Asbestos Worker Protection; Asbestos-Containing Materials in Schools
[Federal Register: November 1, 1994]
Part IV
Environmental Protection Agency
40 CFR Part 763
Asbestos Worker Protection; Asbestos-Containing Materials in Schools; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 763
[OPPTS-62125; FRL-3801-3]
RIN: 2070-AC66
Asbestos Worker Protection; Asbestos-Containing Materials in Schools; Proposed Amendment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA is proposing to amend the Asbestos Abatement Projects; Worker Protection Rule (EPA WPR), by incorporating revised Occupational Safety and Health Administration (OSHA) asbestos workplace standards issued since the EPA WPR was promulgated in 1987. The proposed rule would generally extend the coverage provided under the 1986 OSHA Asbestos Standard for Construction to State and local government employees who are not covered by OSHA- or EPA-approved State plans. (The EPA WPR now applies solely to asbestos abatement projects). EPA also proposes to extend coverage provided under the OSHA Asbestos Standard for General Industry for automotive brake and clutch repair. The proposed revisions to the EPA WPR do not include final amendments to the OSHA asbestos standards published in the Federal Register of August 10, 1994. EPA intends to expedite additional rulemaking that would extend provisions of the new amendments to the OSHA asbestos standards as they apply to the public sector worker population covered by the EPA WPR. The proposed rule would also clarify that State and local government employees include prisoners and students employed in State and local government construction, or vehicular maintenance work where asbestos exposure may be encountered in the workplace. EPA also proposes to delegate authority to grant or deny State exclusions under the WPR to EPA Regional Administrators, and to add compliance and enforcement requirements for State exclusions. In addition, EPA is proposing to amend the Asbestos-Containing Materials in Schools Rule (Asbestos in Schools Rule), issued under Title II of the Toxic Substances Control Act (TSCA), the Asbestos Hazard Emergency Response Act (AHERA), by deleting certain worker protection provisions extended through the Asbestos in Schools Rule, under the EPA WPR, and by incorporating all worker protection provisions in the EPA WPR.
DATES: Written comments must be received by EPA no later than January 3, 1995. If a person requests time for oral comment by January 3, 1995, EPA will hold an informal hearing in Washington, DC. If a hearing is requested, the exact time and location of the hearing will be published in the Federal Register.
ADDRESSES: Comments should be submitted in triplicate to: TSCA Docket Receipts (7407), Office of Pollution Prevention and Toxics, Environmental Protection Agency, Rm. E-G99, 401 M St., SW., Washington, DC 20460, Attention: OPPTS-62125.
Comments containing confidential business information (CBI) should be submitted in triplicate to: TSCA Document Receipt (7407), Office of Pollution Prevention and Toxics, Environmental Protection Agency, EG 99, 401 M St., SW., Washington, DC 20460, Attention: OPPTS-62125. A sanitized copy of comments for which confidentiality claims are made must be provided in triplicate to the TSCA Nonconfidential Information Center (NCIC), also know as, the TSCA Public Docket Office. Unit XIV of this preamble contains additional information about CBI claims.
FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director, Environmental Assistance Division (7408), Office of Pollution Prevention and Toxics, Rm. E-545, 401 M St., SW., Washington, DC 20460, Telephone: (202) 554-1404, TDD: 202-554-0551.
SUPPLEMENTARY INFORMATION:
I. Authority
Section 6(a) of TSCA authorizes EPA to regulate a chemical substance or mixture if EPA finds that the manufacturing, processing, distribution in commerce, use, or disposal of the substance or mixture, or any combination of these activities, presents, or will present, an unreasonable risk of injury to health or the environment. Among the requirements that EPA may impose are those in section 6(a)(5) and 6(a)(6). Section 6(a)(5) of TSCA authorizes EPA to prohibit or otherwise regulate any manner or method of commercial use of a chemical substance or mixture. Section 6(a)(6) of TSCA authorizes EPA to prohibit or otherwise regulate any manner or method of disposal of a chemical substance or mixture, or any article containing that substance or mixture, by any person who uses or disposes of it for commercial purposes.
The asbestos present in public buildings, or in vehicles or other products owned and maintained in public buildings, was sold as a commercial product. Therefore, construction work or brake repair is commercial activity, subject to section 6(a)(5) of TSCA. The removal of asbestos is considered disposal for commercial purposes subject to section 6(a)(6).
Section 203 of TSCA (TSCA Title II, AHERA), requires EPA to promulgate regulations for inspection of, and appropriate response to, asbestos-containing materials in schools that are under the authority of local educational agencies.
Sections 6 and 203 of TSCA authorize EPA to promulgate regulations to protect State and local government employees who engage in asbestos work activities who are not otherwise covered under OSHA's Asbestos Standard for the Construction Industry (29 CFR 1926.58), OSHA's Asbestos Standard for General Industry (20 CFR 1910.1001), or OSHAapproved State plans that implement OSHA regulations.
II. Background
In 1987, EPA promulgated the Asbestos Abatement Projects; Worker Protection Rule (EPA WPR), which extended to State and local government employees engaged in asbestos abatement projects the provisions of the revised OSHA Asbestos Standard for Construction. The 1987 WPR, which replaced the 1986 WPR, provided additional coverage to State and local government abatement workers by incorporating the revised asbestos workplace standard permissible exposure limit (PEL) of 0.2 fibers/cubic centimeters of air (0.2 f/cc), averaged over an 8-hour day, among other revisions.
In the 1987 WPR, EPA retained, in Secs. 763.120, 763.124, 763.125, and 763.126, the same language concerning the scope of the WPR, reporting requirements, enforcement, and inspections as in the 1986 WPR. However, in the 1987 WPR, EPA replaced Sec. 763.121 of the 1986 WPR and established new requirements for the protection of State and local government asbestos abatement workers, and in Sec. 763.122, provisions for States to be excluded from the WPR if States had regulations that are at least as stringent as the WPR. The OSHA Asbestos Standards were challenged in a lawsuit in 1987. In 1988, the U.S. Court of Appeals for the District of Columbia upheld the OSHA standard in most respects, but remanded several issues (BCTD, AFL-CIO v. Brock, 838 F.2d 1258 (D.C. Cir., 1988)). In partial response, on September 14, 1988 (53 FR 35629), OSHA issued an amendment which established a short-term exposure (or excursion) limit and other minor changes. On December 20, 1989 (54 FR 52024), OSHA issued an amendment to the Asbestos Standard in response to three of the Court remand issues that: (1) Rescinded OSHA's ban on the spraying of asbestos; (2) clarified when construction employers must resume periodic monitoring; and (3) deferred clarification of the small-scale, short-duration exemption in the construction industry to a later rulemaking.
On February 5, 1990 (55 FR 3724), OSHA issued another amendment to the OSHA Asbestos Standards in response to the second group of court remand issues that: (1) Expanded its ban on workplace smoking and increased training requirements covering the availability of smoking control programs; (2) strengthened warning signs and label requirements; and (3) explained how and why OSHA's respirator requirements reduced employee risk below that remaining at the PEL. OSHA has published a proposed rule (55 FR 29712, July 20, 1990) to address the remaining remand issues.
III. Relationship of the EPA WPR to the OSHA Asbestos Standard for Construction
EPA first issued its Worker Protection Rule in 1986 to apply to asbestos abatement projects using State and local government employees not covered by the OSHA Asbestos Standard for Construction or by OSHAapproved State plans. The EPA WPR was revised in 1987, generally incorporating and applying provisions of the 1986 OSHA Asbestos Standard for Construction to State and local government employees engaged in asbestos abatement projects. However, the 1987 EPA WPR differs from the OSHA Asbestos Standard for Construction in several areas, discussed in this unit and in unit V. of this preamble, as a result of EPA's more limited scope of coverage and/or EPA's own assessment of the relative merits of various methods for controlling hazards to workers. OSHA's 1986 Asbestos Standard for Construction applies generally to all ``construction work'' where asbestos is present, as defined under 29 CFR 1910.12(b) and 1926.58(a). In contrast, EPA's 1987 WPR applies only to asbestos abatement projects using State and local government employees who are not otherwise covered by the OSHA Asbestos Standard for Construction, or under OSHA- or EPA-approved State plans. Unlike the OSHA Asbestos Standard for Construction, the 1987 EPA WPR defines ``asbestos abatement projects'' as any activity involving the removal, enclosure, or encapsulation of friable asbestos material. The activities included in the definition of ``asbestos abatement projects'' are a subset of the definition of ``construction work'' in the OSHA Asbestos Standard for Construction. The 1987 EPA WPR also differs from OSHA's Asbestos Standard for Construction in retaining the 1986 reporting requirements for asbestos abatement projects covered by this proposed rule. Under Sec. 763.124, employers, with certain exceptions, must notify EPA that they intend to undertake an asbestos abatement project covered by the rule at least 10 days before they begin abatement, except one that involves less than either 3 linear or 3 square feet of friable asbestos material, or an emergency project. EPA considers these requirements necessary to monitor compliance with the general provisions of the rule. OSHA has proposed certain notification requirements under its proposed revision to the Asbestos Standard for Construction (55 FR 29712, July 20, 1990). The revisions would require a notification, comparable to that presently required under the EPA WPR, by any employer planning to perform any work covered by the OSHA Asbestos Standard for Construction.
The definition of ``asbestos'' in the 1986 EPA WPR, and retained in the 1987 WPR, differs from that defined in the OSHA asbestos standard. The definition of ``asbestos'' in the OSHA standard does not distinguish between the asbestiform and nonasbestiform varieties of minerals. The definition in the EPA WPR applies only to the asbestiform varieties of the asbestos minerals and is consistent with definitions of asbestos adopted by EPA in other regulations, including an Advance Notice of Proposed Rulemaking (ANPR), published in the Federal Register of October 17, 1979 (44 FR 60061), Notice of Proposed Rulemaking, published January 29, 1986 (51 FR 3738), and in the Final Rule, published July 12, 1989 (54 FR 29460), Asbestos: Manufacture, Importation, Processing, and Distribution in Commerce Prohibitions. The 1987 WPR also differs from the OSHA Asbestos Standard for Construction (29 CFR 1926.58), in that several appendices to the OSHA standard were omitted.
