Asbestos Part 1; Chrysotile Asbestos; Regulation of Certain Conditions of Use Under the Toxic Substances Control Act (TSCA), 21970-22010 [2024-05972]
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Federal Register / Vol. 89, No. 61 / Thursday, March 28, 2024 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 751
[EPA–HQ–OPPT–2021–0057; FRL–8332–01–
OCSPP]
RIN 2070–AK86
Asbestos Part 1; Chrysotile Asbestos;
Regulation of Certain Conditions of
Use Under the Toxic Substances
Control Act (TSCA)
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA or the Agency) is issuing
this final rule under the Toxic
Substances Control Act (TSCA) to
address to the extent necessary the
unreasonable risk of injury to health
presented by chrysotile asbestos based
on the risks posed by certain conditions
of use. The injuries to human health
include mesothelioma and lung,
ovarian, and laryngeal cancers resulting
from chronic inhalation exposure to
chrysotile asbestos.
DATES: This final rule is effective on
May 28, 2024.
ADDRESSES: The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPPT–2021–0057, is
available online at https://
www.regulations.gov. Additional
instructions for visiting the docket,
along with more information about
dockets generally, is available at https://
www.epa.gov/.
FOR FURTHER INFORMATION CONTACT:
For technical information contact:
Peter Gimlin, Existing Chemicals Risk
Management Division (7405M), Office of
Pollution Prevention and Toxics,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC
20460–0001; telephone number: (202)
566–0515; email address: gimlin.peter@
epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
SUMMARY:
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SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by
this final action if you manufacture
(including import), process, distribute
in commerce, use, or dispose of
chrysotile asbestos. TSCA section 3(9)
defines the term ‘‘manufacture’’ to mean
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to import into the customs territory of
the United States (as defined in general
note 2 of the Harmonized Tariff
Schedule of the United States), produce,
or manufacture. Therefore, unless
expressly stated otherwise, importers of
chrysotile asbestos are subject to any
provisions regulating manufacture of
chrysotile asbestos. The following list of
North American Industrial
Classification System (NAICS) codes is
not intended to be exhaustive, but rather
provides a guide to help readers
determine whether this document
applies to them. Potentially affected
entities may include:
• Oil and Gas Extraction (NAICS code
211).
• Nuclear Electric Power Generation
(NAICS code 221113).
• Chemical Manufacturing (NAICS
code 325).
• Fabricated Metal Product
Manufacturing (NAICS code 332).
• Transportation Equipment
Manufacturing (NAICS code 336).
• Gasket, Packing, and Sealing Device
Manufacturing (NAICS code 339991).
• Motor Vehicle and Motor Vehicle
Parts and Supplies Merchant
Wholesalers (NAICS code 4231).
• Motor Vehicle and Parts Dealers
(NAICS code 441).
• Automotive Repair and
Maintenance (NAICS code 8111).
This action may also affect certain
entities through pre-existing import,
including import certification, and
export notification rules under TSCA.
Persons who import any chemical
substance in bulk form, as part of a
mixture, or as part of an article (if
required by rule) are also subject to
TSCA section 13 import certification
requirements and the corresponding
regulations at 19 CFR 12.118 through
12.127; see also 19 CFR 127.28. Those
persons must certify that the shipment
of the chemical substance complies with
all applicable rules and orders under
TSCA. The EPA policy in support of
import certification appears at 40 CFR
part 707, subpart B. In addition, any
persons who export or intend to export
a chemical substance that is the subject
of this final rule are subject to the export
notification provisions of TSCA section
12(b) (15 U.S.C. 2611(b)), and must
comply with the export notification
requirements in 40 CFR part 707,
subpart D. Asbestos (including
chrysotile asbestos) is already subject to
TSCA section 6(a) (40 CFR part 763,
subparts G and I) rules and a significant
new use rule under TSCA section 5(a)(2)
(40 CFR part 721.11095) that trigger the
export notification provisions of TSCA
section 12(b) (15 U.S.C. 2611(b); see also
40 CFR 721.20). Any person who
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exports or intends to export asbestos
(including chrysotile asbestos) must
comply with the export notification
requirements in 40 CFR part 707,
subpart D.
If you have any questions regarding
the applicability of this final action to
a particular entity, consult the technical
information contact listed under FOR
FURTHER INFORMATION CONTACT.
B. What is the Agency’s authority for
taking this action?
Under TSCA section 6(a) (15 U.S.C.
2605(a)), if the EPA determines through
a TSCA section 6(b) risk evaluation that
a chemical substance presents an
unreasonable risk of injury to health or
the environment, without consideration
of costs or other non-risk factors,
including an unreasonable risk to a
potentially exposed or susceptible
subpopulation identified as relevant to
the risk evaluation, under the
conditions of use, EPA must by rule
apply one or more requirements to the
extent necessary so that the chemical
substance or mixture no longer presents
such risk.
C. What action is the Agency taking?
Pursuant to TSCA section 6(b), EPA
determined that chrysotile asbestos
presents an unreasonable risk of injury
to health, without consideration of costs
or other non-risk factors, including an
unreasonable risk to potentially exposed
or susceptible subpopulations identified
as relevant to the 2020 Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos
by EPA, under the following conditions
of use (Ref. 1):
• Processing and Industrial use of
Chrysotile Asbestos Diaphragms in the
Chlor-alkali Industry;
• Processing and Industrial Use of
Chrysotile Asbestos-Containing Sheet
Gaskets in Chemical Production;
• Industrial Use and Disposal of
Chrysotile Asbestos-Containing Brake
Blocks in the Oil Industry;
• Commercial Use and Disposal of
Aftermarket Automotive Chrysotile
Asbestos-Containing Brakes/Linings;
• Commercial Use and Disposal of
Other Chrysotile Asbestos-Containing
Vehicle Friction Products;
• Commercial Use and Disposal of
Other Chrysotile Asbestos-Containing
Gaskets;
• Consumer Use and Disposal of
Aftermarket Automotive Chrysotile
Asbestos-Containing Brakes/Linings;
and
• Consumer Use and Disposal of
Other Chrysotile Asbestos-Containing
Gaskets.
A detailed description of the
conditions of use that contribute to
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EPA’s determination that chrysotile
asbestos presents an unreasonable risk
is included in Unit II.C.2. Accordingly,
to address the unreasonable risk, EPA is
issuing this final rule under TSCA
section 6(a) to:
(i) Prohibit the manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, in the
chlor-alkali industry and require interim
workplace controls;
(ii) Prohibit the manufacture
(including import), processing, use,
distribution in commerce and
commercial use of chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for sheet
gaskets in chemical production and
require interim workplace controls for
certain commercial uses;
(iii) Prohibit the manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for
oilfield brake blocks, aftermarket
automotive brakes and linings, other
vehicle friction products and other
gaskets;
(iv) Prohibit the manufacture
(including import), processing, and
distribution in commerce of chrysotile
asbestos, including any chrysotile
asbestos-containing products or articles,
for consumer use of aftermarket
automotive brakes and linings and other
gaskets; and
(v) Establish disposal and
recordkeeping requirements.
D. Why is the Agency taking this action?
Under TSCA section 6(a), ‘‘[i]f the
Administrator determines in accordance
with subsection (b)(4)(A) that the
manufacture, processing, distribution in
commerce, use or disposal of a chemical
substance or mixture, or that any
combination of such activities, presents
an unreasonable risk of injury to health
or the environment, the Administrator
shall by rule . . . apply one or more of
the [section 6(a)] requirements to such
substance or mixture to the extent
necessary so that the chemical
substance no longer presents such risk.’’
Chrysotile asbestos was the subject of a
risk evaluation under TSCA section
6(b)(4)(A) that was issued in December
2020 (Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos) (Ref. 1). On
April 12, 2022, EPA issued a proposed
rule (87 FR 21706) (FRL–8332–02–
OCSPP) under TSCA section 6(a) to
regulate those conditions of use
evaluated in the 2020 Risk Evaluation
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for which EPA determined unreasonable
risk, so that chrysotile asbestos does not
present unreasonable risk as determined
in the 2020 Risk Evaluation, and the
Agency received public comment on the
proposal. After the close of the public
comment period for the proposed rule,
EPA received comments and held
meetings with stakeholders. EPA issued
a Notice of Data Availability on March
17, 2023 (88 FR 16389) (FRL–8332–04–
OCSPP), to request additional public
comment on any information received
during and after the proposed rule
public comment period and how EPA
should consider such information in the
development of this final rule. With this
action, EPA is finalizing with
modifications the rule proposed on
April 12, 2022 (87 FR 21706), so that
conditions of use of chrysotile asbestos
do not present unreasonable risk, as
determined in the 2020 Risk Evaluation.
The unreasonable risk is described in
Unit II.C.1. and the conditions of use
that are the subject of this final action
are described in Unit II.C.2.
E. What are the estimated incremental
impacts of this action?
EPA has prepared an Economic
Analysis of the potential incremental
impacts associated with this
rulemaking. (Ref. 2).
1. Background
Asbestos use in the nation has been
declining for decades and current
domestic consumption of raw asbestos
is less than 0.1% of peak consumption
in the early 1970s. Chlor-alkali
producers are the only industry in the
U.S. known to fabricate products from
raw chrysotile asbestos. In addition,
EPA has concluded that imports of a
few asbestos-containing products are
intended, known, or reasonably foreseen
to occur; while the total quantity of
asbestos in those products is uncertain,
it is believed to be relatively small (see
Appendix C of the Risk Evaluation).
2. Costs
Three firms own a total of eight chloralkali facilities in the U.S. that still use
asbestos diaphragms to produce
chlorine and sodium hydroxide (also
known as caustic soda). The eight
facilities range in age from 42 to 83
years old, although some have had new
capacity added as recently as 18 years
ago, and others may have had recent
refurbishments. The share of total
chlorine and caustic soda production
using asbestos diaphragm cells has been
declining over time. The diaphragm
cells in these facilities currently
represent about one-third of U.S. chloralkali production capacity. EPA
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anticipates that firms will respond to
the rule by converting their asbestos
diaphragm cells to non-asbestos
diaphragms or membrane cells, which
do not use asbestos. A more detailed
discussion of the expected impacts of
conversion from asbestos-containing
diaphragm cells to non-asbestos
diaphragms or membrane cells is
located in Unit VII.B.5.
Converting the facilities using
asbestos diaphragm cells to nonasbestos technologies is predicted to
require an investment of approximately
$2.8 billion to $3.4 billion across all
eight facilities. For a number of these
facilities, the non-asbestos technologies,
particularly membrane cells, are more
energy efficient than asbestos
diaphragm cells, so those conversions
are expected to result in savings for the
companies that would accrue over the
lifetimes of the facilities. The dollar
value of the expected change in energy
usage (which is a net energy savings
across all the facilities) is included in
the estimated net annualized costs.
Membrane cells also produce a higher
grade of caustic soda that has
historically commanded a higher price
than the product from asbestos
diaphragm cells, and which may
continue to do so in the future. EPA
anticipates that the conversions to nonasbestos diaphragms and membranes
would occur in the coming decades
even without this final rule, following
existing trends in the chlor-alkali
industry to transition away from
asbestos. Compared to this baseline
trend, the incremental net effect of the
rule on the chlor-alkali industry over a
35-year period using a 3 percent
discount rate is estimated to range from
an annualized cost of $7 million per
year to an annualized savings of $1
million per year, depending on whether
the higher grade of caustic soda
produced by membrane cells continues
to command a premium price. Using a
7 percent discount rate, the incremental
annualized net effect is a cost ranging
from $34 million to $43 million per
year, again depending on whether there
are revenue gains from the caustic soda
production.
EPA also estimates that approximately
1,800 sets of automotive brakes or brake
linings containing asbestos may be
imported into the U.S. each year,
representing 0.002% of the total U.S.
market for aftermarket brakes. The cost
of a prohibition would be minimal due
to the ready availability of alternative
products that are only slightly more
expensive (an average cost increase of
about $5 per brake). The rule is
estimated to result in total annualized
costs for aftermarket automotive brakes
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of approximately $300,000 per year
using a 3% discount rate and $200,000
per year using a 7% discount rate.
EPA did not have information to
estimate the costs of prohibiting
asbestos for the remaining uses subject
to the rule (sheet gaskets used in
chemical production, including
titanium dioxide production and
nuclear material processing; brake
blocks in the oil industry; other vehicle
friction products; or other gaskets), so
there are additional unquantified costs.
EPA believes that the use of these
asbestos-containing products has
declined over time, and that, depending
on which products, they are now either
used in very small segments of the
industries, or possibly not at all.
More information on the estimated
costs is available in EPA’s Economic
Analysis for the rule (Ref. 2).
3. Benefits
EPA’s Economic Analysis for the rule
(Ref. 2), quantified the benefits from
avoided cases of lung cancer,
mesothelioma, ovarian cancer, and
laryngeal cancer due to reduced
asbestos exposures to workers,
occupational non-users (ONUs), and doit-yourselfers (DIYers) related to the
rule’s requirements for chlor-alkali
diaphragms, aftermarket automotive
brakes, and sheet gaskets used for
titanium dioxide production. The
combined national quantified benefits of
avoided cancer cases associated with
these products are approximately $6,000
per year using a 3% discount rate and
$3,000 per year using a 7% discount
rate, based on the cancer risk estimates
from the Risk Evaluation for Asbestos,
Part 1: Chrysotile Asbestos. EPA did not
estimate the aggregate avoided cancer
benefits of the requirements for sheet
gaskets used for other forms of chemical
production, oilfield brake blocks, other
vehicle friction products or other
gaskets because the Agency did not have
sufficient information on the number of
individuals likely to be affected by the
rule. To the extent that such products
are still manufactured, processed,
distributed in commerce, used, or
disposed of, there would be additional
benefits from reducing exposures from
these use categories.
There are also unquantified benefits
due to other avoided adverse health
effects associated with asbestos
exposure including respiratory effects
(e.g., asbestosis, non-malignant
respiratory disease, deficits in
pulmonary function, diffuse pleural
thickening and pleural plaques). The
rule will also generate unquantified
benefits from other exposure pathways
and life cycle stages for which
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exposures were not estimated. To the
extent that the number of individuals
exposed or exposure levels in the
baseline were underestimated, EPA’s
analysis underestimates the benefits of
the regulatory requirements.
In addition to the benefits of avoided
adverse health effects associated with
chrysotile asbestos exposure, the rule is
expected to generate significant benefits
from reduced air pollution associated
with electricity generation. Chlor-alkali
production is one of the most energyintensive industrial operations in the
United States. To the extent that
alternative technologies are more energy
efficient, converting asbestos diaphragm
cells to non-asbestos technologies
reduces overall electricity consumption
and thus the total level of pollutants
associated with electric power
generation, including carbon dioxide,
particulate matter, sulfur dioxide, and
nitrogen oxides. Converting asbestos
diaphragm cells to non-asbestos
technologies could yield millions of
dollars per year in environmental and
health benefits from reduced emissions
of these pollutants. EPA’s Economic
Analysis, which can be found in the
rulemaking docket (Ref. 2), contains
more information on the potential
magnitude of these monetized benefits
from reduced criteria air pollutants and
carbon dioxide emissions.
4. Small Entity Impacts
As described in more detail in Unit
X.C. and in section 6.2 of the Economic
Analysis (Ref. 2), EPA estimates that 14
to 1,372 small entities would be subject
to the rule.
Chlor-alkali facilities account for
nearly all of the quantified costs of the
rule, and none of the firms operating
chlor-alkali facilities are small
businesses.
Eleven to 1,369 of the affected small
businesses perform brake replacements
using aftermarket automotive brake
linings and pads containing asbestos.
The estimate of 11 affected small
entities assumes that each affected
business performs between 40 and 700
brake replacements per year using
asbestos brake linings or pads. The
estimate of 1,369 affected small entities
assumes that each affected business
installs a single set of asbestos brake
linings or pads per year. Affected firms
are expected to incur a cost of
approximately $18 per brake
replacement job for the additional
expense of a set of four non-asbestos
brake linings or pads, and about $1 for
recordkeeping about their asbestos
waste disposal activities. This results in
annual costs between $20 and $14,000
per firm (depending on the number of
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brake replacements they perform). At
the low-end estimate of 11 affected
brake replacement firms, approximately
85% of firms would have cost impacts
of less than 1% of their annual
revenues, about 10% would have cost
impacts between 1% and 3%, and
around 6% would have cost impacts of
greater than 3%. At the high-end
estimate of 1,369 affected brake
replacement firms, 100% of firms would
have a cost impact of less than 1% of
their annual revenues.
Two small businesses are assumed to
manufacture sheet gaskets containing
asbestos for titanium dioxide
production. EPA does not have data on
the cost to these businesses resulting
from the prohibition on sheet gaskets
containing asbestos. Therefore, EPA was
unable to estimate the magnitude of the
impacts for these small entities.
Asbestos-free products in this
application reportedly require more
frequent replacement than items
containing asbestos. As a result, the rule
could increase revenues for the affected
small business suppliers if they sell a
larger volume of non-asbestos products
to the end users as replacements.
One small business is known to
import and distribute oilfield brake
blocks containing asbestos. EPA does
not have data on the cost for this use
category resulting from the prohibition
on products containing asbestos.
Therefore, EPA was unable to estimate
the magnitude of the impacts for this
small entity. Asbestos-free products in
this application reportedly require more
frequent replacement than items
containing asbestos. As a result, the rule
could increase revenues for the affected
small business supplier if it sells a
larger volume of non-asbestos products
to the end users as replacements.
No small businesses have been
identified as using sheet gaskets for
chemical production or brake blocks in
the oil industry.
EPA has not identified specific firms
(of any size) manufacturing, processing,
distributing or using products
containing asbestos for the aftermarket
automotive brakes, other gaskets, and
other vehicle friction products use
categories. To the extent that there are
any small businesses engaged in these
activities, there are likely only a few
firms facing a small cost increase for
asbestos-free products.
5. Environmental Justice
This rule is expected to increase the
level of environmental protection for all
affected populations without having
disproportionate and adverse health or
environmental effects on any
population, including any communities
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with environmental justice concerns
(Ref. 2). Most of the affected chlor-alkali
facilities and one other chemical
manufacturer affected by this rule are
located in or near communities with
high levels of polluting industrial
activities, elevated disease risk, and a
high proportion of people of color. For
example, communities that contain
affected chlor-alkali facilities have a
cumulative baseline cancer risk from air
toxics that is nearly twice the national
average, and the share of Black/African
American persons in these communities
is almost three times the national
average. This rule is not expected to
increase these pre-existing
environmental justice concerns. Units
III.B. and X.J. discuss outreach
conducted to advocates for communities
with environmental justice concerns
that might be subject to disproportionate
exposure to chrysotile asbestos.
6. Children’s Environmental Health
Consistent with Executive Order
13045 (62 FR 19885, April 23, 1997),
EPA evaluated the health and safety
effects of this action on children. This
action is also subject to EPA’s Policy on
Children’s Health (https://
www.epa.gov//childrens-health-policyand-plan) because the environmental
health risk addressed by this action has
a disproportionate effect on children.
Chrysotile asbestos has a
disproportionate effect on children. The
health effect of concern relates to
exposures to chrysotile asbestos are
mesothelioma, lung and other cancers,
all of which have a long latency period
following exposure. The risk evaluation
(Ref. 1) demonstrated in sensitivity
analyses that age at first exposure
affected risk estimates, with earlier
exposures in life resulting in greater
risk. For children, exposures can be
anticipated (1) as bystanders for
consumer uses such as aftermarket
brakes and (2) in consumer uses and
occupational uses given that the risk
evaluation presented information
indicating that children as young as 16
years of age may engage in these
activities. Furthermore, EPA recognizes
it is possible that workers exposed to
chrysotile asbestos at work may cause
unintentional exposure to individuals in
their residence, including children, due
to take-home exposure from
contaminated clothing or other items,
although this additional pathway was
not specifically evaluated in the risk
evaluation. This rule protects children
from these disproportionate
environmental health risks.
The results of EPA’s evaluation are
contained in the risk evaluation (Ref. 1)
and the Economic Analysis (Ref. 2).
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7. Effects on State, Local, and Tribal
Governments
As discussed in Unit X.E., this action
has federalism implications because
regulation under TSCA section 6(a) may
preempt state law. It does not impose
costs on small governments or have
tribal implications.
II. Background
A. Overview of Chrysotile Asbestos
Asbestos is defined in section 202 of
TSCA Title II as: ‘‘Asbestiform varieties
of six fiber types—chrysotile
(serpentine), crocidolite (riebeckite),
amosite (cummingtonite-grunerite),
anthophyllite, tremolite or actinolite.’’
EPA used this definition of asbestos at
the onset of the asbestos risk evaluation
in 2016. However, EPA determined that
chrysotile asbestos is the only type of
asbestos where import, processing, and
distribution in commerce for use is
known, intended, or reasonably foreseen
in the U.S. As such, EPA assessed these
non-legacy conditions of use of
chrysotile asbestos in the December
2020 Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos (Ref. 1).
Following a decision by the Ninth
Circuit Court of Appeals (Safer
Chemicals Healthy Families v. EPA, 943
F.3d 397 (9th Cir. 2019)) concerning
legacy use and associated disposal of
asbestos (conditions of use that were not
included in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos),
EPA began developing a supplemental
risk evaluation to address legacy and
associated disposal conditions of use.
The Risk Evaluation for Asbestos, Part 2:
Supplemental Evaluation Including
Legacy Uses and Associated Disposals
of Asbestos will include evaluation of
those conditions of use of chrysotile
asbestos, the five amphibole fiber types
identified in the TSCA Title II definition
(crocidolite (riebeckite), amosite
(cummingtonite-grunerite),
anthophyllite, tremolite and actinolite)
and Libby Amphibole Asbestos (mainly
consisting of tremolite, winchite, and
richterite). Additionally, some talc
deposits and articles containing talc
have been shown to contain asbestos.
Thus, EPA recognizes that certain uses
of talc may present the potential for
asbestos exposure. Where EPA identifies
reasonably available information
demonstrating the presence of asbestos
in talc, and where such talc applications
fall under TSCA authority, those
asbestos-containing talc conditions of
use will be evaluated in Part 2 of the
risk evaluation for asbestos. Once the
Risk Evaluation for Asbestos, Part 2:
Supplementary Evaluation Including
Legacy Uses and Associated Disposals is
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complete, EPA intends to revisit the
unreasonable risk determination issued
in the 2020 Risk Evaluation for Asbestos
Part 1, and, as appropriate, make an
unreasonable risk determination for
asbestos as a whole chemical substance.
In addition, on April 25, 2019, EPA
finalized a significant new use rule for
asbestos under TSCA section 5(a)(2) (40
CFR 721.11095) for manufacturing
(including importing) or processing of
asbestos for discontinued uses. This rule
requires that persons notify EPA at least
90 days before commencing any
manufacturing (including importing) or
processing of asbestos (including as part
of an article) for uses other than the uses
evaluated under the Risk Evaluation for
Asbestos, Part I: Chrysotile Asbestos and
uses that are already prohibited under
TSCA. The required notification would
initiate EPA’s evaluation of the risks
associated with the intended significant
new use. Manufacturing (including
importing) and processing (including as
part of an article) for the significant new
use may not commence until EPA has
conducted a review of the notice, made
an appropriate determination on the
notice, and taken such actions as are
required in association with that
determination. Also, on July 12, 1989,
EPA issued a rule under TSCA section
6 entitled: Asbestos: Manufacture,
Importation, Processing, and
Distribution in Commerce Prohibitions
(54 FR 29460, July 12, 1989) (FRL–
3476–2), that prohibited the
manufacture (including import),
processing and distribution of
commerce of almost all asbestoscontaining products. On October 18,
1991, in Corrosion Proof Fittings v. EPA,
947 F.2d 1201, the United States Court
of Appeals for the Fifth Circuit vacated
and remanded most of the 1989 rule.
However, as a result of the Court’s
decision, certain asbestos-containing
products remain banned including the
manufacture, importation, processing,
and distribution in commerce of
corrugated paper, rollboard, commercial
paper, specialty paper and flooring felt.
Also, any ‘‘new use’’ remains banned—
defined by that rule as uses of asbestos
for which the manufacture, importation,
or processing would be initiated for the
first time after August 25, 1989.
This final rule applies only to
chrysotile asbestos (Chemical Abstract
Services Registry Number (CASRN)
132207–32–0). Chrysotile asbestos is a
hydrated magnesium silicate mineral,
with relatively long and flexible
crystalline fibers that are capable of
being woven. Chrysotile asbestos fibers
used in most commercial applications
consist of aggregates and usually
contain a broad distribution of fiber
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lengths. Chrysotile asbestos fiber bundle
lengths usually range from a fraction of
a millimeter to several centimeters, and
diameters range from 0.1 to 100
micrometers. More information on the
physical and chemical properties of
chrysotile asbestos is in Section 1.1 of
the Risk Evaluation (Ref. 1).
EPA evaluated the conditions of use
associated with six ongoing use
categories of chrysotile asbestos (chloralkali diaphragms, sheet gaskets used in
chemical production, oilfield brake
blocks, aftermarket automotive brakes/
linings, other vehicle friction products,
and other gaskets). There is no longer
any domestic mining of asbestos. All
imported raw asbestos is chrysotile
asbestos, and it is used in the
manufacture of chlor-alkali diaphragms.
According to the United States
Geological Survey (USGS), 152 metric
tons of raw chrysotile asbestos were
imported in 2022 (Ref. 3) from Brazil;
however, as discussed in this preamble,
public comments to the proposed rule
indicate the importation of raw
chrysotile asbestos for chlor-alkali use
has ceased for now, while imports for
the other use categories may be ongoing.
EPA is also aware that Brazil’s Federal
Supreme Court banned asbestos mining,
processing and export in 2022.
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B. Regulatory Actions Pertaining to
Chrysotile Asbestos
Because of its adverse health effects,
chrysotile asbestos is subject to
numerous State, Federal, and
international regulations restricting and
regulating its use. A summary of EPA
regulations pertaining to chrysotile
asbestos, as well other Federal, State,
and international regulations, is in the
docket (Ref. 1; Ref. 4).
C. Summary of EPA’s Risk Evaluation
Activities on Chrysotile Asbestos
In July 2017, EPA published a scope
of the chrysotile asbestos risk evaluation
(82 FR 31592, July 7, 2017) (FRL–9963–
57), and after receiving public comment,
published a problem formulation in
June 2018 (83 FR 26998, June 11, 2018)
(FRL–9978–40). In March 2020, EPA
released a draft risk evaluation for
asbestos (EPA–HQ–OPPT–2019–0501–
0002), and in December 2020, following
public comment and peer review by the
Science Advisory Committee on
Chemicals (SACC), EPA finalized the
Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos (Ref. 1).
In the Risk Evaluation for Asbestos,
Part 1: Chrysotile Asbestos, EPA
evaluated risks associated with the
conditions of use involving six nonlegacy use categories of chrysotile
asbestos including: Chlor-alkali
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diaphragms, sheet gaskets in chemical
production, other gaskets, oilfield brake
blocks, aftermarket automotive brake/
linings, and other vehicle friction
products. EPA evaluated the conditions
of use within these categories, including
manufacture (including import),
processing, distribution, commercial
use, consumer use, and disposal (Ref. 1).
Descriptions of these conditions of use
are included in Unit II.C.2.
The risk evaluation identified
potential adverse health effects
associated with exposure to chrysotile
asbestos, including the risk of
mesothelioma, lung cancer, and other
cancers from chronic inhalation. A
further discussion of the chrysotile
asbestos hazards is included in Unit
II.C.1. The chrysotile asbestos
conditions of use that EPA determined
contribute to the chemical substance’s
unreasonable risk to health include
processing and industrial use of
diaphragms in the chlor-alkali industry;
processing and industrial use of sheet
gaskets used in chemical production;
industrial use and disposal of brake
blocks in the oil industry; commercial
use and disposal of aftermarket
automotive brakes/linings; commercial
use and disposal of other vehicle
friction products; commercial use and
disposal of other gaskets; consumer use
and disposal of aftermarket automotive
brakes/linings; and consumer use and
disposal of other gaskets. This
determination includes unreasonable
risk of injury to health to both workers
and occupational non-users (ONUs)
during occupational exposures, and to
consumers and bystanders during
exposures to consumer uses.
