manufacturers (primarily for older and vintage vehicles) or aftermarket
parts; and (2) In vehicles that have new replacement asbestos-
containing brakes installed by establishments or individuals that use
certain imported products. Brakes must be repaired and replaced
periodically, activities which create dust and exposure to asbestos for
consumers and bystanders who perform their own do-it-yourself
automobile maintenance and repairs on asbestos-containing components
(Ref. 1).
h. Consumer use and disposal of other asbestos-containing gaskets.
EPA also identified the use of chrysotile asbestos-containing
gaskets in the exhaust system of a specific type of utility vehicle
manufactured and available for purchase in the United States. The
gaskets may be removed during servicing of the exhaust system. EPA
determined that do-it-yourself consumers who may repair these vehicles
and bystanders are exposed to asbestos (Ref. 1).
[[Page 21977]]
III. EPA's Proposed Rule Under TSCA Section 6(a) for Chrysotile
Asbestos
A. Description of TSCA Section 6(a) Requirements
Under TSCA section 6(a), if the Administrator determines through a
TSCA section 6(b) risk evaluation that a chemical substance presents an
unreasonable risk of injury to health or the environment, without
consideration of costs or other non-risk factors, including an
unreasonable risk to a potentially exposed or susceptible subpopulation
identified as relevant to the Agency's risk evaluation, under the
conditions of use, EPA must by rule apply one or more requirements to
the extent necessary so that the chemical substance no longer presents
such risk.
The TSCA section 6(a) requirements can include one or more of the
following actions alone or in combination:
Prohibit or otherwise restrict the manufacturing
(including import), processing, or distribution in commerce of the
substance or mixture, or limit the amount of such substance or mixture
which may be manufactured, processed, or distributed in commerce (TSCA
section 6(a)(1)).
Prohibit or otherwise restrict the manufacturing,
processing, or distribution in commerce of the substance or mixture for
a particular use or above a specific concentration for a particular use
(TSCA section 6(a)(2)).
Limit the amount of the substance or mixture which may be
manufactured, processed, or distributed in commerce for a particular
use or above a specific concentration for a particular use specified
(TSCA section 6(a)(2)).
Require clear and adequate minimum warning and
instructions with respect to the substance or mixture's use,
distribution in commerce, or disposal, or any combination of those
activities, to be marked on or accompanying the substance or mixture
(TSCA section 6(a)(3)).
Require manufacturers and processors of the substance or
mixture to make and retain certain records or conduct certain
monitoring or testing (TSCA section 6(a)(4)).
Prohibit or otherwise regulate any manner or method of
commercial use of the substance or mixture (TSCA section 6(a)(5)).
Prohibit or otherwise regulate any manner or method of
disposal of the substance or mixture, or any article containing such
substance or mixture, by its manufacturer or processor or by any person
who uses or disposes of it for commercial purposes (TSCA section
6(a)(6)).
Direct manufacturers or processors of the substance or
mixture to give notice of the unreasonable risk determination to
distributors, certain other persons, and the public, and to replace or
repurchase the substance or mixture (TSCA section 6(a)(7)).
EPA analyzed how the TSCA section 6(a) requirements could be
applied so that the unreasonable risk described in the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos is no longer present. TSCA
section 6(c)(2)(A) requires EPA, in proposing and promulgating TSCA
section 6(a) rules, to include a statement of effects addressing
certain issues, including the effects of the chemical substance on
health and the environment; the magnitude of exposure of the chemical
substance to humans and the environment; the benefits of the chemical
substance for various uses; and the reasonably ascertainable economic
consequences of the rule, including consideration of the likely effects
of the rule on the national economy, small business, technological
innovation, the environment and public health; and the costs and
benefits and the cost effectiveness of the regulatory action and of the
one or more primary alternative regulatory actions considered by the
Administrator. As a result, EPA is finalizing a regulatory action and
describing two primary alternative regulatory actions considered, which
are discussed in Unit VI. and Unit VII.A., respectively.
Related to TSCA section 6(a) actions, TSCA section 6(c)(2)(C)
requires that, in deciding whether to prohibit or restrict the chemical
substance in a manner that substantially prevents a specific condition
of use and in setting an appropriate transition period for such action,
EPA consider, to the extent practicable, whether technically and
economically feasible alternatives that benefit health or the
environment will be reasonably available as a substitute when the
prohibition or restriction takes effect. Unit VII.B.5. includes more
information regarding EPA's consideration of alternatives.
Also as part of TSCA section 6(a) actions or separately, under the
authority of TSCA section 6(g), EPA may consider granting by rule a
time-limited exemption for a specific condition of use for which EPA
finds: That the specific condition of use is a critical or essential
use for which no technically and economically feasible safer
alternative is available, taking into consideration hazard and
exposure; that compliance with the proposed requirement would
significantly disrupt the national economy, national security, or
critical infrastructure; or that the specific condition of use of the
chemical substance, as compared to reasonably available alternatives,
provides a substantial benefit to health, the environment, or public
safety. EPA did not propose to grant and is not finalizing an exemption
from the rule requirements under TSCA section 6(g).
B. Consultations and Other Stakeholder Outreach
EPA conducted consultations and outreach in preparing for the
proposed regulatory action. The Agency held a federalism consultation
on May 13, 2021, as part of this rulemaking process and pursuant to
Executive Order 13132 (Ref. 7). On May 24, 2021, and June 3, 2021, EPA
held tribal consultations for the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos (Ref. 8). EPA also conducted outreach to advocates
of communities that might be subject to disproportionate exposure to
chrysotile asbestos, such as communities with environmental justice
concerns. EPA's environmental justice (EJ) consultation occurred from
June 1 through August 13, 2021. On June 1 and 9, 2021, EPA held public
meetings as part of this consultation. These meetings were held
pursuant to Executive Orders 12898 and 14008 (Ref. 9). Units X.E.,
X.F., X.J. provide more information regarding the consultations.
In addition to the consultations described in Units X.E., X.F., and
X.J. on February 3, 2021, EPA held a public webinar (Ref. 10) and also
attended a Small Business Administration roundtable on February 5, 2021
(Ref. 11). Furthermore, EPA engaged in discussions with industry, non-
governmental organizations, other national governments, asbestos
experts and users of chrysotile asbestos. Summaries of external
meetings held during the development of this rulemaking are in the
docket.
C. Proposed Regulatory Action
On April 12, 2022, EPA issued a proposed rule under TSCA section
6(a) to regulate certain conditions of use, so that chrysotile asbestos
does not present the unreasonable risk of injury to health as
determined in the 2020 Risk Evaluation (87 FR 21706). EPA proposed
pursuant to TSCA section 6(a) to prohibit manufacture (including
import), processing, distribution in commerce, and commercial use of
chrysotile asbestos in bulk form or as part of chrysotile asbestos
diaphragms used in the chlor-alkali industry and chrysotile asbestos-
containing sheet gaskets used in chemical production. EPA proposed that
these prohibitions would take effect two years after the
[[Page 21978]]
effective date of the final rule. EPA also proposed pursuant to TSCA
section 6(a) to prohibit manufacture (including import), processing,
distribution in commerce, and commercial use of: chrysotile asbestos-
containing brake blocks used in the oil industry, aftermarket
automotive chrysotile asbestos-containing brakes/linings, other
chrysotile asbestos-containing vehicle friction products and other
chrysotile asbestos-containing gaskets. EPA proposed that these
prohibitions would take effect 180 days after the effective date of the
final rule. EPA further proposed pursuant to TSCA section 6(a) to
prohibit manufacture (including import), processing, and distribution
in commerce of: aftermarket automotive chrysotile asbestos-containing
brakes/linings for consumer use, and other chrysotile asbestos-
containing gaskets for consumer use. EPA proposed that these
prohibitions would take effect 180 days after the effective date of the
final rule. EPA also proposed disposal and recordkeeping requirements
under which regulated parties would document compliance with the
proposed disposal requirements. Disposal and recordkeeping requirements
would take effect 180 days after the effective date of the final rule.
EPA additionally proposed definitions of certain terms used in the
proposed regulatory text.
D. Primary Alternative Regulatory Action Described in the Proposed Rule
As indicated by TSCA section 6(c)(2)(A), EPA must consider the cost
and benefits and the cost effectiveness of the proposed regulatory
action and one or more primary alternative regulatory actions. In the
April 12, 2022, proposed rule (87 FR 21706), EPA's primary alternative
regulatory action described in the proposed rule was to: prohibit
manufacture (including import), processing, distribution in commerce
and commercial use of chrysotile asbestos in bulk form or as part of:
chrysotile asbestos diaphragms in the chlor-alkali industry and for
chrysotile asbestos-containing sheet gaskets in chemical production,
with prohibitions taking effect five years after the effective date of
the final rule, and require, prior to the prohibition taking effect,
compliance with an existing chemical exposure limit (ECEL) to reduce
inhalation exposures for the processing and commercial use of
chrysotile asbestos for these uses. The primary alternative regulatory
action described in the proposed rule additionally included a
prohibition on the manufacture (including import), processing,
distribution in commerce, and commercial use of chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; and other vehicle
friction products (with prohibitions taking effect two years after the
effective date of the final rule and with additional requirements for
disposal). The primary alternative regulatory action described in the
proposed rule also included prohibitions on manufacture (including
import), processing, and distribution in commerce of aftermarket
automotive chrysotile asbestos-containing brakes/linings for consumer
use and other chrysotile asbestos-containing gaskets for consumer use
(with prohibitions taking effect two years after the effective date of
the final rule). The primary alternative regulatory action described in
the proposed rule also included a requirement to dispose of chrysotile
asbestos-containing materials in a manner identical to the proposed
regulatory action, with additional provisions for downstream
notification and signage and labeling.
IV. Summary of Public Comments
A. Public Comments Regarding the Proposed Rule
EPA received a total of 10,847 public comments on the April 12,
2022, Proposed Rule titled ``Asbestos Part 1: Chrysotile Asbestos;
Regulation of Certain Conditions of Use Under Section 6(a) of the Toxic
Substances Control Act (TSCA).'' The comment period for the proposed
rule was originally scheduled to end on June 13, 2022, but was extended
until July 13, 2022, in response to public requests (87 FR 31814, FRL-
8332-03-OCSPP). EPA received 158 unique comments from trade
organizations, industry stakeholders, environmental groups, and non-
governmental health advocacy organizations, among others. A separate
document that summarizes all comments submitted and EPA's responses to
those comments is available in the docket for this rulemaking (Ref.
12).
B. Notice of Data Availability and Request for Comment
After the close of the public comment period for the proposed rule,
EPA received comments and held meetings with stakeholders, including
affected industry and interested groups, related to the use of
chrysotile asbestos diaphragms in the chlor-alkali industry and
chrysotile asbestos-containing sheet gaskets used in chemical
production. Topics of these comments and meetings included media
reports regarding asbestos workplace practices in the chlor-alkali
industry, the timing of any prohibition on the manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos diaphragms and chrysotile asbestos-containing sheet
gaskets, and the requirement, included in the primary regulatory
alternative described in the preamble to the proposed rule, for
processors and users of chrysotile asbestos diaphragms and chrysotile
asbestos-containing sheet gaskets to comply with an ECEL as an interim
inhalation exposure control measure prior to the effective date of a
prohibition. Meetings were held with: ADAO (July 6 and October 13,
2022); Chlorine Institute (July 6, 2022); Dow Chemicals (October 28,
2022); Axial/Westlake (November 3, 2022); Olin Corporation (Olin)
(November 14, 2022); OxyChem (November 16, 2022, December 7, 2022, and
February 9, 2023), and Chemours (January 18, 2023). EPA received data
as part of and following those stakeholder meetings and made the
information available to the public in the rulemaking docket (EPA-HQ-
OPPT-2021-0057) through a Notice of Data Availability (NODA) and
Request for Comment (88 FR 16389, March 17, 2023) (FRL-8332-04-OCSPP).
In addition, EPA posted to the docket other information made
available after the close of the public comment period, including
several public comments submitted to EPA, including from state and
local government officials, regarding the potential impacts of the
proposed rule's compliance date for the prohibition on the commercial
use of chrysotile asbestos diaphragms in the chlor-alkali industry on
the supply of chlorine used for drinking water disinfection, wastewater
treatment and potential impacts on state and local water supply
systems; the timing of the prohibition on the manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos-containing sheet gaskets in chemical production;
and discussion of workplace monitoring strategies to comply with an
asbestos ECEL during the interim period prior to a prohibition on the
commercial use of chrysotile asbestos diaphragms.
EPA requested public comment on any data in the docket that was
received during and after the proposed rule public comment period, and
how EPA should consider it during the development of the final rule.
EPA received 47 unique comments that were responsive to the Agency's
request for
[[Page 21979]]
comments. Commenters included trade organizations, industry
stakeholders, unions, and non-governmental health advocacy
organizations. A separate document that summarizes all comments
submitted regarding the NODA, and EPA's responses to those comments is
available in the docket for this rulemaking (Ref. 13).
V. Changes From the Proposed Rule
This unit summarizes the main changes from the proposed rule to the
final rule, based on the consideration of the public comments.
A. Chrysotile Asbestos Diaphragms for Use in the Chlor-Alkali Industry
TSCA section 6(d) requires EPA to specify mandatory compliance
dates for all requirements of a TSCA section 6(a) rule. The mandatory
compliance dates must be ``as soon as practicable'' and ``provide for a
reasonable transition period.'' Except when EPA is imposing a ban or
phase-out of a chemical substance, the mandatory compliance date for a
requirement in a TSCA section 6(a) rule must be no later than five
years after the date of promulgation of the final rule. If EPA is
requiring a ban or phase-out of a chemical substance, EPA must specify
a mandatory compliance date for the start of the ban or phase-out that
is no later than five years after the date of promulgation of the final
rule, and must specify mandatory compliance dates for full
implementation of the ban or phase-out which are as soon as
practicable. Pursuant to TSCA section 6(d)(2), EPA may establish
different mandatory compliance dates for different persons.
EPA proposed to prohibit manufacture (including import),
processing, distribution in commerce and commercial use of chrysotile
asbestos for chrysotile asbestos diaphragms for use in the chlor-alkali
industry, effective two years after the effective date of the final
rule. In the proposed rule, EPA sought public comment ``to support or
refute its assumption that [chlor-alkali] facilities using asbestos
diaphragms will convert to non-asbestos technologies, and the
timeframes required for such conversions,'' and as well as on a
prohibition compliance date that would be both ``as soon as
practicable'' and ``provide for a reasonable transition period'' (87 FR
21721, 21726). In the notice of data availability, EPA described
comments and other information that the Agency had received regarding
these issues and requested additional public comment on how EPA should
consider this information in developing the final rule. 88 FR 16389,
16391. Based on public comments received in response to the proposed
rule and notice of data availability, EPA concludes that the proposed
mandatory compliance date for the prohibition on the manufacture
(including import), processing, distribution in commerce and commercial
use of chrysotile asbestos for chrysotile asbestos diaphragms would not
be ``as soon as practicable,'' and would not provide for a reasonable
transition period, as required under TSCA section 6(d)(1). 15 U.S.C.
2605(d)(1). EPA is therefore finalizing mandatory compliance dates that
differ from those in the proposed rule.
Specifically, EPA concludes that it is practicable to prohibit the
manufacture (including import) of chrysotile asbestos for diaphragms in
the chlor-alkali industry as of the effective date of the final rule.
All chlor-alkali companies that currently use chrysotile asbestos
already have a sufficient supply of chrysotile asbestos for foreseeable
future operations prior to the prohibition compliance dates for
processing, distribution in commerce and commercial use. The three
chlor-alkali companies that use asbestos diaphragms provided comment to
EPA that they all ceased importing raw asbestos and do not need or
intend to resume importing raw asbestos. Therefore, EPA is prohibiting
the manufacture (including import) of chrysotile asbestos for
diaphragms for use in the chlor-alkali industry as of the effective
date of the final rule.
With respect to the prohibition on the processing, distribution in
commerce, and commercial use of chrysotile asbestos for chrysotile
asbestos diaphragms, EPA concludes that five years after the effective
date of this final rule is as soon as practicable for this prohibition
to start. Additionally, EPA concludes that the date by which the full
implementation of this prohibition is practicable varies for different
persons affected by this prohibition. Therefore, as described in
further detail below, EPA is finalizing multiple compliance dates for
full implementation of this prohibition to provide a reasonable
transition time.
EPA received significant comment on the timing of the proposed
prohibition on use of chrysotile asbestos diaphragms in the chlor-
alkali industry during the public comment period for the proposed rule,
as well as in response to the notice of data availability. While EPA
received comments supporting the proposed two-year prohibition
timeline, many commenters argued the two-year timeline would not
provide the chlor-alkali industry a reasonable transition period.
Comments included information regarding the types of activities
involved in the transition to non-asbestos diaphragms, the limited
number of suppliers that are able to provide the necessary materials
for the transition, the technical expertise needed and its scarcity,
capital cost investments needed, projected chlorine production impacts
from the expected transition, and time it generally takes to obtain
permits, including environmental permits, required for the transition.
Commenters requested that EPA provide additional time to allow the
chlor-alkali industry to transition away from asbestos-containing
diaphragms, and to allow for this transition to occur without causing
economic disruptions or public health impacts resulting from potential
disruption of drinking water disinfection and wastewater treatment
supplies due to fluctuations in the production of chlorine and other
chlor-alkali products. Other commenters also raised concerns of impacts
to other chemical industries that use chlorine as their main feedstock
for their processes. Some commenters also expressed concerns about the
proposed alternative five-year timeline for similar reasons.
Regarding the timing of the prohibition on processing, distribution
in commerce and commercial use of chrysotile asbestos for chrysotile
asbestos-containing diaphragms, EPA concludes based on public comments
that five years after the effective date of this final rule is as soon
as practicable for this prohibition to begin, and that the practicable
compliance dates for the full implementation of this prohibition vary
for different affected persons and depend on the number of facilities a
person is converting to membrane technology. Three companies own a
total of eight chlor-alkali facilities in the United States that use
chrysotile asbestos diaphragms; the number of facilities owned by each
company varies from one to five, and the size of the asbestos diaphragm
chlorine capacity at the eight facilities varies from 171 thousand
metric tons to 981 thousand metric tons. Several factors affect the
time needed for each individual chlor-alkali company to transition away
from chrysotile asbestos diaphragm technology, including the number and
size of facilities owned by the chlor-alkali company, the company's
approach to transition away from asbestos (e.g., a decision to either
convert facilities to non-asbestos diaphragms or to membrane
technologies), and technical differences in specific facility
conversions. Comments received described the
[[Page 21980]]
different approaches to move away from chrysotile asbestos use given
the different designs of chrysotile asbestos diaphragm technology, the
type of intended conversion to a non-asbestos diaphragm technology or
membrane technology, the limited availability of suppliers and
technical expertise required for the conversion process, as well as
differences regarding permits needed for the conversion of facilities
and permitting timelines based on their location. In particular,
comments explained that due to such issues, one company's conversion of
multiple facilities to membrane technology cannot be performed
simultaneously and can only be accomplished in a sequential conversion
process. In the final rule, EPA is adopting an approach that can
accommodate differences among facilities to provide a reasonable
transition period for each remaining chlor-alkali facility still using
chrysotile asbestos diaphragms, while ensuring the associated
unreasonable risk is addressed as soon as practicable without
anticipated disruption to the available supply of chlor-alkali
chemicals needed to treat drinking water and wastewater.
The mandatory compliance dates for the prohibition on processing,
distribution in commerce and commercial use of chrysotile asbestos for
chrysotile asbestos diaphragms for use in the chlor-alkali industry
included in this final rule are longer than the proposed regulatory
action; however, the prohibition phase-in dates begin five years after
the effective date of the final rule, which was the compliance date in
the primary alternative regulatory option described in the proposed
rule for this condition of use. The primary alternative regulatory
option described in the proposed rule included a prohibition effective
five years after the effective date of the final rule, as well as a
requirement to comply with an existing chemical exposure limit (ECEL)
before this prohibition would take effect and related monitoring and
recordkeeping requirements. The final rule also includes a requirement
to comply with interim controls before the prohibition takes effect.
Unit V.B. describes the changes to these interim controls.
There are two main technologies that can be used to replace
asbestos diaphragms in chlor-alkali production, non-asbestos diaphragm
cells and membrane cells. Development of non-asbestos diaphragm cells
began in the mid-1980s. Non-asbestos diaphragms operate in a similar
manner to asbestos diaphragms. In a diaphragm cell, a diaphragm is
placed between the anode and cathode of an electrolysis cell to
separate the chlorine, hydrogen, and caustic soda products. The
diaphragm ensures that the chlorine and hydrogen do not spontaneously
ignite, and the chlorine and caustic soda do not form undesirable
reactant products. Non-asbestos diaphragms generally last longer in
service than asbestos diaphragms and can reduce energy consumption due
to lower cell voltages. The process to convert a chlor-alkali facility
from asbestos diaphragms to non-asbestos diaphragms is not as complex
as the process to convert to membrane technology; it requires fewer
design changes, less construction, and may be performed over several
years without significant disruption of facility operations or product
output. Significantly, the conversion to non-asbestos diaphragms can
proceed concurrently at several facilities, subject to the availability
of supplies of non-asbestos diaphragm cell components. Membrane cell
technology was developed in the early 1970's; the membrane cell process
is different from the diaphragm process in a number of significant ways
and operates through the selective permeability of the membranes, which
allow only specific components to pass through. Membrane technology
conversions are more complicated than diaphragm technology conversions.
Membrane technology conversions require new cells, as well as multiple
other plant infrastructure changes, including changes to: brine
processing, caustic soda handling, piping, storage tanks, and power
supply. However, as compared to diaphragm technology, membrane
technology uses less energy and produces a higher-quality product
(containing less salt) for which there is greater market demand, and is
therefore generally considered the current best available technology in
the chlor-alkali industry.
Based on public comments and meetings with companies, EPA
understands that at least four of eight chlor-alkali facilities, two
operated by OxyChem and two operated by Olin, will be converted to non-
asbestos diaphragm cell technology. A fifth facility, operated by
Westlake, is being converted to an unspecified non-asbestos technology.
As described in Unit IV.B., EPA issued a Notice of Data Availability
(NODA) and Request for Comment (88 FR 16389, March 17, 2023), that,
among other topics, provided additional information on and sought
comment on the timing of any prohibition on the manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos diaphragms. Based on this information, including
public comment received in response to this notice, EPA concludes these
five conversions to non-asbestos diaphragms (or alternative non-
asbestos process) can be achieved in five years.
On April 4, 2023, during the public comment period for the March
2023 Notice of Data Availability, one chlor-alkali company, Olin, met
with EPA and submitted a letter to EPA stating its support for ``an EPA
action to ban the installation of any new or replacement asbestos-based
diaphragms in two years, in combination with an additional five years
to operate any existing asbestos-based diaphragm production cells.''
The comment suggested that this seven-year ban should apply to the
entire chlor-alkali industry. The company also noted that during the
proposed additional five-year window it ``would use an in-situ process
to maintain the diaphragms which does not involve workers removing
asbestos diaphragms from the closed process for repairs or constructing
new asbestos diaphragms.'' (Ref. 14) No further written information was
provided to support this comment during the public comment period,
which ended April 17, 2023. In August 2023, Olin requested to meet
again with EPA and provided a one-page slide with bullet-points on its
plans to convert its two facilities using asbestos diaphragms to non-
asbestos diaphragms within the seven-year timeline it had proposed in
April. The company stated it has several thousand asbestos diaphragm
cells and after an initial two-year period during which it would
continue to install new asbestos diaphragms; it would require five
additional years to replace all its asbestos diaphragms. (Ref. 15)
In the preamble to the proposed rule, EPA sought public comment on
a compliance date for a prohibition on the use of chrysotile asbestos-
containing diaphragms in chlor-alkali production, including ``specific
and detailed timelines to build asbestos-free facilities or to convert
existing asbestos-using facilities to asbestos-free technology'' and
``specific information regarding potential barriers to achieving the
proposed prohibition date while considering the supply of chlor-alkali
chemicals'' (87 FR 21726). Olin's comments do not provide EPA with
adequate information to establish that seven years is as soon as
practicable for the company to convert its two facilities to non-
asbestos diaphragms or otherwise end the use of asbestos, or that this
rule's five-year prohibition for non-membrane conversions does not
provide the company with a reasonable transition period. For example,
it is
[[Page 21981]]
unclear why two years are required for the company to continue
installing new asbestos diaphragms before the company can begin
converting cells, since the company did not provide supporting data to
explain why waiting two years to start the conversion, is as soon as
practicable for cell conversions. The company did not provide
information indicating any difficulties with its expected ability to
obtain replacement parts, including any information from or on
suppliers; and no supporting information was provided to EPA to show
that a higher conversion rate or beginning the conversion immediately
rather than in two years could disrupt the company's ability to produce
sufficient chlor-alkali chemicals for its customers. Additional
information that would have been needed for EPA to assess whether the
proposed seven-year compliance date is as soon as practicable includes:
information regarding the types of activities involved in the
transition to non-asbestos diaphragms, what suppliers provide the
necessary materials, what type of technical expertise is needed and its
availability, capital cost investments needed, projected chlorine
production and impacts from the expected transition. In establishing
the chrysotile asbestos diaphragm phase-out timeframes in the rule, EPA
based its compliance timeframe on reasonably available information,
including information provided in public comments, as well as in
meetings with interested stakeholders. EPA took into consideration the
technical differences in specific facility conversions and how those
affect the time needed for each individual chlor-alkali company to
transition away from chrysotile asbestos diaphragm technology, such as
the different designs of chrysotile asbestos diaphragm technology, the
type of intended conversion to a non-asbestos diaphragm technology or
membrane technology, the limited availability of suppliers and
technical expertise required for the conversion process, as well as
differences regarding permits needed for the conversion of facilities
and permitting timelines based on facility location.