The proposed revisions to the EPA WPR do not include final amendments to the OSHA asbestos standards published in the Federal Register of August 10, 1994 (59 FR 40963). EPA intends to expedite additional rulemaking to extend provisions of the new amendments to the OSHA asbestos standards that would be applicable to the public sector worker population covered by the EPA WPR.
IV. Relationship of the Asbestos in Schools Rule to the EPA WPR
The current (1987) EPA WPR covers State and local government employees, including employees of public schools, who are involved in asbestos abatement projects (40 CFR 763.121(b)). The Asbestos in Schools Rule, issued under the authority of AHERA, extends coverage of the WPR to employees of public school systems when they are performing operations, maintenance and repair (O&M) activities (40 CFR 763.91 (b)). Private school employees, performing asbestos abatement and O&M work are covered by OSHA's Asbestos Standard for Construction, as are other private sector employees.
Since public school employees would be covered directly under the EPA WPR, as well as all other public sector employees, Appendix B to Subpart E of the Asbestos in Schools Rule (40 CFR 763.80) would be moved from Subpart E and incorporated in the WPR as Appendix G to Subpart G. Appendix B to Subpart E is comparable to Appendix G of the OSHA Asbestos Standard for Construction (Work Practices and Engineering Controls for Small-Scale, Short-Duration Asbestos Renovation and Maintenance Activities - Non-mandatory).
V. Extended Training Requirements of the Asbestos Model Accreditation Plan (MAP) Under the Asbestos School Hazard Abatement Reauthorization Act of 1990 (ASHARA)
AHERA required States to adopt, through an EPA-established Model Accreditation Plan (MAP), minimum training requirements for persons performing asbestos inspections, preparing management plans, designing asbestos abatement plans, or conducting asbestos abatement projects in schools. The Asbestos School Hazard Abatement Reauthorization Act of 1990, (ASHARA), amended AHERA to require EPA to revise the MAP, expand the scope of training, and extend certain of the training and accreditation requirements that apply to schools to public and commercial buildings. This requirement took effect on November 28, 1992. Thus, some State and local government employees covered by the EPA WPR for abatement projects currently need training specified by the MAP.
In order to avoid duplication of training, EPA will consider MAP contractor/supervisor accreditation sufficient to meet the training requirements for competent persons specified in Sec. 763.121(e)(6)(iii) of the regulatory text, and MAP worker training sufficient for compliance with the employee training requirements specified in Sec. 763.121(k)(3).
Interested parties are encouraged to consult the Federal Register of February 3, 1994 (59 FR 5236), or EPA Docket OPPTS-62107A, for more information on the expansion of asbestos MAP training and accreditation requirements to workers in public and commercial buildings.
VI. Proposed Amendments to 1987 EPA WPR
This unit of the Preamble discusses proposed revisions to the 1987 EPA WPR. The major changes include:
<bullet> Adopting provisions from the current OSHA Asbestos Standards to add an excursion limit to regulate short-term exposure to asbestos, delete the ban on spray application of asbestos-containing materials, expand the regulation of smoking activities, and provide information about smoking cessation programs. <bullet> Deleting exemptions from initial air monitoring and labeling based upon certain conditions. <bullet> Expanding covered work activities from asbestos abatement work to construction work and to brake and clutch repair workers. <bullet> Adding appendices to govern work practices for construction and brake and clutch repair work. <bullet> Correcting the scope of the exemption triggers associated with small-scale, short duration operations. <bullet> Delegating authority and modifying procedures for approving State plans governing asbestos worker protection. Each of these proposed changes is discussed in detail in unit A. below.
A. Incorporation of Additional Provisions Under the OSHA Asbestos Standard for Construction
This proposed amendment to the EPA WPR would add the same Excursion Limit of 1.0 fibers per cubic centimeter of air (f/cc) (averaged over a sampling period of 30 minutes) as issued under the OSHA PELs for occupational exposure to asbestos in the Asbestos Standard for General Industry (29 CFR 1910.1001) and in the Asbestos Standard for Construction (29 CFR 1926.58). The excursion limit will be codified in a new paragraph (c)(2), Excursion Limit, under Sec. 763.121(c), ``Permissible Exposure Limits (PELs).'' Requirements would be added in Sec. 763.121 in the following paragraphs when concentrations of asbestos exceed the excursion limit: Sec. 763.121 (e) Regulated Areas, (f) Exposure Monitoring, (g) Methods of Compliance, (h) Respiratory Protection, (i) Protective Clothing, (j) Hygiene Facilities and Practices, (k) Communication of Hazards to Employees, (m) Medical Surveillance, and (n) Recordkeeping. In addition, as consistent with the changes adopted by OSHA (54 FR 52024, December 20, 1989), this proposed amendment would clarify ``resumption of monitoring requirements in the construction industry'' and add a new provision for ``additional monitoring'' under Sec. 763.121(f).
Section 763.121(e)(6)(iii)(A) would be revised to state that training shall be provided by an EPA- or State- approved training provider, or an equivalent course.
Section 763.121(g)(2) Prohibitions would be amended by deleting paragraph (iii) prohibiting the spray application of asbestoscontaining materials. In its 1986 Asbestos Standard, OSHA banned the spray application of asbestos-containing products (29 CFR 1910.1001(f)(1)(vii) and 1926.58(g)(2)(iii)). This provision, however, was remanded to OSHA by the D.C. Circuit Court on October 30, 1989. OSHA subsequently amended the regulatory text of the 1986 standard by deleting the prohibition on the spray application of asbestoscontaining products (54 FR 52024, December 20, 1989). Based on the rulemaking record of the 1986 standard, OSHA concluded that deleting this prohibition would not significantly increase the risk to workers. The PEL and excursion limit in the rule apply to all asbestos operations, including spraying.
In addition, certain spray applications of asbestos-containing materials are regulated under the EPA National Emission Standard for Hazardous Air Pollutants (NESHAP). The asbestos NESHAP, which was issued on April 6, 1973, prohibits the spray application of materials that contain more than 1 percent asbestos on buildings, structures, pipes, and conduits (40 CFR 61.146 (a)). Paragraph 61.146 (b) of the standard requires no visible emissions from spray application of materials that contain more than 1 percent asbestos on equipment and machinery.
Under Sec. 763.121(j) Hygiene Facilities and Practices, paragraph (j)(3) Smoking in work areas would be added which prohibits smoking in work areas where workers are occupationally exposed to asbestos because of activities in that work area (55 FR 3724, February 5, 1990). Under Sec. 763.121(k) Communication of hazards, requirements would be added to provide information about smoking cessation programs and materials. Under Sec. 763.121(m), a statement would be required that the employee has been informed by a physician of the increased risk of lung cancer attributable to the combined effect of smoking and asbestos exposure.
Subpart G would be amended to incorporate a new Appendix J - ``Smoking Cessation Program Information for Asbestos Non-Mandatory.'' Appendix J was added to 29 CFR 1926.58 - OSHA's Asbestos Standards for General Industry and for Construction - in the February 5, 1990 (55 FR 3724) amendment to the rule.
B. Proposed Deletion of Certain Exemptions From Initial Monitoring and Label Requirements
Sections 763.121 of the WPR and 1926.58 of the OSHA Asbestos Standard for Construction, paragraphs (f)(2) Initial Monitoring and (k)(2) Labels, provide for certain exemptions from initial monitoring and label requirements. EPA is considering deleting certain of these exemptions.
Section 763.121(f)(2)(i) specifies that each employer who has a workplace or work operation covered by this subpart, except as provided for in paragraphs (f)(2)(ii) and (iii), shall perform initial monitoring at the initiation of each asbestos job to determine accurately the airborne concentrations of asbestos to which employees may be exposed.
Section 763.121(f)(2)(ii) exempts an employer from initial monitoring requirements provided that the employer may demonstrate that employee exposures are below the action level by means of objective data demonstrating that the product or material containing asbestos cannot release airborne fibers in concentrations exceeding the action level under those work conditions having the greatest potential for releasing asbestos. EPA is considering whether to delete this exemption and seeks comment on whether this exemption should be retained or deleted.
EPA is not aware of objective criteria and therefore seeks comments on criteria that would be needed to demonstrate a product will not release asbestos fibers in excess of the action level under any reasonably foreseeable conditions of use, handling, storage, disposal, processing, or transportation. The lack of criteria to determine what constitutes ``objective data,'' such as testing requirements, by a manufacturer to demonstrate low fiber release potential from a product that will not exceed the action level, makes it more difficult to enforce this provision.
In any case, EPA would retain Sec. 763.121(f)(2)(iii) which exempts employers from initial monitoring requirements of paragraph (f)(2)(1) based upon earlier monitoring results. This exemption is available if the employer has data from monitoring previous asbestos jobs that closely resemble the current operation. EPA believes that this exemption, provides more direct guidance to the regulated community, and provides more reliable data for the purposes of compliance with the provisions of the exemption.
Under the WPR, Sec. 763.121(k)(2)(vi)(A) and (k)(2)(vi)(B), employers are exempt from the label requirements specified in paragraph (k)(2)(i), provided that manufacturers can demonstrate that, during any reasonably foreseeable use, handling, storage, disposal, processing, or transport, no airborne concentrations of asbestos fibers in excess of the action level will be released, or that asbestos is present in a product or material in concentrations less than 0.1 percent by weight. EPA is considering whether to delete the exemption provisions at Secs. 763.121(k)(2)(vi)(A) and (k)(2)(vi)(B) and seeks public comments on this proposal. EPA believes that exemption from requirements for labeling by manufacturers may lead State and local government employers subject to the rule to mistakenly assume that the material is incapable of releasing asbestos fibers and that initiation of workplace monitoring for asbestos exposure is unnecessary. If the product is not properly labeled, there is an increased risk that the asbestoscontaining material may not be handled in accordance with prescribed work practices for operation and maintenance and other related asbestos work activities.
