Proposed Rule2022-07601
Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain Conditions of Use Under Section 6(a) of the Toxic Substances Control Act (TSCA)
Primary source
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Published
April 12, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing a rule under the Toxic Substances Control Act (TSCA) to address the unreasonable risk of injury to health it has identified for conditions of use of chrysotile asbestos following completion of the TSCA Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos. TSCA requires that EPA address the unreasonable risks of injury to health and environment by rule and to apply requirements to the extent necessary so that chrysotile asbestos no longer presents such risks. Therefore, to address the unreasonable risk identified in the TSCA Risk Evaluation for Asbestos, Part 1 from chrysotile asbestos, EPA is proposing 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, chrysotile asbestos-containing sheet gaskets used in chemical production, 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 also is proposing 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 is also proposing disposal and recordkeeping requirements for these conditions of use.
Full Text
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[Federal Register Volume 87, Number 70 (Tuesday, April 12, 2022)]
[Proposed Rules]
[Pages 21706-21738]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07601]
[[Page 21705]]
Vol. 87
Tuesday,
No. 70
April 12, 2022
Part II
Environmental Protection Agency
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40 CFR Part 751
Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain Conditions
of Use Under Section 6(a) of the Toxic Substances Control Act (TSCA);
Proposed Rule
Federal Register / Vol. 87 , No. 70 / Tuesday, April 12, 2022 /
Proposed Rules
[[Page 21706]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 751
[EPA-HQ-OPPT-2021-0057; FRL-8332-02-OCSPP]
RIN 2070-AK86
Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain
Conditions of Use Under Section 6(a) of the Toxic Substances Control
Act (TSCA)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing a rule
under the Toxic Substances Control Act (TSCA) to address the
unreasonable risk of injury to health it has identified for conditions
of use of chrysotile asbestos following completion of the TSCA Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos. TSCA requires
that EPA address the unreasonable risks of injury to health and
environment by rule and to apply requirements to the extent necessary
so that chrysotile asbestos no longer presents such risks. Therefore,
to address the unreasonable risk identified in the TSCA Risk Evaluation
for Asbestos, Part 1 from chrysotile asbestos, EPA is proposing 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, chrysotile
asbestos-containing sheet gaskets used in chemical production,
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 also is proposing 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 is also proposing disposal and
recordkeeping requirements for these conditions of use.
DATES: Comments must be received on or before June 13, 2022.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2021-0057, using the Federal eRulemaking Portal
at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for
submitting comments. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Due to the
public health concerns related to COVID-19, the EPA Docket Center (EPA/
DC) and Reading Room is open to visitors by appointments. For the
latest status information on EPA/DC services and docket access, visit
<a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
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: <a href="/cdn-cgi/l/email-protection#6126080c0d080f4f1104150413210411004f060e17"><span class="__cf_email__" data-cfemail="db9cb2b6b7b2b5f5abbeafbea99bbeabbaf5bcb4ad">[email protected]</span></a>.
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: <a href="/cdn-cgi/l/email-protection#e3b7b0a0a2ceab8c978f8a8d86a3869382cd848c95"><span class="__cf_email__" data-cfemail="9cc8cfdfddb1d4f3e8f0f5f2f9dcf9ecfdb2fbf3ea">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this proposed 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 proposed 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:
<bullet> Oil and Gas Extraction (NAICS code 211).
<bullet> Chemical Manufacturing (NAICS code 325).
<bullet> Fabricated Metal Product Manufacturing (NAICS code 332).
<bullet> Transportation Equipment Manufacturing (NAICS code 336).
<bullet> Gasket, Packing, and Sealing Device Manufacturing (NAICS
code 339991).
<bullet> Motor Vehicle and Motor Vehicle Parts and Supplies
Merchant Wholesalers (NAICS code 4231).
<bullet> Motor Vehicle and Parts Dealers (NAICS code 441).
<bullet> Automotive Repair and Maintenance (NAICS code 8111).
This action may also affect certain entities through pre-existing
import certification and export notification rules under TSCA. Persons
who import any chemical substance governed by TSCA are subject to the
TSCA section 13 (15 U.S.C. 2612) 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 proposed
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 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.
Pursuant to TSCA section 12(a)(2), this proposed rule would apply to
the chemical substance, mixture, or article even if being manufactured,
processed, or distributed in commerce solely for export from the United
States because a determination has been made that the chemical
substance, mixture, or article presents an unreasonable risk to health
within the United States or to the environment of the United States.
If you have any questions regarding the applicability of this
proposed 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 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
[[Page 21707]]
the risk evaluation, under the conditions of use, EPA must by rule
apply one or more requirements listed in section 6(a) to the extent
necessary so that the chemical substance or mixture no longer presents
such risk.
C. What action is the Agency taking?
EPA determined in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos (Ref. 1), that chrysotile asbestos presents an
unreasonable risk of injury to health based upon the following
conditions of use:
<bullet> Processing and Industrial use of Chrysotile Asbestos
Diaphragms in the Chlor-alkali Industry;
<bullet> Processing and Industrial Use of Chrysotile Asbestos-
Containing Sheet Gaskets in Chemical Production;
<bullet> Industrial Use and Disposal of Chrysotile Asbestos-
Containing Brake Blocks in Oil Industry;
<bullet> Commercial Use and Disposal of Aftermarket Automotive
Chrysotile Asbestos-Containing Brakes/Linings;
<bullet> Commercial Use and Disposal of Other Chrysotile Asbestos-
Containing Vehicle Friction Products;
<bullet> Commercial Use and Disposal of Other Chrysotile Asbestos-
Containing Gaskets;
<bullet> Consumer Use and Disposal of Aftermarket Automotive
Chrysotile Asbestos-Containing Brakes/Linings;
<bullet> Consumer Use and Disposal of Other Chrysotile Asbestos-
Containing Gaskets.
A detailed description of these conditions of use is provided in
Unit III.B.2. Accordingly, to address the identified unreasonable risk,
EPA is proposing pursuant to TSCA section 6(a) to prohibit manufacture
(including import), processing, distribution in commerce, and
commercial use of chrysotile asbestos in bulk for or as part of
chrysotile asbestos diaphragms used in the chlor-alkali industry and
chrysotile asbestos-containing sheet gaskets used in chemical
production. EPA is proposing that these prohibitions would take effect
two years after the effective date of the final rule. EPA is also
proposing 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 (not including the NASA Super Guppy Turbine aircraft use), and
other chrysotile asbestos-containing gaskets. EPA is proposing that
these prohibitions would take effect 180 days after the effective date
of the final rule. EPA is further proposing 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 is
proposing that these prohibitions would take effect 180 days after the
effective date of the final rule. EPA is also proposing disposal and
recordkeeping requirements under which regulated parties would document
compliance with certain proposed prohibitions. EPA does not intend the
proposed prohibitions on processing or distribution in commerce to
prohibit any processing or distribution in commerce incidental to
disposal of the chrysotile asbestos waste in accordance with the
proposed requirements.
EPA is requesting public comment on this proposal.
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 (Ref. 1). In that
risk evaluation, EPA determined that chrysotile asbestos presents
unreasonable risk of injury to health under certain conditions of use
evaluated. As a result, EPA is proposing to take action to ensure that
chrysotile asbestos no longer presents such risk for the chrysotile
uses evaluated under part 1 of the risk evaluation. The unreasonable
risk is described in Unit III.B.1. and the conditions of use that are
the subject of this proposed regulation and that were found to drive
the unreasonable risk in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos are described in Unit III.B.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 that can be found in the
rulemaking docket (Ref. 2).
1. Background
Asbestos usage 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 ten chlor-alkali plants in the U.S. that
still use asbestos diaphragms to produce chlorine and sodium hydroxide
(also known as caustic soda). As one of these ten plants is expected to
close in 2022, before the expected effective date of the final rule,
EPA has only estimated the costs and benefits for the nine remaining
plants that would be impacted by this rule. The nine remaining plants
range in age from 40 to 123 years old, although some have had new
capacity added as recently as 16 years ago, and others may have had
recent refurbishments. The share of total production using asbestos
diaphragm cells has been declining over time. The diaphragm cells in
these plants currently represent about one-third of U.S. chlor-alkali
production capacity. EPA's analysis supports a high probability that
these firms will respond to the proposed rule by converting their
asbestos diaphragm cells to membrane cells, which do not use asbestos.
The use of membrane cells has increased over time and they currently
account for nearly half of U.S. capacity. (The remaining capacity uses
non-asbestos diaphragms or other miscellaneous processes.) A more
detailed discussion of the expected impacts of conversion from
asbestos-containing diaphragm cells to membrane cells, which use an
increased concentration of per- and polyfluoroalkyl substances (PFAS)
compounds relative to the amount of PFAS compounds contained in
asbestos-containing diaphragms, is located in Unit III.B.4.
Converting the asbestos diaphragm cells to membrane cells in
response to the proposed rule is predicted to require an incremental
investment of approximately $1.8 billion across all nine plants
predicted to be using asbestos diaphragms when the rule goes
[[Page 21708]]
into effect. Membrane cells are much more energy efficient than
diaphragm cells, so, despite the upfront capital cost, that conversion
is expected to result in significant savings that would accrue over
many years. The expected energy savings are 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 diaphragm cells. EPA anticipates that most of the
conversions to membrane cells would occur in the coming decades even
without the proposed 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 proposed rule on the
chlor-alkali industry over a 20-year period using a 3 percent discount
rate is estimated to range from an annualized cost of about $49 million
per year to annualized savings of approximately $35 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 ranges from a cost
of $87 million per year to savings of approximately $40,000 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 $4 per brake). The proposed
rule is estimated to result in total annualized costs for aftermarket
automotive brakes of approximately $25,000 per year using a 3% discount
rate and $18,000 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 proposed rule (sheet
gaskets used in chemical production, 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 they are
now used in at most small segments of the industries. For these
remaining categories, EPA requests comment on the number of entities
that manufacture (including import), process, distribute in commerce,
or use products or articles containing asbestos. EPA also requests
comment on the costs of the rule to these entities.
3. Benefits
EPA's Economic Analysis for the rule 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 DIYers related to the rule's
requirements for chlor-alkali diaphragms, sheet gaskets for chemical
production, and aftermarket brakes. The combined national quantified
benefits of avoided cancer cases associated with these products are
approximately $3,100 per year using a 3% discount rate and $1,200 per
year using a 7% discount rate, based on the cancer risk estimates from
the Part 1 risk evaluation. EPA did not estimate the aggregate benefits
of the requirements for 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. Thus, there may be additional unquantified benefits from reducing
exposures associated with these uses.
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)
and immunological and lymphoreticular effects.
In addition to the benefits of avoided adverse health effects
associated with chrysotile asbestos exposure, the proposed 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. Since membrane
cells are more energy efficient than diaphragm cells, converting
diaphragm cells to membrane cells reduces electricity consumption and
thus the level of pollutants associated with electric power generation,
including carbon dioxide, particulate matter, sulfur dioxide, and
nitrogen oxides. Based on a sensitivity screening-level analysis that
EPA conducted, converting asbestos diaphragm cells to membrane cells
could yield tens of millions of dollars per year in environmental and
health benefits from reduced emissions of particulate matter, sulfur
dioxide, nitrogen oxides, and carbon dioxide. 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 as well as
caveats about the limitations of the screening-level analysis that EPA
conducted.
4. Small Entity Impacts
As described in more detail in Unit VIII.C and in the Economic
Analysis of this rulemaking (Ref. 2), EPA estimates that the proposed
rule would affect at least 15 small entities, of which 12 are
businesses supplying aftermarket brakes incurring costs between $778
and $11,523 per firm (depending on the number of brake replacements
they perform). Nine of the brake replacement firms have a cost impact
of less than 1% of their annual revenues. Of the three small entities
estimated to be affected by the rule that are not supplying aftermarket
brakes, two manufacture sheet gaskets for chemical production and one
imports oilfield brake blocks. EPA was unable to estimate the magnitude
of the impacts for these small entities. Chlor-alkali plants account
for nearly all of the quantified costs of the rule, and none of the
firms operating chlor-alkali plants are small businesses. No small
businesses have been identified as using sheet gaskets for chemical
production or brake blocks in the oil industry, but small businesses do
supply these products to end users that are not small. Asbestos-free
products in these applications reportedly do not last as long as items
containing asbestos. As a result, the proposed 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. For the remaining use categories (aftermarket automotive
brakes, other gaskets, and other vehicle friction products), EPA has
not identified firms (of any size) manufacturing, processing,
distributing or using products containing asbestos. 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, and any such cost increase can probably be passed on to
consumers. EPA requests public comments regarding the number of small
businesses subject to the rule, including use categories for which EPA
did not identify any affected small businesses, and on the potential
impacts of the rule on these small businesses.
5. Environmental Justice
This rule would increase the level of environmental protection for
all affected populations without having any disproportionately high and
adverse
[[Page 21709]]
health or environmental effects on any population, including any
minority or low-income populations. There are pre-existing
environmental justice concerns in communities surrounding some of the
affected chlor-alkali facilities and one other chemical manufacturer
affected by this rule due to high levels of polluting industrial
activities and a high proportion of minority residents. This rule is
not expected to increase these pre-existing environmental justice
concerns. Unit III.A.1 discusses outreach conducted to advocates of
minority or low-income communities that might be subject to
disproportionate exposure to chrysotile asbestos.
Both asbestos-containing diaphragm cells and membrane cells use
per- and polyfluorinated substances (PFAS) compounds. EPA lacks
information to determine whether this proposed regulation would
increase usage and associated release of PFAS compounds at chlor-alkali
facilities that currently rely on asbestos-containing diaphragms,
chlor-alkali facilities that do not currently use asbestos-containing
diaphragms that may expand their production as a result of the
regulation, upstream facilities that produce membranes, or upstream
facilities that produce PFAS fibers used in non-asbestos diaphragms.
6. Effects on State, Local, and Tribal Governments
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 Part 1 risk evaluation,
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, it is recognized 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,
where such talc applications fall under TSCA authority, those talc
containing asbestos impurities will be evaluated in Part 2 of the risk
evaluation for asbestos.
This proposed rule would only apply to chrysotile asbestos
(Chemical Abstract Services Registry Number 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
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 [micro]m. 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 domestic mining of asbestos. All imported raw
asbestos is chrysotile asbestos and is used in the manufacture of
chlor-alkali diaphragms. According to the United States Geological
Survey (USGS), 300 metric tons of chrysotile asbestos were imported in
2020 (Ref. 3).