Also, beyond a general description, Olin provided no additional
information on its proposed chrysotile asbestos-containing slurry cell
maintenance process, how it may or may not differ from previously
described practices by the company, or to what extent this process
would reduce exposure. Furthermore, EPA has no information on other
companies' ability to implement such an asbestos-containing slurry
process within two years, or its effect on national chlor-alkali
production in the period after two years and before final phase-out.
While seven years was presented as being as soon as practicable to
transition one company's operations to non-asbestos diaphragm
technology, seven years was also presented to EPA as a chrysotile
asbestos use ban date for the entire chlor-alkali industry. The
proposal does not consider other companies' comments on their abilities
to phase-out asbestos use as soon as practicable, or what is a
reasonable transition time for those firms. Other companies have told
EPA or provided information to EPA that leads EPA to conclude that they
can complete all of their planned conversions to non-asbestos
diaphragms within five years (Ref. 16; Ref. 17). Allowing all of the
chlor-alkali companies seven years--an additional two years--to convert
to non-asbestos diaphragms therefore would not be as soon as
practicable given the information received from other companies.
Furthermore, EPA believes that Olin's suggested approach for
conversion from asbestos diaphragms to non-asbestos diaphragms is not
practical for other companies who are converting from diaphragm to
membrane technology, and EPA believes that there would be adverse
impacts on the availability of chlorine for drinking water should this
approach be uniformly adopted. Regarding the plans of another company,
OxyChem, to sequentially convert three facilities to membrane
technology, EPA has received detailed information on the sequential
conversion schedule. The company's first facility can be converted
within five years; allowing seven years for its conversion would not be
as soon as practicable. The second facility conversion is not scheduled
to be complete for eight years. EPA has no basis to conclude this
schedule could be shortened to seven years while still providing a
reasonable transition period, given the limited global supply of
essential metals, the limited capacity to produce electrode elements,
the limited number of specialized electrochemical and technical experts
for chlor-alkali facilities and the inability to concurrently schedule
and procure for multiple, unique membrane facility conversions, as
documented in extensive and detailed information provided to EPA by
OxyChem. Finally, the third facility's membrane conversion will not be
completed for 12 years; EPA has no basis to conclude seven years
provides a reasonable transition period for this conversion; in fact,
the conversion process is not scheduled to begin before eight years due
to the need to complete the conversion of the second facility in
advance of this third facility. A ban that is implemented in seven
years would force the closure of this third facility for five years
before chlor-alkali production could resume. EPA expects this forced
closure would have deleterious impacts on the supply of chlor-alkali
chemicals for water treatment as well as the chemicals industry, and
also would have significant financial impacts for the company.
The issuance of this final rule does not preclude Olin from
presenting additional information to EPA on its conversion plans in the
future. For example, EPA has discretion under TSCA section 6(g) to
grant an exemption from a requirement of a TSCA section 6(a) rule for a
specific condition of use of a chemical substance, if EPA finds that,
among other reasons, compliance with the requirement would
significantly disrupt the national economy, national security, or
critical infrastructure, or the condition of use provides a substantial
benefit to health or public safety. EPA believes the provision of
chlor-alkali chemicals for water treatment has potential implications
for all these considerations. Information that would help EPA to
evaluate an alternate transition time would include: Conversion plans
and schedules; progress made; impediments to ending asbestos use in
five years; impacts of the five-year end date on production output;
impact on the company's customers; and the impact on the supply of
chlor-alkali chemicals for water treatment. However, EPA currently has
no basis to conclude that requiring compliance with the five-year
period would significantly disrupt the national economy, national
security, or critical infrastructure, or that a longer transition
period for the conversion of asbestos diaphragms to non-asbestos
diaphragms would provide a substantial benefit to public safety, such
that a section 6(g) exemption may be appropriate. Similarly, EPA
currently has no basis to conclude that the five-year period provided
in this final rule is not as soon as practicable and does not provide a
reasonable transition time for chlor-alkali companies to convert to
non-asbestos diaphragms.
In regard to the remaining three chlor-alkali facilities, EPA has
been provided detailed information on OxyChem's plans to sequentially
convert all three facilities to membrane technology. Conversion work on
one facility has
[[Page 21982]]
begun and is expected to be completed within five years; the other two
facilities are planned to be converted in sequence to membrane
technology after the first conversion project is finished. The final
rule prohibits the processing, distribution in commerce, and commercial
use of chrysotile asbestos for chrysotile asbestos diaphragms effective
five years after the effective date of the final rule, but allows
longer staggered phase-out periods of 8- and 12-years in order to
provide companies with a reasonable transition period for the
sequential conversion to membrane technology of up to three of their
chlor-alkali facilities still using chrysotile asbestos diaphragms,
provided certain conditions are met and progress toward initiating
phase-out has been demonstrated. The 5-8-12 years staggered phase-out
period allows for the required construction and required planning,
permits and capital investment needed for the transition from
chrysotile asbestos diaphragms to membrane technology. The final rule
allows a company to continue to process, distribute in commerce and
commercially use chrysotile asbestos for diaphragms in the chlor-alkali
industry at no more than two of its facilities until eight years after
the effective date of the final rule, to provide a reasonable period
for sequential conversions of facilities from chrysotile asbestos
diaphragm technology to membrane technology. In order to be eligible
for this extended phase-out period under the final rule, a company
must: own or operate more than one facility that uses chrysotile
asbestos in chlor-alkali production as of the effective date of the
final rule; be converting more than one of those facilities to membrane
technology; have, by the date five years after the effective date of
the final rule, ceased all processing, distribution in commerce and
commercial use of chrysotile asbestos at one (or more) facilities that
are undergoing or have undergone such conversion; and certify to EPA
compliance with these provisions. A company that does this may then
also continue to process, distribute in commerce and commercially use
chrysotile asbestos for diaphragms in the chlor-alkali industry at not
more than one facility until 12 years after the effective date of the
final rule, so that it may continue to produce chlor-alkali chemicals
during conversion to membrane technology, subject to similar conditions
and the submission of a second certification to EPA by eight years
after the effective date of the final rule. This means that by eight
years after the effective date of the rule, a company must certify:
that they own or operate more than two facilities that uses chrysotile
asbestos in chlor-alkali production as of the effective date of the
final rule; be converting more than two of those facilities to membrane
technology; and have, by the date eight years after the effective date
of the final rule, ceased all processing, distribution in commerce and
commercial use of chrysotile asbestos at all facilities but one. In no
situation may any facility continue to process, distribute in commerce
or commercially use chrysotile asbestos for diaphragms in the chlor-
alkali industry after 12 years after the effective date of the final
rule.
B. Interim Controls
EPA's primary alternative regulatory action described in the
proposed rule was to prohibit the manufacture (including import),
processing, distribution in commerce and commercial use of chrysotile
asbestos in bulk form or as part of chrysotile asbestos diaphragms in
the chlor-alkali industry and for chrysotile asbestos-containing sheet
gaskets in chemical production (with prohibitions taking effect five
years after the effective date of the final rule), which also included
a requirement, prior to the prohibition taking effect, to comply with
an ECEL for the processing and commercial use of chrysotile asbestos
for these uses. The final rule includes interim control requirements
developed from the ECEL provisions described in the preamble to the
proposed rule with some modifications to address public comments
regarding monitoring limitations which could impact the ability to
implement an action level. The final rule does not include the ECEL
action level of 0.0025 f/cc as an 8-hour time weighted average (TWA)
described in the preamble to the proposed rule, in response to concerns
raised in comments about the feasibility of accurately measuring to
this level. Under the primary alternative regulatory action described
in the proposed rule, the ECEL action level would have been used to
determine how frequently periodic exposure monitoring would be required
if initial exposure monitoring revealed concentrations of chrysotile
asbestos below the ECEL: if exposure monitoring revealed concentrations
of chrysotile asbestos below the ECEL action level, the owner or
operator would be required to conduct periodic exposure monitoring
every five years; however, if exposure monitoring revealed
concentrations of chrysotile asbestos at or above the ECEL action level
but below the ECEL, the owner or operator would be required to conduct
periodic exposure monitoring every six months. Since an ECEL action
level is not being included as part of the final rule due to concerns
with accurately measuring down to the ECEL action level, EPA is
requiring all persons subject to the interim control requirements to
conduct exposure monitoring every six months if the most recent
exposure monitoring shows exposure at or below the ECEL. This testing
frequency is the same as the periodic exposure monitoring frequency
under the primary alternative regulatory action described in the
proposed rule where concentrations are at or above the ECEL action
level but at or below the ECEL.
Some commenters proposed that an ECEL would be sufficient to
eliminate the unreasonable risk, without a need for a ban on chrysotile
asbestos. EPA considered all risk management approaches and the adverse
health effects from chrysotile asbestos, including the risk of
mesothelioma, lung cancer, and other cancers from chronic inhalation as
well as who is exposed and how they are exposed to chrysotile asbestos
and concluded that a prohibition is the only requirement that would
ensure that chrysotile asbestos no longer presents an unreasonable
risk. An ECEL is a requirement that can be used to minimize the
exposure to the potentially exposed persons at the chlor-alkali
facilities during the interim period before the prohibition takes
effect, provided that a robust monitoring program and effective
exposure controls, such as engineering controls, are in place. However,
as explained in the proposed rule, and supported by public comment,
monitoring to and below the ECEL, while achievable, may at times be
problematic due to analytical and field sampling challenges, resulting
in the modifications to the interim controls described earlier in this
Unit. Therefore, owners or operators may be unable to reliably ensure
with sufficient confidence that potentially exposed persons are not
exposed to air concentrations above the ECEL. The feasibility of
instituting additional engineering controls at chlor-alkali facilities
is unlikely due to the nature of the tasks that require workers
handling chrysotile asbestos. As such, compliance with the ECEL for
workers is unlikely to be achieved without long-term reliance on the
use of respirators. Respirators are the least effective means of
ensuring worker protection in the hierarchy of controls, particularly
in the case of protecting workers and ONUs against exposure to asbestos
fiber
[[Page 21983]]
inhalation. As discussed in section 2.3.2.1 of the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos, based on studies investigating
the performance of respirators, some workers and ONUs may have
protection below the nominal applied protection factor for respirator
use and would not be protected so that chrysotile asbestos does not
present unreasonable risk. For these reasons, EPA believes that an ECEL
cannot ensure that chrysotile asbestos does not present unreasonable
risk to workers and, therefore, it is not a substitute for a ban as a
long-term risk management solution.
C. Chrysotile Asbestos-Containing Sheet Gaskets in Chemical Production
EPA proposed to prohibit manufacture (including import),
processing, distribution in commerce, and commercial use of chrysotile
asbestos, including any chrysotile asbestos-containing products or
articles, for sheet gaskets in chemical production, with these
prohibitions taking effect two years after the effective date of the
final rule. EPA is finalizing these prohibitions with several
modifications based on public comment received in response to the
proposed rule and notice of data availability.
First, commenters noted the proposed ban would prohibit the ongoing
use of previously installed chrysotile asbestos-containing sheet
gaskets in chemical production, which presented several concerns. They
noted that the number of sheet gaskets remaining in use in chemical
plants and refineries could be in the hundreds of thousands and
potentially millions. This is a much larger universe than the asbestos-
containing gasket use that EPA characterized in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos. Comments noted it would be
impossible for facilities to be certain which older gaskets contain
asbestos, and therefore to ensure compliance with the prohibition as
proposed, the facilities would have to remove all older gaskets on the
assumption that they may contain chrysotile asbestos. Such a
replacement program would be expensive, it would disrupt production,
including prolonged plant shutdowns, and would be difficult to
accomplish even in two years. Commenters also noted that the ongoing
use of installed gaskets does not present unreasonable risk: rather the
risk is present during asbestos gasket removal and recommended that the
most effective and safest strategy would be to replace asbestos gaskets
when they reach the end of their service life. These comments are
consistent with EPA's evaluation of exposure to in the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos. The worker activities most
relevant to chrysotile asbestos exposure include receiving new gaskets,
removing old gaskets, bagging old gaskets for disposal, and inserting
replacement gaskets into flanges and other process equipment. Outside
of these activities, EPA did not find the ongoing use of installed
gaskets presented unreasonable risk. In response to these comments, EPA
is specifying in the final rule that any chrysotile asbestos-containing
sheet gaskets for chemical production which are already installed and
in use prior to the compliance date for the prohibitions are not
subject to the distribution in commerce and commercial use
prohibitions. Allowing distribution in commerce of installed chrysotile
asbestos-containing sheet gaskets will permit the sale of equipment and
facilities that may contain such gaskets.
Second, EPA is finalizing a prohibition on the commercial use of
chrysotile asbestos sheet gaskets for titanium dioxide production with
a modified mandatory compliance date of five years after the effective
date of the final rule. This provision responds to information provided
by a titanium dioxide producer that it requires additional time to
replace asbestos gaskets that are used in specialized equipment for
titanium dioxide production. The company provided information that it
is actively working on a transition to non-asbestos gaskets at its two
large titanium dioxide production facilities in the United States;
however, the replacement of asbestos gaskets in the oxidation reaction
area of the process, which are subject to high temperature, pressure,
and corrosive chemicals, is a complicated engineering project that will
require the redesign and replacement of specialized reactor vessel
flanges. (Ref. 18; Ref. 19) Due to the specialized nature of the
project, the need to continue titanium dioxide production, and safety
concerns, EPA has concluded that five years is as soon as practicable
and provides a reasonable transition period for the implementation of a
ban on the commercial use of asbestos gaskets for titanium dioxide
production. Consistent with the proposed primary regulatory
alternative, to address worker exposure to asbestos during this five-
year period, interim workplace controls of chrysotile asbestos
exposures will be required for the commercial use of sheet gaskets for
titanium dioxide production. The titanium dioxide producer did not
request additional time to import or process asbestos for this use, and
the manufacture (including import), processing, and distribution in
commerce of chrysotile asbestos sheet gaskets for titanium dioxide
production has an unmodified mandatory compliance date of two years
after the effective date of the final rule while use can continue until
five years after the effective date of the final rule.
Finally, after publication of the proposed rule, EPA received a
comment from a Department of Energy contractor, Savannah River Nuclear
Solutions, stating that there is an ongoing use of chrysotile asbestos
sheet gaskets in the processing of nuclear material at the Savannah
River Site, which EPA has determined falls within the sheet gaskets in
chemical production category of use, based on the information provided
by the commenter (Ref. 20). The commenter states they have been unable
to identify non-asbestos substitute materials that are as durable in
the radioactive environment associated with the use. EPA met with the
commenter and gathered additional information on the use, which also
includes some use of chrysotile asbestos sheet gaskets for steam
systems in low or no radiation areas at the nuclear facility.
The comment stated that the use of less durable, non-asbestos,
gasket material would require more frequent gasket replacements, which
in turn increases the frequency of radiation exposure for the workers
who perform this task in radioactive areas. In addition, the comment
indicated that the protective clothing, gloves, and respiratory
equipment required to minimize exposure to the radiological hazards
associated with the nuclear material also protects workers in
radioactive areas from exposures to chrysotile asbestos. At this
facility, there is also some use of asbestos gaskets in low or no
radiation areas, but removal and replacement of asbestos gaskets is
performed in compliance with OSHA 29 CFR 1926.1101 (Class III work) at
a minimum. In addition, minimum respiratory protection used by workers
for this task is a full-face air purifying respirator with a P-100
(HEPA) cartridge which has an APF of 50. In high radiation areas,
respirators with APF of 1,000 or 10,000 are used, depending on the
protective suit required.
In response to this comment, EPA reached out to the Department of
Energy for additional information regarding any ongoing use of
chrysotile asbestos sheet gaskets at its nuclear facilities and
confirmed that additional DOE nuclear
[[Page 21984]]
facilities do still use such gaskets. EPA received additional
information on use of chrysotile asbestos sheet gaskets in the
processing of nuclear material from the Department of Energy during OMB
interagency review, regarding DOE operations at its Savannah River
Site. DOE explained that chrysotile asbestos sheet gaskets are used at
SRS in the H-Canyon, F and H Tank Farms, Defense Waste Processing
Facility, and at the Savannah River National Laboratory. DOE stated
that the greatest impacts of this rule would be on the operations of H-
Canyon; this facility is the sole nuclear separations facility in the
nation and is integral to DOE's mission to safely dispose of nuclear
materials from across the DOE complex. H-Canyon is used to help process
certain materials for disposition, such as spent nuclear fuel--used
fuel from nuclear reactors--some of which contains highly enriched
uranium. DOE also explained that asbestos gaskets provide the most
robust protection against potential leaks or radiological contamination
events, they are the longest lasting material for these environments,
and they continue to be the only usable gasket for some specialized
infrastructure. Further, SRS was added to the National Priorities List
(NPL) on December 21, 1989, and the site is subject to the SRS Federal
Facility Agreement (FFA) signed by DOE, EPA, South Carolina Department
of Health and Environmental Control (SCDHEC) in 1993 pursuant to
Section 120 of CERCLA Section 120 and Sections 3008(h) and 6001 of RCRA
(Ref. 21). Under the FFA, DOE, EPA Region 4 and the SCDHEC have entered
into a 2022 High Level Waste Milestone Agreement that specifies
completion of the liquid waste program at SRS by the end of 2037 (Ref.
22). Even if a suitable replacement could be identified for this use of
asbestos gaskets, DOE explained, the time required to replace the
asbestos gaskets, incur an outage of waste processing, and restart
facilities would result in a significant delay in the completion of the
liquid waste program. Thus, EPA has determined that compliance with a
two or five year prohibition on the use of chrysotile asbestos sheet
gaskets at SRS is not practicable, and does not provide for a
reasonable transition period, as required under TSCA section 6(d).
Rather, in order to provide SRS with a reasonable transition period to
move away from asbestos gaskets without disruption of its existing
commitments to complete the liquid waste program, EPA has determined
that 2037 is as soon as practicable for the full implementation of the
ban on the use of chrysotile asbestos sheet gaskets in chemical
processing at SRS.
EPA also contacted the Nuclear Energy Institute (NEI), which
reported that some commercial nuclear facilities continue to use
chrysotile asbestos sheet gaskets, while many do not. NEI also stated
that its largest supplier of specialty gaskets for nuclear applications
does not provide asbestos gaskets. EPA spoke to the commenter's
supplier of asbestos gaskets, who informed EPA that, while there is
ongoing difficulty finding suitable substitutes for asbestos in
specific nuclear applications, they have been unable to find sources of
asbestos cloth to produce new asbestos gaskets and are phasing out of
this market.
Although the current workplace controls described by the commenter,
Savannah River Nuclear Solutions, potentially reduce the risk posed to
some workers, because the use of chrysotile asbestos sheet gaskets in
the processing of nuclear material was first identified to EPA by
public comment received after publication of the proposed rule, which
followed publication of the Risk Evaluation, EPA was unable to evaluate
this industry's specific work practices in the Risk Evaluation.
Therefore, in the Risk Evaluation, EPA does not present information
specific to risk to workers and ONUs for the use of chrysotile asbestos
sheet gaskets in the processing of nuclear material; however,
information received after the Risk Evaluation describes the current
workplace controls for processing of nuclear material and the related
challenges to transition to a substitute material. EPA does not have
sufficient information to determine that unreasonable risk can be
eliminated with PPE and current workplace controls alone; therefore, a
prohibition is necessary to address the unreasonable risk. In
consideration of the information received, EPA is providing additional
time for the use of chrysotile asbestos-containing sheet gaskets for
processing nuclear material. Under the final rule, persons may continue
to manufacture (including import), process and distribute in commerce
chrysotile asbestos-containing sheets gaskets for two years after the
effective date of the final rule and commercially use chrysotile
asbestos-containing sheet gaskets for processing nuclear material for
five years after the effective date of the final rule, and until the
end of 2037 for the Savanah River Site.
Similar to the primary alternative regulatory action described in
the proposed rule, to address worker exposure to asbestos during this
five-year period of commercial use, interim workplace controls of
chrysotile asbestos exposures will be required for the commercial use
of sheet gaskets. In the case of the chrysotile asbestos-containing
sheet gaskets used in the processing of nuclear material, EPA is
incorporating the current worker protection practices identified by the
commenter as part of the interim controls for that use to reduce
chrysotile asbestos exposures until the prohibition compliance date.
This includes ongoing compliance with the OSHA Asbestos Safety and
Health Regulations for Construction (29 CFR 1926.1101) and minimum
respiratory protection of a full-face air purifying respirator with a
P-100 (HEPA) cartridge with an APF of 50 for potentially exposed
persons. A respirator with an APF 50 is a higher level of PPE than
would be needed to reduce worker exposure to below the cancer benchmark
for general sheet gasket use (replacing gaskets) in the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos (Ref. 1). However, as
discussed in section 2.3.2.1 of the Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos, based on studies investigating the performance
of respirators, some workers and ONUs may have protection below the
nominal applied protection factor for respirator use and would not be
protected; EPA would need additional information to determine if the
unreasonable risk can be eliminated without a prohibition for the use
of asbestos gaskets in the processing of nuclear material. The
commenter also requested an exemption from the final rule since the
asbestos gaskets are integral to the safe operation of the process.
TSCA section 6(g)(2) requires EPA to analyze the need for the
exemption, and to make public the analysis and statement on how the
analysis was considered when proposing an exemption under TSCA section
6(g). EPA is considering a separate action to provide a future time-
limited exemption under TSCA section 6(g) for the processing of nuclear
material.
D. Other Conditions of Uses
EPA proposed to prohibit all persons from the manufacture
(including import), processing, distribution in commerce and commercial
use of chrysotile asbestos, including any chrysotile asbestos-
containing products or articles, for commercial use of: (1) Oilfield
brake blocks; (2) Aftermarket automotive brakes and linings; (3) Other
vehicle friction products; and (4) Other gaskets, beginning 180 days
after the effective date of the final rule. Public comments noted the
difficulty in
[[Page 21985]]
identifying asbestos components previously installed in vehicles; that
it is not possible to tell by visual inspection whether previously
installed aftermarket brake pads or shoes contain asbestos, and that
very few aftermarket brake pads and shoes contain asbestos. Without
existing records, it may not be possible to establish that a vehicle's
brakes do not contain asbestos unless they are replaced. This is also
the situation for other vehicle friction products and gaskets in
vehicles. Based on this information, EPA is finalizing the proposed
prohibition, with modifications to specify that any aftermarket
automotive brakes and linings, and other gaskets which are already
installed and in use before the prohibition is effective are not
subject to the distribution in commerce and commercial use
prohibitions. Allowing the continued use of these installed products
for their useful life will not increase repair and replacement worker
activity or related exposure or risk for these uses.
EPA received similar comments regarding the proposed prohibition on
the manufacturing (including importing), processing, and distribution
in commerce of chrysotile asbestos, including any chrysotile asbestos-
containing products or articles, for consumer use of aftermarket
automotive brakes and linings and other gaskets; namely that it would
be difficult to determine if previously installed components of a
vehicle contain asbestos, as it is not possible to tell by visual
inspection whether previously installed aftermarket brake pads or shoes
contain asbestos or not. Therefore, EPA is finalizing the proposed
prohibition, with modifications to specify that any aftermarket
automotive brakes and linings, and other gaskets which are already
installed and in consumer use by 180 days after the effective date of
the final rule are not subject to this distribution in commerce
prohibition. This will permit the resale of vehicles that contain
already-installed asbestos brakes and linings, or other gaskets. This
prohibition does not apply to the consumer use of any aftermarket
automotive brakes and linings, and other gaskets, so it is not
necessary to modify the proposal to permit the continued consumer use
of these asbestos-containing components, including consumer use in
vehicles that may contain these components. This modification will not
increase repair and replacement workers' exposure or risk for these
uses.
E. Recordkeeping
EPA is also finalizing modified recordkeeping provisions. The
recordkeeping provisions included in the proposed rule addressed
retention of disposal records. The final rule includes additional
recordkeeping requirements to reflect additional provisions of the
final rule. Specifically, EPA's final recordkeeping provisions include
additional requirements to maintain records regarding interim workplace
controls of chrysotile asbestos exposures, as well as records of
certifications of compliance for the chlor-alkali industry. Full
description of the recordkeeping requirements is in Unit VI.F.
F. Definitions
In the final rule, EPA is adding definitions in Sec. 751.503 for
``Authorized person,'' ``Membrane technology,'' ``Nuclear material,''
``Regulated area,'' and ``Savannah River Site.'' These new definitions
are being added to address provisions that were not in the proposed
regulatory text, such as the interim controls and phased-in compliance
dates for the chlor-alkali industry prohibitions.