If EPA deletes the exemptions at Sec. 763.121(f)(2)(ii) and Sec. 763.121(k)(2)(vi)(A) and (k)(2)(vi)(B), the requirement under Sec. 763.121(n)(1)(i) through (n)(1)(iii), recordkeeping of objective data for exempted operations, would also be deleted. However, employers would, under Sec. 763.121(n)(2)(i) through (n)(2)(iii), continue to be required to retain accurate records of the data from earlier monitored jobs that the employer relied on for exemption.
C. Extended Scope of Coverage
The EPA WPR presently applies solely to asbestos abatement projects. The proposed amendment to the WPR would, under Sec. 763.120(a), extend the scope of coverage to all asbestos ``construction work,'' as defined under the OSHA Asbestos Standard for Construction, 29 CFR 1910.12(b). ``Construction work'' includes work for construction, alteration and/or repair, including painting and decorating, as specified in 29 CFR 1926.58(a). ``Construction work,'' as defined in 29 CFR 1910.12(b) includes, but is not limited to, (1) Demolition or salvage of structures where asbestos is present; (2) removal or encapsulation of materials containing asbestos; (3) construction, alteration, repair, maintenance, or renovation of structures, substrates, or portions thereof, that contain asbestos; (4) installation of products containing asbestos; (5) asbestos spill/ emergency cleanup; and (6) transportation, disposal, storage, or containment of asbestos on the site or location at which construction activities are performed.
Section 763.120 would be amended by revising paragraph (a), and by adding paragraphs (b), (c), and (d). Section 763.120(a) would establish requirements that State and local government employers subject to the EPA WPR must follow to protect employees during construction work where asbestos is present and during automotive brake and clutch repair and service operations. Section 763.120(b) would establish work practices and controls that employers may follow in special circumstances as an alternative to complying with all the requirements of Sec. 763.121. Appendices F and G contain alternative practices and controls for certain types of construction work. Appendix K contains alternatives for brake and clutch work. These alternatives are designed to achieve employee exposure to asbestos below the action level of 0.1 f/cc. If an employer utilizes the work practices and controls as specified in the appropriate appendix, and achieves an exposure below the action level, then the employer would be able to avoid the regulatory burdens under Sec. 763.121 that are triggered by exposures to asbestos that exceed the rule's action level or PEL. Section 763.120(c) specifies applicability under the EPA WPR. Section 763.120(d) extends protections established in this part to all State and local government employees, including employees who are prisoners or students, of all State and local governments subject to the EPA WPR. In light of the proposed extended scope of coverage under the WPR, Sec. 763.121(b) Definitions would be amended by adding definitions for ``automotive brake repair operations,'' as defined in the OSHA Asbestos Standard for General Industry (29 CFR 1910.1001), and ``construction work,'' as defined in the OSHA Asbestos Standard for Construction (29 CFR 1910.12(b) and specified in 29 CFR 1926.58(a)). The definition for ``asbestos abatement project'' would be deleted, since asbestos abatement activities are incorporated within the definition of ``construction work.'' The definition of ``friable asbestos material'' would also be deleted from the EPA WPR because the scope of coverage would be expanded to cover all asbestos construction activities involving all asbestos-containing materials and would not be limited to abatement work involving ``removal, enclosure, or encapsulation of friable asbestos material.'' Removal of friable asbestos-containing material also would be deleted from the definition of ``emergency project.''
D. Incorporation of Appendix F to 29 CFR 1910.1001 the OSHA Asbestos Standard for General Industry--as Appendix K to Subpart G
The 1986 OSHA Asbestos Standard for General Industry regulates brake and clutch repair operations under 29 CFR 1910.1001 and Appendix F to the standard. EPA would extend the same protections by incorporating them into the regulatory requirements of Sec. 763.121 and Appendix K.
Workplace practices specified in proposed Appendix K to the EPA WPR are intended as employer guidance for reducing employee exposures to asbestos during automotive brake and clutch repair operations to levels below the action level of 0.1 fiber per cubic centimeter (0.1 f/cc) of air. Employers who follow the recommended work practices in Appendix K and who achieve employee workplace exposures below the action level, would be able to avoid the burden that might be imposed by complying with such requirements as medical surveillance, recordkeeping, training, respiratory protection, and regulated areas, that are triggered when employee exposures exceed the action level or PEL.
E. Incorporation of Appendices F, H, I, and J to 29 CFR 1926.58 of the OSHA Asbestos Standard for the Construction Industry in Subpart G
The following appendices to the OSHA Asbestos Standard for Construction would be incorporated in subpart G as Appendices F, H, I and J: Appendix F (Work Practices and Engineering Controls for Major Asbestos Removal, Renovation, and Demolition Operators - NonMandatory), Appendix H (Substance Technical Information for Asbestos, Non-Mandatory), Appendix I (Medical Surveillance Guidelines for Asbestos, Non-Mandatory), and Appendix J (Smoking Cessation Program Information for Asbestos - Non-Mandatory). Minor revisions would be made to current Appendices A, B, C, D, and E to the EPA WPR and to new Appendices H and I to the EPA WPR. New Appendix F to the EPA WPR, which is comparable to Appendix F to the OSHA Asbestos Standard for Construction, would include several revisions. The paragraphs which describe work practices would be reordered. Figures depicting equipment and diagrams would also be deleted, and Demolition and Clearance checklists would be relabeled as Tables A and B. In addition, procedures outlined in the section, Cleaning the Work Area, under Appendix F, would be revised to conform to the procedures for cleaning the work area contained in Appendix A to part 763, subpart E, of the Asbestos in Schools Rule.
F. Incorporation of Appendix B to Subpart E as Appendix G to Subpart G of the EPA WPR
This proposed amendment would delete Appendix B from the Asbestos in Schools Rule and incorporate it, with minor changes, in the EPA WPR as Appendix G to Subpart G, because public school employees would now be covered directly under the EPA WPR for all ``construction work,'' as defined in the OSHA Asbestos Standard for Construction. This Appendix is comparable to Appendix G to 29 CFR 1926.58 - the OSHA Asbestos Standard for Construction.
Since the EPA WPR would extend coverage to all public sector employees (not just public school employees) engaged in small-scale, short-duration operations involving asbestos, Appendix G provides, in one place, provisions that all public sector employers subject to the EPA WPR, including local education agency employers, shall comply with if they wish to be exempt from the negative-pressure enclosure, competent person, clearance, and decontamination area requirements, specified in Sec. 763.121(e)(6), (j)(1)(i)(B), and (j)(2)(i) for smallscale, short-duration operations. Based on the OSHA record, the use of the work practices and engineering controls described in Appendix G are capable of reducing employee exposures to asbestos to levels below the rule's action level of 0.1 f/cc for workers engaged in small-scale, short-duration activities.
Finally, EPA proposes several minor revisions to the Appendix: (1) Language referring specifically to the Asbestos in Schools Rule would be deleted because the Appendix would apply to all construction work in public sector workplaces, not just to work in schools; and (2) language exempting employers from compliance with Sec. 763.121(f)(2)(i) for small-scale, short-duration operations would be revised to correct a transcription error in the original Appendix B to the Asbestos in Schools Rule. When Appendix B was printed, the letter ``f'' was inadvertently substituted for ``j'', thus modifying the applicability of the exemption. The proposal would remove the incorrect reference to paragraph (f), and exempt employers that complied with the provisions of the proposed Appendix G from certain hygiene facility and practices requirements in Sec. 763.121(j)(1)(i)(B) and (j)(2)(i).
VII. Proposed Amendment to the Asbestos in Schools Rule
EPA is proposing to amend the Asbestos in Schools Rule by deleting Sec. 763.91(b) which extends coverage of the EPA WPR to employees of local education agencies who perform operations, maintenance and repair (O&M) activities. The Asbestos in Schools Rule would also be amended by deleting Appendix B and incorporating it as Appendix G to the EPA WPR. Since the proposesd EPA WPR would provide coverage for all construction work directly to employees of local education agencies, extension of coverage through Sec. 763.91(b) would no longer be necessary. Section 763.91 (b) would refer readers to the WPR.
VIII. Exclusions for States
Section 763.122 - Exclusions for States - would also be amended to delegate authority from the EPA Administrator to the EPA Regional Administrators the authority to grant or deny State exclusions from the EPA WPR. In addition, the criteria for granting State exclusions would be expanded to require State Compliance and Enforcement Plans, and to clarify that EPA can rescind exclusions to States when State plans lack enforcement provisions.
States that currently have EPA-approved State Worker Protection Plans would have 6 months, or such other reasonable time as suggested by the particular State and approved by the applicable Regional Administrators, to make their regulations comparable to or more stringent than this revised part, and to submit their regulations to the appropriate EPA Regional Administrator for review. If States do not revise their regulations and submit them to EPA within such reasonable time after promulgation of the rule, State and local government employees in such States shall automatically be covered by the revised EPA WPR.
IX. Future Revisions to this Proposed Rule and Exclusions for States
EPA may make future amendments to the EPA WPR in order to apply coverage provided in future revisions to the OSHA Standards, or as other issues are identified by EPA.
X. Reporting
The present EPA WPR requires that employers must notify EPA at least 10 days before they commence any asbestos abatement project which involves greater than 3 linear feet, or 3 square feet of friable asbestos material. As proposed, employers would be required to notify EPA before they begin any ``asbestos construction work'' of 3 linear feet or greater, or 3 square feet or greater. The scope of required reporting would reflect the expanded scope of coverage under the WPR and would require reporting of all ``construction work'' where asbestos is present, except exempted small-scale operations or emergency projects, rather than the present reporting requirements limited to asbestos abatement projects.
XI. Regulatory Assessment
TSCA requires EPA to consider and publish a statement with respect to the effects on human health and the environment and the magnitude of exposure (section 6(c)(1)(B)). In developing the 1986 WPR and revised 1987 EPA WPR, EPA considered the requirements imposed by section 6(c)(1) of TSCA in order to determine whether asbestos exposure presents an unreasonable risk. Specifically, it considered the effects of asbestos on health and the environment. It also considered the benefits of the substance and the availability of substitutes and the reasonably ascertainable economic consequences of the EPA WPR. EPA incorporates the regulatory assessments made for the previous EPA WPR (51 FR 15724 and 52 FR 5618) and assesses in this document only the incremental changes introduced by this rule.