B. Regulatory Actions Pertaining to Chrysotile Asbestos
Chrysotile asbestos is subject to numerous federal laws and
regulations in the United States and is also subject to regulatory
actions by states and other countries. The following is a summary of
the laws and regulatory actions pertaining to chrysotile asbestos
implemented by EPA, other federal agencies, states, and other countries
or via international treaties and agreements. None of these actions
addresses the unreasonable risks under TSCA that this proposed rule
would address. For a full description see the Appendix A of the Risk
Evaluation for Asbestos Part 1: Chrysotile Asbestos (Ref. 1).
1. EPA Actions Pertaining to Chrysotile Asbestos
EPA has taken the following actions pertaining to chrysotile
asbestos under its various authorities:
<bullet> Asbestos Hazard Emergency Response Act (AHERA): The
Asbestos-Containing Materials in Schools regulation (40 CFR part 763,
subpart E (1987)) requires local education agencies to inspect their
school buildings for asbestos-containing building material, prepare
asbestos management plans and perform asbestos response actions to
prevent or reduce asbestos hazards. Public school districts and non-
profit private schools, including charter schools and schools
affiliated with religious institutions (collectively called local
education agencies) are subject to the rule's requirements. AHERA
defines asbestos as the asbestiform varieties of chrysotile
(serpentine), crocidolite (riebeckite), amosite (cummingtonite-
grunerite), anthophyllite, tremolite or actinolite.
<bullet> Toxic Substances Control Act: In 1989, EPA issued a final
rule entitled Asbestos: Manufacture, Importation, Processing, and
Distribution in Commerce Prohibitions; Final Rule, (54 FR 29460 (1989))
banning most asbestos-containing products. In 1991, a federal court
vacated and remanded most of the final rule, thereby permitting
manufacture (including import), processing, or distribution in commerce
for the majority of the asbestos-containing products. Corrosion Proof
Fittings v. EPA, 947 F.2d 1201 (5th Cir., 1991). Manufacture (including
import), processing, and distribution in commerce of the following
products remain banned by the rule under TSCA: Corrugated paper,
rollboard, commercial paper, specialty paper, and flooring felt. In
addition, the 1989 rule continues to ban the manufacture (including
import), processing, and distribution in commerce for use of asbestos
in products that have not historically contained asbestos, referred to
in the 1989 rule as ``new uses'' of asbestos, and
[[Page 21710]]
defined by 40 CFR 763.163 as ``commercial uses of asbestos not
identified in part 763.165 the manufacture, importation or processing
of which would be initiated for the first time after August 25, 1989.''
Through the authority of section 6 of TSCA, EPA extended worker
protection requirements to state and local government employees
involved in asbestos work who were not previously covered by existing
Occupational Safety and Health Administration (OSHA) occupational
health standards for asbestos through the Asbestos Worker Protection
Rule (40 CFR part 763, subpart G (2000)).
<bullet> Restriction on Discontinued Uses of Asbestos; Significant
New Use Rule (SNUR). In 2019, EPA promulgated a significant new use
rule under section 5(a)(2) of TSCA to ensure that any discontinued uses
of asbestos cannot reenter commerce without prior EPA review (84 FR
17345, April 25, 2019). These new provisions at 40 CFR 721.11095
require persons subject to the rule to notify EPA at least 90 days
before commencing any manufacturing (including importing) or processing
of asbestos or asbestos-containing products covered under the rule.
These uses are designated significant new uses and, as such, cannot be
resumed unless EPA is notified and makes a required determination and
takes action, as appropriate, under TSCA section 5.
<bullet> Asbestos Information Act of 1988 (AIA): The AIA, Public
Law 100-577, helped provide transparency and identify the companies
making certain types of asbestos-containing products by requiring
manufacturers to report production to the EPA.
<bullet> Emergency Planning and Community Right-To-Know Act
(EPCRA): Under Section 313, the Toxics Release Inventory (TRI) requires
reporting of environmental releases of friable asbestos at a
concentration level of 0.1% or greater. Also, within EPCRA, friable
asbestos is designated as a hazardous substance subject to an Emergency
Release Notification at 40 CFR 355.40 with a reportable quantity of 1
pound.
<bullet> Clean Air Act: Asbestos has been designated a hazardous
air pollutant (HAP) under the CAA. In 1973, EPA promulgated the
Asbestos National Emission Standard for Hazardous Air Pollutants
(NESHAP) (40 CFR part 61, subpart M). The regulation requires, among
other requirements, that some manufacturing and fabricating operations
either cannot emit visible emissions into the outside air or must
follow air cleaning procedures and generally must seal asbestos-
containing waste material from regulated activities in a leak-tight
container while wet, label, and dispose of properly in a landfill
permitted to receive asbestos waste.
<bullet> Clean Water Act (CWA): CWA defines asbestos as a toxic
pollutant per 33 U.S.C. Section 1317. Each toxic pollutant listed in
that section is subject to effluent limitations guidelines based on the
best available technology economically achievable for the applicable
category or class of point sources established in accordance with the
CWA. The effluent limitations guidelines for the asbestos manufacturing
point source category are in 40 CFR part 427.
<bullet> Resource Conservation and Recovery Act (RCRA): RCRA gives
EPA the authority to control hazardous wastes from cradle to grave,
including generation, transportation, treatment, storage and disposal.
Asbestos is not regulated as a hazardous waste under RCRA Subtitle C.
Asbestos is a non-hazardous solid waste regulated under Subtitle D of
RCRA. Regulations established under Subtitle D ban open dumping of
waste and set minimum federal criteria for the operation of municipal
waste and industrial waste landfills, including design criteria,
location restrictions, financial assurance, corrective action
(cleanup), and closure requirements. States play a lead role in
implementing these regulations and may set more stringent requirements.
<bullet> Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA): The Designation of Hazardous Substances Rule
(40 CFR 302.4) designates asbestos as a hazardous substance with a
reportable quantity in Superfund regulations. The regulation also sets
forth reportable quantities for asbestos under the Clean Water Act and
the Resource Conservation and Recovery Act.
<bullet> Safe Drinking Water Act: Established National Primary
Drinking Water Regulations (NPDWR) (40 CFR part 141, subpart G (1991)).
NPDWR are enforceable drinking water standards expressed as Maximum
Contaminant Levels (MCLs) or treatment techniques. The MCLs are the
maximum level of contaminants that are allowed in public water systems
in the United States. In 40 CFR 141.62, EPA set the maximum contaminant
level for asbestos in community water systems and non-transitory, non-
community water systems at 7 million fibers/liter (longer than 10
[micro]m).
2. Other Pertinent Federal Actions Pertaining to Chrysotile Asbestos
Actions by other federal agencies related to chrysotile asbestos
include:
<bullet> Occupational Safety and Health Administration (OSHA). OSHA
has established 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), with an excursion limit of 1.0 asbestos fibers per cubic
centimeter over a 30-minute period. Among other requirements, OSHA
requires assessments of workplaces covered by one of three standards
(General Industry (29 CFR 1910.1001); Shipyards (29 CFR 1915.1001);
Construction (29 CFR 1926.1101)) to be completed to determine if
asbestos is present and if the work will generate airborne fibers.
Further, monitoring is required to detect if asbestos exposure is at or
above the PEL TWA or excursion limit for workers who are, or may be,
expected to be exposed to asbestos. Monitoring frequency depends on
work classification and exposure. Unit II.C. describes EPA's general
approach to considering OSHA occupational health standards in TSCA risk
evaluations and TSCA risk management actions.
<bullet> The National Institute for Occupational Safety and Health
(NIOSH), part of the U.S. Centers for Disease Control and Prevention,
in the U.S. Department of Health and Human Services, is a research
agency focused on the study of worker safety and health. NIOSH has
established a Recommended Exposure Limit (REL) for asbestos. For
asbestos fibers >5 micrometers long and a length-to-width ratio equal
to or greater than 3:1, NIOSH recommends a REL of 100,000 fibers per
cubic meter of air (100,000 f/m3), which is equal to 0.1 fiber per
cubic centimeter of air (f/cc), as determined by a 400-liter air sample
in accordance with NIOSH Analytical Method 7400. NIOSH Pocket Guide to
Chemical Hazards, Appendix C. The NIOSH Recommended Exposure Limit
(REL) is a non-mandatory, recommended occupational exposure limit. This
0.1 f/cc level is consistent with OSHA's PEL, as well as the 0.1 f/cc
Threshold Limit Value (TLV) guidance from the American Conference of
Governmental Industrial Hygienists (ACGIH), a private not-for-profit
scientific association.
<bullet> Consumer Product Safety Commission (CPSC). 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. The CPSC has
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banned or restricted the following asbestos-containing products:
Emberizing materials (ash and embers), patching compounds, and
asbestos-containing garments for general use (16 CFR part 1305; 16 CFR
part 1304 and 16 CFR 1500.17(a)(7)).
<bullet> Mine Safety and Health Administration (MSHA). MSHA adopted
an asbestos standard for exposure limits from airborne contaminants (30
CFR parts 56 and 57 (subpart D)). In these exposure limits, MSHA
identifies respiratory protection requirements for mine workers in both
surface and underground mines (Ref. 1).
3. State Actions Pertaining to Chrysotile Asbestos
Pursuant to AHERA, many states have adopted EPA's Asbestos Model
Accreditation Plan (MAP) (Appendix C to 40 CFR part 763, subpart E) for
asbestos abatement professionals who perform work in schools and public
and commercial buildings. Thirty-nine states have EPA-approved MAP
programs and separately twelve states have also applied to and received
a waiver from EPA to oversee implementation of the Asbestos-Containing
Materials in Schools Rule (40 CFR part 763, subpart E) pursuant to
AHERA. States also implement regulations pursuant to the Asbestos
NESHAP regulations (40 CFR part 61, subpart M). While the asbestos MAP
and asbestos NESHAP regulations set minimum national standards, states
are free to impose more stringent regulations. Also, both California
and Washington prohibit the use of more than 0.1% of asbestos in brake
pads and require laboratory testing of brake pads and labeling to
certify compliance with their regulations.
A list of state regulations that are independent of the federal
AHERA and NESHAP requirements that states implement is in Appendix A of
the Risk Evaluation (Ref. 1).
4. International Actions Pertaining to Chrysotile Asbestos
Asbestos is regulated internationally; nearly 60 nations have
banned or significantly limited the use of asbestos.
The European Union (EU) first prohibited five uses of asbestos in
1991 and added chrysotile asbestos prohibitions for numerous uses in
1999, with a full ban implemented on January 1, 2005. In 2006, the EU
established the Registration, Evaluation, Authorization and Restriction
of Chemicals (REACH) regulation and renewed its position on asbestos
(Regulation (EC) No 1907/2006 of the European Parliament and of the
Council, 18 December 2006). Regulation (EC) No. 2016/1005 amended REACH
Article XVII to formally phase out the use of diaphragms containing
chrysotile asbestos for electrolysis installations (i.e., chlor-alkali
facilities) by July 1, 2025.
Canada promulgated a regulation to ban asbestos effective December
30, 2018 (Ref. 4). The regulation prohibited the import, sale and use
of asbestos, as well as the manufacture, import, sale and use of
products containing asbestos. Canada added several limited exclusions,
including an allowance for the import and use of asbestos for chlor-
alkali facilities using asbestos diaphragm technology until December
31, 2029.
C. Consideration of OSHA Occupational Health Standards in TSCA Risk
Evaluations and TSCA Risk Management Actions
TSCA requires EPA to evaluate whether 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 by the Administrator, under the conditions of
use (COUs). COUs are the circumstances, as determined by the
Administrator, under which a chemical is intended, known, or reasonably
foreseen to be manufactured, processed, distributed in commerce, used,
or disposed of. If EPA determines through risk evaluation that a
chemical substance presents an unreasonable risk, TSCA section 6
requires EPA to issue regulations applying one or more control
requirements to the extent necessary so that the chemical substance no
longer presents such risk. Although EPA must consider, and in some
cases factor in to the extent practicable, non-risk factors as part of
TSCA section 6(a) rulemaking (see TSCA section 6(c)(2)), EPA must
nonetheless still ensure that the selected regulatory requirements
apply ``to the extent necessary so that the chemical substance or
mixture no longer presents [unreasonable] risk.'' This risk-based
requirement is distinguishable from approaches mandated by other laws,
including the Occupational Safety and Health Act (OSH Act), which
includes both significant risk and feasibility (technical and economic)
assessments in its rulemaking.
Congress intended for EPA to consider occupational risks from
chemicals it evaluates under TSCA, among other potential exposures, as
relevant and appropriate. As noted previously, section 6(b) of TSCA
requires EPA to evaluate risks to potentially exposed or susceptible
subpopulations identified as relevant by the Administrator. TSCA
section 3(12) defines the term ``potentially exposed or susceptible
subpopulation'' as ``a group of individuals within the general
population identified by the Administrator who, due to either greater
susceptibility or greater exposure, may be at greater risk than the
general population of adverse health effects from exposure to a
chemical substance or mixture, such as infants, children, pregnant
women, workers, or the elderly.''
The OSH Act similarly requires OSHA to evaluate risk to workers
prior to promulgating new or revised standards and requires OSHA
standards to substantially reduce significant risk to the extent
feasible, even if workers are exposed over a full working lifetime. See
29 U.S.C. 655(b)(5); Indus. Union Dep't, AFL-CIO v. Am. Petroleum
Inst., 448 U.S. 607, 642 (1980) (plurality opinion).
Thus, the standards for chemical hazards that OSHA promulgates
under the OSH Act share a broadly similar purpose with the standards
that EPA promulgates under section 6(a) of TSCA. The control measures
OSHA and EPA require to satisfy the objectives of their respective
statutes may also, in many circumstances, overlap or coincide. However,
as this section outlines, there are important differences between EPA's
and OSHA's regulatory approaches and jurisdiction, and EPA considers
these differences when deciding whether and how to account for OSHA
requirements when evaluating and addressing potential unreasonable risk
to workers so that compliance requirements are clearly explained to the
regulated community. To that end, EPA has also aligned with ancillary
requirements of OSHA standards, to the extent possible, by cross
referencing them.
1. OSHA Requirements
OSHA's mission is to ensure that employees work in safe and
healthful conditions. The OSH Act establishes requirements that each
employer comply with the General Duty Clause of the Act (29 U.S.C.
654(a)), as well as with occupational safety and health standards
issued under the Act.
a. General Duty Clause of the OSH Act
The General Duty Clause of the OSH Act requires employers to keep
their workplace free from recognized hazards that are causing or are
likely to cause death or serious physical harm to employees. The
General Duty Clause is cast in general terms, and does not establish
specific requirements like
[[Page 21712]]
exposure limits, personal protective equipment requirements (PPE), or
other specific protective measures that EPA could potentially consider
when developing its risk evaluations or risk management requirements.
