Occupational Exposure to Asbestos; Final Rule DEPARTMENT OF LABOR

SUMMARY: These final standards amend the Occupational Safety and Health

Administration's (OSHA's) standards issued June 17, 1986 (51 FR 22612,

29 CFR 1910.1001, June 20, 1986) for occupational exposure to asbestos

in general industry, and the construction industry, 29 CFR 1926.1101

(previously 1926.58). In addition, they include a separate standard

covering occupational exposure to asbestos in the shipyard industry,

(29 CFR 1915.1001). Major revisions in these standards include a

reduced time-weighted-average permissible exposure limit (PEL) of 0.1

fiber per cubic centimeter (f/cc) for all asbestos work in all

industries, a new classification scheme for asbestos construction and

shipyard industry work which ties mandatory work practices to work

classification, a presumptive asbestos identification requirement for

``high hazard'' asbestos containing building materials, limited

notification requirements for employers who use unlisted compliance

methods in high risk asbestos abatement work, and mandatory methods of

control for brake and clutch repair.

Most of the revisions in these amended standards are the final

response to an order of the Court of Appeals for the District of

Columbia Circuit, Building and Construction Trades Department v. Brock,

838 F. 2d 1258, (D.C. Cir 1988), which had upheld the 1986 standards in

major respects, but which had remanded certain issues for

reconsideration. OSHA had made earlier changes in response to the court

order on December 14, 1989 (54 FR 52024, December 20, 1989), and on

February 5, 1990 (55 FR 3724).

OSHA believes that these final standards fully address all of the

concerns of the participants in this rulemaking and are responsive to

all issues remanded by the court for reconsideration.

DATES: The effective date of these amendments is October 11, 1994.

Various start-up dates are specified in the standards.

For Further Information Contact: Mr. James F. Foster, Director of

Information and Consumer Affairs, Occupational Safety and Health

Administration, U.S. Department of Labor, Room N3647, 200 Constitution

Avenue, NW., Washington, DC 20210, telephone (202) 219-8151.

Supplementary Information:

Table of Contents

I. Regulatory History

II. Pertinent Legal Authority

III. Summary and Explanation of Revised Standards

a. General Issues

b. Regulatory Text Issues

IV. Final Regulatory Impact and Regulatory Flexibility Analysis

V. Clearance of Information Collection Requirements

VI. Authority and Signature

VII. Amended Standards

I. Regulatory History

OSHA has regulated asbestos several times as more information has

become available. Asbestos rulemakings marked the early years of the

Agency. A 12 f/cc permissible exposure limit (PEL) for asbestos was

included in the initial promulgation on May 29, 1971 (36 FR 10466) of

OSHA standards pursuant to Section 6(a) of the Act. In response to a

petition by the Industrial Union Department of the AFL-CIO, OSHA issued

an Emergency Temporary Standard (ETS) on asbestos on December 7, 1971,

which established a PEL of 5 f/cc as an 8-hour time-weighted average

(TWA) and a peak exposure level of 10 f/cc.

In June 1972, OSHA promulgated a new final standard that

established an 8-hour TWA PEL of 5 f/cc and a ceiling limit of 10 f/cc.

These limits were intended primarily to protect employees against

asbestosis, and it was hoped that they would provide some incidental

degree of protection against asbestos induced forms of cancer.

Effective July 1976, OSHA's 8-hour TWA limit was reduced to 2 f/cc and

this limit remained in effect up to the effective date of the revised

1986 standards.

In October 1975, OSHA published a notice of proposed rulemaking (40

FR 47652) to revise the asbestos standard because the Agency believed

that ``sufficient medical and scientific evidence has been accumulated

to warrant the designation of asbestos as a human carcinogen'' and that

advances in monitoring and protective technology made re-examination of

the standard ``desirable.'' This proposal would have reduced the 8-hour

TWA to 0.5 f/cc and imposed a ceiling limit of 5 f/cc for 15 minutes.

The 1975 proposal would have applied to all industries except

construction.

At that time no separate proposal applicable to the construction

industry was developed by the Agency.

On May 24, 1983 OSHA consulted with the Advisory Committee for

Construction Safety and Health (``ACCSH'') concerning the applicability

of any new asbestos standard to the construction industry. ACCSH

endorsed OSHA's position that any new PEL adopted for general industry

should also apply to the construction industry (Ex. 84-424).

On November 4, 1983 OSHA published an ETS for asbestos (48 FR

51096). The ETS marked a new regulatory initiative, related to, but not

part of the 1975 proceeding. The ETS was held invalid by the

U.S.Circuit Court of Appeals for the Fifth Circuit on March 7, 1984.

Subsequently, OSHA published a notice of proposed rulemaking (49 FR

1416, April 10, 1984) for a standard covering occupational exposure to

asbestos in all work places subject to the Act. Pursuant to Section

6(c) of the Act, the ETS also served as a proposed rule. On June 17,

1986, OSHA issued two revised standards, one governing occupational

exposure to asbestos in general industry workplaces, the other

applicable to construction workplaces (51 FR 22612 et seq., June 20,

1986). Effective July 21, 1986, the revised standards amended OSHA's

previous asbestos standard issued in 1972. The 1986 standards

explicitly applied to occupational exposure to non-asbestiform

tremolite, anthophyllite and actinolite. After a subsequent and

separate rulemaking proceeding OSHA has deleted these minerals from the

scope of the asbestos standards. (57 FR 24310, June 8, 1992).

The separate comprehensive asbestos standards for general industry

and construction which were issued in 1986 shared the same permissible

exposure limit (PEL) and most ancillary requirements. Both standards

reduced the 8-hour time weighted average (TWA) PEL tenfold to 0.2 f/cc

from the previous 2 f/cc limit. Specific provisions were added in the

construction standard to cover unique hazards relating to asbestos

abatement and demolition jobs.

Several major participants in the rulemaking proceeding including

the AFL-CIO, the Building and Construction Trades Department (BCTD) of

the AFL-CIO, and the Asbestos Information Association (AIA), challenged

various provisions of the revised standards. On February 2, 1988, the

U.S. Court of Appeals for the District of Columbia issued its decision

upholding most major challenged provisions, but remanding certain

issues to OSHA for reconsideration (BCTD, AFL-CIO v. Brock, 838 F.2d

1258). The Court determined that OSHA had not adequately explained why

it was not adopting certain recommended provisions in light of evidence

suggesting that those provisions would be feasible to implement and

would provide more than a de minimis benefit for worker health. The

Court also ordered OSHA to clarify the regulatory text for two

provisions and found one provision, a ban of spraying asbestos-

containing products, unsupported by the record. In addition, OSHA's

failure to adopt a short-term exposure limit (STEL) was ordered to be

reconsidered within 60 days of the Court's mandate. In partial

response, OSHA issued a STEL of 1 f/cc measured over a 30-minute

sampling period, on September 14, 1988 (53 FR 35610).

In response to additional petitions by BCTD and the AFL-CIO, the

Court, in an October 30, 1989 order, divided the remand issues into

three categories as follows. With respect to three issues, the Court

ordered OSHA to take action by December 14, 1989. These issues were:

Issue 1. formally delete the ban on the spraying of asbestos-

containing materials;

Issue 2. clarify that periodic monitoring in the construction

industry must be resumed after conditions change; and

Issue 3. Clarify the exemption for ``small-scale, short duration

operations'' from the negative-pressure enclosure requirements of

the construction standard to limit the exemption to work operations

where it is impractical to construct an enclosure because of the

configuration of the work environment.

OSHA issued its response on these issues on December 14, 1989 (54

FR 52024, December 20, 1989). In that document OSHA (1) removed the ban

on the spraying of asbestos-containing materials; (2) changed the

regulatory text to clarify that construction employers must resume

periodic monitoring whenever there has been a change in process,

control equipment, personnel or work practices that may result in new

or additional asbestos exposure; and (3) explained why OSHA was not

amending the regulatory text to clarify the limited exemption for

``small-scale, short-duration operations'' in the construction industry

standard, but instead would institute rulemaking on this issue.

With respect to the second group of issues, the Court ordered OSHA

to complete its response on the existing record by January 28, 1990.

These issues are:

Issue 4. The possibility of further regulations governing

employee smoking controls;

Issue 5. The effectiveness levels of various respirators and

OSHA's policy of requiring respirators to protect workers at only

PEL level; and

Issue 6. The possibility of bi-lingual warnings and labels for

employers with a significant number of non-English-speaking

employees.

The Court stated that if OSHA determines that these issues could

not be resolved on the existing record, OSHA may explain why and

commence new rulemaking instead.

On January 28, 1990, OSHA issued its response on these issues (55

FR 3724, February 5, 1990). In that document, OSHA: (1) prohibited

workplace smoking in areas where occupational exposure to asbestos

takes place; expanded training requirements to include information

about available smoking cessation programs; required the distribution

of self-help smoking cessation material; and, required a written

opinion by the physician stating that the employee has been advised of

the combined dangers of smoking and working with asbestos; (2)

explained how and why the 1986 respiratory protection standards will

reduce employee risk below that remaining solely as a result of the

PEL, and that the effectiveness levels of respirators are under review;

and (3) required employers to ensure that employees working in or near

regulated areas understand warning signs, and required training

programs to specifically instruct employees as to the content and

presence of signs and labels.

Finally, as to the third group of three remaining remand issues,

the Court ordered OSHA to resolve these issues after rulemaking. These

issues are:

Issue 7. The establishment of operation-specific permissible

exposure limits;

Issue 8. The extension of reporting and information transfer

requirements; and

Issue 9. The expansion of the competent person requirement to

all employers engaged in any kind of construction work.

In addition, the Court granted OSHA's unopposed request to publish

the Notice of Proposed Rulemaking on this group of issues on April 13,

1990, to allow sufficient time to consult with the Advisory Committee

on Construction Safety and Health (ACCSH). Under the Construction

Safety Act (40 USC 333) and regulations in 29 CFR 1911.10 and 29 CFR

1912.3, OSHA was required to consult with that committee in the

formulation of regulatory proposals which would apply to employment in

construction. OSHA presented the proposed regulatory text and pertinent

explanatory materials to the ACCSH and consulted with them on March 14,

1990. The Committee submitted comments and suggestions which were

discussed in the proposal. The Court, on May 2, 1990 granted OSHA's

further motion and extended the time to issue the proposal until July

12, 1990, in order to allow coordination of the proposal with other

regulatory agencies, in particular EPA.

The proposed revisions were published July 20, 1990 (55 FR 29712).

The date for close of the public comment period in the NPRM was

September 25, 1990 with the public hearing scheduled to commence

October 23, 1990. However, several interested parties requested

additional time for comment on the NPRM due to the breadth of issues it

presented. OSHA felt the objective of developing a complete rulemaking

record would be served and extended the period for submission of public

comments and for notices to appear at the informal hearing until

December 3, 1990. The Agency also rescheduled the informal hearing to

begin January 23, 1991. In the notice extending the time periods, OSHA

also explained more clearly that the ACCSH report referenced in the

NPRM was submitted by the labor representatives on that committee and

not by the committee as a whole (55 FR p. 38703, September 20, 1990).

The informal hearing was held for 13 days from January 23 to

February 8, 1991. At the close of the hearing Administrative Law Judge

Sheldon Lipson set April 12, 1991 as the close of the post-hearing

comment period and June 12, 1991 as the close of the post-hearing

briefing period. Subsequently on request, Judge Lipson extended these

periods to April 26 and June 26 respectively. BCTD requested OSHA

extend the post-hearing briefing period 4 weeks to allow additional

time to fully address all issues of concern due to the extent and

complexity of the records. OSHA granted this request and notified

participants that the post-hearing briefing period was extended to July

24, 1991.

On November 3, 1992, by Federal Register notice, OSHA re-opened the

comment period to allow supplementary public comment on options to

protect workers from inadvertent exposure to asbestos in buildings (57

FR 49697). This issue, not part of the Court's remand order, was

broached by the Agency in the preamble to the proposal, and had been

the subject of litigation brought by Service Employees International

Union (SEIU) against EPA. In 1988 the Service Employees International

Union, AFL-CIO petitioned the Environmental Protection Agency for

regulation of asbestos in public and commercial buildings and

subsequently sued the Agency. This resulted in the convening of a

series of ``Policy Dialogue'' meetings established by EPA in an attempt

to reach agreement on issues concerning asbestos in public and

commercial buildings. As discussed in the NPRM of July 20, 1990, OSHA

and a variety of other interested parties participated in the meetings

which took place between May 1989 and May 1990. These groups included

realty interests, lenders and insurance interests, unions, asbestos

manufacturers, public interest groups, asbestos consultants and

contractors and states. The group failed to agree on all issues, but

did generally agree that the presence of asbestos should be known to

building service workers. The major area of disagreement in the group

dealt with the characterization of risk to general building occupants

and office workers. The group also did not agree on the need for

specific federal asbestos inspection requirements.

SEIU and other unions also participated in this rulemaking and

urged OSHA to issue a building inspection rule. After discussions with

EPA and review of the record concerning how best to protect employees

against unknowing exposure the Agency published a request for comment

on a regulatory approach to protect building service workers. The

approach would require certain high-risk materials in accessible

building/facility areas be designated presumptive asbestos containing

materials and thus be treated as if they contained asbestos, until or

unless the presumption was rebutted through sampling or specific

information in the owner's possession relation to construction

specifications. The notice also asked for comments on the Health

Effects Institute (HEI) report which had been submitted to the record

after the close of the post-hearing briefing periods. The notice

resulted in submission of an additional 60 sets of comments, and the

comment period closed on January 4, 1993.

The record of this rulemaking consists of over 55,000 pages. OSHA

has worked closely with EPA so that the regulations of both agencies

are compatible to the extent OSHA's mandate allows.

II. Pertinent Legal Authority

Authority for issuance of this standard is found primarily in

sections 6(b), 8(c), and 8(g)(2) of the Occupational Safety and Health

Act of 1970 (the Act), 29 U.S.C. 655(b), 657(c), and 657(g)(2) and in

the Construction Safety Act, 40 U.S.C. 333. Section 6(b)(5) governs the

issuance of occupational safety and health standards dealing with toxic

materials or harmful physical agents. Section 3(8) of the Act defines

an occupational safety and health standard as:

* * *A standard which requires conditions, or the adoption or

use of one or more practices, means, methods, operations, or

processes, reasonably necessary or appropriate to provide safe or

healthful employment and places of employment.

The Supreme Court has said that section 3(8) applies to all

permanent standards promulgated under the Act and requires the

Secretary, before issuing any standard, to determine that it is

reasonably necessary and appropriate to remedy a significant risk of

material health impairment. Industrial Union Department v. American

Petroleum Institute, 448 U.S. 607 (1980).

The ``significant risk'' determination constitutes a finding that,

absent the change in practices mandated by the standard, the workplaces

in question would be ``unsafe'' in the sense that workers would be

threatened with a significant risk of harm. Id. at 642. A significant

risk finding, however, does not require mathematical precision or

anything approaching scientific certainty if the ``best available

evidence'' does not warrant that degree of proof. Id. at 655-656; 29

U.S. 655 (b)(5). Rather, the Agency may base its finding largely on

policy considerations and has considerable leeway with the kinds of

assumptions it applies in interpreting the data supporting it, Id. 655-

656; 29 U.S. 655(b)(5). The Court's opinion indicates that risk

assessments, which may involve mathematical estimates with some

inherent uncertainties, are a means of demonstrating the existence of

significant risk.

The court further stated:

It is the Agency's responsibility to determine in the first

instance what it considers to be a ``significant'' risk. Some risks

are plainly acceptable and others are plainly unacceptable. If, for

example, the odds are one in a billion that a person will die from

cancer by taking a drink of chlorinated water, the risk clearly

could not be considered significant. On the other hand, if the odds

are one in a thousand that regular inhalation of gasoline vapors

that are 2% benzene will be fatal a reasonable person might well

consider the risk significant and take the appropriate steps to

decrease or eliminate it. (I.U.D. v A.P.I., 448 U.S. et 655).

OSHA has always considered that a working lifetime risk of death of

over 1 per 1000 from occupational causes is significant. This has been

consistently upheld by the courts. See the recent discussion in the

cadmium preamble 57 FR 42102, 42204 and the earlier asbestos preambles.