A. Health Effects and Magnitude of Exposure to Asbestos
B. Benefits of Asbestos Products and Availability of Substitutes
EPA has considered both the benefits of asbestos for the uses regulated by the proposed rule and the availability of substitutes for those uses. EPA has concluded that the benefits of asbestos for such uses are minimal, and that there are substitutes available for those uses.
When EPA first promulgated the WPR in 1986, and later amended it in 1987, it concluded that the benefits of asbestos-containing products affected by the rule were minimal (51 FR 15722, April 25, 1986 and 52 FR 5618, February 25, 1987). EPA noted that the 1986 and 1987 rules applied only to asbestos abatement projects where persons had already decided to remove, enclose, or encapsulate friable asbestos-containing material (ACM). In such situations, EPA presumed that the persons had already determined that there were little or no benefits in using the ACM in its present condition.
EPA continues to believe that the proposed regulation would have little or no impact on any benefits associated with the uses of asbestos that are affected by the proposed revisions to the WPR. This is particularly true where the provisions concern work associated with the removal, enclosure, or encapsultation of ACM. Persons directing those activities presumably have decided that there are no benefits to continued use of the asbestos. The same reasoning applies to most other construction activities that would be governed by the resided WPR such as demolition and asbestos spill or emergency cleanup, as well as the transportation, disposal, storage, or containment that is associated with those activities or with asbestos abatement projects. It also applies to the removal of asbestos used in brakes and clutches. In all of those activities, the persons are getting rid of the ACM, and therefore have apparently decided that there are few, if any, benefits to the continued use of asbestos.
Even where the proposed rule would regulate the installation of asbestos-containing products during construction, EPA believes that there are few impacts on the benefits from such uses of asbestos. This proposed rule would not prevent anyone from using the products. The proposed rule would require some expenditures to comply with the additional safety practices, but as discussed in unit XII of this preamble, such costs are very small when considered in the context of existing State and local government expenditures for building maintenance.
EPA also believes that there are substitutes available for the asbestos uses that would be regulated by the revised WPR. In its 1986 rulemaking, OSHA concluded that the extensive tort litigation in the area of occupational exposure to asbestos and the awareness of the health effects associated with asbestos exposure had provided a strong incentive for producers and users of asbestos products to utilize substitutes. OSHA estimated that approximately 50 to 75 percent of producers of phenolic molding compounds have substituted other materials such as clay or fiberglass for asbestos. OSHA concluded that similar success had been achieved in the production of floor tile, where non-asbestos fibers and petrochemicals were being used, and in friction materials. OSHA noted that roofing felts, pipeline felts, and asphalt coatings have all been produced using fiberglass in place of asbestos fibers.
OSHA further noted that, in the past, the price of substitute materials had been much higher than the price of asbestos, but that the ``full price'' of using asbestos, which includes the potential cost of control methods, tort litigation, etc., had increased significantly. OSHA concluded, therefore, that the difference between the cost of using asbestos and the cost of using other substitute materials had diminished greatly and in many instances had disappeared entirely (see preamble to the 1986 OSHA Asbestos Standards - Availability of Substitutes - 51 FR 22651, June 20, 1986). Inasmuch as the proposed EPA WPR neither proscribes nor prescribes the use of asbestos or substitutes for asbestos, the rule would have little, if any, impact on the availability of asbestos or require the use substitutes. However, persons who use ACM would be subject to the work practice requirements specified in this proposed rule in order to ensure that worker exposures do not exceed the PEL and action level.
C. Economic Effects of the Proposed Rule
Section 6(c)(1)(D) of TSCA requires EPA to determine the ``reasonably ascertainable economic consequences of the proposed rule after consideration of the effect on the national economy, small business, technological innovation, the environment, and public health.'' Based on the Regulatory Impact Analysis (RIA) developed in support of this proposed rulemaking action, EPA projects that the economic effects on State and local governments would be minimal and that the benefits to employees of State and local governments would be significant in terms of risk reduction. EPA estimates that the total annualized cost to State and local governments of compliance with the proposed rule would range from $15.4 to $17.3 million. The annualized cost would be $3.1 million to $4.8 million for the maintenance sector, $11.8 million for the renovation sector, and $0.6 to 0.8 million for the brake and clutch repair sector. Costs are presented as a range because of uncertainties in the number and frequency with which repairs will have to be made in the maintenance and brake and clutch repair sectors. EPA believes that these are high estimates of the actual annual compliance costs that will be incurred in future years, because, as States and localities make repairs that involve asbestos, many will decide to replace the ACM with a substitute.
When these costs are considered in the context of state and local government budgets dedicated to building maintenance, the costs of the proposed rule are very small. The incremental compliance costs for the proposed rule in both the maintenance and renovation sectors would cause 0.21 to 0.24 percent increase in the costs of State and local government spending for building upkeep. States covered by the EPA WPR are already required to comply with worker protection requirements for public sector workers engaged in asbestos abatement projects. Such a minimal change in the cost of building maintenance is unlikely to have any significant impact on State and local government budgets. Costs were also measured in terms of cost per cancer case avoided. The cost per case avoided was calculated by dividing the social cost of the rule by the number of cases potentially prevented by the rule over the next 30 years. Compliance with the proposed rule was estimated to prevent between 61 and 67 asbestos-related cancer deaths over 30 years at a social cost of $15,442,787 to $17,331,401 millon per year. Taking the mid-point of the benefits and cost ranges, for the rule as a whole, the average annualized cost per case avoided would be $5.1 million. In the maintenance sector, the cost per case avoided is estimated to be $5.6 million; in the renovation sector, the cost per case avoided is estimated at $7.1 million; and in the brake and clutch repair sector, the cost per case avoided is estimated to be between $0.7 and $0.9 million.
EPA believes the cost per case avoided is overstated in the maintenance and renovation sectors, because not all benefits are counted. The estimates do not account for the cancer cases that the proposed rule is likely to prevent among other building occupants and bystanders who are located in the vicinity of the asbestos maintenance and renovation projects covered by the proposed rule.
D. Evaluation of Other Statutes
Under section 6(c) of TSCA, EPA may not promulgate a rule under section 6(a) of TSCA if EPA determines that a risk of injury to health or the environment could be eliminated or reduced to a sufficient extent by actions taken under another statute administered by EPA, unless EPA finds it is in the public interest to protect against the risk by action under TSCA. EPA has analyzed other statutes administered by EPA and concludes that no other law administered by EPA will satisfactorily eliminate or reduce the risks to State and local government workers.
Under section 9(a) of TSCA, EPA is required to review other Federal authorities not administered by EPA to determine whether action under those authorities may prevent or reduce a given risk. This amendment would extend coverage only to persons not covered by other Federal laws. The only statute not administered by EPA that could reduce risks from workplace exposure to asbestos is the Occupational Safety and Health (OSH) Act, administered by OSHA. However, the OSH Act does not apply to State and local government employees. The OSH Act does provide that a state can implement its own state worker protection plan, subject to approval by the Secretary of Labor. Twenty-three States and two U.S. territories have implemented State plans. Twenty-seven States do not have OSHA-approved State plans. EPA has determined that there is no statute administered by another Federal agency that can prevent or reduce the risk of asbestos exposure presented to public sector employees not covered by the OSHA Asbestos Standards or by State plans during asbestos-related construction and brake and clutch repair work. EPA's analysis of this issue is in the preamble to the 1986 EPA WPR (51 FR 15722).
XII. Finding of Unreasonable Risk
TSCA section 6 requires EPA to weigh the benefits against the costs of the proposed rule. To fulfill this requirement, EPA prepared an RIA to assess the costs and benefits of the proposed rule. In the RIA, the benefits of the proposed rule were estimated in terms of the number of deaths from lung cancer, mesothelioma, and gastrointestinal cancers attributable to asbestos exposure that would be prevented by the new, lower exposures to asbestos due to the proposed rule. EPA used the models developed by Nicholson for OSHA and EPA to estimate the relative and absolute risks of lung cancer and mesothelioma cases, respectively. A detailed discussion of the data inputs for the health model is found in Appendix C of the RIA. EPA estimates that 69 to 75 asbestos-related deaths would occur among unprotected public sector workers engaged in construction work and brake and clutch repair over the course of 30 years in the absence of the proposed EPA WPR, and that 61 to 67 of these deaths would be avoided under the proposed rule.
EPA believes that the estimated benefits are understated. The true magnitude of risk reduction is not reflected in the estimated benefits, because the benefits of risk reduction are measured only for the incremental decrease in exposure from the exposure levels estimated by OSHA in its 1986 asbestos standard, and not for the full reduction from present, unregulated exposure levels. Exposures to persons other than workers in areas where asbestos-related work activities are being conducted are also not quantified.
EPA weighed the costs and benefits of extending coverage for asbestos-related construction work and brake and clutch repair to State and local government workers. EPA believes that the benefits of 61 to 67 cancer cases avoided in the unprotected public sector worker population outweigh the estimated annualized cost per case avoided of $5.1 million.
EPA believes, therefore, that unregulated exposure to asbestos in construction and brake and clutch repair work in public sector workplaces presents an unreasonable risk of injury to human health.
XIII. Enforcement
Section 15 of TSCA makes it unlawful to fail or refuse to comply with any provision of a rule promulgated under section 6 of TSCA. Therefore, failure to comply with the rule would be a violation of section 15 of TSCA. In addition, section 15 of TSCA makes it unlawful for any person to: (1) Fail or refuse to establish and maintain records as required by the rule; (2) fail or refuse to permit access to or copying of records, as required by TSCA; or (3) fail or refuse to permit entry or inspection as required by section 11 of TSCA. Violators may be subject to both civil and criminal liability. Under the penalty provision of section 16 of TSCA, any person who violates section 15 could be subject to a civil penalty of up to $25,000 for each violation. Each day of operation in violation of the rule could constitute a separate violation. Knowing or willful violations of the rule could lead to the imposition of criminal penalties of up to $25,000 for each day of violation and imprisonment for up to 1 year. In addition, other remedies are available to EPA under sections 7 and 17 of TSCA, such as seeking an injunction to restrain violations of the rule.