EPA determined that ongoing uses of
chrysotile asbestos do not present
unreasonable risk to the environment
(Ref. 1).
As previously discussed, following
the November 2019 decision of the
Ninth Circuit Court of Appeals in Safer
Chemicals Healthy Families v. EPA, 943
F.3d 397, the agency is also conducting
a Part 2 of the Asbestos Risk Evaluation:
Supplemental Evaluation Including
Legacy Uses and Associated Disposals
of Asbestos, which is occurring in
parallel with its effort to pursue risk
management to address unreasonable
risk identified in the Risk Evaluation for
Asbestos, Part 1. Legacy uses and
associated disposals for asbestos are
conditions of use for which manufacture
(including import), processing, and
distribution in commerce for a use no
longer occur, but where use (e.g., in situ
building material) and disposal are still
known, intended, or reasonably foreseen
to occur.
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The October 13, 2021, consent decree
in the case Asbestos Disease Awareness
Organization et al v. Regan et al, 4:21–
cv–03716–PJH (N.D. Cal.) requires the
agency to publish a final Part 2 asbestos
risk evaluation on or before December 1,
2024. EPA published a draft scope for
the Part 2 asbestos risk evaluation on
December 29, 2021 (86 FR 74088) (FRL–
9347–01–OCSPP), and a final scope for
the Part 2 asbestos risk evaluation on
June 29, 2022 (87 FR 38746) (FRL–
9347–02–OCSPP).
As part of the problem formulation for
the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos, EPA found that
exposures to the general population may
occur from the conditions of use
considered. (Ref. 5). EPA determined, in
the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos, that exposure to
the general population via surface
water, drinking water, ambient air, and
disposal pathways falls under the
jurisdiction of other environmental
statutes administered by EPA. The
Agency, therefore, at that time
explained that it was tailoring the scope
of the Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos using authorities
in TSCA sections 6(b) and 9(b)(1). As
such, EPA did not evaluate hazards or
exposures to the general population,
and the unreasonable risk
determinations made in the Risk
Evaluation for Asbestos, Part 1:
Chrysotile Asbestos do not account for
exposures to the general population.
However, EPA expects that any
potential exposures to the general
population would be adequately
addressed through the prohibition on
the manufacture (including import),
processing, distribution in commerce
and commercial use of chrysotile
asbestos to address the unreasonable
risk posed to workers, ONUs, consumers
and bystanders. EPA does plan to
evaluate exposures to the general
population in the Risk Evaluation for
Asbestos, Part 2: Supplemental
Evaluation Including Legacy Uses and
Associated Disposals of Asbestos.
EPA also concluded that, based on the
reasonably available information in the
published literature provided by
industries using asbestos and reporting
to EPA databases, there are minimal or
no releases of asbestos to surface water
associated with the conditions of use
that EPA evaluated in Part 1. Therefore,
EPA concluded that there is low or no
risk to aquatic and sediment-dwelling
organisms from exposure to chrysotile
asbestos. Terrestrial pathways,
including biosolids from wastewater
treatment plants, were excluded from
the analysis at the problem formulation
stage (Ref. 1; Ref. 5). However, EPA
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expects that any potential exposures to
terrestrial species, as with the general
population, would be adequately
addressed through the prohibition on
the manufacture (including import),
processing, distribution in commerce
and commercial use of chrysotile
asbestos.
1. Description of Unreasonable Risk
The health endpoint driving EPA’s
determination of unreasonable risk for
chrysotile asbestos under the conditions
of use is cancer from inhalation
exposure (Ref. 1). This unreasonable
risk includes the risk of mesothelioma
and lung, ovarian, and laryngeal cancers
from chronic inhalation exposure.
Inhalation unit risk (IUR) is typically
defined as a plausible upper bound on
the estimate of cancer risk per
micrograms per cubic meter (mg/m3) air
breathed for 70 years. For asbestos, the
IUR is expressed as cancer risk per
fibers per cubic centimeter (f/cc) (in
units of the fibers as measured by Phase
Contrast Microscopy (PCM)). The IUR
represents the total cancer incidence
risk from chronic inhalation exposure of
chrysotile asbestos and was based on
epidemiological studies on
mesothelioma and lung cancer in
cohorts of workers using chrysotile
asbestos in commerce. The inhalation
unit risk for mesothelioma and lung
cancer were directly estimated from the
selected epidemiologic studies reporting
exposure-response relationships
between exposure to chrysotile asbestos
and those cancers. Since there was no
exposure-response data for ovarian and
laryngeal cancer effects in the
epidemiological literature, a direct
estimate of risk from ovarian and
laryngeal cancer could not be made for
the inhalation unit risk calculation. An
adjustment factor for ovarian and
laryngeal cancer effects was applied to
risk value estimates to correct for the
underestimated total cancer risk derived
from only lung cancer and
mesothelioma that yielded an IUR for
total cancer risk encompassing all four
cancers known to be caused by exposure
to chrysotile asbestos. And, as discussed
in Section 4.2.1 of the Risk Evaluation
(Ref. 1), for workers and ONUs exposed
in a workplace, EPA used as a
benchmark extra risk of 1 cancer per
10,000 people, that is, a risk level of
1×10¥4 (or 1E–4). In addition, because
non-cancer effects of asbestosis and
pleural thickening may also contribute
to overall health risk resulting from
workplace exposures to chrysotile
asbestos, the quantified health risks of
chrysotile asbestos are underestimates
because they are based on cancer risk
alone.
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For processing and industrial use of
chrysotile asbestos diaphragms in the
chlor-alkali industry, EPA found
unreasonable risk to workers and ONUs
from chronic inhalation exposure to
chrysotile asbestos, based on industry
data including personal air monitoring
(i.e., worker breathing zone results) and
area air monitoring (i.e., fixed location
air monitoring results) that led to the
high-end risk estimates exceeding the
1×10¥4 risk benchmark (Section 5.2.1 of
the Risk Evaluation).
For both the processing (i.e., gasket
cutting) and industrial use activities of
chrysotile asbestos-containing sheet
gaskets for chemical production, EPA
found unreasonable risk to workers and
ONUs from chronic inhalation exposure
to chrysotile asbestos based on
monitoring data provided by industry
and data in the published literature
(Section 5.2.1 of the Risk Evaluation).
For the industrial use and disposal of
chrysotile asbestos-containing oilfield
brake blocks, EPA found unreasonable
risk to workers and ONUs from chronic
inhalation exposure to chrysotile
asbestos based on a published literature
(Section 5.2.1 of the Risk Evaluation).
For the commercial use and disposal
of aftermarket automotive chrysotile
asbestos-containing brakes/linings and
other vehicle friction products (except
for the NASA Super Guppy Turbine
aircraft use), EPA found unreasonable
risk to workers from chronic inhalation
exposure to chrysotile asbestos based on
published literature and OSHA data
(Section 2.3.1.8.1 of the Risk
Evaluation). EPA determined, based on
exposure data provided by NASA to
EPA (Section 2.3.1.8.2 of the Risk
Evaluation), that the use and disposal of
chrysotile asbestos-containing brakes for
NASA’s Super Guppy Turbine aircraft
did not present an unreasonable risk of
injury to health or the environment.
For the commercial use and disposal
of other chrysotile asbestos-containing
gaskets, EPA found unreasonable risk to
workers and ONUs from chronic
inhalation exposure to chrysotile
asbestos based on exposure scenarios
from occupational monitoring data for
asbestos-containing gasket replacement
activities in vehicles.
For consumer use and disposal of
aftermarket automotive chrysotile
asbestos-containing brakes/linings and
other chrysotile asbestos-containing
gaskets, EPA found unreasonable risk to
consumers and bystanders from chronic
inhalation exposure to chrysotile
asbestos, using as a benchmark cancer
risk level of 1x10¥6 (1E–6) for
consumers and bystanders.
EPA also noted in the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos
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that it is possible for industrial workers
or consumers working with aftermarket
automotive products or other types of
asbestos-containing gaskets to cause
unintentional exposure to individuals in
their residence due to take-home
exposure from contaminated clothing or
other items.
The provisions of the final rule are
described in Unit VI. and the health
effects of chrysotile asbestos and the
magnitude of the exposures to chrysotile
asbestos are described in Unit VII.B.1.
2. Description of Conditions of Use
This unit describes the conditions of
use subject to this final action. Although
EPA identified both industrial and
commercial uses in the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos
for purposes of distinguishing scenarios,
the Agency clarified then and clarifies
now that EPA interprets the authority
over ‘‘any manner or method of
commercial use’’ under TSCA section
6(a)(5) to apply to both industrial and
commercial uses identified in the Risk
Evaluation for Asbestos, Part 1:
Chrysotile Asbestos.
The conditions of use for this final
action do not include any legacy uses or
associated disposal for chrysotile
asbestos or other asbestos fiber types.
EPA will consider legacy uses and
associated disposals in Part 2 of the risk
evaluation for asbestos (Ref. 1).
a. Processing and industrial use of
chrysotile asbestos diaphragms in the
chlor-alkali industry.
Chrysotile asbestos historically has
been imported and used by the chloralkali industry for the fabrication of
semi-permeable diaphragms. The
chrysotile asbestos diaphragms are used
in an industrial process for the
production of chlorine and sodium
hydroxide (caustic soda). Asbestos is
chemically inert and able to effectively
separate chlorine and sodium hydroxide
in electrolytic cells. The chlor-alkali
chemical production process involves
the separation of the sodium and
chloride atoms of salt in saltwater
(brine) via electricity to produce sodium
hydroxide (caustic soda), hydrogen, and
chlorine. The electrolytic cell contains
two compartments separated by a semipermeable diaphragm, which is made
mostly of chrysotile asbestos. The
diaphragm prevents the reaction of the
caustic soda with the chlorine and
allows for the separation of both
materials for further processing.
Diaphragms are typically used for 1–3
years before they must be replaced (Ref.
1).
b. Processing and industrial use of
chrysotile asbestos-containing sheet
gaskets in chemical production.
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Sheet gaskets are used to form a
leakproof seal between fixed
components. Chrysotile asbestoscontaining gaskets are used primarily in
industrial applications with extreme
operating conditions, such as high
temperatures, high pressures, and the
presence of chlorine or other corrosive
substances. Such extreme operating
conditions are found in many chemical
manufacturing and processing
operations, including: the manufacture
of titanium dioxide and chlorinated
hydrocarbons; polymerization reactions
involving chlorinated monomers; and
steam cracking at petrochemical
facilities. Chrysotile asbestos-containing
gaskets used for titanium dioxide
production are fabricated from sheets
composed of 80% (minimum) chrysotile
asbestos fully encapsulated in styrene
butadiene rubber. The chrysotile
asbestos-containing sheets are articles
which are imported into the U.S. in
large rolls where they are cut to shape
by a fabricator and subsequently used at
titanium dioxide manufacturing
facilities. Installed gaskets typically
remain in use anywhere from a few
weeks to three years (Ref. 1). In addition
to the industrial uses specifically
identified in the risk evaluation, the use
of sheet gaskets in the processing of
nuclear material is also covered by this
condition of use because it involves
processing chemicals under extreme
operating conditions, in this case
operations involving radioactive
materials.
c. Industrial use and disposal of
chrysotile asbestos-containing brake
blocks in oil industry.
The rotary drilling rig of an oil well
uses a drawworks hoisting machine to
raise and lower the traveling blocks
during drilling. The drawworks is a
permanently installed component of a
mobile drilling rig. The drawworks
consists of a large-diameter steel spool,
a motor, a main brake, a reduction gear,
and an auxiliary brake. The brake of the
drawworks hoisting machine is an
essential component that is engaged
when no motion of the traveling block
is desired. Chrysotile asbestoscontaining brake blocks are imported
articles for use in some drawworks,
reportedly most often on larger drilling
rigs. Spent brake blocks must
periodically be replaced by workers in
the oilfield industry who maintain the
rig (Ref. 1).
d. Commercial use and disposal of
aftermarket automotive chrysotile
asbestos-containing brakes/linings.
The two primary types of automobile
brakes are drum brakes and disc brakes,
and chrysotile asbestos has been found
in both, in linings for drum brake
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assemblies and pads in disc brake
assemblies. Disc brakes are much more
common today than drum brakes, but
many passenger vehicles have a
combination of disc brakes for the front
wheels and drum brakes for the rear
wheels. Chrysotile asbestos fibers offer
many properties that are desired for
brake linings and brake pads, and up
through the 1990s many new
automobiles manufactured in the United
States had brake assemblies with
asbestos-containing components. By
2000, asbestos was no longer used in the
brakes of virtually any original
equipment manufacturer (OEM)
automobiles sold domestically;
however, asbestos-containing brake
products continue to be imported and
sold in the United States. The quantity
of asbestos-containing brake part articles
imported is unknown. Therefore,
asbestos could be found in the United
States: (1) In vehicles on the road that
have asbestos-containing brakes,
whether from older and vintage vehicles
or aftermarket parts; and (2) In vehicles
that have new replacement asbestoscontaining brakes installed by
establishments or individuals that use
certain imported products. Brakes must
be repaired and replaced periodically,
which involves activities that create
dust and potential occupational
exposure to asbestos (Ref. 1).
e. Commercial use and disposal of
other chrysotile asbestos-containing
vehicle friction products.
While EPA has verified that U.S.
automotive manufacturers are not
installing asbestos-containing brakes on
new cars for domestic distribution, EPA
identified a company that claimed to
import asbestos-containing brakes and
then install them on cars in the United
States for export only. Following
completion of the risk evaluation, and
during the risk management phase
following publication of the final risk
evaluation, this company disavowed
this practice (Ref. 6).
In addition, there is a limited use of
asbestos-containing brakes for a special,
large transport plane, the ‘‘SuperGuppy’’ Turbine (SGT) aircraft, owned
and operated by the National
Aeronautics and Space Administration
(NASA). The SGT aircraft is a specialty
cargo plane that transports oversized
equipment, and it is considered a
mission-critical vehicle. Only one SGT
aircraft is in operation today, and NASA
acquired it in 1997. The SGT aircraft
averages approximately 100 flights per
year. When not in use, it is hangered
and maintained at a NASA facility in El
Paso, Texas. The SGT aircraft has eight
landing gear systems, and each system
has 32 brake blocks, which contain
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chrysotile asbestos. Potential worker
exposures are associated with servicing
the brakes. As explained in the risk
evaluation, the following two conditions
of use do not present unreasonable risk,
and therefore do not require mitigation
by this final rule: Use of chrysotile
asbestos-containing brakes for a
specialized, large NASA transport
plane; and the disposal of chrysotile
asbestos-containing brakes for a
specialized, large NASA transport plane
(Ref. 1).
f. Commercial use and disposal of
other asbestos-containing gaskets.
EPA also identified the use of
chrysotile asbestos-containing gaskets in
the exhaust system of a specific type of
utility vehicle manufactured and
available for purchase in the United
States. The utility vehicle manufacturer
purported at the time to receive the precut gaskets which are then installed
during manufacture of the vehicle. The
gaskets may be removed during
servicing of the exhaust system at utility
vehicle dealerships and other repair and
maintenance shops. Exhaust gasket
installation and repair activities create
asbestos exposure. (Ref. 1).
g. Consumer use and disposal of
aftermarket automotive chrysotile
asbestos-containing brakes/linings.
Asbestos could be found in the United
States: (1) In vehicles on the road that
have asbestos-containing brakes,
whether from original manufacturers
(primarily for older and vintage
vehicles) or aftermarket parts; and (2) In
vehicles that have new replacement
asbestos-containing brakes installed by
establishments or individuals that use
certain imported products. Brakes must
be repaired and replaced periodically,
activities which create dust and
exposure to asbestos for consumers and
bystanders who perform their own doit-yourself automobile maintenance and
repairs on asbestos-containing
components (Ref. 1).
h. Consumer use and disposal of other
asbestos-containing gaskets.
EPA also identified the use of
chrysotile asbestos-containing gaskets in
the exhaust system of a specific type of
utility vehicle manufactured and
available for purchase in the United
States. The gaskets may be removed
during servicing of the exhaust system.
EPA determined that do-it-yourself
consumers who may repair these
vehicles and bystanders are exposed to
asbestos (Ref. 1).
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III. EPA’s Proposed Rule Under TSCA
Section 6(a) for Chrysotile Asbestos
A. Description of TSCA Section 6(a)
Requirements
Under TSCA section 6(a), if the
Administrator determines through a
TSCA section 6(b) risk evaluation that a
chemical substance presents an
unreasonable risk of injury to health or
the environment, without consideration
of costs or other non-risk factors,
including an unreasonable risk to a
potentially exposed or susceptible
subpopulation identified as relevant to
the Agency’s risk evaluation, under the
conditions of use, EPA must by rule
apply one or more requirements to the
extent necessary so that the chemical
substance no longer presents such risk.
The TSCA section 6(a) requirements
can include one or more of the
following actions alone or in
combination:
• Prohibit or otherwise restrict the
manufacturing (including import),
processing, or distribution in commerce
of the substance or mixture, or limit the
amount of such substance or mixture
which may be manufactured, processed,
or distributed in commerce (TSCA
section 6(a)(1)).
• Prohibit or otherwise restrict the
manufacturing, processing, or
distribution in commerce of the
substance or mixture for a particular use
or above a specific concentration for a
particular use (TSCA section 6(a)(2)).
• Limit the amount of the substance
or mixture which may be manufactured,
processed, or distributed in commerce
for a particular use or above a specific
concentration for a particular use
specified (TSCA section 6(a)(2)).
• Require clear and adequate
minimum warning and instructions
with respect to the substance or
mixture’s use, distribution in commerce,
or disposal, or any combination of those
activities, to be marked on or
accompanying the substance or mixture
(TSCA section 6(a)(3)).
• Require manufacturers and
processors of the substance or mixture
to make and retain certain records or
conduct certain monitoring or testing
(TSCA section 6(a)(4)).
• Prohibit or otherwise regulate any
manner or method of commercial use of
the substance or mixture (TSCA section
6(a)(5)).
• Prohibit or otherwise regulate any
manner or method of disposal of the
substance or mixture, or any article
containing such substance or mixture,
by its manufacturer or processor or by
any person who uses or disposes of it
for commercial purposes (TSCA section
6(a)(6)).
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• Direct manufacturers or processors
of the substance or mixture to give
notice of the unreasonable risk
determination to distributors, certain
other persons, and the public, and to
replace or repurchase the substance or
mixture (TSCA section 6(a)(7)).
EPA analyzed how the TSCA section
6(a) requirements could be applied so
that the unreasonable risk described in
the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos is no longer present.
TSCA section 6(c)(2)(A) requires EPA,
in proposing and promulgating TSCA
section 6(a) rules, to include a statement
of effects addressing certain issues,
including the effects of the chemical
substance on health and the
environment; the magnitude of exposure
of the chemical substance to humans
and the environment; the benefits of the
chemical substance for various uses;
and the reasonably ascertainable
economic consequences of the rule,
including consideration of the likely
effects of the rule on the national
economy, small business, technological
innovation, the environment and public
health; and the costs and benefits and
the cost effectiveness of the regulatory
action and of the one or more primary
alternative regulatory actions
considered by the Administrator. As a
result, EPA is finalizing a regulatory
action and describing two primary
alternative regulatory actions
considered, which are discussed in Unit
VI. and Unit VII.A., respectively.
Related to TSCA section 6(a) actions,
TSCA section 6(c)(2)(C) requires that, in
deciding whether to prohibit or restrict
the chemical substance in a manner that
substantially prevents a specific
condition of use and in setting an
appropriate transition period for such
action, EPA consider, to the extent
practicable, whether technically and
economically feasible alternatives that
benefit health or the environment will
be reasonably available as a substitute
when the prohibition or restriction takes
effect. Unit VII.B.5. includes more
information regarding EPA’s
consideration of alternatives.
Also as part of TSCA section 6(a)
actions or separately, under the
authority of TSCA section 6(g), EPA
may consider granting by rule a timelimited exemption for a specific
condition of use for which EPA finds:
That the specific condition of use is a
critical or essential use for which no
technically and economically feasible
safer alternative is available, taking into
consideration hazard and exposure; that
compliance with the proposed
requirement would significantly disrupt
the national economy, national security,
or critical infrastructure; or that the
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specific condition of use of the chemical
substance, as compared to reasonably
available alternatives, provides a
substantial benefit to health, the
environment, or public safety. EPA did
not propose to grant and is not
finalizing an exemption from the rule
requirements under TSCA section 6(g).
B. Consultations and Other Stakeholder
Outreach
EPA conducted consultations and
outreach in preparing for the proposed
regulatory action. The Agency held a
federalism consultation on May 13,
2021, as part of this rulemaking process
and pursuant to Executive Order 13132
(Ref. 7). On May 24, 2021, and June 3,
2021, EPA held tribal consultations for
the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos (Ref. 8). EPA also
conducted outreach to advocates of
communities that might be subject to
disproportionate exposure to chrysotile
asbestos, such as communities with
environmental justice concerns. EPA’s
environmental justice (EJ) consultation
occurred from June 1 through August
13, 2021. On June 1 and 9, 2021, EPA
held public meetings as part of this
consultation. These meetings were held
pursuant to Executive Orders 12898 and
14008 (Ref. 9). Units X.E., X.F., X.J.
provide more information regarding the
consultations.
In addition to the consultations
described in Units X.E., X.F., and X.J. on
February 3, 2021, EPA held a public
webinar (Ref. 10) and also attended a
Small Business Administration
roundtable on February 5, 2021 (Ref.
11). Furthermore, EPA engaged in
discussions with industry, nongovernmental organizations, other
national governments, asbestos experts
and users of chrysotile asbestos.
Summaries of external meetings held
during the development of this
rulemaking are in the docket.
C. Proposed Regulatory Action
On April 12, 2022, EPA issued a
proposed rule under TSCA section 6(a)
to regulate certain conditions of use, so
that chrysotile asbestos does not present
the unreasonable risk of injury to health
as determined in the 2020 Risk
Evaluation (87 FR 21706). EPA
proposed pursuant to TSCA section 6(a)
to prohibit manufacture (including
import), processing, distribution in
commerce, and commercial use of
chrysotile asbestos in bulk form or as
part of chrysotile asbestos diaphragms
used in the chlor-alkali industry and
chrysotile asbestos-containing sheet
gaskets used in chemical production.
EPA proposed that these prohibitions
would take effect two years after the
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effective date of the final rule. EPA also
proposed pursuant to TSCA section 6(a)
to prohibit manufacture (including
import), processing, distribution in
commerce, and commercial use of:
chrysotile asbestos-containing brake
blocks used in the oil industry,
aftermarket automotive chrysotile
asbestos-containing brakes/linings,
other chrysotile asbestos-containing
vehicle friction products and other
chrysotile asbestos-containing gaskets.
EPA proposed that these prohibitions
would take effect 180 days after the
effective date of the final rule. EPA
further proposed pursuant to TSCA
section 6(a) to prohibit manufacture
(including import), processing, and
distribution in commerce of: aftermarket
automotive chrysotile asbestoscontaining brakes/linings for consumer
use, and other chrysotile asbestoscontaining gaskets for consumer use.
EPA proposed that these prohibitions
would take effect 180 days after the
effective date of the final rule. EPA also
proposed disposal and recordkeeping
requirements under which regulated
parties would document compliance
with the proposed disposal
requirements. Disposal and
recordkeeping requirements would take
effect 180 days after the effective date of
the final rule. EPA additionally
proposed definitions of certain terms
used in the proposed regulatory text.
D. Primary Alternative Regulatory
Action Described in the Proposed Rule
As indicated by TSCA section
6(c)(2)(A), EPA must consider the cost
and benefits and the cost effectiveness
of the proposed regulatory action and
one or more primary alternative
regulatory actions. In the April 12, 2022,
proposed rule (87 FR 21706), EPA’s
primary alternative regulatory action
described in the proposed rule was to:
prohibit manufacture (including
import), processing, distribution in
commerce and commercial use of
chrysotile asbestos in bulk form or as
part of: chrysotile asbestos diaphragms
in the chlor-alkali industry and for
chrysotile asbestos-containing sheet
gaskets in chemical production, with
prohibitions taking effect five years after
the effective date of the final rule, and
require, prior to the prohibition taking
effect, compliance with an existing
chemical exposure limit (ECEL) to
reduce inhalation exposures for the
processing and commercial use of
chrysotile asbestos for these uses. The
primary alternative regulatory action
described in the proposed rule
additionally included a prohibition on
the manufacture (including import),
processing, distribution in commerce,
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and commercial use of chrysotile
asbestos-containing brake blocks in the
oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/
linings; and other vehicle friction
products (with prohibitions taking effect
two years after the effective date of the
final rule and with additional
requirements for disposal). The primary
alternative regulatory action described
in the proposed rule also included
prohibitions on manufacture (including
import), processing, and distribution in
commerce of aftermarket automotive
chrysotile asbestos-containing brakes/
linings for consumer use and other
chrysotile asbestos-containing gaskets
for consumer use (with prohibitions
taking effect two years after the effective
date of the final rule). The primary
alternative regulatory action described
in the proposed rule also included a
requirement to dispose of chrysotile
asbestos-containing materials in a
manner identical to the proposed
regulatory action, with additional
provisions for downstream notification
and signage and labeling.
IV. Summary of Public Comments
A. Public Comments Regarding the
Proposed Rule
EPA received a total of 10,847 public
comments on the April 12, 2022,
Proposed Rule titled ‘‘Asbestos Part 1:
Chrysotile Asbestos; Regulation of
Certain Conditions of Use Under
Section 6(a) of the Toxic Substances
Control Act (TSCA).’’ The comment
period for the proposed rule was
originally scheduled to end on June 13,
2022, but was extended until July 13,
2022, in response to public requests (87
FR 31814, FRL–8332–03–OCSPP). EPA
received 158 unique comments from
trade organizations, industry
stakeholders, environmental groups,
and non-governmental health advocacy
organizations, among others. A separate
document that summarizes all
comments submitted and EPA’s
responses to those comments is
available in the docket for this
rulemaking (Ref. 12).
B. Notice of Data Availability and
Request for Comment
After the close of the public comment
period for the proposed rule, EPA
received comments and held meetings
with stakeholders, including affected
industry and interested groups, related
to the use of chrysotile asbestos
diaphragms in the chlor-alkali industry
and chrysotile asbestos-containing sheet
gaskets used in chemical production.
Topics of these comments and meetings
included media reports regarding
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asbestos workplace practices in the
chlor-alkali industry, the timing of any
prohibition on the manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestos
diaphragms and chrysotile asbestoscontaining sheet gaskets, and the
requirement, included in the primary
regulatory alternative described in the
preamble to the proposed rule, for
processors and users of chrysotile
asbestos diaphragms and chrysotile
asbestos-containing sheet gaskets to
comply with an ECEL as an interim
inhalation exposure control measure
prior to the effective date of a
prohibition. Meetings were held with:
ADAO (July 6 and October 13, 2022);
Chlorine Institute (July 6, 2022); Dow
Chemicals (October 28, 2022); Axial/
Westlake (November 3, 2022); Olin
Corporation (Olin) (November 14, 2022);
OxyChem (November 16, 2022,
December 7, 2022, and February 9,
2023), and Chemours (January 18, 2023).
EPA received data as part of and
following those stakeholder meetings
and made the information available to
the public in the rulemaking docket
(EPA–HQ–OPPT–2021–0057) through a
Notice of Data Availability (NODA) and
Request for Comment (88 FR 16389,
March 17, 2023) (FRL–8332–04–
OCSPP).
In addition, EPA posted to the docket
other information made available after
the close of the public comment period,
including several public comments
submitted to EPA, including from state
and local government officials,
regarding the potential impacts of the
proposed rule’s compliance date for the
prohibition on the commercial use of
chrysotile asbestos diaphragms in the
chlor-alkali industry on the supply of
chlorine used for drinking water
disinfection, wastewater treatment and
potential impacts on state and local
water supply systems; the timing of the
prohibition on the manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestoscontaining sheet gaskets in chemical
production; and discussion of
workplace monitoring strategies to
comply with an asbestos ECEL during
the interim period prior to a prohibition
on the commercial use of chrysotile
asbestos diaphragms.