VI. Provisions of the Final Rule
This final rule sets certain restrictions on the manufacture
(including import), processing, distribution in commerce, and
commercial use and disposal of chrysotile asbestos to prevent
unreasonable risk of injury to health in accordance with TSCA section
6(a), 15 U.S.C. 2605(a). Pursuant to TSCA section 12(a)(2), this rule
applies to chrysotile asbestos even if being manufactured, processed,
or distributed in commerce solely for export from the United States
because EPA has determined that chrysotile asbestos presents an
unreasonable risk to health within the United States or to the
environment of the United States.
A. Manufacturing, Processing, Distribution in Commerce and Commercial
Use of Chrysotile Asbestos Diaphragms in the Chlor-Alkali Industry
Provisions regulating the manufacture (including import),
processing, distribution in commerce and commercial use of chrysotile
asbestos diaphragms in the chlor-alkali industry are specified in
Sec. Sec. 751.505 and 751.507. As of the effective date of the final
rule, all persons are prohibited from the manufacture (including
import) of chrysotile asbestos, including any chrysotile asbestos-
containing products or articles, for diaphragms in the chlor-alkali
industry. Additionally, beginning five years after the effective date
of the final rule, all persons are prohibited from processing,
distribution in commerce and commercial use of chrysotile asbestos for
diaphragms in the chlor-alkali industry, except as provided in
Sec. Sec. 751.505(c) and (d).
Section 751.505(c) permits a person to process, distribute in
commerce and commercially use chrysotile asbestos for diaphragms in the
chlor-alkali industry at no more than two facilities until eight years
after the effective date of the final rule, provided that: (1) On the
effective date, the person owns or operates more than one facility that
uses chrysotile asbestos in chlor-alkali production; (2) The person is
converting more than one facility that the person owns or operates
that, as of the effective date, uses chrysotile asbestos in chlor-
alkali production from the use of chrysotile asbestos diaphragms to
non-chrysotile asbestos membrane technology; (3) By the date five years
after the effective date of the final rule, the person has ceased all
processing, distribution in commerce and commercial use of chrysotile
asbestos at one (or more) facility that is undergoing or has undergone
such conversion; and (4) The person certifies to EPA compliance with
the provisions of the paragraph, in accordance with certification
provisions in Sec. 751.507.
Section 751.505(d) permits a person who meets all of the criteria
of that paragraph to process, distribute in commerce and commercially
use chrysotile asbestos for diaphragms in the chlor-alkali industry at
not more than one facility until 12 years after the effective date of
the final rule, provided that: (1) On the effective date of the final
rule, the person owns or operates more than two facilities that use
chrysotile asbestos in chlor-alkali production; (2) The person is
converting more than two facilities that the person owns or operates
that, as of the effective date of the final rule, use chrysotile
asbestos in chlor-alkali production, from the use of chrysotile
asbestos diaphragms to non-chrysotile asbestos membrane technology; (3)
By five years after the effective date of the final rule, the person
has ceased all processing, distribution in commerce and commercial use
of chrysotile asbestos at one (or more) facility that is undergoing or
has undergone such conversion, and by eight years after the effective
date of the final rule, the person has ceased all processing,
distribution in commerce and commercial use of chrysotile asbestos at
two (or more) facilities that are undergoing or have undergone such
conversion; and (4) The person certifies to EPA compliance with the
provisions
[[Page 21986]]
of the paragraph, in accordance with the certification provisions of
Sec. 751.507.
B. Certification of Compliance for Chlor-Alkali Industry
Requirements for certifications of compliance for the chlor-alkali
industry are specified in Sec. 751.507. A person who processes,
distributes in commerce or commercially uses chrysotile asbestos for
diaphragms in the chlor-alkali industry between five years and eight
years after the effective date of the final rule must certify to EPA
their compliance with all requirements of Sec. 751.505(c) and provide
the following information to EPA: (1) Identification of the facility
(or facilities) at which, by five years after the effective date of the
final rule, the person has ceased all processing, distribution in
commerce and commercial use of chrysotile asbestos, including the
facility name, location, and mailing address; the name of facility
manager or other contact, with title, phone number and email address;
and the date the person ceased all processing, distribution in commerce
and commercial use of chrysotile asbestos at the facility; and (2) The
identification of the one or two facilities (no more than two
facilities) at which the person will after five years after the
effective date of the final rule, continue to process, distribute in
commerce and commercially use chrysotile asbestos diaphragms while the
facility or facilities are being converted to non-chrysotile asbestos
membrane technology, including for each facility, the facility name,
location, and mailing address; and (3) The name of facility manager or
other contact, with title, phone number and email address.
A person who processes, distributes in commerce or commercially
uses chrysotile asbestos for diaphragms in the chlor-alkali industry
between 8 and 12 years after the effective date of the final rule must
certify to EPA their compliance with all requirements of Sec.
751.505(d) and provide the following information to EPA: (1)
Identification of the facility at which the person has ceased all
processing, distribution in commerce and commercial use of chrysotile
asbestos after five years after the effective date of the final rule
but no later than eight years after the effective date of the final
rule, including the facility name, location, and mailing address; the
name of facility manager or other contact, with title, phone number and
email address; and the date the person has ceased all processing,
distribution in commerce and commercial use of chrysotile asbestos at
the facility; (2) The identification of the facility at which the
person will between eight years after the effective date of the final
rule and no later than 12 years after the effective date of the final
rule, continue to process, distribute in commerce and commercially use
chrysotile asbestos diaphragms while the facility is being converted to
non-chrysotile asbestos membrane technology pursuant to Sec.
751.505(d), including the facility name, location, and mailing address;
and (3) The name of facility manager or other contact, with title,
phone number and email address.
Such certification must be signed and dated by a responsible
corporate officer, which means: a president, secretary, treasurer, or
vice-president of the corporation in charge of chlor-alkali operations,
or any other person who performs similar policy or decision-making
functions for the corporation. The certification must include the
statement:
``I certify under penalty of law that this document was prepared
under my direction or supervision, and the information is, to the
best of my knowledge and belief, true, accurate, and complete. I am
aware it is unlawful to knowingly submit incomplete, false and/or
misleading information and there are criminal penalties for such
conduct.''
Certifications must be submitted to the Director of the Office of
Pollution Prevention and Toxics in Washington, DC, no later than 10
business days after the date five years after the effective date of the
final rule, or 10 business days after the date 8 years after the
effective date of the final rule, as appropriate.
C. Other Prohibitions of, and Restrictions on the Manufacturing,
Processing, Distribution in Commerce and Commercial Use of Chrysotile
Asbestos
1. Prohibition on manufacture (including import), processing,
distribution in commerce, and commercial use of chrysotile asbestos for
chrysotile asbestos-containing sheet gaskets in chemical production.
Provisions regulating the manufacturing, processing, distribution
in commerce and commercial use of chrysotile asbestos-containing sheet
gaskets in chemical production are specified in Sec. 751.509,
specifically paragraphs (a) through (c), of this rule. Beginning two
years after the effective date of the final rule, all persons are
prohibited from manufacturing (including importing), processing,
distributing in commerce, and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
use in sheet gaskets for chemical production, except as provided in
Sec. 751.509(b) and (c). However, any sheet gaskets for chemical
production which are already installed and in use as of the applicable
compliance date, are not subject to this distribution in commerce and
commercial use prohibition.
Section 751.509(b) allows the commercial use of chrysotile asbestos
sheet gaskets for titanium dioxide production past the general two-year
prohibition; any person may use chrysotile asbestos sheet gaskets for
titanium dioxide production until five years after the effective date
of the final rule. This provision only applies to commercial use;
manufacturing (including import), processing and distribution in
commerce must cease after two years, pursuant to Sec. 751.509(a).
Section 751.509(c) allows the commercial use of chrysotile asbestos
sheet gaskets for processing of nuclear material past the general two-
year prohibition: any person who meets the applicable criteria in the
paragraph may commercially use chrysotile asbestos sheet gaskets for
processing nuclear material until five years after the effective date
of this final rule; at the Department of Energy's Savannah River Site,
use may continue until the end of 2037. This provision only applies to
commercial use; manufacturing (including import), processing and
distribution in commerce must cease after two years, pursuant to Sec.
751.509(a). Section 751.509(c) requires that, beginning 180 days after
the effective date of the final rule, all persons commercially using
chrysotile asbestos sheet gaskets for processing nuclear material must
have in place exposure controls (i.e., engineering controls, work
practices, or a combination of both) expected to reduce exposure of
potentially exposed persons to asbestos, and provide potentially
exposed persons in the regulated area where chrysotile asbestos sheet
gasket replacement is being performed with a full-face air purifying
respirator with a P-100 (HEPA) cartridge (providing an assigned
protection factor of 50), or other respirators that provide a similar
or higher level of protection to the wearer.
EPA did not consider workplace practices in the nuclear industry
during the development of the primary alternative interim workplace
controls in the proposed rule, and EPA has concerns about unintended
consequences were those controls to be imposed for this specific use.
In the case of the processing of nuclear material, EPA is not adopting
an ECEL to avoid imposing requirements that could
[[Page 21987]]
increase asbestos air monitoring beyond what is currently required
under the OSHA Asbestos Safety and Health Regulations for
Construction--(29 CFR 1926.1101). This is to ensure that this final
rule does not have the unintended consequence of increasing persons
exposure to radiation from nuclear material and the risk of any
associated health effects. Aside from additional worker exposure to
radiation that may result from additional sample collection activities
(such as would be required under interim workplace controls with an
ECEL under Sec. 751.511), air sampling in radioactive environments
presents special technical challenges: first, the equipment used to
collect samples may become contaminated and unfit for further use, and
second, the collected samples may be too radioactive for laboratories
to accept for analysis.
EPA expects that during the interim period before the full-ban
compliance date, existing measures under the OSHA asbestos standards,
as well as radiological control protocols under Department of Energy
regulations at 10 CFR part 835, will adequately mitigate asbestos risk
in relation to the cancer benchmark. EPA notes that the OSHA
requirements clearly delineate a regulated area in which the gasket
replacement work is occuring that has strict access controls, while
access is further restricted to radioactive areas, such that no one is
permitted in the workspace without full PPE, which includes respirators
of APF 50 or higher, in accordance with industry practices. Respirators
with APF 50 is a higher level of PPE than would be needed to reduce
exposure to workers below the cancer benchmark as identified in the
TSCA risk evaluation for general sheet gasket use (replacing gaskets).
(Table 4-19 in section 4.2.2.3. of the Risk Evaluation for Asbestos,
Part 1: Chrysotile Asbestos). However, as explained before, EPA also
recognizes that respirators are the least effective means of ensuring
worker protection in the hierarchy of controls, particularly in the
case of protecting workers against exposure to asbestos fiber
inhalation. As discussed in section 2.3.2.1 of the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos, some workers may have protection
below the nominal applied protection factor for respirator use and
would not be protected. Therefore, while respirators with APF of 50
reduce exposures to workers, only a prohibition on use ensures no
unreasonable risk. By requiring facilities to continue using the
current respiratory protection with an assigned protection factor of 50
or higher, EPA is reducing the risk to potentially exposed persons from
the unreasonable risk presented by chrysotile asbestos while ensuring a
reasonable transition period until the relevant prohibition goes into
effect. During the development of any future TSCA section 6(g)
exemption for this specific use of chrysotile asbestos sheet gaskets,
should one be proposed, EPA could give more consideration to the need
for a chrysotile asbestos monitoring program beyond asbestos monitoring
that is already required by OSHA under the Asbestos Safety and Health
Regulations for Construction at 29 CFR 1926.1101.
2. Prohibition on manufacture (including import), processing,
distribution in commerce, and commercial use of: chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; asbestos-containing
vehicle friction products; and other asbestos-containing gaskets.
Provisions regulating the manufacture (including import),
processing, distribution in commerce and commercial use of chrysotile
asbestos-containing brake blocks in the oil industry; aftermarket
automotive chrysotile asbestos-containing brakes/linings; other
asbestos-containing vehicle friction products; and other asbestos-
containing gaskets are specified in Sec. 751.509(d). Beginning 180
days after the effective date of the final rule, all persons are
prohibited from manufacturing (including importing), processing,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
commercial use of: (1) Oilfield brake blocks; (2) Aftermarket
automotive brakes and linings; (3) Other vehicle friction products; and
(4) Other gaskets. However, any aftermarket automotive brakes and
linings, other vehicle friction products and other gaskets which are
already installed and in use as of 180 days after the effective date of
the final rule, are not subject to this distribution in commerce and
commercial use prohibition.
3. Prohibition on manufacture (including import), processing, and
distribution in commerce for aftermarket automotive chrysotile
asbestos-containing brakes/linings and other asbestos-containing
gaskets for consumer use.
Provisions regulating the manufacture (including import),
processing, and distribution in commerce for aftermarket automotive
chrysotile asbestos-containing brakes/linings and other asbestos-
containing gaskets for consumer use are specified in Sec. 751.509(e).
Beginning 180 days after the effective date of the final rule, all
persons are prohibited from the manufacturing (including importing),
processing, and distribution in commerce of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
consumer use of: aftermarket automotive brakes and linings; and other
gaskets. However, any aftermarket automotive brakes and linings, and
other gaskets which are already installed and in consumer use as of 180
days after the effective date of the final rule are not subject to this
distribution in commerce prohibition.
This prohibition does not apply to the consumer use of any
chrysotile asbestos-containing aftermarket automotive brakes and
linings, and other gaskets. EPA's authority to regulate commercial use
under TSCA section 6(a)(5) does not extend to consumer use of chemical
substances or mixtures. The prohibition on the upstream manufacturing,
processing and distribution of chrysotile asbestos aftermarket
automotive brakes and linings, and other gaskets for consumer use will
remove these products from the consumer market and over time eliminate
their use as these products wear out and are replaced, or the vehicles
in which they are components are retired from use.
D. Interim Workplace Controls of Chrysotile Asbestos Exposures
1. Overview
For most of the conditions of use where, pursuant to this final
rule, the prohibition on processing and industrial use will take effect
in five or more years after the effective date of this final rule, EPA
is requiring that owners or operators comply with an eight-hour
existing chemical exposure limit (ECEL), beginning six months after the
effective date of the final rule. Specifically, this requirement
applies to the following conditions of use: (1) Processing and
industrial use of chrysotile asbestos in bulk form or as part of
chrysotile asbestos diaphragms used in the chlor-alkali industry; and
(2) Industrial use of chrysotile asbestos sheet gaskets for titanium
dioxide production. Once a facility has completed the phase-out of
chrysotile asbestos and no longer uses chrysotile asbestos in their
operations, the interim requirements no longer apply.
EPA uses the term ``potentially exposed person'' in this Unit and
in the regulatory text to include workers, occupational non-users,
employees, independent contractors, employers,
[[Page 21988]]
and all other persons in the work area where chrysotile asbestos is
present and who may be exposed to chrysotile asbestos under the
conditions of use for which these interim workplace controls apply.
EPA's intention is to require interim workplace controls that address
the unreasonable risk from chrysotile asbestos to workers directly
handling the chemical or in the area where the chemical is being used
until the relevant prohibitions go into effect. The 2020 Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos did not
distinguish between employers, contractors, or other legal entities or
businesses that manufacture, process, distribute in commerce, use, or
dispose of chrysotile asbestos. For this reason, EPA uses the term
``owner or operator'' to describe the entity responsible for
implementing the interim workplace controls in any workplace where an
applicable condition of use described in Units III.B.2.a. and
III.B.2.b. and subject to the interim workplace controls is occurring.
The term includes any person who owns, leases, operates, controls, or
supervises such a workplace. EPA has proposed to amend 40 CFR 751.5 to
add a definition of ``owner or operator'' consistent with this
description as part of its proposed TSCA section 6(a) rules to regulate
methylene chloride (88 FR 28284) and perchloroethylene (88 FR 39652).
In this final rule, EPA is using the same definition of ``owner or
operator'' to apply to where it appears in the regulatory text for
chrysotile asbestos.
As mentioned in the proposed rule (87 FR 21706), TSCA risk
management requirements could incorporate and reinforce requirements in
OSHA standards. For chrysotile asbestos, EPA's approach for interim
controls seeks to align, to the extent possible, with certain elements
of the existing OSHA standard for regulating asbestos under 29 CFR
1910.1001 and 29 CFR 1926.1101. The OSHA PEL and ancillary requirements
have established a long-standing precedent for exposure limit threshold
requirements within the regulated community. However, EPA is applying a
lower, more protective exposure limit or ECEL derived from the TSCA
2020 Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos.
However, in this final rule, EPA is not establishing medical
surveillance requirements based on the ECEL to align with those under
29 CFR 1910.1001. Companies must continue to follow the medical
surveillance requirements established by OSHA at 0.1 fiber per cubic
centimeter of air as an eight (8)-hour time-weighted average (TWA)
level.
This unit includes a summary of the interim controls, including a
description of the ECEL; and the implementation requirements such as
monitoring and notification requirements; regulated area; exposure
control plan; respiratory protection; and additional requirements for
workplace information and training. The recordkeeping associated with
the interim controls is included under the recordkeeping requirements
(Unit VI.F). This Unit also describes compliance timeframes for these
requirements.
2. Existing Chemical Exposure Limit (ECEL)
EPA calculated the ECEL to be 0.005 fibers (f)/cubic centimeter
(cc), for inhalation exposure to chrysotile asbestos as an eight-hour
time-weighted average (TWA) for use in workplace settings based on
incidence of lung cancer, mesothelioma and other cancers. (Ref. 23).
As part of the primary regulatory alternative included in the
proposed rule (87 FR 21706), EPA considered an ECEL-action level of
0.0025 f/cc as an eight-hour TWA, which would initiate certain required
activities such as more frequent periodic monitoring of exposures to
chrysotile asbestos. However, as discussed above in Unit V.B., after
public comments regarding the difficulties of measuring asbestos at
such low concentrations, EPA has decided not to finalize an ECEL-action
level in this final rule. Instead, EPA is finalizing more frequent
periodic monitoring requirements when exposure monitoring shows levels
below the ECEL than those that were described in the primary regulatory
alternative in the proposed rule. In the proposed rule, periodic
exposure monitoring results below the ECEL but above the ECEL action-
level would trigger an increase in periodic exposure monitoring to
every six months. Due to the difficulties expressed in public comments
of effectively measuring asbestos to the ECEL action level and to be
health protective in the absence of reliable test results to the ECEL
action level, the final rule will require periodic monitoring every six
months when measurements are at or below the ECEL and periodic
monitoring every three months when the ECEL is exceeded.
Commenters also expressed concerns with being able to effectively
measure asbestos to the ECEL, citing complicating factors such
analytical limitations, sample equipment, contributions from background
sources, and typical worker task exposure scenarios. While EPA in this
final rule will not include an ECEL action level due to the analytical
concerns raised in public comment, EPA believes that current analytical
methods and modern air sampling equipment allow for air monitoring with
a detection limit that allows for comparison with the ECEL level, and
the feasibility of the ECEL level is further demonstrated through the
personal air monitoring data submitted to EPA by the chlor-alkali
industry. However, for scenarios in which a sufficient limit of
detection cannot be achieved for comparison to the ECEL, owners and
operators may elect to use increased respiratory protection with an
appropriate Assigned Protection Factor (APF) to demonstrate compliance
with the ECEL as an interim workplace control, discussed more in Unit
VI.D.6.
In addition, in the proposed rule, EPA indicated that
implementation of an ECEL would require time and resources and
therefore did not propose to include it for the two-year period prior
to the proposed prohibition date. However, since this final rule's
prohibition dates for the processing and industrial use of chrysotile
asbestos in bulk form or as part of chrysotile asbestos diaphragms used
in the chlor-alkali industry and processing and industrial use of
chrysotile asbestos-containing sheet gaskets for titanium dioxide
production are at least five years, or potentially longer for certain
entities meeting EPA's requirements, EPA finds it necessary to issue
interim controls to reduce worker exposures for the period prior to the
prohibition taking effect. As part of an interim control measure,
requirements to implement the ECEL start six months after the effective
date of the rule. Specifically, owners or operators are required to
ensure that no person in the workplace is exposed to an airborne
concentration of chrysotile asbestos in excess of 0.005 f/cc as an
eight-hour TWA beginning six months after the effective date of the
final rule. EPA is also requiring owners or operators to comply with
additional requirements that are needed to ensure successful
implementation of the ECEL.
3. Monitoring
Monitoring requirements are a key component of implementing EPA's
interim workplace controls. Initial monitoring for chrysotile asbestos
is critical for establishing a baseline of exposure for potentially
exposed persons; similarly, periodic exposure monitoring assures
continued compliance over time so that potentially exposed persons are
not exposed to levels above the ECEL. In some cases, a change in
workplace conditions with
[[Page 21989]]
the potential to impact exposure levels would warrant additional
monitoring, which is also described.
EPA is requiring that owners or operators determine the 8-hour TWA
exposure of each potentially exposed person's exposure by taking one or
more personal breathing zone air samples that are representative of the
full-shift exposures for each potentially exposed person in each job
classification in each work area. These requirements are a modification
of the requirements described in the proposed regulation, which allowed
for sampling only some of the potentially exposed persons. The
requirements in this final rule align with the approach taken for
characterization of employee exposure in the OSHA standard for asbestos
(see 29 CFR 1910.1001(d)(1)(i) and (ii)) and allow for multiple samples
to fully represent the exposures during a full shift, based on the job
classification in each work area of the potentially exposed person.
Exposure samples must be analyzed using analytical methods
described in Appendix A to 29 CFR 1910.1001, or as referenced in
Appendix A to 29 CFR 1910.1001 (Appendix B to 29 CFR 1910.1001, OSHA
method ID-160, or the NIOSH 7400 method). In the proposed rule, the
primary regulatory alternative would have required use of a laboratory
that complies with the Good Laboratory Practice Standards in 40 CFR
part 792; however, in this final rule, and based on public comment, EPA
is aligning the laboratory quality standards with the OSHA general
asbestos standard. The OSHA method ID-160 and NIOSH 7400 analytical
methods are the required methods in the OSHA general asbestos standard
at 29 CFR 1910.1001 and the OSHA asbestos construction standard at 29
CFR 1926.1101. In addition, 29 CFR 1910.1001 Appendix A includes the
quality control procedures that must be implemented by laboratories
performing the analysis. Owners and operators subject to this final
rule are already familiar with the use of these methods since they are
used to comply with the OSHA asbestos standards. By incorporating the
use of these standards in this final rule, EPA is aligning with
existing analytical practice.
In the event that the owner or operator needs to use an equivalent
method to the OSHA reference method, EPA also is allowing use of such
equivalent method if the owner or operator ensures the equivalency of
the method by ensuring that replicate exposure data used to establish
equivalency are collected in side-by-side field and laboratory
comparisons, and the comparison indicates that 90% of the samples
collected in the range 0.5 to 2 times the ECEL have an accuracy range
of plus or minus 25% of the OSHA reference method at 95% confidence
level as demonstrated by a statistically valid protocol. These
requirements align with the approach taken in the OSHA standard for
asbestos (see 29 CFR 1910.1001(d)(6)(ii) and (iii)).
In addition, and as supported by commentors, the NIOSH 7402
analytical method may be applied to adjust the analytical result to
include only chrysotile asbestos. PCM analysis does not differentiate
between asbestos and other fibers. The NIOSH 7402 analytical method
uses a TEM microscope to determine the fraction of fibers that are
asbestos from a filter prepared and analyzed following NIOSH 7400. To
ensure consistency across both methods, airborne fibers analyzed using
TEM under the NIOSH 7402 analytical method align with those specified
in the NIOSH 7400 PCM method. The NIOSH 7402 method is not designed for
the quantification of the air concentration of asbestos fibers and
therefore should be used in conjunction with NIOSH 7400 under this
final rule for asbestos fiber identification.
a. Initial exposure monitoring.
In this final rule, each owner or operator of a facility engaged in
one or more of the conditions of use listed earlier in Unit VI.D.1. is
required to perform initial exposure monitoring no later than 180 days
after the effective date of the final rule to determine the extent of
exposure of potentially exposed persons to chrysotile asbestos. Initial
monitoring will notify owners and operators of the magnitude of
possible exposures to potentially exposed persons with respect to their
work conditions and environments. Based on the magnitude of possible
exposures in the initial exposure monitoring, the owner or operator may
need to increase the frequency of future periodic monitoring, and/or
adopt new exposure controls (such as engineering controls,
administrative controls, and/or a respiratory protection program).
In the primary regulatory alternative included as part of the
proposed regulation, EPA stated that if the regulated entity had
existing monitoring data less than five years old that followed the
initial exposure monitoring criteria described in the preamble to the
proposed rule, and where a process change was not implicated, the owner
or operator could choose to use this existing data as the initial
exposure monitoring instead of conducting initial exposure monitoring.
However, given the lower exposure limit set by the ECEL compared to the
current monitoring practices, and given the expected changes at the
chlor-alkali and chemical production facilities transitioning to non-
asbestos technologies, EPA has decided to require all owners or
operators to conduct new initial monitoring. Owners and operators may
not use data collected before the publication of this final rule to
comply with the initial monitoring requirement.
b. Periodic exposure monitoring.