XIV. Confidentiality
All comments will be placed in the public record unless the commentater claims that they contain confidential business information (CBI), and the comments are clearly labeled as containing claimed CBI when they are submitted. Because of the need to expedite this process, CBI claims should be accompanied by comments substantiating the claim as described in 40 CFR 2.204(e)(4). While a part of the record, CBI comments will be treated in accordance with 40 CFR part 2. A sanitized version of all comments subject to CBI claims should be submitted to EPA for the public file.
It is the responsibility of the commentater to comply with 40 CFR part 2 so that all materials claimed as confidential may be properly protected. This includes, but is not limited to, clearly indicating on the face of the comment (as well as on any associated correspondence) that information claimed to be CBI is included, or marking ``CONFIDENTIAL,'' ``TSCA CBI,'' or a similar designation on the face of each document or attachment in the comment which contains the claimed CBI. EPA will consider the failure to clearly identify the claimed confidential status on the face of the comment as a waiver of any such claim and will make such information available to the public without further notice to the commentater or business.
XV. Request for Comments
EPA is requesting comment on the proposed rule only to the extent that it would amend or change the existing regulations. EPA is not soliciting comments on provisions of the existing regulations that would not be changed by this proposal. Some provisions of the existing rule and appendices are reproduced here for clarity and to facilitate understanding of how the changes and amendments fit within the existing regulatory scheme. The existing appendices are reproduced in their entirety because these appendices, along with the new appendices incorporated in the rule, are moved from Sec. 763.121(p) and recodified as Appendices to 40 CFR part 763, Subpart G.
XVI. Rulemaking Record
EPA has established a record for this rulemaking under document control number OPPTS-62125. A public version of the record and an index of documents in the record are available to the public in the TSCA Nonconfidential Information Center (NCIC), also known as, the TSCA Public Docket Office from noon and to 4 p.m., Monday through Friday, except legal holidays. TSCA NCIC is located in Rm. E-G102, 401 M St., SW., Washington, DC.
The record includes information considered by EPA in developing this proposed rule, including the following categories of information: (1) Federal Register notices cited in this document, (2) support documents, and (3) other referenced documents. The record also incorporates by reference the rulemaking record for the 1987 EPA WPR final rule (Docket Number OPPTS-62050) which includes the dockets for the 1986 OSHA Asbestos Standard, and the 1986 EPA WPR.
XVII. Support Document
USEPA, OPPT, OPPTS. Asbestos Worker Protection Rule. Regulatory Impact Analysis. Revised Draft Report, January 13, 1993. Revised July 23, 1993. Prepared by ICF, Inc., Contract Number 68-D2-0064.
XVIII. References
(1) USEPA, ORD, OHEA. Airborne Asbestos Health Assessment Update. EPA/600/8-84/003F, June 1986.
(2) USEPA, OPTS, OTS. Toxic Substances; Asbestos Abatement Projects; Worker Protection; Final Rule (51 FR 15722, April 25, 1986). (3) USEPA, 1987. Asbestos Abatement Projects; Worker Protection; Final Rule (52 FR 5618, February 25, 1987). (4) USEPA, 1987. Asbestos-Containing Materials in Schools; Final Rule and Notice. Part 763 (amended) subpart E, 52 FR 41926, October 30, 1987.
(5) USDOL, OSHA. 20 CFR Parts 1910 and 1926 ``Occupational Exposure to Asbestos, Tremolite, Anthophyllite, and Actinolite,'' Final Rules (June 20, 1986, 51 FR 22612).
(6) USDOL, OSHA. 29 CFR Parts 1910 and 1926 ``Asbestos, Tremolite, Anthophyllite, and Actinolite''; Final Rules. Preamble. (September 14, 1988, 53 FR 35610).
(7) USDOL, OSHA. 29 CFR Parts 1910 and 1926 ``Occupational Exposure to Asbestos, Tremolite, Anthophyllite, and Actinolite,'' Final Rule; Partial Response to Court Remand. Preamble. (December 20, 1989, 54 FR 52024).
(8) USDOL, OSHA. 29 CFR Parts 1910 and 1926 ``Occupational Exposure to Asbestos,'' Final Rule; Partial Response to Court Remand. Preamble. (February 5, 1990, 55 FR 3724).
(9) USDOL, OSHA. 29 CFR Parts 1910 and 1926 ``Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite; Proposed Rule'' (July 20, 1990, 55 FR 29712).
XIX. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is ``significant'' and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. Under section 3(f), the order defines a ``significant regulatory action'' as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as ``economically significant''); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
EPA has determined that the proposed amendment to the EPA WPR will not have an effect on the economy of $100 million annually. EPA has prepared an RIA as part of this rulemaking which estimates that the economic impact of the proposed rule to State and local governments would not be significant. EPA estimates that the overall costs of the proposed rule to the 27 State and local governments would be about $15.4 to $17.3 million per year over 30 years and would constitute only a very small percentage of these entities' budgets. The compliance costs for the proposed rule in both the maintenance and renovation sectors would cause a 0.21 to 0.24 percent increase in the costs of State and local government spending for building upkeep. A copy of the RIA has been included in the administrative record for this rule, and is available for public inspection, as outlined in Unit XVI of this Notice.
B. Executive Order 12875
Executive Order 12875 (58 FR 58093, October 28, 1993) requires the Agency to consult with representatives of affected State, local, and tribal governments prior to the formal promulgation of a regulation containing a proposed unfunded mandate. Through the Forum on State and Tribal Toxics Action (FOSTTA), EPA briefed the States that are affected by the EPA WPR, seeking comments on the proposed WPR amendments. The Forum is a mechanism for State and tribal officials to cooperate in addressing toxics-related issues and to improve communication and coordination between States, tribes, and the EPA. FOSTTA has forged a communication network linking the States and tribes and EPA's Office of Prevention, Pesticides and Toxic Substances (OPPTS) and the Office of Enforcement and Compliance Assurance (OECA) on a variety of toxicsrelated issues. EPA met with members of the FOSTTA Coordinating Committee at a meeting on February 27, 1994, to discuss the provisions of the EPA WPR. The National Conference of State Legislatures (NCSL), through FOSTTA, provided EPA with a summary of findings from a survey of asbestos programs in States without OSHA-approved State plans. Information regarding EPA's consultation with States (i.e.,the EPA briefing paper submitted to the FOSTTA membership, FOSTTA Coordinating Committee Meeting Agenda, and NCSL survey summary) has been included in the administrative record for this proposed rule and is available for public inspection in the Docket for the EPA WPR. The proposed EPA WPR would require State and local governments to comply with additional worker protection provisions to protect State and local government workers from exposure to asbestos. The Regulatory Impact Analysis (RIA), developed to support this rulemaking, concluded that while the proposed rule may affect a substantial number of State and local government entities, the costs of additional worker protection requirements under this proposed rule would not have a significant impact on State and local government budgets, even on those portions of local government budgets that are devoted to building maintenance (see unit XIX.C. of this preamble). In addition, the proposed regulatory text provides, at Sec. 763.122, Exclusions for States, that EPA may grant exclusions from the EPA WPR requirements to States that develop their own State worker protection plans.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, (5 U.S.C. 605(b)), EPA must prepare a Regulatory Flexibility analysis for all regulations that will have a significant impact on a substantial number of small entities. The Act defines ``small entities'' as including small governmental jurisdictions and further defines small governmental jurisdictions as the governments of cities, towns, townships, villages, school districts, or special districts that have populations of fewer than 50,000. Because the proposed rule will affect governmental jurisdictions in the 27 States covered by the EPA WPR that engage in construction work or brake and clutch repair work, the proposed rule can reasonably be expected to affect a substantial number of small governmental entities. However, the costs of the proposed rule represent only 0.21 to 0.24 percent of costs expended by State and local governments for building upkeep. Thus, the costs of the proposed rule will not have a significant impact even on those portions of local government budgets that are devoted exclusively to building maintenance. As a result, the Agency concludes that the proposed rule will not have a significant impact on a substantial number of small governmental jurisdictions and that a full Regulatory Flexibility Analysis is therefore, unnecessary. A discussion of EPA's economic analysis of this proposed amendment to the WPR appears in Unit XI of this preamble.
Therefore, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
The information collection requirements in this proposed rule have been submitted for approval, as a revision to OMB control number 2070- 0072, to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request document has been prepared by EPA (ICR No. 1246.04), and a copy may be obtained from Sandy Farmer, Information Policy Branch (2136), U.S. Environmental Protection Agency, 401 M St., SW., Washington, DC 20460 or by calling (202) 260-2740.
This collection of information is estimated to have a public reporting burden averaging 1 hour per response, and to require 24.02 hours per recordkeeper annually. This includes time for reviewing the collection of information. The collection activities for this rule include: (1) Read and interpret rule; (2) respirator program, and (3) exposure monitoring activities; (4) training program; (5) medical surveillance reporting and recordkeeping; (6) employee and agency access; and (7) report project initiation. The total annual burden hours is 52,042, and represents an incremental burden-hour increase of 4,160 hours over the total annual reporting burden for the 1987 EPA WPR.
Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Chief, Information Policy Branch (2136), U.S. Environmental Protection Agency, 401 M St., SW., Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposed rule.
List of Subjects in 40 CFR Part 763
Environmental protection, Asbestos, Asbestos in schools (AHERA), Hazardous substances, Reporting and recordkeeping requirements, State and local governments, Worker protection.
Dated: October 14, 1994.
Carol M. Browner.
Administrator.
Therefore, it is proposed that 40 CFR part 763 be amended as follows:
Part 763--[AMENDED]
Authority: 15 U.S.C. 2605 and 2607(c).
