Proposed Rule2023-05325
Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain Conditions of Use Under Section 6(a) of the Toxic Substances Control Act (TSCA); Notice of Data Availability and Request for Comment
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Published
March 17, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is announcing the availability of and soliciting public comment on additional data received by EPA related to the proposed rule for Part 1: Chrysotile Asbestos; Regulations of Certain Conditions of Use under TSCA. These additional data pertain to chrysotile asbestos diaphragms used in the chlor-alkali industry and chrysotile asbestos-containing sheet gaskets used in chemical production and may be used by EPA in the development of the final rule, including EPA's determination of what constitutes "as soon as practicable" with regard to the proposed chrysotile asbestos prohibition compliance dates for these uses.
Full Text
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<title>Federal Register, Volume 88 Issue 52 (Friday, March 17, 2023)</title>
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[Federal Register Volume 88, Number 52 (Friday, March 17, 2023)]
[Proposed Rules]
[Pages 16389-16391]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05325]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 751
[EPA-HQ-OPPT-2021-0057; FRL-8332-04-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); Notice of Data Availability and Request for Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule, notice of data availability.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing the
availability of and soliciting public comment on additional data
received by EPA related to the proposed rule for Part 1: Chrysotile
Asbestos; Regulations of Certain Conditions of Use under TSCA. These
additional data pertain to chrysotile asbestos diaphragms used in the
chlor-alkali industry and chrysotile asbestos-containing sheet gaskets
used in chemical production and may be used by EPA in the development
of the final rule, including EPA's determination of what constitutes
``as soon as practicable'' with regard to the proposed chrysotile
asbestos prohibition compliance dates for these uses.
DATES: Comments must be received on or before April 17, 2023.
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. Additional
instructions on commenting or visiting the docket, along with more
information about dockets generally, is available at <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 (7404M), 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#e2858b8f8e8b8ccc9287968790a2879283cc858d94"><span class="__cf_email__" data-cfemail="43242a2e2f2a2d6d3326372631032633226d242c35">[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#bde9eefefc90f5d2c9d1d4d3d8fdd8cddc93dad2cb"><span class="__cf_email__" data-cfemail="0e5a5d4d4f2346617a6267606b4e6b7e6f20696178">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
In the Federal Register of April 12, 2022 (87 FR 21706 (FRL-8332-
02-OCSPP)), EPA proposed a rule under TSCA section 6(a) to address the
unreasonable risk presented by chrysotile asbestos under the conditions
of use evaluated in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos. EPA proposed to prohibit manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos for chrysotile asbestos diaphragms for use in the
chlor-alkali industry and chrysotile asbestos-containing sheet gaskets
used in chemical production, effective two years after the effective
date of the final rule, which is 60 days after publication of the final
rule. EPA also proposed to prohibit the manufacture (including import),
processing, distribution in commerce, and commercial use of chrysotile
asbestos-containing brake blocks used in the oil industry, aftermarket
automotive chrysotile asbestos-containing brakes/linings, other
chrysotile asbestos-containing vehicle friction products, and other
chrysotile asbestos-containing gaskets, effective 180 days after the
effective date of the final rule. EPA also proposed 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, effective 180 days after the
effective date of the final rule. Additionally, EPA proposed disposal
and related recordkeeping requirements. In accordance with TSCA section
6(c)(2)(A), EPA also discussed in the preamble to the proposed rule a
primary alternative regulatory option to address
[[Page 16390]]
the unreasonable risk presented by chrysotile asbestos under the
conditions of use evaluated in the Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos. This primary alternative regulatory option
included, among other requirements, a prohibition on the manufacture
(including import), processing, distribution in commerce, and
commercial use of chrysotile asbestos diaphragms in the chlor-alkali
industry and chrysotile asbestos-containing sheet gaskets in chemical
production effective 5 years after the effective date of the final rule
and a requirement to comply with an Existing Chemicals Exposure Limit
(ECEL) and related monitoring and recordkeeping requirements prior to
the prohibition taking effect.
After being extended 30 days (87 FR 31814, May 25, 2022 (FRL-8332-
03-OCSPP)), the comment period for the proposed rule closed on July 13,
2022. EPA received about 155 discrete comments as of the end of the
extended public comment period. In the proposed rule, EPA requested
public comment on several aspects of the proposed rule including the
proposed prohibition compliance dates for the manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos.
Specific to chrysotile asbestos diaphragms used in the chlor-alkali
industry, EPA sought public comment ``to support or refute its
assumption that [chlor-alkali] plants using asbestos diaphragms will
convert to non-asbestos technologies, and the timeframes required for
such conversions.'' 87 FR 21721. EPA sought 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,'' including information on 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. 87 FR 21726. EPA also requested information
on ``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.'' Id.