OSHA believes that compliance with these final amendments to reduce

the PEL to 0.1 f/cc as a time-weighted average measured over 8 hours

will further reduce a significant health risk which existed after

imposing a 0.2 f/cc PEL. OSHA's risk assessment accompanying the 1986

standard, showed that lowering the TWA PEL from 2 f/cc to 0.2 f/cc

reduces the asbestos cancer mortality risk from lifetime exposure from

64 deaths per 1,000 workers to 7 deaths per 1,000 workers. OSHA

estimated that the incidence of asbestosis would be 5 cases per 1,000

workers exposed for a working lifetime under the TWA PEL of 0.2 f/cc.

Counterpart risk figures for 20 years of exposure are excess cancer

risks of 4.5 per 1,000 workers and an estimated asbestosis incidence of

2 cases per 1,000 workers.

OSHA's risk assessment also showed that reducing exposures to 0.1

f/cc would reduce excess cancer risk to 3.4 per 1,000 workers and a 20

year exposure risk to 2.3 per 1,000 workers. OSHA concludes therefore

that reducing the exposure limit to 0.1 f/cc will further reduce

significant risk.

OSHA's current estimates of employee exposure in the various

operations covered by these standards are referenced in the Regulatory

Impact Analysis found later in this document. Additional exposure

estimates, based on record evidence are referenced throughout this

document in the relevant preamble discussion concerning each operation.

In the Court of Appeals litigation, AIA challenged OSHA's use of

the PEL to calculate the residual risk remaining after the standard is

implemented. AIA contended that workers would actually be exposed to

average levels significantly below the PEL because employers would be

required to engineer down to levels well below the PEL to assure that

random fluctuations would not result in an OSHA compliance officer

measuring an exposure level over the PEL during a routine inspection.

Therefore, AIA contended, in calculating residual risk, OSHA should

assume that employees will be exposed to average levels that are

between one-half and one-quarter of the PEL. The Court implied that

such an argument might have merit if factually supported and suggested

that OSHA should make its own calculations of the relation between

permissible exposure limit and the actual exposures such a limit would

produce. (838 F.2d at 1266)

Having carefully considered the issue, OSHA concludes it would be

unrealistic to base its risk assessment on the assumption that

employers will engineer to levels significantly below the PEL. First,

as discussed below, the PEL of 0.1 f/cc is at the limit of feasibility

for those workplaces in which asbestos levels are most difficult to

control, and an assumption that average exposures will be substantially

below the PEL will clearly be unrealistic for such workplaces. Second,

OSHA found in issuing the 1986 standard that AIA's argument about

uncontrollable fluctuations was exaggerated because such fluctuations

could be minimized through proper inspection and maintenance of

engineering controls and through proper training and supervision of

employees whose work practices affected exposure levels. (51 FR at

22653). Third, OSHA's enforcement policy gives employers the

opportunity to show that a compliance officer's measurement over the

PEL is unrepresentatively high and does not justify a citation, thus

alleviating any concern employers might have that they will be cited on

the basis of a single measurement that results from uncontrollable

fluctuations. Fourth, even if some employers are sufficiently risk-

averse to engineer down to well below the PEL to avoid a slight risk of

citation, OSHA cannot base a realistic risk assessment on the

assumption that most employers will do so.

The 0.1 f/cc level leaves a remaining significant risk. However as

discussed below, and in earlier documents, OSHA believes this is the

practical lower limit of feasibility for measuring asbestos levels

reliably. However the work practices and engineering controls specified

below for specific operations and required respirator use will in

OSHA's view further reduce the risk. As discussed below, OSHA has

carefully reviewed all the public suggestions to further reduce

significant risk and has adopted those which have merit.

After OSHA has determined that a significant risk exists and that

such risk can be reduced or eliminated by the proposed standard, it

must set the standard ``which most adequately assures, to the extent

feasible on the basis of the best available evidence, that no employee

will suffer material impairment of health* * *,'' Section 6(b)(5) of

the Act. The Supreme Court has interpreted this section to mean that

OSHA must enact the most protective standard necessary to eliminate a

significant risk of material health impairment, subject to the

constraints of technological and economic feasibility. American Textile

Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490(1981). The Court

held that ``cost-benefit analysis is not required by the statute

because feasibility analysis is.'' Id. at 509.

Authority to issue this standard is also found in section 8(c) of

the Act. In general, this section gives the Secretary authority to

require employers to make, keep, and preserve records regarding

activities related to the Act. In particular, section 8(c)(3) gives the

Secretary authority to require employers to ``maintain accurate records

of employee exposures to potentially toxic materials or harmful

physical agents which are required to be monitored or measured under

section 6.'' Provisions of OSHA standards which require the making and

maintenance of records of medical examinations, exposure monitoring,

and the like are issued pursuant to section 8(c) of the Act.

Because the revisions to the asbestos standards are reasonably

related to these statutory goals, the Secretary finds that these

standards are necessary and appropriate to carry out is

responsibilities under the Act.

Response to recommendations of public to further reduce risk: As

noted above, this rulemaking proceeding is a response to a remand order

of the Court of Appeals for the D.C. Circuit. The Court determined that

in the earlier 1986 rulemaking, OSHA had not sufficiently explained its

decisions not to adopt certain regulatory provisions recommended by

participants in that rulemaking. In particular, the Court of Appeals

held that it is OSHA's ``duty to keep adding measures so long as they

afford benefit and are feasible, up to the point where (it) no longer

finds significant risk,'' and that it is OSHA's duty to consider the

reasonableness of adopting them. 838 F.2d at 1269. The Court noted that

OSHA need not justify its failure to adopt all suggested provisions:

rather, the Agency must defend not adopting only those provisions

demonstrated by their advocates, ``to be feasible to implement and will

provide more than a de minimis benefit for worker health.'' The Court

further explained, ``(n)aturally the force of the evidence and argument

that OSHA must offer to defend its choice will vary with the force of

the proponent's evidence and argument.'' Id at 1271.

In this final rule, based upon the record evidence, OSHA is

adopting certain regulatory recommendations made in the earlier

rulemaking, is rejecting other recommendations, and is issuing other

provisions which are based on, but are altered versions of yet other

recommendations in the earlier rulemaking. In addition, new, different

and expanded provisions also have been urged for adoption by

participants in this rulemaking. These participants represent labor,

public interest and industry interests. The Agency is adopting,

rejecting and changing these recommendations as well.

A large portion of this preamble is devoted to the Agency's

explanations of these regulatory decisions. OSHA believes that its

reasons when it has adopted or has not adopted recommended provisions

are well supported by the evidence and that the reasons for its choices

are stronger than the contrary arguments. In general, OSHA believes

that the extent of its burden to refute claims of benefit for a

recommended provision depends on the extent of the supporting data. If

the data are valid and extensive, OSHA's burden is greater. If however,

the claim of benefit is based on opinion, refutation by OSHA need not

be grounded in data, but may be based on OSHA's well reasoned and

expert contrary opinion.

In sum, OSHA's decision not to adopt recommended provisions to

reduce asbestos related risk reflects the Agency's expert judgment,

often where available data creates considerable uncertainty, that the

provisions would not offer more than de minimis benefit in reducing a

still significant risk. Many recommendations were unsupported by data

showing benefit. For example, it was recommended to prohibit high speed

burnishing of asbestos-containing floor tile. However, the data do not

show a measurable reduction of airborne asbestos fiber levels, based on

actual fiber counts using such practices. Other recommended provisions

simply do not reduce a still significant risk. For example, requiring

very low clearance samples (analyzed by transmission electron

microscopy) to deregulate all ``regulated areas'' to assure that EPA/

AHERA level of 0.01 f/cc is met does not appear to be necessary to

reduce a significant risk to employees. There is an extremely low

(although speculative) risk of asbestos related disease estimated at

such clearance levels, and, there is evidence that immediate clearance

sampling does not predict later concentration levels.

OSHA discusses the recommendations made by participants in the

preamble sections which cover the recommended provisions. The following

is a list of the major recommendations made by public which are

discussed later:

1. Recommendations for a mandatory building inspection program:

Recommended by BCTD (Ex. 143, Att. A); Gobbell Hays Partners, Inc. (7-

149), Service Employees International Union (SEIU) (Ex. 144); American

Federation of State, County and Municipal Employees, (AFSCME, Ex. 141);

ORC, or assume it is asbestos (Ex. 145), SBA, limited to employers

whose work duties involve contact with ACM shall assure that all ACM in

workplace is identified, need not inspect building areas constructed

since 1980.

2. Mandatory notification to OSHA by employers of all removal,

renovation, and abatement work: Recommended by BCTD, (Ex. 143, Att. A

at 3), The Courdith-Roberts Group, (L7-185); Gobbell Hays Partners,

Inc. (7-149).

3. Mandatory use of negative pressure enclosures in regulated

areas, except for small-scale, short-duration operations and other

limited circumstances: Recommended by BCTD, (Ex. 143 Att A at 5).

4. Mandatory procedures for deregulating regulated areas including

mandatory clearance sampling. Recommended by BCTD, (Ex. 143, Att. A at

6); AFSCME (Ex. 141).

5. OSHA accreditation of training and OSHA designated detailed

training curricula. Recommended by BCTD (Ex. 143 Att. A at 8)

6. Reduction of PEL below 0.1 f/c. Recommended by Gobbell Hays

Partners, Inc. (Ex. 7-149).

7. Require that required protective clothing be impervious.

Recommended by Melco, Inc. (L7-187), J.Loften, Asbestos Workers Local

Union #16 (Ex. 137).

8. Specific training for maintenance and custodial workers in

buildings that contain asbestos-containing material. Recommended by

SEIU. (Ex. 144 at 14).

9. Requirement that building owner respond to knowledge of asbestos

in building by establishing O&M plan. Recommended by SEIU (Ex. 144 at

17); AFSCME, (Ex. 141).

10. Change in medical surveillance requirements for maintenance and

custodial workers in ACM buildings--they exceed the 30 day limit.

Recommended by AFSCME, (Ex. 141).

11. Reduce action level to 0.05 f/cc. Recommended by BCTD. (Ex.

143).

12. Reduce STEL to 0.5 f/cc over 30 minutes. Recommended by BCTD.

(Ex. 143), also by SESAC and NIOSH (Ex. 7-77, 125).

13. Require most effective respirators feasible in all asbestos

work. Recommended by BCTD. (Ex. 143).

14. Require more specific and protective brake repair procedures.

Recommended by Clayton Associates, Inc. (Ex. 148).

15. Regulate activities involving ``friable'' asbestos-containing

material differently from those involving ``non-friable'' asbestos.

Recommended by Edison Electric Institute, (Ex. 7-145 , at e.g., 8 for

quantity cut-offs for SSSD activities.)

16. A clearance fiber level of 0.04 f/cc was recommended by SESAC

who stated that such a requirement was needed to ``ensure that the

asbestos work area is safe to enter by unprotected personnel after the

asbestos work operation is completed.'' (Ex. 7-77).

Relationship to Indoor Air Quality Proposed Rule

On April 5, 1994 at 59 FR 15968, OSHA proposed a new standard for

indoor air quality. The proposed regulation included a clause making

brief reference to asbestos. See Paragraph (d)(8) at page 16036. That

reference was unintended as OSHA, intends to cover all asbestos issues

in the final asbestos rule where full consideration has been given to

them. OSHA will not create new requirements in a final Indoor Air

Quality Standard that are specifically designed to control asbestos

exposures, and will announce that it is withdrawing the asbestos clause

in paragraph (d)(8) at the commencement of the indoor air hearing.

Accordingly there is no need for parties to submit asbestos-related

materials into the Indoor Air record.

III. Summary and Explanation of Revised Standards

These final standards constitute OSHA's response to the remaining

issues raised for the Agency's reconsideration by the United States

Court of Appeals for the D.C. Circuit. The specific issues raised by

the Court are: the establishment of operation-specific permissible

exposure limits; the extension of reporting and information transfer

requirements; the expansion of the competent person requirement to all

employers engaged in any kind of construction work; and, the

clarification of the small scale, short duration operation exemption

from the requirement to establish a negative-pressure enclosure. For

convenience OSHA is summarizing here its response to each of these

issues. They are discussed in depth below. Also discussed below are the

other changes OSHA has made which are not in direct response to the

remand.

Issue 7. Establishment of Operation Specific Exposure Limits: The

court remand causes OSHA to consider establishing operation-specific

permissible exposure limits to the extent feasible, as needed to

eliminate significant risk of illnesses caused by asbestos exposure.

OSHA proposed to decrease the PEL to a uniform 0.1 f/cc. OSHA believes

that this limit is feasible for most industry sectors to reach most of

the time (55 FR 29720). However, OSHA explained that PELs lower than

0.1 f/cc are difficult to reliably measure. However OSHA has followed a

more effective approach to lowering exposures for those sections and

operations where lower exposures can be achieved. This approach is

triggering protective provisions based on the kind of operation

undertaken, rather than measured exposure levels. This approach is

consistent with some other health standards (e.g., lead, coke ovens).

A major reason for this approach for construction and shipyards is

that measured levels of exposure often fail to define risk and are

often not received before the work is completed. This was partly

explained in the proposal. There OSHA noted that for removal jobs,

highly variable amounts of asbestos are generated, ``reducing the

predictability of exposure levels from one monitoring event to the

next. Moreover, measured asbestos levels often cannot be used to

determine the need for (specific controls) . . . because of the time

required by the laboratory to complete the test and report the

results.'' (55 FR at 29715-16). Thus, it would be unproductive to leave

employees unprotected while initial monitoring results are being

analyzed; and in many cases, even prompt reporting of exposure levels

during the setting up of the controls would not predict exposures

during the actual removal.

A significant risk remains at the PEL of 0.1 f/cc, and it is

feasible to attain lower levels for some workers exposed to asbestos.

OSHA has therefore considered whether to establish different PELs for

different operations based on the lowest exposure limits that can

feasibly be achieved in those operations and that are needed to

eliminate significant risk. OSHA has decided not to do so because the

operation-specific work practices mandated in the standard will be a

most cost-effective means of assuring that significant risk is

eliminated to the extent feasible.

Asbestos has been the subject of extensive rulemaking by OSHA and

other agencies, and the operations that expose employees to asbestos

are well known and thoroughly studied. Moreover, given the shift away

from asbestos products wherever substitutes are available, it appears

unlikely that major new uses will be found for asbestos in the future.

OSHA has therefore been able to focus its rulemaking effort on

evaluating the work practices that will best reduce asbestos exposures

in the specific operations that expose workers to asbestos. The result

is a standard that relies heavily on mandated work practices that will,

in most situations, result in employee exposure well below the PEL. In

effect, the mandated work practices will assure that each asbestos

worker is exposed to the lowest feasible level for the operation in

which that worker is engaged. This approach was taken in the 1986

construction standard. There, OSHA ``tiered'' its construction standard

``to apply increasingly stringent requirements to those work operations

associated with the highest exposures.'' (51 FR at 23706). Rather than

two classifications as in 1986 (small-scale and abatement work), OSHA

now divides construction work into four classes and has made additional

limited distinctions based on measurable variables such as amount of

material disturbed.

Since OSHA's approach assures that each employee is exposed to the

lowest feasible level of asbestos, no additional protection would be

gained by establishing a series of different PELs for different

operations. Such an approach would add cost and complexity to

employers' compliance duties and to OSHA's enforcement duties without

benefiting worker health. PELs lower than 0.1 f/cc would be

particularly unsuitable as compliance criteria because it is difficult

to reliably measure lower levels. Because such measurements are

unreliable, if lower PELs were established, measurements taken by

employers and by OSHA would provide an uncertain basis for determining

whether employers have fulfilled their compliance duties. However, both

employers and OSHA can easily determine whether the work practices

prescribed in the standard are being followed. The mandated work

practices thus assure that employees are better protected than a series

of different PELs while reducing compliance burdens on employers and

easing the agency's enforcement burden. Therefore, rather than set

operation-specific permissible exposure limits, OSHA proposed to

further reduce risk by requiring certain additional work practices. The

operations for which mandatory work practices are required would

otherwise result in employee exposure that is significant. OSHA

believes that these controls are feasible, reasonable, and necessary.