OSHA, under limited circumstances, has cited the General Duty Clause
for exposure to chemicals. To prove a violation of the General Duty
Clause, OSHA must prove employer or industry recognition of the hazard,
the hazard was causing or likely to cause death or serious physical
harm, and a feasible method to eliminate or materially reduce the
hazard was available. In rare situations, OSHA has cited employers for
violation of the General Duty Clause where exposures were below a
chemical-specific PEL. In such situations, OSHA must demonstrate that
the employer had actual knowledge that the PEL was inadequate to
protect its employees from death or serious physical harm. Because of
the heavy evidentiary burden on OSHA to establish violations of the
General Duty Clause, it is not frequently used to cite employers for
employee exposure to chemical hazards.
b. OSHA Standards
OSHA standards are issued pursuant to the OSH Act and are found in
title 29 of the Code of Federal Regulations. There are separate
standards for general industry, construction, maritime and agriculture
sectors, as well as general standards applicable to a number of sectors
(e.g., OSHA's Respiratory Protection standard). OSHA has numerous
standards that apply to chemical manufacturers and processors, as well
as downstream employers whose employees may be occupationally exposed
to hazardous chemicals.
OSHA sets legally enforceable limits on the airborne concentrations
of hazardous chemicals, referred to as permissible exposure limits
(PELs), to protect workers against the health effects of exposure to
hazardous substances (29 CFR 1910 subpart Z, 1915 subpart Z, 1926
subparts D and Z). Under section 6(a) of the OSH Act, OSHA was
permitted an initial two-year window after the passage of the Act to
adopt ``any national consensus standard and any established Federal
standard.'' 29 U.S.C. 655(a). OSHA used this authority in 1971 to
establish PELs that were adopted from federal health standards
originally set by the Department of Labor through the Walsh-Healy Act,
in which approximately 400 occupational exposure limits were selected
based on the American Conference of Governmental Industrial Hygienists
(ACGIH) 1968 list of Threshold Limit Values (TLVs). In addition, about
25 exposure limits recommended by the American Standards Association
(now called the American National Standards Institute) (ANSI) were
adopted as PELs.
Following the two-year window provided under section 6(a) of the
OSH Act for adoption of national consensus and existing Federal
standards, OSHA has issued health standards following the requirements
in section 6(b) of the Act. OSHA has established approximately 30 PELs
under section 6(b)(5) as part of comprehensive substance-specific
standards that include additional requirements for protective measures
such as use of PPE, establishment of regulated areas, exposure
assessment, hygiene facilities, medical surveillance, and training.
These ancillary provisions in substance specific OSHA standards further
mitigate residual risk that could be present due to exposure at the
PEL.
Many OSHA PELs have not been updated since they were established in
1971 (The asbestos PEL was last updated in 1994). Yet, in many
instances, scientific evidence has accumulated suggesting that the
current limits are not sufficiently protective. As stated on OSHA's
annotated PELs web page, OSHA has recognized that many of its PELs are
outdated and inadequate for ensuring protection of worker health (Ref.
5). In addition, health standards issued under section 6(b)(5) of the
OSH Act must reduce significant risk only to the extent that it is
technologically and economically feasible. OSHA's legal requirement to
demonstrate that its section 6(b)(5) standards are technologically and
economically feasible often precludes OSHA from imposing exposure
control requirements sufficient to ensure that the chemical substance
no longer presents a significant risk to workers. In sum, the great
majority of OSHA's chemical standards are outdated or do not eliminate
significant risk contemplated by the Supreme Court's interpretation of
the OSH Act. See Am. Petroleum Inst., 448 U.S. at 655. They would, in
either case, be unlikely to address unreasonable risk to workers within
the meaning of TSCA, since TSCA section 6(b) unreasonable risk
determinations may account for unreasonable risk to more sensitive
endpoints and working populations than OSHA's risk evaluations
typically contemplate, and EPA is obligated to apply TSCA section 6(a)
risk management requirements to the extent necessary so that the
unreasonable risk is no longer presented.
Because the requirements and application of TSCA and OSHA
regulatory analyses differ, it is appropriate that EPA conduct risk
evaluations and, where it finds unreasonable risk to workers, develop
risk management requirements for chemical substances that OSHA also
regulates, and it is expected that EPA's findings and requirements may
sometimes diverge from OSHA's. However, it is also appropriate that EPA
consider the chemical standards that OSHA has already developed, so as
to limit the compliance burden to employers by aligning management
approaches required by the agencies, where alignment will adequately
address unreasonable risk to workers. The following section discusses
EPA's consideration of OSHA standards in its risk evaluation and
management strategies under TSCA.
2. Consideration of OSHA Standards in TSCA Risk Evaluations
When characterizing the risk during risk evaluation under TSCA, EPA
believes it is appropriate to evaluate the levels of risk present in
baseline scenarios where no mitigation measures are assumed to be in
place for the purpose of determining unreasonable risk (see Unit
II.C.2.a). (It should be noted that, there are some cases where
baseline scenarios may reflect certain mitigation measures, such as in
instances where exposure estimates are based on monitoring data at
facilities that have existing engineering controls in place.) In
addition, EPA believes it is appropriate to also evaluate the levels of
risk present in scenarios considering applicable OSHA requirements
(e.g., chemical-specific PELs and/or chemical-specific health standards
with PELs and additional ancillary provisions) as well as scenarios
considering industry or sector best practices for industrial hygiene
that are clearly articulated to the Agency. By characterizing risks
using scenarios that reflect different levels of mitigation, EPA risk
evaluations can help inform potential risk management actions by
providing information that could be used during risk management to
tailor risk mitigation appropriately to address any unreasonable risk
identified (see Unit II.C.2.b and Unit II.C.3).
a. Risk Characterization for Unreasonable Risk Determination
When undertaking unreasonable risk determinations as part of TSCA
risk evaluations, EPA cannot assume as a general matter that an
applicable OSHA requirement or industry practice is consistently and
always properly applied. Mitigation scenarios included in the EPA risk
evaluation (e.g.,
[[Page 21713]]
scenarios considering use of PPE) likely represent what is happening
already in some facilities. However, the Agency cannot assume that all
facilities will have adopted these practices for the purposes of making
the TSCA risk determination.
Therefore, EPA conducts baseline assessments of risk and makes its
determination of unreasonable risk from a baseline scenario that is not
based on an assumption of compliance with OSHA standards, including any
applicable exposure limits or requirements for use of respiratory
protection or other PPE. Making unreasonable risk determinations based
on the baseline scenario should not be viewed as an indication that EPA
believes there are no occupational safety protections in place at any
location, or that there is widespread noncompliance with applicable
OSHA standards. Rather, it reflects EPA's recognition that unreasonable
risk may exist for subpopulations of workers that may be highly exposed
because they are not covered by OSHA standards, such as self-employed
individuals and public sector workers who are not covered by a State
Plan, or because their employer is out of compliance with OSHA
standards, or because EPA finds unreasonable risk for purposes of TSCA
notwithstanding existing OSHA requirements.
b. Risk Evaluation To Inform Risk Management Requirements
In addition to the baseline scenario described previously, EPA risk
evaluations may characterize the levels of risk present in scenarios
considering applicable OSHA requirements (e.g., chemical-specific PELs
and/or chemical-specific health standards with PELs and additional
ancillary provisions) as well as scenarios considering industry or
sector best practices for industrial hygiene that are clearly
articulated to the Agency. EPA's evaluation of risk under scenarios
that, for example, incorporate use of engineering or administrative
controls, or personal protective equipment, serves to inform its risk
management efforts. By characterizing risks using scenarios that
reflect different levels of mitigation, EPA risk evaluations can help
inform potential risk management actions by providing information that
could be used during risk management to tailor risk mitigation
appropriately to address worker exposures where the Agency has found
unreasonable risk. In particular, as discussed below, EPA can use the
information developed during its risk evaluation to determine whether
alignment of EPA's risk management requirements with existing OSHA
requirements or industry best practices will adequately address
unreasonable risk as required by TSCA.
In the TSCA Risk Evaluation for Asbestos, Part 1 for chrysotile
asbestos, EPA presented risk estimates based on workers' exposures with
and without respiratory protection. EPA determined that even when
respirators are used by workers, unreasonable risk would remain in some
of the conditions of use evaluated. In risk management, EPA is not
relying only on the use of respirators to reduce exposures to workers
so that chrysotile asbestos does not present unreasonable risk, since
for some conditions of use respirators are not a viable regulatory
option (e.g., the respirator alone does not reduce exposures enough so
that asbestos does not present unreasonable risk). In addition, EPA is
considering the NIOSH/OSHA hierarchy of controls when developing risk
management actions, and therefore use of respirators might only be
suitable after other steps have been taken by the facilities to reduce
exposures.
3. Consideration of OSHA Standards in TSCA Risk Management Actions
When undertaking risk management actions, EPA: 1. Develops
occupational risk mitigation measures to address any unreasonable risks
identified by EPA, striving for consistency with applicable OSHA
requirements and industry best practices, including appropriate
application of the hierarchy of controls, when those measures would
address an unreasonable risk; and 2. Ensures that EPA requirements
apply to all potentially exposed workers in accordance with TSCA
requirements. Consistent with TSCA section 9(d), EPA consults and
coordinates TSCA activities with OSHA and other relevant Federal
agencies for the purpose of achieving the maximum applicability of TSCA
while avoiding the imposition of duplicative requirements.
Informed by the mitigation scenarios and information gathered
during the risk evaluation and risk management process, the Agency
might propose rules that require risk management practices that may be
already common practice in many or most facilities. Adopting clear,
comprehensive regulatory standards will foster compliance across all
facilities (ensuring a level playing field) and assure protections for
all affected workers, especially in cases where current OSHA standards
may not apply or not be sufficient to address the unreasonable risk.
For evaluation scenarios which involve OSHA chemical-specific PELs,
EPA's risk evaluation in some cases may illustrate that limiting
exposure to OSHA's PEL would result in risk levels below the benchmark
under the TSCA standard under certain conditions of use. In these
cases, TSCA risk management requirements could incorporate and
reinforce requirements in OSHA standards and ensure that risks are
addressed, including for circumstances where OSHA requirements are not
applicable (e.g., public sector workers) by asserting TSCA compliance/
enforcement as well. EPA's risk evaluation may also find unreasonable
risk under TSCA associated with some occupational conditions of use,
even when the applicable OSHA requirements are being met. In these
cases, EPA would need to develop risk management requirements beyond
those included in OSHA's standards.
D. 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), and after receiving public
comment, published a problem formulation in June 2018 (83 FR 26998,
June 11, 2018). In March 2020, EPA released a draft risk evaluation for
asbestos, 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 III.B.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 III.B.1. The chrysotile asbestos conditions of use that EPA
determined drive the chemical substance's unreasonable risk to health
include
[[Page 21714]]
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 there are no conditions of use that drive
unreasonable risk to the environment.
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 will also, in parallel to pursuing
risk management to address unreasonable risk identified in the Risk
Evaluation for Asbestos, Part 1, conduct a Part 2 of the Asbestos Risk
Evaluation: Supplemental Evaluation Including Legacy Uses and
Associated Disposals of Asbestos. 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.
Part 2 of the Risk Evaluation for Asbestos is currently underway.
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).
The Risk Evaluation for Asbestos, Part 2: Supplemental Evaluation
Including Legacy Uses and Associated Disposals of Asbestos will include
evaluation of the legacy uses and associated disposals of chrysotile
asbestos and the five amphibole fiber types described in the TSCA Title
II definition in addition to Libby Amphibole Asbestos (mainly
consisting of tremolite, winchite, and richterite). Additionally, where
EPA identifies reasonably available information demonstrating the
presence of asbestos in talc that fall under TSCA authority, talc
containing asbestos impurities will be evaluated in Part 2.
As part of the problem formulation for asbestos, EPA found that
exposures to the general population may occur from the conditions of
use considered in Part 1 of the asbestos risk evaluation (Ref. 6). EPA
determined, in Part 1 of the asbestos risk evaluation, 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 Part 1 risk
evaluation for 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
Part 1 of the asbestos risk evaluation 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 proposed 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 address exposures to the
general population for the conditions of use evaluated in Part 2 of the
risk evaluation.
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 were 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 (Refs. 1 and 6). However, EPA
expects that any potential exposures to terrestrial species, as with
the general population, would be adequately addressed through the
proposed prohibition on the manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos.
III. Regulatory Approach
A. Background
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:
<bullet> Prohibit, limit, or otherwise restrict, the manufacturing,
processing, or distribution in commerce of the substance or mixture
(TSCA section 6(a)(1)).
<bullet> Prohibit, limit, or otherwise restrict, the manufacturing,
processing, or distribution in commerce of the substance or mixture for
particular uses or above a specific concentration for a particular use
(TSCA section 6(a)(2)).
<bullet> Require clear and adequate minimum warning and
instructions with respect to use, distribution in commerce, or disposal
of the substance or mixture (TSCA section 6(a)(3)).
<bullet> Require record keeping, monitoring or testing by
manufacturers and processors (TSCA 6(a)(4)).
<bullet> Prohibit or regulate any manner or method of commercial
use of the substance or mixture (TSCA section 6(a)(5)).
<bullet> Prohibit or otherwise regulate any manner or method of
disposal of the substance or mixture by certain persons (TSCA section
6(a)(6)).
<bullet> Direct manufacturers or processors to give notice of the
determination of unreasonable risk to distributors, users, and the
public and replace or repurchase the substance or mixture (TSCA section
6(a)(7)).
As described in Unit III.B., EPA analyzed how the TSCA section 6(a)
requirements could be applied so that the unreasonable risk found to be
presented in Part 1 of the risk evaluation for chrysotile asbestos is
no longer presented. 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
[[Page 21715]]
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 proposing a
regulatory action and requesting comment on an alternative regulatory
action, which are discussed in Unit IV. EPA is requesting public
comment on all aspects of the proposed regulatory action and the
primary alternative regulatory action.
Under the authority of TSCA section 6(g), EPA may consider granting
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 is not proposing to grant an exemption from the rule
requirements. EPA is aware that chlor-alkali chemicals are used in
sectors important to the national economy and operation of critical
infrastructure to protect human health, for uses such as drinking water
treatment. Sectors include: Water and Wastewater Systems Sector,
Chemical Sector, Critical Manufacturing Sector, Defense Industrial Base
Sector, Emergency Services Sector, Energy Sector, Food and Agriculture
Sector, and Healthcare and Public Health sector. EPA is requesting
public comment regarding the need and rationale for exemptions from the
proposed rule pursuant to the provisions of TSCA section 6(g).
TSCA section 6(c)(2)(C) requires that, in deciding whether to
prohibit or restrict in a manner that substantially prevents a specific
condition of use and in setting an appropriate transition period for
such action, EPA considers, 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 proposed prohibition or restriction takes effect. Unit III.B.4.
includes more information regarding EPA's consideration of
alternatives.