EPA requested public comment on
any data in the docket that was received
during and after the proposed rule
public comment period, and how EPA
should consider it during the
development of the final rule. EPA
received 47 unique comments that were
responsive to the Agency’s request for
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comments. Commenters included trade
organizations, industry stakeholders,
unions, and non-governmental health
advocacy organizations. A separate
document that summarizes all
comments submitted regarding the
NODA, and EPA’s responses to those
comments is available in the docket for
this rulemaking (Ref. 13).
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V. Changes From the Proposed Rule
This unit summarizes the main
changes from the proposed rule to the
final rule, based on the consideration of
the public comments.
A. Chrysotile Asbestos Diaphragms for
Use in the Chlor-Alkali Industry
TSCA section 6(d) requires EPA to
specify mandatory compliance dates for
all requirements of a TSCA section 6(a)
rule. The mandatory compliance dates
must be ‘‘as soon as practicable’’ and
‘‘provide for a reasonable transition
period.’’ Except when EPA is imposing
a ban or phase-out of a chemical
substance, the mandatory compliance
date for a requirement in a TSCA
section 6(a) rule must be no later than
five years after the date of promulgation
of the final rule. If EPA is requiring a
ban or phase-out of a chemical
substance, EPA must specify a
mandatory compliance date for the start
of the ban or phase-out that is no later
than five years after the date of
promulgation of the final rule, and must
specify mandatory compliance dates for
full implementation of the ban or phaseout which are as soon as practicable.
Pursuant to TSCA section 6(d)(2), EPA
may establish different mandatory
compliance dates for different persons.
EPA proposed to prohibit
manufacture (including import),
processing, distribution in commerce
and commercial use of chrysotile
asbestos for chrysotile asbestos
diaphragms for use in the chlor-alkali
industry, effective two years after the
effective date of the final rule. In the
proposed rule, EPA sought public
comment ‘‘to support or refute its
assumption that [chlor-alkali] facilities
using asbestos diaphragms will convert
to non-asbestos technologies, and the
timeframes required for such
conversions,’’ and as well as on a
prohibition compliance date that would
be both ‘‘as soon as practicable’’ and
‘‘provide for a reasonable transition
period’’ (87 FR 21721, 21726). In the
notice of data availability, EPA
described comments and other
information that the Agency had
received regarding these issues and
requested additional public comment on
how EPA should consider this
information in developing the final rule.
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88 FR 16389, 16391. Based on public
comments received in response to the
proposed rule and notice of data
availability, EPA concludes that the
proposed mandatory compliance date
for the prohibition on the manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestos
for chrysotile asbestos diaphragms
would not be ‘‘as soon as practicable,’’
and would not provide for a reasonable
transition period, as required under
TSCA section 6(d)(1). 15 U.S.C.
2605(d)(1). EPA is therefore finalizing
mandatory compliance dates that differ
from those in the proposed rule.
Specifically, EPA concludes that it is
practicable to prohibit the manufacture
(including import) of chrysotile asbestos
for diaphragms in the chlor-alkali
industry as of the effective date of the
final rule. All chlor-alkali companies
that currently use chrysotile asbestos
already have a sufficient supply of
chrysotile asbestos for foreseeable future
operations prior to the prohibition
compliance dates for processing,
distribution in commerce and
commercial use. The three chlor-alkali
companies that use asbestos diaphragms
provided comment to EPA that they all
ceased importing raw asbestos and do
not need or intend to resume importing
raw asbestos. Therefore, EPA is
prohibiting the manufacture (including
import) of chrysotile asbestos for
diaphragms for use in the chlor-alkali
industry as of the effective date of the
final rule.
With respect to the prohibition on the
processing, distribution in commerce,
and commercial use of chrysotile
asbestos for chrysotile asbestos
diaphragms, EPA concludes that five
years after the effective date of this final
rule is as soon as practicable for this
prohibition to start. Additionally, EPA
concludes that the date by which the
full implementation of this prohibition
is practicable varies for different
persons affected by this prohibition.
Therefore, as described in further detail
below, EPA is finalizing multiple
compliance dates for full
implementation of this prohibition to
provide a reasonable transition time.
EPA received significant comment on
the timing of the proposed prohibition
on use of chrysotile asbestos
diaphragms in the chlor-alkali industry
during the public comment period for
the proposed rule, as well as in response
to the notice of data availability. While
EPA received comments supporting the
proposed two-year prohibition timeline,
many commenters argued the two-year
timeline would not provide the chloralkali industry a reasonable transition
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period. Comments included information
regarding the types of activities
involved in the transition to nonasbestos diaphragms, the limited
number of suppliers that are able to
provide the necessary materials for the
transition, the technical expertise
needed and its scarcity, capital cost
investments needed, projected chlorine
production impacts from the expected
transition, and time it generally takes to
obtain permits, including environmental
permits, required for the transition.
Commenters requested that EPA provide
additional time to allow the chlor-alkali
industry to transition away from
asbestos-containing diaphragms, and to
allow for this transition to occur
without causing economic disruptions
or public health impacts resulting from
potential disruption of drinking water
disinfection and wastewater treatment
supplies due to fluctuations in the
production of chlorine and other chloralkali products. Other commenters also
raised concerns of impacts to other
chemical industries that use chlorine as
their main feedstock for their processes.
Some commenters also expressed
concerns about the proposed alternative
five-year timeline for similar reasons.
Regarding the timing of the
prohibition on processing, distribution
in commerce and commercial use of
chrysotile asbestos for chrysotile
asbestos-containing diaphragms, EPA
concludes based on public comments
that five years after the effective date of
this final rule is as soon as practicable
for this prohibition to begin, and that
the practicable compliance dates for the
full implementation of this prohibition
vary for different affected persons and
depend on the number of facilities a
person is converting to membrane
technology. Three companies own a
total of eight chlor-alkali facilities in the
United States that use chrysotile
asbestos diaphragms; the number of
facilities owned by each company varies
from one to five, and the size of the
asbestos diaphragm chlorine capacity at
the eight facilities varies from 171
thousand metric tons to 981 thousand
metric tons. Several factors affect the
time needed for each individual chloralkali company to transition away from
chrysotile asbestos diaphragm
technology, including the number and
size of facilities owned by the chloralkali company, the company’s
approach to transition away from
asbestos (e.g., a decision to either
convert facilities to non-asbestos
diaphragms or to membrane
technologies), and technical differences
in specific facility conversions.
Comments received described the
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different approaches to move away from
chrysotile asbestos use given the
different designs of chrysotile asbestos
diaphragm technology, the type of
intended conversion to a non-asbestos
diaphragm technology or membrane
technology, the limited availability of
suppliers and technical expertise
required for the conversion process, as
well as differences regarding permits
needed for the conversion of facilities
and permitting timelines based on their
location. In particular, comments
explained that due to such issues, one
company’s conversion of multiple
facilities to membrane technology
cannot be performed simultaneously
and can only be accomplished in a
sequential conversion process. In the
final rule, EPA is adopting an approach
that can accommodate differences
among facilities to provide a reasonable
transition period for each remaining
chlor-alkali facility still using chrysotile
asbestos diaphragms, while ensuring the
associated unreasonable risk is
addressed as soon as practicable
without anticipated disruption to the
available supply of chlor-alkali
chemicals needed to treat drinking
water and wastewater.
The mandatory compliance dates for
the prohibition on processing,
distribution in commerce and
commercial use of chrysotile asbestos
for chrysotile asbestos diaphragms for
use in the chlor-alkali industry included
in this final rule are longer than the
proposed regulatory action; however,
the prohibition phase-in dates begin five
years after the effective date of the final
rule, which was the compliance date in
the primary alternative regulatory
option described in the proposed rule
for this condition of use. The primary
alternative regulatory option described
in the proposed rule included a
prohibition effective five years after the
effective date of the final rule, as well
as a requirement to comply with an
existing chemical exposure limit (ECEL)
before this prohibition would take effect
and related monitoring and
recordkeeping requirements. The final
rule also includes a requirement to
comply with interim controls before the
prohibition takes effect. Unit V.B.
describes the changes to these interim
controls.
There are two main technologies that
can be used to replace asbestos
diaphragms in chlor-alkali production,
non-asbestos diaphragm cells and
membrane cells. Development of nonasbestos diaphragm cells began in the
mid-1980s. Non-asbestos diaphragms
operate in a similar manner to asbestos
diaphragms. In a diaphragm cell, a
diaphragm is placed between the anode
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and cathode of an electrolysis cell to
separate the chlorine, hydrogen, and
caustic soda products. The diaphragm
ensures that the chlorine and hydrogen
do not spontaneously ignite, and the
chlorine and caustic soda do not form
undesirable reactant products. Nonasbestos diaphragms generally last
longer in service than asbestos
diaphragms and can reduce energy
consumption due to lower cell voltages.
The process to convert a chlor-alkali
facility from asbestos diaphragms to
non-asbestos diaphragms is not as
complex as the process to convert to
membrane technology; it requires fewer
design changes, less construction, and
may be performed over several years
without significant disruption of facility
operations or product output.
Significantly, the conversion to nonasbestos diaphragms can proceed
concurrently at several facilities, subject
to the availability of supplies of nonasbestos diaphragm cell components.
Membrane cell technology was
developed in the early 1970’s; the
membrane cell process is different from
the diaphragm process in a number of
significant ways and operates through
the selective permeability of the
membranes, which allow only specific
components to pass through. Membrane
technology conversions are more
complicated than diaphragm technology
conversions. Membrane technology
conversions require new cells, as well as
multiple other plant infrastructure
changes, including changes to: brine
processing, caustic soda handling,
piping, storage tanks, and power supply.
However, as compared to diaphragm
technology, membrane technology uses
less energy and produces a higherquality product (containing less salt) for
which there is greater market demand,
and is therefore generally considered
the current best available technology in
the chlor-alkali industry.
Based on public comments and
meetings with companies, EPA
understands that at least four of eight
chlor-alkali facilities, two operated by
OxyChem and two operated by Olin,
will be converted to non-asbestos
diaphragm cell technology. A fifth
facility, operated by Westlake, is being
converted to an unspecified nonasbestos technology. As described in
Unit IV.B., EPA issued a Notice of Data
Availability (NODA) and Request for
Comment (88 FR 16389, March 17,
2023), that, among other topics,
provided additional information on and
sought comment on the timing of any
prohibition on the manufacture
(including import), processing,
distribution in commerce and
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commercial use of chrysotile asbestos
diaphragms. Based on this information,
including public comment received in
response to this notice, EPA concludes
these five conversions to non-asbestos
diaphragms (or alternative non-asbestos
process) can be achieved in five years.
On April 4, 2023, during the public
comment period for the March 2023
Notice of Data Availability, one chloralkali company, Olin, met with EPA and
submitted a letter to EPA stating its
support for ‘‘an EPA action to ban the
installation of any new or replacement
asbestos-based diaphragms in two years,
in combination with an additional five
years to operate any existing asbestosbased diaphragm production cells.’’ The
comment suggested that this seven-year
ban should apply to the entire chloralkali industry. The company also noted
that during the proposed additional
five-year window it ‘‘would use an insitu process to maintain the diaphragms
which does not involve workers
removing asbestos diaphragms from the
closed process for repairs or
constructing new asbestos diaphragms.’’
(Ref. 14) No further written information
was provided to support this comment
during the public comment period,
which ended April 17, 2023. In August
2023, Olin requested to meet again with
EPA and provided a one-page slide with
bullet-points on its plans to convert its
two facilities using asbestos diaphragms
to non-asbestos diaphragms within the
seven-year timeline it had proposed in
April. The company stated it has several
thousand asbestos diaphragm cells and
after an initial two-year period during
which it would continue to install new
asbestos diaphragms; it would require
five additional years to replace all its
asbestos diaphragms. (Ref. 15)
In the preamble to the proposed rule,
EPA sought public comment on a
compliance date for a prohibition on the
use of chrysotile asbestos-containing
diaphragms in chlor-alkali production,
including ‘‘specific and detailed
timelines to build asbestos-free facilities
or to convert existing asbestos-using
facilities to asbestos-free technology’’
and ‘‘specific information regarding
potential barriers to achieving the
proposed prohibition date while
considering the supply of chlor-alkali
chemicals’’ (87 FR 21726). Olin’s
comments do not provide EPA with
adequate information to establish that
seven years is as soon as practicable for
the company to convert its two facilities
to non-asbestos diaphragms or
otherwise end the use of asbestos, or
that this rule’s five-year prohibition for
non-membrane conversions does not
provide the company with a reasonable
transition period. For example, it is
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unclear why two years are required for
the company to continue installing new
asbestos diaphragms before the
company can begin converting cells,
since the company did not provide
supporting data to explain why waiting
two years to start the conversion, is as
soon as practicable for cell conversions.
The company did not provide
information indicating any difficulties
with its expected ability to obtain
replacement parts, including any
information from or on suppliers; and
no supporting information was provided
to EPA to show that a higher conversion
rate or beginning the conversion
immediately rather than in two years
could disrupt the company’s ability to
produce sufficient chlor-alkali
chemicals for its customers. Additional
information that would have been
needed for EPA to assess whether the
proposed seven-year compliance date is
as soon as practicable includes:
information regarding the types of
activities involved in the transition to
non-asbestos diaphragms, what
suppliers provide the necessary
materials, what type of technical
expertise is needed and its availability,
capital cost investments needed,
projected chlorine production and
impacts from the expected transition. In
establishing the chrysotile asbestos
diaphragm phase-out timeframes in the
rule, EPA based its compliance
timeframe on reasonably available
information, including information
provided in public comments, as well as
in meetings with interested
stakeholders. EPA took into
consideration the technical differences
in specific facility conversions and how
those affect the time needed for each
individual chlor-alkali company to
transition away from chrysotile asbestos
diaphragm technology, such as the
different designs of chrysotile asbestos
diaphragm technology, the type of
intended conversion to a non-asbestos
diaphragm technology or membrane
technology, the limited availability of
suppliers and technical expertise
required for the conversion process, as
well as differences regarding permits
needed for the conversion of facilities
and permitting timelines based on
facility location.
Also, beyond a general description,
Olin provided no additional information
on its proposed chrysotile asbestoscontaining slurry cell maintenance
process, how it may or may not differ
from previously described practices by
the company, or to what extent this
process would reduce exposure.
Furthermore, EPA has no information
on other companies’ ability to
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implement such an asbestos-containing
slurry process within two years, or its
effect on national chlor-alkali
production in the period after two years
and before final phase-out.
While seven years was presented as
being as soon as practicable to transition
one company’s operations to nonasbestos diaphragm technology, seven
years was also presented to EPA as a
chrysotile asbestos use ban date for the
entire chlor-alkali industry. The
proposal does not consider other
companies’ comments on their abilities
to phase-out asbestos use as soon as
practicable, or what is a reasonable
transition time for those firms. Other
companies have told EPA or provided
information to EPA that leads EPA to
conclude that they can complete all of
their planned conversions to nonasbestos diaphragms within five years
(Ref. 16; Ref. 17). Allowing all of the
chlor-alkali companies seven years—an
additional two years—to convert to nonasbestos diaphragms therefore would
not be as soon as practicable given the
information received from other
companies.
Furthermore, EPA believes that Olin’s
suggested approach for conversion from
asbestos diaphragms to non-asbestos
diaphragms is not practical for other
companies who are converting from
diaphragm to membrane technology,
and EPA believes that there would be
adverse impacts on the availability of
chlorine for drinking water should this
approach be uniformly adopted.
Regarding the plans of another
company, OxyChem, to sequentially
convert three facilities to membrane
technology, EPA has received detailed
information on the sequential
conversion schedule. The company’s
first facility can be converted within
five years; allowing seven years for its
conversion would not be as soon as
practicable. The second facility
conversion is not scheduled to be
complete for eight years. EPA has no
basis to conclude this schedule could be
shortened to seven years while still
providing a reasonable transition
period, given the limited global supply
of essential metals, the limited capacity
to produce electrode elements, the
limited number of specialized
electrochemical and technical experts
for chlor-alkali facilities and the
inability to concurrently schedule and
procure for multiple, unique membrane
facility conversions, as documented in
extensive and detailed information
provided to EPA by OxyChem. Finally,
the third facility’s membrane conversion
will not be completed for 12 years; EPA
has no basis to conclude seven years
provides a reasonable transition period
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for this conversion; in fact, the
conversion process is not scheduled to
begin before eight years due to the need
to complete the conversion of the
second facility in advance of this third
facility. A ban that is implemented in
seven years would force the closure of
this third facility for five years before
chlor-alkali production could resume.
EPA expects this forced closure would
have deleterious impacts on the supply
of chlor-alkali chemicals for water
treatment as well as the chemicals
industry, and also would have
significant financial impacts for the
company.
The issuance of this final rule does
not preclude Olin from presenting
additional information to EPA on its
conversion plans in the future. For
example, EPA has discretion under
TSCA section 6(g) to grant an exemption
from a requirement of a TSCA section
6(a) rule for a specific condition of use
of a chemical substance, if EPA finds
that, among other reasons, compliance
with the requirement would
significantly disrupt the national
economy, national security, or critical
infrastructure, or the condition of use
provides a substantial benefit to health
or public safety. EPA believes the
provision of chlor-alkali chemicals for
water treatment has potential
implications for all these
considerations. Information that would
help EPA to evaluate an alternate
transition time would include:
Conversion plans and schedules;
progress made; impediments to ending
asbestos use in five years; impacts of the
five-year end date on production output;
impact on the company’s customers;
and the impact on the supply of chloralkali chemicals for water treatment.
However, EPA currently has no basis to
conclude that requiring compliance
with the five-year period would
significantly disrupt the national
economy, national security, or critical
infrastructure, or that a longer transition
period for the conversion of asbestos
diaphragms to non-asbestos diaphragms
would provide a substantial benefit to
public safety, such that a section 6(g)
exemption may be appropriate.
Similarly, EPA currently has no basis to
conclude that the five-year period
provided in this final rule is not as soon
as practicable and does not provide a
reasonable transition time for chloralkali companies to convert to nonasbestos diaphragms.
In regard to the remaining three chloralkali facilities, EPA has been provided
detailed information on OxyChem’s
plans to sequentially convert all three
facilities to membrane technology.
Conversion work on one facility has
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begun and is expected to be completed
within five years; the other two facilities
are planned to be converted in sequence
to membrane technology after the first
conversion project is finished. The final
rule prohibits the processing,
distribution in commerce, and
commercial use of chrysotile asbestos
for chrysotile asbestos diaphragms
effective five years after the effective
date of the final rule, but allows longer
staggered phase-out periods of 8- and
12-years in order to provide companies
with a reasonable transition period for
the sequential conversion to membrane
technology of up to three of their chloralkali facilities still using chrysotile
asbestos diaphragms, provided certain
conditions are met and progress toward
initiating phase-out has been
demonstrated. The 5-8-12 years
staggered phase-out period allows for
the required construction and required
planning, permits and capital
investment needed for the transition
from chrysotile asbestos diaphragms to
membrane technology. The final rule
allows a company to continue to
process, distribute in commerce and
commercially use chrysotile asbestos for
diaphragms in the chlor-alkali industry
at no more than two of its facilities until
eight years after the effective date of the
final rule, to provide a reasonable
period for sequential conversions of
facilities from chrysotile asbestos
diaphragm technology to membrane
technology. In order to be eligible for
this extended phase-out period under
the final rule, a company must: own or
operate more than one facility that uses
chrysotile asbestos in chlor-alkali
production as of the effective date of the
final rule; be converting more than one
of those facilities to membrane
technology; have, by the date five years
after the effective date of the final rule,
ceased all processing, distribution in
commerce and commercial use of
chrysotile asbestos at one (or more)
facilities that are undergoing or have
undergone such conversion; and certify
to EPA compliance with these
provisions. A company that does this
may then also continue to process,
distribute in commerce and
commercially use chrysotile asbestos for
diaphragms in the chlor-alkali industry
at not more than one facility until 12
years after the effective date of the final
rule, so that it may continue to produce
chlor-alkali chemicals during
conversion to membrane technology,
subject to similar conditions and the
submission of a second certification to
EPA by eight years after the effective
date of the final rule. This means that
by eight years after the effective date of
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the rule, a company must certify: that
they own or operate more than two
facilities that uses chrysotile asbestos in
chlor-alkali production as of the
effective date of the final rule; be
converting more than two of those
facilities to membrane technology; and
have, by the date eight years after the
effective date of the final rule, ceased all
processing, distribution in commerce
and commercial use of chrysotile
asbestos at all facilities but one. In no
situation may any facility continue to
process, distribute in commerce or
commercially use chrysotile asbestos for
diaphragms in the chlor-alkali industry
after 12 years after the effective date of
the final rule.
B. Interim Controls
EPA’s primary alternative regulatory
action described in the proposed rule
was to prohibit the manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestos in
bulk form or as part of chrysotile
asbestos diaphragms in the chlor-alkali
industry and for chrysotile asbestoscontaining sheet gaskets in chemical
production (with prohibitions taking
effect five years after the effective date
of the final rule), which also included
a requirement, prior to the prohibition
taking effect, to comply with an ECEL
for the processing and commercial use
of chrysotile asbestos for these uses. The
final rule includes interim control
requirements developed from the ECEL
provisions described in the preamble to
the proposed rule with some
modifications to address public
comments regarding monitoring
limitations which could impact the
ability to implement an action level.
The final rule does not include the
ECEL action level of 0.0025 f/cc as an
8-hour time weighted average (TWA)
described in the preamble to the
proposed rule, in response to concerns
raised in comments about the feasibility
of accurately measuring to this level.
Under the primary alternative regulatory
action described in the proposed rule,
the ECEL action level would have been
used to determine how frequently
periodic exposure monitoring would be
required if initial exposure monitoring
revealed concentrations of chrysotile
asbestos below the ECEL: if exposure
monitoring revealed concentrations of
chrysotile asbestos below the ECEL
action level, the owner or operator
would be required to conduct periodic
exposure monitoring every five years;
however, if exposure monitoring
revealed concentrations of chrysotile
asbestos at or above the ECEL action
level but below the ECEL, the owner or
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operator would be required to conduct
periodic exposure monitoring every six
months. Since an ECEL action level is
not being included as part of the final
rule due to concerns with accurately
measuring down to the ECEL action
level, EPA is requiring all persons
subject to the interim control
requirements to conduct exposure
monitoring every six months if the most
recent exposure monitoring shows
exposure at or below the ECEL. This
testing frequency is the same as the
periodic exposure monitoring frequency
under the primary alternative regulatory
action described in the proposed rule
where concentrations are at or above the
ECEL action level but at or below the
ECEL.
Some commenters proposed that an
ECEL would be sufficient to eliminate
the unreasonable risk, without a need
for a ban on chrysotile asbestos. EPA
considered all risk management
approaches and the adverse health
effects from chrysotile asbestos,
including the risk of mesothelioma, lung
cancer, and other cancers from chronic
inhalation as well as who is exposed
and how they are exposed to chrysotile
asbestos and concluded that a
prohibition is the only requirement that
would ensure that chrysotile asbestos no
longer presents an unreasonable risk.
An ECEL is a requirement that can be
used to minimize the exposure to the
potentially exposed persons at the
chlor-alkali facilities during the interim
period before the prohibition takes
effect, provided that a robust monitoring
program and effective exposure
controls, such as engineering controls,
are in place. However, as explained in
the proposed rule, and supported by
public comment, monitoring to and
below the ECEL, while achievable, may
at times be problematic due to analytical
and field sampling challenges, resulting
in the modifications to the interim
controls described earlier in this Unit.
Therefore, owners or operators may be
unable to reliably ensure with sufficient
confidence that potentially exposed
persons are not exposed to air
concentrations above the ECEL. The
feasibility of instituting additional
engineering controls at chlor-alkali
facilities is unlikely due to the nature of
the tasks that require workers handling
chrysotile asbestos. As such,
compliance with the ECEL for workers
is unlikely to be achieved without longterm reliance on the use of respirators.
Respirators are the least effective means
of ensuring worker protection in the
hierarchy of controls, particularly in the
case of protecting workers and ONUs
against exposure to asbestos fiber
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inhalation. As discussed in section
2.3.2.1 of the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos,
based on studies investigating the
performance of respirators, some
workers and ONUs may have protection
below the nominal applied protection
factor for respirator use and would not
be protected so that chrysotile asbestos
does not present unreasonable risk. For
these reasons, EPA believes that an
ECEL cannot ensure that chrysotile
asbestos does not present unreasonable
risk to workers and, therefore, it is not
a substitute for a ban as a long-term risk
management solution.
C. Chrysotile Asbestos-Containing Sheet
Gaskets in Chemical Production
EPA proposed to prohibit
manufacture (including import),
processing, distribution in commerce,
and commercial use of chrysotile
asbestos, including any chrysotile
asbestos-containing products or articles,
for sheet gaskets in chemical
production, with these prohibitions
taking effect two years after the effective
date of the final rule. EPA is finalizing
these prohibitions with several
modifications based on public comment
received in response to the proposed
rule and notice of data availability.
First, commenters noted the proposed
ban would prohibit the ongoing use of
previously installed chrysotile asbestoscontaining sheet gaskets in chemical
production, which presented several
concerns. They noted that the number of
sheet gaskets remaining in use in
chemical plants and refineries could be
in the hundreds of thousands and
potentially millions. This is a much
larger universe than the asbestoscontaining gasket use that EPA
characterized in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos.
Comments noted it would be impossible
for facilities to be certain which older
gaskets contain asbestos, and therefore
to ensure compliance with the
prohibition as proposed, the facilities
would have to remove all older gaskets
on the assumption that they may
contain chrysotile asbestos. Such a
replacement program would be
expensive, it would disrupt production,
including prolonged plant shutdowns,
and would be difficult to accomplish
even in two years. Commenters also
noted that the ongoing use of installed
gaskets does not present unreasonable
risk: rather the risk is present during
asbestos gasket removal and
recommended that the most effective
and safest strategy would be to replace
asbestos gaskets when they reach the
end of their service life. These
comments are consistent with EPA’s
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evaluation of exposure to in the Risk
Evaluation for Asbestos, Part 1:
Chrysotile Asbestos. The worker
activities most relevant to chrysotile
asbestos exposure include receiving
new gaskets, removing old gaskets,
bagging old gaskets for disposal, and
inserting replacement gaskets into
flanges and other process equipment.
Outside of these activities, EPA did not
find the ongoing use of installed gaskets
presented unreasonable risk. In
response to these comments, EPA is
specifying in the final rule that any
chrysotile asbestos-containing sheet
gaskets for chemical production which
are already installed and in use prior to
the compliance date for the prohibitions
are not subject to the distribution in
commerce and commercial use
prohibitions. Allowing distribution in
commerce of installed chrysotile
asbestos-containing sheet gaskets will
permit the sale of equipment and
facilities that may contain such gaskets.
Second, EPA is finalizing a
prohibition on the commercial use of
chrysotile asbestos sheet gaskets for
titanium dioxide production with a
modified mandatory compliance date of
five years after the effective date of the
final rule. This provision responds to
information provided by a titanium
dioxide producer that it requires
additional time to replace asbestos
gaskets that are used in specialized
equipment for titanium dioxide
production. The company provided
information that it is actively working
on a transition to non-asbestos gaskets at
its two large titanium dioxide
production facilities in the United
States; however, the replacement of
asbestos gaskets in the oxidation
reaction area of the process, which are
subject to high temperature, pressure,
and corrosive chemicals, is a
complicated engineering project that
will require the redesign and
replacement of specialized reactor
vessel flanges. (Ref. 18; Ref. 19) Due to
the specialized nature of the project, the
need to continue titanium dioxide
production, and safety concerns, EPA
has concluded that five years is as soon
as practicable and provides a reasonable
transition period for the implementation
of a ban on the commercial use of
asbestos gaskets for titanium dioxide
production. Consistent with the
proposed primary regulatory alternative,
to address worker exposure to asbestos
during this five-year period, interim
workplace controls of chrysotile
asbestos exposures will be required for
the commercial use of sheet gaskets for
titanium dioxide production. The
titanium dioxide producer did not
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request additional time to import or
process asbestos for this use, and the
manufacture (including import),
processing, and distribution in
commerce of chrysotile asbestos sheet
gaskets for titanium dioxide production
has an unmodified mandatory
compliance date of two years after the
effective date of the final rule while use
can continue until five years after the
effective date of the final rule.
