# Occupational Exposure to Asbestos; Final Rule DEPARTMENT OF LABOR

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-18863

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** August 10, 1994

## Text

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, t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-18863. Public record. Not legal advice.