1. Consultations
EPA conducted consultations and outreach in preparing for this
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. During the consultation EPA met with state and
local officials early in the process of developing the proposed action
to permit them to have meaningful and timely input into its development
(Ref. 7). During the consultation, participants and EPA discussed the
authority given under TSCA section 6 regarding prohibition, how
alternatives may be treated in rulemaking, and which activities would
be potentially regulated in the proposed rule (Ref. 7).
On May 24, 2021, and June 3, 2021, EPA held tribal consultations
for Part 1: Chrysotile Asbestos. 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 (Ref. 8).
EPA also conducted outreach to advocates of communities that might
be subject to disproportionate exposure to chrysotile asbestos, such as
minority populations, low-income populations and indigenous peoples.
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 and in compliance with Executive Orders 12898 and 14008.
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. 9).
Units VIII.C., VIII.E., VIII.F., VIII.J. provide more information
regarding the consultations.
2. Other Stakeholder Consultations
In addition to the consultations described in Units VIII.C.,
VIII.E., VIII.F., and VIII.J. on February 3, 2021, EPA held a public
webinar (Ref. 10) and also attended a Small Business Administration
roundtable on February 5, 2021, where EPA staff provided an overview of
the TSCA risk management process and the findings in the Part 1 risk
evaluation (EPA-HQ-OPPT-2021-0057). Attendees of these meetings were
given an opportunity to voice their concerns on both the risk
evaluation and the risk management process.
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 proposed rule are in the
docket. These meetings helped to inform how long industry would need to
implement a prohibition, how companies currently protect workers, and
the extent to which each industry uses asbestos-free technology.
Additionally, discussions with the Canadian government helped EPA to
better understand how Canada approached its 2018 regulation to prohibit
asbestos use (such as the asbestos-containing products covered in the
prohibition and the chosen prohibition effective dates) to better
inform this proposed rule (Refs. 4 and 11). The purpose of these
stakeholder discussions was to hear from importers, processors,
distributors, users, academics, advisory councils, and members of the
public health community about the conditions of use evaluated for
chrysotile asbestos; substitute chemicals or alternative methods;
engineering control measures and personal protective equipment
currently in use or potentially feasible for adoption; and other risk
reduction approaches that may have already been adopted or considered
for the evaluated conditions of use.
B. Regulatory Assessment of Chrysotile Asbestos Under Part 1
This Unit describes the additional information that EPA considered
in deciding the proposed regulatory approach for chrysotile asbestos,
so that chrysotile asbestos would no longer present an unreasonable
risk under the conditions of use evaluated under Part 1 of the risk
evaluation. This Unit describes the unreasonable risk, the conditions
of use of chrysotile asbestos that are the focus of this regulation,
and how EPA is proposing to apply the TSCA section 6(a) requirements,
including the consideration of alternatives in deciding whether to
prohibit or restrict in a manner that substantially prevents a specific
condition of use.
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,
[[Page 21716]]
lung cancer, and other cancers from chronic inhalation. An inhalation
unit risk (IUR), which is an estimate of the carcinogenic risk
associated with a unit concentration of air, was developed for
chrysotile asbestos. The IUR was based on epidemiological studies on
mesothelioma and lung cancer in cohorts of workers using chrysotile
asbestos in commerce. Since there was no exposure-response data for
cancer of the ovary and laryngeal cancer effects, a direct estimate of
risk from ovarian and laryngeal cancer could not be made for the unit
risk calculation. An adjustment factor for ovarian and laryngeal cancer
effects was applied to risk value estimates to correct for the negative
bias in the risk values derived from only lung cancer and mesothelioma.
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
risks of 1 cancer per 10,000 people. At this risk level 1x10-4 (1E-4),
if the noncancer effects (e.g., asbestosis and pleural thickening) of
chrysotile asbestos are similar to Libby Amphibole Asbestos, the non-
cancer effects of chrysotile asbestos are likely to contribute
additional risk to the overall health risk of chrysotile asbestos
beyond the risk of cancer. Thus, the overall health risks of chrysotile
asbestos are underestimated based on cancer risk alone.
For processing and industrial use of chrysotile asbestos
diaphragms, EPA found unreasonable risk to workers 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 1E-4 risk
benchmark (Ref. 1).
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 (Ref.
1).
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 1988 study of Norway's offshore petroleum industry
(Ref. 1).
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 and ONUs 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 Part 1 asbestos risk evaluation 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. While EPA
did not identify or receive information which could inform such an
exposure scenario and does not currently have models which can
adequately evaluate and address this pathway, take-home exposures were
considered pathways in the Part 1 risk evaluation for asbestos that
could increase risk to populations associated with the workers, ONUs,
consumers or bystanders.
Unit V.A. summarizes the health effects and the magnitude of the
exposures (Ref. 1).
The regulatory actions proposed, and alternatives, so that
chrysotile asbestos no longer presents this unreasonable risk, are in
Unit IV.
2. Description of Conditions of Use
This Unit describes the conditions of use subject to this proposed
regulatory action.
Although EPA identified both industrial and commercial uses in Part
1 of the risk evaluation 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 reach both.
The conditions of use subject to this proposed regulatory 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 is 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 chorine 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. This reaction occurs
in an electrolytic cell. The 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:
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 production 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 are fabricated from sheets composed of 80% (minimum)
chrysotile asbestos fully encapsulated in styrene butadiene rubber. The
chrysotile asbestos-containing sheets are imported
[[Page 21717]]
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).
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 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.
However, by 2000, asbestos was no longer used in the brakes of
virtually any original equipment manufacturer (OEM) automobiles sold
domestically. Asbestos in automotive parts is not currently banned in
the U.S., and asbestos-containing brake products may be imported and
sold in the United States. The quantity of asbestos-containing brake
parts 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 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. 12).
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 proposed regulation: 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. EPA
determined that workers and ONUs who install the gaskets during
assembly and workers who may repair these vehicles are exposed to
asbestos (Ref. 1).
g. Consumer use and disposal of aftermarket automotive chrysotile
asbestos-containing brakes/linings:
As discussed in Unit III.B.2.d., 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 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:
As discussed in Unit III.B.2.f., 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).
3. Description of TSCA Section 6(a) Requirements Considered To Address
Unreasonable Risk
EPA examined which requirements or combination of requirements
under TSCA section 6(a), as described in Unit III, have the potential
to reduce the risk to workers, occupational non-users (ONUs), consumers
and bystanders so that chrysotile asbestos no longer presents
unreasonable risk. As required by TSCA, as amended, in selecting among
these requirements, EPA factored in, to the extent practicable,
considerations including the effects of the chemical on health and the
environment, the benefits of the chemical substance for various uses,
and the reasonably ascertainable economic consequences of the rule,
including the effect of the rule on the national economy, small
business, technological innovation, the environment and public health;
the costs and benefits of the proposed regulatory action and one or
more primary regulatory alternative regulatory actions considered; and
the cost effectiveness of the proposed regulatory action and of the one
or more primary alternative regulatory actions considered. See Unit V
for further discussion related to TSCA section
[[Page 21718]]
(c)(2)(A) considerations, including the statement of effects of the
proposed rule with respect to these considerations.
EPA developed a proposed regulatory action and one primary
alternative regulatory action, which are described in Units IV.A. and
IV.B. To identify and select a regulatory action, EPA considered the
route of exposure driving the unreasonable risk (inhalation) and the
exposed population. For consumer conditions of use, EPA considered how
it could exercise its authority under TSCA to regulate the
manufacturing, processing, and distribution in commerce of chrysotile
asbestos at different levels in the supply chain to eliminate or
restrict the availability of chrysotile asbestos and chrysotile
asbestos-containing products for consumer use to effectively address
the unreasonable risk to consumers and bystanders. EPA also considered
the regulatory authority under TSCA and other statutes such as OSHA,
CPSA, and other EPA-administered statutes to examine (1) whether there
are opportunities for identified risk from chrysotile asbestos to be
addressed under other statutes, such that a referral may be warranted
under TSCA section 9(a) or section 9(b), or (2) whether TSCA section
6(a) regulation could include alignment of requirements and definitions
to minimize confusion to the regulated entities and the general public.
In addition, EPA considered other TSCA requirements such as the
consideration of alternatives when recommending prohibition or a
substantial restriction (TSCA section 6(c)(2)(C), as outlined in Unit
III.B.4.), and the requirements in TSCA section 6(d)(1)(B) for
compliance dates (described in the proposed and primary alternative
regulatory actions in Unit IV.).
To the extent information was reasonably available, when selecting
regulatory actions, EPA considered the pollution prevention actions and
the hierarchy of controls adopted by OSHA and NIOSH, with the goal of
identifying risk management control methods that are permanent,
feasible, and effective. EPA also considered how to address the
unreasonable risk while providing flexibility to the regulated
entities, given the functionality and the performance efficacy of
chrysotile asbestos. EPA considered the information presented in the
risk evaluation, additional input from stakeholders (as described in
Unit III.A.) and anticipated compliance strategies from regulated
entities.
EPA evaluated regulatory options under TSCA section 6(a) to address
the unreasonable risk found to be presented by chrysotile asbestos
under the conditions of use evaluated in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos. EPA is proposing a prohibition
of the manufacture (including import), processing, distribution in
commerce and commercial use of chrysotile asbestos in bulk form and as
part of chrysotile asbestos diaphragms used in the chlor-alkali
industry and chrysotile asbestos-containing sheet gaskets used in
chemical production (descriptions of these conditions of use are in
Unit III.B.2.) two years following the effective date of the final
rule, which is 60 days after final rule promulgation. Associated with
that prohibition, EPA considered and is proposing interim recordkeeping
requirements and is proposing to cross reference existing disposal
regulations. The proposed prohibition, recordkeeping requirements, and
cross referencing are described in more detail in Unit IV.A. Similarly,
EPA evaluated and is proposing a prohibition of the manufacture
(including import), processing, distribution in commerce and industrial
or commercial use of chrysotile asbestos-containing brake blocks used
in the oil industry; aftermarket automotive chrysotile asbestos-
containing brakes/linings; other vehicle friction products; and
asbestos-containing gaskets 180 days after the effective date of the
final rule. EPA is further proposing 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 180 days after the effective date
of the final rule. EPA also is proposing disposal and recordkeeping
requirements for these conditions of use. EPA does not intend the
proposed prohibitions on processing or distribution in commerce to
prohibit any processing or distribution in commerce incidental to
disposal of the chrysotile asbestos waste in accordance with the
proposed requirements.
EPA considered alternative regulatory requirements that would
reduce exposures in occupational settings and address consumer and
bystander exposure so that chrysotile asbestos no longer presents
unreasonable risk. A possible requirement under TSCA section 6(a) that
EPA considered was the use of respirators; however, EPA determined that
respirators were not adequate for all conditions of use that are
driving unreasonable risk, and EPA also would like to consider the
NIOSH/OSHA hierarchy of controls instead of consideringly only
respirators as part of management of occupational exposures. Other
possible requirements under TSCA section 6(a) such as limiting the
weight fraction or size of the items containing chrysotile asbestos,
were not considered since those seemed impracticable for the conditions
of use under consideration. Other possible requirements under TSCA
section 6(a) that EPA considered in combination under the primary
alternative regulatory action, such as labels, warning signs, and
recordkeeping, are discussed in Unit IV.B.
The primary alternative option EPA considered for the chlor-alkali
diaphragm and sheet gasket categories was a prohibition to take effect
over a longer time (five years), and the establishment of a risk-based
performance standard, known as an existing chemical exposure limit
(ECEL) to reduce inhalation exposures by workers and occupational non-
users during that period prior to the prohibition. EPA developed an 8-
hour time-weighted average (TWA) ECEL in support of risk management
efforts on chrysotile asbestos under TSCA section 6(a). EPA calculated
the ECEL to be 0.005 fibers/cc (f/cc) for inhalation exposures to
chrysotile asbestos as an 8-hour TWA (Ref. 13).
Requirements to meet an ECEL would not include requirements for
specific engineering or administrative controls; rather, the ECEL is a
performance-based exposure limit that would allow regulated entities to
determine how to most effectively meet the ECEL based on what works
best for their workplace, while following the hierarchy of controls to
the extent feasible (e.g., preferential use of methods which prevent
generation or release of asbestos in the workplace rather than relying
on respiratory protection to meet the ECEL; see Unit IV.B.1, Exposure
Controls).
In general, industrial and commercial facilities are already
familiar with the concept of permissible exposure limits (PELs)
required by OSHA. Based on their familiarity with the PELs and
corresponding methods of compliance, some industrial and commercial
facilities may be able to implement an ECEL. EPA recognizes that an
ECEL will require time and resources to prepare for and therefore did
not propose to include it for the two-year interim period prior to the
proposed prohibition date. It is also unknown whether facilities could,
under the ECEL provision, routinely monitor at or below the ECEL or
ECEL-action level with reasonable certainty. Additionally, there are
uncertainties regarding whether
[[Page 21719]]
facilities would need to routinely rely on the use of respiratory
protection considering the engineering and administrative controls
already in place and the effectiveness of the respiratory protection to
ensure that air concentrations above the ECEL do not result in
unreasonable risk (see Section 2.3.1.2 of the Risk Evaluation). For
these reasons, EPA did not include in the proposed regulation
requirements to meet an ECEL. However, the ECEL is included as an
interim exposure reduction measure in the primary alternative
regulatory action, based on the longer interim period prior to
prohibition considered in the primary alternative regulatory action.
Details of the ECEL requirement included in the primary alternative
regulatory action, including how facilities could demonstrate
compliance, are described in Unit IV.B.
In addition, EPA considered other requirements, such as requiring
monitoring and recordkeeping to demonstrate compliance with the ECEL,
or downstream notification to communicate the date of prohibition for
manufacturing, processing and distribution in commerce. These
requirements are described in Unit IV.B.
As required under TSCA section 6(d), any rule under TSCA section
6(a) must specify the date of compliance, which shall be as soon as
practicable with a reasonable transition period but begin no later than
five years after the date of promulgation of the rule. These proposed
compliance dates are detailed in Unit IV.A.
Because a determination has been made that chrysotile asbestos
presents an unreasonable risk to health within the United States or to
the environment of the United States, pursuant to TSCA section
12(a)(2), this proposed rule would apply to chrysotile asbestos even if
being manufactured, processed, or distributed in commerce solely for
export from the United States.
After considering the different regulatory requirements under TSCA
section 6(a), consideration of alternatives (described in Unit
III.B.4.), compliance dates, and other requirements under TSCA section
6(c), EPA developed the proposed regulatory action described in Unit
IV.A. and a primary alternative regulatory action described in Units
IV.B.1., IV.B.5, IV.B.6, and IV.B.7.