Finally, after publication of the
proposed rule, EPA received a comment
from a Department of Energy contractor,
Savannah River Nuclear Solutions,
stating that there is an ongoing use of
chrysotile asbestos sheet gaskets in the
processing of nuclear material at the
Savannah River Site, which EPA has
determined falls within the sheet
gaskets in chemical production category
of use, based on the information
provided by the commenter (Ref. 20).
The commenter states they have been
unable to identify non-asbestos
substitute materials that are as durable
in the radioactive environment
associated with the use. EPA met with
the commenter and gathered additional
information on the use, which also
includes some use of chrysotile asbestos
sheet gaskets for steam systems in low
or no radiation areas at the nuclear
facility.
The comment stated that the use of
less durable, non-asbestos, gasket
material would require more frequent
gasket replacements, which in turn
increases the frequency of radiation
exposure for the workers who perform
this task in radioactive areas. In
addition, the comment indicated that
the protective clothing, gloves, and
respiratory equipment required to
minimize exposure to the radiological
hazards associated with the nuclear
material also protects workers in
radioactive areas from exposures to
chrysotile asbestos. At this facility, there
is also some use of asbestos gaskets in
low or no radiation areas, but removal
and replacement of asbestos gaskets is
performed in compliance with OSHA 29
CFR 1926.1101 (Class III work) at a
minimum. In addition, minimum
respiratory protection used by workers
for this task is a full-face air purifying
respirator with a P–100 (HEPA)
cartridge which has an APF of 50. In
high radiation areas, respirators with
APF of 1,000 or 10,000 are used,
depending on the protective suit
required.
In response to this comment, EPA
reached out to the Department of Energy
for additional information regarding any
ongoing use of chrysotile asbestos sheet
gaskets at its nuclear facilities and
confirmed that additional DOE nuclear
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facilities do still use such gaskets. EPA
received additional information on use
of chrysotile asbestos sheet gaskets in
the processing of nuclear material from
the Department of Energy during OMB
interagency review, regarding DOE
operations at its Savannah River Site.
DOE explained that chrysotile asbestos
sheet gaskets are used at SRS in the HCanyon, F and H Tank Farms, Defense
Waste Processing Facility, and at the
Savannah River National Laboratory.
DOE stated that the greatest impacts of
this rule would be on the operations of
H-Canyon; this facility is the sole
nuclear separations facility in the nation
and is integral to DOE’s mission to
safely dispose of nuclear materials from
across the DOE complex. H-Canyon is
used to help process certain materials
for disposition, such as spent nuclear
fuel—used fuel from nuclear reactors—
some of which contains highly enriched
uranium. DOE also explained that
asbestos gaskets provide the most robust
protection against potential leaks or
radiological contamination events, they
are the longest lasting material for these
environments, and they continue to be
the only usable gasket for some
specialized infrastructure. Further, SRS
was added to the National Priorities List
(NPL) on December 21, 1989, and the
site is subject to the SRS Federal
Facility Agreement (FFA) signed by
DOE, EPA, South Carolina Department
of Health and Environmental Control
(SCDHEC) in 1993 pursuant to Section
120 of CERCLA Section 120 and
Sections 3008(h) and 6001 of RCRA
(Ref. 21). Under the FFA, DOE, EPA
Region 4 and the SCDHEC have entered
into a 2022 High Level Waste Milestone
Agreement that specifies completion of
the liquid waste program at SRS by the
end of 2037 (Ref. 22). Even if a suitable
replacement could be identified for this
use of asbestos gaskets, DOE explained,
the time required to replace the asbestos
gaskets, incur an outage of waste
processing, and restart facilities would
result in a significant delay in the
completion of the liquid waste program.
Thus, EPA has determined that
compliance with a two or five year
prohibition on the use of chrysotile
asbestos sheet gaskets at SRS is not
practicable, and does not provide for a
reasonable transition period, as required
under TSCA section 6(d). Rather, in
order to provide SRS with a reasonable
transition period to move away from
asbestos gaskets without disruption of
its existing commitments to complete
the liquid waste program, EPA has
determined that 2037 is as soon as
practicable for the full implementation
of the ban on the use of chrysotile
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asbestos sheet gaskets in chemical
processing at SRS.
EPA also contacted the Nuclear
Energy Institute (NEI), which reported
that some commercial nuclear facilities
continue to use chrysotile asbestos sheet
gaskets, while many do not. NEI also
stated that its largest supplier of
specialty gaskets for nuclear
applications does not provide asbestos
gaskets. EPA spoke to the commenter’s
supplier of asbestos gaskets, who
informed EPA that, while there is
ongoing difficulty finding suitable
substitutes for asbestos in specific
nuclear applications, they have been
unable to find sources of asbestos cloth
to produce new asbestos gaskets and are
phasing out of this market.
Although the current workplace
controls described by the commenter,
Savannah River Nuclear Solutions,
potentially reduce the risk posed to
some workers, because the use of
chrysotile asbestos sheet gaskets in the
processing of nuclear material was first
identified to EPA by public comment
received after publication of the
proposed rule, which followed
publication of the Risk Evaluation, EPA
was unable to evaluate this industry’s
specific work practices in the Risk
Evaluation. Therefore, in the Risk
Evaluation, EPA does not present
information specific to risk to workers
and ONUs for the use of chrysotile
asbestos sheet gaskets in the processing
of nuclear material; however,
information received after the Risk
Evaluation describes the current
workplace controls for processing of
nuclear material and the related
challenges to transition to a substitute
material. EPA does not have sufficient
information to determine that
unreasonable risk can be eliminated
with PPE and current workplace
controls alone; therefore, a prohibition
is necessary to address the unreasonable
risk. In consideration of the information
received, EPA is providing additional
time for the use of chrysotile asbestoscontaining sheet gaskets for processing
nuclear material. Under the final rule,
persons may continue to manufacture
(including import), process and
distribute in commerce chrysotile
asbestos-containing sheets gaskets for
two years after the effective date of the
final rule and commercially use
chrysotile asbestos-containing sheet
gaskets for processing nuclear material
for five years after the effective date of
the final rule, and until the end of 2037
for the Savanah River Site.
Similar to the primary alternative
regulatory action described in the
proposed rule, to address worker
exposure to asbestos during this five-
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year period of commercial use, interim
workplace controls of chrysotile
asbestos exposures will be required for
the commercial use of sheet gaskets. In
the case of the chrysotile asbestoscontaining sheet gaskets used in the
processing of nuclear material, EPA is
incorporating the current worker
protection practices identified by the
commenter as part of the interim
controls for that use to reduce chrysotile
asbestos exposures until the prohibition
compliance date. This includes ongoing
compliance with the OSHA Asbestos
Safety and Health Regulations for
Construction (29 CFR 1926.1101) and
minimum respiratory protection of a
full-face air purifying respirator with a
P–100 (HEPA) cartridge with an APF of
50 for potentially exposed persons. A
respirator with an APF 50 is a higher
level of PPE than would be needed to
reduce worker exposure to below the
cancer benchmark for general sheet
gasket use (replacing gaskets) in the Risk
Evaluation for Asbestos, Part 1:
Chrysotile Asbestos (Ref. 1). However,
as discussed in section 2.3.2.1 of the
Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos, based on studies
investigating the performance of
respirators, some workers and ONUs
may have protection below the nominal
applied protection factor for respirator
use and would not be protected; EPA
would need additional information to
determine if the unreasonable risk can
be eliminated without a prohibition for
the use of asbestos gaskets in the
processing of nuclear material. The
commenter also requested an exemption
from the final rule since the asbestos
gaskets are integral to the safe operation
of the process. TSCA section 6(g)(2)
requires EPA to analyze the need for the
exemption, and to make public the
analysis and statement on how the
analysis was considered when
proposing an exemption under TSCA
section 6(g). EPA is considering a
separate action to provide a future timelimited exemption under TSCA section
6(g) for the processing of nuclear
material.
D. Other Conditions of Uses
EPA proposed to prohibit all persons
from the manufacture (including
import), processing, distribution in
commerce and commercial use of
chrysotile asbestos, including any
chrysotile asbestos-containing products
or articles, for commercial use of: (1)
Oilfield brake blocks; (2) Aftermarket
automotive brakes and linings; (3) Other
vehicle friction products; and (4) Other
gaskets, beginning 180 days after the
effective date of the final rule. Public
comments noted the difficulty in
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identifying asbestos components
previously installed in vehicles; that it
is not possible to tell by visual
inspection whether previously installed
aftermarket brake pads or shoes contain
asbestos, and that very few aftermarket
brake pads and shoes contain asbestos.
Without existing records, it may not be
possible to establish that a vehicle’s
brakes do not contain asbestos unless
they are replaced. This is also the
situation for other vehicle friction
products and gaskets in vehicles. Based
on this information, EPA is finalizing
the proposed prohibition, with
modifications to specify that any
aftermarket automotive brakes and
linings, and other gaskets which are
already installed and in use before the
prohibition is effective are not subject to
the distribution in commerce and
commercial use prohibitions. Allowing
the continued use of these installed
products for their useful life will not
increase repair and replacement worker
activity or related exposure or risk for
these uses.
EPA received similar comments
regarding the proposed prohibition on
the manufacturing (including
importing), processing, and distribution
in commerce of chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for
consumer use of aftermarket automotive
brakes and linings and other gaskets;
namely that it would be difficult to
determine if previously installed
components of a vehicle contain
asbestos, as it is not possible to tell by
visual inspection whether previously
installed aftermarket brake pads or
shoes contain asbestos or not. Therefore,
EPA is finalizing the proposed
prohibition, with modifications to
specify that any aftermarket automotive
brakes and linings, and other gaskets
which are already installed and in
consumer use by 180 days after the
effective date of the final rule are not
subject to this distribution in commerce
prohibition. This will permit the resale
of vehicles that contain alreadyinstalled asbestos brakes and linings, or
other gaskets. This prohibition does not
apply to the consumer use of any
aftermarket automotive brakes and
linings, and other gaskets, so it is not
necessary to modify the proposal to
permit the continued consumer use of
these asbestos-containing components,
including consumer use in vehicles that
may contain these components. This
modification will not increase repair
and replacement workers’ exposure or
risk for these uses.
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E. Recordkeeping
EPA is also finalizing modified
recordkeeping provisions. The
recordkeeping provisions included in
the proposed rule addressed retention of
disposal records. The final rule includes
additional recordkeeping requirements
to reflect additional provisions of the
final rule. Specifically, EPA’s final
recordkeeping provisions include
additional requirements to maintain
records regarding interim workplace
controls of chrysotile asbestos
exposures, as well as records of
certifications of compliance for the
chlor-alkali industry. Full description of
the recordkeeping requirements is in
Unit VI.F.
F. Definitions
In the final rule, EPA is adding
definitions in § 751.503 for ‘‘Authorized
person,’’ ‘‘Membrane technology,’’
‘‘Nuclear material,’’ ‘‘Regulated area,’’
and ‘‘Savannah River Site.’’ These new
definitions are being added to address
provisions that were not in the proposed
regulatory text, such as the interim
controls and phased-in compliance
dates for the chlor-alkali industry
prohibitions.
VI. Provisions of the Final Rule
This final rule sets certain restrictions
on the manufacture (including import),
processing, distribution in commerce,
and commercial use and disposal of
chrysotile asbestos to prevent
unreasonable risk of injury to health in
accordance with TSCA section 6(a), 15
U.S.C. 2605(a). Pursuant to TSCA
section 12(a)(2), this rule applies to
chrysotile asbestos even if being
manufactured, processed, or distributed
in commerce solely for export from the
United States because EPA has
determined that chrysotile asbestos
presents an unreasonable risk to health
within the United States or to the
environment of the United States.
A. Manufacturing, Processing,
Distribution in Commerce and
Commercial Use of Chrysotile Asbestos
Diaphragms in the Chlor-Alkali Industry
Provisions regulating the manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestos
diaphragms in the chlor-alkali industry
are specified in §§ 751.505 and 751.507.
As of the effective date of the final rule,
all persons are prohibited from the
manufacture (including import) of
chrysotile asbestos, including any
chrysotile asbestos-containing products
or articles, for diaphragms in the chloralkali industry. Additionally, beginning
five years after the effective date of the
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final rule, all persons are prohibited
from processing, distribution in
commerce and commercial use of
chrysotile asbestos for diaphragms in
the chlor-alkali industry, except as
provided in §§ 751.505(c) and (d).
Section 751.505(c) permits a person to
process, distribute in commerce and
commercially use chrysotile asbestos for
diaphragms in the chlor-alkali industry
at no more than two facilities until eight
years after the effective date of the final
rule, provided that: (1) On the effective
date, the person owns or operates more
than one facility that uses chrysotile
asbestos in chlor-alkali production; (2)
The person is converting more than one
facility that the person owns or operates
that, as of the effective date, uses
chrysotile asbestos in chlor-alkali
production from the use of chrysotile
asbestos diaphragms to non-chrysotile
asbestos membrane technology; (3) By
the date five years after the effective
date of the final rule, the person has
ceased all processing, distribution in
commerce and commercial use of
chrysotile asbestos at one (or more)
facility that is undergoing or has
undergone such conversion; and (4) The
person certifies to EPA compliance with
the provisions of the paragraph, in
accordance with certification provisions
in § 751.507.
Section 751.505(d) permits a person
who meets all of the criteria of that
paragraph to process, distribute in
commerce and commercially use
chrysotile asbestos for diaphragms in
the chlor-alkali industry at not more
than one facility until 12 years after the
effective date of the final rule, provided
that: (1) On the effective date of the final
rule, the person owns or operates more
than two facilities that use chrysotile
asbestos in chlor-alkali production; (2)
The person is converting more than two
facilities that the person owns or
operates that, as of the effective date of
the final rule, use chrysotile asbestos in
chlor-alkali production, from the use of
chrysotile asbestos diaphragms to nonchrysotile asbestos membrane
technology; (3) By five years after the
effective date of the final rule, the
person has ceased all processing,
distribution in commerce and
commercial use of chrysotile asbestos at
one (or more) facility that is undergoing
or has undergone such conversion, and
by eight years after the effective date of
the final rule, the person has ceased all
processing, distribution in commerce
and commercial use of chrysotile
asbestos at two (or more) facilities that
are undergoing or have undergone such
conversion; and (4) The person certifies
to EPA compliance with the provisions
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of the paragraph, in accordance with the
certification provisions of § 751.507.
B. Certification of Compliance for ChlorAlkali Industry
Requirements for certifications of
compliance for the chlor-alkali industry
are specified in § 751.507. A person who
processes, distributes in commerce or
commercially uses chrysotile asbestos
for diaphragms in the chlor-alkali
industry between five years and eight
years after the effective date of the final
rule must certify to EPA their
compliance with all requirements of
§ 751.505(c) and provide the following
information to EPA: (1) Identification of
the facility (or facilities) at which, by
five years after the effective date of the
final rule, the person has ceased all
processing, distribution in commerce
and commercial use of chrysotile
asbestos, including the facility name,
location, and mailing address; the name
of facility manager or other contact,
with title, phone number and email
address; and the date the person ceased
all processing, distribution in commerce
and commercial use of chrysotile
asbestos at the facility; and (2) The
identification of the one or two facilities
(no more than two facilities) at which
the person will after five years after the
effective date of the final rule, continue
to process, distribute in commerce and
commercially use chrysotile asbestos
diaphragms while the facility or
facilities are being converted to nonchrysotile asbestos membrane
technology, including for each facility,
the facility name, location, and mailing
address; and (3) The name of facility
manager or other contact, with title,
phone number and email address.
A person who processes, distributes
in commerce or commercially uses
chrysotile asbestos for diaphragms in
the chlor-alkali industry between 8 and
12 years after the effective date of the
final rule must certify to EPA their
compliance with all requirements of
§ 751.505(d) and provide the following
information to EPA: (1) Identification of
the facility at which the person has
ceased all processing, distribution in
commerce and commercial use of
chrysotile asbestos after five years after
the effective date of the final rule but no
later than eight years after the effective
date of the final rule, including the
facility name, location, and mailing
address; the name of facility manager or
other contact, with title, phone number
and email address; and the date the
person has ceased all processing,
distribution in commerce and
commercial use of chrysotile asbestos at
the facility; (2) The identification of the
facility at which the person will
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between eight years after the effective
date of the final rule and no later than
12 years after the effective date of the
final rule, continue to process,
distribute in commerce and
commercially use chrysotile asbestos
diaphragms while the facility is being
converted to non-chrysotile asbestos
membrane technology pursuant to
§ 751.505(d), including the facility
name, location, and mailing address;
and (3) The name of facility manager or
other contact, with title, phone number
and email address.
Such certification must be signed and
dated by a responsible corporate officer,
which means: a president, secretary,
treasurer, or vice-president of the
corporation in charge of chlor-alkali
operations, or any other person who
performs similar policy or decisionmaking functions for the corporation.
The certification must include the
statement:
‘‘I certify under penalty of law that this
document was prepared under my direction
or supervision, and the information is, to the
best of my knowledge and belief, true,
accurate, and complete. I am aware it is
unlawful to knowingly submit incomplete,
false and/or misleading information and
there are criminal penalties for such
conduct.’’
Certifications must be submitted to
the Director of the Office of Pollution
Prevention and Toxics in Washington,
DC, no later than 10 business days after
the date five years after the effective
date of the final rule, or 10 business
days after the date 8 years after the
effective date of the final rule, as
appropriate.
C. Other Prohibitions of, and
Restrictions on the Manufacturing,
Processing, Distribution in Commerce
and Commercial Use of Chrysotile
Asbestos
1. Prohibition on manufacture
(including import), processing,
distribution in commerce, and
commercial use of chrysotile asbestos
for chrysotile asbestos-containing sheet
gaskets in chemical production.
Provisions regulating the
manufacturing, processing, distribution
in commerce and commercial use of
chrysotile asbestos-containing sheet
gaskets in chemical production are
specified in § 751.509, specifically
paragraphs (a) through (c), of this rule.
Beginning two years after the effective
date of the final rule, all persons are
prohibited from manufacturing
(including importing), processing,
distributing in commerce, and
commercial use of chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for use
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in sheet gaskets for chemical
production, except as provided in
§ 751.509(b) and (c). However, any sheet
gaskets for chemical production which
are already installed and in use as of the
applicable compliance date, are not
subject to this distribution in commerce
and commercial use prohibition.
Section 751.509(b) allows the
commercial use of chrysotile asbestos
sheet gaskets for titanium dioxide
production past the general two-year
prohibition; any person may use
chrysotile asbestos sheet gaskets for
titanium dioxide production until five
years after the effective date of the final
rule. This provision only applies to
commercial use; manufacturing
(including import), processing and
distribution in commerce must cease
after two years, pursuant to § 751.509(a).
Section 751.509(c) allows the
commercial use of chrysotile asbestos
sheet gaskets for processing of nuclear
material past the general two-year
prohibition: any person who meets the
applicable criteria in the paragraph may
commercially use chrysotile asbestos
sheet gaskets for processing nuclear
material until five years after the
effective date of this final rule; at the
Department of Energy’s Savannah River
Site, use may continue until the end of
2037. This provision only applies to
commercial use; manufacturing
(including import), processing and
distribution in commerce must cease
after two years, pursuant to § 751.509(a).
Section 751.509(c) requires that,
beginning 180 days after the effective
date of the final rule, all persons
commercially using chrysotile asbestos
sheet gaskets for processing nuclear
material must have in place exposure
controls (i.e., engineering controls, work
practices, or a combination of both)
expected to reduce exposure of
potentially exposed persons to asbestos,
and provide potentially exposed
persons in the regulated area where
chrysotile asbestos sheet gasket
replacement is being performed with a
full-face air purifying respirator with a
P–100 (HEPA) cartridge (providing an
assigned protection factor of 50), or
other respirators that provide a similar
or higher level of protection to the
wearer.
EPA did not consider workplace
practices in the nuclear industry during
the development of the primary
alternative interim workplace controls
in the proposed rule, and EPA has
concerns about unintended
consequences were those controls to be
imposed for this specific use. In the case
of the processing of nuclear material,
EPA is not adopting an ECEL to avoid
imposing requirements that could
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increase asbestos air monitoring beyond
what is currently required under the
OSHA Asbestos Safety and Health
Regulations for Construction—(29 CFR
1926.1101). This is to ensure that this
final rule does not have the unintended
consequence of increasing persons
exposure to radiation from nuclear
material and the risk of any associated
health effects. Aside from additional
worker exposure to radiation that may
result from additional sample collection
activities (such as would be required
under interim workplace controls with
an ECEL under § 751.511), air sampling
in radioactive environments presents
special technical challenges: first, the
equipment used to collect samples may
become contaminated and unfit for
further use, and second, the collected
samples may be too radioactive for
laboratories to accept for analysis.
EPA expects that during the interim
period before the full-ban compliance
date, existing measures under the OSHA
asbestos standards, as well as
radiological control protocols under
Department of Energy regulations at 10
CFR part 835, will adequately mitigate
asbestos risk in relation to the cancer
benchmark. EPA notes that the OSHA
requirements clearly delineate a
regulated area in which the gasket
replacement work is occuring that has
strict access controls, while access is
further restricted to radioactive areas,
such that no one is permitted in the
workspace without full PPE, which
includes respirators of APF 50 or higher,
in accordance with industry practices.
Respirators with APF 50 is a higher
level of PPE than would be needed to
reduce exposure to workers below the
cancer benchmark as identified in the
TSCA risk evaluation for general sheet
gasket use (replacing gaskets). (Table 4–
19 in section 4.2.2.3. of the Risk
Evaluation for Asbestos, Part 1:
Chrysotile Asbestos). However, as
explained before, EPA also recognizes
that respirators are the least effective
means of ensuring worker protection in
the hierarchy of controls, particularly in
the case of protecting workers against
exposure to asbestos fiber inhalation. As
discussed in section 2.3.2.1 of the Risk
Evaluation for Asbestos, Part 1:
Chrysotile Asbestos, some workers may
have protection below the nominal
applied protection factor for respirator
use and would not be protected.
Therefore, while respirators with APF of
50 reduce exposures to workers, only a
prohibition on use ensures no
unreasonable risk. By requiring facilities
to continue using the current respiratory
protection with an assigned protection
factor of 50 or higher, EPA is reducing
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the risk to potentially exposed persons
from the unreasonable risk presented by
chrysotile asbestos while ensuring a
reasonable transition period until the
relevant prohibition goes into effect.
During the development of any future
TSCA section 6(g) exemption for this
specific use of chrysotile asbestos sheet
gaskets, should one be proposed, EPA
could give more consideration to the
need for a chrysotile asbestos
monitoring program beyond asbestos
monitoring that is already required by
OSHA under the Asbestos Safety and
Health Regulations for Construction at
29 CFR 1926.1101.
2. Prohibition on manufacture
(including import), processing,
distribution in commerce, and
commercial use of: chrysotile asbestoscontaining brake blocks in the oil
industry; aftermarket automotive
chrysotile asbestos-containing brakes/
linings; asbestos-containing vehicle
friction products; and other asbestoscontaining gaskets.
Provisions regulating the manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestoscontaining brake blocks in the oil
industry; aftermarket automotive
chrysotile asbestos-containing brakes/
linings; other asbestos-containing
vehicle friction products; and other
asbestos-containing gaskets are specified
in § 751.509(d). Beginning 180 days
after the effective date of the final rule,
all persons are prohibited from
manufacturing (including importing),
processing, distribution in commerce
and commercial use of chrysotile
asbestos, including any chrysotile
asbestos-containing products or articles,
for commercial use of: (1) Oilfield brake
blocks; (2) Aftermarket automotive
brakes and linings; (3) Other vehicle
friction products; and (4) Other gaskets.
However, any aftermarket automotive
brakes and linings, other vehicle friction
products and other gaskets which are
already installed and in use as of 180
days after the effective date of the final
rule, are not subject to this distribution
in commerce and commercial use
prohibition.
3. Prohibition on manufacture
(including import), processing, and
distribution in commerce for
aftermarket automotive chrysotile
asbestos-containing brakes/linings and
other asbestos-containing gaskets for
consumer use.
Provisions regulating the manufacture
(including import), processing, and
distribution in commerce for
aftermarket automotive chrysotile
asbestos-containing brakes/linings and
other asbestos-containing gaskets for
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consumer use are specified in
§ 751.509(e). Beginning 180 days after
the effective date of the final rule, all
persons are prohibited from the
manufacturing (including importing),
processing, and distribution in
commerce of chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for
consumer use of: aftermarket
automotive brakes and linings; and
other gaskets. However, any aftermarket
automotive brakes and linings, and
other gaskets which are already
installed and in consumer use as of 180
days after the effective date of the final
rule are not subject to this distribution
in commerce prohibition.
This prohibition does not apply to the
consumer use of any chrysotile asbestoscontaining aftermarket automotive
brakes and linings, and other gaskets.
EPA’s authority to regulate commercial
use under TSCA section 6(a)(5) does not
extend to consumer use of chemical
substances or mixtures. The prohibition
on the upstream manufacturing,
processing and distribution of chrysotile
asbestos aftermarket automotive brakes
and linings, and other gaskets for
consumer use will remove these
products from the consumer market and
over time eliminate their use as these
products wear out and are replaced, or
the vehicles in which they are
components are retired from use.
D. Interim Workplace Controls of
Chrysotile Asbestos Exposures
1. Overview
For most of the conditions of use
where, pursuant to this final rule, the
prohibition on processing and industrial
use will take effect in five or more years
after the effective date of this final rule,
EPA is requiring that owners or
operators comply with an eight-hour
existing chemical exposure limit
(ECEL), beginning six months after the
effective date of the final rule.
Specifically, this requirement applies to
the following conditions of use: (1)
Processing and industrial use of
chrysotile asbestos in bulk form or as
part of chrysotile asbestos diaphragms
used in the chlor-alkali industry; and (2)
Industrial use of chrysotile asbestos
sheet gaskets for titanium dioxide
production. Once a facility has
completed the phase-out of chrysotile
asbestos and no longer uses chrysotile
asbestos in their operations, the interim
requirements no longer apply.
EPA uses the term ‘‘potentially
exposed person’’ in this Unit and in the
regulatory text to include workers,
occupational non-users, employees,
independent contractors, employers,
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and all other persons in the work area
where chrysotile asbestos is present and
who may be exposed to chrysotile
asbestos under the conditions of use for
which these interim workplace controls
apply. EPA’s intention is to require
interim workplace controls that address
the unreasonable risk from chrysotile
asbestos to workers directly handling
the chemical or in the area where the
chemical is being used until the relevant
prohibitions go into effect. The 2020
Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos did not distinguish
between employers, contractors, or
other legal entities or businesses that
manufacture, process, distribute in
commerce, use, or dispose of chrysotile
asbestos. For this reason, EPA uses the
term ‘‘owner or operator’’ to describe
the entity responsible for implementing
the interim workplace controls in any
workplace where an applicable
condition of use described in Units
III.B.2.a. and III.B.2.b. and subject to the
interim workplace controls is occurring.
The term includes any person who
owns, leases, operates, controls, or
supervises such a workplace. EPA has
proposed to amend 40 CFR 751.5 to add
a definition of ‘‘owner or operator’’
consistent with this description as part
of its proposed TSCA section 6(a) rules
to regulate methylene chloride (88 FR
28284) and perchloroethylene (88 FR
39652). In this final rule, EPA is using
the same definition of ‘‘owner or
operator’’ to apply to where it appears
in the regulatory text for chrysotile
asbestos.