EPA's final rule is aligned with elements of the existing OSHA
asbestos standard (29 CFR 1910.1001(d)(3) through (5)) to the extent
possible. Based on the results from the initial exposure monitoring, or
the most recent monitoring, EPA is requiring the following periodic
monitoring for owners or operators:
If one or more samples representing full-shift exposures
from the most recent exposure monitoring exceeds the ECEL (>0.005 f/cc
8-hour TWA), periodic exposure monitoring will be required within three
months of the most recent exposure monitoring.
Otherwise, periodic exposure monitoring will be required
within six months of the most recent exposure monitoring.
In the primary alternative regulatory action described in the
proposed rule, EPA based the exposure monitoring frequency on both the
ECEL-action level and the ECEL. However, since EPA is not finalizing an
ECEL action level due to the comments received regarding effectively
measuring asbestos to the ECEL action level, the exposure monitoring
frequency under the final rule is based only on the comparison of the
monitoring results with the ECEL. Because EPA is not finalizing an ECEL
action level, the final rule requires owners and operators to conduct
periodic exposure monitoring every six months if the most recent
exposure monitoring indicates airborne exposure is at or below the
ECEL. This exposure monitoring frequency is consistent with the
exposure monitoring described in the primary alternative regulatory
action in the proposed rule associated with exposure monitoring results
revealing a concentration of chrysotile asbestos above the ECEL action
level but at or below the ECEL. Further, since EPA is not finalizing an
ECEL action level, EPA could not finalize an option to terminate
exposure monitoring if all samples taken during initial exposure
monitoring were at or below the ECEL action level, as was described in
the primary regulatory alternative action described in the proposed
rule.
[[Page 21990]]
In addition, under the primary regulatory alternative described in
the proposed regulation, if an owner or operator did not use chrysotile
asbestos during an exposure monitoring period, the owner or operator
would not need to conduct exposure monitoring until the next exposure
monitoring period. Further, the proposed primary regulatory alternative
provided that an owner or operator had to conduct exposure monitoring
at minimum every five years. However, EPA expects continued use of
chrysotile asbestos in the limited number of conditions of use subject
to the interim workplace control requirements and, as discussed above,
is requiring all persons engaged in these conditions of use to conduct
exposure monitoring at least every six months. EPA has therefore
concluded there is no need to include provisions in the final rule to
suspend monitoring or conduct monitoring only every five years.
c. Additional exposure monitoring.
In addition to initial and periodic monitoring, EPA is requiring
that the owner or operator complying with the interim workplace
controls carry out additional exposure monitoring (analogous to those
requirements outlined in 29 CFR 1910.1001(d)(5)) after any changes in
production, process, control equipment, personnel, or work practices
that may reasonably be anticipated to result in new or additional
exposures above the ECEL, or when the owner or operator has any reason
to suspect that the change may result in new or additional exposures
above the ECEL. This additional exposure monitoring event may result in
an increased frequency of periodic monitoring. The required additional
exposure monitoring should be conducted within a reasonable timeframe
after there has been a change to ensure that it is representative of
the new procedures. In cases of malfunctions and other incidents, the
monitoring should not delay implementation of any necessary corrective
actions to restore malfunctioning processes, necessary emergency
response, cleanup or other remedial action to reduce the exposures to
potentially exposed persons.
d. Notification of exposure monitoring results.
In this final rule, EPA is requiring that the owner or operator
must, within 15 working days after receipt of the results of any
exposure monitoring, notify each potentially exposed person in writing,
either individually to each potentially exposed person or by posting
the information in an appropriate and accessible location, such as
public spaces or common areas, consistent with 29 CFR 1910.1001(d)(7).
The notification is required to include a description of any action
taken by the owner or operator to reduce inhalation exposures to or
below the ECEL or refer to a document available to the potentially
exposed persons which identifies the actions to be taken to reduce
exposures. For example, the owner or operator may notify a worker (or
other potentially exposed person) of the results as follows: ``Based on
the monitoring conducted on [date], the exposure to chrysotile asbestos
by workers installing gaskets was [0.03 f/cc]. This concentration is
above the limit set by EPA of 0.005 f/cc as an 8-hour time weighted
average to protect workers, and therefore the company is requiring use
of half-mask supplied-air respirator (SAR), or airline respirator
operated in a demand mode to ensure exposure prevention. Workers can
access the exposure control plans, exposure monitoring records, and
respiratory program implementation and documentation at the office
during regular business hours.''
4. Regulated Areas
Analogous to the OSHA Standard (29 CFR 1910.1001(e)), EPA is
requiring that 6 months after the effective date of the rule, the owner
or operator demarcate any area where airborne concentrations of
chrysotile asbestos are reasonably expected to exceed the ECEL. This
regulated area must be demarcated in a manner that minimizes the number
of persons who will be exposed to chrysotile asbestos, e.g.,
establishing boundaries for the area, using highly visible signifiers,
in multiple languages as appropriate, placed in conspicuous areas to
clearly mark the boundary of such regulated area. The owner or operator
is required to restrict access to the regulated area only to those
authorized to enter.
EPA is also requiring that the owner or operator must supply a
respirator that complies with the requirements described in Unit
VI.D.6.5. and ensure that all persons within the regulated area are
using the provided respirators whenever chrysotile asbestos exposures
may exceed the ECEL. Finally, the owner or operator must ensure that,
within a regulated area, persons do not engage in non-work activities
which may increase chrysotile asbestos exposure, such as eating,
drinking, smoking, chewing tobacco or gum, or applying cosmetics.
5. Exposure Control Plan
EPA recommends and encourages the use of pollution prevention as a
means of controlling exposures whenever practicable. Pollution
prevention, also known as source reduction, is any practice that
reduces, eliminates, or prevents pollution at its source (e.g.,
elimination and substitution), as described in the hierarchy of
controls. In the proposed rule (87 FR 21706), EPA's primary alternative
regulatory action included a requirement to document efforts to
implement the hierarchy of controls, specifically, the use of
elimination and substitution, followed by the use of engineering
controls, administrative controls, or work practices prior to requiring
the use of respirators as a means of controlling inhalation exposures
to chrysotile asbestos below EPA's ECEL. In this final rule, EPA
recognizes that the owners and operators subject to the requirements
are already taking steps to eliminate the use of chrysotile asbestos,
and therefore the requirement in this final rule is to institute and
maintain engineering controls and work practices that reduce chrysotile
asbestos to or below the ECEL. When the engineering controls and work
practices (such as clean-up of accumulated asbestos) cannot reduce
chrysotile asbestos exposures to or below the ECEL, owners and
operators are required to reduce chrysotile asbestos exposures to the
lowest level achievable by these controls and supplement them using
respiratory protection. The respirators must be supplied in accordance
with the requirements outlined in Unit VI.D.6.
The final requirements state that, as of one year after the
effective date of the final rule, an owner or operator subject to the
interim workplace control requirements has to demonstrate the
consideration of engineering controls and/or work practices to reduce
the airborne chrysotile asbestos concentrations to the lowest levels
achievable. If the resulting chrysotile asbestos concentrations are not
at or below the ECEL, adequate respiratory protection must be given to
potentially exposed persons, in accordance with Unit VI.D.6. Owners or
operators must not implement a schedule of personnel rotation as a
means of compliance with the ECEL. Finally, owners and operators must
document their exposure control strategy in an exposure control plan.
The exposure control plan must be reviewed and updated as necessary,
but at least annually, to reflect any significant changes in the
approach taken to reduce the chrysotile asbestos airborne
concentrations.
Similar to the primary regulatory alternative described in the
proposed rule, in this final rule EPA is requiring
[[Page 21991]]
that owners or operators document their efforts in an exposure control
plan. Such plan could be part of any existing documentation of the
facility's safety and health program developed as part of meeting OSHA
requirements or other safety and health standards. EPA is requiring
that the owner or operator document in the exposure control plan the
following:
Identification of all engineering and work practices or
administrative controls that were considered.
For each engineering and administrative control
identified, a rationale for why the control was selected or not
selected, based on feasibility, effectiveness, and other relevant
considerations;
Any actions the owner or operator must take to implement
the engineering and administrative controls selected, including proper
installation, maintenance, training or other steps taken. In addition,
the owner or operator must indicate the estimated timeline for
implementing the controls selected.
Descriptions of the activities conducted by the owner or
operator during the review and annual update of the exposure control
plan to ensure effectiveness of the exposure controls, identify any
necessary updates to the exposure controls, and confirm that all
persons are implementing the exposure controls correctly. These
activities could consist of regular inspections or other type of
evaluations of the exposure controls; and
Description of procedures for responding to any change
that may reasonably be expected to introduce additional exposures of
chrysotile asbestos or result in increased exposures to chrysotile
asbestos. The plan should also describe the corrective actions taken to
mitigate the exposures to chrysotile asbestos.
6. Respiratory Protection
a. In general.
Six months after the effective date of this rule, EPA is requiring
owners or operators to supply a respirator selected in accordance with
the requirements of this Unit and ensure that all potentially exposed
persons are using the provided respirators whenever chrysotile asbestos
exposures exceed or can reasonably be expected to exceed the ECEL.
EPA's requirements are compatible with OSHA's Respiratory Protection
standard at 29 CFR 1910.134, and the respiratory protection provision
of the OSHA Asbestos standard for general industry at 29 CFR
1910.1001(g).
In this final rule, EPA is requiring that owners or operators must
provide, ensure use of, and maintain (in a sanitary, reliable, and
undamaged condition) respirators that are of safe design and
construction for the work to be performed. These requirements are
consistent with the requirements of 29 CFR 1910.134(g) through (j),
1910.134 App. B-1 to B-2. Owners and operators must select respirators
that properly fit each affected person and communicate respirator
selections to each affected person. These requirements are consistent
with the requirements of 29 CFR 1910.134(f), 1910.134 App. A.
EPA is also requiring that owners and operators provide training in
accordance with 29 CFR 1910.134(k) to all persons required to use
respirators prior to or at the time of initial assignment to a job
involving potential exposure to chrysotile asbestos. Such training must
be repeatedly at least annually or whenever the owner or operator has
reason to believe that a previously trained person does not have the
required understanding and skill to properly use the respirator, or
when changes in the workplace or in the required respirator render the
previous training obsolete.
b. Respirator selection.
EPA is requiring that owners and operators select and provide all
potentially exposed persons with respirators, based on the most recent
monitoring results. The following represents the minimum respiratory
protection that must be provided based on the most recent monitoring
results, such that any respirator affording the same or higher degree
of protection than the following requirements may be used.
If the most recent exposure monitoring indicates that the
exposure concentration is at or below 0.005 f/cc (the ECEL): no
respiratory protection is required.
If the most recent exposure monitoring indicates that the
exposure concentration is above 0.005 f/cc (the ECEL) and less than or
equal to 0.05 f/cc (10 times the ECEL): (i) a half-mask supplied-air
respirator (SAR) or airline respirator operated in demand mode; or (ii)
a half-mask self-contained breathing apparatus (SCBA) respirator
operated in demand mode (APF 10).
If the most recent exposure monitoring indicates that the
exposure concentration is above 0.05 f/cc (10 times the ECEL) and less
than or equal to 0.125 f/cc (25 times the ECEL): a loose fitting
facepiece supplied-air respirator (SAR) or airline respirator operated
in continuous flow mode (APF 25).
If the most recent exposure monitoring indicates that the
exposure concentration is above 0.125 f/cc (25 times the ECEL) and less
than or equal to 0.25 f/cc (50 times the ECEL): (i) a full facepiece
supplied-air respirator (SAR) or airline respirator operated in demand
mode; or (ii) a half-mask supplied-air respirator (SAR) or airline
respirator operated in continuous flow mode; or (iii) a half-mask
supplied-air respirator (SAR) or airline respirator operated in
pressure-demand or other positive-pressure mode; or (iv) a full
facepiece self-contained breathing apparatus (SCBA) respirator operated
in demand mode; or (v) a helmet/hood self-contained breathing apparatus
(SCBA) respirator operated in demand mode (APF 50).
If the most recent exposure monitoring indicates that the
exposure concentration is above 0.25 f/cc (50 times the ECEL) and less
than or equal to 5 f/cc (1,000 times the ECEL): a full-facepiece
supplied-air respirator (SAR) or airline respirator operated in
pressure-demand or other positive-pressure mode (APF 1,000).
If the most recent exposure monitoring indicates that the
exposure concentration is above 5 f/cc (1,000 times the ECEL) and less
than or equal to 50 f/cc (10,000 times the ECEL): (i) a full-facepiece
self-contained breathing apparatus (SCBA) respirator operated in
pressure-demand or other positive-pressure mode; or (ii) a helmet/hood
self-contained breathing apparatus (SCBA) respirator operated in
pressure-demand or other positive-pressure mode (APF 10,000).
The respirator requirements have been updated from the primary
regulatory alternative described in the proposed regulation to make
them compatible with the OSHA's Asbestos standard for general industry
at 29 CFR 1910.1001(g)(2)(i). The respiratory protection requirements
in this final rule represent the minimum respiratory protection
requirements; therefore, owners or operators may provide respirators
affording a higher degree of protection than the required respirator.
However, in situations where a sufficient limit of detection cannot be
reached for comparison to the ECEL, owners and operators may elect to
use the lowest measurable concentration possible as their basis for the
selection of the respirators, and use an increased respiratory
protection with an appropriate APF to demonstrate compliance with the
ECEL as an interim control measure. For example, if the lowest
measurable concentration possible is 0.1 f/cc, then, the owner or
operator should assume that the measured exposure concentration is
above 0.05 f/cc and less than or equal to 0.125 f/cc or 25 times the
ECEL, and
[[Page 21992]]
provide a loose fitting facepiece supplied-air respirator (SAR) or
airline respirator in continuous flow mode.
7. Workplace Information and Training
In the proposed rule primary regulatory alternative (87 FR 21706),
EPA described requirements to ensure worker participation. In this
final rule, EPA is requiring specific information to be provided to
potentially exposed persons and associated training to ensure that
potentially exposed persons are taking the necessary steps to reduce
exposure to chrysotile asbestos.
Six months after the effective date of the final rule EPA is
requiring that owners or operators provide information and training for
each person prior to or at the time of potential exposure to chrysotile
asbestos and repeat the training annually. The information and training
must be presented in a manner that is understandable to each person
required to be trained.
In this final rule, EPA is requiring that the information and
training that must be provided to all persons potentially exposed to
chrysotile asbestos is based on the most recent public information
available from EPA, OSHA, NIOSH, and/or CDC, and include:
The health effects associated with exposure to chrysotile
asbestos;
The quantity, location, manner of use, release, and
storage of chrysotile asbestos and the specific operations in the
workplace that could result in exposure to chrysotile asbestos,
particularly noting where each regulated area is located;
The specific procedures implemented by the owner or
operator to protect persons potentially exposed to chrysotile asbestos,
such as engineering controls, work practices and personal protective
equipment to be used; and
The requirements associated with the interim controls, as
described in Unit VI.D., as well as how to access or obtain a copy of
these regulations in the workplace.
The training must be conducted as necessary to ensure that each
person maintains understanding of the principles of safe use and
handling of chrysotile asbestos in the workplace, but at minimum, the
training must be given annually. The owner or operator will need to
develop a training program that is conducted in a manner that allows
each person potentially exposed to understand the information, in an
understandable manner (i.e., plain language) and in multiple languages
as appropriate (e.g., based on languages spoken by potentially exposed
persons). The owner or operator would consider factors such as the
skills required to perform the work activity, the existing skill level
of the staff performing the work. Finally, whenever there are changes
in the workplace, such as modification of tasks or procedures, or
institution of new tasks or procedures, or when airborne concentrations
of chrysotile asbestos increase, or when the exposure control plan has
been updated according to Unit VI.D.5, the owner or operator must
update the training to reflect any additional steps that are needed to
maintain the procedures implemented to reduce exposures to chrysotile
asbestos in the workplace, and re-train each potentially exposed
person.
E. Disposal
EPA is finalizing the disposal provisions in the proposed rule
without significant changes. These disposal provisions at Sec. 751.513
cross reference existing EPA and OSHA regulations that address
asbestos-containing waste disposal. By following these existing
regulations, worker and ONU exposure to chrysotile asbestos during
disposal can be prevented. For this rule, EPA is requiring that for the
chrysotile asbestos diaphragm condition of use, as well as oilfield
brake blocks, other vehicle friction products, and any commercial use
of other gaskets and aftermarket automotive brakes and linings
conditions of use, regulated entities must adhere to waste disposal
requirements described in OSHA's Asbestos General Industry Standard in
29 CFR 1910.1001, including 1910.1001(k)(6), which requires waste,
scrap, debris, bags, containers, equipment, and clothing contaminated
with asbestos that are consigned for disposal to be disposed of in
sealed impermeable bags or other closed, impermeable containers. For
the chrysotile asbestos sheet gaskets in chemical production condition
of use, regulated entities must adhere to waste disposal requirements
described in OSHA's Asbestos Safety and Health Regulations for
Construction in 29 CFR 1926.1101.
Additionally, for the chrysotile asbestos diaphragm condition of
use, as well as oilfield brake blocks, other vehicle friction products,
and any commercial use of other gaskets and aftermarket automotive
brakes and linings, EPA is cross-referencing the disposal requirements
of Asbestos National Emission Standards for Hazardous Air Pollutants
(NESHAP) (40 CFR part 61, subpart M) at 40 CFR 61.150. The asbestos
NESHAP reduces exposure to airborne asbestos by generally requiring
sealing of asbestos-containing waste material from regulated activities
in a leak-tight container and disposing of it in a landfill permitted
to receive asbestos waste. EPA is not cross-referencing this same
NESHAP waste disposal provision for the disposal of chrysotile
asbestos-containing waste from sheet gasket processing and use because
EPA did not find unreasonable risk for the disposal of sheet gaskets.
EPA is also requiring that each manufacturer (including importer),
processor, and distributor of chrysotile asbestos, including as part of
products and articles, for consumer uses subject to this proposed
regulation, dispose of regulated products and articles in accordance
with specified disposal provisions. These consumer uses are aftermarket
automotive brakes and linings, and other gaskets. These consumer use
supply chain disposal requirements are consistent with those for
disposers of aftermarket automotive brakes and linings, and other
gaskets, intended for commercial use. EPA does not generally have TSCA
section 6(a) authority to directly regulate consumer use and disposal,
but under TSCA section 6(a) EPA may nonetheless regulate the disposal
activity of suppliers of these products, including importers,
wholesalers and retailers of asbestos-containing aftermarket automotive
brakes and linings, and other gaskets.
The disposal requirements at Sec. 751.513 will take effect 180
days after the effective date of the final rule, as was proposed.
F. Recordkeeping
This final rule establishes recordkeeping provisions. A general
records provision at Sec. 751.515(a) of the final rule, requires that,
beginning 180 days after the effective date of the final rule, all
persons who manufacture (including import), process, or distribute in
commerce or engage in industrial or commercial use of chrysotile
asbestos must maintain ordinary business records, such as invoices and
bills-of-lading related to compliance with the prohibitions,
restrictions, and other provisions of this rulemaking and must make
them available to EPA for inspection.
Section 751.515(b) of the final rule addresses recordkeeping for
certifications of compliance for the chlor-alkali industry required
under Sec. 751.507 of the rule: persons must retain records for five
years to substantiate certifications required under that provision and
must make them available to EPA for inspection.
[[Page 21993]]
Section 751.515(c) of the final rule requires retention of records
for interim workplace controls of chrysotile asbestos exposures. For
each monitoring event, owners or operators subject to the exposure
monitoring provisions of Sec. 751.511(c) must document and retain
records of:
(1) The dates, duration, and results of each sample taken;
(2) The quantity, location(s) and manner of chrysotile asbestos use
at the time of each monitoring event;
(3) All measurements that may be necessary to determine the
sampling conditions that may have affected the monitoring results, such
as humidity or ventilation rates, based on the expertise of the person
conducting the sampling;
(4) The name, address, work shift, job classification, work area,
and type of respiratory protection (if any) of each person monitored;
(5) Sampling and analytical methods used and compliance with the
Good Laboratory Practice Standards or laboratory quality standards
required under the OSHA general asbestos standard described in Sec.
751.511(c)(5)(i); and
(6) Notification of monitoring results as required by Sec.
751.511(c)(6).
Additionally, Sec. 751.515(c) of the final rule requires that
owners or operators subject to the interim workplace controls described
in Sec. 751.511 must retain records of:
(1) The exposure control plan and its implementation as required by
Sec. 751.511(e), which must be available to persons exposed to
chrysotile asbestos;
(2) Respiratory protection used and program implementation as
described in Sec. 751.511(f); and
(3) Information and training provided by the owner or operator as
required by Sec. 751.511(g).
Section 751.515(d) of the final rule requires the retention of
disposal records. It specifies that each person, except a consumer, who
disposes of any chrysotile asbestos and any chrysotile asbestos-
containing products or articles subject to Sec. 751.513, beginning 180
days after the effective date of the final rule, must retain in one
location at the headquarters of the company, or at the facility for
which the records were generated: any records related to any disposal
of chrysotile asbestos and any chrysotile asbestos-containing products
or articles generated pursuant to, or otherwise documenting compliance
with, regulations specified in Sec. 751.513. All records under this
rule must be retained for five years from the date of generation.
VII. Other TSCA Considerations
A. Primary Alternative Regulatory Actions Considered
Pursuant to TSCA section 6(c)(2)(A), EPA considered the cost and
benefits and the cost effectiveness of the final regulatory action and
one or more primary alternative regulatory actions. EPA considered two
primary alternative regulatory actions for chrysotile asbestos
diaphragms in the chlor-alkali industry. One is to prohibit manufacture
(including import), processing, distribution in commerce and commercial
use of chrysotile asbestos in bulk form or as part of: chrysotile
asbestos diaphragms in the chlor-alkali industry, with prohibitions
taking effect five years after the effective date of the final rule,
without exception, and require, prior to the prohibition taking effect,
compliance with an existing chemical exposure limit (ECEL) for the
processing and commercial use of chrysotile asbestos for this use. The
other was to prohibit manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos in
bulk form or as part of: chrysotile asbestos diaphragms in the chlor-
alkali industry, with prohibitions taking effect twelve years after the
effective date of the final rule, without exception, and require, prior
to the prohibition taking effect, compliance with an ECEL for the
processing and commercial use of chrysotile asbestos for this use.
The primary alternative regulatory action for sheet gaskets used in
chemical production is to prohibit manufacture (including import),
processing, distribution in commerce and commercial use, with
prohibitions taking effect five years after the effective date of the
final rule, and require, prior to the prohibition taking effect,
compliance with an ECEL for the processing and commercial use of
chrysotile asbestos for this use.
The primary alternative regulatory action additionally includes a
prohibition on the manufacture (including import), processing,
distribution in commerce, and commercial use of chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; and other vehicle
friction products, with prohibitions taking effect two years after the
effective date of the final rule. The primary alternative regulatory
action also included prohibitions on manufacture (including import),
processing, and distribution in commerce of aftermarket automotive
chrysotile asbestos-containing brakes/linings for consumer use and
other chrysotile asbestos-containing gaskets for consumer use, with
prohibitions taking effect two years after the effective date of the
final rule.
The primary alternative regulatory actions also include
recordkeeping and disposal requirements identical to those in the final
action.
B. TSCA Section (c)(2) Considerations
The following is EPA's statement of effects, as required by TSCA
section 6(c)(2)(A), with respect to this final rule.
1. Effects of chrysotile asbestos on health and the magnitude of
the exposure of human beings to chrysotile asbestos under TSCA section
6(c)(2)(A)(i).
EPA's analysis of the health effects of and magnitude of exposure
to chrysotile asbestos is in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos (Ref. 1). A summary is presented here. Many
authorities have established causal associations between asbestos
exposures and lung cancer and mesothelioma in humans based on
epidemiologic studies. EPA identified in the literature a causal
association between exposure to asbestos and cancer of the larynx and
cancer of the ovary and suggestive evidence of a positive association
between asbestos and cancer of the pharynx, stomach, and colorectum.
EPA also identified increases in lung cancer and mesothelioma mortality
in both workers and residents exposed to various asbestos fiber types,
including chrysotile asbestos, as well as fiber mixtures. Mesothelioma
tumors arise from the thin membranes that line the chest and abdominal
cavities and surround internal organs.
Asbestos exposure is known to cause various non-cancer health
outcomes as well, including asbestosis, non-malignant respiratory
disease, deficits in pulmonary function, diffuse pleural thickening,
and pleural plaques. Various immunological and lymphoreticular effects
are suggested but not well-established.
For the conditions of use that contribute to unreasonable risk,
populations exposed to chrysotile asbestos (including potentially
exposed or susceptible subpopulations) include workers, ONUs, consumer
users, and bystanders to consumers using products containing chrysotile
asbestos. For these conditions of use EPA estimates that, annually, at
least 256 workers and 222 ONUs are exposed to chrysotile asbestos at
over 49 operations either processing or using products containing
chrysotile asbestos. Additional workers and ONUs are exposed to
oilfield brake blocks and
[[Page 21994]]
may potentially be exposed to other vehicle friction products and other
gaskets. Each year, approximately 400 consumers are potentially exposed
to asbestos through the use of products containing chrysotile asbestos
subject to this rule. The number of exposed bystanders is unknown to
EPA. The breakdown by category of use is as follows:
Diaphragms--80 workers and 80 ONUs at 8 sites;
Sheet gasket stamping--at least 4 workers and 8 ONUs at 4
sites;
Sheet gasket use (non-nuclear)--at least 18 workers and
119 ONUs at 4 sites;
Sheet gasket use (nuclear)--up to 139 workers at 1 site; number of
workers and ONUs at approximately 20 additional sites is unknown;
Oilfield brake blocks--Unknown;
Aftermarket automotive brakes--15 to 1,400 workers and 15
to 1,400 ONUs at 12 to 1,400 sites;
Other vehicle friction products--Unknown;
Other gaskets--Unknown; and
DIY mechanics--400 consumers and unknown bystanders.