4. Consideration of Alternatives in Deciding Whether To Prohibit or
Substantially Restrict Chrysotile Asbestos
In selecting among prohibitions and other restrictions available
under TSCA section 6(a), EPA must under section 6(c)(2)(A) and (B)
consider and factor in, to the extent practicable, the health and
environmental effects and exposures of the chemical, the benefits of
the chemical for various uses and the reasonably ascertainable economic
consequences of the rule (described in Unit V.). Further, 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 proposed 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. Therefore, the transition away from
asbestos-containing diaphragms could result in greater usage and
release of PFAS. EPA lacks information to determine whether increased
usage is likely to cause increased release of PFAS at chlor-alkali
facilities that currently rely on asbestos-containing diaphragms,
chlor-alkali facilities that do not currently use asbestos-containing
diaphragms that may expand their production as a result of the
regulation, upstream facilities that produce membranes, or upstream
facilities that produce perfluorinated fibers used in non-asbestos
diaphragms. EPA requests public comment with monitoring data and other
information that would allow the Agency to assess how a transition away
from asbestos containing diaphragms may affect exposures to PFAS
released by chlor-alkali facilities. Despite these uncertainties about
possible greater use and release of PFAS, EPA believes the benefits of
removing chrysotile asbestos, a known human carcinogen that causes an
aggressive and deadly cancer (mesothelioma), from continued use in the
United States, are significant even though there are uncertainties
regarding the potential additional exposure to PFAS that might result
from this action.
b. Technical feasibility, economic feasibility, and reasonable
availability of the 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. Each
chlor-alkali industry member consulted expressed concerns about the
economic feasibility of transitioning to asbestos free technology
(Refs. 14, 15, 16, 17, and 20), indicating that would take a
significant amount of time. 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 significant capital investment. One stakeholder noted they have
a titanium dioxide production facility
[[Page 21720]]
located in Taiwan that uses asbestos-free gaskets. The stakeholder,
however, stated that the technology used in the Taiwan facility would
not suit certain domestic titanium dioxide plants because the large
diameter flanges in the domestic plants result in performance issues
with the asbestos-free gaskets (Ref. 14). 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. Asbestos-free brake
blocks are also more expensive than those containing asbestos according
to a company importing asbestos brake blocks. 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).
IV. Proposed and Primary Alternative Regulatory Actions
This Unit describes EPA's proposed regulatory action to address the
unreasonable risk identified for chrysotile asbestos under certain
conditions of use in EPA's Risk Evaluation for Asbestos Part 1, so that
chrysotile asbestos no longer presents such risk (Ref. 1). In addition,
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 case of
chrysotile asbestos, the proposed regulatory option is described in
Unit IV.A. and the primary alternative regulatory action is described
in Unit IV.B.
A. Proposed Regulatory Action
EPA is proposing under 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 in the chlor-alkali industry; chrysotile asbestos-
containing sheet gaskets in chemical production; chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; and other vehicle
friction products. EPA is also proposing 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 is also proposing disposal requirements and
recordkeeping requirements under which regulated parties would document
compliance with the proposed disposal requirements. EPA does not intend
the proposed prohibitions on processing or distribution in commerce to
prohibit any processing or distribution in commerce incidental to
disposal of the chrysotile asbestos waste in accordance with the
proposed requirements.
Under this proposed approach and pursuant to TSCA section 6(d)(1),
the manufacture (including import), processing, distribution in
commerce, and commercial use of chrysotile asbestos in bulk form or as
part of diaphragms in the chlor-alkali industry and for asbestos-
containing sheet gaskets used in chemical production would be
prohibited two years after the effective date of the final rule.
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 chrysotile asbestos-containing vehicle friction
products; and asbestos-containing gaskets would be prohibited 180 days
after the effective date of the final rule. Disposal and recordkeeping
requirements would take effect 180 days after the effective date of the
final rule. As noted in Unit III.B.2.e, these prohibitions would not
apply to chrysotile asbestos in the NASA Super Guppy Turbine aircraft,
which is a condition of use for which EPA did not make a determination
of unreasonable risk.
EPA requests comment on any suggestions to address the unreasonable
risk identified while recognizing that chrysotile asbestos is a natural
occurring fiber that may be unintentionally present (e.g., by
incorporating a de minimis level). In particular, in lieu of proposing
a de minimis provision for chrysotile asbestos with this proposed rule,
EPA requests comment on incorporating a de minimis provision for
chrysotile asbestos where the regulatory requirements of the rule would
apply: (1) Only at concentrations in a product greater than or equal to
0.1% by weight; (2) at any concentration in a product, if intentionally
added; or (3) above another de minimis level.
Other national governments, in their prohibitions of asbestos, have
used threshold levels or other provisions to limit the regulation of
products that contain trace amounts of chrysotile asbestos present as
unintentional or naturally occurring fibers in other material obtained
from mineral sources, such as brake pads and other friction materials
(Ref. 4).
1. Prohibition on 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.
EPA consulted with several companies who manufacture, process,
distribute, and use chrysotile asbestos diaphragms in the chlor-alkali
industry and process and use chrysotile asbestos-containing sheet
gaskets in chemical production. Each company stated that while
alternatives may exist, they could take many years to implement. EPA
considered this information while developing the proposed regulatory
option and compliance timeframes.
EPA proposes to prohibit manufacturing (including import),
processing, distribution in commerce, and commercial use of chrysotile
asbestos under TSCA sections 6(a)(2) and 6(a)(5) in bulk form or as
part of chrysotile asbestos diaphragms used in the chlor-alkali
industry and for chrysotile asbestos-containing sheet gaskets used in
chemical production. The prohibition would take effect two years from
the effective date of the final rule. Pursuant to TSCA section 6(d)(1),
when EPA elects to ban or phase-out a chemical substance, the start of
the ban or phaseout must be as soon as practicable but not later than
five years after the date of promulgation of the rule, and the date for
full implementation must be as soon as practicable thereafter. EPA
believes safer, economically viable alternatives are available for
these conditions of use. Specifically, for the chrysotile asbestos
diaphragms, EPA is aware of one company already transitioning to
exclusive use of alternative technologies such as membrane and non-
asbestos diaphragm technologies. All three domestic companies that use
chrysotile
[[Page 21721]]
asbestos diaphragms currently also use membrane or non-asbestos
diaphragms at their chlor-alkali facilities. The plants range in age
from 40 to 123 years old, although some have had new capacity added as
recently as 16 years ago, and others may have had recent
refurbishments. EPA understands from industry stakeholder consultations
that there are no plans to build new chlor-alkali plants that use
chrysotile asbestos technology for the production of chlorine and
caustic soda (Refs. 14, 15, and 16). One of the three remaining chlor-
alkali companies that continue to use chrysotile-asbestos technology
domestically stated to EPA in 2017 that they plan to voluntarily
discontinue the use chrysotile asbestos (Ref. 18).
Globally, the chlor-alkali industry has transitioned away from
chrysotile asbestos diaphragms to membrane-based technology or
asbestos-free diaphragm technology due to prohibitions or impending
prohibitions of chrysotile asbestos and the advantages of asbestos-free
technology including greater energy efficiency, and reduced waste
handling and disposal costs for asbestos-free materials. Only one
chlor-alkali plant that uses chrysotile asbestos technology remains in
operation in the European Union (EU), but it will phase-out of
chrysotile asbestos use no later than 2025 to comply with the EU
prohibition on chrysotile asbestos use by that date (Ref. 19). One
chlor-alkali plant utilizing chrysotile asbestos technology remains in
operation in Canada (Ref. 11). The Canadian government prohibited
chrysotile asbestos use in the chlor-alkali industry with a compliance
date of no later than the end of 2029.
EPA considers the proposed two-year effective date for the
prohibition on manufacturing (including import), processing,
distribution in commerce, and use of chrysotile asbestos in bulk form
and as part of chrysotile asbestos diaphragms in the chlor-alkali
industry to be achievable by the industry, thus meeting the ``as soon
as practicable'' requirement of TSCA section 6(d)(1). EPA believes an
aggressive transition away from chrysotile asbestos will spur adoption
of superior technology and that potential supply disruptions could be
addressed in the shorter term through increased importing of caustic
soda and derivatives of chlorine and caustic soda, and over time with
increased production at existing non-asbestos diaphragm or membrane-
based chlor-alkali plants. However, EPA is aware that public drinking
water and wastewater systems have experienced substantial price
increases for chlor-alkali products related to supply shortages and
COVID pandemic impacts. EPA has insufficient information to fully
assess the impact of this proposed rule on the cost or availability of
water treatment chemicals. EPA requests public comment on the potential
impact of changes in supply on the availability and cost of water
treatment chemicals, including both chlorine and caustic soda used
directly in water treatment as well as the potential impact on the cost
of other water treatment chemicals derived from chlorine or caustic
soda.
Chrysotile asbestos-containing sheet gaskets are used in limited
chemical production applications, particularly for the manufacture of
titanium dioxide. EPA believes alternative gaskets are available that
can meet the high-temperature and pressure conditions for which the
chrysotile asbestos-containing gaskets are currently used. At least one
manufacturer of titanium dioxide uses only asbestos-free gaskets (Ref.
14) and the two-year transition away from existing use of chrysotile
gaskets should be feasible based on the availability of these
substitutes.
EPA requests comment on whether the proposed prohibition date would
both provide a reasonable transition period and be as soon as
practicable under TSCA section 6(d)(1). EPA requests specific
information to support or refute its assumption that plants using
asbestos diaphragms will convert to non-asbestos technologies, and the
timeframes required for such conversions. EPA is requesting comments on
potential alternative transition strategies and timing to implement
those strategies. EPA is requesting specific information regarding
potential barriers to achieving the proposed prohibition date while
considering the supply of chlor-alkali chemicals and on the potential
impact of this transition on the market price of chlor-alkali
chemicals.
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.
EPA is proposing under TSCA section 6(a)(2) and 6(a)(5) to prohibit
manufacturing (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
(excluding the NASA SGT use); and other asbestos-containing gaskets.
Based upon discussions with trade groups and industry representatives
(Refs. 14, 15, 16, 17, 20 and 21), EPA believes chrysotile asbestos is
almost entirely phased out for these product categories. Thus, these
prohibitions would not only address the unreasonable risk EPA has
identified, but also, for this reason, upon consideration of the TSCA
section 6(c)(2)(A) factors can achieve that statutory requirement
without an undue economic burden on these industries overall. EPA is
proposing that the prohibition take effect 180 days after the effective
date of the final rule for these categories of use. In the context of
these specific uses of chrysotile asbestos, which EPA believes are
almost entirely phased out, EPA has no information indicating that
these proposed compliance dates are not practicable; however, EPA is
requesting public comment regarding the timing of the prohibition .
This additional amount of time from the proposed regulatory option is
meant to account for stakeholders who may not have engaged with EPA in
advance of this proposed rule, and who may potentially have difficulty
immediately transitioning away from chrysotile asbestos in the
manufacture, processing, distribution, and use, of chrysotile asbestos-
containing brake blocks, chrysotile asbestos-containing aftermarket
automotive brakes and linings, other chrysotile asbestos-containing
vehicle friction products and other chrysotile asbestos-containing
gaskets.
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.
EPA is proposing under TSCA section 6(a)(2) to prohibit the
manufacture (including import), processing, and distribution in
commerce of aftermarket automotive chrysotile asbestos-containing
brakes/linings for consumer use and of other chrysotile asbestos-
containing gaskets for consumer use. EPA is proposing that the
prohibition on manufacture (including import), processing and
distribution in commerce for consumer use take effect 180 days after
the effective date of the final rule for these categories of use,
identical to the equivalent proposed prohibition on manufacture
(including import), processing, and distribution in commerce of
chrysotile asbestos for commercial use. EPA has no information
indicating that the proposed compliance dates for these
[[Page 21722]]
prohibitions are not practicable for these consumer use-related
categories. While EPA does not have the authority under TSCA section
6(a)(5) to regulate consumer use or under TSCA section 6(a)(6) to
regulate disposal by someone other than a manufacturer, processor, or a
person who uses or disposes of the substance commercially, prohibiting
the manufacture (including import), processing, and distribution in
commerce of these products for both commercial and consumer uses will
remove them from the market and therefore effectively eliminate new
instances of consumer use and the associated disposals from such use.
4. Other requirements.
a. Disposal:
EPA proposes to 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 proposes that for each condition 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. EPA expects regulated entities to
follow these requirements for unused and end-of-use products containing
chrysotile asbestos
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 proposing to cross-reference 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 proposing to cross-
reference 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. However, EPA is requesting comment on this, since,
according to industry communications to EPA, they already follow these
work practices.
EPA is also proposing to require that, upon disposal, 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 such
items 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 proposed 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 proposed disposal requirements would take effect 180 days after
the effective date of the final rule. EPA has no information indicating
that this 180-day compliance period, after the 60-day effective date of
the final rule, is not practicable for regulated entities to comply
with the proposed disposal provisions; however, EPA requests comment on
whether the proposed time is adequate. EPA also requests comments on
the practicability of making the proposed disposal requirements take
effect sooner than 180 days after the final rule effective date.
b. Recordkeeping for disposal:
EPA is also proposing that each person who disposes of any
chrysotile asbestos and any chrysotile asbestos-containing products or
articles subject to the disposal provisions of this proposed rule must
retain any records generated pursuant to, or otherwise documenting
compliance with specified disposal regulations. These records must be
retained in one location at the headquarters of the company, or at the
facility for which the records were generated, and they must be
retained for five years from the date of generation. In addition, EPA
is exercising its authority under TSCA section 6 to apply recordkeeping
requirements to distributors of asbestos-containing products who are
not also manufacturers (including importers), or processors identified
in the risk evaluation.
The proposed recordkeeping requirements would take effect 180 days
after the effective date of the final rule. EPA has no information
indicating that a 180-day period is not practicable for regulated
entities to modify their recordkeeping systems to comply with the
proposed rule; however, EPA requests comment on whether the proposed
time is adequate. EPA also requests comments on the practicability of
making the proposed recordkeeping requirements take effect sooner than
180 days and whether additional recordkeeping requirement are necessary
to further document compliance with this proposed rule.
B. Primary Alternative Regulatory Action
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. EPA's
primary alternative regulatory action 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 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 chemicals exposure limit (ECEL) for the
processing and commercial use of chrysotile asbestos for these uses;
and to prohibit 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 also includes
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 also would require disposal of
chrysotile asbestos-containing materials in a manner identical to the
proposed option, with additional provisions for downstream notification
and signage and labeling. EPA does not intend the primary alternative
regulatory action's
[[Page 21723]]
prohibitions on processing or distribution in commerce to prohibit any
processing or distribution in commerce incidental to disposal of the
chrysotile asbestos waste in accordance with the proposed requirements.