OSHA also proposed, in the general industry standard, to link the

dates when engineering controls would be required to reach the new

lower PEL with the EPA Ban and Phase-out Rule. This linkage is no

longer an option since the Fifth Circuit Court of Appeals recently

vacated the ban and it is not yet clear which asbestos-containing

products will no longer remain in commerce, and staged phase-outs of

asbestos containing products are not required.

Issue 3. Small Scale Short Duration Definition: The Court asked

that OSHA clarify the exemption for ``small scale, short duration

operations'' from the negative-pressure enclosure (NPE) requirements of

the construction standard. The negative pressure enclosure requirements

are a substantial set of requirements. They include creating a system

of regulated areas with a sealed work area under negative pressure,

decontamination facilities and procedures, clean room facilities and

procedures and shower facilities, and other practices to reduce worker

exposure and spread of contamination outside the work area. In that

standard, NPEs were required for all removal, demolition and renovation

work except for small scale short duration operations.

The Court suggested, based on its view of the Agency's earlier

intent, that OSHA limit the exemption to work operations where it is

impractical to construct an enclosure because of the configuration of

the work environment. In an earlier response to the remand order,

published in the Federal Register (54 FR 52024, December 20, 1989),

OSHA declined to amend the regulatory text on the small-scale, short

duration issue, without conducting supplemental notice and comment

rulemaking. The Agency explained ``that explicitly limiting the

exemption to situations where negative pressure enclosures are

impractical might not reduce employee risk from asbestos exposure.''

(54 FR at 52026). OSHA stated that in the supplemental rulemaking, it

intended ``to discuss the effectiveness and drawbacks of negative-

pressure enclosure, glove bags, and alternative control systems; and to

specify more clearly under what circumstances various control systems

may be used.'' (54 FR at 5207). OSHA also noted that the small-scale,

short duration issue is related to the scope of the ``competent

person'' requirement, which the 1986 standard lifted for operations

which conformed to the exception, and thus combined consideration of

both issues would be appropriate.

Accordingly, in July l990, OSHA proposed related changes in both

provisions ``small scale, short duration'' operations would be

redefined in terms of general criteria, as well as the 1986 approach of

listing specific examples. However, the underlying premise remained the

same as in the 1986 standard: i.e. exemptions to the negative-pressure

enclosure requirement for removal, renovation and demolition projects

and limited to jobs which conformed to specified criteria.

``Competent'' persons, according to the 1990 proposal, were to be

required as supervisors on all asbestos-related construction worksites,

instead of as in the 1986 standard, that required competent persons

only for non ``small-scale, short term jobs.'' Required training for

competent persons, would vary, however, depending on the kind of

asbestos- related job needing supervision.

The final provisions resolving these issues, are different from the

proposal. Four classes of increasingly hazardous types of construction

activity are matched with increasingly stringent control requirements.

Class I asbestos work means activities involving the removal of

asbestos containing material (ACM) and presumed asbestos containing

material (PACM) which is ``high risk.'' Class II asbestos work means

activities involving the removal of ACM and PACM which is not ``high

risk.'' Class III asbestos work means activities involving repair and

maintenance where ACM and PACM is disturbed. Class IV asbestos work

means maintenance and custodial activities during which employees

contact ACM and PACM and activities to clean up waste and debris

containing ACM and PACM. Each class includes work with similar exposure

levels and with similar exposure risks. Each has a prescribed set of

controls and work practices. Basically only Class I work, high-risk

activities, require negative-pressure enclosures. The standard allows

other designated proven control systems in limited circumstances and

provides for yet-to-be-developed systems if certain backstop provisions

are met. As indicated in its earlier responses to the Court, and its

public notices of proposed rulemaking, OSHA has evaluated available

control technologies and has concluded that the use of negative-

pressure control enclosures should be regulated in terms of when they

are required rather than when they are not.

In a major departure from the language of both the 1986 standard

and the proposal, OSHA is deleting the term ``small scale, short

duration'' from the regulatory text. Instead, the agency is

distinguishing high- from lower-risk operations through the use of the

classification system described above. Work that was exempted from the

negative pressure enclosure requirements in the existing standard

because it was of ``small-scale, short-duration'' are considered to be

Class II and Class III work in this amendment. The agency finds that

the term ``small-scale, short term'' is too limiting, is confusing, and

cannot be defined with sufficient precision to serve the purpose of

distinguishing high risk asbestos-disturbing activity from activity of

reduced risk.

The term is limiting because it focuses on a fraction of the

circumstances and criteria which define lower risk work with asbestos-

containing material. For example, removing asbestos-containing products

like transite panels, likely will not result in significant exposure,

even if conducted for more than one day, if there is use of a few

simple controls. As much as the scope and duration of the job, the

materials themselves, their condition and the work-practices used

define hazard potential. OSHA had tried to include these concepts under

the ``small-term, short-duration'' exception in the current standard,

by reference to examples. However, the breadth of the examples led the

court to observe that ``the exception as now worded seems to erase the

rule.'' (838 F. 2d at 1279).

In the 1990 proposal OSHA tried to identify the conditions and

operations which separated higher risk work with ACM from lower risk

work in its small-scale, short-term definition. Still anchoring the

distinction however, was OSHA's belief that the time a job took, and

the amount of material involved, primarily determined risk. Based on

the record of this proceeding, OSHA now finds that these are relevant,

but not exclusive, factors.

OSHA finds also that use of the term is confusing. In 1986, in its

list of activities considered ``small-scale, short-term,'' OSHA listed

some which are neither small-scale or short-term, but were regarded as

lower risk, such as roofing work. To cure this confusion, OSHA

proposed, in 1990 to limit the ``small-scale, short duration''

exemption to a subset of renovation, removal and demolition operations

which took less time, and/or involved small areas. Even for these

activities a temporal or volume cutoff was difficult to define, and the

proposed definition contained numerical criteria, which varied

depending on which activity was defined. In addition, it proposed to

exempt other activities, such as roofing, regardless of the size of the

project, from the negative-pressure enclosure requirement. EPA uses the

term ``small-scale, short-duration'' to describe cut-offs which are

much higher than those proposed by OSHA for its reporting requirements

for asbestos renovation, demolition and removal work under NESHAPS. And

under EPA's worker protection rule which applied to state and local

government workers in OSHA non-state plan states, reporting

requirements for asbestos ``abatement'' projects, do not apply to

projects involving ``less than 3 linear feet or 3 square feet of

friable asbestos material.'' (40 CFR 763.124).

Many objections to the proposed definition were received by the

Agency. After reviewing this record, and in light of the variety of

interpretations of the term ``small-scale, short-duration,'' OSHA

determined that it is inappropriate to use that term as the equivalent

of lower risk activities. Once OSHA decided to include other control

methods in the ``preferred category'' for high risk asbestos work,

neither a ``small-scale, short-duration'' definition nor an exemption

from negative- pressure enclosure requirement was central to OSHA's

regulatory scheme. As explained more fully below, although OSHA no

longer uses the term ``small--scale, short-term'' to exempt activities

from universal requirements, OSHA uses the related terms ``small-

scale'' and ``reduced exposure potential'' as part of a larger

classification scheme.

Issue 8. The extension of reporting and information and transfer

requirements:

A. Notification to OSHA

OSHA had proposed expanded notification and reporting provisions in

response to the Court's remand order concerning two issues. The first

is whether OSHA should require employers to give the Agency advance

notification of asbestos-related jobs. BCTD, in the 1984 rulemaking had

suggested that OSHA should require all construction industry employers

to file reports concerning any building demolition, renovation or

removal project involving asbestos prior to beginning such a project.

Two health enhancing benefits of a notice requirement were advanced by

BCTD. One, is the help such information would provide the Agency in

targeting inspections. The other is a claimed reduction in risk because

of the consciousness-raising and self-education provided by the notice

process.

The Court noted that the BCTD proposal would ``arguably generate

better information for ``selecting targets for inspection and that it

was based on ``uncontradicted (and unanalyzed) evidence of non-de

minimis benefits.'' (relating to compliance enhancement). (838 F.2d at

1278). It remanded the issue to the Agency for further explanation or

rebuttal.

OSHA responded in 1990, by proposing a new provision to require

employers to notify OSHA in writing prior to engaging in demolition,

renovation, and removal operations which are not small-scale, short-

term operations. OSHA's proposed notice requirement shared many core

elements with EPA's then current and proposed notification requirements

under NESHAPS. OSHA noted that ``(t)he proposed notification is modeled

after the notification requirement concerning asbestos abatement

projects that occur in conjunction with building demolition and

renovation operations. OSHA noted further that ``(e)mployers can

satisfy the OSHA (proposed) notification requirement simply by

forwarding a copy of the EPA form to the OSHA area office when

complying with EPA's asbestos NESHAP.'' (55 FR at 29731). Both EPA's

and OSHA's proposed, notification requirements would exempt less

extensive operations. In OSHA's case, the exemption would have applied

to small-scale, short-duration operations as otherwise defined in the

standard. EPA's cutoffs are annual amounts: 260 linear feet on pipes

and 160 square feet on other facility components. OSHA noted that many

asbestos jobs would meet the notification requirements of both

agencies, however there would be an indeterminate, yet significant

number for which EPA notification would not be called for, but OSHA's

proposed requirement would apply.

Most public comment opposed the requirement. The major objection

was the burden on the employer from completing and mailing the

notification form. Further, some commenters questioned the overall

usefulness of the notification requirement in promoting compliance (See

comments of Shipbuilder's Council of America Ex. 7-2.) BCTD continued

to argue for extensive reporting requirements for the reasons stated

above. A few other commenters supported its position. (Ex. 7-5, 7-6, 7-

34, 7-64, 7-95, 7-118, 7-132, 7-149, 141, 144).

OSHA has carefully reviewed all the comments. Based on the review

and subsequent developments, the final regulation scales down OSHA's

proposed notice requirements. OSHA is now requiring advance

notification of Class I (mainly large-scale removals) only when the

employer intends to utilize controls other than a negative pressure

enclosure which meets the requirements of paragraph (g) of this

standard, and in some circumstances, where modifications of glove bag

systems, glove box systems and other control systems described in

paragraph (g) are made.

There are a number of reasons for OSHA's decisions. OSHA believes

that the potential benefits in direct risk reduction from a separate

OSHA reporting requirement are unlikely. There are already extensive

EPA and state reporting requirements which OSHA requirements would

partly duplicate. The EPA and state requirements already create any

incentive to comply that such reports could create. Similar OSHA

reports would not increase this benefit. Information which may be

useful to OSHA in targeting inspections can be retrieved by

information-sharing with the EPA while avoiding overlapping reports.

OSHA notes that the Paperwork Reduction Act requires that federal

agencies avoid clearly duplicative reporting requirements. Various

comments challenge the value of duplicative requirements (e.g., Ex. 7-

17, 7-20, 7-22, 7-28, 7-39, 7-46, 7-47, 7-50, 7-54, 7-72, 7-74, 7-76,

7-77, 7-78, 7-79, 7-81, 7-86, 7-87, 7-88, 7-89, 7-102, 7-103, 7-108, 7-

112, 7-125, 7-133, 142, 147). Thus, although OSHA's and EPA's reporting

requirements are only partially duplicative, these considerations have

influenced OSHA's decision not to require extensive pre-job reporting.

OSHA is concerned that in reviewing the volume of reports which may be

spawned by a separate OSHA requirement which exceeded the EPA

requirements would strain OSHA area offices enforcement resources and

drain such resources from other enforcement efforts. However, OSHA

finds that advance reporting is appropriate where information is

related to new or modified control methods for Class I work. In such

cases, heightened attention to the data supporting their use will

result from the requirement to send them to OSHA.

BCTD's contrary view that compliance would be enhanced was based in

part on its contractor's report, submitted after the 1984 hearing. The

report estimated that an advance reporting requirement would reduce

``the number of workers with TWA exposures over 0.1 f/cc'' up to 30% in

drywall removal and demolition, and lesser amounts in other

construction work. These estimates were based on the opinions of a

seven person ``focus group'' which included three representatives of

member unions of BCTD. No methodology was presented for deriving these

quantitative estimates, and no supporting data has been submitted in

either rulemaking (see brief Ex. 143 at 198). The Court referred to the

report in its decision as uncontradicted, but that was because it was

submitted late in the rulemaking procedures.

The Agency believes based on its experience that these estimates of

specific quantifiable benefits are speculative. But more importantly,

the now-existing EPA and state reporting requirements and OSHA's use of

that data for targeting inspections will achieve those benefits without

duplicative reporting requirements. Further, OSHA made various changes

to the final standard which will also achieve some of these benefits.

These include the expanded provisions on hazard communication, which

will alert employees in all asbestos renovation, removal and

maintenance work that presumed asbestos containing material is present;

that require competent persons to evaluate the work site before work is

begun, by informing employers that OSHA is setting up information

sharing systems with EPA to access employer notices sent to that

Agency, and that require employers who use new and modified control

systems to notify OSHA.

Help for OSHA in targeting inspections from the submission of

advance reports is the other claimed benefit from a reporting

requirement. Some participants claimed that because pre-job reporting

was helpful to EPA in targeting its inspections for compliance with

NESHAP requirements, an OSHA pre-job reporting would similarly benefit

this Agency. EPA did not testify at the hearing, but available

information shows that its reporting system provides useful information

to that Agency's enforcement program. NESHAPS reporting is made mostly

to 45 state agencies, delegated by EPA to implement the asbestos

NESHAP. Reporting in EPA Region II, is directly to the Regional Office.

These reports are the source of two data bases: the National Asbestos

Registry System (NARS), which develops a historical record of asbestos

contractors, updated quarterly: and the ACTS system, which is a local

data base on the compliance history of each contractor. OSHA is

informed that ACTS is a tool that delegated agencies may use for day-

to-day tracking of asbestos activities. EPA's evaluation of the reports

submitted to it and other information used in its NESHAP enforcement

effort constitute a valuable resource for OSHA.

In 1991 both agencies signed a Memorandum of Understanding (MOU) to

share information which will aid their enforcement efforts. Pursuant to

that MOU, OSHA is developing with EPA an information sharing system

based on the reports submitted both to EPA and to various states upon

delegation from EPA to access that information to help OSHA target

asbestos removal jobs. OSHA also believes that at this time some EPA

delegated states, and OSHA state plan states have worked out ways to

share notifications. OSHA believes that utilizing the EPA data to

assist in targeting inspections will be more effective than duplicative

reporting requirements.

The Agency believes, based on its own enforcement experience that a

limited notification requirement may enhance compliance in specified

circumstances. Employers who choose to use new or modified control

technology to reduce exposures in Class I asbestos work, must notify

OSHA in advance, using EPA's NESHAP reporting form. Such information

about new and/or modified asbestos control technology submitted to OSHA

by employers who wish to use it will provide accessible information for

the Agency to use to evaluate such technologies. OSHA believes that

requiring employers to routinely submit to the Agency their data in

support of claims of the effectiveness of new technology will help

OSHA, employers and employees and their representatives to evaluate its

effectiveness promptly.

Shipyard Employment Standard

One area of the proposed standard to which SESAC raised objection

was the requirement that OSHA be notified 10 days prior to initiating

work on large scale asbestos operations. In addition to reiterating

many of the objections to the provision raised by others, they pointed

out that often they must immediately work on ships which enter their

shipyards and turn them around quickly and that the delay caused by the

notification would be overly burdensome. As OSHA explained above,

notification of OSHA is required only when Class I operations are

undertaken and alternate methods of control, other than the negative-

pressure enclosure methodology, is to be employed. This provision

applies both in the construction and shipyard employment standards.

B. Notification of Other Employers and Subsequent Owners

The Court remanded the issue of whether OSHA should, as recommended

by BCTD, require employers contracting asbestos-related work to

establish, maintain and transfer to building owners written records of

the presence and locations of asbestos or asbestos products, in order

to facilitate identification and prevention of asbestos hazards. As

noted in the 1990 remand proposal, the Court remanded this issue so

that the Agency may reach ``its own judgment on the issue'' of whether

it was legally empowered to adopt such a requirement (See BCTD v.