More information on the derivation of these estimates is provided
in the Economic Analysis for this rulemaking that can be found in the
rulemaking docket (Ref. 2).
As discussed in Unit II.C., EPA did not evaluate hazards or
exposures to the general population in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos.
2. Effects of the chrysotile asbestos on the environment and the
magnitude of the exposure of the environment under TSCA section
6(c)(2)(A)(ii).
EPA's analysis of the environmental effects of and the magnitude of
exposure of the environment to chrysotile asbestos are in the Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos (Ref. 1). A
summary is presented here.
Chrysotile asbestos may be released to the environment through
industrial or commercial activities, such as processing raw chrysotile
asbestos, fabricating/processing asbestos-containing products, or the
dispersing of friable chrysotile asbestos during use, disturbance and
disposal of asbestos-containing products.
Although this action is focused on chrysotile asbestos fiber type,
some of the information in this unit pertains to asbestos fibers in
general. Asbestos is a persistent mineral fiber that can be found in
soil, sediments, in the air and windblown dust, surface water, ground
water and biota. Asbestos fibers are largely chemically inert in the
environment. They may undergo minor physical changes, such as changes
in fiber length or leaching of surface minerals, but do not react or
dissolve in most environmental conditions.
In water, chrysotile asbestos will eventually settle into sediments
(or possible biosolids) and can enter wastewater treatment plants.
EPA's review of aquatic vertebrate and invertebrate studies indicated
that chronic exposure to waterborne chrysotile asbestos at a
concentration range of 10\4\-10\8\ fibers/L, which is equivalent to
0.01 to 100 million fibers per liter (MFL), may result in reproductive,
growth and/or sublethal effects to fish and clams. In addition, acute
exposure of clams to waterborne chrysotile asbestos at a concentration
range of 10\2\-10\8\ fibers/L demonstrated reduced siphoning activity.
EPA has determined that there are minimal or no releases of
asbestos to surface water associated with the conditions of use that
EPA evaluated in the Risk Evaluation for Asbestos, Part 1: Chrysotile
Asbestos and that are the subject of this action.
3. Benefits of chrysotile asbestos for various uses under TSCA
section 6(c)(2)(A)(iii).
The only form of asbestos manufactured (including imported),
processed, or distributed for use in the United States today is
chrysotile asbestos. The United States Geological Survey (USGS)
estimated that 152 metric tons of raw chrysotile asbestos were imported
into the United States in 2022 (Ref. 3). This raw asbestos is used
exclusively by the chlor-alkali industry, and imported amounts between
2018 and 2022 ranged from 41 to 681 metric tons during a given year
(Ref. 3).
In addition to the use of raw imported chrysotile asbestos by the
chlor-alkali industry, EPA is also aware of imported asbestos-
containing products; however, the imported volumes of those products
are not fully known. The asbestos-containing products that EPA has
identified as potentially being imported and used are sheet gaskets
(which are imported in large sheets and cut to size domestically by a
fabricator), oilfield brake blocks, aftermarket automotive brakes/
linings, other vehicle friction products, and other gaskets. Chrysotile
asbestos is chemically inert, durable, and able to effectively separate
the anode and cathode chemicals in the electrolytic cells used in the
chlor-alkali process. Asbestos-containing gaskets have been used in
chemical production because they are resistant to cyclical high
temperatures and immense pressure. During the manufacture of titanium
dioxide, temperatures can exceed 1850 degrees Fahrenheit and pressures
can be greater than 50 pounds per square inch. For processing of
nuclear material, asbestos-containing sheet gaskets are preferred for
their durability in radioactive environments. The physical properties
of chrysotile asbestos including heat resistance make asbestos a useful
material for uses where friction is produced and extreme heat is
generated, including its application in brakes, gaskets and other
vehicle friction product uses considered in this rule.
4. Reasonably ascertainable economic consequences of the rule under
TSCA section 6(c)(2)(A)(iv).
The reasonably ascertainable economic consequences of this rule
include several components, all of which are described in the economic
analysis for this rule and summarized here (Ref. 2).
a. The likely effect of this Part 1: Chrysotile Asbestos rule on
the national economy, small business, technological innovation, the
environment, and public health (TSCA section 6(c)(2)(A)(iv)(I)).
With respect to the anticipated effects of this rule on the
national economy, the economic impact of a regulation on the national
economy generally only becomes measurable if the economic impact of the
regulation reaches 0.25 percent to 0.5 percent of Gross Domestic
Product (GDP) (Ref. 24). Given the current GDP of $27.62 trillion, this
is equivalent to a cost of $69 billion to $138 billion which is
considerably higher than the estimated cost of this rule. EPA
considered the number of businesses and workers that would be affected
and the costs and benefits to those businesses and workers and society
at large and did not find that there would be a measurable effect on
the national economy. In addition, EPA considered the employment
impacts of this rule. While EPA assumes that chlor-alkali facilities
currently using asbestos diaphragms will convert to non-asbestos
technologies, some facilities may not do so before the effective
prohibition date in the rule. As a result, even with the extended
compliance dates in the final action, it is possible that the rule may
result in facility closures and job losses, at least temporarily, at
some chlor-alkali facilities as well as at facilities that use
chlorine, caustic soda, or their derivatives as intermediates, and may
result in shortages or price increases for chlorine, caustic, and their
derivatives. There may be similar employment effects at chemical
facilities using asbestos gaskets. However, the extended compliance
dates in the final rule reduce the likelihood and potential magnitude
of such impacts compared to the proposed rule. There may also be
[[Page 21995]]
increased temporary employment associated with new construction as
firms convert their facilities to replace asbestos diaphragms and
asbestos gaskets with substitute technologies. There may also be
increases in employment at facilities that currently use asbestos-free
technologies (Ref. 2).
EPA has determined that the rule will not have a significant impact
on a substantial number of small entities; EPA estimates that the rule
will affect 11 to 1,369 small businesses supplying aftermarket brakes,
incurring costs between $20 and $14,000 per firm (depending on the
number of brake replacements they perform). At the low-end estimate of
the number of affected brake replacement firms, approximately 85% of
firms would have cost impacts of less than 1% of their annual revenues,
about 10% would have cost impacts between 1% and 3%, and around 6%
would have cost impacts of greater than 3%. At the high-end estimate of
the number of affected brake replacement firms, 100% of firms would
have a cost impact of less than 1% of the annual revenue. An additional
three small entities that do not supply aftermarket brakes are
estimated to be affected by the rule; two are assumed to manufacture
sheet gaskets for titanium dioxide production, and one imports oilfield
brake blocks. EPA did not have the information necessary to estimate
the cost impacts on these other four small entities (Ref. 2).). EPA
found no literature that described the costs of converting to asbestos-
free products for either sheet gaskets used in titanium dioxide
production or oilfield brake blocks. Moreover, there were no public
comments in response to the proposed rule or the subsequent notice of
data availability that provided information on the costs for these use
categories.
The uses of asbestos subject to the rule are all in mature
industries and the amount of asbestos consumed in them has been
declining for some time. There is no evidence of innovative
applications of asbestos in these uses in recent years, nor is there
any expectation that such innovations would occur in the future in the
absence of a prohibition on these uses of asbestos.
The effects of this rule on public health are estimated to be
positive, due to the avoided incidence of adverse health effects
attributable to asbestos exposure, including lung cancer, mesothelioma,
and cancers of the larynx and ovary (Ref. 2). Despite the uncertainties
about possible greater use and release of PFAS discussed in Unit
VII.B.5., EPA believes the benefits of removing chrysotile asbestos, a
known human carcinogen that causes cancer (mesothelioma, lung, ovarian,
and laryngeal cancers), from continued use in the United States, are
significant enough to outweigh the potential additional exposure to
PFAS that might result from this action.
Converting chlor-alkali diaphragm cells to non-asbestos technology
is expected to reduce total electricity consumption by the chlor-alkali
industry and thus the level of air pollution associated with electric
power generation. This reduction in air pollution would provide
environmental benefits as well as health benefits (Ref. 2).
b. Costs and benefits of the regulatory action and of the primary
alternative regulatory actions considered by the Administrator.
i. Regulatory action.
EPA was able to quantify the costs of the rule for the chlor-alkali
industry and the aftermarket automotive brake industry, as well as a
portion of the costs for firms using sheet gaskets. Nearly all of the
quantified costs are due to the requirements for the chlor-alkali
industry. The rule is predicted to require an investment of $2.8
billion to $3.4 billion to convert chlor-alkali facilities using
asbestos diaphragm cells to cells using non-asbestos diaphragms or
membranes. The rule accelerates existing trends in the industry to
transition away from asbestos diaphragms, and EPA expects that these
conversions would eventually occur in the baseline even without the
rule, although more slowly than with the prohibition deadlines in the
rule. For a number of these facilities the non-asbestos technologies
are more energy efficient than asbestos diaphragm cells, resulting in
cost savings that would accrue over the lifetimes of the facilities.
Membrane cells also produce a higher grade of caustic soda that has
historically commanded a higher price than the product from asbestos
diaphragm cells; that price differential may or may not continue in the
future. If some facilities are unable to complete their conversions to
non-asbestos technology by the mandatory compliance dates in the rule,
the unconverted portions of those facilities would need to close until
the conversions are completed. Such temporary closures would result in
lost producer surplus (as well as lost consumer surplus, which EPA was
unable to quantify) until the conversions are completed. The
incremental net annualized costs of the rule to the chlor-alkali
industry are calculated by combining conversion costs, changes in
energy usage, potential revenue gains from increased production of
membrane-grade caustic soda, and the lost producer surplus from
possible temporary facility closures (all compared to the baseline),
and annualizing the results over the 35-year expected lifetime of new
chlor-alkali facility equipment.
Compared to this baseline trend, the net cost of the rule to the
chlor-alkali industry over a 35-year period using a 3 percent discount
rate is estimated to range from an annualized cost of $7 million per
year (if the additional membrane grade caustic soda that is produced
sells for the same price as diaphragm grade caustic soda) to an
annualized savings of $1 million per year (if the higher grade of
caustic soda produced by membrane cells continues to command a premium
price, as it has in the past). Using a 7 percent discount rate, the
incremental net cost of the rule to the chlor-alkali industry ranges
from a cost of $34 million per year (if there is a premium for
membrane-grade caustic soda) to $43 million per year (if there is no
premium for membrane-grade caustic soda).
EPA also estimates that approximately 1,800 sets of automotive
brakes or brake linings containing asbestos may be imported into the
U.S. each year, representing 0.002% of the total U.S. market for
aftermarket brakes. The cost of a prohibition would be minimal due to
the ready availability of alternative products that are only slightly
more expensive (an average cost increase of about $5 per brake). The
rule is estimated to result in total annualized costs for aftermarket
automotive brakes of approximately $300,000 per year using a 3%
discount rate and $200,000 per year using a 7% discount rate.
EPA estimated a lower bound of the cost of the ECEL and disposal
requirements for titanium dioxide producers using sheet gaskets
containing asbestos. These annualized costs are estimated at
approximately $44,000 per year using a 3% discount rate or $65,000 per
year using a 7% rate. However, EPA was unable to estimate the potential
cost to sheet gasket users of substituting non-asbestos products.
EPA also did not have information to estimate all of the costs of
prohibiting asbestos in brake blocks in the oil industry, and any other
vehicle friction products or other gaskets. (EPA believes that the use
of these asbestos-containing products has declined over time, and that
they are now used in at most small segments of the relevant
industries.) Since EPA could not quantify all of the costs of the rule
for all of the use categories, the quantified estimates of the total
costs of the rule are an upper
[[Page 21996]]
bound estimate of total cost savings and a lower bound estimate of
total costs. Thus, the total net incremental costs of the rule are
estimated to range from an annualized cost of greater than $7 million
per year to an annualized savings of less than $1 million per year
using a 3 percent discount rate. Using a 7 percent discount rate, these
costs range from greater than $34 million per year to more than $43
million per year.
EPA quantified the benefits from avoided cases of cancer due to
reduced asbestos exposures attributable to the rule's requirements for
chlor-alkali diaphragms and aftermarket brakes, and sheet gaskets used
for titanium dioxide production. The combined total national quantified
benefits of avoided cancer cases associated with these use categories
are approximately $6,000 per year using a 3% discount rate and $3,000
per year using a 7% discount rate. EPA did not estimate the avoided
cancer benefits of the requirements for sheet gaskets used for other
forms of chemical production, oilfield brake blocks, other vehicle
friction products or other gaskets, in part because the Agency did not
have sufficient information to accurately characterize the number of
individuals whose exposures are likely to be affected by the rule. To
the extent that products in these use categories are still
manufactured, processed, distributed in commerce, used, or disposed of,
the rule will generate additional benefits from reducing the exposures
associated with these uses.
There are also unquantified benefits due to other avoided adverse
non-cancer health effects associated with asbestos exposure, such as
respiratory effects (e.g., asbestosis, non-malignant respiratory
disease, deficits in pulmonary function, diffuse pleural thickening and
pleural plaques). The rule will also generate unquantified benefits
from other exposure pathways and life cycle stages for which exposures
were not estimated in the risk evaluation.
In addition to the benefits of avoided adverse health effects
associated with chrysotile asbestos exposure, the rule is expected to
generate benefits from reduced air pollution associated with
electricity generation. Chlor-alkali production is one of the most
energy-intensive industrial operations. Converting asbestos diaphragm
cells to non-asbestos technologies will reduce overall electricity
consumption and thus the total level of pollutants resulting from
electric power generation, including carbon dioxide, particulate
matter, sulfur dioxide, and nitrogen oxides. Converting asbestos
diaphragm cells to non-asbestos technology could yield millions of
dollars per year in environmental and health benefits from reduced
emissions of criteria air pollutants and greenhouse gases (Ref. 2). The
decreased air pollution resulting from the rule was not the driver for
the decision making under TSCA section 6(a).
EPA's Economic Analysis, which can be found in the rulemaking
docket (Ref. 2), contains more information on the estimated costs and
benefits of the regulatory action.
ii. Primary alternative regulatory actions.
EPA considered two primary regulatory alternatives to the
requirements that are being finalized in this action for chrysotile
asbestos diaphragms in the chlor-alkali industry. Under one
alternative, the prohibitions on the processing, distribution in
commerce and commercial use of asbestos diaphragms at chlor-alkali
facilities would take effect at all facilities after five years; the
prohibitions on sheet gaskets for chemical production would take effect
after two years for sheet gaskets used to produce titanium dioxide or
to process nuclear materials, and two years for all other sheet gaskets
used for chemical production; and after 180 days for the remaining use
categories subject to the rule. Under the other alternative, these
prohibitions would take effect at all chlor-alkali facilities after 12
years; after 5 years for all sheet gaskets used in chemical production;
and after 2 years for the remaining use categories.
Under the alternative regulatory action with a 5-year prohibition
on asbestos diaphragms for all chlor-alkali facilities, the total cost
of the rule using a 3 percent discount rate is estimated to range from
an annualized costs of more than $14 million per year (if the
additional membrane-grade caustic soda that is produced sells for the
same price as diaphragm grade caustic soda) to an annualized cost of
more than $5 million per year (if the higher grade of caustic soda
produced by membrane cells continues to command a premium price, as it
has in the past). Using a 7 percent discount rate, the estimates range
from a cost of more than $42 million per year (if there is a premium
for membrane-grade caustic soda) to a cost of more than $51 million per
year (if there is no premium for membrane-grade caustic soda).
Under the alternative regulatory action with a 12-year prohibition
on asbestos diaphragms for all chlor-alkali facilities, the total cost
of the rule using a 3 percent discount rate ranges from a savings of
less than $1 million per year (if the higher grade of caustic soda
produced by membrane cells continues to command a premium price) to a
cost of greater than $7 million per year (if the additional membrane
grade caustic soda that is produced receives the same price as
diaphragm grade caustic soda). Using a 7 percent discount rate, the
cost ranges from more than $31 million per year (if there is a premium
for membrane-grade caustic soda) to more than $38 million per year (if
there is no premium for membrane-grade caustic soda).
The alternative option with a 12-year prohibition deadline for all
chlor-alkali facilities has estimated annualized incremental costs that
are similar to those for the final rule, and are slightly lower than
the final rule when using a 7% discount rate. These differences are due
to how the timing of expenditures affects the annualized cost
estimates. The vast majority of the quantified costs of the rule are
associated with the chlor-alkali industry. Converting all eight plants
using asbestos diaphragm cells to non-asbestos technologies is
predicted to require an investment of approximately $2.8 billion to
$3.4 billion, and these costs are assumed to be the same regardless of
how quickly the conversions occur. Where the incremental cost of a 12-
year prohibition deadline is less than the incremental cost of the
final rule, part of the reason is that the rate of conversion to non-
asbestos technologies under the alternative option is closer to the
baseline conversion rate. (The incremental cost estimate compares the
costs and savings associated with conversions under each option to the
costs and savings that would be incurred each year in the absence of
the rule). This means that the chlor-alkali companies are incurring the
same actual costs under both options (since the conversions have the
same costs and savings per ton of chlorine and caustic soda produced
under all of the options), but under the 12-year option some of those
costs are not attributed to the rule. In addition, some of the
compliance costs are incurred at later points in time under the 12-year
option than under the final rule, and expenditures that occur at later
dates result in smaller annualized costs than those that occur sooner.
These factors can make the alternative option with a 12-year
prohibition deadline for all chlor-alkali facilities appear slightly
less costly than the final rule, despite the fact that same facility
conversions eventually occur under all the regulatory alternatives.
c. Cost effectiveness of the regulatory action and primary
alternative regulatory actions considered by the Administrator.
[[Page 21997]]
The regulatory action reflected in the final rule and the
alternative regulatory actions all reduce risks to the extent necessary
such that unreasonable risk would no longer be present after such
actions were implemented. The estimated costs of achieving this result
differ across the possible regulatory actions and can be compared in
terms of their cost-effectiveness. The measure of cost-effectiveness
considered is the annualized net incremental cost of each regulatory
option per micro-risk reduction in cancer cases estimated to occur as a
result of the option, where a micro-risk refers to a one in one million
reduction in the risk of a cancer case. The estimated cost-
effectiveness of the final rule ranges from a cost of $185 to a savings
of $35 per micro-risk reduction at a 3% discount rate, and a cost of
$860 to $1,075 per micro-risk reduction at a 7% discount rate (where a
micro-risk represents a one in a million chance of the adverse health
outcome, which in this case is cancer). The estimated cost-
effectiveness of the alternative regulatory action with a 5-year
prohibition on asbestos diaphragms for all chlor-alkali facilities
ranges from a cost of $128 to $348 per micro-risk reduction at a 3%
discount rate, and a cost of $1,044 to $1,259 per micro-risk reduction
at a 7% discount rate. The estimated cost-effectiveness of the
alternative regulatory action with a 12-year prohibition on asbestos
diaphragms for all chlor-alkali facilities ranges from a cost of $172
to a savings of $13 per micro-risk reduction at a 3% discount rate, and
a cost of $779 to $953 per micro-risk reduction at a 7% discount rate.
The alternative option with a 12-year prohibition deadline for all
chlor-alkali facilities appears to be somewhat more cost effective than
the final rule when using a 7 percent discount rate. But as noted
previously, these differences are due to how the timing of expenditures
affects the annualized cost estimates.
5. Consideration of alternatives under TSCA section 6(c)(2)(C).
Under TSCA section 6(c)(2)(C), and based on the information
published under TSCA section 6(c)(2)(A), in deciding whether to
prohibit or restrict in a manner that substantially prevents a specific
condition of use of a chemical substance or mixture, and in setting an
appropriate transition period for such action, EPA must also consider,
to the extent practicable, whether technically and economically
feasible alternatives that benefit health or the environment will be
reasonably available as a substitute when the prohibition or other
restriction takes effect.
a. Health and environmental effects of the chemical alternatives or
substitute methods.
In considering the potential chemical alternatives or substitute
methods for chrysotile asbestos for the conditions of use evaluated in
the risk evaluation, EPA notes that chrysotile asbestos is not
currently the primary substance most commonly used in these conditions
of use, nor has it been for the last decade. Chlor-alkali asbestos
diaphragms, sheet gaskets for chemical production, aftermarket
automotive breaks, oilfield brake blocks, other gaskets and other
friction products containing chrysotile asbestos are relatively
uncommon in the market space, as described in the risk evaluation.
There are a number of alternatives to asbestos in these conditions of
use that make up the majority of the market share and have been
preferentially used for some time, in part as a result of the known
severe and adverse health effects related to asbestos exposure. Based
on the information published under TSCA section 6(c)(2)(A), EPA does
not expect any adverse impacts to human health and the environment to
result from the further reduction of asbestos in these conditions of
use when compared to the continued use of asbestos.
EPA acknowledges that substitute technologies for asbestos-
containing diaphragms in chlor-alkali production use an increased
concentration of per- and polyfluoroalkyl substances (PFAS) relative to
the amount of PFAS compounds contained in asbestos-containing
diaphragms. As discussed in the Economic Analysis, the three types of
chlor-alkali production technologies commonly used in the United States
vary in their use of PFAS. Non-asbestos diaphragms have a higher
concentration of polytetrafluoroethylene (PTFE, a polymeric
perfluorinated substance) than asbestos-containing diaphragms, and non-
asbestos membranes are made of PTFE, perfluorinated carboxylic acids
and perfluorosulfonic acids. However, the impact of the transition away
from asbestos-containing diaphragms on the quantities of PFAS compounds
used and released is uncertain. Although they contain a higher
concentration of PFAS compounds than diaphragms made with asbestos,
non-asbestos diaphragms and membranes have a typical lifespan that can
be several times longer than that for asbestos diaphragms. Therefore,
it is unclear how increased use of non-asbestos technologies will
affect the total production, usage, or releases of PFAS compounds, or
exposures to such compounds. Despite these uncertainties about the use
and release of PFAS, EPA believes the benefits of removing chrysotile
asbestos from continued use in the United States are significant even
though there are uncertainties regarding the potential changes in
exposure to PFAS that might result from this action. Still, when
possible, EPA recommends a transition to safer alternatives. Additional
information on PFAS, including Agency guidance, is available at https://www.epa.gov/.
To the extent that alternative technologies are more energy
efficient, converting asbestos diaphragm cells to non-asbestos
technologies reduces overall electricity consumption and thus the total
level of pollutants associated with electric power generation,
including carbon dioxide, particulate matter, sulfur dioxide, and
nitrogen oxides.
b. Technically and economically feasible and reasonably available
chemical alternatives or substitute methods.
As mentioned, there are a number of alternatives to asbestos in
these conditions of use that make up the majority of the market share
and have been preferentially used for some time. EPA received input
from stakeholders regarding their concerns about alternatives to
chrysotile asbestos. EPA expects non-asbestos diaphragms and membrane
cells will be the likely substitutes to asbestos diaphragms. Prior to
the proposed rule, the chlor-alkali industry expressed concerns to EPA
about the economic feasibility of transitioning to asbestos free
technology in general (Ref. 25; Ref. 26; Ref. 27; Ref. 28; Ref. 29) and
indicated that it would take a significant amount of time. Subsequent
public comments and information from the chlor-alkali industry obtained
after the proposed rule was published indicates that conversion to
asbestos-free technology is commercially viable, but that the
conversion can take a significant amount of time, depending on the
technology adopted and the number of facilities to be converted (Ref.
12; Ref. 13).
Several stakeholders provided feedback on alternatives to
chrysotile asbestos for the sheet gasket use in chemical production.
Generally, these stakeholders described how the transition from
asbestos use for titanium dioxide production would require
modifications to the facilities that would be time consuming. One
stakeholder noted in 2021 that they had a titanium dioxide production
facility located in Taiwan that uses asbestos-free gaskets. The
stakeholder, however, stated at that time that the technology used in
the Taiwan facility would not suit certain domestic titanium dioxide
[[Page 21998]]
facilities because the large diameter flanges in the domestic
facilities result in performance issues with the asbestos-free gaskets
(Ref. 25). The same stakeholder subsequently informed EPA in 2023 that
they could transition to the use of non-asbestos gaskets in their
domestic facilities by re-engineering the flanges, although that
process will require several years to complete (Ref. 18). Non-asbestos
technologies already dominate the market for other gaskets, oilfield
brake blocks, brakes and other friction products. Although,
stakeholders indicated the advantages of using asbestos (e.g., asbestos
in automotive drum brakes advantages include thermal stability,
flexibility, resistance to wear, and low cost), and limitations of the
non-asbestos replacements (e.g., non-asbestos replacements in brake
blocks have a useful life half that of products containing asbestos,
are more expensive than asbestos-containing products, and are subject
to sudden failure) (Ref. 2). Non-asbestos aftermarket automotive brakes
are estimated to cost an average of $4 more than brakes containing
asbestos. EPA was unable to identify any companies currently supplying
or using other gaskets or other friction products containing asbestos,
so the Agency does not have information on the cost differentials
between products that contain asbestos and those that are asbestos-
free. Additional information is available in the risk evaluation (Ref.