1. Primary alternative regulatory action for prohibition of
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.
As described in Unit IV.A, EPA consulted with several companies in
the chlor-alkali industry and companies that process and use chrysotile
asbestos-containing sheet gaskets in chemical production. While EPA
expects the compliance date in the proposed regulatory option is
feasible, it is possible that the required changes could take longer
than expected to implement for some.
Accordingly, and pursuant TSCA section 6(a)(2) and 6(a)(5), EPA
presents as a primary alternative regulatory action, a prohibition on
the 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 for sheet gaskets used in chemical production, with an
effective date five years after the effective date of the final rule,
with interim controls for processing and commercial use as described in
Unit IV.B.2.
2. Requiring as interim control an existing chemical exposure limit
(ECEL) for: Processing and commercial use of chrysotile asbestos
diaphragms in the chlor-alkali industry; and chrysotile asbestos-
containing sheet gaskets in chemical production.
As part of the primary alternative regulatory action, EPA would
require processors and commercial users to comply with an 8-hour
existing chemical exposure limit (ECEL), during the interim period
prior to prohibition, beginning 180 days after the effective date of
the final rule, for 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) processing and industrial use of chrysotile asbestos-containing
sheet gaskets in chemical products. EPA calculated the ECEL to be 0.005
fibers (f)/cubic centimeter (cc), for inhalation exposure to chrysotile
asbestos as an 8-hour time-weighted average (TWA) for use in workplace
settings based on incidence of lung cancer, mesothelioma and other
cancers. The alternative action would include this interim measure to
reduce exposures and address the unreasonable risk of injury to health
resulting from inhalation exposures to chrysotile asbestos in an
occupational setting. EPA expects that, if inhalation exposures in
occupational settings are kept at or below the ECEL of 0.005 f/cc, a
person reasonably likely to be exposed in the workplace, including
workers and occupational non-users, would be protected against excess
risk of cancer above the 1x10\4\ (1E-4) benchmark resulting from
chronic occupational exposure (Ref. 13). Based on this ECEL, the
alternative action includes an ECEL-action level of 0.0025 f/cc as an
8-hour TWA, which initiates certain required activities such as
periodic monitoring of exposures to chrysotile asbestos, as described
in this unit. As described in Unit III.B.3., EPA recognizes that an
ECEL will require time and resources to prepare for and therefore did
not propose to include it for the two-year interim period prior to the
proposed prohibition date. As part of an interim control measure,
requirements to meet an ECEL could reduce exposures and address
unreasonable risk during the interim period of time the regulated
entities need for implementing prohibitions. This Unit provides
additional details regarding implementation of the ECEL as an interim
control measure as part of the primary alternative regulatory action.
EPA expects that, if this primary alternative regulatory action
were to be implemented for these two use categories, workplaces may
have the ability to implement an ECEL as part of an industrial hygiene
program. Using the NIOSH hierarchy of controls (Ref. 27) (i.e., in
sequential order: Elimination, substitution, engineering controls,
administrative controls and personal protective equipment (PPE)),
workplaces that cannot eliminate the source or replace chrysotile
asbestos with a substitute could use engineering and administrative
controls to implement process changes to reduce exposures. EPA also
expects that these workplaces could establish a monitoring program to
demonstrate compliance with an ECEL. For example, workplaces that may
be able to implement the ECEL include those that are implementing the
8-hour threshold limit value-time weighted average (TLV-TWA) set by the
American Conference of Governmental Industrial Hygienists (ACGIH), and
the OSHA Permissible Exposure Limit (PEL), which are both 0.1 f/cc for
asbestos. EPA expects that workplaces engaged in the following
conditions of use may be able to implement an ECEL: Processing and
industrial use of chrysotile asbestos diaphragms in the chlor-alkali
industry and processing and industrial use of chrysotile asbestos-
containing sheet gaskets in chemical products. Therefore, for the
primary alternative regulatory action, EPA would require an ECEL for
these conditions of use and any facility engaged in these conditions of
use would be considered a regulated entity.
Specifically, under the primary alternative regulatory action, EPA
would require that the regulated entity must 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 8-hour TWA.
Initial exposure monitoring. Under the primary alternative
regulatory action, EPA would require the regulated entity to establish
a baseline for the implementation of the ECEL by monitoring the
personal breathing zone of all persons reasonably likely to be exposed
(with personal monitoring samples outside the facepiece if the person
is wearing respiratory protective equipment). Under this alternative
action, the initial monitoring would be taken when the operating
conditions are representative of the potential exposures of persons in
the workplace, or of a representative sample of persons in each type of
job task during every work shift who are reasonably likely to be
exposed to chrysotile asbestos in the workplace. EPA expects that
facilities would attempt to monitor a baseline for all of the tasks
during the same timeframe; however, EPA understands that certain tasks
occur less frequently, and EPA is soliciting comments regarding the
timing of the initial exposure monitoring so that it is representative
of all tasks involving chrysotile asbestos. If the regulated entity
chooses a representative sample, such sampling will include persons who
are the closest to the source of chrysotile asbestos, so that the
monitoring results are representative of the most highly exposed
persons in the workplace. If the regulated entity has existing
monitoring data less than five years old that follows the initial
exposure monitoring criteria and where a process change is not
implicated, the regulated entity could choose to use this existing data
as the initial exposure monitoring. EPA is soliciting public comments
regarding any additional requirement needed to ensure that the initial
exposure monitoring is representative of the
[[Page 21724]]
exposures to chrysotile asbestos in the workplace.
Periodic exposure monitoring. Based on the results from the initial
exposure monitoring, under the primary alternative regulatory action,
EPA would require the regulated entity to conduct the following
periodic monitoring:
<bullet> If any samples taken during the initial exposure
monitoring reveal a concentration of airborne chrysotile asbestos at or
above the ECEL-action level but at or below the ECEL, the regulated
entity must repeat the exposure monitoring and in no case shall exceed
six months. However, if the facility does not use chrysotile asbestos
during those six months, then they do not have to conduct monitoring
until the next six months and would need to document the fact that they
are not using chrysotile asbestos.
<bullet> If any samples taken during the initial exposure
monitoring reveal a concentration above the ECEL, the regulated entity
must repeat the exposure monitoring at least every three months. The
regulated entity may alter the exposure monitoring schedule from every
three months to every six months if two consecutive monitoring events
taken at least seven days apart indicate that the potential exposure
has decreased to the ECEL or below, but it is at or above the ECEL-
action level. Also, if the facility does not use chrysotile asbestos
during those three months, then they do not have to conduct monitoring
until the next three months and would need to document the fact that
they are not using chrysotile asbestos.
<bullet> If the last monitoring was conducted more than five years
previously, the regulated entity must conduct a new baseline
monitoring.
EPA understands that explicitly increasing the frequency of testing
may be a viable option and is soliciting comments regarding further
shortening the maximum time interval between monitoring events.
Termination of exposure monitoring. Based on the results of the
initial exposure monitoring or the periodic exposure monitoring, EPA is
proposing that the regulated entity may terminate periodic exposure
monitoring:
<bullet> If all samples taken during the initial exposure
monitoring reveal a concentration below the ECEL action level, the
regulated entity may discontinue monitoring, except when additional
exposure monitoring is required as described in this unit.
<bullet> If the periodic exposure monitoring statistically
indicates that concentrations, are below the ECEL action level, the
regulated entity may discontinue the monitoring, except when additional
monitoring is required as described under periodic exposure monitoring
or additional exposure monitoring. However, regulated entities must
ensure that the last baseline monitoring event was conducted within the
last five years.
EPA is soliciting public comments on the proposed conditions to
terminate periodic monitoring for chrysotile asbestos.
Additional exposure monitoring. In addition to the initial and
periodic exposure monitoring, under the primary alternative regulatory
action, EPA would require that the regulated entity must, conduct new
initial exposure monitoring followed by any necessary periodic or
additional exposure monitoring including immediately after:
<bullet> Changes in the production volume, use rate, process,
control equipment, personnel or work practices that may reasonably be
anticipated to cause additional sources of exposure or result in
increased exposure levels to chrysotile asbestos; and
<bullet> Start-up, shutdown, or malfunction of the facility that
may reasonably be anticipated to cause additional sources of exposure
or result in increased exposure levels to chrysotile asbestos.
However, the required additional exposure monitoring should not
delay implementation of any necessary cleanup or other remedial action
to reduce the exposures to persons in the workplace. In addition, under
the primary alternative regulatory action, EPA would require use of
respiratory protection by workers, ONUs, and any other person
potentially exposed to chrysotile asbestos during cleanup or any other
remedial actions to reduce exposures.
For each monitoring event, under the primary alternative regulatory
action EPA would require that the regulated entities record dates,
duration, and results of each sample taken, including all measurements
that may be necessary to determine the conditions (e.g., task duration,
work site temperatures, etc.) that might have affected the monitoring
results. In addition, under the primary alternative regulatory action,
EPA would require: Documentation of the name, address, work shift, job
classification, and work area of the person monitored. If the regulated
entity is using area monitoring or a representative sampling
monitoring, the same documentation will be needed of all other persons
whose exposures the monitoring was not measured but whose exposure is
intended to be represented by the area or representative sampling
monitoring. In addition, EPA would require documentation of and type of
respiratory protective device, if any, worn by the monitored person;
or, if area monitoring is used, respiratory protective devices worn, if
any, by persons in the area monitored; or if a representative sampling
monitoring is used, respiratory protective devices worn, if any, by the
persons whose exposure is represented by the monitoring. Also, under
the primary alternative regulatory action, EPA would require use of
appropriate sampling and analytical methods to determine asbestos
exposure, including:
<bullet> Use of analytical method with a limit of detection below
the ECEL-action level, so that the regulated entity is able to
implement exposure controls, to determine the monitoring frequency
according to the requirements described in this Unit, and to provide
persons exposed to chrysotile asbestos with the respiratory protection
required and described in this Unit.
<bullet> Use of analytical methods described in appendix A to 29
CFR 1910.1001 or as referenced in appendix A to 29 CFR 1910.1001, the
NIOSH 7400 method;
<bullet> Compliance with the Good Laboratory Practice Standards at
40 CFR part 792; and
<bullet> Documentation of information regarding air monitoring
equipment, including: Maintenance, performance tests, limits of
detection, and any malfunctions.
EPA requests comment on the proposed air sampling and analytical
methods as part of a chrysotile asbestos ECEL air monitoring
requirement under the primary alternative regulatory option and
specifically whether the required air sampling and analytical methods
should require the use of transmission electron microscopy (TEM), or
other microscopy, instead of phase contrast microscopy (PCM). PCM is
the required microscopy analysis in Appendix A to 29 CFR 1910.1001 and
the NIOSH 7400 method. In addition, EPA requests comments on the
capacity of available methods to effectively sample, detect and analyze
chrysotile asbestos at the ECEL and ECEL action level.
Exposure controls. EPA recommends and encourages the use of
pollution prevention as a means of controlling exposures whenever
practicable. Under the primary alternative regulatory action, EPA would
require regulated entities to implement the ECEL through the use of the
NIOSH/OSHA hierarchy of controls (i.e., elimination, substitution,
engineering controls, administrative controls, and PPE) and to refer to
29 CFR 1910.1001 (except for 29
[[Page 21725]]
CFR 1910.1001(c), which references the asbestos PEL for general
industry), and 29 CFR 1926.1101 (except for 29 CFR 1926.1101(c), which
references the asbestos PEL for construction). EPA would require that
regulated entities document their efforts in an exposure control plan
or through any existing documentation of the facility's safety and
health program developed as part of meeting OSHA requirements or other
safety and health standards. If elimination, substitution, engineering
controls and administrative controls are not sufficient to reduce
exposures to or below the ECEL for all persons in the workplace, under
the primary alternative regulatory action, EPA would require the
regulated entity to use such controls to reduce chrysotile asbestos
concentrations in the workplace to the lowest levels achievable and
supplement these controls using respiratory protection. In such cases,
under the primary alternative regulatory action, EPA would require the
regulated entity to provide those persons reasonably likely to be
exposed to chrysotile asbestos by inhalation above the ECEL with
respirators sufficient to ensure that their exposures do not exceed the
ECEL, as described in this Unit. Under the primary alternative
regulatory action, EPA would also require that the regulated entity
documents their efforts to use elimination, substitution, engineering
controls and administrative controls to reduce exposure to or below the
ECEL.
Under the primary alternative regulatory action, EPA would require
that the regulated entity documents in the exposure control plan the
following:
<bullet> Identification of the exposure controls including:
Elimination, substitution, engineering controls and administrative
controls available to reduce exposures in the workplace to either at or
below the ECEL or to the lowest level achievable, and the exposure
controls selected based on feasibility, effectiveness, and other
relevant considerations;
<bullet> If exposure controls were not selected, document the
efforts identifying why these are not feasible, effective, or otherwise
not implemented;
<bullet> Implementation of exposure controls selected, including
proper installation, maintenance, training or other steps taken;
<bullet> Regular inspections, evaluations, and updating of the
exposure controls to ensure effectiveness and confirmation that all
persons are using them accordingly; and
<bullet> Occurrence and duration of any start-up, shutdown, or
malfunction of the facility that causes air concentrations above the
ECEL and subsequent corrective actions taken during start-up, shutdown,
or malfunctions to mitigate exposures to chrysotile asbestos.
Personal protective equipment (PPE). As part of this primary
alternative regulatory action, where engineering and administrative
controls are not feasible to reduce the air concentration below the
ECEL or inhalation exposure is still reasonably likely to persons in
the workplace, EPA would require the regulated entity to determine the
level of respiratory protection needed. EPA is proposing that the
regulated entity refer to OSHA's General Requirements for Personal
Protective Equipment standard at 29 CFR 1910.132 for application of a
PPE program. EPA is also proposing that the regulated entity select the
required respiratory protection as described in this unit and also
refer to OSHA's Respiratory Protection standard at 29 CFR 1910.134, and
the respiratory protection provision of the Asbestos standard for
general industry at 29 CFR 1910.1001(g) for directions on how to
implement a respiratory protection program.
Required respiratory protection. EPA is proposing to require under
the primary alternative regulatory action the following respiratory
protection, after consideration and implementation of all other
practicable controls, such as engineering and administrative controls,
whenever exposure monitoring reveals an air concentration, measured as
an 8-hour TWA, that exceeds the ECEL (0.005 f/cc). A respirator
affording higher levels of protection than the following proposed
required respirator may be used.
<bullet> If the measured exposure concentration is at or below
0.005 f/cc (ECEL): No respiratory protection is required.
<bullet> If the measured exposure concentration is less than or
equal to 0.05 f/cc (10 times the ECEL), the respirator protection
required is: (i) Half-mask air-purifying respirator other than a
disposable respirator, equipped with high-efficiency filters (i.e., a
filter that is at least 99.97% efficient against mono-dispersed
particles of 0.3 [micro]m (micrometers) in diameter or higher).