Brock, supra at 1278). OSHA concludes that BCTD has made a persuasive

case for the need to expand the notification provisions to other

employer and building owners and from them to subsequent employers with

exposed employees. This is a necessary way to informing subsequent

employers that their employees are at risk of asbestos exposure and of

the need to take appropriate precautions. Requiring building owners to

maintain and provide this information is by far the most effective way

of notifying employers of exposed employees who are doing work many

years after the asbestos was identified.

OSHA has developed an information transfer scheme concerning the

presence of asbestos in buildings and structures which may present a

hazard to employees which is more comprehensive than the recommendation

of BCTD. The approach places the primary compliance burden on the

building and/or facility owner, even though the employees at risk may

not be the owner's direct employees. Thus, this final standard confirms

OSHA's tentative view in the proposal, that it has authority to require

building owners who are statutory employers to take necessary and

appropriate remedial action such as notifying other employers, to

protect employees other than their own (see 55 FR at 29729).

The proposed hazard communication provision limited the building

owner's communication obligations to ``available'' information

concerning the presence and location of asbestos. Now, in the final

standard, the building owner must communicate his knowledge of the

presence and location of ACM, based on ``available'' information, and,

new to the final standard, of the presence and location of certain high

risk materials, which are presumed to contain asbestos (PACM), unless

the building was constructed or renovated after 1979 or is rebutted

using laboratory analysis. Further details of this provision are

spelled out later in this preamble.

Issue 9. Competent Person. The Court remanded to OSHA to determine

whether employers engaged in any kind of asbestos related construction

work should be required to designate ``competent persons'' to oversee

safety measures, or whether, as in the 1986 standard, employers should

only be required to designate trained ``competent persons'' for

asbestos removal, demolition, and renovations operations that are not

small-scale, short duration. The court requested that OSHA either

expand the ``competent person'' requirement or provide a more

persuasive explanation of its refusal to do so.

OSHA proposed in 1990 to expand the requirement. Under the

proposal, supervision of all asbestos construction worksites by a

``competent person'' would be required; the training of a competent

person would be keyed to the kind of asbestos operation. However, the

proposal left undecided whether onsite, continuous supervision of all

asbestos-related work would be required for all asbestos work. The

final standard resolves these issues. A ``competent'' person, as

defined in the general construction standards, must supervise all work

under the asbestos construction standard. That person must be ``capable

of identifying existing asbestos * * * hazards in the workplace, and

has the authority to take prompt corrective measures to eliminate them

* * *'' 29 CFR 1926.58[b].

OSHA reiterates its statement in the proposal that ``all

construction site employees would benefit from the presence of a

competent person to oversee asbestos-related work'' (55 FR at 29726).

However, the need for on-site supervision varies with the hazard

potential of the work undertaken. All workers performing Class I

construction work must have continuous access to an on-site supervisor,

who meets the training requirements for designation as a ``competent

person'' under this standard. Supervision for Class II and III work

does not always require a continuous on-site ``competent person,''

therefore the standard requires inspections at ``sufficient'' intervals

and at employee request. Supervision of installation of asbestos

containing construction materials and Class IV work must also be

accomplished by complying with the ``generic'' requirement for

``frequent and regular'' inspection [Paragraph (0)(2)].

Training for ``competent persons'' can be accomplished in a number

of ways and meet the standard's performance requirements. For Class I,

II and III work, the ``competent person'' must take a course such as a

course under the EPA Model Accreditation Plan for accredited

contractor/supervisor, project designer or management planner course,

or their equivalent in content, duration, and criteria for success.

Class IV work may be part of larger construction projects, in which

case the competent person trained to supervise the project should

supervise the on-site cleanup activities which constitute the Class IV

work.

Explanation of Provisions of the Final Standards

The following is a provision-by-provision discussion of the revised

asbestos standards. Thus all the provisions in all three standards:

general industry, construction and shipyard employment, relating to a

topic will be discussed under the heading for that topic. For example,

under the scope heading, the scope of the general industry standard

will be first discussed, then the scope of the construction standard,

and finally the scope of the shipyard employment standard. Similarly,

under the methods of compliance heading, the provisions in each

standard relating to that topic will be discussed. Where a discussion

applies to all three or to two of the separate standards it will be so

noted and will not be repeated for each standard. OSHA believes that

this format will help the public understand where and why the various

standards contain different provisions relating to the same subject

matter. Further, it will avoid repetition in explanations where a

common policy rationale applies to more than one asbestos standard.

(1) Scope and Application

Paragraph (a). General Industry Standard. 29 CFR 1910.1001. The

general industry standard covers all activities (except agriculture),

covered by the Act which are not otherwise covered by the construction

asbestos standard, 29 CFR 1926.1101, and the new shipyard employment

standard, 29 CFR 1915.1001. Consequently, marine terminals and

longshoring would be covered by the general industry standard if

asbestos were being loaded, unloaded or stored. The asbestos

construction standard, in existence since 1986, lists activities which

it covers. This includes construction activities though they may take

place at a factory or agricultural premises. The new shipyard

employment standard, likewise lists its covered activities.

Formerly, the general industry standard had been considered the

generic asbestos standard. However, because of dramatic changes in the

market for asbestos containing products, the standard now covers only

four industry segments, three of which are distinct from each other,

and all are diminishing in volume and employee population. Brake and

clutch repair is the activity engaged in by the largest group of

asbestos exposed workers, although most of them are exposed

sporadically and at low levels. Next largest is custodial workers who

do not perform their duties as part of construction activities, but

clean surfaces, sweep, buff and vacuum floors and wash walls and

windows in manufacturing plants and a wide variety of public and

commercial buildings. Although in the preamble to the proposal and

throughout this proceeding OSHA and most commenters had treated these

workers as part of the construction work force, OSHA concludes that

pure custodial work is not a construction activity, and should be

regulated under the general industry standard. However, to avoid

misinterpretation or for purposes of clarity of duties to affected

parties, OSHA also is including provisions protecting custodial workers

who may unknowingly contact asbestos-containing material in the

construction and shipyard employment standards. In this way, there will

be no advantage to interpreting coverage under any one of the asbestos

standards, rather than another.

The primary and secondary manufacture of asbestos containing

products, completes the roster of identifiable general industry

sectors. Once, along with installers of asbestos-containing products,

the core of the asbestos-exposed work force, asbestos-containing

product manufacturing employees are rapidly dwindling in number. OSHA

expands on this theme its on economic analysis later in this document.

At the time of the proposal, EPA had prohibited, at three stated

intervals from August 1990 to August 1996, the future manufacture,

importation, processing and distribution in commerce of asbestos in

almost all products (54 FR at 29460, July 12, 1989). Subsequently the

ban was overturned by the United States Court of Appeals for the Fifth

Circuit. EPA has interpreted the decision as invalidating only those

portions of the ban for products that were manufactured or imported at

the time of the decision. Despite the remaining legitimacy of

manufacture and use of asbestos-containing products, the industries

which make and maintain them and the employees who are employed in

those industries are declining rapidly and dramatically.

Paragraph (a) Construction Standard. 29 CFR 1926.1101.

The construction standard covers (but is not limited to) the

following activities involving asbestos: demolition, removal,

alteration, repair, maintenance, installation, clean-up,

transportation, disposal, and storage. It has been redesignated 29 CFR

1926.1101 to reflect the reorganization of health standards covering

construction made June 30, 1993 (58 FR 35076). The scope and

application remain generally unchanged from the proposal and earlier

standard. However, 3 issues arose. First, new language, proposed in

1990 is retained in the final. ``* * * coverage under this standard

shall be based on the nature of the work operation involving asbestos

exposure, not on the primary activity of the employer.'' This point was

made clearly in the preamble to the 1986 standards; however, it was not

specifically stated in the regulatory text and subsequently some

confusion arose among the regulated community. Therefore, it is

included as a clarification of the intended application of the

standards. Asbestos work which involves removal, repair, maintenance or

demolition is therefore explicitly regulated by the construction

standard even if such work is performed within a facility otherwise

regulated under the general industry standard.

Certain commenters stated that maintenance and custodial work

should not be regulated by the construction standard, because they are

not construction operations. OSHA notes that it has made a distinction

between maintenance and custodial work, that maintenance work is

covered in the construction and shipyard employment standards, and that

custodial work is covered in all three standards, when it is incidental

to work otherwise covered by a standard.

Naturally Occurring Asbestos in Soil: Prior to the publication of

the 1990 asbestos proposal, OSHA received submissions describing

asbestos deposits which occur as natural formations in the U.S. and

that when disturbed, for example during earthmoving projects or during

mining operations, drilling, blasting or sawing operations, the

asbestos in the deposit can become airborne and expose workers to

significant levels of asbestos fibers (Ex. 3-10, 3-11). The Agency

proposed to clarify that such activities were covered under its

asbestos construction standard and that methods of control were to be

employed to avoid worker exposure during disturbances of naturally

occurring asbestos deposits. OSHA sought additional information

regarding any additional provisions it would adopt to protect workers

engaged in these activities. In the proposal, the Agency also requested

any information on appropriate methods to use to determine the presence

of asbestos in soils, the effectiveness of wet and/or other methods to

control worker exposures and information on effective decontamination

methods for exposed workers.

There were relatively few comments received on this issue. Some

felt that asbestos in soil resulted in negligible exposures and that

wetting to prevent fugitive emissions during earth moving would be

sufficient control (e.g., Ex. 7-6). Another participant said there was

a lack of control technology and called for further study to determine

the extent and location of problems (Ex. 7-63). The industrial

hygienists who had raised the issue of worker exposure to naturally

occurring asbestos, described the occurrence of asbestos in the soil of

Fairfax County, Virginia (Ex. 7-143). They reported that water misting

during disturbance of asbestos-containing soils was effective in

controlling exposures. They recommended the use of negative pressure

air purifying respirators, protective clothing and showers to control

exposures.

OSHA finds that the record indicates that certain construction

sites in mostly well-defined areas contain deposits of naturally

occurring asbestos. In such areas, airborne asbestos during earthmoving

activities may result in significant exposures. In such cases, wetting

of the excavation site, often required by local authorities, should be

sufficient to suppress measurable airborne asbestos concentrations.

Information regarding the presence of asbestos in the vicinity of

construction sites may be available from state environmental agencies,

the United States Geological Survey, and the Bureau of Mines.

In the absence of information which is readily available showing

asbestos contamination of soil in the immediate vicinity of a

construction site, the employer is not required to take any action

under this standard.

Paragraph (a) Shipyard Employment Asbestos Standard. 29 CFR

1915.1001.:

Workers engaged in shipyard industry activities, i.e. shipbuilding,

ship repair, and other work in shipyards, who are exposed to asbestos

have been protected by inclusion in 1986 general industry and

construction standards published in 1986. Like in other non-

construction industries, OSHA intended employees working in shipyards

to be protected by the general industry standard, except for those

operations which were specifically listed as covered by the

construction standard, i.e. renovation, removal, demolition and repair.

In 1988, OSHA convened the Shipyard Employment Standards Advisory

Committee (SESAC), comprised of members from labor, private industry,

state and federal government, and professional and trade associations.

The Committee's charter directed it ``to develop a single set of

comprehensive health and safety standards for Shipyards.''

In the 1990 NPRM, OSHA sought information and comment on how best

to provide equivalent protection to workers engaged in shipyard

activities. The Agency noted that although it had considered these

operations to be regulated under the general industry standard in the

1986 rulemaking, subsequent considerations led OSHA to observe that

many shipyard industry activities are construction-like in nature.

In response, SESAC drafted alternative regulatory text which it

submitted to this rulemaking docket with the recommendation that it be

adopted as a vertical asbestos standard for shipyards (29 CFR 1915, Ex.

7-77). The Committee stated: ``Maritime is neither general industry nor

construction--it is maritime. ``This committee was formed by the

Secretary of Labor with the objective in its charter to ``recommend * *

* one comprehensive set of standards* * *for the shipbuilding, ship

repair and shipbreaking industries* * *'' (Advisory Committee Charter).

Additional comment and testimony on this issue was submitted during

the rulemaking. For example, Charles Sledge, Jr. of the Norfolk Naval

Shipyard in his testimony stated that he did not feel that shipyard

industry work meets the definition of construction work defined in 29

CFR 1910.12 (Ex. 28). Although he preferred keeping shipyard industry

operations under the general industry asbestos standard, he recommended

that OSHA apply the SESAC-recommended standard to shipyard activities

rather than the construction asbestos standard. He pointed out that

most asbestos work in shipyards takes place in fixed locations and does

not have the transient nature of true construction work. Mr. Sledge

also felt that shipyards have developed ways to stay below the PEL and

that any change would result in requiring expensive alterations of

facilities, and a need for additional training.

Several commentors including F. Losey of the Shipbuilders Council

of America (Ex. 7-2), D. Knecht of Litton Ingalls Shipbuilding (Ex. 7-

22), and C. Klein of Newport News Shipbuilding (Ex. 7-71) encouraged

OSHA to adopt the SESAC-recommended regulatory text for shipyards (Ex.

7-2).

J. Collins of Naval Operations objected to OSHA's proposal to apply

the construction asbestos standard to shipyard industry because he

considered some of the provisions infeasible on vessels (Ex. 7-52). In

his opinion the construction standard requires showers be located at

the entrance to the regulated area and that this was not reasonable on

small ships like submarines. Other comments, (apparently by others) in

this submission expressed the view that shipyard industry activities

should be regulated under the construction standard since they are

often identical to construction work. To the same effect see Ex. 7-52.

BCTD stated in its testimony that:

* * * [It] agrees with OSHA that, because the manner in which

maritime employees work with and are exposed to asbestos is similar

to the experience of construction employees, the provisions of the

construction standard should apply in that industry. In particular,

whenever the likelihood exists that asbestos-containing materials

will be disturbed in ship repair and renovation, that activity

should be conducted under a negative air apparatus. [Ex. 34, p.2]

The rulemaking process revealed that there was confusion in the

shipyard industry sector as to which of the standards applied to the

various activities within the shipyard. In his testimony, the Chairman

of the Shipyard Employment Standards Committee said: ``In the case of

asbestos, both 1910 and 1926 are both applied in various shipyard

operations. This is confusing to the shipyard work force who are

required to follow one set of rules one day and another set the next

day.'' (Tr. 337)

In the current revision of the asbestos standards, OSHA has

determined that a separate vertical standard for shipyards is

appropriate. OSHA understands that many spokespeople for the shipyard

industry believe that compliance with OSHA's asbestos standards will be

facilitated in shipyards if only one standard applies to those

workplaces. Because OSHA wishes to promote compliance, and because the

Agency acknowledges that some shipyard conditions are unique, OSHA is

issuing a standard that will apply only to shipyard industries. It is

neither less nor more rigorous than the general industry and

construction standards. How it differs from the two other asbestos

standards will be discussed under the topic heading for each

substantive provision, in the preamble text which follows. The

recommendations will be discussed more fully, following a summary of

the relatively small number of comments received by the Agency.

Most provisions in the final shipyard standard include some

relevant provisions similar to the revised construction standard. In

addition OSHA has incorporated some of the specific recommendations

made by the Shipyards Employment Standards Advisory Committee discussed

below.

Relatedly, the Great Lakes Carriers Associates, representing fleets

on the Great Lakes, wanted assurance that asbestos exposures of seamen

aboard vessels will continue to be regulated by the Coast Guard under

an existing Memorandum of Understanding between the Coast Guard and

OSHA (Ex. 7-8). OSHA does not intend to alter the agreement it has with

the Coast Guard. Rather, the maritime standard under discussion

concerns shipbuilding, ship repair and ship-breaking activities (29 CFR

part 1915, Shipyards).

(2) Definitions

Paragraph (b) General Industry, Construction and Shipyard

Employment.

OSHA has deleted some definitions which appear in the 1986

standards, and has added others. Alphabetically, the changes are as

follows:

The 1986 standards contained an ``action level'' of 0.1 f/cc, one

half the PEL of 0.2 f/cc. The action level provides a ``trigger'' for

certain duties, such as monitoring, medical surveillance and training.

The Court of Appeals for the District of Columbia Circuit instructed

OSHA to consider reducing the action level to 0.05 f/cc should the PEL

be reduced to 0.1 f/cc. In most single-substance air contaminant

standards it has issued, OSHA has set an action level equal to half the

PEL. The action level triggers duties of monitoring, medical

surveillance, and training, and assures that workers who are not

exposed at or above the PEL but who may nevertheless be exposed to

levels that present a risk to their health receive a degree of

protection. The action level thus helps to reduce residual risk that

may remain at the PEL.