2. Section 763.91(b) is revised to read as follows:
Sec. 763.91 Operations and maintenance.
Appendix B to Subpart E [Redesignated]
4. Appendix B to Subpart E is redesignated as Appendix G to Subpart G of this part, and Appendix B to Subpart E is reserved. 5. Section 763.120 is revised to read as follows:
Sec. 763.120 Scope.
(a) This part establishes requirements that State and local government employers must follow to protect employees from occupational exposure to asbestos during construction work where asbestos is present, and during automotive brake and clutch repair and service operations. Some of these requirements apply only to construction work, and do not apply to brake and clutch operations. Requirements that apply only to construction work are contained in Sec. 726.121(d) which governs communications on multi-employer worksites, and Sec. 726.121(e)(6), (i)(4), and (j)(2) which govern asbestos removal, demolition, and renovation operations.
(b) Appendix F of this subpart (Work Practices and Engineering Controls for Major Asbestos Removal, Renovation, and Demolition Operations), Appendix G of this subpart (Work Practices and Engineering Controls for Small-Scale, Short-Duration Asbestos Renovation and Maintenance Activities), and Appendix K of this subpart (Work Practices and Engineering Controls for Automotive Brake Repair Operations) are designed to provide guidelines to assist employers in complying with the requirements of this rule. These appendices recommend specific work practices and engineering controls that State and local government employers may follow to reduce employee exposures to asbestos in the workplace. Employers who use the recommended work practices and controls and who achieve employee exposures below the action level of 0.1 fibers cubic centimeter will be able to avoid certain burdens that would be imposed by complying with requirements triggered when employee exposures to asbestos exceed the rule's action level or permissible exposure limit.
(c) The requirements in this subpart apply only to State and local government employers that are not subject to the asbestos standards of OSHA, 29 CFR 1910.1001 or 29 CFR 1926.58, a State asbestos standard that OSHA has approved under section 18 of the Occupational Safety and Health Act, or a State asbestos plan that EPA has determined is comparable to, or more stringent than, this part. (d) The protections established in this part extend to employees, including employees who are prisoners or students, of all State and local governments that are subject to the requirements of this subpart. 6. Section 763.121 is amended by removing from paragraph (b) the definitions for ``asbestos abatement project'' and ``friable asbestos material,'' by alphabetically inserting the definitions for ``automotive brake and clutch repair operations'' and ``construction work,'' and by revising the definitions for ``emergency project,'' by revising paragraphs (c), (e)(1) and (e)(2), by redesignating and revising paragraph (e)(6)(iii)(A) as (e)(6)(iii), by deleting paragraph (e)(6)(iii)(B), by adding paragraph (e)(7), by revising paragraphs (f)(1)(ii), (f)(1)(iii), (f)(2)(ii), (f)(2)(iii), and (f)(4), by revising the introductory text of paragraph (g)(1)(i), revising (g)(1)(ii), by removing paragraph (g)(2)(iii), by revising paragraphs (g)(3), (h)(1)(iii), (h)(3)(i), (i)(1), (i)(2)(i), (i)(2)(ii), and (j)(1)(iii), by adding paragraph (j)(2)(vii) and paragraph (j)(3), by revising paragraph (k)(1)(i), by adding paragraph (k)(1)(iii), by revising paragraph (k)(3)(i), by adding paragraphs (k)(3)(iii)(I), (k)(3)(iii)(J) and (k)(4)(iii), by revising paragraph (m)(1)(i), by adding paragraph (m)(4)(i)(D), by revising paragraphs (n)(1)(i), by redesignating paragraph (o) as paragraph (q) and revising it, by adding a new paragraph (o), by redesignating paragraph (p) as paragraph (r) and revising it to read as follows:
Sec. 763.121 Regulatory requirements.
Appendices A-E to Sec. 763.121 [Redesignated]
7. By redesignating Appendices A through E to Sec. 763.121 as Appendices A through E to Subpart G.
8. Section 763.122 is revised to read as follows:
Sec. 763.122 Exclusions for States.
(a) Application procedures for existing plans. States that currently have EPA-approved State Asbestos Worker Protection Plans have 6 months from [effective date of rule] or such other reasonable time as suggested by the particular State and approved by EPA to make their regulations comparable to or more stringent than this part, and to submit their regulations to EPA for review. If in such reasonable time after [effective date of rule], these States have not so revised their regulations and submitted them to EPA, State and local government employers in such States shall be subject to the requirements of this part.
(1) Upon request from a State Governor, and after notice and comment, EPA may exclude that State from the requirements of this subpart in accordance with paragraphs (b), (c), and (d) of this section.
(2) All requirements of the subpart shall apply until an exclusion is granted under this section.
(b) Request. Each request by a Governor to exclude a State from requirements of this subpart shall be sent with three complete copies of the request to the Regional Administrator for the EPA Region in which the State is located and shall include: (1) A copy of the State statutes, regulations, and provisions relating to its asbestos worker protection program. (2)(i) The name of the State agency that is, or will be, responsible for administering and enforcing the State's asbestos worker protection laws, the names and job titles of responsible officials in that Agency and the phone numbers where the officials can be contacted. (ii) In the event that more than one agency is or will be responsible for administering and enforcing these laws, a description of the functions performed by each agency, identification of the lead agency, how the program will be coordinated by the lead agency to ensure consistency and effective administration of the program within the State, the names and job titles of responsible officials in the agencies and the phone numbers where the officials can be contacted. The lead agency will serve as the central contact point for the EPA. (3) Detailed reasons, supporting papers, and the rationale for concluding that the State's asbestos worker protection program provisions for which the request is made are at least as stringent as the requirements of this subpart.
(4) A discussion of any special situations, problems, and needs pertaining to the exclusion request accompanied by an explanation of how the State intends to handle them.
(5) A statement of the resources that the State intends to devote to the administration and enforcement of the State's asbestos worker protection laws.
(6) Copies of any specific or enabling State statutes (enacted and pending enactment) and regulations (promulgated and pending promulgation) and regulations relating to the request, including provisions for assessing criminal and/or civil penalties. (7) Assurance from the Governor, the Attorney General, or the legal counsel of the lead Agency that the lead Agency or other cooperating agencies have the legal authority necessary to carry out the requirements relating to the request.
(c) General notice. (1) Within 60 days after receipt of a request for an exclusion, EPA will determine the completeness of the request. If EPA does not request further information within the 60-day period, the request will be deemed complete.
(2) EPA will publish a notice in the Federal Register that announces receipt of the request, describes the information submitted under paragraph (b) of this section, and solicits written comment from interested members of the public.
(3) If, during the comment period, EPA receives a written objection to a Governor's request, it will publish a notice of the objection in the Federal Register. Each comment must include the name and address of the person submitting the comment.
(d) Criteria. EPA may exclude a State from the requirements of this subpart if:
(1) The State's lead agency and other cooperating agencies have the legal authority necessary to ensure that the State's program of asbestos worker protection is at least as stringent as that provided for in this subpart.
(2) The State has an enforcement mechanism to allow it to implement the program described in the exclusion request. (3) The lead Agency and any cooperating agencies have or will have qualified personnel to carry out the provisions relating to the exclusion request.
(4) The State will devote adequate resources to the administration and enforcement of its provisions relating to the exclusion request. (5) When specified by EPA, the State gives satisfactory assurances that necessary steps, including specific actions it proposes to take and a time schedule for their accomplishment, will be taken within a reasonable time to conform with applicable criteria under paragraph (d)(2) through (d)(4) of this section.
(e) Decision. EPA will publish a notice in the Federal Register announcing its decision to grant or deny a Governor's request for exclusion from the requirements of this subpart. The notice will include EPA's reasons and rationale for granting or denying the Governor's request.
(f) Modifications. When any substantial change is made in the laws governing asbestos worker protection, or in the administration or enforcement of a State program in a State that was excluded under this section, a responsible official in the lead agency shall submit such changes to EPA.
(g) Reports. The lead agency in each State that has been granted an exclusion by EPA from requirements of this subpart shall submit a report to the Regional Administrator for the Region in which the State is located at least once every 12 months to include the following information:
(1) A summary of the State's implementation and enforcement activities during the last reporting period relating to the exclusion under this section, including enforcement actions taken. (2) Any changes in the administration or enforcement of the State program implemented during the last reporting period. (3) Other reports as may be required by EPA to carry out effective oversight of any exclusion granted from this rule's requirements. (h) Oversight. EPA may periodically evaluate the adequacy of a State's implementation and enforcement of and resources devoted to carrying out requirements relating to the exclusion. This evaluation may include, but is not limited to, site visits to State or local facilities where asbestos worker protection provisions should be in place, without prior notice to the State. (i) Informal Conference. (1) EPA may request that an informal conference be held between appropriate State and EPA officials when EPA has reason to believe that a State has failed to: (i) Substantially comply with the terms of any provision under this section.
(ii) Meet the criteria under paragraph (d) of this section, including the failure to carry out enforcement activities, or act on violations of the State program.
(2) EPA will:
(i) Specify to the State those aspects of the State's program believed to be inadequate.
(ii) Specify to the State the facts that support the belief of inadequacy.
(3) If EPA finds, on the basis of information submitted by the State at the informal conference, that deficiencies did not exist or were corrected by the State, no further action is required. (4) Where EPA finds that deficiencies in the State program exist, a plan to correct the deficiencies shall be negotiated between the State and EPA. The plan shall detail the deficiencies found in the State program, specify the steps the State has taken or will take to remedy the deficiencies, and establish a schedule for each remedial action to be initiated.
(j) Rescission. (1) If the State fails to meet with EPA, or fails to correct deficiencies raised at the informal conference, EPA will deliver to the Governor of the State and a responsible official in the lead Agency, a written notice of its intent to rescind the exclusion. (2) EPA will publish in the Federal Register a notice that rescinds the exclusion, describes those aspects of the State's program determined to be inadequate, and specifies the facts that support the findings of inadequacy.
9. In Sec. 763.124, paragraphs (a), (b)(2), (b)(3), (c), and (d) are revised to read as follows:
Sec. 763.124 Reporting.