EPA received significant comment on these issues during the public
comment period for the proposed rule. EPA received comments supporting
the proposed two-year prohibition timeline, such as from the Asbestos
Disease Awareness Organization (ADAO). ADAO stated: ``EPA's proposal
correctly calls for the chlor-alkali industry to stop importing and
using asbestos two years after the final rule becomes effective. . . .
this phase-out deadline . . . can be accomplished without disrupting
the U.S. supply of chlorine and caustic soda . . . [industry's] recent
voluntary closure of substantial asbestos-diaphragm capacity
demonstrates that the remaining plants can be shut down quickly and
without hardship to industry or consumers.'' (EPA-HQ-OPPT-2021-0057-
0397). However, many commenters argued the two-year timeline would not
provide the chlor-alkali industry a reasonable transition period and
requested EPA provide additional time to allow the chlor-alkali
industry to transition away from asbestos-containing diaphragms, to
allow for this transition to occur without causing economic
disruptions, and public health impacts resulting from potential
disruption of drinking water disinfection supplies due to fluctuations
in the production of chlorine. Some commenters also expressed concerns
about the proposed alternative five-year timeline for similar reasons.
Commenters provided EPA with information on the conversion process to
non-asbestos technologies and the timing involved, including examples
from plants in the United States and elsewhere in the world. Commenters
noted that Canada provided 11 years for the conversion of one plant,
and in the European Union, Germany allowed 14 years for the conversion
of one plant. Comments indicated that a single plant could be converted
within 45 to 55 months, including project design and engineering,
permitting, construction and startup (EPA-HQ-OPPT-2021-0057-0405c).
However, commenters expressed concerns, including: ``recent supply
chain disruptions cast doubt on whether that aggressive five-year
timeline can be met for a single . . . facility conversion; it would be
clearly infeasible for multiple plant conversions. . . . Globally,
there are only four electrolyzer manufacturers. Based on raw metal
supply disruptions, electrolyzer market demand and production capacity,
manufacturers have indicated they may only support a large-scale
conversion every 3-4 years. . . . The logistical and cost-intensive
process of converting several facilities simultaneously compound the
infeasibility of EPA's proposed timeframe.'' (EPA-HQ-OPPT-2021-0057-
0405) That commenter (and others) noted the time required to obtain an
air permit: ``. . . preparing, applying for, and obtaining an [state]
air permit, which is generally required to commence construction, . . .
can easily take eighteen months or even the entire twenty-four-month
period.'' The commenter also noted ``. . . sequential conversion to
membrane is needed to maintain an ongoing supply of the chlor-alkali
chemicals. Even if it were possible to construct the plants
concurrently, shutting down that amount of capacity at the same time
would have dramatic impact on supply across many industries and public
services . . .'' (EPA-HQ-OPPT-2021-0057-0405). Many commenters raised
concerns about the impact the 2-year prohibition on the nation's supply
of chlorine and caustic soda, which are essential chemicals for many
industries. Many commenters asserted that a sudden shortage of chlorine
could severely impact the ability of municipal water treatment
facilities to disinfect public drinking water and therefore present a
public health concern.
After the close of the public comment period for the proposed rule,
EPA received comments and held meetings with stakeholders, including
affected industry and interested groups, related to the use of
chrysotile asbestos diaphragms in the chlor-alkali industry and
chrysotile asbestos-containing sheet gaskets used in chemical
production. Topics of these comments and meetings included media
reports regarding asbestos workplace practices in the chlor-alkali
industry, the timing of any prohibition on the manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos diaphragms and chrysotile asbestos-containing sheet
gaskets, and the requirement, included in the primary regulatory
alternative described in the preamble to the proposed rule, for
processors and users of chrysotile asbestos diaphragms and chrysotile
asbestos-containing sheet gaskets to comply with an ECEL as an interim
control measure prior to the effective date of a prohibition. Meetings
were held with: ADAO (July 6 & October 13, 2022); Chlorine Institute
(July 6, 2022); Dow Chemicals (October 28, 2022); Axial/Westlake
(November 3, 2022); Olin Corp. (November 14, 2022); OxyChem (November
16, December 7, 2022 & February 9, 2023), and Chemours (January 18,
2023). EPA received data as part of and following those stakeholder
meetings and is now making those public data and stakeholder meeting
summaries available to the public in the rulemaking docket (EPA-HQ-
OPPT-2021-0057). Some industry information made available to EPA has
been claimed as
[[Page 16391]]
confidential information under TSCA section 14 and is not available in
the public docket. The additional information provided in the docket
includes a supplemental letter from ADAO that provided additional
information and recommendations to EPA on chlor-alkali diaphragm use
(EPA-HQ-OPPT-2021-0057-0412). The ADAO letter notes a report on
workplace practices, which provides documentation on the exposure of
workers at chlor-alkali facilities to chrysotile asbestos. The letter
also provides information to show that the chlor-alkali industry ``has
shut down a substantial portion of its asbestos diaphragm production
capacity in the last three years and is in the process of transitioning
to non-asbestos membrane technology,'' and information on industry
conversion to membrane technology, specifically the conversion of the
OxyChem facility in LaPorte/Battleground, Texas (EPA-HQ-OPPT-2021-0057-
0412). Finally, in the letter, ADAO recommends EPA seek answers from
industry to seven specific questions regarding chlor-alkali production
statistics; reduction of asbestos-diaphragm capacity, supply of chlor-
alkali chemicals to water treatment facilities; specific conversion
plans for asbestos-diaphragm facilities; financial and economic
analyses, import volumes, and amounts of stockpiled asbestos (EPA-HQ-
OPPT-2021-0057-0412).