In these standards, OSHA has taken a different approach to

protecting workers exposed to levels of asbestos below the PEL. Instead

of a numerical action level, employer duties involving training and

medical surveillance are triggered by exposure to ACM or PACM or by the

type of work being done. Additionally, work practices also are required

regardless of measured exposure levels. OSHA considers this approach to

better protect employees than an action level, which triggers training

and medical surveillance duties based on monitoring results. OSHA's

approach is particularly appropriate for asbestos because in many

cases, asbestos levels below the PEL cannot be reliably measured, and

duties tied to an action level might therefore be triggered by

measurements of dubious accuracy.

In the 1990 proposal, OSHA did not propose an action level based on

its tentative conclusion that workplace asbestos concentrations below

the PEL could not be reliably and reproducibily measured (55 FR 29722).

The Agency asked for comment on the advisability of setting an action

level of 0.05 f/cc, and specifically asked whether the methodology for

measuring airborne asbestos levels had advanced sufficiently to allow

reliable and reproducible measurements at that level. Evidence

subsequently submitted to the rulemaking record indicated that levels

as low as 0.05 f/cc could not be consistently measured reliably. The

rulemaking reinforces OSHA's tentative conclusion that workplace

asbestos levels of 0.05 f/cc cannot be measured reliably (see NIOSH Tr.

215, SESAC Tr. 345). Because employers cannot obtain reliable and

reproducible measurements of airborne asbestos levels at concentrations

of 0.05 f/cc, it would be infeasible to base training and medical

surveillance requirements on worker exposure to asbestos at such a

level. OSHA therefore declines to establish an action level of 0.05 f/

cc. OSHA recognizes in some circumstances the general advantages of an

action level, and if future monitoring technology is developed which

would allow reliable, consistent determinations at lower fiber levels,

OSHA will reconsider whether an action level would be appropriate for

the asbestos standard and whether action under section (6)(b)(7) of the

Occupational Safety and Health Act which directs OSHA to ``make

appropriate modification in the * * * requirements relating to * * *

monitoring or measuring * * * as may be warranted by experience,

information, or medical or technological developments acquired

subsequent to the promulgation of the relevant standard'' is

appropriate.

The agency has, however, included provisions that require training

and medical surveillance of employees exposed below the PEL. Thus, like

standards that contain an action level, these standards use training

and medical surveillance to reduce the residual significant risk that

remains at the PEL. The general industry standard requires that all

employees who work in areas where ACM or PACM is present be given a

prescribed level of awareness training. The construction and shipyard

standards require training of all workers who install asbestos-

containing products and all workers who perform Class I, Class II,

Class III, and Class IV work. These training requirements assure that

all employees who are potentially exposed to more than de minimis

concentrations of asbestos can recognize conditions and activities that

can lead to asbestos exposure, know of the hazards associated with

asbestos exposure, and are trained to utilize the means prescribed by

the standard to minimize their exposure.

With respect to medical surveillance, the construction and shipyard

standards require medical surveillance of all workers who, for a

combined total of 30 days per year or more, engage in Class I, II, or

III work, or who are exposed above the PEL or excursion limit.

Additionally employees who wear negative pressure respirators are

provided with medical surveillance. The general industry standard

requires medical surveillance of all workers exposed above the PEL or

excursion level, with no 30-day per year limitation. In crafting these

provisions, OSHA has attempted to assure that those workers for whom

medical surveillance will provide relevant information and benefit are

entitled to it. In construction and shipyard work, employees who do not

engage in Class I, II, or III work are unlikely to be exposed above

0.05 f/cc (the potential ``action level'') because the work practices

mandated in the standard should result in negligible asbestos exposure

to workers who do not specifically engage in asbestos-related work.

Employees who engage in only Class IV work also should not be exposed

above 0.05 f/cc because of the lower asbestos exposures associated with

such work. OSHA therefore believes that the construction and shipyard

provisions target medical surveillance where it is needed.

In general industry, the vast majority of workers who are exposed

below the PEL will also be exposed below 0.05 f/cc. The work practices

mandated for brake and clutch repair, by far the largest general

industry segment subject to the standard, should result in virtually

all such workers being exposed below 0.05 f/cc. Another large general

industry segment, custodial workers, will also be generally exposed

below 0.05 f/cc. While some small number of workers in both categories

as well as in the manufacturing of asbestos products may be exposed

between 0.05 f/cc and 0.10 f/cc on some days, the difficulty of

obtaining reliable and reproducible measurements at those levels makes

it difficult to identify those workers accurately. Therefore, if

medical surveillance were triggered by exposure above 0.05 f/cc, the

employees subject to such surveillance would likely be chosen on the

basis of the vagaries of the monitoring process rather than on any

realistic assessment of the risk that they face. OSHA therefore

concludes that it would be infeasible, and would not reduce significant

risk, to require medical surveillance for workers in general industry

exposed below the PEL or excursion limit.

David Kirby of the Oak Ridge National Laboratory stated his belief

that:

I'm not sure if the analytical methodology will be able to

support this due to the level of accuracy that's normally associated

with trying to take samples under the normal procedures at that

level.'' (Tr. 105)

NIOSH too testified that ``[i]n NIOSH's judgment, the establishment of

a PEL or an action level below 0.1 fiber per cc for most industrial or

construction work sites would be difficult at this period of time''

(Tr. 215). Additional doubt was voiced by the chairman of the Shipyard

Employment Standards Advisory Committee, ``* * * an action level, that

is 0.05 fibers per cc, is not appropriate or reasonable due to

inconsistencies and non-reproducibility with the sampling and

analytical methodology'' and noted concern that shipyard environments

were especially likely to have high levels of background dust which

could overload sampling devices, making determinations at that level

more difficult (Tr. 345). Other commenters supported the proposed

deletion of an action level (Ex. 7-2, 7-39, 7-99,7-104, 7-120, 7-146).

Asbestos

In 1992 OSHA amended the definition of ``asbestos'' from the 1986

standards. The non-asbestiform varieties of the minerals actinolite,

tremolite and anthophyllite are no longer included in the definition of

asbestos. In 1986 OSHA determined that although tremolite, actinolite

and anthophyllite exist in different forms, all forms of these minerals

would continue to be regulated. Following promulgation of the rule,

several parties requested an administrative stay of the standard

claiming that OSHA improperly included non-asbestiform minerals. A

temporary stay insofar as the standards apply to the non-asbestos forms

of tremolite, actinolite and anthophyllite was granted and the Agency

initiated rulemaking, proposing to remove these forms from the scope of

the asbestos standards. Following a public comment period and public

hearing, OSHA issued its final decision to delete non-asbestiform

tremolite, anthophyllite and actinolite from the scope of the asbestos

standards (57 FR 24310, June 8, 1992). The Agency, in evaluating the

record, found that ``evidence is lacking to conclude that non-

asbestiform tremolite, anthophyllite and actinolite present the same

type or magnitude of health effect as asbestos,'' and that the failure

to regulate them as asbestos does not present a significant risk to

employees.

Classification of Asbestos Work (Classes I-IV)

In the Construction and Shipyard Employment Standards, OSHA is

adding definitions for four classes of activities which trigger

different provisions in the standard. Those activities presenting the

greatest risk are designated Class I work, with decreasing risk

potential attaching to each successive class. The Construction and

Shipyard Employment Standards regulate Class I, II and III work; all

three standards regulate Class IV work.

``Class I'' work is defined as activities involving the removal of

thermal system insulation and sprayed-on or troweled-on or otherwise

applied surfacing ACM (asbestos-containing material) and PACM (presumed

asbestos-containing material); ``Class II asbestos work'' is defined as

removal of ACM or PACM which is not TSI or surfacing ACM or PACM;

``Class III asbestos work'' is defined as repair and maintenance

operations which are likely to disturb ACM, or PACM; Class IV

operations are custodial and housekeeping operations where minimal

contact with ACM and/or PACM may occur.

Class I asbestos work involves removal of surfacing materials

sprayed or troweled or otherwise applied to surfaces, and removal of

thermal system insulation. Surfacing materials include, for example,

decorative plaster on ceilings or acoustical ACM on decking or

fireproofing on structural members. Thermal system insulation includes,

for example, ACM applied to pipes, boilers, tanks and ducts. Based on

the record, OSHA has determined that the prevalence of these materials

and their likelihood of significant fiber release when disturbed,

requires rigorous control methods which OSHA has set out in the

standards.

Class II asbestos work involves removal of any other asbestos-

containing material--which is not TSI or surfacing ACM. Examples of

Class II work are removal of floor or ceiling tiles, siding, roofing,

transite panels. EPA refers to these materials as ``miscellaneous ACM''

in the ``Green Book.'' (Ex. 1-183) Work practices and other control

measures to be employed in removing these materials are discussed later

in this preamble under the methods of compliance section.

Class III asbestos work are defined as repair and maintenance

activities involving intentional disturbance of ACM/PACM. Class III is

limited to incidental cutting away of small amounts (less than a single

standard waste bag) of ACM/PACM, for example, to access an electrical

box for repair.

The first three classes of asbestos work are intended to cover the

kinds of asbestos work which under the 1986 construction standard were

designated ``asbestos removal, demolition, and renovation operations,''

including ``small-scale, short-duration operations, such as pipe

repair, valve replacement, installing electrical conduits, installing

or removing drywall, roofing, and other general building maintenance or

renovation.''

The classes are exclusive. For example, the stripping of 50 linear

feet of thermal system insulation, which has not been positively

identified as non-asbestos containing material is Class I, for it is

the removal of PACM. Repair of a valve covered by ACM is Class III,

since ``removal'' is not taking place. Removal of roofing material

containing ACM is Class II, since roofing material is not high-risk

ACM. OSHA believes dividing activities by ``Classes'' will be clearer

than the prior system in the 1986 standard which prescribed different

precautions for ``small scale, short duration work,'' which it then

defined by example. As noted in several places in this document this

was confusing to employers, to the Court and to OSHA itself. A more

extensive discussion of the ``Class'' system of designating work with

asbestos-containing materials is contained in the discussion on

``Methods of Compliance'' provisions later in this preamble.

Class IV work is defined as maintenance and custodial activities

during which employees contact ACM and PACM and activities to clean up

waste and debris containing ACM and PACM. This includes dusting

surfaces, vacuuming carpets, mopping floors, cleaning up ACM or PACM

materials from thermal system insulation or surfacing ACM/PACM. Workers

may contact ACM or PACM when performing a wide variety of routine jobs

that result in incidental disturbance, such as changing a battery in a

smoke detector attached to a ceiling containing ACM or PACM, polishing

floors containing asbestos, and changing a light bulb in a fixture

attached to an asbestos containing ceiling.

For custodial work, the Class IV characterization applies to

situations where there is an indication that surfaces are contaminated

with ACM or PACM. One indication would be identification of the ACM or

PACM sources of the debris or dust; such as visibly damaged, or

degraded, ACM or PACM in the vicinity. Visibly damaged, degraded, or

friable ACM or PACM are indications that surface dust could contain

asbestos, and Class IV protection applies. OSHA requires in (g)(9) that

such dust or debris be assumed to be ACM or PACM. Another indication

could be an analytical test to determine whether the surface dust

itself contains asbestos. Since dust of carpets may not be visible,

visible dust on other surfaces along with the presence of ACM/PACM

nearby would indicate that cleaning the carpet is Class IV work.

The general industry standard also includes requirements for

maintenance and custodial operations which mirror Class IV requirements

in the construction standard. These would apply to activities which are

not traditionally viewed as construction activities, and which, as

contended by certain participants in this proceeding, may not be

covered by the Construction Safety Act (40 U.S.C. 333). As further

discussed in the preamble discussion relating to paragraph (a), Scope

and Application, examples of these activities are clean-up in areas

where asbestos-containing dust or debris is present and removing light

fixtures located near ``high risk'' surfacing material.

Some Class IV work was covered by the earlier standards, yet the

coverage was incomplete. The general industry standard regulated

housekeeping activities, and housekeeping activities were also included

in the construction standard to be covered if they were part of a

construction job. Precautionary maintenance guidelines to avoid

disturbing ACM were addressed in Appendix G of the construction

standard. OSHA believes that the switch from the regulated

``housekeeping'' activities to the Class IV definition is clearer and

reduces loopholes. The custodial activities covered in either event can

clearly create asbestos dust and expose custodial employees to that

dust. Data in the record show that custodial activities can produce not

insignificant asbestos exposure levels. Therefore, the work practices

required to reduce that dust are clearly necessary to reduce

significant risk to custodial workers.

By establishing a Class IV, OSHA is rejecting various

recommendations that some activities, potentially involving asbestos

disturbance, would result in de minimis risk, and as such should not be

regulated (See further discussion concerning Methods of Compliance).

The new definition of Class IV work, the removal of the non-mandatory

appendix, and coverage of these activities both under general industry

standard and the construction standard and shipyard employment

standards clarify the standards' application to such work.

OSHA requested comments on setting a cut-off for asbestos-

containing material with minimal asbestos content. There was

overwhelming support for a 1% cutoff for ACM which would be consistent

with EPA rules. The Hazard Communication Standard labeling and training

provisions require labelling of materials which contain more than 0.1%

asbestos. EPA defines asbestos containing material as: ``Any material

containing more than one percent asbestos.'' (NESHAP and Green Book p.

30). OSHA has no information to indicate what proportion of building

materials fall into the category of containing more than 0.1% and less

than 1.0% asbestos. EPA has listed building materials by their asbestos

content and among those included on the list, only surfacing ACM ranged

down to 1% (and up to 95%) (EPA ``Purple Book,'' Ex. 1-282). Some

participants, including NIOSH have expressed concern that even 1% may

be below the accuracy level for optical microscopic methods. (Ex. 7-

145, 162-39). Among those who dealt with the issue, most supported the

1.0% cutoff, most citing its consistency with EPA (Ex. 7-5, 7-6, 7-21,

7-43, 7-51, 7-74, 7-76, 7-99, 7-106, 7-111, 7-120, 7-137, 151, 162-59,

162-29). OSHA agrees that a cutoff of 1.0% asbestos is appropriate for

asbestos containing building materials and has included this value in

its definitions of ACM.

Closely Resemble

Included in the construction and shipyard employment standards is a

definition for the term ``closely resemble,'' which is the term used in

the regulatory text to limit the use of historic exposure data to

predict exposures. It is defined as circumstances where ``the major

workplace conditions which have contributed to the levels of historic

asbestos exposure are no more protective than in the current

workplace.'' OSHA's intent is to allow data reflecting past exposures

to be used to predict current exposures only when the conditions of the

earlier job were not more protective, i.e., employees were not better

trained, work practices were not used more consistently, and no more

supervision was present.

Competent Person

OSHA has amended the definition of ``competent person'' in the

construction standard and included it in the Shipyard Employment

Standard as a ``qualified person.'' The definition is based on the

definition of ``competent person'' in the general construction

standard, 29 CFR 1926.32(f), i.e. ``one who is capable of identifying

existing asbestos hazards in the workplace and who has the authority to

take prompt corrective measures to eliminate them,'' but adds a

specific training qualification. The training provisions require a

competent person take a course which meets the requirements of EPA's

Model Accreditation Plan (40 CFR 763, Subpart E). OSHA believes that

specific training is needed so a ``competent person'' will have

adequate knowledge to perform the competent person's responsibilities

for Class I and II work. A Class II and Class IV ``competent person''

must undergo ``Operations and Maintenance'' (O&M) training as developed

by EPA. Further discussion of these issues is found later in this

document.

The revised definition deletes from the definition a list of duties

to be performed by the competent person. Duties are more appropriately

set out in other regulatory paragraphs which are prescriptive, rather

than in the ``definition'' section. In response to the court's remand,

OSHA has also expanded the scope of the competent persons's duties so

that a competent person must supervise all asbestos activities under

the construction standard. As noted, these requirements are set forth

in other regulatory paragraphs which govern conditions of work in

covered activities.

The shipyard employment standard does not use the term ``competent

person,'' because that term has a unique definition under Part 1915.