As mentioned in the proposed rule
(87 FR 21706), TSCA risk management
requirements could incorporate and
reinforce requirements in OSHA
standards. For chrysotile asbestos,
EPA’s approach for interim controls
seeks to align, to the extent possible,
with certain elements of the existing
OSHA standard for regulating asbestos
under 29 CFR 1910.1001 and 29 CFR
1926.1101. The OSHA PEL and
ancillary requirements have established
a long-standing precedent for exposure
limit threshold requirements within the
regulated community. However, EPA is
applying a lower, more protective
exposure limit or ECEL derived from the
TSCA 2020 Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos.
However, in this final rule, EPA is not
establishing medical surveillance
requirements based on the ECEL to align
with those under 29 CFR 1910.1001.
Companies must continue to follow the
medical surveillance requirements
established by OSHA at 0.1 fiber per
cubic centimeter of air as an eight (8)-
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hour time-weighted average (TWA)
level.
This unit includes a summary of the
interim controls, including a description
of the ECEL; and the implementation
requirements such as monitoring and
notification requirements; regulated
area; exposure control plan; respiratory
protection; and additional requirements
for workplace information and training.
The recordkeeping associated with the
interim controls is included under the
recordkeeping requirements (Unit VI.F).
This Unit also describes compliance
timeframes for these requirements.
2. Existing Chemical Exposure Limit
(ECEL)
EPA calculated the ECEL to be 0.005
fibers (f)/cubic centimeter (cc), for
inhalation exposure to chrysotile
asbestos as an eight-hour time-weighted
average (TWA) for use in workplace
settings based on incidence of lung
cancer, mesothelioma and other cancers.
(Ref. 23).
As part of the primary regulatory
alternative included in the proposed
rule (87 FR 21706), EPA considered an
ECEL-action level of 0.0025 f/cc as an
eight-hour TWA, which would initiate
certain required activities such as more
frequent periodic monitoring of
exposures to chrysotile asbestos.
However, as discussed above in Unit
V.B., after public comments regarding
the difficulties of measuring asbestos at
such low concentrations, EPA has
decided not to finalize an ECEL-action
level in this final rule. Instead, EPA is
finalizing more frequent periodic
monitoring requirements when
exposure monitoring shows levels
below the ECEL than those that were
described in the primary regulatory
alternative in the proposed rule. In the
proposed rule, periodic exposure
monitoring results below the ECEL but
above the ECEL action-level would
trigger an increase in periodic exposure
monitoring to every six months. Due to
the difficulties expressed in public
comments of effectively measuring
asbestos to the ECEL action level and to
be health protective in the absence of
reliable test results to the ECEL action
level, the final rule will require periodic
monitoring every six months when
measurements are at or below the ECEL
and periodic monitoring every three
months when the ECEL is exceeded.
Commenters also expressed concerns
with being able to effectively measure
asbestos to the ECEL, citing
complicating factors such analytical
limitations, sample equipment,
contributions from background sources,
and typical worker task exposure
scenarios. While EPA in this final rule
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will not include an ECEL action level
due to the analytical concerns raised in
public comment, EPA believes that
current analytical methods and modern
air sampling equipment allow for air
monitoring with a detection limit that
allows for comparison with the ECEL
level, and the feasibility of the ECEL
level is further demonstrated through
the personal air monitoring data
submitted to EPA by the chlor-alkali
industry. However, for scenarios in
which a sufficient limit of detection
cannot be achieved for comparison to
the ECEL, owners and operators may
elect to use increased respiratory
protection with an appropriate Assigned
Protection Factor (APF) to demonstrate
compliance with the ECEL as an interim
workplace control, discussed more in
Unit VI.D.6.
In addition, in the proposed rule, EPA
indicated that implementation of an
ECEL would require time and resources
and therefore did not propose to include
it for the two-year period prior to the
proposed prohibition date. However,
since this final rule’s prohibition dates
for the processing and industrial use of
chrysotile asbestos in bulk form or as
part of chrysotile asbestos diaphragms
used in the chlor-alkali industry and
processing and industrial use of
chrysotile asbestos-containing sheet
gaskets for titanium dioxide production
are at least five years, or potentially
longer for certain entities meeting EPA’s
requirements, EPA finds it necessary to
issue interim controls to reduce worker
exposures for the period prior to the
prohibition taking effect. As part of an
interim control measure, requirements
to implement the ECEL start six months
after the effective date of the rule.
Specifically, owners or operators are
required to ensure that no person in the
workplace is exposed to an airborne
concentration of chrysotile asbestos in
excess of 0.005 f/cc as an eight-hour
TWA beginning six months after the
effective date of the final rule. EPA is
also requiring owners or operators to
comply with additional requirements
that are needed to ensure successful
implementation of the ECEL.
3. Monitoring
Monitoring requirements are a key
component of implementing EPA’s
interim workplace controls. Initial
monitoring for chrysotile asbestos is
critical for establishing a baseline of
exposure for potentially exposed
persons; similarly, periodic exposure
monitoring assures continued
compliance over time so that potentially
exposed persons are not exposed to
levels above the ECEL. In some cases, a
change in workplace conditions with
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the potential to impact exposure levels
would warrant additional monitoring,
which is also described.
EPA is requiring that owners or
operators determine the 8-hour TWA
exposure of each potentially exposed
person’s exposure by taking one or more
personal breathing zone air samples that
are representative of the full-shift
exposures for each potentially exposed
person in each job classification in each
work area. These requirements are a
modification of the requirements
described in the proposed regulation,
which allowed for sampling only some
of the potentially exposed persons. The
requirements in this final rule align
with the approach taken for
characterization of employee exposure
in the OSHA standard for asbestos (see
29 CFR 1910.1001(d)(1)(i) and (ii)) and
allow for multiple samples to fully
represent the exposures during a full
shift, based on the job classification in
each work area of the potentially
exposed person.
Exposure samples must be analyzed
using analytical methods described in
Appendix A to 29 CFR 1910.1001, or as
referenced in Appendix A to 29 CFR
1910.1001 (Appendix B to 29 CFR
1910.1001, OSHA method ID–160, or
the NIOSH 7400 method). In the
proposed rule, the primary regulatory
alternative would have required use of
a laboratory that complies with the
Good Laboratory Practice Standards in
40 CFR part 792; however, in this final
rule, and based on public comment,
EPA is aligning the laboratory quality
standards with the OSHA general
asbestos standard. The OSHA method
ID–160 and NIOSH 7400 analytical
methods are the required methods in the
OSHA general asbestos standard at 29
CFR 1910.1001 and the OSHA asbestos
construction standard at 29 CFR
1926.1101. In addition, 29 CFR
1910.1001 Appendix A includes the
quality control procedures that must be
implemented by laboratories performing
the analysis. Owners and operators
subject to this final rule are already
familiar with the use of these methods
since they are used to comply with the
OSHA asbestos standards. By
incorporating the use of these standards
in this final rule, EPA is aligning with
existing analytical practice.
In the event that the owner or
operator needs to use an equivalent
method to the OSHA reference method,
EPA also is allowing use of such
equivalent method if the owner or
operator ensures the equivalency of the
method by ensuring that replicate
exposure data used to establish
equivalency are collected in side-byside field and laboratory comparisons,
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and the comparison indicates that 90%
of the samples collected in the range 0.5
to 2 times the ECEL have an accuracy
range of plus or minus 25% of the
OSHA reference method at 95%
confidence level as demonstrated by a
statistically valid protocol. These
requirements align with the approach
taken in the OSHA standard for asbestos
(see 29 CFR 1910.1001(d)(6)(ii) and
(iii)).
In addition, and as supported by
commentors, the NIOSH 7402 analytical
method may be applied to adjust the
analytical result to include only
chrysotile asbestos. PCM analysis does
not differentiate between asbestos and
other fibers. The NIOSH 7402 analytical
method uses a TEM microscope to
determine the fraction of fibers that are
asbestos from a filter prepared and
analyzed following NIOSH 7400. To
ensure consistency across both methods,
airborne fibers analyzed using TEM
under the NIOSH 7402 analytical
method align with those specified in the
NIOSH 7400 PCM method. The NIOSH
7402 method is not designed for the
quantification of the air concentration of
asbestos fibers and therefore should be
used in conjunction with NIOSH 7400
under this final rule for asbestos fiber
identification.
a. Initial exposure monitoring.
In this final rule, each owner or
operator of a facility engaged in one or
more of the conditions of use listed
earlier in Unit VI.D.1. is required to
perform initial exposure monitoring no
later than 180 days after the effective
date of the final rule to determine the
extent of exposure of potentially
exposed persons to chrysotile asbestos.
Initial monitoring will notify owners
and operators of the magnitude of
possible exposures to potentially
exposed persons with respect to their
work conditions and environments.
Based on the magnitude of possible
exposures in the initial exposure
monitoring, the owner or operator may
need to increase the frequency of future
periodic monitoring, and/or adopt new
exposure controls (such as engineering
controls, administrative controls, and/or
a respiratory protection program).
In the primary regulatory alternative
included as part of the proposed
regulation, EPA stated that if the
regulated entity had existing monitoring
data less than five years old that
followed the initial exposure monitoring
criteria described in the preamble to the
proposed rule, and where a process
change was not implicated, the owner or
operator could choose to use this
existing data as the initial exposure
monitoring instead of conducting initial
exposure monitoring. However, given
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the lower exposure limit set by the
ECEL compared to the current
monitoring practices, and given the
expected changes at the chlor-alkali and
chemical production facilities
transitioning to non-asbestos
technologies, EPA has decided to
require all owners or operators to
conduct new initial monitoring. Owners
and operators may not use data
collected before the publication of this
final rule to comply with the initial
monitoring requirement.
b. Periodic exposure monitoring.
EPA’s final rule is aligned with
elements of the existing OSHA asbestos
standard (29 CFR 1910.1001(d)(3)
through (5)) to the extent possible.
Based on the results from the initial
exposure monitoring, or the most recent
monitoring, EPA is requiring the
following periodic monitoring for
owners or operators:
• If one or more samples representing
full-shift exposures from the most recent
exposure monitoring exceeds the ECEL
(>0.005 f/cc 8-hour TWA), periodic
exposure monitoring will be required
within three months of the most recent
exposure monitoring.
• Otherwise, periodic exposure
monitoring will be required within six
months of the most recent exposure
monitoring.
In the primary alternative regulatory
action described in the proposed rule,
EPA based the exposure monitoring
frequency on both the ECEL-action level
and the ECEL. However, since EPA is
not finalizing an ECEL action level due
to the comments received regarding
effectively measuring asbestos to the
ECEL action level, the exposure
monitoring frequency under the final
rule is based only on the comparison of
the monitoring results with the ECEL.
Because EPA is not finalizing an ECEL
action level, the final rule requires
owners and operators to conduct
periodic exposure monitoring every six
months if the most recent exposure
monitoring indicates airborne exposure
is at or below the ECEL. This exposure
monitoring frequency is consistent with
the exposure monitoring described in
the primary alternative regulatory action
in the proposed rule associated with
exposure monitoring results revealing a
concentration of chrysotile asbestos
above the ECEL action level but at or
below the ECEL. Further, since EPA is
not finalizing an ECEL action level, EPA
could not finalize an option to terminate
exposure monitoring if all samples
taken during initial exposure
monitoring were at or below the ECEL
action level, as was described in the
primary regulatory alternative action
described in the proposed rule.
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In addition, under the primary
regulatory alternative described in the
proposed regulation, if an owner or
operator did not use chrysotile asbestos
during an exposure monitoring period,
the owner or operator would not need
to conduct exposure monitoring until
the next exposure monitoring period.
Further, the proposed primary
regulatory alternative provided that an
owner or operator had to conduct
exposure monitoring at minimum every
five years. However, EPA expects
continued use of chrysotile asbestos in
the limited number of conditions of use
subject to the interim workplace control
requirements and, as discussed above, is
requiring all persons engaged in these
conditions of use to conduct exposure
monitoring at least every six months.
EPA has therefore concluded there is no
need to include provisions in the final
rule to suspend monitoring or conduct
monitoring only every five years.
c. Additional exposure monitoring.
In addition to initial and periodic
monitoring, EPA is requiring that the
owner or operator complying with the
interim workplace controls carry out
additional exposure monitoring
(analogous to those requirements
outlined in 29 CFR 1910.1001(d)(5))
after any changes in production,
process, control equipment, personnel,
or work practices that may reasonably
be anticipated to result in new or
additional exposures above the ECEL, or
when the owner or operator has any
reason to suspect that the change may
result in new or additional exposures
above the ECEL. This additional
exposure monitoring event may result in
an increased frequency of periodic
monitoring. The required additional
exposure monitoring should be
conducted within a reasonable
timeframe after there has been a change
to ensure that it is representative of the
new procedures. In cases of
malfunctions and other incidents, the
monitoring should not delay
implementation of any necessary
corrective actions to restore
malfunctioning processes, necessary
emergency response, cleanup or other
remedial action to reduce the exposures
to potentially exposed persons.
d. Notification of exposure monitoring
results.
In this final rule, EPA is requiring that
the owner or operator must, within 15
working days after receipt of the results
of any exposure monitoring, notify each
potentially exposed person in writing,
either individually to each potentially
exposed person or by posting the
information in an appropriate and
accessible location, such as public
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spaces or common areas, consistent
with 29 CFR 1910.1001(d)(7).
The notification is required to include
a description of any action taken by the
owner or operator to reduce inhalation
exposures to or below the ECEL or refer
to a document available to the
potentially exposed persons which
identifies the actions to be taken to
reduce exposures. For example, the
owner or operator may notify a worker
(or other potentially exposed person) of
the results as follows: ‘‘Based on the
monitoring conducted on [date], the
exposure to chrysotile asbestos by
workers installing gaskets was [0.03 f/
cc]. This concentration is above the
limit set by EPA of 0.005 f/cc as an 8hour time weighted average to protect
workers, and therefore the company is
requiring use of half-mask supplied-air
respirator (SAR), or airline respirator
operated in a demand mode to ensure
exposure prevention. Workers can
access the exposure control plans,
exposure monitoring records, and
respiratory program implementation
and documentation at the office during
regular business hours.’’
4. Regulated Areas
Analogous to the OSHA Standard (29
CFR 1910.1001(e)), EPA is requiring that
6 months after the effective date of the
rule, the owner or operator demarcate
any area where airborne concentrations
of chrysotile asbestos are reasonably
expected to exceed the ECEL. This
regulated area must be demarcated in a
manner that minimizes the number of
persons who will be exposed to
chrysotile asbestos, e.g., establishing
boundaries for the area, using highly
visible signifiers, in multiple languages
as appropriate, placed in conspicuous
areas to clearly mark the boundary of
such regulated area. The owner or
operator is required to restrict access to
the regulated area only to those
authorized to enter.
EPA is also requiring that the owner
or operator must supply a respirator that
complies with the requirements
described in Unit VI.D.6.5. and ensure
that all persons within the regulated
area are using the provided respirators
whenever chrysotile asbestos exposures
may exceed the ECEL. Finally, the
owner or operator must ensure that,
within a regulated area, persons do not
engage in non-work activities which
may increase chrysotile asbestos
exposure, such as eating, drinking,
smoking, chewing tobacco or gum, or
applying cosmetics.
5. Exposure Control Plan
EPA recommends and encourages the
use of pollution prevention as a means
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of controlling exposures whenever
practicable. Pollution prevention, also
known as source reduction, is any
practice that reduces, eliminates, or
prevents pollution at its source (e.g.,
elimination and substitution), as
described in the hierarchy of controls.
In the proposed rule (87 FR 21706),
EPA’s primary alternative regulatory
action included a requirement to
document efforts to implement the
hierarchy of controls, specifically, the
use of elimination and substitution,
followed by the use of engineering
controls, administrative controls, or
work practices prior to requiring the use
of respirators as a means of controlling
inhalation exposures to chrysotile
asbestos below EPA’s ECEL. In this final
rule, EPA recognizes that the owners
and operators subject to the
requirements are already taking steps to
eliminate the use of chrysotile asbestos,
and therefore the requirement in this
final rule is to institute and maintain
engineering controls and work practices
that reduce chrysotile asbestos to or
below the ECEL. When the engineering
controls and work practices (such as
clean-up of accumulated asbestos)
cannot reduce chrysotile asbestos
exposures to or below the ECEL, owners
and operators are required to reduce
chrysotile asbestos exposures to the
lowest level achievable by these
controls and supplement them using
respiratory protection. The respirators
must be supplied in accordance with
the requirements outlined in Unit
VI.D.6.
The final requirements state that, as of
one year after the effective date of the
final rule, an owner or operator subject
to the interim workplace control
requirements has to demonstrate the
consideration of engineering controls
and/or work practices to reduce the
airborne chrysotile asbestos
concentrations to the lowest levels
achievable. If the resulting chrysotile
asbestos concentrations are not at or
below the ECEL, adequate respiratory
protection must be given to potentially
exposed persons, in accordance with
Unit VI.D.6. Owners or operators must
not implement a schedule of personnel
rotation as a means of compliance with
the ECEL. Finally, owners and operators
must document their exposure control
strategy in an exposure control plan.
The exposure control plan must be
reviewed and updated as necessary, but
at least annually, to reflect any
significant changes in the approach
taken to reduce the chrysotile asbestos
airborne concentrations.
Similar to the primary regulatory
alternative described in the proposed
rule, in this final rule EPA is requiring
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that owners or operators document their
efforts in an exposure control plan.
Such plan could be part of any existing
documentation of the facility’s safety
and health program developed as part of
meeting OSHA requirements or other
safety and health standards. EPA is
requiring that the owner or operator
document in the exposure control plan
the following:
• Identification of all engineering and
work practices or administrative
controls that were considered.
• For each engineering and
administrative control identified, a
rationale for why the control was
selected or not selected, based on
feasibility, effectiveness, and other
relevant considerations;
• Any actions the owner or operator
must take to implement the engineering
and administrative controls selected,
including proper installation,
maintenance, training or other steps
taken. In addition, the owner or operator
must indicate the estimated timeline for
implementing the controls selected.
• Descriptions of the activities
conducted by the owner or operator
during the review and annual update of
the exposure control plan to ensure
effectiveness of the exposure controls,
identify any necessary updates to the
exposure controls, and confirm that all
persons are implementing the exposure
controls correctly. These activities could
consist of regular inspections or other
type of evaluations of the exposure
controls; and
• Description of procedures for
responding to any change that may
reasonably be expected to introduce
additional exposures of chrysotile
asbestos or result in increased exposures
to chrysotile asbestos. The plan should
also describe the corrective actions
taken to mitigate the exposures to
chrysotile asbestos.
6. Respiratory Protection
a. In general.
Six months after the effective date of
this rule, EPA is requiring owners or
operators to supply a respirator selected
in accordance with the requirements of
this Unit and ensure that all potentially
exposed persons are using the provided
respirators whenever chrysotile asbestos
exposures exceed or can reasonably be
expected to exceed the ECEL. EPA’s
requirements are compatible with
OSHA’s Respiratory Protection standard
at 29 CFR 1910.134, and the respiratory
protection provision of the OSHA
Asbestos standard for general industry
at 29 CFR 1910.1001(g).
In this final rule, EPA is requiring that
owners or operators must provide,
ensure use of, and maintain (in a
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sanitary, reliable, and undamaged
condition) respirators that are of safe
design and construction for the work to
be performed. These requirements are
consistent with the requirements of 29
CFR 1910.134(g) through (j), 1910.134
App. B–1 to B–2. Owners and operators
must select respirators that properly fit
each affected person and communicate
respirator selections to each affected
person. These requirements are
consistent with the requirements of 29
CFR 1910.134(f), 1910.134 App. A.
EPA is also requiring that owners and
operators provide training in accordance
with 29 CFR 1910.134(k) to all persons
required to use respirators prior to or at
the time of initial assignment to a job
involving potential exposure to
chrysotile asbestos. Such training must
be repeatedly at least annually or
whenever the owner or operator has
reason to believe that a previously
trained person does not have the
required understanding and skill to
properly use the respirator, or when
changes in the workplace or in the
required respirator render the previous
training obsolete.
b. Respirator selection.
EPA is requiring that owners and
operators select and provide all
potentially exposed persons with
respirators, based on the most recent
monitoring results. The following
represents the minimum respiratory
protection that must be provided based
on the most recent monitoring results,
such that any respirator affording the
same or higher degree of protection than
the following requirements may be
used.
• If the most recent exposure
monitoring indicates that the exposure
concentration is at or below 0.005 f/cc
(the ECEL): no respiratory protection is
required.
• If the most recent exposure
monitoring indicates that the exposure
concentration is above 0.005 f/cc (the
ECEL) and less than or equal to 0.05 f/
cc (10 times the ECEL): (i) a half-mask
supplied-air respirator (SAR) or airline
respirator operated in demand mode; or
(ii) a half-mask self-contained breathing
apparatus (SCBA) respirator operated in
demand mode (APF 10).
• If the most recent exposure
monitoring indicates that the exposure
concentration is above 0.05 f/cc (10
times the ECEL) and less than or equal
to 0.125 f/cc (25 times the ECEL): a
loose fitting facepiece supplied-air
respirator (SAR) or airline respirator
operated in continuous flow mode (APF
25).
• If the most recent exposure
monitoring indicates that the exposure
concentration is above 0.125 f/cc (25
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times the ECEL) and less than or equal
to 0.25 f/cc (50 times the ECEL): (i) a full
facepiece supplied-air respirator (SAR)
or airline respirator operated in demand
mode; or (ii) a half-mask supplied-air
respirator (SAR) or airline respirator
operated in continuous flow mode; or
(iii) a half-mask supplied-air respirator
(SAR) or airline respirator operated in
pressure-demand or other positivepressure mode; or (iv) a full facepiece
self-contained breathing apparatus
(SCBA) respirator operated in demand
mode; or (v) a helmet/hood selfcontained breathing apparatus (SCBA)
respirator operated in demand mode
(APF 50).
• If the most recent exposure
monitoring indicates that the exposure
concentration is above 0.25 f/cc (50
times the ECEL) and less than or equal
to 5 f/cc (1,000 times the ECEL): a fullfacepiece supplied-air respirator (SAR)
or airline respirator operated in
pressure-demand or other positivepressure mode (APF 1,000).
• If the most recent exposure
monitoring indicates that the exposure
concentration is above 5 f/cc (1,000
times the ECEL) and less than or equal
to 50 f/cc (10,000 times the ECEL): (i) a
full-facepiece self-contained breathing
apparatus (SCBA) respirator operated in
pressure-demand or other positivepressure mode; or (ii) a helmet/hood
self-contained breathing apparatus
(SCBA) respirator operated in pressuredemand or other positive-pressure mode
(APF 10,000).
The respirator requirements have
been updated from the primary
regulatory alternative described in the
proposed regulation to make them
compatible with the OSHA’s Asbestos
standard for general industry at 29 CFR
1910.1001(g)(2)(i). The respiratory
protection requirements in this final
rule represent the minimum respiratory
protection requirements; therefore,
owners or operators may provide
respirators affording a higher degree of
protection than the required respirator.
However, in situations where a
sufficient limit of detection cannot be
reached for comparison to the ECEL,
owners and operators may elect to use
the lowest measurable concentration
possible as their basis for the selection
of the respirators, and use an increased
respiratory protection with an
appropriate APF to demonstrate
compliance with the ECEL as an interim
control measure. For example, if the
lowest measurable concentration
possible is 0.1 f/cc, then, the owner or
operator should assume that the
measured exposure concentration is
above 0.05 f/cc and less than or equal
to 0.125 f/cc or 25 times the ECEL, and
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provide a loose fitting facepiece
supplied-air respirator (SAR) or airline
respirator in continuous flow mode.
7. Workplace Information and Training
In the proposed rule primary
regulatory alternative (87 FR 21706),
EPA described requirements to ensure
worker participation. In this final rule,
EPA is requiring specific information to
be provided to potentially exposed
persons and associated training to
ensure that potentially exposed persons
are taking the necessary steps to reduce
exposure to chrysotile asbestos.
Six months after the effective date of
the final rule EPA is requiring that
owners or operators provide information
and training for each person prior to or
at the time of potential exposure to
chrysotile asbestos and repeat the
training annually. The information and
training must be presented in a manner
that is understandable to each person
required to be trained.
In this final rule, EPA is requiring that
the information and training that must
be provided to all persons potentially
exposed to chrysotile asbestos is based
on the most recent public information
available from EPA, OSHA, NIOSH,
and/or CDC, and include:
• The health effects associated with
exposure to chrysotile asbestos;
• The quantity, location, manner of
use, release, and storage of chrysotile
asbestos and the specific operations in
the workplace that could result in
exposure to chrysotile asbestos,
particularly noting where each regulated
area is located;
• The specific procedures
implemented by the owner or operator
to protect persons potentially exposed
to chrysotile asbestos, such as
engineering controls, work practices and
personal protective equipment to be
used; and
• The requirements associated with
the interim controls, as described in
Unit VI.D., as well as how to access or
obtain a copy of these regulations in the
workplace.
The training must be conducted as
necessary to ensure that each person
maintains understanding of the
principles of safe use and handling of
chrysotile asbestos in the workplace, but
at minimum, the training must be given
annually. The owner or operator will
need to develop a training program that
is conducted in a manner that allows
each person potentially exposed to
understand the information, in an
understandable manner (i.e., plain
language) and in multiple languages as
appropriate (e.g., based on languages
spoken by potentially exposed persons).
The owner or operator would consider
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factors such as the skills required to
perform the work activity, the existing
skill level of the staff performing the
work. Finally, whenever there are
changes in the workplace, such as
modification of tasks or procedures, or
institution of new tasks or procedures,
or when airborne concentrations of
chrysotile asbestos increase, or when
the exposure control plan has been
updated according to Unit VI.D.5, the
owner or operator must update the
training to reflect any additional steps
that are needed to maintain the
procedures implemented to reduce
exposures to chrysotile asbestos in the
workplace, and re-train each potentially
exposed person.
E. Disposal
EPA is finalizing the disposal
provisions in the proposed rule without
significant changes. These disposal
provisions at § 751.513 cross reference
existing EPA and OSHA regulations that
address asbestos-containing waste
disposal. By following these existing
regulations, worker and ONU exposure
to chrysotile asbestos during disposal
can be prevented. For this rule, EPA is
requiring that for the chrysotile asbestos
diaphragm condition of use, as well as
oilfield brake blocks, other vehicle
friction products, and any commercial
use of other gaskets and aftermarket
automotive brakes and linings
conditions of use, regulated entities
must adhere to waste disposal
requirements described in OSHA’s
Asbestos General Industry Standard in
29 CFR 1910.1001, including
1910.1001(k)(6), which requires waste,
scrap, debris, bags, containers,
equipment, and clothing contaminated
with asbestos that are consigned for
disposal to be disposed of in sealed
impermeable bags or other closed,
impermeable containers. For the
chrysotile asbestos sheet gaskets in
chemical production condition of use,
regulated entities must adhere to waste
disposal requirements described in
OSHA’s Asbestos Safety and Health
Regulations for Construction in 29 CFR
1926.1101.
Additionally, for the chrysotile
asbestos diaphragm condition of use, as
well as oilfield brake blocks, other
vehicle friction products, and any
commercial use of other gaskets and
aftermarket automotive brakes and
linings, EPA is cross-referencing the
disposal requirements of Asbestos
National Emission Standards for
Hazardous Air Pollutants (NESHAP) (40
CFR part 61, subpart M) at 40 CFR
61.150. The asbestos NESHAP reduces
exposure to airborne asbestos by
generally requiring sealing of asbestos-
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containing waste material from
regulated activities in a leak-tight
container and disposing of it in a
landfill permitted to receive asbestos
waste. EPA is not cross-referencing this
same NESHAP waste disposal provision
for the disposal of chrysotile asbestoscontaining waste from sheet gasket
processing and use because EPA did not
find unreasonable risk for the disposal
of sheet gaskets.