In addition, other information made available to EPA after the
close of the public comment period has been posted to the docket,
including several public comments submitted to EPA regarding the
potential impacts of the proposed rule's compliance date for the
prohibition on the commercial use of chrysotile asbestos diaphragms in
the chlor-alkali industry on the supply of chlorine used for drinking
water disinfection.
EPA received comments pertaining to the timing of the prohibition
on the manufacture (including import), processing, distribution in
commerce and commercial use of chrysotile asbestos diaphragms
requesting the consideration of the current transition schedules for
chlor-alkali facilities from chrysotile asbestos diaphragms to non-
asbestos alternative technology. For example, comments suggest it may
be practicable to prohibit the manufacture (including import) of
chrysotile asbestos before prohibiting processing, distribution in
commerce and commercial use of chrysotile asbestos, as all chlor-alkali
companies that currently use chrysotile asbestos already have or will
have a sufficient supply of chrysotile asbestos for foreseeable future
operations prior to the prohibition compliance dates. Regarding the
timing of the prohibition on processing, distribution in commerce and
commercial use, some commenters believe it may be practicable for the
compliance dates to vary for different affected persons, as comments
have informed EPA that individual chlor-alkali companies may have
different considerations for the timing of any transition away from
chrysotile asbestos diaphragm technology, based on whether they intend
to close or convert facilities, the number and size of facilities they
have, and inherent technical differences in specific plant conversions.
Comments received described the different approaches to move away from
chrysotile asbestos use given the different designs of chrysotile
asbestos diaphragm technology, the type of intended conversion to a
non-asbestos diaphragm technology or membrane technology, the limited
availability of suppliers and technical expertise during the conversion
process, as well as differences regarding permits needed for the
conversion of facilities and permitting timelines based on their
location. Comments indicate that an approach that can accommodate
differences among facilities may provide a reasonable transition period
for each remaining chlor-alkali facility still using chrysotile
asbestos diaphragms, while ensuring the associated unreasonable risk is
addressed as soon as practicable. Another commenter, however, believes
that since industry is already transitioning to non-asbestos chlor-
alkali technology an expeditious ban of the use of chrysotile asbestos
in chlor-alkali production will not only protect public health but
achieve important economic and environmental benefits.
Comments EPA received regarding the timing of the prohibition on
the manufacture (including import), processing, distribution in
commerce and commercial use of chrysotile asbestos-containing sheet
gaskets in chemical production, state that the prohibition compliance
date should be delayed for titanium dioxide production facilities to
allow a transition from chrysotile asbestos containing sheet gaskets to
non-asbestos sheet gaskets, as titanium dioxide producers have
different technical considerations from other chemical producers for
the transition away from the chrysotile asbestos-containing sheet
gaskets.
Comments from stakeholders also included discussion of workplace
monitoring strategies to comply with an asbestos ECEL during the
interim period prior to a prohibition on the commercial use of
chrysotile asbestos diaphragms. For example, AIHA stated that ``the
proposed exposure limits of 0.005 f/cc and 0.0025 f/cc cannot be
measured for an 8-hour work shift by existing sampling and analytical
protocols for asbestos . . . due to the volume of air that would need
to be collected to achieve the detection limit necessary . . .'' (EPA-
HQ-OPPT-2021-0057-0288). OxyChem has suggested that calculation of
compliance with an ECEL could take into account the assigned protection
factor (APF) used for individual tasks when such respirator use is
required by a facility's exposure control plan.
II. Request for Public Comments
EPA requests public comment on any data in the docket that was
received during and after the proposed rule public comment period, and
how EPA should consider it during the development of the final rule. In
particular, EPA is seeking comments on how to consider the additional
information received regarding maintaining the prohibition compliance
dates, staggering the prohibition compliance dates or establishing
longer deadlines for the prohibition on processing, distribution in
commerce and commercial use of chrysotile asbestos for chrysotile
asbestos diaphragms for use in the chlor-alkali industry and chrysotile
asbestos-containing sheet gaskets used in chemical production. EPA is
also seeking comments on the new information provided regarding the
practicability of measuring 0.005 f/cc and 0.0025 f/cc for an 8-hour
work shift by existing sampling and analytical protocols and how EPA
could put in place effective interim exposure reduction requirements in
a way that they are compatible with OSHA requirements and industrial
hygiene practices, where those requirements and practices will address
unreasonable risk until prohibitions are fully implemented. EPA also
seeks comments on the workplace safety concerns in the chlor-alkali
industry raised by ADAO in its comments.
List of Subjects in 40 CFR Part 751
Environmental protection, Chemicals, Export certification,
Hazardous substances, Import certification, Recordkeeping.
Dated: March 10, 2023.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2023-05325 Filed 3-16-23; 8:45 am]
BILLING CODE 6560-50-P
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