OSHA has accepted SECSAC's recommendation that the term ``qualified

person'' should be used to designate a person with the same duties

under the shipyard employment standard.

Critical Barriers

OSHA is adding a definition for the term ``critical barriers''

whose use is required in certain asbestos operations. These are defined

as plastic sheeting or equivalent material placed over openings to the

work area. These barriers are effective when they seal all openings

into a work area. Critical barriers can be other physical barriers

sufficient to prevent airborne asbestos in a work area from migrating

to an adjacent area.

Disturbance

OSHA has added a definition for ``disturbance'' to all three

standards to distinguish it from removal. In this definition

disturbance means any contact with ACM/PACM which releases fibers or

which alters its position or arrangement. It also includes operations

which disrupt the matrix or render it friable or which generate visible

debris from it. A quantitative cutoff of disturbance is given--the

amount of ACM/PACM so disturbed may not exceed the amount that can be

contained within one standard sized glove bag or waste bag. OSHA

believes that certain jobs, e.g., repairing leaking valves, often

require asbestos to be cut away to gain access to a component. If the

amount of asbestos so ``disturbed'' is contained in one bag, Class I

precautions are not necessary.

Glove Bag

The term ``glove bag'' is also defined in the standards as a

plastic bag-like enclosure affixed around ACM with glove-like

appendages through which material and tools may be handled.

Homogeneous Area

The presumption that a material contains asbestos may be rebutted

by sampling a ``homogeneous'' area of the presumed ACM to determine its

asbestos content. OSHA has defined ``homogeneous area'' in much the

same way it is defined by EPA as an area of surfacing material or

thermal system insulation that is uniform in color and texture.

Industrial Hygienist

A definition for ``Industrial Hygienist'' is included in the

standards as a professional person qualified by education, training,

and experience to anticipate, recognize, evaluate and develop controls

for occupational health hazards.

Initial Exposure Assessment

``Initial Exposure Assessment,'' including ``Negative Initial

Exposure Assessment'' are terms used in the construction and in the

shipyard standards. It means a required assessment by a ``competent

person'' concerning the exposure potential of a specific asbestos job,

or series of similar asbestos jobs. A ``Negative Initial Exposure

Assessment'' is such an assessment in which it is concluded that

employee exposures during the job are likely to be consistently below

the PELs. Assessments must be based on information and data which are

allowed pursuant to criteria in paragraph (f). The results of ``Initial

monitoring,'' no longer required for each job, should be considered,

but do not necessarily constitute an adequate ``assessment'' if they

would not represent all worst-case employee exposures during the entire

job.

Modification

Alternatives or modifications to listed control methods are allowed

when the employer demonstrates that such a ``modification'' still

provides equivalent worker protection. OSHA does not intend that

changes in a control method which decrease the safety margin of a

material or omitting a procedure be permitted by calling it a

``modification.'' A ``modification'' means a changed or altered

procedure, material which replaces a procedure, material or component

of a required system. For example, a new test proven successful in

detecting leaks might be substituted for required ``smoke tests.''

Omission of a procedure or component, or a reduction in the stringency

or strength of a material or component is not considered a

``modification'' under this section.

Presumed Asbestos-Containing Material (PACM)

In all three standards, ``presumed asbestos containing material,''

``PACM'' means thermal system insulation and sprayed on and/or troweled

or otherwise applied surfacing material in buildings constructed no

later than 1980. OSHA has found that these materials are ``high risk''

if asbestos-containing. OSHA bases this on the record, including the

HEI Report which states that ``thermal system insulation and surface

treatments (fireproofing, acoustical and decorative finishes) stand out

in importance for their potential for fiber release and subsequent

exposure to [building] occupants'' (Ex. 1-344, p. 4-5). Although these

materials may have been installed in small quantities after 1980, OSHA

finds that their installation is unlikely after that date.

Project Designer

OSHA has adopted a definition like that of EPA for a ``Project

Designer''-- a person who has successfully completed the training

requirements for an abatement project designer established by 40 USC

763.90(g).

Removal

``Removal'' means all operations where ACM and/or PACM is removed

from a building component, regardless of the reason for the removal. It

includes those maintenance, repair, renovation and demolition

activities where ACM and/or PACM removal is incidental to the primary

reason for the project, as well as where removal of ACM and/or PACM is

the primary reason for the project. Removal should be distinguished

from ``disturbance'' which includes ``cutting away'' a small amount of

ACM or PACM.

Regulated Area

``Regulated area'' is included in all three standards. All three,

like the 1986 standards, require the establishment of such an area

where the employer believes that the PEL will be exceeded. Now, the

construction and shipyard employment standards add that such area must

be established also where Class I, II and III activities will take

place, regardless of exposure levels. Also, the specific actions

required of the employer to demarcate a regulated area are deleted from

the definition, and are placed in the appropriate prescriptive

paragraph, in this case paragraph (e)(6).

(3) Permissible Exposure Limits

Paragraph (c) General Industry, Construction and Shipyard

Standards.

In all three standards, the eight hour time-weighted average

permissible exposure limit is changed from an eight hour time weighted

average (TWA) of 0.2 f/cc to a TWA of 0.1 f/cc in the revised final

rules. As noted in the 1990 proposal and in the preamble discussion

above, OSHA's decision to reduce the PEL across the board responds to

the Court's directive to consider whether to establish operation-

specific exposure limits, since the Court noted that on the record of

the 1986 standards, it appeared feasible to reduce the PEL to 0.1 f/cc

limit in many industry sectors. OSHA has rejected ``operation-

specific'' PELs for the wide variety of operations that expose

employees to asbestos. OSHA proposed and these final standards adopt

required operation-specific work practices, in addition to an across-

the-board PEL reduction to 0.1 f/cc. OSHA expects that the risk

reduction accomplished by this two-pronged approach will be at least as

great as would operation-specific PELs. First, the required controls

are found to be capable of achieving maximum exposure reduction on an

operation-by-operation basis. Second, since OSHA has found that

specific work practices are feasible, the Agency expects a higher

compliance rate and thus, greater risk reduction than if practices were

not specified. Third, in operations where particular controls are

specified, the PEL is a backstop; alerting employers where additional

controls are needed or closer surveillance is required; in all

operations the PEL is a measurable and comparable value, which cannot

be exceeded without further action by the employer to reduce exposures.

At the time of the proposal in 1990, the question of whether the

proposed PEL reduction would reduce a still significant risk had

already been given a tentative answer by the Court. The D.C. Circuit

Court of Appeals, in remanding the issue of lowering the PEL to the

Agency, noted that based on the 1984 risk assessment, the excess risk

stemming from average exposures of 0.1 f/cc ``could well be found

significant.'' BCTD v. Brock, 838 F.2nd at 1266.'' (55 FR at 29714).

In the proposal, OSHA stated that it believes ``that compliance

with proposed amendments to reduce the PEL to 0.1 f/cc as a time-

weighted average measured over 8 hours would further reduce a

significant health risk which exists after imposing a 0.2 f/cc PEL''

(55 FR 29714, July 20, 1990). OSHA's 1984 risk assessment showed that

lowering the TWA PEL from 2 f/cc to 0.2 f/cc reduced the asbestos

cancer mortality risk from lifetime exposure from 64 to 6.7 deaths per

1,000 workers. OSHA estimated that the incidence of asbestosis would be

5 cases per 1,000 workers exposed for a working lifetime under the TWA

PEL of 0.2 f/cc. Counterpart risk figures for 20 years of exposure are

excess cancer risks of 4.5 per 1,000 workers and an estimated

asbestosis incidence of 2 cases per 1,000 workers.

OSHA's risk assessment also showed that reducing exposure to 0.1 f/

cc would further reduce, but not eliminate, significant risk. The

excess cancer risk at that level would be reduced to a lifetime risk of

3.4 per 1,000 workers and a 20 year exposure risk of 2.3 per 1,000

workers. Consequently significant risk would be reduced substantially.

However, OSHA concluded therefore that continued exposure to asbestos

at the TWA permitted level and action level would still present

residual risks to employees which are significant.

The Court did not ask and OSHA did not undertake to review its

earlier risk assessment in the proposal. At the hearing in January,

1991, Mr. Martonik, spokesperson for OSHA was asked by Mr. Hardy,

representing the Safe Building Alliance (SBA), if OSHA was planning to

update the earlier risk assessment as part of this proceeding. Mr.

Hardy stated that ``a number of parties have suggested to OSHA that its

risk assessment from 1984, as relied on in the 1986 final rule, is

outdated'' (Tr. 30). Mr. Martonik responded that ``we will have to

consider all information we receive and determine relevance in this

rulemaking after the record is closed. (Ibid).

Other parties questioned OSHA's continuing reliance on the 1984

risk assessment. The Asbestos Information Association (AIANA) testified

that ``OSHA's 1984 risk assessment fails to take into account the

scientific community's consensus that chrysotile exposures hold lower

risk than the Agency estimates * * * we do not believe that the risk

assessment that is six years old relies on the best available

evidence.'' AIANA requested OSHA to convene experts, as part of this

hearing process ``to revise its asbestos risk assessment.'' (Tr. 530),

this was the major objection to OSHA's earlier risk assessment. Some

participants voiced similar objections. (Ex. 7-88, 7-110, 7-104, 7-120,

Ex. 145, 151), while others were of the opinion that chrysotile had the

same potency as other forms of asbestos (see Ex. 119 C, 1-136, 125,

Att. 6, 143 Att C, 143 Att. D.).

Although as noted above, the issue of the continuing validity of

OSHA's earlier risk assessment was not remanded to the Agency for

reconsideration, implicit in OSHA's proposal to lower the PEL to 0.1 f/

cc is OSHA's determination based on the 1984 risk assessment, that the

lower exposure limit is necessary to reduce a still significant

occupational risk.

After a comprehensive review of the evidence submitted concerning

the validity of the 1984 risk assessment, OSHA has determined that it

will continue to rely on the earlier analysis. The Agency believes that

the studies used to derive risk estimates remain valid and reliable,

and that OSHA's decision to not separate fiber types for purposes of

risk analysis is neither scientifically nor regulatorily incorrect.

There are at least three reasons for OSHA's decision not to

separate fiber types. First, OSHA believes that the evidence in the

record supports similar potency for chrysotile and amphiboles with

regard to lung cancer and asbestosis. The evidence submitted in support

of the claim that chrysotile asbestos is less toxic than other asbestos

fiber types is related primarily to mesothelioma. This evidence is

unpersuasive, and it provides an insufficient basis upon which to

regulate that fiber type less stringently.

As OSHA explained in the preamble to the 1986 standards,

* * * to summarize the data on risk differential by asbestos

fiber type, human epidemiological studies have suggested that

occupational exposure to amphiboles is associated with a greater

risk of mesothelioma than is exposure to chrysotile * * * No clear

risk differential for lung cancer or other asbestos-related disease

has been demonstrated by epidemiological studies. Animal

experiments, however, have indicated that chrysotile is a more

potent carcinogen than amphiboles when administered by inhalation or

intrapleural injection * * * (51 FR at 22628).

OSHA agreed with the testimony of Dr. Davis, who stated that ``the

evidence cannot answer * * * with certainty * * * if ``one fiber * * *

of amphibole (is) more dangerous than one fiber * * * of chrysotile.''

(Ibid).

Second, as stated in the 1986 asbestos standard, even if OSHA were

to accept the premise (which it does not), that chrysotile may present

a lower cancer risk than other asbestos fiber types, occupational

exposure to chrysotile asbestos still presents a significant risk of

disease at the revised PEL (See 51 FR 22649, 22652). In particular,

asbestosis, the disabling and often fatal fibrosis of the deep portions

of the lung, is caused by exposure to all types of asbestos. The

evidence on this is strong and no new information has been presented to

contradict this. As stated above, OSHA estimated asbestosis risks at

0.2 f/cc exposures as an unacceptably high 5 cases per 1000 workers.

Thus, asbestosis risks alone justify the regulation for chrysotile.

Lung cancer risks associated with chrysotile exposures are also

high--6.7 lung cancer deaths per 1000 workers exposed to 0.2 f/cc for a

full working lifetime. OSHA notes that SBA's witness, Dr. K. Crump

acknowledged that ``(t)here's not a clear difference, * * * even in

humans, for lung cancer * * * in terms of distinguishing the potency of

amphiboles vs. chrysotile.'' (Tr. 4220).

Third, the record shows that employees are likely to be exposed to

mixed fiber types at most construction and shipyard industry worksites

most of the time. Assigning a higher PEL to chrysotile would present

the Agency and employers with analytical difficulties in separately

monitoring exposures to different fiber types. Thus, regulating

different fiber types at differing levels, would require more

monitoring all the time and would produce limited benefits (51 FR

22682).

Consequently, OSHA believes that its conclusion to treat all

asbestos fibers as having a similar potency in the occupational setting

remains valid. Most of the evidence submitted to the remand rulemaking

duplicated evidence submitted to the 1986 standards' record, or was

cumulative to the earlier body of evidence. For example AIANA appended

its 1988 submission to the EPA, consisting of numerous studies and

reports. Some of these documents were considered by OSHA in the prior

rulemaking. There, OSHA had stated that the 1983 Berry and Newhouse

study of friction materials manufacturing workers which found

nonsignificant increases in lung cancer mortality, was inconsistent

with other studies showing that low level asbestos exposure resulted in

excess lung cancer mortality, because of the relatively short follow up

period used (51 FR 22618).

Other studies involved lung burden analyses of mesothelioma

victims, apparently showing that the pulmonary content of chrysotile

was within the range of the general population, whereas amphibole

content was significantly elevated compared to the general population

(see e.g. Churg, Malignant Mesothelioma in British Columbia in 1982,

Cancer, 2/85, 672). OSHA noted in the preamble to the 1986 rule, that

there is a difference in tissue retention which would account for the

autopsy results and cited a study by Glyseth et al. (Doc. 33-C, Ex.

312) which supported that explanation. OSHA also noted that ``the

differential lung retention of various fiber types has been

demonstrated in animals,'' citing a study by Wagner which found that

animals exposed to chrysotile fibers developed lung cancer even though

a smaller amount of chrysotile was retained in the lung compared to

similar tests with amphiboles.

Dr. Weill believed that ``these differences in tissue persistence

may wholly or partially explain the observations [that exposure to

amphiboles are associated with a higher prevalence of mesothelioma] in

human * * * population * * *. Non-confirmation of fiber type

differences in animal experiments may be related to the much shorter

life span * * * [of experimental animals, which would not allow] the

effects of varying tissue-persistence to be expressed'' (Doc. 33-C, Ex.

99, p.18; 51 FR 22628). Therefore OSHA had reviewed and evaluated in

the earlier rulemaking a portion of the evidence submitted by

proponents of differential regulation of fiber types, and had rejected

the claim that chrysotile should be regulated less stringently.

Some new evidence on the issue of differential risks of asbestos

fiber types was submitted by both supporters and detractors of that

theory.

In support of the position that chrysotile asbestos exposure is

equivalent in risk to amphibole asbestos exposure, BCTD submitted

studies which indicated excess mesothelioma cases in workers exposed

solely to chrysotile asbestos (see Ex. 119 C, 1-136, 125, Att.6, 143

Att C, 143 Att. D). In support of the opposing claim that chrysotile

has reduced carcinogenic potential, AIANA and SBA submitted additional

evidence. For example, AIANA submitted the World Health Organization's

1989 working report which recommended that the exposure limit for

chrysotile should be reduced to 1 f/cc or below (8 hour TWA), where it

was recommended that exposure to crocidolite and amosite asbestos be

prohibited (Ex. 21 A, p. 9). In particular, two papers by Mossman, et.

al, are cited as the basis for the claim that a scientific

``consensus'' believes that chrysotile carries a reduced carcinogenic

risk (Ex. 1-153, 151). Thus AIANA states that ``since OSHA issued its

1984 asbestos risk assessment, the scientific consensus that chrysotile

asbestos poses lesser risks has solidified'' (Ex. 142 at 3).