EPA is also requiring that each
manufacturer (including importer),
processor, and distributor of chrysotile
asbestos, including as part of products
and articles, for consumer uses subject
to this proposed regulation, dispose of
regulated products and articles in
accordance with specified disposal
provisions. These consumer uses are
aftermarket automotive brakes and
linings, and other gaskets. These
consumer use supply chain disposal
requirements are consistent with those
for disposers of aftermarket automotive
brakes and linings, and other gaskets,
intended for commercial use. EPA does
not generally have TSCA section 6(a)
authority to directly regulate consumer
use and disposal, but under TSCA
section 6(a) EPA may nonetheless
regulate the disposal activity of
suppliers of these products, including
importers, wholesalers and retailers of
asbestos-containing aftermarket
automotive brakes and linings, and
other gaskets.
The disposal requirements at
§ 751.513 will take effect 180 days after
the effective date of the final rule, as
was proposed.
F. Recordkeeping
This final rule establishes
recordkeeping provisions. A general
records provision at § 751.515(a) of the
final rule, requires that, beginning 180
days after the effective date of the final
rule, all persons who manufacture
(including import), process, or
distribute in commerce or engage in
industrial or commercial use of
chrysotile asbestos must maintain
ordinary business records, such as
invoices and bills-of-lading related to
compliance with the prohibitions,
restrictions, and other provisions of this
rulemaking and must make them
available to EPA for inspection.
Section 751.515(b) of the final rule
addresses recordkeeping for
certifications of compliance for the
chlor-alkali industry required under
§ 751.507 of the rule: persons must
retain records for five years to
substantiate certifications required
under that provision and must make
them available to EPA for inspection.
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Section 751.515(c) of the final rule
requires retention of records for interim
workplace controls of chrysotile
asbestos exposures. For each monitoring
event, owners or operators subject to the
exposure monitoring provisions of
§ 751.511(c) must document and retain
records of:
(1) The dates, duration, and results of
each sample taken;
(2) The quantity, location(s) and
manner of chrysotile asbestos use at the
time of each monitoring event;
(3) All measurements that may be
necessary to determine the sampling
conditions that may have affected the
monitoring results, such as humidity or
ventilation rates, based on the expertise
of the person conducting the sampling;
(4) The name, address, work shift, job
classification, work area, and type of
respiratory protection (if any) of each
person monitored;
(5) Sampling and analytical methods
used and compliance with the Good
Laboratory Practice Standards or
laboratory quality standards required
under the OSHA general asbestos
standard described in § 751.511(c)(5)(i);
and
(6) Notification of monitoring results
as required by § 751.511(c)(6).
Additionally, § 751.515(c) of the final
rule requires that owners or operators
subject to the interim workplace
controls described in § 751.511 must
retain records of:
(1) The exposure control plan and its
implementation as required by
§ 751.511(e), which must be available to
persons exposed to chrysotile asbestos;
(2) Respiratory protection used and
program implementation as described in
§ 751.511(f); and
(3) Information and training provided
by the owner or operator as required by
§ 751.511(g).
Section 751.515(d) of the final rule
requires the retention of disposal
records. It specifies that each person,
except a consumer, who disposes of any
chrysotile asbestos and any chrysotile
asbestos-containing products or articles
subject to § 751.513, beginning 180 days
after the effective date of the final rule,
must retain in one location at the
headquarters of the company, or at the
facility for which the records were
generated: any records related to any
disposal of chrysotile asbestos and any
chrysotile asbestos-containing products
or articles generated pursuant to, or
otherwise documenting compliance
with, regulations specified in § 751.513.
All records under this rule must be
retained for five years from the date of
generation.
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VII. Other TSCA Considerations
A. Primary Alternative Regulatory
Actions Considered
Pursuant to TSCA section 6(c)(2)(A),
EPA considered the cost and benefits
and the cost effectiveness of the final
regulatory action and one or more
primary alternative regulatory actions.
EPA considered two primary alternative
regulatory actions for chrysotile asbestos
diaphragms in the chlor-alkali industry.
One is to prohibit manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestos in
bulk form or as part of: chrysotile
asbestos diaphragms in the chlor-alkali
industry, with prohibitions taking effect
five years after the effective date of the
final rule, without exception, and
require, prior to the prohibition taking
effect, compliance with an existing
chemical exposure limit (ECEL) for the
processing and commercial use of
chrysotile asbestos for this use. The
other was to prohibit manufacture
(including import), processing,
distribution in commerce and
commercial use of chrysotile asbestos in
bulk form or as part of: chrysotile
asbestos diaphragms in the chlor-alkali
industry, with prohibitions taking effect
twelve years after the effective date of
the final rule, without exception, and
require, prior to the prohibition taking
effect, compliance with an ECEL for the
processing and commercial use of
chrysotile asbestos for this use.
The primary alternative regulatory
action for sheet gaskets used in
chemical production is to prohibit
manufacture (including import),
processing, distribution in commerce
and commercial use, with prohibitions
taking effect five years after the effective
date of the final rule, and require, prior
to the prohibition taking effect,
compliance with an ECEL for the
processing and commercial use of
chrysotile asbestos for this use.
The primary alternative regulatory
action additionally includes a
prohibition on the manufacture
(including import), processing,
distribution in commerce, and
commercial use of chrysotile asbestoscontaining brake blocks in the oil
industry; aftermarket automotive
chrysotile asbestos-containing brakes/
linings; and other vehicle friction
products, with prohibitions taking effect
two years after the effective date of the
final rule. The primary alternative
regulatory action also included
prohibitions on manufacture (including
import), processing, and distribution in
commerce of aftermarket automotive
chrysotile asbestos-containing brakes/
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linings for consumer use and other
chrysotile asbestos-containing gaskets
for consumer use, with prohibitions
taking effect two years after the effective
date of the final rule.
The primary alternative regulatory
actions also include recordkeeping and
disposal requirements identical to those
in the final action.
B. TSCA Section (c)(2) Considerations
The following is EPA’s statement of
effects, as required by TSCA section
6(c)(2)(A), with respect to this final rule.
1. Effects of chrysotile asbestos on
health and the magnitude of the
exposure of human beings to chrysotile
asbestos under TSCA section
6(c)(2)(A)(i).
EPA’s analysis of the health effects of
and magnitude of exposure to chrysotile
asbestos is in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos
(Ref. 1). A summary is presented here.
Many authorities have established
causal associations between asbestos
exposures and lung cancer and
mesothelioma in humans based on
epidemiologic studies. EPA identified in
the literature a causal association
between exposure to asbestos and
cancer of the larynx and cancer of the
ovary and suggestive evidence of a
positive association between asbestos
and cancer of the pharynx, stomach, and
colorectum. EPA also identified
increases in lung cancer and
mesothelioma mortality in both workers
and residents exposed to various
asbestos fiber types, including
chrysotile asbestos, as well as fiber
mixtures. Mesothelioma tumors arise
from the thin membranes that line the
chest and abdominal cavities and
surround internal organs.
Asbestos exposure is known to cause
various non-cancer health outcomes as
well, including asbestosis, nonmalignant respiratory disease, deficits in
pulmonary function, diffuse pleural
thickening, and pleural plaques. Various
immunological and lymphoreticular
effects are suggested but not wellestablished.
For the conditions of use that
contribute to unreasonable risk,
populations exposed to chrysotile
asbestos (including potentially exposed
or susceptible subpopulations) include
workers, ONUs, consumer users, and
bystanders to consumers using products
containing chrysotile asbestos. For these
conditions of use EPA estimates that,
annually, at least 256 workers and 222
ONUs are exposed to chrysotile asbestos
at over 49 operations either processing
or using products containing chrysotile
asbestos. Additional workers and ONUs
are exposed to oilfield brake blocks and
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may potentially be exposed to other
vehicle friction products and other
gaskets. Each year, approximately 400
consumers are potentially exposed to
asbestos through the use of products
containing chrysotile asbestos subject to
this rule. The number of exposed
bystanders is unknown to EPA. The
breakdown by category of use is as
follows:
• Diaphragms—80 workers and 80
ONUs at 8 sites;
• Sheet gasket stamping—at least 4
workers and 8 ONUs at 4 sites;
• Sheet gasket use (non-nuclear)—at
least 18 workers and 119 ONUs at 4
sites;
Sheet gasket use (nuclear)—up to 139
workers at 1 site; number of workers
and ONUs at approximately 20
additional sites is unknown;
• Oilfield brake blocks—Unknown;
• Aftermarket automotive brakes—15
to 1,400 workers and 15 to 1,400 ONUs
at 12 to 1,400 sites;
• Other vehicle friction products—
Unknown;
• Other gaskets—Unknown; and
• DIY mechanics—400 consumers
and unknown bystanders.
More information on the derivation of
these estimates is provided in the
Economic Analysis for this rulemaking
that can be found in the rulemaking
docket (Ref. 2).
As discussed in Unit II.C., EPA did
not evaluate hazards or exposures to the
general population in the Risk
Evaluation for Asbestos, Part 1:
Chrysotile Asbestos.
2. Effects of the chrysotile asbestos on
the environment and the magnitude of
the exposure of the environment under
TSCA section 6(c)(2)(A)(ii).
EPA’s analysis of the environmental
effects of and the magnitude of exposure
of the environment to chrysotile
asbestos are in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos
(Ref. 1). A summary is presented here.
Chrysotile asbestos may be released to
the environment through industrial or
commercial activities, such as
processing raw chrysotile asbestos,
fabricating/processing asbestoscontaining products, or the dispersing of
friable chrysotile asbestos during use,
disturbance and disposal of asbestoscontaining products.
Although this action is focused on
chrysotile asbestos fiber type, some of
the information in this unit pertains to
asbestos fibers in general. Asbestos is a
persistent mineral fiber that can be
found in soil, sediments, in the air and
windblown dust, surface water, ground
water and biota. Asbestos fibers are
largely chemically inert in the
environment. They may undergo minor
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physical changes, such as changes in
fiber length or leaching of surface
minerals, but do not react or dissolve in
most environmental conditions.
In water, chrysotile asbestos will
eventually settle into sediments (or
possible biosolids) and can enter
wastewater treatment plants. EPA’s
review of aquatic vertebrate and
invertebrate studies indicated that
chronic exposure to waterborne
chrysotile asbestos at a concentration
range of 104–108 fibers/L, which is
equivalent to 0.01 to 100 million fibers
per liter (MFL), may result in
reproductive, growth and/or sublethal
effects to fish and clams. In addition,
acute exposure of clams to waterborne
chrysotile asbestos at a concentration
range of 102–108 fibers/L demonstrated
reduced siphoning activity.
EPA has determined that there are
minimal or no releases of asbestos to
surface water associated with the
conditions of use that EPA evaluated in
the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos and that are the
subject of this action.
3. Benefits of chrysotile asbestos for
various uses under TSCA section
6(c)(2)(A)(iii).
The only form of asbestos
manufactured (including imported),
processed, or distributed for use in the
United States today is chrysotile
asbestos. The United States Geological
Survey (USGS) estimated that 152
metric tons of raw chrysotile asbestos
were imported into the United States in
2022 (Ref. 3). This raw asbestos is used
exclusively by the chlor-alkali industry,
and imported amounts between 2018
and 2022 ranged from 41 to 681 metric
tons during a given year (Ref. 3).
In addition to the use of raw imported
chrysotile asbestos by the chlor-alkali
industry, EPA is also aware of imported
asbestos-containing products; however,
the imported volumes of those products
are not fully known. The asbestoscontaining products that EPA has
identified as potentially being imported
and used are sheet gaskets (which are
imported in large sheets and cut to size
domestically by a fabricator), oilfield
brake blocks, aftermarket automotive
brakes/linings, other vehicle friction
products, and other gaskets. Chrysotile
asbestos is chemically inert, durable,
and able to effectively separate the
anode and cathode chemicals in the
electrolytic cells used in the chlor-alkali
process. Asbestos-containing gaskets
have been used in chemical production
because they are resistant to cyclical
high temperatures and immense
pressure. During the manufacture of
titanium dioxide, temperatures can
exceed 1850 degrees Fahrenheit and
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pressures can be greater than 50 pounds
per square inch. For processing of
nuclear material, asbestos-containing
sheet gaskets are preferred for their
durability in radioactive environments.
The physical properties of chrysotile
asbestos including heat resistance make
asbestos a useful material for uses where
friction is produced and extreme heat is
generated, including its application in
brakes, gaskets and other vehicle
friction product uses considered in this
rule.
4. Reasonably ascertainable economic
consequences of the rule under TSCA
section 6(c)(2)(A)(iv).
The reasonably ascertainable
economic consequences of this rule
include several components, all of
which are described in the economic
analysis for this rule and summarized
here (Ref. 2).
a. The likely effect of this Part 1:
Chrysotile Asbestos rule on the national
economy, small business, technological
innovation, the environment, and public
health (TSCA section 6(c)(2)(A)(iv)(I)).
With respect to the anticipated effects
of this rule on the national economy, the
economic impact of a regulation on the
national economy generally only
becomes measurable if the economic
impact of the regulation reaches 0.25
percent to 0.5 percent of Gross Domestic
Product (GDP) (Ref. 24). Given the
current GDP of $27.62 trillion, this is
equivalent to a cost of $69 billion to
$138 billion which is considerably
higher than the estimated cost of this
rule. EPA considered the number of
businesses and workers that would be
affected and the costs and benefits to
those businesses and workers and
society at large and did not find that
there would be a measurable effect on
the national economy. In addition, EPA
considered the employment impacts of
this rule. While EPA assumes that chloralkali facilities currently using asbestos
diaphragms will convert to non-asbestos
technologies, some facilities may not do
so before the effective prohibition date
in the rule. As a result, even with the
extended compliance dates in the final
action, it is possible that the rule may
result in facility closures and job losses,
at least temporarily, at some chlor-alkali
facilities as well as at facilities that use
chlorine, caustic soda, or their
derivatives as intermediates, and may
result in shortages or price increases for
chlorine, caustic, and their derivatives.
There may be similar employment
effects at chemical facilities using
asbestos gaskets. However, the extended
compliance dates in the final rule
reduce the likelihood and potential
magnitude of such impacts compared to
the proposed rule. There may also be
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increased temporary employment
associated with new construction as
firms convert their facilities to replace
asbestos diaphragms and asbestos
gaskets with substitute technologies.
There may also be increases in
employment at facilities that currently
use asbestos-free technologies (Ref. 2).
EPA has determined that the rule will
not have a significant impact on a
substantial number of small entities;
EPA estimates that the rule will affect
11 to 1,369 small businesses supplying
aftermarket brakes, incurring costs
between $20 and $14,000 per firm
(depending on the number of brake
replacements they perform). At the lowend estimate of the number of affected
brake replacement firms, approximately
85% of firms would have cost impacts
of less than 1% of their annual
revenues, about 10% would have cost
impacts between 1% and 3%, and
around 6% would have cost impacts of
greater than 3%. At the high-end
estimate of the number of affected brake
replacement firms, 100% of firms would
have a cost impact of less than 1% of
the annual revenue. An additional three
small entities that do not supply
aftermarket brakes are estimated to be
affected by the rule; two are assumed to
manufacture sheet gaskets for titanium
dioxide production, and one imports
oilfield brake blocks. EPA did not have
the information necessary to estimate
the cost impacts on these other four
small entities (Ref. 2).). EPA found no
literature that described the costs of
converting to asbestos-free products for
either sheet gaskets used in titanium
dioxide production or oilfield brake
blocks. Moreover, there were no public
comments in response to the proposed
rule or the subsequent notice of data
availability that provided information
on the costs for these use categories.
The uses of asbestos subject to the
rule are all in mature industries and the
amount of asbestos consumed in them
has been declining for some time. There
is no evidence of innovative
applications of asbestos in these uses in
recent years, nor is there any
expectation that such innovations
would occur in the future in the absence
of a prohibition on these uses of
asbestos.
The effects of this rule on public
health are estimated to be positive, due
to the avoided incidence of adverse
health effects attributable to asbestos
exposure, including lung cancer,
mesothelioma, and cancers of the larynx
and ovary (Ref. 2). Despite the
uncertainties about possible greater use
and release of PFAS discussed in Unit
VII.B.5., EPA believes the benefits of
removing chrysotile asbestos, a known
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human carcinogen that causes cancer
(mesothelioma, lung, ovarian, and
laryngeal cancers), from continued use
in the United States, are significant
enough to outweigh the potential
additional exposure to PFAS that might
result from this action.
Converting chlor-alkali diaphragm
cells to non-asbestos technology is
expected to reduce total electricity
consumption by the chlor-alkali
industry and thus the level of air
pollution associated with electric power
generation. This reduction in air
pollution would provide environmental
benefits as well as health benefits (Ref.
2).
b. Costs and benefits of the regulatory
action and of the primary alternative
regulatory actions considered by the
Administrator.
i. Regulatory action.
EPA was able to quantify the costs of
the rule for the chlor-alkali industry and
the aftermarket automotive brake
industry, as well as a portion of the
costs for firms using sheet gaskets.
Nearly all of the quantified costs are due
to the requirements for the chlor-alkali
industry. The rule is predicted to
require an investment of $2.8 billion to
$3.4 billion to convert chlor-alkali
facilities using asbestos diaphragm cells
to cells using non-asbestos diaphragms
or membranes. The rule accelerates
existing trends in the industry to
transition away from asbestos
diaphragms, and EPA expects that these
conversions would eventually occur in
the baseline even without the rule,
although more slowly than with the
prohibition deadlines in the rule. For a
number of these facilities the nonasbestos technologies are more energy
efficient than asbestos diaphragm cells,
resulting in cost savings that would
accrue over the lifetimes of the facilities.
Membrane cells also produce a higher
grade of caustic soda that has
historically commanded a higher price
than the product from asbestos
diaphragm cells; that price differential
may or may not continue in the future.
If some facilities are unable to complete
their conversions to non-asbestos
technology by the mandatory
compliance dates in the rule, the
unconverted portions of those facilities
would need to close until the
conversions are completed. Such
temporary closures would result in lost
producer surplus (as well as lost
consumer surplus, which EPA was
unable to quantify) until the
conversions are completed. The
incremental net annualized costs of the
rule to the chlor-alkali industry are
calculated by combining conversion
costs, changes in energy usage, potential
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revenue gains from increased
production of membrane-grade caustic
soda, and the lost producer surplus from
possible temporary facility closures (all
compared to the baseline), and
annualizing the results over the 35-year
expected lifetime of new chlor-alkali
facility equipment.
Compared to this baseline trend, the
net cost of the rule to the chlor-alkali
industry over a 35-year period using a
3 percent discount rate is estimated to
range from an annualized cost of $7
million per year (if the additional
membrane grade caustic soda that is
produced sells for the same price as
diaphragm grade caustic soda) to an
annualized savings of $1 million per
year (if the higher grade of caustic soda
produced by membrane cells continues
to command a premium price, as it has
in the past). Using a 7 percent discount
rate, the incremental net cost of the rule
to the chlor-alkali industry ranges from
a cost of $34 million per year (if there
is a premium for membrane-grade
caustic soda) to $43 million per year (if
there is no premium for membranegrade caustic soda).
EPA also estimates that approximately
1,800 sets of automotive brakes or brake
linings containing asbestos may be
imported into the U.S. each year,
representing 0.002% of the total U.S.
market for aftermarket brakes. The cost
of a prohibition would be minimal due
to the ready availability of alternative
products that are only slightly more
expensive (an average cost increase of
about $5 per brake). The rule is
estimated to result in total annualized
costs for aftermarket automotive brakes
of approximately $300,000 per year
using a 3% discount rate and $200,000
per year using a 7% discount rate.
EPA estimated a lower bound of the
cost of the ECEL and disposal
requirements for titanium dioxide
producers using sheet gaskets
containing asbestos. These annualized
costs are estimated at approximately
$44,000 per year using a 3% discount
rate or $65,000 per year using a 7% rate.
However, EPA was unable to estimate
the potential cost to sheet gasket users
of substituting non-asbestos products.
EPA also did not have information to
estimate all of the costs of prohibiting
asbestos in brake blocks in the oil
industry, and any other vehicle friction
products or other gaskets. (EPA believes
that the use of these asbestos-containing
products has declined over time, and
that they are now used in at most small
segments of the relevant industries.)
Since EPA could not quantify all of the
costs of the rule for all of the use
categories, the quantified estimates of
the total costs of the rule are an upper
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bound estimate of total cost savings and
a lower bound estimate of total costs.
Thus, the total net incremental costs of
the rule are estimated to range from an
annualized cost of greater than $7
million per year to an annualized
savings of less than $1 million per year
using a 3 percent discount rate. Using a
7 percent discount rate, these costs
range from greater than $34 million per
year to more than $43 million per year.
EPA quantified the benefits from
avoided cases of cancer due to reduced
asbestos exposures attributable to the
rule’s requirements for chlor-alkali
diaphragms and aftermarket brakes, and
sheet gaskets used for titanium dioxide
production. The combined total national
quantified benefits of avoided cancer
cases associated with these use
categories are approximately $6,000 per
year using a 3% discount rate and
$3,000 per year using a 7% discount
rate. EPA did not estimate the avoided
cancer benefits of the requirements for
sheet gaskets used for other forms of
chemical production, oilfield brake
blocks, other vehicle friction products
or other gaskets, in part because the
Agency did not have sufficient
information to accurately characterize
the number of individuals whose
exposures are likely to be affected by the
rule. To the extent that products in
these use categories are still
manufactured, processed, distributed in
commerce, used, or disposed of, the rule
will generate additional benefits from
reducing the exposures associated with
these uses.
There are also unquantified benefits
due to other avoided adverse non-cancer
health effects associated with asbestos
exposure, such as respiratory effects
(e.g., asbestosis, non-malignant
respiratory disease, deficits in
pulmonary function, diffuse pleural
thickening and pleural plaques). The
rule will also generate unquantified
benefits from other exposure pathways
and life cycle stages for which
exposures were not estimated in the risk
evaluation.
In addition to the benefits of avoided
adverse health effects associated with
chrysotile asbestos exposure, the rule is
expected to generate benefits from
reduced air pollution associated with
electricity generation. Chlor-alkali
production is one of the most energyintensive industrial operations.
Converting asbestos diaphragm cells to
non-asbestos technologies will reduce
overall electricity consumption and thus
the total level of pollutants resulting
from electric power generation,
including carbon dioxide, particulate
matter, sulfur dioxide, and nitrogen
oxides. Converting asbestos diaphragm
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cells to non-asbestos technology could
yield millions of dollars per year in
environmental and health benefits from
reduced emissions of criteria air
pollutants and greenhouse gases (Ref. 2).
The decreased air pollution resulting
from the rule was not the driver for the
decision making under TSCA section
6(a).
EPA’s Economic Analysis, which can
be found in the rulemaking docket (Ref.
2), contains more information on the
estimated costs and benefits of the
regulatory action.
ii. Primary alternative regulatory
actions.
EPA considered two primary
regulatory alternatives to the
requirements that are being finalized in
this action for chrysotile asbestos
diaphragms in the chlor-alkali industry.
Under one alternative, the prohibitions
on the processing, distribution in
commerce and commercial use of
asbestos diaphragms at chlor-alkali
facilities would take effect at all
facilities after five years; the
prohibitions on sheet gaskets for
chemical production would take effect
after two years for sheet gaskets used to
produce titanium dioxide or to process
nuclear materials, and two years for all
other sheet gaskets used for chemical
production; and after 180 days for the
remaining use categories subject to the
rule. Under the other alternative, these
prohibitions would take effect at all
chlor-alkali facilities after 12 years; after
5 years for all sheet gaskets used in
chemical production; and after 2 years
for the remaining use categories.
Under the alternative regulatory
action with a 5-year prohibition on
asbestos diaphragms for all chlor-alkali
facilities, the total cost of the rule using
a 3 percent discount rate is estimated to
range from an annualized costs of more
than $14 million per year (if the
additional membrane-grade caustic soda
that is produced sells for the same price
as diaphragm grade caustic soda) to an
annualized cost of more than $5 million
per year (if the higher grade of caustic
soda produced by membrane cells
continues to command a premium price,
as it has in the past). Using a 7 percent
discount rate, the estimates range from
a cost of more than $42 million per year
(if there is a premium for membranegrade caustic soda) to a cost of more
than $51 million per year (if there is no
premium for membrane-grade caustic
soda).
Under the alternative regulatory
action with a 12-year prohibition on
asbestos diaphragms for all chlor-alkali
facilities, the total cost of the rule using
a 3 percent discount rate ranges from a
savings of less than $1 million per year
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(if the higher grade of caustic soda
produced by membrane cells continues
to command a premium price) to a cost
of greater than $7 million per year (if the
additional membrane grade caustic soda
that is produced receives the same price
as diaphragm grade caustic soda). Using
a 7 percent discount rate, the cost ranges
from more than $31 million per year (if
there is a premium for membrane-grade
caustic soda) to more than $38 million
per year (if there is no premium for
membrane-grade caustic soda).
The alternative option with a 12-year
prohibition deadline for all chlor-alkali
facilities has estimated annualized
incremental costs that are similar to
those for the final rule, and are slightly
lower than the final rule when using a
7% discount rate. These differences are
due to how the timing of expenditures
affects the annualized cost estimates.
The vast majority of the quantified costs
of the rule are associated with the chloralkali industry. Converting all eight
plants using asbestos diaphragm cells to
non-asbestos technologies is predicted
to require an investment of
approximately $2.8 billion to $3.4
billion, and these costs are assumed to
be the same regardless of how quickly
the conversions occur. Where the
incremental cost of a 12-year
prohibition deadline is less than the
incremental cost of the final rule, part
of the reason is that the rate of
conversion to non-asbestos technologies
under the alternative option is closer to
the baseline conversion rate. (The
incremental cost estimate compares the
costs and savings associated with
conversions under each option to the
costs and savings that would be
incurred each year in the absence of the
rule). This means that the chlor-alkali
companies are incurring the same actual
costs under both options (since the
conversions have the same costs and
savings per ton of chlorine and caustic
soda produced under all of the options),
but under the 12-year option some of
those costs are not attributed to the rule.
In addition, some of the compliance
costs are incurred at later points in time
under the 12-year option than under the
final rule, and expenditures that occur
at later dates result in smaller
annualized costs than those that occur
sooner. These factors can make the
alternative option with a 12-year
prohibition deadline for all chlor-alkali
facilities appear slightly less costly than
the final rule, despite the fact that same
facility conversions eventually occur
under all the regulatory alternatives.
c. Cost effectiveness of the regulatory
action and primary alternative
regulatory actions considered by the
Administrator.
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The regulatory action reflected in the
final rule and the alternative regulatory
actions all reduce risks to the extent
necessary such that unreasonable risk
would no longer be present after such
actions were implemented. The
estimated costs of achieving this result
differ across the possible regulatory
actions and can be compared in terms
of their cost-effectiveness. The measure
of cost-effectiveness considered is the
annualized net incremental cost of each
regulatory option per micro-risk
reduction in cancer cases estimated to
occur as a result of the option, where a
micro-risk refers to a one in one million
reduction in the risk of a cancer case.
The estimated cost-effectiveness of the
final rule ranges from a cost of $185 to
a savings of $35 per micro-risk
reduction at a 3% discount rate, and a
cost of $860 to $1,075 per micro-risk
reduction at a 7% discount rate (where
a micro-risk represents a one in a
million chance of the adverse health
outcome, which in this case is cancer).
The estimated cost-effectiveness of the
alternative regulatory action with a 5year prohibition on asbestos diaphragms
for all chlor-alkali facilities ranges from
a cost of $128 to $348 per micro-risk
reduction at a 3% discount rate, and a
cost of $1,044 to $1,259 per micro-risk
reduction at a 7% discount rate. The
estimated cost-effectiveness of the
alternative regulatory action with a 12year prohibition on asbestos diaphragms
for all chlor-alkali facilities ranges from
a cost of $172 to a savings of $13 per
micro-risk reduction at a 3% discount
rate, and a cost of $779 to $953 per
micro-risk reduction at a 7% discount
rate.
The alternative option with a 12-year
prohibition deadline for all chlor-alkali
facilities appears to be somewhat more
cost effective than the final rule when
using a 7 percent discount rate. But as
noted previously, these differences are
due to how the timing of expenditures
affects the annualized cost estimates.
5. Consideration of alternatives under
TSCA section 6(c)(2)(C).