1) and economic analysis (Ref. 2).
6. Replacement parts under TSCA section 6(c)(2)(D).
TSCA section 6(c)(2)(D) states that EPA shall exempt from TSCA
section 6(a) rules replacement parts for complex durable goods and
complex consumer goods that are designed prior to the publication of a
final risk management rule, unless such replacement parts contribute
significantly to the risk, identified in a risk evaluation conducted
under TSCA section 6(b)(4)(A), to the general population or to an
identified potentially exposed or susceptible subpopulation. TSCA
section 6(c)(2)(D) defines complex consumer goods as electronic or
mechanical devices composed of multiple manufactured components, with
an intended useful life of three or more years, where the product is
typically not consumed, destroyed, or discarded after a single use, and
the components of which would be impracticable to redesign or replace.
The term ``complex durable goods'' means manufactured goods composed of
100 or more manufactured components, with an intended useful life of
five or more years, where the product is typically not consumed,
destroyed or discarded after a single use. Several of the conditions of
use addressed by this final rule impact these replacement part
categories. Aftermarket automotive brakes/linings are replacement parts
for automobiles and other vehicles. Other asbestos-containing gaskets
may be available as both new and replacement parts on utility and other
vehicles. Oilfield brake blocks are replacement parts for the drilling
rigs used in the oil industry. These vehicles and drilling rigs are
composed of numerous components, manufactured separately and assembled
together into a machine designed for a useful life of at least three
years if properly maintained. By their nature, EPA believes these meet
the TSCA definition of complex durable goods. In the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos, however, EPA found
unreasonable risk from use and disposal of chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; and other asbestos-
containing gaskets. EPA's risk evaluation evaluated scenarios involving
these replacement parts, and EPA finds that the replacement parts
contribute significantly to the identified unreasonable risk for these
conditions of use to the potentially exposed or susceptible
subpopulations identified in the risk evaluation. Accordingly, EPA is
not exempting replacement parts from regulation in this final rule.
7. Article considerations under TSCA section 6(c)(2)(E).
Under this final rule, EPA is regulating the manufacture,
processing, and distribution in commerce of articles containing
chrysotile asbestos. TSCA section 6(c)(2)(E) states: ``In selecting
among prohibitions and other restrictions, the Administrator shall
apply such prohibitions or other restrictions to an article or category
of articles containing the chemical substance or mixture only to the
extent necessary to address the identified risks from exposure to the
chemical substance or mixture from the article or category of articles
so that the substance or mixture does not present an unreasonable risk
of injury to health or the environment identified in the risk
evaluation conducted in accordance with section 6(b)(4)(A).'' TSCA does
not define ``article,'' but EPA proposed to define ``article'' and is
now finalizing that definition. Based on this definition, the
conditions of use subject to this regulation include articles, e.g.,
sheet gaskets, brake blocks, brake/linings, other gaskets and other
vehicle friction products.
Except for bulk chrysotile asbestos imported for use in asbestos
diaphragms, all of the other conditions of use that are the subject of
this regulation involve the use and/or disposal of products or articles
containing chrysotile asbestos. For each condition of use, the article
is subject to circumstances during use that change or alter the article
as a direct result of the use. Releases of chrysotile asbestos, and the
associated unreasonable risk from exposure to chrysotile asbestos
identified in the risk evaluation, result from use of the articles. The
articles themselves include sheet gaskets, other gaskets, brake blocks,
brakes and linings, which wear down during use and release asbestos
fibers. The risk evaluation determined that exposure to workers, ONUs,
consumers and bystanders can occur when these items are replaced or
repaired, resulting in harmful exposures. These identified risks from
articles containing asbestos could result from exposure of any kind
and, as a result, EPA had no feasible option to prevent these risks
other than a complete prohibition. In particular, without effective
respiratory protection to reduce asbestos exposure, no other
restriction EPA researched could sufficiently prevent unreasonable risk
to ONUs, consumers, and bystanders who were not expected to wear
respiratory protection. For example, EPA does not assume consumers who
replace their own automobile brakes will consistently use appropriate
respiratory protection, nor can EPA in this rule require respirator use
for consumers. Accordingly, EPA's final regulatory action sets
requirements for articles only to the extent necessary to address the
identified risks from exposure to chrysotile asbestos from the article
so that chrysotile asbestos does not present an unreasonable risk to
health.
C. TSCA Section 9 Analysis
1. TSCA section 9(a) analysis.
Section 9(a) of TSCA provides that, if the Administrator determines
in the Administrator's discretion that an unreasonable risk may be
prevented or reduced to a sufficient extent by an action taken under a
Federal law not administered by EPA, the Administrator must submit a
report to the agency administering that other law that describes the
risk and the activities that present such risk. TSCA section 9(a)
describes additional procedures and requirements to be followed by EPA
and the other federal agency after submission of the report. As
discussed in this Unit, the Administrator does not determine that
unreasonable risk from the conditions of use of chrysotile
[[Page 21999]]
asbestos may be prevented or reduced to a sufficient extent by an
action taken under a Federal law not administered by EPA.
TSCA section 9(d) instructs the Administrator to consult and
coordinate TSCA activities with other Federal agencies for the purpose
of achieving the maximum enforcement of TSCA while imposing the least
burden of duplicative requirements. For this rule, EPA has consulted
with other appropriate Federal executive departments and agencies
including OSHA and NIOSH.
OSHA requires that employers provide safe and healthful working
conditions by setting and enforcing standards and by providing
training, outreach, education and assistance. OSHA has three separate
health standards for asbestos covering employers in General Industry
(29 CFR 1910.1001); Shipyards (29 CFR 1915.1001); and Construction (29
CFR 1926.1101). These standards include a permissible exposure limit
(PEL) for asbestos of 0.1 fibers per cubic centimeter (cc) of air as an
eight-hour time weighted average (TWA), and an excursion limit of 1.0
asbestos fibers per cubic centimeter over a 30-minute period. The
standards apply to all occupational exposures to asbestos and require
exposure monitoring to determine employee exposure. Exposure monitoring
includes both initial monitoring of employees who are, or may
reasonably be expected to be, exposed to airborne concentrations at or
above the TWA PEL or excursion limit, as well as additional monitoring.
Monitoring frequency depends on work classification exposure while
additional monitoring may be required based on changes in the workplace
environment that may result in new or additional exposures above the
TWA PEL or excursion limit.
This rule addresses risk from exposure to chrysotile asbestos in
both workplace and consumer settings (e.g., do-it-yourself automobile
maintenance). With the exception of TSCA, there is no Federal law that
provides authority to prevent or sufficiently reduce these cross-
cutting exposures. No other Federal regulatory agency can evaluate and
address the totality of the risk that EPA is addressing in this rule.
For example, OSHA may set exposure limits for workers, but its
authority is limited to the workplace and does not extend to consumer
uses of hazardous chemicals (while EPA does not regulate consumer use
directly under TSCA 6(a)(5), it has authority to regulate the upstream
supply of chemicals for consumer uses). Further, OSHA does not have
direct authority over state and local employees, and it has no
authority at all over the working conditions of state and local
employees in states that have no OSHA-approved State Plan under 29
U.S.C. 667. Other individuals that may not be covered by OSHA
requirements include university students, volunteers, and self-employed
persons. CPSC is charged with protecting the public from unreasonable
risks of injury or death associated with the use of the thousands of
types of consumer products under the agency's jurisdiction, CPSC has
the authority to regulate chrysotile asbestos in such consumer
products, but not in automobiles, trucks and motorcycles, which are not
under its jurisdiction.
Moreover, the 2016 amendments to TSCA, Public Law 114-182, alter
both the manner of identifying unreasonable risk under TSCA and EPA's
authority to address unreasonable risk under TSCA, such that risk
management under TSCA is increasingly distinct from analogous
provisions of the Consumer Product Safety Act (CPSA), the Federal
Hazardous Substances Act (FHSA), or the OSH Act. These changes to TSCA
reduce the likelihood that an action under the CPSA, FHSA, or the OSH
Act would sufficiently prevent or reduce the unreasonable risk of
chrysotile asbestos. In a TSCA section 6 rule, following an
unreasonable risk determination, EPA must apply risk management
requirements to the extent necessary so that the chemical no longer
presents unreasonable risk and only consider costs to the extent
practicable, 15 U.S.C. 2605(a) and (c)(2), subject to time-limited
conditional exemptions, 15 U.S.C. 2605(g). By contrast, a consumer
product safety rule under the CPSA must include a finding that ``the
benefits expected from the rule bear a reasonable relationship to its
costs.'' 15 U.S.C. 2058(f)(3)(E). Additionally, the 2016 amendments to
TSCA reflect Congressional intent to ``delete the paralyzing `least
burdensome' requirement,'' 162 Cong. Rec. S3517 (June 7, 2016), a
reference to TSCA section 6(a) as originally enacted, which required
EPA to use ``the least burdensome requirements'' that protect
``adequately'' against unreasonable risk, 15 U.S.C. 2605(a) (1976).
However, a consumer product safety rule under the CPSA must impose
``the least burdensome requirement which prevents or adequately reduces
the risk of injury for which the rule is being promulgated.'' 15 U.S.C.
2058(f)(3)(F). Analogous requirements, also at variance with recent
revisions to TSCA, affect the availability of action CPSC may take
under the FHSA relative to action EPA may take under TSCA. 15 U.S.C.
1262. Gaps also exist between OSHA's authority to set workplace
standards under the OSH Act and EPA's obligations to sufficiently
address chemical risks under TSCA. To set PELs for chemical exposure,
OSHA must first establish that the new standards are economically
feasible and technologically feasible (79 FR 61387, October 10, 2014).
But under TSCA, EPA's substantive burden under TSCA section 6(a) is to
demonstrate that, as regulated, the chemical substance no longer
presents an unreasonable risk, with unreasonable risk being determined
under TSCA section 6(b)(4).
EPA therefore concludes that: TSCA is the only regulatory authority
able to prevent or reduce risks of chrysotile asbestos to a sufficient
extent across the range of conditions of use, exposures and populations
of concern; these risks can be addressed in a more coordinated,
efficient and effective manner under TSCA than under different laws
implemented by different agencies, and there are key differences
between the finding requirements of TSCA and those of the OSH Act. For
these reasons, in the Administrator's discretion, the Administrator
does not determine that unreasonable risk from the conditions of use of
chrysotile asbestos may be prevented or reduced to a sufficient extent
by an action taken under a Federal law not administered by EPA.
More than 10 comments were received regarding issues generally
related to TSCA section 9. Some commenters supported EPA's decision to
not make a determination and submit a report to another agency under
TSCA section 9(a). Other commenters contended that the OSHA regulation
that relates to reducing worker exposure sufficiently mitigates the
unreasonable risk and that EPA lacks authority to regulate worker
exposures because OSHA is better positioned to enforce both safety
measures and occupational exposures. EPA's response to these comments
is available in the docket for this rulemaking (Ref. 12).
2. TSCA section 9(b) analysis.
If EPA determines that actions under other Federal laws
administered in whole or in part by EPA could eliminate or sufficiently
reduce a risk to health or the environment, TSCA section 9(b) instructs
EPA to use these other authorities unless the Administrator determines
in the Administrator's discretion that it is in the public interest to
protect against such risk under TSCA. In making such a public interest
finding, TSCA section 9(b)(2) states: ``the Administrator shall
consider, based on information reasonably available to the
[[Page 22000]]
Administrator, all relevant aspects of the risk . . . and a comparison
of the estimated costs and efficiencies of the action to be taken under
this title and an action to be taken under such other law to protect
against such risk.''
Although several EPA statutes have been used to limit chrysotile
asbestos exposure (Ref. 4), regulations under those EPA statutes have
limitations because they largely regulate releases to the environment,
rather than direct human exposure. The Clean Air Act generally focuses
on releases of asbestos to the ambient air. Under the Resource
Conservation and Recovery Act (RCRA) Subtitle D, the disposal of
chrysotile asbestos is regulated as a non-hazardous solid waste; RCRA
does not address exposures during manufacturing, processing,
distribution and use of products containing chrysotile asbestos. Only
TSCA provides EPA the authority to regulate the manufacture (including
import), processing, distribution in commerce, commercial use and
commercial disposal of chemicals substances to be able to address
chrysotile asbestos direct exposure to humans.
For these reasons, the Administrator does not determine that
unreasonable risk from the conditions of use of chrysotile asbestos
could be eliminated or reduced to a sufficient extent by actions taken
under other Federal laws administered in whole or in part by EPA.
D. TSCA Section 26(h) Considerations
In accordance with TSCA section 26(h), EPA has used scientific
information, technical procedures, measures, methods, protocols,
methodologies, and models consistent with the best available science.
The unreasonable risk determination was based on a risk evaluation,
which was subject to peer review and public comment, was developed in a
manner consistent with the best available science and based on the
weight of the scientific evidence. The extent to which the various
information, procedures, measures, methods, protocols, methodologies or
models, as applicable, used in EPA's decision have been subject to
independent verification or peer review is adequate to justify their
use, collectively, in the record for this rule. In particular, the ECEL
value incorporated into the interim workplace controls is derived from
the analysis in the 2020 Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos; it likewise represents decisions based on the best
available science and the weight of the scientific evidence (Ref. 23).
The ECEL value of 0.005 f/cc as an 8-hour TWA is based incidence of
lung cancer, mesothelioma and other cancers. Additional information on
the peer review and public comment process, such as the peer review
plan, the peer review report, and the Agency's response to comments,
can be found at EPA's risk evaluation docket at EPA-HQ-OPPT-2019-0501
(Ref. 30).
E. TSCA Section 14 Requirements
EPA is also providing notice to manufacturers, processors, and
other interested parties about potential impacts to confidential
business information that may occur with this final rule. Under TSCA
section 14(b)(4), if EPA promulgates a rule pursuant to TSCA section
6(a) that establishes a ban or phase-out of a chemical substance, the
protection from disclosure of any confidential business information
regarding that chemical substance and submitted pursuant to TSCA will
be ``presumed to no longer apply,'' subject to the limitations
identified in TSCA section 14(b)(4)(B)(i) through (iii). Pursuant to
TSCA section 14(b)(4)(B)(iii), the presumption against protection from
disclosure would apply only to information about the specific
conditions of use that this rule would prohibit. Manufacturers or
processors seeking to protect such information would be able to submit
a request for nondisclosure as provided by TSCA sections 14(b)(4)(C)
and 14(g)(1)(E). Any request for nondisclosure would need to be
submitted within 30 days after receipt of notice from EPA under TSCA
section 14(g)(2)(A). EPA anticipates providing such notice via the
Central Data Exchange (CDX).
F. TSCA Section 18(c)(3) Federal Preemption
TSCA section 18(c)(3) defines the scope of federal preemption with
respect to any final rule EPA issues under TSCA section 6(a). That
provision provides that federal preemption of ``statutes, criminal
penalties, and administrative actions'' applies to ``the hazards,
exposures, risks, and uses or conditions of use of such chemical
substances included in any final action the Administrator takes
pursuant to [TSCA section 6(a)].'' With respect to this final TSCA
section 6(a) rule for chrysotile asbestos, federal preemption applies
to the COUs evaluated in the TSCA Risk Evaluation for Asbestos, Part 1.
Federal preemption as a result of this section 6(a) rule does not apply
to COUs that are being evaluated in EPA's Risk Evaluation for Asbestos,
Part 2, including legacy uses and associated disposals, other types of
asbestos fibers in addition to chrysotile, and conditions of use of
asbestos-containing talc.
VIII. Severability
EPA intends that each provision of this rulemaking be severable. In
the event of litigation staying, remanding, or invalidating all or a
portion of EPA's risk management approach for one or more conditions of
use (COUs) in this rule, EPA intends to preserve the risk management
approach in the rule for all other portions of the risk management
approach for a COU and all other COUs to the fullest extent possible.
The Agency evaluated the risk management options in TSCA section
6(a)(1) through (7) for each COU and generally EPA's regulation of a
COU to address the unreasonable risk from chrysotile asbestos functions
independently from EPA's regulation of other COUs, which may have
different characteristics leading to EPA's risk management decisions.
Further, the Agency crafted this rule so that different risk management
approaches are reflected in different provisions or elements of the
rule that are capable of operating independently. Accordingly, the
Agency has organized the rule so that if any provision or element of
this rule is determined by judicial review or operation of law to be
invalid, that partial invalidation will not render the remainder of
this rule invalid.
There are many permutations of the above. Accordingly, rather than
walking through each one, EPA is providing the following two
representative examples for illustrative purposes. The first example of
how the regulation of one COU is independent of another COU is based on
the following COU examples of: the commercial use of chrysotile
asbestos for use in sheet gaskets for chemical production, which EPA
prohibited in Sec. 751.509(a), and the commercial use of chrysotile
asbestos for oilfield brake blocks, which EPA prohibited in Sec.
751.509(d)(1). To the extent that a court were to find EPA lacked
substantial evidence to support its prohibition of the commercial use
of chrysotile asbestos for use in sheet gaskets for chemical production
or otherwise found flaw with EPA's approach to that COU, it would have
no bearing on other COUs, such as the commercial use of chrysotile
asbestos for oilfield brake blocks, unless the specific flaw also
applies to the particular facts associated with the commercial use of
chrysotile asbestos for oilfield brake blocks. This is reflected in the
structure of the rule, which does not intertwine the prohibitions for
commercial use of chrysotile asbestos for use in sheet
[[Page 22001]]
gaskets for chemical production and the commercial use of chrysotile
asbestos for oilfield brake blocks, but rather separately prohibits
each of these COUs.
Another example of how different risk management approaches are
reflected in different provisions or elements of the rule that are
capable of operating independently is the regulatory provisions for the
commercial use of chrysotile asbestos sheet gaskets for titanium
dioxide production. EPA's risk management approach includes two
elements: (1) a prohibition on the commercial use of chrysotile
asbestos sheet gaskets for titanium dioxide production under Sec.
751.509(b) and (2) interim workplace controls to reduce risk to workers
until the prohibition takes effect under Sec. 751.511. To the extent
that a court were to find that EPA lacked substantial evidence to
support the interim workplace controls for the commercial use of sheet
gaskets for titanium dioxide production, or otherwise found flaw with
EPA's approach with respect to this aspect of the risk management for
this COU, it would have no bearing on EPA's decision to prohibit the
commercial use of sheet gaskets for titanium dioxide production. This
is reflected in the structure of the rule, which does not make the
prohibition of the commercial use of sheet gaskets for titanium dioxide
production contingent on the application of interim workplace controls.
IX. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents referenced
within the documents that are included in the docket, even if the
referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
1. EPA. Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos.
December 2020. Office of Chemical Safety and Pollution Prevention.
Washington, DC. December 2020. (EPA Docket Document Number EPA-HQ-
OPPT-2021-0057-0007). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0007.
2. EPA. 2023. Economic Analysis of the TSCA Section 6 Final Rule for
Asbestos Risk Management, Part 1. March 2024.
3. U.S. Geological Survey. (2023). Minerals Yearbook. Asbestos. 2022
tables-only release.
4. EPA. Regulatory History of Asbestos. March 2024.
5. EPA. Problem Formulation for the Risk Evaluation of Asbestos. May
2018. (EPA-HQ-OPPT-2016-0736-0131). https://www.regulations.gov/document/EPA-HQ-OPPT-2016-0736-0131.
6. EPA. Email Exchange with Mobis and EPA on the presence of
Asbestos in its Brake and Friction Products. March to June, 2021.
(EPA-HQ-OPPT-2021-0057-0016). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0016.
7. EPA. Section 6(a) Rulemakings under the Toxic Substances Control
Act (TSCA) Chrysotile Asbestos Rulemakings E.O. 13132: Federalism
Consultation. May 13, 2021 (EPA-HQ-OPPT-2021-0057-0239). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0239.
8. EPA. Notification of Consultation and Coordination on Proposed
Rulemakings under the Toxic Substances Control Act for Asbestos Part
1: Chrysotile Asbestos. May 24, 2021 and June 3, 2021. Tribal
Consultation. (EPA-HQ-OPPT-2021-0057-0013). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0013.
9. EPA. Environmental Justice Consultation on Forthcoming Proposed
Rulemakings under TSCA Section 6(a). May 12, 2021. (EPA-HQ-OPPT-
2021-0057-0242). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0242.
10. EPA. Part 1. Asbestos (Chrysotile) Public Webinar Slides.
February 3, 2021. (EPA-HQ-OPPT-2021-0057-0003. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0003.
11. EPA. Part 1. Asbestos (Chrysotile) Small Business Administration
roundtable slides on February 5, 2021. (EPA-HQ-OPPT-2021-0057-0004).
https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0004.
12. EPA. Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain
Conditions of Use Under Section 6(a) of the Toxic Substances Control
Act (TSCA); Proposed Rule. Docket EPA-HQ-OPPT-2021-0057. Response to
Public Comments. March 2024.
13. EPA. Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain
Conditions of Use Under Section 6(a) of the Toxic Substances Control
Act (TSCA); Notice of Data Availability and Request for Comment EPA-
HQ-OPPT-2021-0057. Response to Comments. March 2024.
14. Olin Corporation. Comment submitted by Olin Corporation. EPA-HQ-
OPPT-2021-0057-0475. https://www.regulations.gov/comment/EPA-HQ-OPPT-2021-0057-0475.
15. EPA. Meeting with Olin Corporation, August 17, 2023.
16. EPA. Meeting with OxyChem Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. February 9,
2023. EPA-HQ-OPPT-2021-0057-0445. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0445.
17. EPA. Meeting with Westlake Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. November 3,
2022. EPA-HQ-OPPT-2021-0057-0446. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0446.
18. EPA. Meeting with Chemours Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. January 18,
2023. EPA-HQ-OPPT-2021-0057-0442. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0442.
19. The Chemours Company. Comment submitted by The Chemours Company,
EPA-HQ-OPPT-2021-0057-0366. https://www.regulations.gov/comment/EPA-HQ-OPPT-2021-0057-0366.
20. Savannah River Nuclear Solutions. Comment submitted by Savannah
River Nuclear Solutions. EPA-HQ-OPPT-2021-0057-0478. https://www.regulations.gov/comment/EPA-HQ-OPPT-2021-0057-0478.
21. EPA, DOE, SCDHEC. Federal Facility Agreement for the Savannah
River Site, Administrative Docket No. 89-05-FF. August 16, 1993.
22. EPA, DOE, SCDHEC. 2022 High Level Waste Tank Milestones
Agreement; Savannah River Site Federal Facilities Agreement
Modification. December 2022.
23. EPA. Existing Chemical Exposure Limit (ECEL) for Occupational
Use of Chrysotile Asbestos. March 2, 2021. EPA-HQ-OPPT-2021-0057-
0017. https://www.regulations.gov/document/EPA-HPA-HQ-OPPT-2021-0057-0017.
24. Office of Management and Budget. Memorandum for the Heads of
Executive Departments and Agencies (M-95-09). Guidance for
Implementing Title II of S. 1. March 31, 1995. https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/1995-1998/m95-09.pdf. Accessed December 14, 2021.
25. EPA. Meeting with Chemours Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. March 29,
2021. (EPA-HQ-OPPT-2021-0057-0018). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0018.
26. EPA. Meeting with Olin Corporation on Risk Management under TSCA
section 6, Asbestos Part 1: Chrysotile Asbestos. June 2, 2021. (EPA-
HQ-OPPT-2021-0057-0019). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0019.
27. EPA. Meeting with OxyChem Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. May 27, 2021.
(EPA-HQ-OPPT-2021-0057-0020). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0020.
28. EPA. Meeting with Westlake Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. May 20, 2021.
(EPA-HQ-OPPT-2021-0057-0021). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0021.
29. EPA. Meeting and Correspondence with The Chlorine Institute on
Risk
[[Page 22002]]
Evaluation and Risk Management for Part 1: Chrysotile Asbestos. May
18, 2021. (EPA-HQ-OPPT-2021-0057-0024). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0024.
30. EPA. Summary of External Peer Review and Public Comments and
Disposition for Chrysotile Asbestos. May 2020 (EPA-HQ-OPPT-2019-
0501).
31. EPA. Information Collection Request (ICR) for the Regulation of
Part 1: Chrysotile Asbestos under TSCA Section 6(a) (Final Rule).
EPA ICR No. 2707.02; OMB No. 2070-0220. March 2024.
32. EPA. Unfunded Mandates Reform Act Statement. Asbestos Part 1:
Chrysotile Asbestos; Regulation of Certain Conditions of Use under
TSCA Section 6(a). March 2024.
33. Asbestos Disease Awareness Organization. Comments submitted at
the Environmental Justice Webinar. June 1, 2021. EPA-HQ-OPPT-2021-
0057-0005. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0005.
X. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/regulations/and-executive-orders.