However, OSHA notes that various participants in this rulemaking,

including NIOSH and Dr. Nicholson, disputed the existence of such a

consensus. Dr. Nicholson and others including Dr. Landrigan, in a

letter to Science, (Ex. 1-155), dispute various interpretations of data

in Mossman et al.'s paper, and challenge the conclusion that chrysotile

asbestos carries little cancer risk. Nicholson et al, point out that

human studies show excess lung cancer risk that is proportionate to

exposure across all fiber types, and that animal tests confirm these

relationships. OSHA believes that the scientific community has not

achieved ``consensus'' on these issues.

Among the studies submitted in support of the lowered risk of

chrysotile asbestos, are those of Churg, and others showing that the

lung burden of mesothelioma victims is predominantly amphibole, even

though high chrysotile exposure levels were reported. As noted above,

this line of argument was presented in the earlier asbestos rulemaking,

and OSHA had concluded that lung burden studies are inconclusive.

Additional response to this argument is provided by Dement who notes

that ``(t)he biological significance of post-mortem lung fiber burden

data has yet to be established. These data are not useful as a

predictor of disease for several reasons. Chrysotile is known to split

longitudinally and partially dissolve in the lung whereas amphiboles

remain in the lungs for years without significant dissolution * * *.

Measurements of tissue fiber burdens many years after first exposure

may bear no relationship to the carcinogenic events which likely have

taken place many years before clinical manifestation of cancer.'' (Ex.

1-273)

BCTD pointed out in its post-hearing brief, that ``Dr. Landrigan

testified, while the observation that chrysotile does not last as long

in the lungs as other forms of asbestos is not new knowledge (Tr.

1074), there is recent evidence that chrysotile is ``the most effective

of the three major fiber types at migrating to the pleura, that it is

present in substantial amounts in pleural plaques and mesotheliomas,

even in circumstances where it is not present or minimally present in

the lungs themselves'' (Tr. 1074).

The Agency also notes that the HEI report, in summing up its

discussion of its literature search of studies examining the issue of

the relative potency of chrysotile in inducing mesothelioma, stated:

``(t)he evidence that chrysotile rarely causes pleural mesothelioma is

not conclusive ``* * * and concluded that the absence of mesothelioma

in one of the ``two cohorts of heavily exposed asbestos workers who

worked only with chrysotile * * * seems likely to be due at least in

part to chance'' (Ex. 1-344 p. 6-23).

HEI concluded that ``the mesothelioma risk for chrysotile was an

issue of disagreement; some members of the Literature Review Panel held

the view that a lower estimate should be recommended, as it would be

more consistent with available data. The crucial issues, neither of

which can be resolved unequivocally, are (1) what proportion of the

mesotheliomas observed in groups such as the U.K. textile workers and

the U.S. insulation workers were caused by their exposure to

crocidolite or amosite; and (2) whether the best general estimate of

the ratio of mesothelioma to excess lung cancer caused by chrysotile is

provided by the Quebec miners and millers (about 1:4 or 1:5), or by the

South Carolina textile workers handling Quebec fiber (zero)'' (Ex. 1-

344 p. 6-32).

Thus, although there is some evidence linking chrysotile to a lower

mesothelioma rate than some amphibole fiber types, OSHA believes that

there is insufficient evidence to show that chrysotile does not present

a significant mesothelioma risk to exposed employees. Furthermore, the

major disease linked to asbestos exposure, lung cancer, occurs at the

same frequency among employees exposed to equivalent doses of

chrysotile or to amphibole asbestos fiber types. Indeed, evaluation of

all of the evidence indicates that chrysotile asbestos presents a

similar significant risk of lung cancer and asbestosis as other forms

of asbestos. Since these adverse health effects constitute the majority

of diseases related to asbestos exposure, OSHA is still of the opinion

that chrysotile exposure should be treated the same as other forms of

asbestos.

In addition to contentions that OSHA's risk assessment had

overstated asbestos risks because it treated the risks from all

asbestos fiber types equally, other contentions were made that the

earlier risk assessment may have understated the risks from asbestos,

because it ignored evidence of the incidence of pleural plaques, and

other asbestos disease which occurred in workers exposed at low levels,

primarily as building custodians. The earlier risk assessment in 1984

focused on whether there was a significant risk of cancer and

asbestosis at various levels of cumulative exposure. During this

hearing, various labor groups stated their position that the presence

of pleural plaques in asbestos exposed employees is not only a marker

of asbestos exposure, but also an independent ``material impairment''

because they are associated with a greater risk of lung function

impairment and pleuritic pain. Pleural plaques are focal areas of

fibrous thickening of the pleura, the membrane lining the lung.

Further, suggestions were made that OSHA should reduce its PELS to

correspond to these increased risks of ``material impairment'' which

occurred at lower exposure levels (see e.g., Ex. 143 at 35-37).

Evidence submitted during the rulemaking consisted of testimony and

studies which in the view of some participants showed lung function

decrement and resulting excess disease among workers exposed at low

levels. For example BCTD witness Dr. Christine Oliver described various

studies and concluded:

Pleural plaques * * * were a predictor for increased mortality

from lung cancer and malignant mesothelioma in subsequent years * *

* pleural plaques have also been shown to be associated with

decrement in lung function * * * At the very least, pleural plaques

are a marker for exposure, sufficient to increase risk for lung

cancer and for malignant mesothelioma, and they have also been

associated with loss of lung function (Tr. 1035-6).

Dr. Oliver recommended medical surveillance of those exposed to

asbestos in their capacity as custodians in buildings.

The studies considered by Dr. Oliver consisted of one involving 120

Boston public school custodians (Tr. 1026) which she conducted and

found pleural plaques in 33% (N=40) of the group. Further she noted

that in 21% (of the 40, or 12 individuals) there was no known exposure

to asbestos outside work as school custodian. In 18% of the group and

17 % of those with no outside exposure to asbestos, she observed a

restrictive pulmonary defect, significantly associated with duration of

employment as school custodian. Other studies described by Dr. Oliver,

in the docket include: a study of 666 New York school custodians,

reporting only x-ray data (Ex. 47). For all groups of workers, the lung

abnormality seen on x-ray was associated with duration of work as

custodian: a study of 1,117 insulation workers (likely to have had

extensive asbestos exposure) by Dr. Irving Selikoff, in which workers

were followed for up to 27 years prospectively, in which pleural

plaques were found and which were concluded to be predictive of lung

cancer mortality (Tr. 1036 and Ex. 124A): a study, by Balmes (Ex. 124

DD, Tr. 1036, Ex. 1-374) of approximately 900 school district employees

in California were determined as likely to have been exposed to

asbestos. The authors concluded, ``More than 11 percent of workers

known to have sustained exposure to ACM in school building, without

history of exposure to asbestos prior to school district employment,

and with at least 10 years of employment with the district had

radiographic evidence of parenchymal asbestosis and/or asbestos-related

pleural thickening'' (Ex. 1-374, p. 547). After adjusting for smoking

and age, the relative risk was 1.3 times greater for those with 10

years or more employment compared with those who had just begun working

for the school district.

In addition to the occurrence of pleural plaques which are viewed

as presenting an independent material impairment of health due to low

level asbestos exposures, Dr. Oliver cited other studies which

correlated low level asbestos exposure with mesothelioma. Thus, a study

by Dr. H. Anderson (Tr. 1032 and Ex. 124 EE, Ex. 1-374 using

information on mesothelioma cases from a Wisconsin Cancer Registry,

analyzed 359 deaths from 1959 to 1989. Using death certificate

occupational information, the researchers hypothesized 41 as likely to

have been exposed to asbestos in buildings. For 10 (34%), no other

likely source of asbestos exposure was identified. The paper concluded

that ``individuals occupationally exposed to in-place ACBM are at risk

for the subsequent development of mesothelioma'' (Ex. 1-374, p. 570).

SBA submitted a critique of these studies which they commissioned

by Drs. H. Weill and J. Hughes (Ex. 122). They suggested potential

biases in these studies, that Dr. Oliver's study subjects were

volunteers, the study had a low participation rate, they had used a

non-standard classification system, and did not adequately account for

age in relating restriction to lung function. These reviewers concluded

that spirometric functional measurements were not related to the

presence of plaques and that reduced lung volume could result from

other factors. Drs. Weill and Hughes also examined the other studies,

and argued that Dr. Selikoff's were ``fatally flawed'' due to the

potential for development of unmeasured changes during the 27 year

period of follow-up, and that both the Anderson and Balmes studies

failed to adequately adjust for age, smoking and other direct asbestos

exposures. Other reports cited by BCTD were dismissed because of

potential sources of bias.

Dr. Oliver rebutted these arguments (Ex 143, Attachment F). She

argued that she had adequate controls, adequately accounted for age and

demonstrated that pleural plaques were significantly associated with

both latency and duration of work as custodian in the total group and

in the group with no known other exposure, that lung restriction was

significantly associated with duration of work as a custodian, and that

pleural plaques mark increased risk for lung cancer mortality.

Dr. Levin also responded to the reviewer's criticism of his studies

with Dr. Selikoff (Ex. 143, Attachment G). He pointed out that all x-

rays had been read by a single reader, Dr. Selikoff, and that there is

no evidence that smoking without asbestos exposure increases appearance

of the small irregular opacities in the lung seen on the x-rays in

their study. He further noted that in his study only actively working

custodians were included and were therefore a ``survivor'' group and

would therefore not be expected to report pulmonary dysfunction

frequently. He claimed that relatively unexposed subject groups would

not be expected to have more than an upper limit of 3% pleural plaques.

Dr. Anderson also responded to the Weill/Hughes comments (Ex. 143,

Attachment H). He asserted that the review fails to explain how biases

would significantly increase odds ratios in the study, that

misclassification often is random and biases toward not detecting a

difference between the study and control groups. He also questioned

existence of evidence that smoking without asbestos exposure causes

pleural thickening or irregular opacities.

The review of available literature, including the studies mentioned

above by the Health Effects Institute, resulted in its the estimation

that the prevalence of pleural plaques in the general population to be

about 5% (Ex. 1-344, p. A2-9). Although HEI advised caution in

interpreting the existing studies due to lack of specificity and

sensitivity of methods used and couched its conclusions in cautious

terms, they concluded: ``* * * there is now persuasive evidence

implicating asbestos-related pleural disease as an independent cause or

indicator of functional impairment and possibly even disability * * *

On the individual level, pleural disease may be the only indication of

asbestos exposure, may explain symptoms and function impairment, and

may predict future deterioration in lung function'' (Ex. 1-344 p. A2-

12).

OSHA agrees that health effects such as lung function impairment

and pleuritic pain would be considered ``material impairment,'' if

substantial evidence supports the link to pleural plaques. OSHA

concludes that the scientific data indicate that pleural plaques are

primarily associated with asbestos exposure, and that they have

occurred and still may at relatively low exposure levels.

However, OSHA does not believe that the data are available to

permit OSHA to do a separate risk assessment for these effects which

would in a major way add to the present assessment. The risk assessment

on which OSHA has based its significant risk determinations for the

1986 and newly revised standards, calculated the incidence of

mesothelioma, lung and other cancers and asbestosis, diseases based on

a substantial amount of both mortality and exposure data. The data

concerning lung function decrement and pleural plaques lack exposure

information and would make quantitative risk estimates for these health

effects less precise than the data for other forms of asbestos-related

disease upon which OSHA is relying.

A separate risk assessment is also unnecessary. OSHA believes that

the revised regulations are already regulating at the margin of what is

feasible, in terms of levels to be achieved, and controls which are

required. OSHA has imposed necessary, feasible and well supported work

practices for custodial work, which should reduce custodial exposures

well below the historic levels (indeterminate) which may have been

experienced by the workers studied in the above reports.

More generally, there would be remaining significant risk at this

new 0.1 f/cc exposure limit if there were not other provisions to these

standards. However, the exposure limit is accompanied by mandated work

practice controls and requirements for hazard communication, training

and other provisions. Together these will very substantially reduce

that remaining significant risk, although the exact amount of that

reduction cannot be quantified. In addition, it would be difficult to

measure accurately in the industrial setting levels lower than those in

these standards. OSHA believes its approach of setting a PEL which is

reliably measurable, yet, imposing work practices and ancillary

provisions for operations regardless of measured fiber levels will

result in risk reduction well below that expected from just enforcing

the 0.1 f/cc PEL. Thus, a lower PEL would not produce significant

worker benefit.

(4) Multi-Employer Worksites

Paragraph (d) Construction and Shipyard Employment Standards. OSHA

is retitling paragraph (d) ``multi-employer worksites.'' The first

provision, the same regulatory text as in the 1986 construction

standard, requires that an employer whose work requires the

establishment of a regulated area must inform other on-site employers

of the asbestos work, and how other employees will be protected from

hazards stemming from that work. In addition, new provisions follow

which set out the compliance responsibilities of employers on multi-

employer worksites.

In 1990, OSHA had proposed more comprehensive provisions governing

communication of asbestos hazards among all employers, building and

facility owners and employees, in a revised paragraph (d). These final

standards expand communication provisions but repositions them in

paragraph (k), ``communication of hazards.'' A discussion of those

provisions is found below in this preamble under that heading.

Paragraphs (d)(2) and (3) set out the compliance responsibilities

of employers on multi-employer worksites. They acknowledge that on

asbestos work sites, like other construction sites, employees exposed

to a hazard are not always the employees of the employer who created

the hazard.

Paragraph (d)(2) incorporates the rules now applied in enforcement

actions governing multi-employer construction sites generally, to

assure that all employees on such a site receive the protection

intended by the standards.(See Gelco Builders, Inc. 6 BNA 1104). The

standard explicitly requires asbestos hazards to be abated ``by the

contractor who created or controls the source of asbestos

contamination.''

In addition, paragraph (d)(3) sets forth the duties of the employer

of employees who are exposed to asbestos hazards, but who did not

create the source of contamination. One, such employer may request the

contractor with control of the hazard to take corrective action. For

example, if there is a breach of an enclosure within which asbestos

work is being performed, the employer of employees working outside that

enclosure should request the asbestos contractor who erected the

enclosure to repair the breach immediately, as required by paragraph

(d)(2). If the repair is not made, and if employees working outside the

enclosure are exposed to asbestos in more than de minimis amounts, the

employer of those employees should either remove them from the worksite

pending repairs, or consider his employees to be working within a

regulated area and comply with the provisions of paragraph (e)

governing exposure assessments and monitoring of employees who work

within such areas. If the employer of employees exposed to asbestos

because of the failure of controls installed by another contractor, is

the general contractor of the construction project, as such he has

supervisory control over the entire worksite including the regulated

area, and is responsible for violations which could be abated or

prevented by the exercise of such supervisory capacity.

Paragraph (d)(3) of the construction standard states the

enforcement rule that regardless of who created a hazard, the employer

of exposed employees is required to comply with applicable protective

provisions to protect his employees. An example recited in the

regulatory text presents the situation of employees working immediately

adjacent to a Class I regulated area. If there is a breach of the

enclosure or the critical barriers surrounding the asbestos work,

employees working immediately adjacent to the work may be exposed to

asbestos. The employer responsible for erecting the enclosure is

required to insure its integrity. However, in the event that such

repair is delayed or not made, the employer of the exposed ``bystander

employees'' must designate a ``competent person'' to evaluate the

exposure potential, conduct initial monitoring or an ``exposure

assessment,'' and supervise other required protective actions. The

evaluation may include the amount of time and frequency adjacent

workers are exposed. For example, although passing through a

contaminated area on the way to perform non-asbestos related activities

is technically work which exposes employees to asbestos, the competent

person's evaluation properly may conclude that no appreciable exposure

is possible because of the brevity of the ``work'' in the area.

(5) Regulated Areas

Paragraph (e) General Industry, Construction and Shipyard

Employment Standards. Regulated areas are a traditional component of

OSHA health standards. They segregate both the work and the worker so

as to better regulate the work, and to protect uninvolved employees

from exposure. The 1986 standards required regulated areas for work

above the PELs and in construction, for demolition, renovation and

removal activities. The final standards require that regulated areas be

established where the PELS are likely to be exceeded, and under the

construction and shipyard employment standards, where Class I, II and

III asbestos work is performed. These requirements are substantively

similar to those proposed in 1990.