Under TSCA section 6(c)(2)(C), and
based on the information published
under TSCA section 6(c)(2)(A), in
deciding whether to prohibit or restrict
in a manner that substantially prevents
a specific condition of use of a chemical
substance or mixture, and in setting an
appropriate transition period for such
action, EPA must also consider, to the
extent practicable, whether technically
and economically feasible alternatives
that benefit health or the environment
will be reasonably available as a
substitute when the prohibition or other
restriction takes effect.
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a. Health and environmental effects of
the chemical alternatives or substitute
methods.
In considering the potential chemical
alternatives or substitute methods for
chrysotile asbestos for the conditions of
use evaluated in the risk evaluation,
EPA notes that chrysotile asbestos is not
currently the primary substance most
commonly used in these conditions of
use, nor has it been for the last decade.
Chlor-alkali asbestos diaphragms, sheet
gaskets for chemical production,
aftermarket automotive breaks, oilfield
brake blocks, other gaskets and other
friction products containing chrysotile
asbestos are relatively uncommon in the
market space, as described in the risk
evaluation. There are a number of
alternatives to asbestos in these
conditions of use that make up the
majority of the market share and have
been preferentially used for some time,
in part as a result of the known severe
and adverse health effects related to
asbestos exposure. Based on the
information published under TSCA
section 6(c)(2)(A), EPA does not expect
any adverse impacts to human health
and the environment to result from the
further reduction of asbestos in these
conditions of use when compared to the
continued use of asbestos.
EPA acknowledges that substitute
technologies for asbestos-containing
diaphragms in chlor-alkali production
use an increased concentration of perand polyfluoroalkyl substances (PFAS)
relative to the amount of PFAS
compounds contained in asbestoscontaining diaphragms. As discussed in
the Economic Analysis, the three types
of chlor-alkali production technologies
commonly used in the United States
vary in their use of PFAS. Non-asbestos
diaphragms have a higher concentration
of polytetrafluoroethylene (PTFE, a
polymeric perfluorinated substance)
than asbestos-containing diaphragms,
and non-asbestos membranes are made
of PTFE, perfluorinated carboxylic acids
and perfluorosulfonic acids. However,
the impact of the transition away from
asbestos-containing diaphragms on the
quantities of PFAS compounds used
and released is uncertain. Although they
contain a higher concentration of PFAS
compounds than diaphragms made with
asbestos, non-asbestos diaphragms and
membranes have a typical lifespan that
can be several times longer than that for
asbestos diaphragms. Therefore, it is
unclear how increased use of nonasbestos technologies will affect the
total production, usage, or releases of
PFAS compounds, or exposures to such
compounds. Despite these uncertainties
about the use and release of PFAS, EPA
believes the benefits of removing
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chrysotile asbestos from continued use
in the United States are significant even
though there are uncertainties regarding
the potential changes in exposure to
PFAS that might result from this action.
Still, when possible, EPA recommends
a transition to safer alternatives.
Additional information on PFAS,
including Agency guidance, is available
at https://www.epa.gov/.
To the extent that alternative
technologies are more energy efficient,
converting asbestos diaphragm cells to
non-asbestos technologies reduces
overall electricity consumption and thus
the total level of pollutants associated
with electric power generation,
including carbon dioxide, particulate
matter, sulfur dioxide, and nitrogen
oxides.
b. Technically and economically
feasible and reasonably available
chemical alternatives or substitute
methods.
As mentioned, there are a number of
alternatives to asbestos in these
conditions of use that make up the
majority of the market share and have
been preferentially used for some time.
EPA received input from stakeholders
regarding their concerns about
alternatives to chrysotile asbestos. EPA
expects non-asbestos diaphragms and
membrane cells will be the likely
substitutes to asbestos diaphragms. Prior
to the proposed rule, the chlor-alkali
industry expressed concerns to EPA
about the economic feasibility of
transitioning to asbestos free technology
in general (Ref. 25; Ref. 26; Ref. 27; Ref.
28; Ref. 29) and indicated that it would
take a significant amount of time.
Subsequent public comments and
information from the chlor-alkali
industry obtained after the proposed
rule was published indicates that
conversion to asbestos-free technology
is commercially viable, but that the
conversion can take a significant
amount of time, depending on the
technology adopted and the number of
facilities to be converted (Ref. 12; Ref.
13).
Several stakeholders provided
feedback on alternatives to chrysotile
asbestos for the sheet gasket use in
chemical production. Generally, these
stakeholders described how the
transition from asbestos use for titanium
dioxide production would require
modifications to the facilities that
would be time consuming. One
stakeholder noted in 2021 that they had
a titanium dioxide production facility
located in Taiwan that uses asbestosfree gaskets. The stakeholder, however,
stated at that time that the technology
used in the Taiwan facility would not
suit certain domestic titanium dioxide
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facilities because the large diameter
flanges in the domestic facilities result
in performance issues with the asbestosfree gaskets (Ref. 25). The same
stakeholder subsequently informed EPA
in 2023 that they could transition to the
use of non-asbestos gaskets in their
domestic facilities by re-engineering the
flanges, although that process will
require several years to complete (Ref.
18). Non-asbestos technologies already
dominate the market for other gaskets,
oilfield brake blocks, brakes and other
friction products. Although,
stakeholders indicated the advantages of
using asbestos (e.g., asbestos in
automotive drum brakes advantages
include thermal stability, flexibility,
resistance to wear, and low cost), and
limitations of the non-asbestos
replacements (e.g., non-asbestos
replacements in brake blocks have a
useful life half that of products
containing asbestos, are more expensive
than asbestos-containing products, and
are subject to sudden failure) (Ref. 2).
Non-asbestos aftermarket automotive
brakes are estimated to cost an average
of $4 more than brakes containing
asbestos. EPA was unable to identify
any companies currently supplying or
using other gaskets or other friction
products containing asbestos, so the
Agency does not have information on
the cost differentials between products
that contain asbestos and those that are
asbestos-free. Additional information is
available in the risk evaluation (Ref. 1)
and economic analysis (Ref. 2).
6. Replacement parts under TSCA
section 6(c)(2)(D).
TSCA section 6(c)(2)(D) states that
EPA shall exempt from TSCA section
6(a) rules replacement parts for complex
durable goods and complex consumer
goods that are designed prior to the
publication of a final risk management
rule, unless such replacement parts
contribute significantly to the risk,
identified in a risk evaluation
conducted under TSCA section
6(b)(4)(A), to the general population or
to an identified potentially exposed or
susceptible subpopulation. TSCA
section 6(c)(2)(D) defines complex
consumer goods as electronic or
mechanical devices composed of
multiple manufactured components,
with an intended useful life of three or
more years, where the product is
typically not consumed, destroyed, or
discarded after a single use, and the
components of which would be
impracticable to redesign or replace.
The term ‘‘complex durable goods’’
means manufactured goods composed of
100 or more manufactured components,
with an intended useful life of five or
more years, where the product is
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typically not consumed, destroyed or
discarded after a single use. Several of
the conditions of use addressed by this
final rule impact these replacement part
categories. Aftermarket automotive
brakes/linings are replacement parts for
automobiles and other vehicles. Other
asbestos-containing gaskets may be
available as both new and replacement
parts on utility and other vehicles.
Oilfield brake blocks are replacement
parts for the drilling rigs used in the oil
industry. These vehicles and drilling
rigs are composed of numerous
components, manufactured separately
and assembled together into a machine
designed for a useful life of at least three
years if properly maintained. By their
nature, EPA believes these meet the
TSCA definition of complex durable
goods. In the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos,
however, EPA found unreasonable risk
from use and disposal of chrysotile
asbestos-containing brake blocks in the
oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/
linings; and other asbestos-containing
gaskets. EPA’s risk evaluation evaluated
scenarios involving these replacement
parts, and EPA finds that the
replacement parts contribute
significantly to the identified
unreasonable risk for these conditions of
use to the potentially exposed or
susceptible subpopulations identified in
the risk evaluation. Accordingly, EPA is
not exempting replacement parts from
regulation in this final rule.
7. Article considerations under TSCA
section 6(c)(2)(E).
Under this final rule, EPA is
regulating the manufacture, processing,
and distribution in commerce of articles
containing chrysotile asbestos. TSCA
section 6(c)(2)(E) states: ‘‘In selecting
among prohibitions and other
restrictions, the Administrator shall
apply such prohibitions or other
restrictions to an article or category of
articles containing the chemical
substance or mixture only to the extent
necessary to address the identified risks
from exposure to the chemical
substance or mixture from the article or
category of articles so that the substance
or mixture does not present an
unreasonable risk of injury to health or
the environment identified in the risk
evaluation conducted in accordance
with section 6(b)(4)(A).’’ TSCA does not
define ‘‘article,’’ but EPA proposed to
define ‘‘article’’ and is now finalizing
that definition. Based on this definition,
the conditions of use subject to this
regulation include articles, e.g., sheet
gaskets, brake blocks, brake/linings,
other gaskets and other vehicle friction
products.
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Except for bulk chrysotile asbestos
imported for use in asbestos
diaphragms, all of the other conditions
of use that are the subject of this
regulation involve the use and/or
disposal of products or articles
containing chrysotile asbestos. For each
condition of use, the article is subject to
circumstances during use that change or
alter the article as a direct result of the
use. Releases of chrysotile asbestos, and
the associated unreasonable risk from
exposure to chrysotile asbestos
identified in the risk evaluation, result
from use of the articles. The articles
themselves include sheet gaskets, other
gaskets, brake blocks, brakes and
linings, which wear down during use
and release asbestos fibers. The risk
evaluation determined that exposure to
workers, ONUs, consumers and
bystanders can occur when these items
are replaced or repaired, resulting in
harmful exposures. These identified
risks from articles containing asbestos
could result from exposure of any kind
and, as a result, EPA had no feasible
option to prevent these risks other than
a complete prohibition. In particular,
without effective respiratory protection
to reduce asbestos exposure, no other
restriction EPA researched could
sufficiently prevent unreasonable risk to
ONUs, consumers, and bystanders who
were not expected to wear respiratory
protection. For example, EPA does not
assume consumers who replace their
own automobile brakes will consistently
use appropriate respiratory protection,
nor can EPA in this rule require
respirator use for consumers.
Accordingly, EPA’s final regulatory
action sets requirements for articles only
to the extent necessary to address the
identified risks from exposure to
chrysotile asbestos from the article so
that chrysotile asbestos does not present
an unreasonable risk to health.
C. TSCA Section 9 Analysis
1. TSCA section 9(a) analysis.
Section 9(a) of TSCA provides that, if
the Administrator determines in the
Administrator’s discretion that an
unreasonable risk may be prevented or
reduced to a sufficient extent by an
action taken under a Federal law not
administered by EPA, the Administrator
must submit a report to the agency
administering that other law that
describes the risk and the activities that
present such risk. TSCA section 9(a)
describes additional procedures and
requirements to be followed by EPA and
the other federal agency after
submission of the report. As discussed
in this Unit, the Administrator does not
determine that unreasonable risk from
the conditions of use of chrysotile
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asbestos may be prevented or reduced to
a sufficient extent by an action taken
under a Federal law not administered by
EPA.
TSCA section 9(d) instructs the
Administrator to consult and coordinate
TSCA activities with other Federal
agencies for the purpose of achieving
the maximum enforcement of TSCA
while imposing the least burden of
duplicative requirements. For this rule,
EPA has consulted with other
appropriate Federal executive
departments and agencies including
OSHA and NIOSH.
OSHA requires that employers
provide safe and healthful working
conditions by setting and enforcing
standards and by providing training,
outreach, education and assistance.
OSHA has three separate health
standards for asbestos covering
employers in General Industry (29 CFR
1910.1001); Shipyards (29 CFR
1915.1001); and Construction (29 CFR
1926.1101). These standards include a
permissible exposure limit (PEL) for
asbestos of 0.1 fibers per cubic
centimeter (cc) of air as an eight-hour
time weighted average (TWA), and an
excursion limit of 1.0 asbestos fibers per
cubic centimeter over a 30-minute
period. The standards apply to all
occupational exposures to asbestos and
require exposure monitoring to
determine employee exposure. Exposure
monitoring includes both initial
monitoring of employees who are, or
may reasonably be expected to be,
exposed to airborne concentrations at or
above the TWA PEL or excursion limit,
as well as additional monitoring.
Monitoring frequency depends on work
classification exposure while additional
monitoring may be required based on
changes in the workplace environment
that may result in new or additional
exposures above the TWA PEL or
excursion limit.
This rule addresses risk from
exposure to chrysotile asbestos in both
workplace and consumer settings (e.g.,
do-it-yourself automobile maintenance).
With the exception of TSCA, there is no
Federal law that provides authority to
prevent or sufficiently reduce these
cross-cutting exposures. No other
Federal regulatory agency can evaluate
and address the totality of the risk that
EPA is addressing in this rule. For
example, OSHA may set exposure limits
for workers, but its authority is limited
to the workplace and does not extend to
consumer uses of hazardous chemicals
(while EPA does not regulate consumer
use directly under TSCA 6(a)(5), it has
authority to regulate the upstream
supply of chemicals for consumer uses).
Further, OSHA does not have direct
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authority over state and local
employees, and it has no authority at all
over the working conditions of state and
local employees in states that have no
OSHA-approved State Plan under 29
U.S.C. 667. Other individuals that may
not be covered by OSHA requirements
include university students, volunteers,
and self-employed persons. CPSC is
charged with protecting the public from
unreasonable risks of injury or death
associated with the use of the thousands
of types of consumer products under the
agency’s jurisdiction, CPSC has the
authority to regulate chrysotile asbestos
in such consumer products, but not in
automobiles, trucks and motorcycles,
which are not under its jurisdiction.
Moreover, the 2016 amendments to
TSCA, Public Law 114–182, alter both
the manner of identifying unreasonable
risk under TSCA and EPA’s authority to
address unreasonable risk under TSCA,
such that risk management under TSCA
is increasingly distinct from analogous
provisions of the Consumer Product
Safety Act (CPSA), the Federal
Hazardous Substances Act (FHSA), or
the OSH Act. These changes to TSCA
reduce the likelihood that an action
under the CPSA, FHSA, or the OSH Act
would sufficiently prevent or reduce the
unreasonable risk of chrysotile asbestos.
In a TSCA section 6 rule, following an
unreasonable risk determination, EPA
must apply risk management
requirements to the extent necessary so
that the chemical no longer presents
unreasonable risk and only consider
costs to the extent practicable, 15 U.S.C.
2605(a) and (c)(2), subject to timelimited conditional exemptions, 15
U.S.C. 2605(g). By contrast, a consumer
product safety rule under the CPSA
must include a finding that ‘‘the benefits
expected from the rule bear a reasonable
relationship to its costs.’’ 15 U.S.C.
2058(f)(3)(E). Additionally, the 2016
amendments to TSCA reflect
Congressional intent to ‘‘delete the
paralyzing ‘least burdensome’
requirement,’’ 162 Cong. Rec. S3517
(June 7, 2016), a reference to TSCA
section 6(a) as originally enacted, which
required EPA to use ‘‘the least
burdensome requirements’’ that protect
‘‘adequately’’ against unreasonable risk,
15 U.S.C. 2605(a) (1976). However, a
consumer product safety rule under the
CPSA must impose ‘‘the least
burdensome requirement which
prevents or adequately reduces the risk
of injury for which the rule is being
promulgated.’’ 15 U.S.C. 2058(f)(3)(F).
Analogous requirements, also at
variance with recent revisions to TSCA,
affect the availability of action CPSC
may take under the FHSA relative to
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21999
action EPA may take under TSCA. 15
U.S.C. 1262. Gaps also exist between
OSHA’s authority to set workplace
standards under the OSH Act and EPA’s
obligations to sufficiently address
chemical risks under TSCA. To set PELs
for chemical exposure, OSHA must first
establish that the new standards are
economically feasible and
technologically feasible (79 FR 61387,
October 10, 2014). But under TSCA,
EPA’s substantive burden under TSCA
section 6(a) is to demonstrate that, as
regulated, the chemical substance no
longer presents an unreasonable risk,
with unreasonable risk being
determined under TSCA section 6(b)(4).
EPA therefore concludes that: TSCA
is the only regulatory authority able to
prevent or reduce risks of chrysotile
asbestos to a sufficient extent across the
range of conditions of use, exposures
and populations of concern; these risks
can be addressed in a more coordinated,
efficient and effective manner under
TSCA than under different laws
implemented by different agencies, and
there are key differences between the
finding requirements of TSCA and those
of the OSH Act. For these reasons, in the
Administrator’s discretion, the
Administrator does not determine that
unreasonable risk from the conditions of
use of chrysotile asbestos may be
prevented or reduced to a sufficient
extent by an action taken under a
Federal law not administered by EPA.
More than 10 comments were
received regarding issues generally
related to TSCA section 9. Some
commenters supported EPA’s decision
to not make a determination and submit
a report to another agency under TSCA
section 9(a). Other commenters
contended that the OSHA regulation
that relates to reducing worker exposure
sufficiently mitigates the unreasonable
risk and that EPA lacks authority to
regulate worker exposures because
OSHA is better positioned to enforce
both safety measures and occupational
exposures. EPA’s response to these
comments is available in the docket for
this rulemaking (Ref. 12).
2. TSCA section 9(b) analysis.
If EPA determines that actions under
other Federal laws administered in
whole or in part by EPA could eliminate
or sufficiently reduce a risk to health or
the environment, TSCA section 9(b)
instructs EPA to use these other
authorities unless the Administrator
determines in the Administrator’s
discretion that it is in the public interest
to protect against such risk under TSCA.
In making such a public interest finding,
TSCA section 9(b)(2) states: ‘‘the
Administrator shall consider, based on
information reasonably available to the
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Administrator, all relevant aspects of
the risk . . . and a comparison of the
estimated costs and efficiencies of the
action to be taken under this title and
an action to be taken under such other
law to protect against such risk.’’
Although several EPA statutes have
been used to limit chrysotile asbestos
exposure (Ref. 4), regulations under
those EPA statutes have limitations
because they largely regulate releases to
the environment, rather than direct
human exposure. The Clean Air Act
generally focuses on releases of asbestos
to the ambient air. Under the Resource
Conservation and Recovery Act (RCRA)
Subtitle D, the disposal of chrysotile
asbestos is regulated as a non-hazardous
solid waste; RCRA does not address
exposures during manufacturing,
processing, distribution and use of
products containing chrysotile asbestos.
Only TSCA provides EPA the authority
to regulate the manufacture (including
import), processing, distribution in
commerce, commercial use and
commercial disposal of chemicals
substances to be able to address
chrysotile asbestos direct exposure to
humans.
For these reasons, the Administrator
does not determine that unreasonable
risk from the conditions of use of
chrysotile asbestos could be eliminated
or reduced to a sufficient extent by
actions taken under other Federal laws
administered in whole or in part by
EPA.
D. TSCA Section 26(h) Considerations
In accordance with TSCA section
26(h), EPA has used scientific
information, technical procedures,
measures, methods, protocols,
methodologies, and models consistent
with the best available science. The
unreasonable risk determination was
based on a risk evaluation, which was
subject to peer review and public
comment, was developed in a manner
consistent with the best available
science and based on the weight of the
scientific evidence. The extent to which
the various information, procedures,
measures, methods, protocols,
methodologies or models, as applicable,
used in EPA’s decision have been
subject to independent verification or
peer review is adequate to justify their
use, collectively, in the record for this
rule. In particular, the ECEL value
incorporated into the interim workplace
controls is derived from the analysis in
the 2020 Risk Evaluation for Asbestos,
Part 1: Chrysotile Asbestos; it likewise
represents decisions based on the best
available science and the weight of the
scientific evidence (Ref. 23). The ECEL
value of 0.005 f/cc as an 8-hour TWA is
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based incidence of lung cancer,
mesothelioma and other cancers.
Additional information on the peer
review and public comment process,
such as the peer review plan, the peer
review report, and the Agency’s
response to comments, can be found at
EPA’s risk evaluation docket at EPA–
HQ–OPPT–2019–0501 (Ref. 30).
E. TSCA Section 14 Requirements
EPA is also providing notice to
manufacturers, processors, and other
interested parties about potential
impacts to confidential business
information that may occur with this
final rule. Under TSCA section 14(b)(4),
if EPA promulgates a rule pursuant to
TSCA section 6(a) that establishes a ban
or phase-out of a chemical substance,
the protection from disclosure of any
confidential business information
regarding that chemical substance and
submitted pursuant to TSCA will be
‘‘presumed to no longer apply,’’ subject
to the limitations identified in TSCA
section 14(b)(4)(B)(i) through (iii).
Pursuant to TSCA section
14(b)(4)(B)(iii), the presumption against
protection from disclosure would apply
only to information about the specific
conditions of use that this rule would
prohibit. Manufacturers or processors
seeking to protect such information
would be able to submit a request for
nondisclosure as provided by TSCA
sections 14(b)(4)(C) and 14(g)(1)(E). Any
request for nondisclosure would need to
be submitted within 30 days after
receipt of notice from EPA under TSCA
section 14(g)(2)(A). EPA anticipates
providing such notice via the Central
Data Exchange (CDX).
F. TSCA Section 18(c)(3) Federal
Preemption
TSCA section 18(c)(3) defines the
scope of federal preemption with
respect to any final rule EPA issues
under TSCA section 6(a). That provision
provides that federal preemption of
‘‘statutes, criminal penalties, and
administrative actions’’ applies to ‘‘the
hazards, exposures, risks, and uses or
conditions of use of such chemical
substances included in any final action
the Administrator takes pursuant to
[TSCA section 6(a)].’’ With respect to
this final TSCA section 6(a) rule for
chrysotile asbestos, federal preemption
applies to the COUs evaluated in the
TSCA Risk Evaluation for Asbestos, Part
1. Federal preemption as a result of this
section 6(a) rule does not apply to COUs
that are being evaluated in EPA’s Risk
Evaluation for Asbestos, Part 2,
including legacy uses and associated
disposals, other types of asbestos fibers
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in addition to chrysotile, and conditions
of use of asbestos-containing talc.
VIII. Severability
EPA intends that each provision of
this rulemaking be severable. In the
event of litigation staying, remanding, or
invalidating all or a portion of EPA’s
risk management approach for one or
more conditions of use (COUs) in this
rule, EPA intends to preserve the risk
management approach in the rule for all
other portions of the risk management
approach for a COU and all other COUs
to the fullest extent possible. The
Agency evaluated the risk management
options in TSCA section 6(a)(1) through
(7) for each COU and generally EPA’s
regulation of a COU to address the
unreasonable risk from chrysotile
asbestos functions independently from
EPA’s regulation of other COUs, which
may have different characteristics
leading to EPA’s risk management
decisions. Further, the Agency crafted
this rule so that different risk
management approaches are reflected in
different provisions or elements of the
rule that are capable of operating
independently. Accordingly, the Agency
has organized the rule so that if any
provision or element of this rule is
determined by judicial review or
operation of law to be invalid, that
partial invalidation will not render the
remainder of this rule invalid.
There are many permutations of the
above. Accordingly, rather than walking
through each one, EPA is providing the
following two representative examples
for illustrative purposes. The first
example of how the regulation of one
COU is independent of another COU is
based on the following COU examples
of: the commercial use of chrysotile
asbestos for use in sheet gaskets for
chemical production, which EPA
prohibited in § 751.509(a), and the
commercial use of chrysotile asbestos
for oilfield brake blocks, which EPA
prohibited in § 751.509(d)(1). To the
extent that a court were to find EPA
lacked substantial evidence to support
its prohibition of the commercial use of
chrysotile asbestos for use in sheet
gaskets for chemical production or
otherwise found flaw with EPA’s
approach to that COU, it would have no
bearing on other COUs, such as the
commercial use of chrysotile asbestos
for oilfield brake blocks, unless the
specific flaw also applies to the
particular facts associated with the
commercial use of chrysotile asbestos
for oilfield brake blocks. This is
reflected in the structure of the rule,
which does not intertwine the
prohibitions for commercial use of
chrysotile asbestos for use in sheet
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gaskets for chemical production and the
commercial use of chrysotile asbestos
for oilfield brake blocks, but rather
separately prohibits each of these COUs.
Another example of how different risk
management approaches are reflected in
different provisions or elements of the
rule that are capable of operating
independently is the regulatory
provisions for the commercial use of
chrysotile asbestos sheet gaskets for
titanium dioxide production. EPA’s risk
management approach includes two
elements: (1) a prohibition on the
commercial use of chrysotile asbestos
sheet gaskets for titanium dioxide
production under § 751.509(b) and (2)
interim workplace controls to reduce
risk to workers until the prohibition
takes effect under § 751.511. To the
extent that a court were to find that EPA
lacked substantial evidence to support
the interim workplace controls for the
commercial use of sheet gaskets for
titanium dioxide production, or
otherwise found flaw with EPA’s
approach with respect to this aspect of
the risk management for this COU, it
would have no bearing on EPA’s
decision to prohibit the commercial use
of sheet gaskets for titanium dioxide
production. This is reflected in the
structure of the rule, which does not
make the prohibition of the commercial
use of sheet gaskets for titanium dioxide
production contingent on the
application of interim workplace
controls.
IX. References
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The following is a listing of the
documents that are specifically
referenced in this document. The docket
includes these documents and other
information considered by EPA,
including documents referenced within
the documents that are included in the
docket, even if the referenced document
is not physically located in the docket.
For assistance in locating these other
documents, please consult the technical
person listed under FOR FURTHER
INFORMATION CONTACT.
1. EPA. Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos. December 2020.
Office of Chemical Safety and Pollution
Prevention. Washington, DC. December
2020. (EPA Docket Document Number
EPA–HQ–OPPT–2021–0057–0007).
https://www.regulations.gov/document/
EPA-HQ-OPPT-2021-0057-0007.
2. EPA. 2023. Economic Analysis of the
TSCA Section 6 Final Rule for Asbestos
Risk Management, Part 1. March 2024.
3. U.S. Geological Survey. (2023). Minerals
Yearbook. Asbestos. 2022 tables-only
release.
4. EPA. Regulatory History of Asbestos.
March 2024.
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5. EPA. Problem Formulation for the Risk
Evaluation of Asbestos. May 2018. (EPA–
HQ–OPPT–2016–0736–0131). https://
www.regulations.gov/document/EPAHQ-OPPT-2016-0736-0131.
6. EPA. Email Exchange with Mobis and EPA
on the presence of Asbestos in its Brake
and Friction Products. March to June,
2021. (EPA–HQ–OPPT–2021–0057–
0016). https://www.regulations.gov/
document/EPA-HQ-OPPT-2021-00570016.
7. EPA. Section 6(a) Rulemakings under the
Toxic Substances Control Act (TSCA)
Chrysotile Asbestos Rulemakings E.O.
13132: Federalism Consultation. May 13,
2021 (EPA–HQ–OPPT–2021–0057–
0239). https://www.regulations.gov/
document/EPA-HQ-OPPT-2021-00570239.
8. EPA. Notification of Consultation and
Coordination on Proposed Rulemakings
under the Toxic Substances Control Act
for Asbestos Part 1: Chrysotile Asbestos.
May 24, 2021 and June 3, 2021. Tribal
Consultation. (EPA–HQ–OPPT–2021–
0057–0013). https://
www.regulations.gov/document/EPAHQ-OPPT-2021-0057-0013.
9. EPA. Environmental Justice Consultation
on Forthcoming Proposed Rulemakings
under TSCA Section 6(a). May 12, 2021.
(EPA–HQ–OPPT–2021–0057–0242).
https://www.regulations.gov/document/
EPA-HQ-OPPT-2021-0057-0242.
10. EPA. Part 1. Asbestos (Chrysotile) Public
Webinar Slides. February 3, 2021. (EPA–
HQ–OPPT–2021–0057–0003. https://
www.regulations.gov/document/EPAHQ-OPPT-2021-0057-0003.
11. EPA. Part 1. Asbestos (Chrysotile) Small
Business Administration roundtable
slides on February 5, 2021. (EPA–HQ–
OPPT–2021–0057–0004). https://
www.regulations.gov/document/EPAHQ-OPPT-2021-0057-0004.