(a) Employers subject to this rule must submit a report on their proposed project activities to the Regional Asbestos Coordinator for the EPA Region in which the asbestos construction project is located at least 10 days before they begin any asbestos construction project, except ``small-scale, short-duration'' projects, or ``emergency projects,'' as defined in Sec. 763.121(b). Employers must report any emergency project subject to this rule as soon as possible but in no case more than 48 hours after the project begins. A list of EPA Regional Offices is given under Sec. 1.7 (b) of this chapter. (b) * * *
(2) The location, including street address, of the asbestos construction work project.
(3) The scheduled starting and completion dates for the asbestos construction work project.
(c) The report must be received at least 10 days before the asbestos construction work project begins unless the report is for an emergency project. In such a case, the report must be received as soon as possible but in no case more than 48 hours after the project begins. (d) Employers do not have to report under this section if EPA receives a notice under the National Emission Standard for Asbestos, Sec. 61.146 of this chapter for construction work projects exceeding 160 square feet or 260 linear feet, at least 10 days before they begin an asbestos construction work project and that notice clearly indicates that employees covered by this rule will perform some or all of the asbestos construction work.
10. In Sec. 763.125, paragraphs (a) and (e) are revised to read as follows:
Sec. 763.125 Enforcement.
(a) Failure to comply with any provision of this subpart is a violation of section 15 of the Act (15 U.S.C. 2614).
Sec. 763.126 Inspections.
EPA may conduct inspections under section 11 of the Act (15 U.S.C. 2610) to ensure compliance with this subpart. 12. By revising newly redesignated Appendices A, B, C, E, and G to Subpart G, revising the title of newly redesignated Appendix D to Subpart G, and adding Appendices F and H through K to Subpart G to read as follows:
Appendix A to Subpart G--EPA/OSHA Reference Method--Mandatory
This mandatory appendix specifies the procedure for analyzing air samples for asbestos and specifies quality control procedures that must be implemented by laboratories performing the analysis. The sampling and analytical methods described below represent the elements of the available monitoring methods essential to achieve adequate employee exposure monitoring while allowing employers to use methods that are already established within their organizations. All employers who are required to conduct air monitoring under Sec. 763.121(f) are required to utilize analytical laboratories that use this procedure, or an equivalent method for collecting and analyzing samples.
Sampling and Analytical Procedure
Note: The slide consists of seven sets of grooved lines (ca. 20 grooves to each block) in descending order of visibility from sets 1 to 7, seven being the least visible. The requirements for asbestos counting are that the microscope optics must resolve the grooved lines in set 3 completely, although they may appear somewhat faint, and that the grooved lines in sets 6 and 7 must be invisible. Sets 4 and 5 must be at least partially visible but may vary slightly in visibility between microscopes. A microscope that fails to meet these requirements has either too low or too high a resolution to be used for asbestos counting.
c. If the image deteriorates, clean and adjust the microscope optics. If the problem persists, consult the microscope manufacturer.
11. Each set of samples taken will include 10 percent blanks or a minimum of 2 blanks. The blank results shall be averaged and subtracted from the analytical results before reporting. Any samples represented by a blank having a fiber count in excess of 7 fibers/ 100 fields shall be rejected.
12. The samples shall be mounted by the acetone/triacetin method or a method with an equivalent index of refraction and similar clarity.
13. Observe the following counting rules. a. Count only fibers equal to or longer than 5 micrometers. Measure the length of curved fibers along the curve. b. In the absence of other information, count all particles as asbestos that have a length-to-width ratio (aspect ratio) of 3:1 or greater.
c. Fibers lying entirely within the boundary of the WaltonBeckett graticule field shall receive a count of 1. Fibers crossing the boundary once, having one end within the circle, shall receive the count of one-half (\1/2\). Do not count any fiber that crosses the graticule boundary more than once. Reject and do not count any other fibers even though they may be visible outside the graticule area.
d. Count bundles of fibers as one fiber unless individual fibers can be identified by observing both ends of an individual fiber. e. Count enough graticule fields to yield 100 fibers. Count a minimum of 20 fields; stop counting at 100 fields regardless of fiber count.
14. Blind recounts shall be conducted at the rate of 10 percent.
Quality Control Procedures
Appendix B to Subpart G--Detailed Procedure for Asbestos Sampling and Analysis--Non-Mandatory
This appendix contains a detailed procedure for sampling and analysis and includes those critical elements specified in Appendix A of this section. Employers are not required to use this procedure, but they are required to use Appendix A of this section. The purpose of Appendix B of this section is to provide a detailed step-by-step sampling and analysis procedure that conforms to the elements specified in Appendix A of this section. Since this procedure may also standardize the analysis and reduce variability, EPA encourages employers to use this appendix.
Technique: Microscopy, Phase Contrast. Analyte: Fibers (manual count).
Sample Preparation: Acetone/triacetin method. Calibration: Phase-shift detection limit about 3 degrees. Range: 100 to 1,300 fibers/mm\2\ filter area. Estimated Limit of Detection: 7 fibers/mm\2\ filter area. Sampler: Filter (0.8-1.2 <greek-m>m mixed cellulose ester membrane, 25-mm diameter).
Flow Rate: 0.5 L/min to 2.5 L/min (25-mm cassette); 1.0 L/min to 2.5 L/min (37-mm cassette).
Sample Volume: Adjust to obtain 100 to 1,300 fibers/mm\2\. Shipment: Routine.
Sample Stability: Indefinite.
Blanks: 1012f samples (minimum 2).
Standard Analytical Error: 0.25.
Applicability: The working range is 0.02 f/cc (1920-L air sample) to 1.25 f/cc (400-L sample). The method gives an index of airborne asbestos fibers but may be used for other materials such as fibrous glass by inserting suitable parameters into the counting rules. The method does not differentiate between asbestos and other fibers. Asbestos fibers less than ca. 0.25 <greek-m>m diameter will not be detected by this method.
Interferences: Any other airborne fiber may interfere since all particles meeting the counting criteria are counted. Chain-like particles may appear fibrous. High levels of nonfibrous dust particles may obscure fibers in the field of view and raise the detection limit.
Reagents:
Note: Analyze representative filters for fiber background before use and discard the filter lot if more than 5 fibers/100 fields are found.
2. Personal sampling pump, greater than or equal to 0.5 l/min, with flexible connecting tubing.
3. Microscope, phase contrast, with green or blue filter, 8 to 10X eyepiece, and 40 to 45X phase objective (total magnification ca. 400X); numerical aperture=0.65 to 0.75. 4. Slides, glass, single-frosted, pre-cleaned, 25 x 75 mm. 5. Cover slips, 25 x 25 mm, No. 1\1/2\ unless otherwise specified by microscope manufacturer.
6. Knife, #1 surgical steel, curved blade. 7. Tweezers.
8. Flask, Guth-type, insulated neck, 250 to 500 mL (with singleholed rubber stopper and elbow-jointed glass tubing, 16 to 22 cm long).
9. Hotplate, spark-free, stirring type; heating mantle; or infrared lamp and magnetic stirrer.
10. Syringe, hypodermic, with 22-gauge needle. 11. Graticule, Walton-Beckett type with 100 <greek-m>m diameter circular field at the specimen plane (area=0.00785 mm\2\), (Type G- 22).
Note: The graticule is custom-made for each microscope.
12. HSE/NPL phase contrast test slide, Mark II. 13. Telescope, ocular phase-ring centering. 14. Stage micrometer (0.01 mm divisions).
Sampling
(A<INF>c)(E)
<SUP>t minimum = --------------------------
(Q)(L) 10<SUP>3
5. Remove the field monitor at the end of sampling, replace the plastic top cover and small end caps, and store the monitor. 6. Ship the samples in a rigid container with sufficient packing material to prevent jostling or damage.
Note: Do not use polystyrene foam in the shipping container because of electrostatic forces which may cause fiber loss from the sample filter.
Sample Preparation
Note: The object is to produce samples with a smooth (nongrainy) background in a medium with a refractive index equal to or less than 1.46. The method below collapses the filter for easier focusing and produces permanent mounts which are useful for quality control and interlaboratory comparison. Other mounting techniques meeting the above criteria may also be used, e.g., the nonpermanent field mounting technique used in P & CAM 239.
7. Ensure that the glass slides and cover slips are free of dust and fibers.
8. Place 40 to 60 ml of acetone into a Guth-type flask. Stopper the flask with a single-hole rubber stopper through which a glass tube extends 5 to 8 cm into the flask. The portion of the glass tube that exits the top of the stopper (8 to 10 cm) is bent downward in an elbow that makes an angle of 20 to 30 degrees with the horizontal.
9. Place the flask in a stirring hotplate or wrap in a heating mantle. Heat the acetone gradually to its boiling temperature (ca. 58 deg.C).
Caution. The acetone vapor must be generated in a ventilated fume hood away from all open flames and spark sources. Alternate heating methods can be used, providing no open flame or sparks are present.
10. Mount either the whole sample filter or a wedge cut from the sample filter on a clean glass slide.
a. Cut wedges of ca. 25 percent of the filter area with a curved-blade steel surgical knife using a rocking motion to prevent tearing.
b. Place the filter or wedge, dust side up, on the slide. Static electricity will usually keep the filter on the slide until it is cleared.
c. Hold the glass slide supporting the filter approximately 1 to 2 cm from the glass tube port where the acetone vapor is escaping from the heated flask. The acetone vapor stream should cause a condensation spot on the glass slide ca. 2 to 3 cm in diameter. Move the glass slide gently in the vapor stream. The filter should clear in 2 to 5 sec. If the filter curls, distorts, or is otherwise rendered unusable, the vapor stream is probably not strong enough. Periodically wipe the outlet port with tissue to prevent liquid acetone dripping onto the filter.
d. Using the hypodermic syringe with a 22-gauge needle, place 1 to 2 drops of triacetin on the filter. Gently lower a clean 25-mm square cover slip down onto the filter at a slight angle to reduce the possibility of forming bubbles. If too many bubbles form or the amount of triacetin is insufficient, the cover slip may become detached within a few hours.
e. Glue the edges of the cover slip to the glass slide using a lacquer or nail polish.