A. Executive Orders 12866: Regulatory Planning and Review and 14094:
Modernizing Regulatory Review
This action is a ``significant regulatory action'' as defined under
section 3(f)(1) of Executive Order 12866 (58 FR 51735, October 4,
1993), as amended by Executive Order 14094 (88 FR 21879, April 11,
2023). Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for Executive Order 12866 review.
Documentation of any changes made in response to Executive Order 12866
review is available in the docket.
As summarized in Unit I.E., EPA prepared an analysis of the
potential costs and benefits associated with this action (Ref. 2), a
copy of which is available in the docket and discussed in Unit VII.B.
B. Paperwork Reduction Act (PRA)
The information collection requirements in this final rule have
been submitted to OMB for approval under the PRA, 44 U.S.C. 3501 et
seq. The Information Collection Request (ICR) document prepared by EPA
has been assigned EPA ICR No. 2707.02 and OMB Control No. 2070-0220.
You can find a copy of the ICR in the docket for this rule (Ref. 31),
and it is briefly summarized here. The information collection
requirements are not enforceable until OMB approves them.
The information collection activities required under this rule
include reporting and recordkeeping requirements. As explained in Unit
VI.F. and specified at Sec. 751.511, companies that manufacture
(including import), process, distribute in commerce and use chrysotile
asbestos would be required to retain certain information at the company
headquarters for five years from the date of generation. These
information collection activities are necessary to provide EPA with
information upon inspection. EPA believes that these information
collection activities would not significantly impact the regulated
entities. As further explained in the ICR document:
Four (4) titanium dioxide manufacturing facilities that
use sheet gaskets and 8 chlor-alkali facilities are estimated to incur
costs associated with the ECEL (specifically, developing the exposure
control plan, conducting exposure monitoring, and the associated
notifications and recordkeeping). Each firm is predicted to an incur an
average burden of 182.98 hours per year.
Five (5) chemical manufacturing facilities that use sheet
gaskets and 12 to 1,400 companies installing aftermarket automotive
brakes are estimated to incur additional recordkeeping costs associated
with their disposal activities. Firms are predicted to incur a burden
of ranging from 0.03 hours to 4.42 hours per year.
For the remaining industry sectors and recordkeeping
activities required by the rule, records that comply with the
requirements are assumed to already be maintained as part of ordinary
business records. Therefore, EPA estimates that such respondents would
incur no additional incremental paperwork burdens due to the rule.
Respondents/affected entities: Chrysotile asbestos manufacturers
(including importers), processors, distributors, and users.
Respondent's obligation to respond: Mandatory. TSCA section 6(a)
and the final rule.
Estimated number of respondents: 721.
Frequency of response: On occasion.
Total estimated burden: 2,269 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $370,973 (per year), includes $233,425
annualized capital or operation & maintenance costs.
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 the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. The small entities subject to the requirements of
this action manufacture (including import), process, distribute in
commerce and use chrysotile asbestos in the conditions of use covered
by this rule. As described in more detail in section 6.2 of the
Economic Analysis (Ref. 2), EPA has determined that 14 to 1,372 small
entities would be subject to the rule. The available information about
the magnitude of the small entity impacts for each use category are
summarized below:
Chlor-alkali facilities: None of the three affected firms are small
businesses.
Sheet gasket manufacturing for chemical production: EPA does not
have the information to calculate the costs of the rule to small
businesses in this sector, so small business impacts have not been
estimated. EPA is aware of the identity of a small business that
manufactures sheet gaskets containing asbestos for chemical production
(including titanium dioxide production), and the Agency assumes that
there may be a second small business providing sheet gaskets containing
asbestos for similar uses. While EPA lacks the information to estimate
the compliance cost and the resulting impact on firms in this sector,
the one firm EPA is aware of supplying this sector sells a diverse line
of products (including non-asbestos gaskets and many products other
than gaskets) serving several different industries, and it operates
several sites that do not manufacture gaskets containing asbestos. This
suggests that asbestos-containing gaskets are not a primary source of
revenue for the firm. EPA assumes that if there is another manufacturer
of asbestos gaskets for similar uses, that it also sells non-asbestos
gaskets. Since asbestos gaskets are such a niche portion of the gasket
industry, EPA believes this is a reasonable assumption. If the
customers using gaskets containing asbestos are able to convert
entirely to asbestos-free gaskets, the affected gasket manufacturers
could likely provide the
[[Page 22003]]
substitute products. These customers consist of chemical manufacturers
that are all large businesses as far as EPA is aware. To the extent
that asbestos-free gaskets do not last as long as those containing
asbestos, the rule could potentially increase revenues for the affected
gasket manufacturers. Asbestos-free products in these applications
reportedly require more frequent replacement than items containing
asbestos. As a result, the rule could increase revenues for the
affected small business suppliers if they sell a larger volume of non-
asbestos products to the end users as replacements.
Sheet gasket end users (chemical production): None of the 4 firms
known to be affected are small businesses. It is possible there may be
other unknown small businesses that may be affected.
Oilfield brake block importer: EPA does not have the information to
calculate the costs of the rule to small businesses in this sector, so
small business impacts have not been estimated. There is one firm known
to import and distribute oilfield brake blocks containing asbestos and
it is a small business. While EPA was not able to estimate the
compliance cost and its impact on this firm, if the customers (which
may include other small businesses) with older drilling rigs currently
using brake blocks containing asbestos continue to use those rigs, the
importer could likely provide the asbestos-free brake blocks used as
substitutes. To the extent that asbestos-free brake blocks are more
expensive and do not last as long as those containing asbestos, the
rule could potentially increase revenues for the affected brake block
importer. A less durable product might be less profitable for the
customers, but selling a product that has to be replaced more often
could increase revenues for the importer if it sells a larger volume of
non-asbestos products to the end users as replacements.
Oilfield brake block--end users: EPA has not identified any small
businesses using oilfield brake blocks containing asbestos. If there
are such small businesses, EPA does not have the information needed to
calculate the costs of the rule to them. Industry sources have
indicated that the use of asbestos-containing brake blocks has declined
over time because the type of drilling rigs that use them have been
replaced by equipment that does not require the use of brake blocks
containing asbestos, or that do not use brake blocks at all. Since
there is only one known importer and it is small, there are likely few
companies still using asbestos-containing brake blocks.
Aftermarket automotive brakes: 11 to 1,369 small businesses are
estimated to be affected by the rule. The estimate of 11 affected small
entities assumes that each affected business performs between 40 and
700 brake replacements per year using asbestos brake linings or pads.
The estimate of 1,369 affected small entities assumes that each
affected business installs a single set of asbestos brake linings or
pads per year. Affected firms are expected to incur a cost of
approximately $18 per brake replacement job for the additional expense
of a set of four non-asbestos brake linings or pads, and about $1 for
recordkeeping for their waste disposal activities. This results in
annual costs between $20 and $14,000 per firm (depending on the number
of brake replacements they perform). At the low-end of 11 affected
brake replacement firms, approximately 85% would have cost impacts of
less than 1% of their annual revenues, about 10% would have cost
impacts between 1% and 3%, and roughly 6% would have cost impacts over
3%. At the high-end estimate of 1,369 affected brake replacement firms
affected, 100% of firms would have a cost impact of less than 1% of
their annual revenue. As described in the Economic Analysis (Ref. 2),
aftermarket automobile brakes containing asbestos are estimated to have
a very small share (0.002%) of the total market. EPA did not estimate
any costs for these businesses associated with finding suppliers of
non-asbestos brakes because EPA assumes that these businesses already
sell non-asbestos brakes as well as brakes containing asbestos.
Other gaskets: EPA is not aware of any firms that would be affected
for this use category, since the one firm that previously indicated
that it used these products subsequently stated that it does not do so.
Therefore, no impacts are predicted on this use category as a result of
the rule.
Other vehicle friction products: EPA is not aware of any firms
impacted for this use category because the one firm that previously
indicated to EPA that it used products in this use category
subsequently stated that it does not do so. Therefore, no impacts are
predicted on this use category as a result of the rule. To the extent
there are ongoing uses, it is likely that the effects of the rule would
be similar to those for aftermarket auto brakes (a few firms facing a
small cost increase for asbestos-free products that probably can be
passed on to consumers).
Details of this analysis are presented in the Economic Analysis
(Ref. 2).
D. Unfunded Mandates Reform Act (UMRA)
This action contains a federal mandate under UMRA, 2 U.S.C. 1531-
1538, that may result in expenditures of more than the inflation-
adjusted UMRA threshold of $100 million or more for state, local and
tribal governments, in the aggregate, or the private sector in any one
year. Accordingly, the EPA has prepared a written statement required
under UMRA section 202. The statement is included in the docket for
this action and briefly summarized here. (Ref. 32)
Total annual net compliance costs per year over the first 12 years
of this rule are estimated to range from a cost of $342 million to a
savings of $126 million, depending on the year. (This does not include
costs for sheet gaskets used in chemical production, brake blocks in
the oil industry, other vehicle friction products, or other gaskets,
which were not quantified). Thus, the cost of the rule in any one year
can exceed $177 million, the inflation-adjusted UMRA threshold. When
longer term savings in the chlor-alkali industry are accounted for over
a 35-year period (the estimated useful lifespan of facilities in the
chlor-alkali industry), the quantified incremental costs of the rule
using a 3% discount rate range from savings of less than $1 million per
year to costs of more than $7 million per year. Using a 7% discount
rate, the incremental costs range from more than $34 million per year
to greater than $43 million per year.
The economic impact of a regulation on the national economy is
generally considered to be measurable only if the economic impact of
the regulation reaches 0.25 percent to 0.5 percent of Gross Domestic
Product (GDP) (Ref. 24). Given the current GDP of $27.62 trillion, this
is equivalent to a cost of $69 billion to $138 billion. Therefore, EPA
has concluded that this rule is highly unlikely to have any measurable
effect on the national economy.
The quantified benefits of avoided cancer incidence due to the
requirements for chlor-alkali facilities, sheet gaskets in chemical
production, and aftermarket automobile brakes total approximately
$6,000 per year using a 3% discount rate and $3,000 per year using a 7%
discount rate. There are also benefits due to the reduction in
pollutants generated by electric utilities that supply power to the
chlor-alkali facilities, as well as various unquantified benefits.
UMRA section 205 requires that before promulgating any rule for
which a written statement is required under
[[Page 22004]]
UMRA section 202, the agency shall identify and consider a reasonable
number of regulatory alternatives and from those alternatives select
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule, unless the head of the
affected agency publishes with the final rule an explanation of why the
least costly, most cost-effective or least burdensome method of
achieving the objectives of the rule was not adopted; or the provisions
are inconsistent with law.
EPA considered two primary regulatory alternatives to the
requirements that are being finalized in this action for chrysotile
asbestos diaphragms in the chlor-alkali industry. Under one alternative
the prohibitions on the processing, distribution in commerce and
commercial use of asbestos diaphragms at chlor-alkali facilities would
take effect at all facilities five years after the effective date of
the final rule. Under the other alternative these prohibitions would
take effect at all facilities after 12 years. The 12-year option has
slightly lower estimated annualized costs than the final rule in EPA's
Economic Analysis (Ref. 2) when using a 7 percent discount rate.
However, as described in Unit VII.B.4.b.ii., this is an artifact of how
the time at which costs are incurred affects the incremental annualized
cost estimates of the rule. Moreover, neither alternative option is
consistent with the statute or the objectives of the rule.
EPA has concluded that the regulatory alternatives it considered
are not consistent with the statute or the objectives of the rule. TSCA
requires that EPA specify mandatory compliance dates for all
requirements of a TSCA section 6(a) rule, and that the dates be ``as
soon as practicable'' and ``provide for a reasonable transition
period.'' As described in Unit V., given the differences among chlor-
alkali facilities, EPA has concluded that a compliance deadline of five
years for the processing, distribution in commerce and commercial use
at all facilities would not provide a reasonable transition period
without anticipated disruption to the available chlorine supply for
water treatment. But allowing the processing, distribution in commerce
and commercial use of asbestos diaphragms to continue for 12 years at
all facilities would not be as soon as practicable, since some
facilities will be able to complete their conversion to non-asbestos
technology in less than 12 years. Therefore, neither of the alternative
options considered would be consistent with the statute or the
objectives of the rule. Instead, EPA is finalizing requirements that
provide longer staggered phase-out periods to provide a reasonable
period for companies to sequentially convert some facilities from
chrysotile asbestos diaphragm technology to membrane technology that is
still as quickly as is practicable.
Additional information on EPA's estimates of the benefits and costs
of this action are provided in Units I.E. and VII.B.4. and in the
Economic Analysis (Ref. 2). Information on the authorizing legislation
is provided in Unit I.B. Information on prior consultations with
affected State, local, and Tribal governments is provided in Units X.E
and X.F.
This action is not subject to the requirements of UMRA section 203
because it contains no regulatory requirements that might significantly
or uniquely affect small governments.
E. Executive Order 13132: Federalism
As discussed in Unit I.E.7., EPA has concluded that this action has
federalism implications as specified in Executive Order 13132 (64 FR
43255, August 10, 1999) because regulation under TSCA section 6(a) may
preempt state law. EPA provides the following federalism summary impact
statement. The Agency consulted with state and local officials early in
the process of developing the proposed action to facilitate their
meaningful and timely input into its development. EPA invited the
following national organizations representing state and local elected
officials to a meeting on May 13, 2021, in Washington, DC: National
Governors Association, National Conference of State Legislatures,
Council of State Governments, National League of Cities, U.S.
Conference of Mayors, National Association of Counties, International
City/County Management Association, National Association of Towns and
Townships, County Executives of America, and Environmental Council of
States. A summary of the meeting with these organizations, including
the views that they expressed, is available in the docket (Ref. 7). EPA
provided an opportunity for these organizations to provide follow-up
comments in writing but did not receive any such comments.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rulemaking
would not have substantial direct effects on tribal government because
chrysotile asbestos is not manufactured, processed, or distributed in
commerce by tribes and would not impose substantial direct compliance
costs on tribal governments. Thus, Executive Order 13175 does not apply
to this action. EPA nevertheless consulted with tribal officials during
the development of this action, consistent with the EPA Policy on
Consultation and Coordination with Indian Tribes.
EPA met with tribal officials via teleconferences on May 24, 2021,
and June 3, 2021, concerning the prospective regulation of chrysotile
asbestos under TSCA section 6 (Ref. 8). Tribal officials were given the
opportunity to meaningfully interact with EPA risk managers concerning
the current status of risk management. EPA received questions during
both meetings held during the consultation period concerning potential
risks to workers, consumers, and general population. Participants in
the consultations expressed interest in the conditions of use where EPA
found unreasonable risk and how EPA would address that unreasonable
risk. EPA responded by providing the suite of options provided the
agency under TSCA section 6 to address the unreasonable risk (Ref. 8).
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) directs federal
agencies to include an evaluation of the health and safety effects of
the planned regulation on children in federal health and safety
standards and explain why the regulation is preferable to potentially
effective and reasonably feasible alternatives. This action is subject
to Executive Order 13045 because it is a significant regulatory action
under section 3(f)(1) of Executive Order 12866, and, as discussed in
Unit I.E.6., EPA believes that the environmental health or safety risk
addressed by this action has a disproportionate effect on children. The
health effects of concern related to exposures to chrysotile asbestos
are mesothelioma, lung and other cancers, all of which have long
latency periods following exposure. Accordingly, we have evaluated the
environmental health or safety effects of asbestos on children.
The Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos (Ref.
1) demonstrated in sensitivity analyses that age at first exposure
affected risk estimates, with earlier exposures in life resulting in
greater risk. For children, exposures can be anticipated (1) as
bystanders for consumer uses such as aftermarket brakes and (2) in
consumer uses and occupational uses given that
[[Page 22005]]
the risk evaluation presented information indicating that children 16
years of age may engage in these activities.
The results of EPA's evaluation are contained in the risk
evaluation (Ref. 1) and the Economic Analysis (Ref. 2). Copies of these
documents have been placed in the public docket for this action.
This action is preferred over other regulatory options analyzed
because this action prohibits the manufacture (including import),
processing, commercial use, and distribution in commerce of chrysotile
asbestos for the regulated conditions of use as soon as practicable
while providing for a reasonable transition period.
Furthermore, as discussed in Unit I.E.6., EPA's Policy on
Children's Health also applies to this action. Information on how the
Policy was applied is available under ``Children's Environmental
Health'' in the SUPPLEMENTARY INFORMATION unit of this preamble.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution in Commerce, or Use
This action is not a ``significant energy action'' under Executive
Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to
have a significant adverse effect on the supply, distribution or use of
energy. The action is predicted to reduce energy use and is not
expected to reduce energy supply or increase energy prices.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards under NTTAA,
15 U.S.C. 272.
J. Executive Orders 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and 14096:
Revitalizing our Nation's Commitment to Environmental Justice for All
In accordance with Executive Orders 12898 (59 FR 7629, February 16,
1994) and 14096 (88 FR 25251, April 26, 2023), EPA considered the
environmental justice (EJ) conditions that exist prior to this action,
and the likely effects of this action. EPA believes that the human
health or environmental conditions that exist prior to this action
result in or have the potential to result in disproportionate and
adverse human health or environmental effects on communities with EJ
concerns. As summarized in Unit I.E.5. and described more fully in the
Economic Analysis (Ref. 2), the firms that will be subject to
regulation, particularly for the chlor-alkali and sheet gasket use
categories, are often located in areas with a high concentration of
industrial activities that pose a variety of environmental hazards to
surrounding populations. It is not possible to separate potential EJ
concerns currently posed by the use categories being regulated from
other risks in the community that are unrelated to chrysotile asbestos.
Although data are not available on the worker demographics at specific
companies, chemical workers in communities with chlor-alkali facilities
are more likely to be Hispanic, less likely to be a race other than
White or Black, and have higher incomes on average than chemical
workers nationally. Workers in communities with other affected chemical
producers are more likely to be Black and less likely to be Hispanic or
a race other than White or Black than chemical workers nationally.
EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on communities with EJ concerns.
Any disproportionate impacts related to the conditions of use that are
subject to this rule will be reduced, and ultimately eliminated once
all of the prohibitions in the rule take effect. Thus, EJ concerns will
be mitigated compared to the baseline.
EPA conducted outreach to advocates of communities with EJ concerns
that might be subject to disproportionate exposure to chrysotile
asbestos. EPA's EJ consultation occurred from June 1 through August 13,
2021. On June 1 and 9, 2021, EPA held public meetings as part of this
consultation (Ref. 9). See also Unit III.A.1. These meetings were held
pursuant to and in compliance with Executive Order 12898 and Executive
Order 14008, Tackling the Climate Crisis at Home and Abroad (86 FR
7619, February 1, 2021). EPA received several comments following the EJ
meetings. Commenters expressed concerns that consumers who live near
chlor-alkali facilities and Do-It-Yourself (DIY) auto workers could be
exposed unless chrysotile asbestos is banned (Ref. 33). EPA also
acknowledges that there are pre-existing EJ concerns in communities
surrounding some of the affected chlor-alkali facilities and one other
chemical manufacturer in Louisiana and Texas due to high levels of
polluting industrial activities and high proportions of residents who
are people of color (described in more detail in the Economic Analysis
(Ref. 2)). This rule is not expected to affect all of these pre-
existing EJ concerns, since some of the EJ concerns in these
communities result from pollutants other than chrysotile asbestos from
facilities that are not affected by this rule.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and the
EPA will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action meets the
criteria set forth in 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 751
Environmental protection, Chemicals, Export certification,
Hazardous substances, Import certification, Recordkeeping.
Michael S. Regan,
Administrator.
Therefore, for the reasons set forth in the preamble, 40 CFR
chapter I is amended as follows:
PART 751--REGULATION OF CERTAIN CHEMICAL SUBSTANCES AND MIXTURES
UNDER SECTION 6 OF THE TOXIC SUBSTANCES CONTROL ACT
0
1. The authority citation for part 751 continues to read as follows:
Authority: 15 U.S.C. 2605, 15 U.S.C. 2625(l)(4).
0
2. Add a subpart F, consisting of Sec. Sec. 751.501 through 751.515,
to read as follows:
Subpart F--Chrysotile Asbestos
Sec.
751.501 General.
751.503 Definitions.
751.505 Manufacturing, processing and commercial use of chrysotile
asbestos diaphragms in the chlor-alkali industry.
751.507 Certification of compliance for the chlor-alkali industry.
751.509 Other prohibitions and restrictions of the manufacturing,
processing and commercial use of chrysotile asbestos.
751.511 Interim workplace controls of asbestos exposures.
751.513 Disposal.
751.515 Recordkeeping.
Sec. 751.501 General.
This subpart sets certain restrictions on the manufacture
(including import), processing, distribution in commerce, and
commercial use and disposal of chrysotile asbestos (CASRN 132207-32-0)
to prevent unreasonable risk of injury to health in accordance with
TSCA section 6(a), 15 U.S.C. 2605(a).
Sec. 751.503 Definitions.
The definitions in subpart A of this part apply to this subpart
unless otherwise specified in this section. In
[[Page 22006]]
addition, the following definitions apply to this subpart:
Aftermarket automotive brakes and linings means any automotive
friction brake articles sold in the secondary market as replacement
parts (e.g., brake pads, linings and shoes) used in disc and drum brake
systems on automobiles and trucks.
Article means a manufactured item:
(1) Which is formed to a specific shape or design during
manufacture;
(2) Which has end use function(s) dependent in whole or in part
upon its shape or design during end use; and
(3) Which has either no change of chemical composition during its
end use or only those changes of composition which have no commercial
purpose separate from that of the article, and that result from a
chemical reaction that occurs upon end use of other chemical
substances, mixtures, or articles; except that fluids and particles are
not considered articles regardless of shape or design.
Authorized person means any person specifically authorized by the
owner or operator to enter, and whose duties require the person to
enter, a regulated area.
Chrysotile asbestos is the asbestiform variety of a hydrated
magnesium silicate mineral, with relatively long and flexible
crystalline fibers that are capable of being woven.
Disposal means to discard, throw away, or otherwise complete or
terminate the useful life of chrysotile asbestos, including any
chrysotile asbestos-containing products or articles.
Distribution in commerce has the same meaning as in section 3 of
the Act, but the term does not include distribution of chrysotile
asbestos waste solely for purposes of disposal in accordance with this
Subpart.
Diaphragms means semipermeable diaphragms, which separate the anode
from the cathode chemicals in the production of chlorine and sodium
hydroxide (caustic soda).
Gasket means an article used to form a leakproof seal between fixed
components.
Membrane technology means a chlor-alkali production technology that
uses chlorine production cells in which the anode and the cathode are
separated by an ion-exchange membrane that is designed to allow only
sodium ions and some water to pass through it.
Nuclear material means any source material, special nuclear
material, or byproduct material (as such terms are defined in the
Atomic Energy Act of 1954, as amended, and regulations issued under
such Act).
Oilfield brake blocks means the friction brake blocks component in
drawworks used in the hoisting mechanism for oil well drilling rigs.
Other gaskets means gaskets other than sheet gaskets in chemical
production, to include gaskets used in the exhaust systems of utility
vehicles.
Other vehicle friction products means friction articles such as
brakes and clutches, other than aftermarket automotive brakes and
linings, installed on any vehicle, including on off-road vehicles,
trains, planes, etc. Other vehicle friction products does not include
articles used in the NASA Super Guppy Turbine aircraft, a specialty
cargo plane used for the transportation of oversized equipment that is
owned and operated by the National Aeronautics and Space Administration
(NASA).
Owner or operator means any person who owns, leases, operates,
controls, or supervises a workplace covered by this subpart.
Potentially exposed person means any person who may be
occupationally exposed to a chemical substance or mixture in a
workplace as a result of a condition of use of that chemical substance
or mixture.
Processing has the same meaning as in section 3 of the Act, but the
term does not include processing of chrysotile asbestos waste solely
for purposes of disposal in accordance with this subpart.
Regulated area means an area established by the regulated entity to
demarcate where airborne concentrations of a specific chemical
substance exceed, or there is a reasonable possibility they may exceed,
the ECEL.
Savannah River Site means the Department of Energy's nuclear waste
management and related national defense operations at its Savannah
River Site in Aiken, Barnwell and Allendale counties in South Carolina,
including operations at H-Canyon, F and H Tank Farms, Defense Waste
Processing Facility, Savannah River National Laboratory and any on-site
facility managed by Savannah River Nuclear Solutions.
Sheet gaskets in chemical production means gaskets cut from
sheeting, including asbestos-containing rubberized sheeting, that are
used in facilities for extreme condition applications such as titanium
dioxide manufacturing, or processing nuclear material.
Sec. 751.505 Manufacturing, processing, distribution in commerce and
commercial use of chrysotile asbestos diaphragms in the chlor-alkali
industry.
(a) After May 28, 2024, all persons are prohibited from manufacture
(including import) of chrysotile asbestos, including any chrysotile
asbestos-containing products or articles, for diaphragms in the chlor-
alkali industry.
(b) After May 28, 2029, all persons are prohibited from processing,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
diaphragms in the chlor-alkali industry, except as provided in
paragraphs (c) through (d) of this section.