The basic requirements of the regulated areas are the same for all

three standards, They are changed from the current standard to more

coherently reflect the rest of the standard's provisions. For example,

paragraph (e)(2) which requires the regulated area to be ``demarcated

to minimize the number of persons within the area, and to protect

persons outside the area from exposure to airborne concentrations of

asbestos'' has been changed in two ways. The phrase ``in any manner,''

has been deleted. Since, paragraph (g) requires critical barriers for

Class I and II work, and paragraph (k) requires warning signs outside

regulated areas, demarcation must incorporate barriers and signs where

otherwise required.

OSHA has also deleted the phrase ``in excess of the TWA and/or

excursion limit'' in the construction and shipyard employment standards

to describe the level of protection intended to be offered persons

outside the regulated area. Since OSHA has determined that a still

significant risk remains below the PELS, intended protection should not

be limited to protecting down to these levels. OSHA noted in its 1990

proposal that in the construction standard, ``the regulated area

controls are proposed to apply even when exposures may be less than the

newly proposed PEL of 0.1 f/cc'' (55 FR at 29716), however, no change

was proposed for the ``demarcation'' provision. Paragraph (e)(3) is

unchanged and continues to limit access to regulated areas to

``authorized persons.''

The final regulated area requirements for construction and shipyard

industry delete former and proposed (e)(6), which dictated when

negative pressure enclosures (NPEs) must be erected, and various duties

required of the ``competent persons'' to ensure integrity of the

regulated area and enclosure. Under OSHA's former approach, negative

pressure enclosures were, in many cases, how construction employers

should have demarcated their regulated areas. OSHA focussed on the role

of such enclosures in providing ``bystander protection.'' In these

final standards, OSHA is repositioning the NPE provisions to paragraph

(g), ``methods of compliance.'' There, these systems are required to

reduce exposures of the employees who are disturbing the asbestos who

are inside the enclosures, as well as employees outside the enclosure.

(6) Exposure Assessment and Monitoring

Paragraph (d) General Industry. There are no changes to the

exposure monitoring provisions of the General Industry Standard.

Paragraph (f) Construction and Shipyard Employment Standard. To

conform with the newly revised approach to categorization of asbestos

work, and to reflect the difficulties of reliably estimating asbestos

exposures based on limited past or current exposure monitoring, the

requirements for exposure monitoring in the 1986 standard have been

changed. First, there is a general requirement that all employers who

have a workplace covered by this standard conduct an ``initial exposure

assessment'' at the beginning of each asbestos job [(paragraph (f)(2)].

Exceptions to this requirement exist only for most Class IV work. The

``assessment'' must be conducted by the ``competent person.'' The

purposes of these ``assessments'' are to predict whether exposure

levels during the planned asbestos work can be expected to exceed the

PELs, and thus whether additional monitoring, and other precautions are

required.

``Initial assessments'' are different from ``initial monitoring''

required in the 1986 standards. ``Initial monitoring'' as used for

processes in general industry, was rationally relied on to estimate

future exposures for that purpose. Historic monitoring data were

considered second-best data. The new requirement for ``initial exposure

assessments'' acknowledges that initial exposure monitoring in many

cases cannot adequately predict all future exposures on construction

jobs. Even if monitoring results were instantaneously available, the

value of early exposure monitoring in predicting later exposures over a

multi-day asbestos job is limited. First-day exposures are likely to be

lower than later exposures, because they reflect early set-up rather

than removal activities, conducted in relatively clean areas before

disturbance may contaminate the regulated area.

One purpose of the initial exposure assessment is to identify which

asbestos jobs are likely to exceed the PEL in time for employers to

install and implement the extra controls required to reduce such

exposures. Such additional controls may consist of ventilation which

redirects the air away from the over-exposed employees, and mandatory

protective clothing and hygiene facilities associated with donning and

removing such gear. Even employers who are planning to install full

negative pressure enclosures with air flushing technology must conduct

initial exposure assessments. This will insure that the ``competent

person'' has reviewed the success of controls in past projects, in

order to evaluate the planned controls for the current project.

Testimony and comment to the record emphasized that the evaluation of

industrial hygienists or other properly trained personnel was essential

to decision making on how best to protect workers. For example, David

Kirby of Oak Ridge National Laboratory, agreed with the statement that

before there is any operation involving asbestos containing material,

the industrial hygiene staff makes a determination as to whether that's

likely to be a high risk, relatively high risk or a low risk operation

(Tr. 197). Other participants endorsed requiring advance assessment of

asbestos-disturbing jobs (see e.g., ORC, Ex. 145, p. 6).

The former ``initial monitoring'' provisions allowed use of

historic data. OSHA now requires the evaluation of data from earlier

asbestos jobs to estimate exposures on new jobs. However, the ``data''

reviewed are more than air monitoring results. This record has

convinced the Agency that consideration of factors in successfully

controlling asbestos exposures needs to be a part of the assessment. In

addition to measurement results, the assessment must review relevant

controls and conditions, factors that influence the degree of exposure.

These include, but are not limited to, the degree and quality of

supervision and of employee training, techniques used for wetting the

ACM in the various circumstances encountered, placing and repositioning

the ventilation equipment, and impacts due to weather conditions. The

assessment therefore must be based on the competent person's review of

all aspects of the employer's performance doing similar jobs. Only if

similar controls are used and the work supervised by the same or

similarly trained personnel, may past data be relied on. In addition,

the results of initial monitoring required if feasible, must inform the

competent person's assessment. Judgment of the ``competent person'' is

required when reviewing records of past work. For example, even where

an employer's earlier glove bag removals produced some exposures above

the PEL, if more recent glove bag removals by the same crew show no

exceedances, the ``competent person'' may be warranted in predicting

that the current job performed by the same crew will be well controlled

and exposures will not exceed the PELs.

The other basis allowed for an initial exposure assessment is

``objective data'' to show that it is, in effect, impossible for a job

to result in excessive exposures. The 1986 standard, 1926.58, paragraph

(f)(2)(ii), allowed such data to demonstrate that the ``product or

material containing asbestos cannot release * * * (excessive)

concentrations * * *.'' Since the record of this proceeding shows that

almost all asbestos products may in time become hazardous, if for

example, their matrix becomes disturbed, the activity, as well as the

material, is the exposure-limiting factor. OSHA therefore now allows a

showing that a specific activity involving a product is incapable of

producing exceedances. The ``objective data'' must demonstrate that

under ``the work conditions having the greatest potential for releasing

asbestos,'' an activity coupled with a specific material, simply cannot

result in excessive concentrations.

OSHA cannot predict all the combinations of activity and product

which will meet this test. OSHA believes instead that construction

employers should be given the responsibility for making these

determinations for their particular work. However, on the record of

this proceeding, they would appear to be limited to Class IV

activities, or certain Class III activities such as limited removal of

intact asbestos containing gaskets using wet methods and containment

methods. OSHA notes that under no conditions can a Class I removal

qualify for this exemption; based on the record of this rulemaking,

every removal activity involving TSI and surfacing ACM is capable of

releasing fibers above the PEL.

There are separate provisions regarding a ``negative initial

exposure assessment'' which is a demonstration that the activity

involving the asbestos material is unlikely under all foreseeable

conditions to result in concentrations above the PELs.

The competent person must exercise judgment in performing these

exposure assessments. For example, if initial monitoring is evaluated

the first day's measurements which reflect set-up activities may not

adequately predict later exposures on a removal job. The competent

person should examine both the first day's exposures and comparable

full job exposure data from other comparable jobs, before a conclusion

is reached that exposures on that job will not exceed the PELs.

In large measure, the required bases for making a ``negative

exposure assessment'' in the revised construction standard are the same

criteria which would, under the 1986 standard, have allowed an employer

to claim an exemption from initial monitoring based on ``historic

data.'' The standard makes it more difficult to base an initial

exposure assessment on historic data than did the previous provision

for initial determination. Now, the assessment must consider, the

experience and training of the crews. Therefore, the standard now

requires that a negative exposure assessment must compare crews with

comparable experience and training, an employer cannot compare

untrained and inexperienced crews. And no ``negative exposure

assessment'' can be made if the crews which disturb asbestos in the

current job are untrained. OSHA believes that a major factor in the

effectiveness of all control systems for removing asbestos-containing

materials is the experience and training of the contractor and

employees. Evidence in the record shows dramatic reductions in exposure

levels as untrained employees learned proper glove bag techniques (see

e.g., the NIOSH study, Ex. 125).

The lack of a ``negative exposure determination'' usually indicates

that workers are not experienced/trained or that a job is complex. In

such situations, additional protections, less dependent on experience

of the workers, or the complexity of the job, should be required. Thus,

critical barriers are required in all Class I and II work, and for

Class III work, plastic barriers are required, where negative exposure

assessments are not produced. If the employer cannot assure that levels

will be minimized, protection against migration of asbestos dust must

be provided. Similarly, if excessive levels are possible, employees in

all classes must be protected by respirator use and the standard so

requires.

OSHA believes its approach balances the concern that asbestos

exposure levels vary from job to job and may be non-predictive of

future levels with the Agency's knowledge gained from long-term

enforcement of the asbestos standard, that different employers have

different ``track records.'' The negative initial exposure assessment

provisions require consideration of factors which have been identified

as influencing the variability of results. In fact, one commenter

stated that ``* * * it is invalid to predict that any particular

operation is always below the PEL,'' identified critical contributing

variables as ``the materials, work practices and experience of the

crew'' (Ex. 7-52). OSHA is requiring the ``negative exposure

assessment'' to be based on these, among other, factors. OSHA

emphasizes that a ``negative exposure assessment'' does not predict

exposure levels beyond a particular job. A new assessment must be

produced each time another job is undertaken. Employers may evaluate

repetitive operations with highly similar characteristics, as one job,

such as cable pulling in the same building, so long as the historic

data used also reflect repetitive operations of the same duration and

frequency.

In sum, OSHA believes data specific to the building, contractor and

employees is helpful in predicting exposures when the same variables

apply. The lack of such data should require additional precautions.

Additionally, unless there is a ``negative exposure assessment,'' the

employer must continue to conduct periodic monitoring. Periodic

monitoring, in a change from the 1986 construction standard, now is

required within the regulated areas of Class I and Class II asbestos

jobs and for Class III asbestos work where the initial assessment

projects that the PEL is reasonably likely to be exceeded. In these

operations the employer is to perform daily monitoring representative

of the exposure of each workers performing these tasks. The provisions

allowing discontinuance of monitoring, additional monitoring,

observation of monitoring are unchanged.

Although not a remanded issue, several participants discussed the

subject of a clearance fiber level to determine when a regulated area

could be reoccupied following asbestos operations. Some supported use

of a clearance level with aggressive sampling and analysis in

accredited laboratories (Ex. 141, 143). Most who supported a clearance

level stated support for the AHERA level of 0.01 f/cc or background

fiber level (40 CFR 736.90). A representative of the US Navy felt that

measurement of the quality of abatement--a clearance level--was needed,

but that it should not be considered to be a ``health standard'' (Ex.

7-52). In a similar vein, the Resilient Floor Covering Institute (Ex.

147, Tr. 279) and a representative of the American Paper Institute

pointed out that a permissible exposure limit and a clearance level are

not the same and should not be confused; the former is health-based and

the latter a measure of cleanliness (Ex. 7-74). Mr. Churchill an

asbestos consultant, supported a clearance requirement and felt that

the person performing this measurement should be an independent entity

(Ex. 7-95). As mentioned earlier, the Shipyard Employment Standards

Advisory Committee recommended adoption of a clearance level of 0.04 f/

cc measured non-aggressively (Ex. 7-77). The submission of the Monsanto

Company expressed their desire that OSHA not adopt a clearance

requirement (Ex. 7-125).

OSHA has not included a provision for a specific ``clearance

level'' in these revised standards. In reviewing the record, there is

no clear evidence of a linkage between such a requirement and

subsequent lessening of worker exposure. Clearly, regulated areas must

be cleaned following asbestos work. However, designation of a specific

fiber level which must be attained before an area can be reoccupied

does not appear to be necessary for worker health when all other

provisions of the standard are complied with. Meeting the requirements

of the standards will protect workers and bystander employees and will

prevent the migration of fibers from the work area. The docket contains

some data indicating that attainment of a clearance level (either

background or 0.01 f/cc) does not conclusively predict fiber levels

which will occur in formerly regulated areas (Ex. 1-23, 162-19).

Therefore, OSHA has not included a quantitative cutoff to determine

whether a work area has been adequately cleaned to allow re-entry,

rather the standards now require that the information regarding the

final monitoring of the prior work be provided to those reoccupying the

area. However, OSHA recognizes the need for adequate cleaning of the

worksite following disturbance/removal of asbestos.

(7) Methods of Compliance

Paragraph (f) General Industry.

OSHA proposed several changes to the methods of compliance

provisions. One was to require specific work practice and engineering

controls for brake and clutch repair; another was to regulate the

maintenance of asbestos-containing flooring by prohibiting certain

kinds of work practices and requiring others; the third was to require

that engineering and work practice controls to achieve the newly

reduced PEL of 0.1 f/cc be phased-in to coincide with the imposition of

the EPA ban for various industrial sectors which manufacture asbestos

containing material (see 55 FR 29721-29726). The final general industry

standard retains the conceptual outline of these proposed changes;

however the details differ.

Brake and Clutch Repair

OSHA is adding a mandatory appendix to its asbestos standard for

general industry and to the shipyard employment standard. This appendix

specifies the engineering controls and work practices to be followed

during brake and clutch work. Two methods of control are ``preferred,''

the enclosure/HEPA vacuum method and the low pressure/recycle method.

In operations in which such work is infrequent (i.e., establishments

performing fewer than 5 brake jobs per week), simple wet methods are

included among the ``preferred'' controls. Also, use of ``equivalent''

methods of control is permitted.

In the July 20, 1990 proposed revision of the general industry

asbestos standard, OSHA proposed that the employer comply with the

standard by implementing one of three specified methods of engineering

controls and work practices to control asbestos exposure during

automotive brake and clutch repair and assembly operations. These

methods were the enclosed cylinder/HEPA vacuum system, the spray can/

solvent system, and the wet brush-recycle method. Detailed requirements

for these three methods were set out in proposed Appendix F. Once

having properly used one of these methods, the employer would have been

exempt from other requirements of the standard. OSHA preliminarily

found that the use of these methods would routinely result in exposure

levels below the PEL. The proposal also would have allowed the employer

to comply with the standard by using an ``equivalent'' method, which

follows written procedures, which the employer demonstrates can achieve

results equivalent to Method A, [the enclosed cylinder/HEPA vacuum

system, Proposed 1910.1001 (f)(x)]. This proposed revision differed

from the 1986 standard in two ways. The earlier standard set out two

methods of reducing exposure in a non-mandatory appendix. Secondly, the

controls themselves are somewhat different; one method, the wet brush-

recycle method, was added; the enclosed cylinder/HEPA vacuum system was

revised, and the spray can/solvent system is retained. OSHA endorsed

these three methods based primarily on the results of a NIOSH study

completed after the 1986 standard which found that all three methods

effectively reduced exposure levels during brake drum servicing

operations to below the proposed PEL of 0.1 f/cc (Ex. 1-112).

In the final standard OSHA lists two ``preferred methods,'' the

wet-brush recycle methods and the enclosure/HEPA vacuum system. OSHA is

deleting the solvent/spray method from the list of preferred methods.

OSHA still is listing the above two methods as ``preferred,'' but the

description of these methods is more generic than in the proposal, so

as not to preclude use of methods which differ from those described in

the proposal in minor ways which are unlikely to affect their

efficiency. In addition, specific training provisions are added to

ensure that work practices are effectively followed.

Like the proposal, ``equivalent'' methods are allowed so long as

required training is held. The employer must show that the

``equivalent'' method can reliably achieve exposures below the PEL in

the workplace conditions where the method is sought to be used. In

addition employers using such ``equivalent'' methods must demonstrate

by exposure data from their workplaces using the equivalent method, or

by reference to exposure data representing conditions similar to their

workplace that the anticipated exposure reduction in fact, has been

achieved. OSHA believes that these changes will allow employers to

choose among various proven approaches and encourage the development of

new devices and practices which effectively reduce exposures in brake

and clutch repair facilities.

Considerable comment and testimony were submitted to the record by

the public concerning OSHA's proposed revisions on protection for

automotive repair workers. Information concerning additional methods to

achieve asbestos control during brake repair was submitted. These

additional methods include

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