Note: If clearing is slow, the slide preparation may be heated on a hotplate (surface temperature 50 deg.C) for 15 min. to hasten clearing. Counting may proceed immediately after clearing and mounting are completed.
Calibration and Quality Control
11. Calibration of the Walton-Beckett graticule. The diameter, d<INF>c (mm), of the circular counting area and the disc diameter must be specified when ordering the graticule. a. Insert any available graticule into the eyepiece and focus so that the graticule lines are sharp and clear. b. Set the appropriate interpupillary distance and, if applicable, reset the binocular head adjustment so that the magnification remains constant.
c. Install the 40 to 45 X phase objective. d. Place a stage micrometer on the microscope object stage and focus the microscope on the graduated lines. e. Measure the magnified grid length, L<INF>o (um), using the stage micrometer.
f. Remove the graticule from the microscope and measure its actual grid length, L<INF>a (mm). This can best be accomplished by using a stage fitted with verniers.
g. Calculate the circle diameter, d<INF>c (mm), for the WaltonBeckett graticule:
L<INF>a x D
d<INF>C = --------------------------
L<INF>o
h. Check the field diameter, D (acceptable range 100 mm <plus-minus>2 mm) with a stage micrometer upon receipt of the graticule from the manufacturer. Determine field area (mm\2\). 12. Microscope adjustments. Follow the manufacturer's instructions and also the following:
a. Adjust the light source for even illumination across the field of view at the condenser iris.
Note: Kohler illumination is preferred, where available.
b. Focus on the particulate material to be examined. c. Make sure that the field iris is in focus, centered on the sample, and open only enough to fully illuminate the field of view. d. Use the telescope ocular supplied by the manufacturer to ensure that the phase rings (annular diaphragm and phase-shifting elements) are concentric.
13. Check the phase-shift detection limit of the microscope periodically.
a. Remove the HSE/NPL phase-contrast test slide from its shipping container and center it under the phase objective. b. Bring the blocks of grooved lines into focus.
Note: The slide consists of seven sets of grooves (ca. 20 grooves to each block) in descending order of visibility from sets 1 to 7. The requirements for counting are that the microscope optics must resolve the grooved lines in set 3 completely, although they may appear somewhat faint, and that the grooved lines in sets 6 to 7 must be invisible. Sets 4 and 5 must be at least partially visible but may vary slightly in visibility between microscopes. A microscope which fails to meet these requirements has either too low or too high a resolution to be used for asbestos counting.
c. If the image quality deteriorates, clean the microscope optics and, if the problem persists, consult the microscope manufacturer.
14. Quality control of fiber counts. a. Prepare and count field blanks along with the field samples. Report the counts on each blank. Calculate the mean of the field blank counts and subtract this value from each sample count before reporting the results.
Note 1: The identity of the blank filters should be unknown to the counter until all counts have been completed. Note 2: If a field blank yields fiber counts greater than 7 fibers/100 fields, report possible contamination of the samples.
b. Perform blind recounts by the same counter on 10 percent of filters counted (slides relabeled by a person other than the counter).
15. Use the following test to determine whether a pair of counts on the same filter should be rejected because of possible bias. This statistic estimates the counting repeatability at the 95 percent confidence level. Discard the sample if the difference between the two counts exceeds 2.77 (F)s<INF>r where F=average of the two fiber counts and s<INF>r=relative standard deviation, which should be derived by each laboratory based on historical in-house data.
Note: If a pair of counts is rejected as a result of this test, recount the remaining samples in the set and test the new counts against the first counts. Discard all rejected paired counts.
16. Enroll each new counter in a training course that compares performance of counters on a variety of samples using this procedure.
Note: To ensure good reproducibility, all laboratories engaged in asbestos counting are required to participate in the Proficiency Analytical Testing (PAT) Program and should routinely participate with other asbestos fiber counting laboratories in the exchange of field samples to compare performance of counters.
Measurement
17. Place the slide on the mechanical stage of the calibrated microscope with the center of the filter under the objective lens. Focus the microscope on the plane of the filter. 18. Regularly check phase-ring alignment and Kohler illumination.
19. The following are the counting rules: a. Count only fibers longer than 5 um. Measure the length of curved fibers along the curve.
b. Count only fibers with a length-to-width ratio equal to or greater than 3:1.
c. For fibers that cross the boundary of the graticule field, do the following:
(1) Count any fiber longer than 5 um that lies entirely within the graticule area.
(2) Count as \1/2\ fiber any fiber with only one end lying within the graticule area.
(3) Do not count any fiber that crosses the graticule boundary more than once.
(4) Reject and do not count all other fibers. d. Count bundles of fibers as one fiber unless individual fibers can be identified by observing both ends of a fiber. e. Count enough graticule fields to yield 100 fibers. Count a minimum of 20 fields. Stop at 100 fields regardless of fiber count. 20. Start counting from one end of the filter and progress along a radial line to the other end, shift either up or down on the filter, and continue in the reverse direction. Select fields randomly by looking away from the eyepiece briefly while advancing the mechanical stage. When an agglomerate covers ca. \1/6\ or more of the field of view, reject the field and select another. Do not report rejected fields in the number of total fields counted.
Note: When counting a field, continuously scan a range of focal planes by moving the fine focus knob to detect very fine fibers which have become embedded in the filter. The small-diameter fibers will be very faint but are an important contribution to the total count.
Calculations
21. Calculate and report fiber density on the filter, E (fibers/ mm<SUP>2); by dividing the total fiber count, F; minus the mean field blank count, B, by the number of fields, n; and the field area, A<INF>f (0.00785 mm<SUP>2 for a properly calibrated WaltonBeckett graticule):
(F/n<INF>f) - (B/n<INF>b)
E = ---------------------- fibers/mm<SUP>2
A<INF>f
where:
n<INF>f--number of fields in submission sample n<INF>b--number of fields in blank sample
22. Calculate the concentration, C (f/cc), of fibers in the air volume sampled, V (L), using the effective collection area of the filter, A<INF>c (385 mm<SUP>2 for a 25-mm filter):
(E)(A<INF>c)
C = ---------------------------
V(10<SUP>3)
Note: Periodically check and adjust the value of A<INF>c, if necessary.
Appendix C to Subpart G--Qualitative and Quantitative Fit Testing Procedures--Mandatory
Qualitative Fit Test Protocols
I. Isoamyl Acetate Protocol
A. Odor Threshold Screening. 1. Three 1-liter glass jars with metal lids (e.g. Mason or Bell jars) are required. 2. Odor-free water (e.g. distilled or spring water) at approximately 25 deg.C shall be used for the solutions. 3. The isoamyl acetate (IAA) (also known as isopentyl acetate) stock solution is prepared by adding 1 cc of pure IAA to 800 cc of odor-free water in a 1-liter jar and shaking for 30 seconds. This solution shall be prepared new at least weekly. 4. The screening test shall be conducted in a room separate from the room used for actual fit testing. The two rooms shall be well ventilated but shall not be connected to the same recirculating ventilation system.
5. The odor test solution is prepared in a second jar by placing 0.4 cc of the stock solution into 500 cc of odor-free water using a clean dropper or pipette. Shake for 30 seconds and allow to stand for two to three minutes so that the IAA concentration above the liquid may reach equilibrium. This solution may be used for only one day.
6. A test blank is prepared in a third jar by adding 500 cc of odor-free water.
7. The odor test and test blank jars shall be labeled 1 and 2 for jar identification. If the labels are put on the lids they can be periodically peeled, dried off, and switched to maintain the integrity of the test.
8. The following instructions shall be typed on a card and placed on the table in front of the two test jars (i.e. 1 and 2): ``The purpose of this test is to determine if you can smell banana oil at a low concentration. The two bottles in front of you contain water. One of these bottles also contains a small amount of banana oil. Be sure the covers are on tight, then shake each bottle for two seconds. Unscrew the lid of each bottle, one at a time, and sniff at the mouth of the bottle. Indicate to the test conductor which bottle contains banana oil.''
9. The mixtures used in the IAA odor detection test shall be prepared in an area separate from where the test is performed, in order to prevent olfactory fatigue in the subject. 10. If the test subject is unable to identify correctly the jar containing the odor test solution, the IAA qualitative fit test may not be used.
11. If the test subject correctly identifies the jar containing the odor test solution, the test subject may proceed to respirator selection and fit testing.
B. Respirator selection. 1. The test subject shall be allowed to pick the most comfortable respirator from a selection including respirators of various sizes from different manufacturers. The selection shall include at least five sizes of elastomeric half facepieces, from at least two manufacturers. 2. The selection process shall be conducted in a room separate from the fit-test chamber to prevent odor fatigue. Prior to the selection process, the test subject shall be shown how to put on a respirator, how it should be positioned on the face, how to set strap tension, and how to determine a ``comfortable'' respirator. A mirror shall be available to assist the subject in evaluating the fit and positioning of the respirator. This instruction may not constitute the subject's formal training on respirator use, as it is only a review.
3. The test subject should understand that the employee is being asked to select the respirator which provides the most comfortable fit. Each respirator represents a different size and shape and, if fitted properly and used properly, will provide adequate protection. 4. The test subject holds each facepiece up to the face and eliminates those which obviously do not give a comfortable fit. Normally, selection will begin with a half-mask and if a good fit cannot be found, the subject will be asked to test the full facepiece respirators. (A small percentage of users will not be able to wear any half-mask.)
5. The more comfortable facepieces are noted; the most comfortable mask is donned and worn at least five minutes to assess comfort. All donning and adjustments of the facepieces shall be performed by the test subject without assistance from the test conductor or other person. Assistance in assessing comfort can be given by discussing the points of #6 below. If the test subject is not familiar with using a particular respirator, the test subject shall be directed to don the mask several times and to adjust the straps each time to become adept at setting proper tension on the straps.
6. Assessment of comfort shall include reviewing the following points with the test subject and allowing the test subje