(c) Any person who meets all of the criteria of this paragraph (c)
may process, distribute in commerce and commercially use chrysotile
asbestos, including any chrysotile asbestos-containing products or
articles, for diaphragms in the chlor-alkali industry at no more than
two facilities until May 25, 2032:
(1) On May 28, 2024, the person owns or operates more than one
facility that uses chrysotile asbestos in chlor-alkali production;
(2) The person is converting more than one facility that the person
owns or operates that as of May 28, 2024 uses chrysotile asbestos in
chlor-alkali production from the use of chrysotile asbestos diaphragms
to non-chrysotile asbestos membrane technology, and by May 28, 2029,
the person has ceased all processing, distribution in commerce and
commercial use of chrysotile asbestos at one (or more) facility
undergoing or that has undergone conversion to non-chrysotile asbestos
membrane technology; and
(3) The person certifies to EPA compliance with the provisions of
this paragraph, in accordance with Sec. 751.507.
(d) Any person who meets all of the criteria of this paragraph (d)
may process, distribute in commerce and commercially use chrysotile
asbestos, including any chrysotile asbestos-containing products or
articles, for diaphragms in the chlor-alkali industry at not more than
one facility until May 26, 2036:
(1) On May 28, 2024, the person owns or operates more than two
facilities that use chrysotile asbestos in chlor-alkali production; and
(2) The person is converting more than two facilities that the
person owns or operates that as of May 28, 2024 use chrysotile asbestos
in chlor-alkali production from the use of chrysotile
[[Page 22007]]
asbestos diaphragms to non-chrysotile asbestos membrane technology:
(i) By May 28, 2029, the person has ceased all processing,
distribution in commerce and commercial use of chrysotile asbestos at
one (or more) facility undergoing or that has undergone such
conversion; and
(ii) By May 25, 2032 the person has ceased all processing,
distribution in commerce and commercial use of chrysotile asbestos at
two (or more) facilities undergoing or that have undergone conversion
to non-chrysotile asbestos membrane technology; and
(3) The person certifies to EPA compliance with the provisions of
this paragraph, in accordance with Sec. 751.507.
Sec. 751.507 Certification of compliance for the chlor-alkali
industry.
(a) In addition to meeting the requirements of Sec. Sec.
751.505(c), any person who processes, distributes in commerce or
commercially uses chrysotile asbestos for diaphragms in the chlor-
alkali industry between May 28, 2029 and May 25, 2032 must:
(1) Certify to EPA their compliance with all requirements of Sec.
751.505(c); and
(2) Provide the following information to EPA to support their
compliance with the requirements of Sec. 751.505(c):
(i) Identification of the facility for which, by May 28, 2029, the
person has ceased all processing, distribution in commerce and
commercial use of chrysotile asbestos, pursuant to Sec. 751.505(c)(2),
including:
(A) facility name, location, and mailing address;
(B) name of facility manager or other contact, title, phone number
and email address; and
(C) date the person ceased all processing, distribution in commerce
and commercial use of chrysotile asbestos at the facility.
(ii) Identification of the facility or facilities (no more than two
facilities) for which the person will after May 28, 2029, continue to
process, distribute in commerce and commercially use chrysotile
asbestos diaphragms while the facility or facilities are being
converted to non-chrysotile asbestos membrane technology, pursuant to
Sec. 751.505(c), including for each facility:
(A) facility name, location, and mailing address; and
(B) name of facility manager or other contact, title, phone number
and email address.
(b) In addition to meeting the requirements of paragraph (a) of
this section and Sec. Sec. 751.505(d), any person who processes,
distributes in commerce or commercially uses chrysotile asbestos for
diaphragms in the chlor-alkali industry between May 25, 2032 and May
26, 2036 must:
(1) Certify to EPA their compliance with all requirements of Sec.
751.505(d); and
(2) Provide the following information to EPA to support their
compliance with the requirements of Sec. 751.505(d):
(i) Identification of the facility identified in Sec.
751.505(d)(2)(ii) at which as of May 25, 2032, the person has ceased
all processing, distribution in commerce and commercial use of
chrysotile asbestos, including:
(A) facility name, location, and mailing address;
(B) name of facility manager or other contact, title, phone number
and email address; and
(C) date the person has ceased all processing, distribution in
commerce and commercial use of chrysotile asbestos at the facility.
(ii) Identification of the facility at which the person will
between May 25, 2032 and no later than May 26, 2036, continue to
process, distribute in commerce and commercially use chrysotile
asbestos diaphragms while the facility is being converted to non-
chrysotile asbestos membrane technology pursuant to Sec. 751.505(d),
including:
(A) facility name, location, and mailing address; and
(B) name of facility manager or other contact, title, phone number
and email address.
(c) The certification required by paragraphs (a) and (b) of this
section must be signed and dated by a responsible corporate officer.
For the purpose of this section, a responsible corporate officer means:
a president, secretary, treasurer, or vice-president of the corporation
in charge of chlor-alkali operations, or any other person who performs
similar policy or decision-making functions for the corporation.
(d) Any person signing a document under paragraph (c) of this
section shall also make the following certification:
``I certify under penalty of law that this document was prepared
under my direction or supervision, and the information is, to the
best of my knowledge and belief, true, accurate, and complete. I am
aware it is unlawful to knowingly submit incomplete, false and/or
misleading information and there are criminal penalties for such
conduct.''
(e) This certification must be submitted to the Director, Office of
Pollution Prevention and Toxics (OPPT), using the address specified at
40 CFR 700.17(a).
(1) The certification under paragraph (a) of this section must be
submitted no later than 10 business days after May 28, 2029; and
(2) The certification under paragraph (b) of this section must be
submitted no later than 10 business days after May 25, 2032.
Sec. 751.509 Other prohibitions and restrictions on the
manufacturing, processing, distribution in commerce and commercial use
of chrysotile asbestos.
(a) After May 27, 2026, all persons are prohibited from
manufacturing (including importing), processing, distributing in
commerce, and commercial use of chrysotile asbestos, including any
chrysotile asbestos-containing products or articles, for use in sheet
gaskets for chemical production, except as provided in paragraphs (b)
and (c) of this section. Any sheet gaskets for chemical production
which are already installed for use on May 27, 2026 are not subject to
the distribution in commerce and commercial use prohibitions.
(b) Any person may commercially use chrysotile asbestos sheet
gaskets for titanium dioxide production until May 28, 2029.
(c)(1)(i) Any person may commercially use chrysotile asbestos sheet
gaskets for processing nuclear material until May 28, 2029.
(ii) Any person may commercially use chrysotile asbestos sheet
gaskets for processing nuclear material at the Savannah River Site
until December 31, 2037.
(2) After November 25, 2024, any person commercially using
chrysotile asbestos sheet gaskets for processing nuclear material
pursuant to (c)(1)(i) and (ii) must have in place exposure controls
expected to reduce exposure of potentially exposed persons to asbestos,
and provide potentially exposed persons in the regulated area where
chrysotile asbestos sheet gasket replacement is being performed a full-
face air purifying respirator with a P-100 (HEPA) cartridge (providing
an assigned protection factor of 50), or other respirator that provides
a similar or higher level of protection to the wearer.
(3)(i) Any sheet gaskets for processing nuclear material which are
already installed for use on May 28, 2029 are not subject to the
distribution in commerce and commercial use prohibitions in paragraphs
(a) of this section.
(ii) Any sheet gaskets for processing nuclear material at the
Savannah River Site which are already installed for use on December 31,
2037, are not subject
[[Page 22008]]
to the distribution in commerce and commercial use prohibitions in
paragraphs (a) of this section.
(d) After November 25, 2024, all persons are prohibited from
manufacturing (including importing), processing, distribution in
commerce and commercial use of chrysotile asbestos, including any
chrysotile asbestos-containing products or articles, for commercial use
of:
(1) Oilfield brake blocks;
(2) Aftermarket automotive brakes and linings;
(3) Other vehicle friction products; and
(4) Other gaskets.
(e) After November 25, 2024, all persons are prohibited from the
manufacturing (including importing), processing, and distribution in
commerce of chrysotile asbestos, including any chrysotile asbestos-
containing products or articles, for consumer use of:
(1) Aftermarket automotive brakes and linings; and
(2) Other gaskets.
(f) On November 25, 2024:
(1) Any aftermarket automotive brakes and linings, other vehicle
friction products, and other gaskets which are already installed for
commercial use are not subject to the prohibitions on distribution in
commerce and commercial use under paragraph (d) of this section.
(2) Any aftermarket automotive brakes and linings, and other
gaskets which are already installed for consumer use are not subject to
the distribution in commerce prohibition under paragraph (e) of this
section.
Sec. 751.511 Interim workplace controls of chrysotile asbestos
exposures.
(a) Applicability. This section applies to processing and
commercial use of chrysotile asbestos, including any chrysotile
asbestos-containing products or articles, for chrysotile asbestos
diaphragms in the chlor-alkali industry; and to the commercial use of
chrysotile asbestos sheet gaskets for titanium dioxide production.
(b) Interim Existing Chemical Exposure Limit (ECEL). Beginning
November 25, 2024, the owner or operator must ensure that no person is
exposed to an airborne concentration of chrysotile asbestos in excess
of the interim ECEL for chrysotile asbestos of 0.005 fibers (f)/cubic
centimeter (cc) as an eight (8)-hour time-weighted average (TWA). Where
an owner or operator cannot demonstrate exposure at or below the ECEL,
including through the use of all technically feasible engineering
controls or work practices as described in paragraph (e)(1) of this
section, and has not demonstrated that it has appropriately
supplemented with respiratory protection that complies with the
requirements of paragraph (f) of this section, this will constitute a
failure to comply with the ECEL.
(c) Exposure monitoring--(1) In general. (i) Owners or operators
must determine each potentially exposed person's exposure from personal
breathing zone air samples that are representative of the 8-hour TWA
exposure of each potentially exposed person.
(ii) Representative 8-hour TWA of a potentially exposed person's
exposure must be determined on the basis of one or more samples
representing full-shift exposures for each shift for each potentially
exposed person in each job classification in each work area.
(2) Initial exposure monitoring. No later than November 25, 2024
each owner or operator covered by paragraph (a) of this section as of
May 28, 2024, must perform initial exposure monitoring of all
potentially exposed persons.
(3) Periodic exposure monitoring. The owner or operator must
establish an exposure monitoring program for periodic monitoring of
exposure to chrysotile asbestos. If one or more samples representing
full-shift exposures from the most recent exposure monitoring exceeds
the ECEL (>0.005 f/cc 8-hour TWA), periodic exposure monitoring is
required within three months of the most recent exposure monitoring.
Otherwise, periodic exposure monitoring is required within six months
of the most recent exposure monitoring.
(4) Additional exposure monitoring. The owner or operator must
conduct additional exposure monitoring within a reasonable timeframe
after there has been a change in the production, process, control
equipment, personnel or work practices that may result in new or
additional exposures above the ECEL or the owner or operator has any
reason to suspect that a change may result in new or additional
exposures above the ECEL.
(5) Method of monitoring. (i) Exposure monitoring samples must be
personal breathing zone samples collected and analyzed using methods
and quality control procedures described in Appendix A to 29 CFR
1910.1001, or as referenced in Appendix A to 29 CFR 1910.1001 (Appendix
B to 29 CFR 1910.1001, OSHA method ID-160, or the NIOSH 7400 method).
(ii) Owners or operators must use exposure monitoring methods that
conform with the OSHA Reference Method specified in Appendix A of 29
CFR 1910.1001 or an equivalent method. If an equivalent method is used,
the owner or operator must ensure that the method meets the following
criteria:
(A) Replicate exposure data used to establish equivalency are
collected in side-by-side field and laboratory comparisons; and
(B) The comparison indicates that 90% of the samples collected in
the range 0.5 to 2.0 times the ECEL or the lowest concentration
possible have an accuracy range of plus or minus 25 percent of the OSHA
Reference Method specified in Appendix A of 29 CFR 1910.1001 at a 95
percent confidence level as demonstrated by a statistically valid
protocol. The NIOSH 7402 analytical method may be applied to adjust the
analytical result to include only chrysotile asbestos.
(6) Notification of exposure monitoring results. (i) The owner or
operator must, within 15 business days of receipt of monitoring
results, notify each potentially exposed person of these results either
individually in writing or by posting the results in an appropriate
location that is accessible to all potentially exposed persons. The
notice must be in plain language and understandable to all potentially
exposed persons.
(ii) The written notification required by paragraph (c)(6)(i) of
this section must include the corrective action being taken by the
owner or operator to reduce exposure to or below the ECEL, wherever
monitoring results indicated that the ECEL had been exceeded.
(d) Regulated areas--(1) Establishment. Beginning November 25, 2024
the owner or operator must establish regulated areas wherever airborne
concentrations of chrysotile asbestos exceed, or there is a reasonable
possibility that they may exceed, the ECEL.
(2) Demarcation. The owner or operator must demarcate regulated
areas from the rest of the workplace in a manner that minimizes the
number of persons who will be exposed to chrysotile asbestos.
(3) Access. The owner or operator must limit access to regulated
areas to authorized persons or other persons required by work duties to
be present in regulated areas.
(4) Provision of respirators. The owner or operator must supply a
respirator selected in accordance with paragraph (f) of this section to
each person entering a regulated area and must require the use of such
respirator.
(5) Prohibited activities. The owner or operator must ensure that
persons do
[[Page 22009]]
not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in the
regulated area.
(e) Exposure Control Procedures and Plan--(1) Exposure Controls.
(A) The owner or operator must institute engineering controls and work
practices to reduce and maintain airborne chrysotile asbestos
concentrations to or below the ECEL, except to the extent that the
owner or operator can demonstrate that such controls are not feasible.
(B) Wherever the feasible engineering controls and work practices
that can be instituted are not sufficient to reduce airborne chrysotile
asbestos concentrations to or below the ECEL, the owner or operator
must use them to reduce exposures to the lowest levels achievable by
these controls. If the feasible engineering controls and work practices
cannot reduce exposures to or below the ECEL, the owner or operator
must supplement the controls by providing and requiring the use of
respiratory protection that complies with the requirements of paragraph
(f) of this section.
(2) Exposure Control Plan Requirements. (i) Beginning March 28,
2025, when the airborne chrysotile asbestos concentrations exceed the
ECEL, or are reasonably expected to exceed the ECEL, owners and
operators must establish and implement an exposure control plan to
reduce exposures to all potentially exposed persons to or below the
ECEL by means of engineering controls and work practices, and by the
use of respiratory protection where required under paragraph (e)(1)(B)
of this section. The exposure control plan must be available to persons
exposed to chrysotile asbestos.
(ii) The exposure control plan must be reviewed and updated as
necessary, but at least annually, to reflect any significant changes in
the status of the owner or operator's compliance with the requirements
of this section.
(iii) The owner or operator must not implement a schedule of
personnel rotation as a means of compliance with the ECEL.
(iv) The exposure control plan must include:
(A) An explanation of the exposure controls considered, a rationale
for why exposure controls were selected or not selected, based on
feasibility, effectiveness, and other relevant considerations;
(B) Descriptions of actions the owner or operator must take to
implement the exposure controls selected, including proper
installation, maintenance, training, or other actions, and the
estimated timeline for implementing such controls;
(C) Description of activities conducted by the owner or operator to
review and update the exposure control plan to ensure effectiveness of
the exposure controls, identify any necessary updates to the exposure
controls, and confirm that all persons are properly implementing the
exposure controls; and
(D) An explanation of the procedures for responding to any change
that may reasonably be expected to introduce additional sources of
exposure to chrysotile asbestos, or otherwise result in increased
exposure to chrysotile asbestos, including procedures for implementing
corrective actions to mitigate exposure to chrysotile asbestos.
(f) Respiratory protection--(1) Method of Compliance. Beginning
November 25, 2024, if an owner or operator is required to provide
respiratory protection pursuant to paragraphs (d)(4) or (e)(1)(B) of
this section, the owner or operator must provide each potentially
exposed person with a respirator according to the requirements of this
section.
(2) Respirator program. For purposes of this paragraph (f)(2), the
cross-referenced provisions in 29 CFR 1910.134 applying to an
``employee'' also apply equally to potentially exposed persons, and
provisions applying to an ``employer'' also apply equally to owners or
operators.
(i) Owners and operators must select respiratory protection that
properly fits each affected person and communicate respirator
selections to each affected person consistent with the requirements of
29 CFR 1910.134(f) and 1910.134 App. A.
(ii) Owners and operators must provide, ensure use of, and maintain
(in a sanitary, reliable, and undamaged condition) respiratory
protection that is of safe design and construction for the applicable
condition of use consistent with the requirements of 29 CFR 1910.134(g)
through (j) and 1910.134 App. B-1 to B-2.
(iii) Prior to or at the time of initial assignment to a job
involving potential exposure to chrysotile asbestos, owners and
operators must provide training and retraining to all persons required
to use respiratory protection consistent with 29 CFR 1910.134(k).
(3) Respirator selection. Owners or operators must select and
provide appropriate respirators based on the most recent exposure
monitoring. The minimum respiratory protection that must be provided is
as follows:
(i) If the most recent exposure monitoring indicates that the
exposure concentration is at or below the 0.005 f/cc (ECEL): no
respiratory protection is required.
(ii) If the most recent exposure monitoring indicates that the
exposure concentration is above 0.005 f/cc (ECEL) and less than or
equal to 0.05 f/cc (10 times the ECEL):
(A) A half-mask supplied-air respirator (SAR) or airline respirator
operated in demand mode; or
(B) A half-mask self-contained breathing apparatus (SCBA)
respirator operated in demand mode (Assigned Protection Factor 10).
(iii) If the most recent exposure monitoring indicates that the
exposure concentration is above 0.05 f/cc (10 times the ECEL) and less
than or equal to 0.125 f/cc (25 times the ECEL): A loose fitting
facepiece supplied-air respirator (SAR) or airline respirator operated
in continuous flow mode (Assigned Protection Factor 25).
(iv) If the most recent exposure monitoring indicates that the
exposure concentration is above 0.125 f/cc (25 times the ECEL) and less
than or equal to 0.25 f/cc (50 times the ECEL):
(A) A full facepiece supplied-air respirator (SAR) or airline
respirator operated in demand mode; or
(B) A half-mask supplied-air respirator (SAR) or airline respirator
operated in continuous flow mode; or
(C) A half-mask supplied-air respirator (SAR) or airline respirator
operated in pressure-demand or other positive-pressure mode; or
(D) A full facepiece self-contained breathing apparatus (SCBA)
respirator operated in demand mode; or
(E) A helmet/hood self-contained breathing apparatus (SCBA)
respirator operated in demand mode (Assigned Protection Factor 50).
(v) If the most recent exposure monitoring indicates that the
exposure concentration is above 0.25 f/cc (50 times the ECEL) and less
than or equal to 5 f/cc (1,000 times the ECEL): A full-facepiece
supplied-air respirator (SAR) or airline respirator operated in
pressure-demand or other positive-pressure mode (Assigned Protection
Factor 1,000).
(vi) If the most recent exposure monitoring indicates that the
exposure concentration is above 5 f/cc (1,000 times the ECEL) and less
than or equal to 50 f/cc (10,000 times the ECEL):
(A) A full-facepiece self-contained breathing apparatus (SCBA)
respirator operated in pressure-demand or other positive-pressure mode;
or
(B) A helmet/hood self-contained breathing apparatus (SCBA)
respirator operated in pressure-demand or other positive-pressure mode
(Assigned Protection Factor 10,000).
[[Page 22010]]
(vii) The respiratory protection requirements in paragraph (f)(3)
of this section represent the minimum respiratory protection
requirements, such that any respirator affording a higher degree of
protection than the required respirator may be used.
(g) Workplace information and training. (1) By November 25, 2024,
the owner or operator must institute a training program and ensure that
persons potentially exposed to chrysotile asbestos participate in the
program according to the requirements of this paragraph (g).
(2) The owner or operator must train each potentially exposed
person prior or at the time of a potential exposure to chrysotile
asbestos and at least annually thereafter.
(3) The owner or operator must ensure that information and training
is presented in a manner that is understandable to each person required
to be trained.
(4) The following information and training must be provided to all
persons potentially exposed to chrysotile asbestos:
(i) The health effects associated with exposure to chrysotile
asbestos, based on the most recent publication by EPA, OSHA, NIOSH,
and/or CDC;
(ii) The quantity, location, manner of use, release, and storage of
chrysotile asbestos and the specific operations in the workplace that
could result in exposure to chrysotile asbestos, noting where each
regulated area is located;
(iii) The specific procedures implemented to control exposures and
manage occupational risks to persons potentially exposed to chrysotile
asbestos, such as engineering controls, work practices and personal
protective equipment to be used; and
(iv) The requirements of this section, as well as how to access or
obtain a copy of these regulations.
(5) Whenever there are workplace changes, such as modifications of
tasks or procedures or the institution of new tasks or procedures, or
when the airborne concentration of chrysotile asbestos increases, or
when the exposure control plan is updated according to paragraph
(e)(2)(ii) of this section, the owner or operator must update the
training and re-train each potentially exposed person.
Sec. 751.513 Disposal.
(a) After November 25, 2024, all persons disposing of chrysotile
asbestos and any chrysotile asbestos-containing products or articles
subject to Sec. 751.505, must dispose of chrysotile asbestos and any
chrysotile asbestos-containing products or articles, as applicable:
(1) In accordance with the Asbestos General Industry Standard--(29
CFR 1910.1001(k)).
(2) In conformance with the asbestos waste disposal requirements at
40 CFR 61.150.
(b) After November 25, 2024, all persons disposing of chrysotile
asbestos and any chrysotile asbestos-containing products or articles
subject to paragraphs (a) through (c) of Sec. 751.509 must dispose of
chrysotile asbestos and any chrysotile asbestos-containing products or
articles, as applicable:
(1) In accordance with the Asbestos Safety and Health Regulations
for Construction--(29 CFR 1926.1101)
(2) [Reserved]
(c) After November 25, 2024, all persons disposing of chrysotile
asbestos and any chrysotile asbestos-containing products or articles
subject to Sec. 751.509(d) must dispose of chrysotile asbestos and any
chrysotile asbestos-containing products or articles, as applicable:
(1) In accordance with the Asbestos General Industry Standard--(29
CFR 1910.1001).
(2) In conformance with the asbestos waste disposal requirements at
40 CFR 61.150.
(d) After November 25, 2024, each manufacturer (including
importer), processor, and distributor of chrysotile asbestos, including
any chrysotile asbestos-containing products or articles, for consumer
use, disposing of chrysotile asbestos and any chrysotile asbestos-
containing products or articles subject to Sec. 751.509(e), must
dispose of chrysotile asbestos and any chrysotile asbestos-containing
products or articles, as applicable:
(1) In accordance with the Asbestos General Industry Standard at 29
CFR 1910.1001(k).
(2) In conformance with the asbestos waste disposal requirements at
40 CFR 61.150.
Sec. 751.515 Recordkeeping.
(a) General records. After November 25, 2024, all persons who
manufacture (including import), process, or distribute in commerce or
engage in commercial use of chrysotile asbestos must maintain ordinary
business records, such as invoices and bills-of-lading related to
compliance with the prohibitions, restrictions, and other provisions of
this subpart.
(b) Certification of compliance for chlor-alkali industry records.
Persons required pursuant to Sec. 751.507 to certify compliance with
Sec. 751.505 must:
(1) Retain records of certifications prepared to comply with Sec.
751.507 and records to substantiate such certifications; and
(2) Make the records retained pursuant to paragraph (b)(1) of this
section available to EPA for inspection.
(c) Interim workplace controls of chrysotile asbestos exposures
records--(1) Exposure monitoring. For each monitoring event, owners or
operators subject to the exposure monitoring required by Sec.
751.511(c) must document, retain records of the following and make them
available to EPA for inspection:
(i) Dates, duration, and results of each sample taken;
(ii) The quantity, location(s) and manner of chrysotile asbestos
use at the time of each monitoring event;
(iii) All measurements that may be necessary to determine sampling
conditions that may have affected the monitoring results;
(iv) Name, address, work shift, job classification, work area, and
type of respiratory protection (if any) of each monitored person;
(vi) Sampling and analytical methods used and documentation of
compliance with the quality control procedures described in Sec.
751.511(c)(5)(i) and (ii); and
(vii) Notification of exposure monitoring results in accordance
with Sec. 751.511(c)(6).
(2) Other requirements. Owners or operators subject to the interim
workplace controls described in Sec. 751.511 must retain records and
make them available to EPA for inspection of:
(i) The exposure control plan and its implementation as required by
Sec. 751.511(e).
(ii) Respiratory protection used and program implementation as
described in Sec. 751.511(f); and
(iii) Information and training provided by the owner or operator as
required by Sec. 751.511(g).
(d) Disposal records. Each person, except a consumer, who disposes
of any chrysotile asbestos and any chrysotile asbestos-containing
products or articles subject to Sec. 751.513, after November 25, 2024
must retain in one location at the headquarters of the company, or at
the facility for which the records were generated, documentation
showing any records related to any disposal of chrysotile asbestos and
any chrysotile asbestos-containing products or articles generated
pursuant to, or otherwise documenting compliance with, regulations
specified in Sec. 751.513.
(e) Retention. The documentation in this section must be retained
for 5 years from the date of generation.
[FR Doc. 2024-05972 Filed 3-27-24; 8:45 am]
BILLING CODE 6560-50-P