<bullet> If the measured exposure concentration is less than or
equal to 0.25 f/cc (50 times the ECEL): Full-facepiece air-purifying
respirator equipped with high-efficiency filters.
<bullet> If the measured exposure concentration is less than or
equal to 0.50 f/cc (100 times the ECEL): The respirator protection
required is any powered air-purifying respirator equipped with high-
efficiency filters (i.e., a filter that is at least 99.97% efficient
against mono-dispersed particles of 0.3 [micro]m (micrometers) in
diameter or higher) or any supplied-air respirator operated in
continuous-flow mode.
<bullet> If the measured exposure concentration is less than or
equal to 5 f/cc (1,000 times the ECEL): The respirator protection
required is a full-facepiece supplied air respirator operated in
pressure-demand mode.
<bullet> If the measured exposure concentration is more than 5 f/cc
(1,000 times the ECEL): The respirator protection required is a full-
facepiece supplied-air respirator operated in pressure-demand mode,
equipped with an auxiliary positive-pressure self-contained breathing
apparatus.
Worker participation: EPA encourages regulated entities to consult
with workers on the conduct and development of exposure control plans
and PPE program. EPA is proposing to require entities to provide
workers with access to the exposure control plans, exposure monitoring
records, and PPE program implementation (such as fit-testing and other
requirements as described in 29 CFR 1910.134) and documentation.
Notification of monitoring results. As part of the primary
alternative regulatory action, EPA is proposing to require that within
15 working days after receipt of the results of any exposure
monitoring, the regulated entity must notify each person whose exposure
is represented by that monitoring in writing, either individually to
each person or by posting the information in an appropriate and
accessible location. The notice must identify the ECEL, the exposure
monitoring results, and any respiratory protection required in response
to the exposure monitoring results. Also, the notice must include a
description of the actions taken by the regulated entity to reduce
inhalation exposures to or below the ECEL or refer to a document
available to the person which states the actions to be taken to reduce
exposures. In addition, the notice should be in plain English and
understandable to the average worker that is exposed; for example:
``Based on the monitoring conducted on March 15, 2022, the exposure to
chrysotile asbestos by workers installing gaskets was 0.03 f/cc. This
concentration is above the limit set by EPA to protect workers, and
therefore the company is providing half-mask air-purifying respirators
(not disposable respirators), equipped with high-efficiency filters to
workers. Workers can access the
[[Page 21726]]
exposure control plans, exposure monitoring records, and PPE program
implementation and documentation at the office during regular business
hours.''
Recordkeeping: To support and demonstrate compliance, EPA is
proposing under this primary alternative regulatory action, that the
regulated entities must retain compliance records for five years,
unless a longer retention time is required under 29 CFR 1910.1020. The
records proposed by EPA to be retained by regulated entities include:
<bullet> Exposure control plan;
<bullet> Exposure monitoring records;
<bullet> Notifications of exposure monitoring results; and
<bullet> PPE program implementation and documentation.
3. Solicitation of public comment on interim workplace controls
prior to prohibition of processing 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 used in chemical production.
EPA is proposing to prohibit manufacturing, processing, commercial
use, and distribution of chrysotile asbestos in bulk form or as part of
chrysotile asbestos diaphragms for use in the chlor-alkali industry and
for chrysotile asbestos-containing sheet gaskets used in chemical
production two years after the effective date of the final rule. EPA
recognizes that an ECEL will require time and resources to prepare for
and did not propose to include it for the two-year interim period prior
to the proposed prohibition date. However, EPA seeks public comment,
including data on costs and feasibility, on requiring compliance with
an ECEL during the period beginning 180 days after the effective date
of the final rule and continuing until the proposed prohibition date
for processing and commercial use of these uses of chrysotile asbestos.
4. Compliance date for the prohibition of 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 used in chemical production.
For the proposed prohibition on manufacturing, processing,
distribution, and commercial use of chrysotile asbestos in bulk for or
as part of chrysotile asbestos diaphragms used in the chlor-alkali
industry and for chrysotile asbestos-containing sheet gaskets used in
chemical production uses, EPA is proposing that the prohibition begin
two years after the effective date of the final rule based upon several
considerations, including the existence of alternatives. As part of the
primary alternative regulatory action, EPA is also taking comment on
the prohibition beginning five years after the effective date of the
final rule. EPA proposes that the final rule would take effect 60 days
after publication of the final rule.
EPA held meetings with several of the processors and industrial
users of chrysotile asbestos for these conditions of use. These
companies stated to EPA that the transition to asbestos-free technology
could take many years, although the companies processing and using
chrysotile asbestos for these uses stated that research on asbestos
alternatives has been ongoing. Each company did express that conversion
to an alternative was possible but would require significant retooling
of a facility, testing new processes, and other costly measures.
However, these companies did not provide EPA with delineated cost
estimates or a detailed timeline for the conversion process (Refs. 15,
16, 17, and 18).
EPA acknowledges that a prohibition on manufacturing (including
import), processing, distribution and use of chrysotile asbestos
diaphragms will require significant infrastructure changes for the
chlor-alkali plants continuing to use the chrysotile asbestos diaphragm
technology. It is possible that chlor-alkali facilities using non-
asbestos technology could expand production to meet supply shortfalls
induced by a prohibition on chrysotile asbestos diaphragms, but such
expansion could also take time. Imports of caustic soda or chemicals
derived from chlorine or caustic soda may increase in order to make up
for short-term supply shortfalls. Short-term supply shortages of
chlorine, caustic soda, and derivative chemicals are likely to lead to
price increases experienced by both industrial and commercial users,
some of which may be passed along to final consumers of products made
with these inputs.
EPA seeks comment on a prohibition compliance date that under TSCA
sections 6(d)(1) would be both ``as soon as practicable'' and ``provide
for a reasonable transition period.'' Information that will be helpful
includes the specific and detailed timelines to build asbestos-free
facilities or to convert existing asbestos-using facilities to
asbestos-free technology and the availability of asbestos-free
technology. EPA is also requesting specific information regarding
potential barriers to achieving the proposed prohibition date while
considering the supply of chlor-alkali chemicals. EPA is also
requesting comment on the potential impact of this transition on the
market price of chlor-alkali chemicals, including the potential impact
of a decrease in availability of diaphragm-grade caustic soda on both
the production and cost of water treatment chemicals, including both
caustic soda used directly in water treatment as well as the potential
impact on the cost of other water treatment chemicals derived from
caustic soda.
Alternatively, EPA could grant an exemption for these uses under
TSCA section 6(g). Under the authority of TSCA section 6(g), EPA may
consider granting 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, as
applied with respect to the specific condition of use, 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 is aware that chlor-alkali chemicals are important to the
national economy and operation of critical infrastructure, including:
Water and Wastewater Systems Sector, Chemical Production Sector,
Manufacturing Sector, Defense Industrial Base Sector, Emergency
Services Sector, Energy Sector, Food and Agriculture Sector, and
Healthcare and Public Health Sector.
Should EPA find that justification exists for such an exemption, an
analysis and reasoning will be published in the final rule. EPA seeks
any public comment that that favors or disfavors EPA using TSCA section
6(g) authority for chrysotile asbestos diaphragms used in the chlor-
alkali industry or chrysotile asbestos-containing sheet gaskets used in
chemical production. Since any decision made by EPA under TSCA section
6(g) must be through a rulemaking, EPA believes the best means to issue
an exemption would be through this rulemaking process and careful
analysis of reasonably available information which supports a TSCA
section 6(g) exemption. A rulemaking under TSCA section 6(g) also
allows EPA to include reasonable conditions to protect health while
achieving the
[[Page 21727]]
purposes of the exemption. To that end, EPA is considering requiring an
ECEL and downstream notification, as described in Unit IV.B. Primary
alternative regulatory action. EPA is seeking public comments on the
possible conditions to be included if EPA issues a rulemaking under
TSCA section 6(g) to provide a time limited exemption for chrysotile
asbestos diaphragms used in the chlor-alkali industry or chrysotile
asbestos-containing sheet gaskets used in chemical production.
5. Primary alternative regulatory action for 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.
EPA's primary alternative regulatory action is to prohibit
manufacture, processing, commercial use, and distribution 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 two years after the effective date of the final
rule. This additional amount of time from the proposed regulatory
option is meant to account for stakeholders who may not have engaged
with EPA in advance of this proposed rule, and who may potentially have
difficulty immediately transitioning away from chrysotile asbestos in
the manufacture, processing, distribution, and use, of chrysotile
asbestos-containing brake blocks, chrysotile asbestos-containing
aftermarket automotive brakes and linings, other chrysotile asbestos-
containing vehicle friction products and other chrysotile asbestos-
containing gaskets. While EPA does not have specific knowledge of
regulated entities that would have difficulty complying with a shorter
compliance date, a period of two years may be more feasible for
regulated entities who have yet to transition to asbestos-free
technology. This amount of time would account for use of existing
stocks, expiration of equipment like asbestos-containing brake blocks,
and investment in asbestos-free technology.
As with the proposed regulatory action, this primary alternative
action would not apply to NASA's Super Guppy Turbine aircraft use.
6. Primary alternative regulatory action for the disposal of
chrysotile asbestos-containing brake blocks in the oil industry;
aftermarket automotive chrysotile asbestos-containing brakes/linings;
chrysotile asbestos-containing other vehicle friction products and
other chrysotile asbestos-containing gaskets.
The primary alternative regulatory action would also require
regulated entities, upon disposal, to dispose of chrysotile asbestos-
containing brake blocks in the oil industry; chrysotile asbestos-
containing aftermarket automotive brakes/linings; other chrysotile
asbestos-containing vehicle friction products and other chrysotile
asbestos-containing gaskets in a manner consistent with the waste
disposal requirements described in the housekeeping provision
(1910.1001(k)(6)) of OSHA's Asbestos standard for general industry and
in conformance with the asbestos waste disposal requirements of the
Asbestos NESHAP at 40 CFR 61.150 and any other applicable and existing
law as may apply to the commercial disposal of chrysotile asbestos and
chrysotile asbestos-containing products or article. This requirement
would apply to any unused or end-of-use products for these uses.
7. Other provisions of the primary alternative regulatory action.
a. Prohibition 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:
The primary alternative regulatory action would prohibit the
manufacture (including import), processing, and distribution in
commerce of aftermarket automotive chrysotile asbestos-containing
brakes/linings for consumer use and of other asbestos-containing
gaskets for consumer use two years after the effective date of the
final rule. This additional amount of time from the proposed regulatory
option aligns with the compliance dates provided for commercial use of
these asbestos-containing articles. The rationale for this compliance
date is the same as provided in that earlier Unit.
b. Downstream notification:
EPA would require as part of the primary alternative regulatory
action under TSCA section 6(a)(3) that manufacturers (including
importers), processors, and distributors 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 provide notification of the prohibitions through
existing safety data sheets (SDS) by adding to sections 1(c) and 15 of
the SDS the following language: ``This chemical/item is not and cannot
be distributed in commerce (as defined in TSCA section 3(5)) or
processed (as defined in TSCA section 3(13)) for commercial and
consumer use after [prohibition date].''
The requirement under the primary alternative regulatory action
would take effect 180 days after the effective date of the final rule
in order to provide adequate time to undertake the changes to the SDS
and ensure that all products in the supply chain include the revised
SDS.
c. Primary alternative regulatory action for signage and labeling
requirements:
EPA would also, pursuant to TSCA section 6(a)(3), require
processors, and commercial users of chrysotile asbestos in bulk form or
as part of chrysotile asbestos chlor-alkali diaphragms and chrysotile
asbestos-containing sheet gaskets used in chemical production to post
visible and clearly noticeable signs in the work area of the ECEL
value, compliance with any monitoring requirements, and worker
protection requirements in this rule. Such signs would be used where
any worker or ONU may be exposed to chrysotile asbestos and according
to the requirements for signage under 29 CFR 1910.1001(j)(4).
V. 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 proposed rule as well as
discussions under TSCA section 6(c)(2)(D) about replacement parts and
under TSCA section 6(c)(2)(E) about articles.
A. Health Effects of Chrysotile Asbestos and the Magnitude of Human
Exposure to Chrysotile Asbestos
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
[[Page 21728]]
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 drive 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 144
workers and 276 ONUs are exposed to chrysotile asbestos at over 31
commercial operations either processing or using products containing
chrysotile asbestos. Additional workers and ONUs are exposed to
oilfield brake blocks and 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:
<bullet> Diaphragms--100 workers and 100 ONUs at 9 sites;
<bullet> Sheet gasket stamping--4 workers and 8 ONUs at 4 sites;
<bullet> Sheet gasket use--22 workers and 150 ONUs at 5 sites;
<bullet> Oilfield brake blocks--Unknown;
<bullet> Aftermarket automotive brakes--15 workers and 15 ONUs at
12 sites;
<bullet> Other vehicle friction products--Unknown;
<bullet> Other gaskets--Unknown; and
<bullet> 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.D., EPA did not evaluate hazards or
exposures to the general population in the Part 1 asbestos risk
evaluation.
B. Environmental Effects of Chrysotile Asbestos and the Magnitude of
Exposure of the Environment to Chrysotile Asbestos
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 section 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.
C. Benefits of Chrysotile Asbestos for Various Conditions of Use
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 300 metric tons of raw chrysotile asbestos were imported
into the United States in 2020 (Ref. 3). This raw asbestos is used
exclusively by the chlor-alkali industry and imported amounts between
2016 and 2020 ranged from 172 to 747 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. 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 proposed rule.
D. 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,
[[Page 21729]]
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 proposed 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 proposes to find
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 the proposed rule.
E. Article Considerations Under TSCA Section 6(c)(2)(E)
EPA is proposing to regulate the manufacture, processing, and
distribution in commerce of articles containing chrysotile asbestos.
TSCA section 6(c)(2)(E) states that 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 based on the proposed definition of ``article'' in the proposed
rule, the conditions of use subject to this proposed 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 proposed 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 risks 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,
no other restriction EPA researched could sufficiently prevent
unreasonable risk to ONUs, consumers, and bystanders who were not
expected to wear respiratory protection. Accordingly, EPA's proposed
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.
F. Reasonably Ascertainable Economic Consequences of the Rule
The reasonably ascertainable economic consequences of this rule
include several components, all of which are described in the economic
analysis for this proposed rule and summarized here (Ref. 2).
1. Likely effect of the rule on the national economy, small
business, technological innovation, the environment, and public health.
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). Given the current GDP of $23.17 trillion, this is
equivalent to a cost of $58 billion to $116 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 proposal. While EPA assumes that chlor-alkali plants
currently using asbestos diaphragms will convert to non-asbestos
technologies, some facilities may choose not to do so before the
effective prohibition date in the proposed rule. As a result, the rule
may result in plant closures and job losses, at least temporarily, at
some chlor-alkali plants as well as at facilities that use chlorine,
caustic soda, or their derivatives as intermediates. There may be
similar employment effects at chemical plants using asbestos gaskets.
However, there may also be 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
would affect at least 15 small entities, of which 12 are businesses
supplying aftermarket brakes incurring costs between $778 and $11,523
per firm (depending on the number of brake replacements they perform).
Nine of the brake replacement firms have a cost impact of less than 1%
of the annual revenue. Of the three small entities estimated to be
affected by the rule that are not supplying aftermarket brakes, two
manufacture sheet gaskets for chemical production and one imports
oilfield brake blocks. EPA did not have the information necessary to
estimate the cost impacts on the other three small entities (Ref. 2).
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
[[Page 21730]]
and ovary (Ref. 2). Despite the uncertainties about possible greater
use and release of PFAS discussed in Unit III.B.4.a, EPA believes the
benefits of removing chrysotile asbestos, a known human carcinogen that
causes an aggressive and deadly cancer (mesothelioma), 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 membrane cells reduces
electricity consumption 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).
2. Costs and benefits of the proposed regulatory action and of the
primary alternative regulatory actions considered by the Administrator.
a. Proposed regulatory action:
EPA was able to quantify the costs of the proposed regulatory
action to the chlor-alkali industry and the aftermarket automotive
brake industry. For the chlor-alkali industry, the proposed rule is
predicted to require an investment of approximately $1.8 billion to
convert the remaining plants with asbestos diaphragm cells to membrane
cell technology. That conversion would result in significant energy
savings that would accrue over the long run. EPA anticipates that most
of these conversions would occur in the baseline in the coming decades
even without the proposed rule, following existing trends in the chlor-
alkali industry to transition away from asbestos. When taking the
capital costs and energy savings into account over a 20-year period,
the proposed rule is estimated to result in incremental annualized net
costs to the chlor-alkali industry of $49 million per year using a 3
percent discount rate and $87 million per year using a 7 percent
discount rate. Membrane cells also produce a higher grade of caustic
soda that has historically commanded a higher price than the product
from diaphragm cells. If this price differential continues, converting
to membrane cells could generate incremental net annualized savings of
approximately $35 million per year using a 3% discount rate and about
$40,000 per year using a 7% discount rate, when considered over a 20-
year period.
The extent to which the higher grade of caustic soda will continue
to command a higher relative price when produced in larger quantities
depends on the elasticity of demand for the higher-grade product. EPA
lacks sufficient information to characterize the demand curve for
chlor-alkali products, including higher grade caustic soda. If the
caustic soda price differential declines but is still greater than
zero, then the incremental annualize net costs to the chlor-alkali
industry will fall between these estimates. The proposed rule would
result in total annualized costs for aftermarket automotive brakes
estimated at approximately $25,000 per year using a 3% discount rate
and $18,000 per year using a 7% discount rate.
EPA was unable to estimate the costs of prohibiting the commercial
use of asbestos for other products that are subject to the rule (sheet
gaskets used in chemical production, oilfield brake blocks, other
vehicle friction products, or other gaskets). EPA requests comment on
the costs of the rule for each of these use categories.
If there is no revenue gain from the higher grade of caustic soda
produced, the combined quantified annualized costs of the rule for the
chlor-alkali and aftermarket automotive brake industries would be
approximately $49 million per year and $87 million per year using a 3
percent and 7 percent discount rate, respectively. If there is a
revenue gain from caustic soda, the net quantified savings could be
approximately $35 million per year and $27,000 per year using a 3
percent and 7 percent discount rate, respectively. Because the costs of
prohibiting the commercial use of asbestos in sheet gaskets, oilfield
brake blocks, other friction products, and other gaskets could not be
quantified, these combined values are an upper bound estimate of total
cost savings and a lower bound estimate of total costs (Ref. 2).
The combined national quantified benefits of avoided cancer cases
are approximately $3,000 per year using a 3% discount rate and $1,200
per year using a 7% discount rate. These reflect the benefits related
to the rule's requirements for chlor-alkali diaphragms, sheet gaskets
for chemical production, and aftermarket brakes. EPA did not estimate
total benefits of the requirements for 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.
In addition to the quantified benefits of avoided cancer cases
associated with asbestos exposure, the proposed rule may generate
significant benefits from reduced air pollution associated with
electricity generation. Chlor-alkali production is one of the most
energy-intensive industrial operations. According to the U.S.
Department of Energy the industry consumed approximately 317 trillion
Btu per year as of 2004, amounting to approximately 2% of the total
electric power used in the United States (Ref. 21). Since membrane
cells are more energy efficient than diaphragm cells, converting to
membrane cells reduces electricity consumption and thus the level of
pollutants associated with electric power generation, including carbon
dioxide, particulate matter, sulfur dioxide, and nitrogen oxides. There
is uncertainty about the magnitude and location of these emission
reductions. EPA's economic analysis used a simplifying assumption that
the electric power used by chlor-alkali plants is all purchased from
commercial electric generating units. EPA then used information on
regional electricity markets to estimate how changes in electricity
demand would affect emissions of greenhouses gases and criteria air
pollutants. EPA performed this sensitivity screening-level analysis
which found that converting asbestos diaphragm plants to membrane cells
could yield tens of millions of dollars per year in environmental and
health benefits from reduced emissions of particulate matter, sulfur
dioxide, nitrogen oxides, and carbon dioxide (Ref. 2). Please see
Chapter 4, Section 4.4 of the economic analysis for more discussion.
EPA estimated the potential health and environmental benefits of
reduced emissions of carbon dioxide using the federal government's
interim estimates of the social cost of greenhouse gases. EPA does not
rely on the interim estimates of the social cost of greenhouse gases as
a record basis for this Agency action, and the Agency would propose the
same conclusion regarding the requirements of this proposed rule even
in the absence of the social cost of greenhouse gases.
b. Primary alternative regulatory action:
Under the primary alternative action, the capital investment needed
to convert chlor-alkali plants to membrane cells would be spread out
over five years instead of two, but the energy savings and any revenue
gains from producing a higher grade of caustic soda would accrue more
slowly as well. The total annualized costs to the chlor-alkali industry
of the additional requirements for compliance with the ECEL as well as
disposal, downstream notification, and recordkeeping requirements are
estimated to be approximately $103,000 per year using a 3% discount
rate and $127,000 per year using a 7% discount rate, assuming the
industry relies solely on the use of upgraded PPE to comply
[[Page 21731]]
with the ECEL. If there are no revenue gains from caustic soda, the
total 20-year annualized incremental net costs of all the requirements
for the chlor-alkali industry would be $48 million per year and $77
million per year using a 3% and 7% discount rate, respectively. If the
higher grade of caustic soda generates increased revenues, the chlor-
alkali industry could have an overall annualized incremental net
savings over 20 years of $27 million per year using a 3% discount rate;
using a 7% discount rate, the industry is predicted to incur an
annualized net cost of $4 million per year.
The total annualized costs of the alternative option for
aftermarket automotive brakes are estimated at approximately $24,000
per year using a 3% discount rate and $16,000 per year using a 7%
discount rate, which are similar to the costs of the proposed option
($25,000 per year using a 3% discount rate and $18,000 using a 7%
discount rate).
EPA was not able to estimate the costs of prohibiting the use of
asbestos sheet gaskets for chemical production. The total annualized
cost of the other requirements for this industry (ECEL, disposal,
downstream notification, and recordkeeping requirements) is estimated
to be approximately $230,000 per year using a 3% discount rate and
$285,000 per year using a 7% discount rate (assuming that the industry
relies solely on PPE to comply with the ECEL).
For the remaining use categories (oilfield brake blocks, other
vehicle friction products, and other gaskets), EPA was unable to
estimate the costs of prohibiting the manufacturing, processing,
distribution or commercial use of asbestos, disposal, downstream
notification, or recordkeeping requirements, as the Agency was unable
to estimate the number of affected sites.
The combined quantified incremental annualized costs of the
alternative option for the chlor-alkali, aftermarket automotive brake,
and sheet gasket industries would be approximately $48 million per year
and $78 million per year using a 3% and 7% discount rate, respectively,
if there is no revenue gain from the higher grade of caustic soda
produced. If there is a revenue gain from producing a higher grade of
caustic soda, the alternative option could result in combined
quantified savings of approximately $26 million per year using a 3%
discount rate but combined quantified costs of approximately $4 million
per year using a 7% discount rate. Because the costs of prohibiting the
use of asbestos in sheet gaskets could not be calculated, nor any of
the costs for oilfield brake blocks, other friction products, and other
gaskets, these combined values are an upper bound estimate of total
savings and a lower bound estimate of total costs.
The combined national quantified benefits of avoided cancer cases
under the alternative option are approximately $2,900 per year using a
3% discount rate and $1,100 per year using a 7% discount rate. These
reflect the benefits related to the rule's requirements for chlor-
alkali diaphragms, sheet gaskets for chemical production, and
aftermarket brakes. EPA did not estimate total benefits of the
requirements for 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. As is
the case with the proposed option, converting asbestos diaphragm plants
to membrane cells could yield tens of millions of dollars per year in
environmental and health benefits from reduced criteria air pollution
and CO<INF>2</INF> emissions due to decreased electricity consumption
and production (Ref. 2).
3. Cost effectiveness of the proposed regulatory action and primary
alternative regulatory actions considered by the Administrator.
For the COUs where EPA determined that chrysotile asbestos presents
an unreasonable risk of injury to health or the environment, both the
proposed option and the alternative option reduce unreasonable risks to
the extent necessary such that risk is no longer presented. In
achieving this result, however, the estimated costs of the proposed
option and the alternative option differ as described in Unit V.F. The
costs of achieving the desired outcome via the proposed option or the
alternative option can be compared to evaluate cost-effectiveness. The
cost-effectiveness of the options depends on whether and to what extent
the higher grade of caustic soda produced by membrane cells generates
increased revenues for chlor-alkali manufacturers. If the revenues from
caustic soda do increase, the proposed option results in estimated
annualized cost savings of about $35 million per year using a 3%
discount rate or about $27,000 using a 7% rate. The alternative option
is estimated to result in annualized savings of about $26 million per
year using a 3% discount rate or annualized costs of about $4 million
per year using a 7% rate. In this revenue increasing scenario the
proposed option will be more cost effective in addressing the
unreasonable risk. If there is no increase in revenues, the estimated
annualized costs of the proposed rule are about $49 million per year
using a 3% discount rate or about $87 million per year using a 7% rate.
The estimated annualized costs of the alternative option are about $48
million per year using a 3% discount rate or about $78 million per year
using a 7% rate. In this revenue neutral scenario the alternative
option will be more cost effective in addressing the unreasonable risk.
In the latter scenario, the difference in annualized costs between the
options is largely due to the differences in their effective dates.
This is because costs that occur farther in the future have smaller net
present values and annualized values than the same costs that occur
sooner. The dates when the manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos are
prohibited occur later under the alternative option than under the
proposed option. The differences in the annualized costs are mainly due
to discounting and are not driven by differences in the estimated unit
costs of compliance between the two options.
4. Request for comment on economic analysis.
EPA's economic analysis used a simplifying assumption that the
electric power used by chlor-alkali plants is all purchased from
commercial electric generating units. EPA then used information on
regional electricity markets to estimate how changes in electricity
demand would affect emissions of greenhouses gases and criteria air
pollutants. EPA requests comment on this assumption and approach to
estimating emissions reductions. EPA further requests information on
how much of the electric power for the chlor-alkali plants affected by
this rule is purchased from commercial electric generating units and
where these units are located; how much power is provided by on-site
co-generation units; what fuels are used by both types of power
sources; and how the mix of electricity sources and fuel types would be
affected by a conversion to membrane cells or non-asbestos diaphragms.
EPA also requests comment on the extent to which the power produced by
these co-generation units is sold or exported, as well as the extent to
which the electricity or heat produced is used on-site to produce goods
other than chlorine or caustic soda (e.g., ethylene dichloride, vinyl
chloride monomer, chlorinated organics, etc.).
The chlor-alkali production occurs in three steps: Pre-electrolysis
brine preparation, electrolysis, and post-electrolysis after-treatment
of the chlorine and caustic soda. EPA estimated the net cost of
converting
[[Page 21732]]
from asbestos diaphragms to membranes or non-asbestos diaphragms based
on the capital costs of the conversion, the electricity savings of the
electrolysis step, and the potential for increased revenue from a
higher grade of caustic soda. EPA requests comment on the methodology
and data it used to estimate these values.
EPA estimated the cost to convert asbestos diaphragm cell chlor-
alkali capacity to membrane technology based on the average cost per
ton from two different studies, a 2001 paper by Stanley and a 2014
study by the European Commission. EPA requests comment on reasons why
using the information from one or the other study might predict the
costs of this rule more accurately than using the average of the two.
EPA requests that commenters identify whether there are more recent
published studies that would be appropriate for estimating the
conversion costs from asbestos diaphragms to non-asbestos diaphragms or
membrane cells. EPA also requests data on other capital costs or
savings associated with the conversion (e.g., the avoidance of
refurbishment costs for existing asbestos diaphragm cells).
Brine preparation and the treatment of the chlorine and caustic
soda require electricity, steam, and chemical inputs. The different
production technologies can require different amounts of these inputs
at various steps in the production process. EPA requests data on the
positive and negative differences in operating costs per unit of output
and energy use per unit of output between asbestos diaphragms,
membranes, and non-asbestos diaphragms, specific to each of the various
input processing, electrolysis, and output processing steps.
EPA estimated the energy savings and potential revenue gains of the
rule for the chlor-alkali industry based on a capacity utilization rate
of 88%, which reflects a typical operating rate for the industry in
recent years. EPA requests comment on whether an alternative value
would better represent a typical operating rate over the twenty-year
analytical timeframe used in EPA's analysis.
EPA requests information relevant to determining whether increased
costs for chlorine and caustic soda that may result from the rule would
lead to disproportionate or adverse effects on water systems that serve
populations with a higher concentration of people of color or lower
incomes than the total U.S. population.
EPA requests comment on its analyses of the number of affected
firms for the sheet gasket for chemical production, oilfield brake
block, aftermarket automotive brake, other gasket, and other vehicle
friction use categories and the costs they would incur as a result of
the proposed rule, as well as information that the Agency could use to
improve these estimates.
VI. TSCA Section 9 Analysis and Section 26(h) Considerations
A. TSCA Section 9(a) Analysis
Section 9(a) of TSCA provides that,
[…truncated; see source link]Indexed from Federal Register on April 12, 2022.
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