12. EPA. Asbestos Part 1: Chrysotile
Asbestos; Regulation of Certain
Conditions of Use Under Section 6(a) of
the Toxic Substances Control Act
(TSCA); Proposed Rule. Docket EPA–
HQ–OPPT–2021–0057. Response to
Public Comments. March 2024.
13. EPA. Asbestos Part 1: Chrysotile
Asbestos; Regulation of Certain
Conditions of Use Under Section 6(a) of
the Toxic Substances Control Act
(TSCA); Notice of Data Availability and
Request for Comment EPA–HQ–OPPT–
2021–0057. Response to Comments.
March 2024.
14. Olin Corporation. Comment submitted by
Olin Corporation. EPA–HQ–OPPT–
2021–0057–0475. https://
www.regulations.gov/comment/EPA-HQOPPT-2021-0057-0475.
15. EPA. Meeting with Olin Corporation,
August 17, 2023.
16. EPA. Meeting with OxyChem Corporation
on Risk Management under TSCA
section 6, Asbestos Part 1: Chrysotile
Asbestos. February 9, 2023. EPA–HQ–
OPPT–2021–0057–0445. https://
www.regulations.gov/document/EPAHQ-OPPT-2021-0057-0445.
17. EPA. Meeting with Westlake Corporation
on Risk Management under TSCA
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section 6, Asbestos Part 1: Chrysotile
Asbestos. November 3, 2022. EPA–HQ–
OPPT–2021–0057–0446. https://
www.regulations.gov/document/EPAHQ-OPPT-2021-0057-0446.
18. EPA. Meeting with Chemours
Corporation on Risk Management under
TSCA section 6, Asbestos Part 1:
Chrysotile Asbestos. January 18, 2023.
EPA–HQ–OPPT–2021–0057–0442.
https://www.regulations.gov/document/
EPA-HQ-OPPT-2021-0057-0442.
19. The Chemours Company. Comment
submitted by The Chemours Company,
EPA–HQ–OPPT–2021–0057–0366.
https://www.regulations.gov/comment/
EPA-HQ-OPPT-2021-0057-0366.
20. Savannah River Nuclear Solutions.
Comment submitted by Savannah River
Nuclear Solutions. EPA–HQ–OPPT–
2021–0057–0478. https://
www.regulations.gov/comment/EPA-HQOPPT-2021-0057-0478.
21. EPA, DOE, SCDHEC. Federal Facility
Agreement for the Savannah River Site,
Administrative Docket No. 89–05–FF.
August 16, 1993.
22. EPA, DOE, SCDHEC. 2022 High Level
Waste Tank Milestones Agreement;
Savannah River Site Federal Facilities
Agreement Modification. December
2022.
23. EPA. Existing Chemical Exposure Limit
(ECEL) for Occupational Use of
Chrysotile Asbestos. March 2, 2021.
EPA–HQ–OPPT–2021–0057–0017.
https://www.regulations.gov/document/
EPA-HPA-HQ-OPPT-2021-0057-0017.
24. Office of Management and Budget.
Memorandum for the Heads of Executive
Departments and Agencies (M–95–09).
Guidance for Implementing Title II of S.
1. March 31, 1995. https://
www.whitehouse.gov/wp-content/
uploads/legacy_drupal_files/omb/
memoranda/1995-1998/m95-09.pdf.
Accessed December 14, 2021.
25. EPA. Meeting with Chemours
Corporation on Risk Management under
TSCA section 6, Asbestos Part 1:
Chrysotile Asbestos. March 29, 2021.
(EPA–HQ–OPPT–2021–0057–0018).
https://www.regulations.gov/document/
EPA-HQ-OPPT-2021-0057-0018.
26. EPA. Meeting with Olin Corporation on
Risk Management under TSCA section 6,
Asbestos Part 1: Chrysotile Asbestos.
June 2, 2021. (EPA–HQ–OPPT–2021–
0057–0019). https://
www.regulations.gov/document/EPAHQ-OPPT-2021-0057-0019.
27. EPA. Meeting with OxyChem Corporation
on Risk Management under TSCA
section 6, Asbestos Part 1: Chrysotile
Asbestos. May 27, 2021. (EPA–HQ–
OPPT–2021–0057–0020). https://
www.regulations.gov/document/EPAHQ-OPPT-2021-0057-0020.
28. EPA. Meeting with Westlake Corporation
on Risk Management under TSCA
section 6, Asbestos Part 1: Chrysotile
Asbestos. May 20, 2021. (EPA–HQ–
OPPT–2021–0057–0021). https://
www.regulations.gov/document/EPAHQ-OPPT-2021-0057-0021.
29. EPA. Meeting and Correspondence with
The Chlorine Institute on Risk
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Evaluation and Risk Management for
Part 1: Chrysotile Asbestos. May 18,
2021. (EPA–HQ–OPPT–2021–0057–
0024). https://www.regulations.gov/
document/EPA-HQ-OPPT-2021-00570024.
30. EPA. Summary of External Peer Review
and Public Comments and Disposition
for Chrysotile Asbestos. May 2020 (EPA–
HQ–OPPT–2019–0501).
31. EPA. Information Collection Request
(ICR) for the Regulation of Part 1:
Chrysotile Asbestos under TSCA Section
6(a) (Final Rule). EPA ICR No. 2707.02;
OMB No. 2070–0220. March 2024.
32. EPA. Unfunded Mandates Reform Act
Statement. Asbestos Part 1: Chrysotile
Asbestos; Regulation of Certain
Conditions of Use under TSCA Section
6(a). March 2024.
33. Asbestos Disease Awareness
Organization. Comments submitted at
the Environmental Justice Webinar. June
1, 2021. EPA–HQ–OPPT–2021–0057–
0005. https://www.regulations.gov/
document/EPA-HQ-OPPT-2021-00570005.
X. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/
regulations/and-executive-orders.
A. Executive Orders 12866: Regulatory
Planning and Review and 14094:
Modernizing Regulatory Review
This action is a ‘‘significant regulatory
action’’ as defined under section 3(f)(1)
of Executive Order 12866 (58 FR 51735,
October 4, 1993), as amended by
Executive Order 14094 (88 FR 21879,
April 11, 2023). Accordingly, EPA
submitted this action to the Office of
Management and Budget (OMB) for
Executive Order 12866 review.
Documentation of any changes made in
response to Executive Order 12866
review is available in the docket.
As summarized in Unit I.E., EPA
prepared an analysis of the potential
costs and benefits associated with this
action (Ref. 2), a copy of which is
available in the docket and discussed in
Unit VII.B.
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B. Paperwork Reduction Act (PRA)
The information collection
requirements in this final rule have been
submitted to OMB for approval under
the PRA, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR)
document prepared by EPA has been
assigned EPA ICR No. 2707.02 and OMB
Control No. 2070–0220. You can find a
copy of the ICR in the docket for this
rule (Ref. 31), and it is briefly
summarized here. The information
collection requirements are not
enforceable until OMB approves them.
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The information collection activities
required under this rule include
reporting and recordkeeping
requirements. As explained in Unit
VI.F. and specified at § 751.511,
companies that manufacture (including
import), process, distribute in commerce
and use chrysotile asbestos would be
required to retain certain information at
the company headquarters for five years
from the date of generation. These
information collection activities are
necessary to provide EPA with
information upon inspection. EPA
believes that these information
collection activities would not
significantly impact the regulated
entities. As further explained in the ICR
document:
• Four (4) titanium dioxide
manufacturing facilities that use sheet
gaskets and 8 chlor-alkali facilities are
estimated to incur costs associated with
the ECEL (specifically, developing the
exposure control plan, conducting
exposure monitoring, and the associated
notifications and recordkeeping). Each
firm is predicted to an incur an average
burden of 182.98 hours per year.
• Five (5) chemical manufacturing
facilities that use sheet gaskets and 12
to 1,400 companies installing
aftermarket automotive brakes are
estimated to incur additional
recordkeeping costs associated with
their disposal activities. Firms are
predicted to incur a burden of ranging
from 0.03 hours to 4.42 hours per year.
• For the remaining industry sectors
and recordkeeping activities required by
the rule, records that comply with the
requirements are assumed to already be
maintained as part of ordinary business
records. Therefore, EPA estimates that
such respondents would incur no
additional incremental paperwork
burdens due to the rule.
Respondents/affected entities:
Chrysotile asbestos manufacturers
(including importers), processors,
distributors, and users.
Respondent’s obligation to respond:
Mandatory. TSCA section 6(a) and the
final rule.
Estimated number of respondents:
721.
Frequency of response: On occasion.
Total estimated burden: 2,269 hours
(per year). Burden is defined at 5 CFR
1320.3(b).
Total estimated cost: $370,973 (per
year), includes $233,425 annualized
capital or operation & maintenance
costs.
An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
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numbers for the EPA’s regulations in 40
CFR are listed in 40 CFR part 9. When
OMB approves this ICR, the Agency will
announce that approval in the Federal
Register and publish a technical
amendment to 40 CFR part 9 to display
the OMB control number for the
approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA, 5 U.S.C. 601 et seq. The
small entities subject to the
requirements of this action manufacture
(including import), process, distribute
in commerce and use chrysotile asbestos
in the conditions of use covered by this
rule. As described in more detail in
section 6.2 of the Economic Analysis
(Ref. 2), EPA has determined that 14 to
1,372 small entities would be subject to
the rule. The available information
about the magnitude of the small entity
impacts for each use category are
summarized below:
Chlor-alkali facilities: None of the
three affected firms are small
businesses.
Sheet gasket manufacturing for
chemical production: EPA does not
have the information to calculate the
costs of the rule to small businesses in
this sector, so small business impacts
have not been estimated. EPA is aware
of the identity of a small business that
manufactures sheet gaskets containing
asbestos for chemical production
(including titanium dioxide
production), and the Agency assumes
that there may be a second small
business providing sheet gaskets
containing asbestos for similar uses.
While EPA lacks the information to
estimate the compliance cost and the
resulting impact on firms in this sector,
the one firm EPA is aware of supplying
this sector sells a diverse line of
products (including non-asbestos
gaskets and many products other than
gaskets) serving several different
industries, and it operates several sites
that do not manufacture gaskets
containing asbestos. This suggests that
asbestos-containing gaskets are not a
primary source of revenue for the firm.
EPA assumes that if there is another
manufacturer of asbestos gaskets for
similar uses, that it also sells nonasbestos gaskets. Since asbestos gaskets
are such a niche portion of the gasket
industry, EPA believes this is a
reasonable assumption. If the customers
using gaskets containing asbestos are
able to convert entirely to asbestos-free
gaskets, the affected gasket
manufacturers could likely provide the
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substitute products. These customers
consist of chemical manufacturers that
are all large businesses as far as EPA is
aware. To the extent that asbestos-free
gaskets do not last as long as those
containing asbestos, the rule could
potentially increase revenues for the
affected gasket manufacturers. Asbestosfree products in these applications
reportedly require more frequent
replacement than items containing
asbestos. As a result, the rule could
increase revenues for the affected small
business suppliers if they sell a larger
volume of non-asbestos products to the
end users as replacements.
Sheet gasket end users (chemical
production): None of the 4 firms known
to be affected are small businesses. It is
possible there may be other unknown
small businesses that may be affected.
Oilfield brake block importer: EPA
does not have the information to
calculate the costs of the rule to small
businesses in this sector, so small
business impacts have not been
estimated. There is one firm known to
import and distribute oilfield brake
blocks containing asbestos and it is a
small business. While EPA was not able
to estimate the compliance cost and its
impact on this firm, if the customers
(which may include other small
businesses) with older drilling rigs
currently using brake blocks containing
asbestos continue to use those rigs, the
importer could likely provide the
asbestos-free brake blocks used as
substitutes. To the extent that asbestosfree brake blocks are more expensive
and do not last as long as those
containing asbestos, the rule could
potentially increase revenues for the
affected brake block importer. A less
durable product might be less profitable
for the customers, but selling a product
that has to be replaced more often could
increase revenues for the importer if it
sells a larger volume of non-asbestos
products to the end users as
replacements.
Oilfield brake block—end users: EPA
has not identified any small businesses
using oilfield brake blocks containing
asbestos. If there are such small
businesses, EPA does not have the
information needed to calculate the
costs of the rule to them. Industry
sources have indicated that the use of
asbestos-containing brake blocks has
declined over time because the type of
drilling rigs that use them have been
replaced by equipment that does not
require the use of brake blocks
containing asbestos, or that do not use
brake blocks at all. Since there is only
one known importer and it is small,
there are likely few companies still
using asbestos-containing brake blocks.
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Aftermarket automotive brakes: 11 to
1,369 small businesses are estimated to
be affected by the rule. The estimate of
11 affected small entities assumes that
each affected business performs
between 40 and 700 brake replacements
per year using asbestos brake linings or
pads. The estimate of 1,369 affected
small entities assumes that each affected
business installs a single set of asbestos
brake linings or pads per year. Affected
firms are expected to incur a cost of
approximately $18 per brake
replacement job for the additional
expense of a set of four non-asbestos
brake linings or pads, and about $1 for
recordkeeping for their waste disposal
activities. This results in annual costs
between $20 and $14,000 per firm
(depending on the number of brake
replacements they perform). At the lowend of 11 affected brake replacement
firms, approximately 85% would have
cost impacts of less than 1% of their
annual revenues, about 10% would
have cost impacts between 1% and 3%,
and roughly 6% would have cost
impacts over 3%. At the high-end
estimate of 1,369 affected brake
replacement firms affected, 100% of
firms would have a cost impact of less
than 1% of their annual revenue. As
described in the Economic Analysis
(Ref. 2), aftermarket automobile brakes
containing asbestos are estimated to
have a very small share (0.002%) of the
total market. EPA did not estimate any
costs for these businesses associated
with finding suppliers of non-asbestos
brakes because EPA assumes that these
businesses already sell non-asbestos
brakes as well as brakes containing
asbestos.
Other gaskets: EPA is not aware of
any firms that would be affected for this
use category, since the one firm that
previously indicated that it used these
products subsequently stated that it
does not do so. Therefore, no impacts
are predicted on this use category as a
result of the rule.
Other vehicle friction products: EPA
is not aware of any firms impacted for
this use category because the one firm
that previously indicated to EPA that it
used products in this use category
subsequently stated that it does not do
so. Therefore, no impacts are predicted
on this use category as a result of the
rule. To the extent there are ongoing
uses, it is likely that the effects of the
rule would be similar to those for
aftermarket auto brakes (a few firms
facing a small cost increase for asbestosfree products that probably can be
passed on to consumers).
Details of this analysis are presented
in the Economic Analysis (Ref. 2).
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D. Unfunded Mandates Reform Act
(UMRA)
This action contains a federal
mandate under UMRA, 2 U.S.C. 1531–
1538, that may result in expenditures of
more than the inflation-adjusted UMRA
threshold of $100 million or more for
state, local and tribal governments, in
the aggregate, or the private sector in
any one year. Accordingly, the EPA has
prepared a written statement required
under UMRA section 202. The
statement is included in the docket for
this action and briefly summarized here.
(Ref. 32)
Total annual net compliance costs per
year over the first 12 years of this rule
are estimated to range from a cost of
$342 million to a savings of $126
million, depending on the year. (This
does not include costs for sheet gaskets
used in chemical production, brake
blocks in the oil industry, other vehicle
friction products, or other gaskets,
which were not quantified). Thus, the
cost of the rule in any one year can
exceed $177 million, the inflationadjusted UMRA threshold. When longer
term savings in the chlor-alkali industry
are accounted for over a 35-year period
(the estimated useful lifespan of
facilities in the chlor-alkali industry),
the quantified incremental costs of the
rule using a 3% discount rate range
from savings of less than $1 million per
year to costs of more than $7 million per
year. Using a 7% discount rate, the
incremental costs range from more than
$34 million per year to greater than $43
million per year.
The economic impact of a regulation
on the national economy is generally
considered to be measurable only if the
economic impact of the regulation
reaches 0.25 percent to 0.5 percent of
Gross Domestic Product (GDP) (Ref. 24).
Given the current GDP of $27.62 trillion,
this is equivalent to a cost of $69 billion
to $138 billion. Therefore, EPA has
concluded that this rule is highly
unlikely to have any measurable effect
on the national economy.
The quantified benefits of avoided
cancer incidence due to the
requirements for chlor-alkali facilities,
sheet gaskets in chemical production,
and aftermarket automobile brakes total
approximately $6,000 per year using a
3% discount rate and $3,000 per year
using a 7% discount rate. There are also
benefits due to the reduction in
pollutants generated by electric utilities
that supply power to the chlor-alkali
facilities, as well as various
unquantified benefits.
UMRA section 205 requires that
before promulgating any rule for which
a written statement is required under
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UMRA section 202, the agency shall
identify and consider a reasonable
number of regulatory alternatives and
from those alternatives select the least
costly, most cost-effective or least
burdensome alternative that achieves
the objectives of the rule, unless the
head of the affected agency publishes
with the final rule an explanation of
why the least costly, most cost-effective
or least burdensome method of
achieving the objectives of the rule was
not adopted; or the provisions are
inconsistent with law.
EPA considered two primary
regulatory alternatives to the
requirements that are being finalized in
this action for chrysotile asbestos
diaphragms in the chlor-alkali industry.
Under one alternative the prohibitions
on the processing, distribution in
commerce and commercial use of
asbestos diaphragms at chlor-alkali
facilities would take effect at all
facilities five years after the effective
date of the final rule. Under the other
alternative these prohibitions would
take effect at all facilities after 12 years.
The 12-year option has slightly lower
estimated annualized costs than the
final rule in EPA’s Economic Analysis
(Ref. 2) when using a 7 percent discount
rate. However, as described in Unit
VII.B.4.b.ii., this is an artifact of how the
time at which costs are incurred affects
the incremental annualized cost
estimates of the rule. Moreover, neither
alternative option is consistent with the
statute or the objectives of the rule.
EPA has concluded that the regulatory
alternatives it considered are not
consistent with the statute or the
objectives of the rule. TSCA requires
that EPA specify mandatory compliance
dates for all requirements of a TSCA
section 6(a) rule, and that the dates be
‘‘as soon as practicable’’ and ‘‘provide
for a reasonable transition period.’’ As
described in Unit V., given the
differences among chlor-alkali facilities,
EPA has concluded that a compliance
deadline of five years for the processing,
distribution in commerce and
commercial use at all facilities would
not provide a reasonable transition
period without anticipated disruption to
the available chlorine supply for water
treatment. But allowing the processing,
distribution in commerce and
commercial use of asbestos diaphragms
to continue for 12 years at all facilities
would not be as soon as practicable,
since some facilities will be able to
complete their conversion to nonasbestos technology in less than 12
years. Therefore, neither of the
alternative options considered would be
consistent with the statute or the
objectives of the rule. Instead, EPA is
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finalizing requirements that provide
longer staggered phase-out periods to
provide a reasonable period for
companies to sequentially convert some
facilities from chrysotile asbestos
diaphragm technology to membrane
technology that is still as quickly as is
practicable.
Additional information on EPA’s
estimates of the benefits and costs of
this action are provided in Units I.E.
and VII.B.4. and in the Economic
Analysis (Ref. 2). Information on the
authorizing legislation is provided in
Unit I.B. Information on prior
consultations with affected State, local,
and Tribal governments is provided in
Units X.E and X.F.
This action is not subject to the
requirements of UMRA section 203
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments.
E. Executive Order 13132: Federalism
As discussed in Unit I.E.7., EPA has
concluded that this action has
federalism implications as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999) because regulation
under TSCA section 6(a) may preempt
state law. EPA provides the following
federalism summary impact statement.
The Agency consulted with state and
local officials early in the process of
developing the proposed action to
facilitate their meaningful and timely
input into its development. EPA invited
the following national organizations
representing state and local elected
officials to a meeting on May 13, 2021,
in Washington, DC: National Governors
Association, National Conference of
State Legislatures, Council of State
Governments, National League of Cities,
U.S. Conference of Mayors, National
Association of Counties, International
City/County Management Association,
National Association of Towns and
Townships, County Executives of
America, and Environmental Council of
States. A summary of the meeting with
these organizations, including the views
that they expressed, is available in the
docket (Ref. 7). EPA provided an
opportunity for these organizations to
provide follow-up comments in writing
but did not receive any such comments.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This rulemaking would not have
substantial direct effects on tribal
government because chrysotile asbestos
is not manufactured, processed, or
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distributed in commerce by tribes and
would not impose substantial direct
compliance costs on tribal governments.
Thus, Executive Order 13175 does not
apply to this action. EPA nevertheless
consulted with tribal officials during the
development of this action, consistent
with the EPA Policy on Consultation
and Coordination with Indian Tribes.
EPA met with tribal officials via
teleconferences on May 24, 2021, and
June 3, 2021, concerning the prospective
regulation of chrysotile asbestos under
TSCA section 6 (Ref. 8). Tribal officials
were given the opportunity to
meaningfully interact with EPA risk
managers concerning the current status
of risk management. EPA received
questions during both meetings held
during the consultation period
concerning potential risks to workers,
consumers, and general population.
Participants in the consultations
expressed interest in the conditions of
use where EPA found unreasonable risk
and how EPA would address that
unreasonable risk. EPA responded by
providing the suite of options provided
the agency under TSCA section 6 to
address the unreasonable risk (Ref. 8).
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
Executive Order 13045 (62 FR 19885,
April 23, 1997) directs federal agencies
to include an evaluation of the health
and safety effects of the planned
regulation on children in federal health
and safety standards and explain why
the regulation is preferable to
potentially effective and reasonably
feasible alternatives. This action is
subject to Executive Order 13045
because it is a significant regulatory
action under section 3(f)(1) of Executive
Order 12866, and, as discussed in Unit
I.E.6., EPA believes that the
environmental health or safety risk
addressed by this action has a
disproportionate effect on children. The
health effects of concern related to
exposures to chrysotile asbestos are
mesothelioma, lung and other cancers,
all of which have long latency periods
following exposure. Accordingly, we
have evaluated the environmental
health or safety effects of asbestos on
children.
The Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos (Ref. 1)
demonstrated in sensitivity analyses
that age at first exposure affected risk
estimates, with earlier exposures in life
resulting in greater risk. For children,
exposures can be anticipated (1) as
bystanders for consumer uses such as
aftermarket brakes and (2) in consumer
uses and occupational uses given that
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the risk evaluation presented
information indicating that children 16
years of age may engage in these
activities.
The results of EPA’s evaluation are
contained in the risk evaluation (Ref. 1)
and the Economic Analysis (Ref. 2).
Copies of these documents have been
placed in the public docket for this
action.
This action is preferred over other
regulatory options analyzed because this
action prohibits the manufacture
(including import), processing,
commercial use, and distribution in
commerce of chrysotile asbestos for the
regulated conditions of use as soon as
practicable while providing for a
reasonable transition period.
Furthermore, as discussed in Unit
I.E.6., EPA’s Policy on Children’s Health
also applies to this action. Information
on how the Policy was applied is
available under ‘‘Children’s
Environmental Health’’ in the
SUPPLEMENTARY INFORMATION unit of this
preamble.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution in Commerce, or Use
This action is not a ‘‘significant
energy action’’ under Executive Order
13211 (66 FR 28355, May 22, 2001),
because it is not likely to have a
significant adverse effect on the supply,
distribution or use of energy. The action
is predicted to reduce energy use and is
not expected to reduce energy supply or
increase energy prices.
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I. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards under NTTAA, 15
U.S.C. 272.
J. Executive Orders 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations and 14096:
Revitalizing our Nation’s Commitment
to Environmental Justice for All
In accordance with Executive Orders
12898 (59 FR 7629, February 16, 1994)
and 14096 (88 FR 25251, April 26,
2023), EPA considered the
environmental justice (EJ) conditions
that exist prior to this action, and the
likely effects of this action. EPA believes
that the human health or environmental
conditions that exist prior to this action
result in or have the potential to result
in disproportionate and adverse human
health or environmental effects on
communities with EJ concerns. As
summarized in Unit I.E.5. and described
more fully in the Economic Analysis
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(Ref. 2), the firms that will be subject to
regulation, particularly for the chloralkali and sheet gasket use categories,
are often located in areas with a high
concentration of industrial activities
that pose a variety of environmental
hazards to surrounding populations. It
is not possible to separate potential EJ
concerns currently posed by the use
categories being regulated from other
risks in the community that are
unrelated to chrysotile asbestos.
Although data are not available on the
worker demographics at specific
companies, chemical workers in
communities with chlor-alkali facilities
are more likely to be Hispanic, less
likely to be a race other than White or
Black, and have higher incomes on
average than chemical workers
nationally. Workers in communities
with other affected chemical producers
are more likely to be Black and less
likely to be Hispanic or a race other than
White or Black than chemical workers
nationally.
EPA believes that this action is likely
to reduce existing disproportionate and
adverse effects on communities with EJ
concerns. Any disproportionate impacts
related to the conditions of use that are
subject to this rule will be reduced, and
ultimately eliminated once all of the
prohibitions in the rule take effect.
Thus, EJ concerns will be mitigated
compared to the baseline.
EPA conducted outreach to advocates
of communities with EJ concerns that
might be subject to disproportionate
exposure to chrysotile asbestos. EPA’s
EJ consultation occurred from June 1
through August 13, 2021. On June 1 and
9, 2021, EPA held public meetings as
part of this consultation (Ref. 9). See
also Unit III.A.1. These meetings were
held pursuant to and in compliance
with Executive Order 12898 and
Executive Order 14008, Tackling the
Climate Crisis at Home and Abroad (86
FR 7619, February 1, 2021). EPA
received several comments following
the EJ meetings. Commenters expressed
concerns that consumers who live near
chlor-alkali facilities and Do-It-Yourself
(DIY) auto workers could be exposed
unless chrysotile asbestos is banned
(Ref. 33). EPA also acknowledges that
there are pre-existing EJ concerns in
communities surrounding some of the
affected chlor-alkali facilities and one
other chemical manufacturer in
Louisiana and Texas due to high levels
of polluting industrial activities and
high proportions of residents who are
people of color (described in more detail
in the Economic Analysis (Ref. 2)). This
rule is not expected to affect all of these
pre-existing EJ concerns, since some of
the EJ concerns in these communities
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result from pollutants other than
chrysotile asbestos from facilities that
are not affected by this rule.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5
U.S.C. 801 et seq., and the EPA will
submit a rule report to each House of
the Congress and to the Comptroller
General of the United States. This action
meets the criteria set forth in 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 751
Environmental protection, Chemicals,
Export certification, Hazardous
substances, Import certification,
Recordkeeping.
Michael S. Regan,
Administrator.
Therefore, for the reasons set forth in
the preamble, 40 CFR chapter I is
amended as follows:
PART 751—REGULATION OF CERTAIN
CHEMICAL SUBSTANCES AND
MIXTURES UNDER SECTION 6 OF THE
TOXIC SUBSTANCES CONTROL ACT
1. The authority citation for part 751
continues to read as follows:
■
Authority: 15 U.S.C. 2605, 15 U.S.C.
2625(l)(4).
2. Add a subpart F, consisting of
§§ 751.501 through 751.515, to read as
follows:
■
Subpart F—Chrysotile Asbestos
Sec.
751.501 General.
751.503 Definitions.
751.505 Manufacturing, processing and
commercial use of chrysotile asbestos
diaphragms in the chlor-alkali industry.
751.507 Certification of compliance for the
chlor-alkali industry.
751.509 Other prohibitions and restrictions
of the manufacturing, processing and
commercial use of chrysotile asbestos.
751.511 Interim workplace controls of
asbestos exposures.
751.513 Disposal.
751.515 Recordkeeping.
§ 751.501
General.
This subpart sets certain restrictions
on the manufacture (including import),
processing, distribution in commerce,
and commercial use and disposal of
chrysotile asbestos (CASRN 132207–32–
0) to prevent unreasonable risk of injury
to health in accordance with TSCA
section 6(a), 15 U.S.C. 2605(a).
§ 751.503
Definitions.
The definitions in subpart A of this
part apply to this subpart unless
otherwise specified in this section. In
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addition, the following definitions
apply to this subpart:
Aftermarket automotive brakes and
linings means any automotive friction
brake articles sold in the secondary
market as replacement parts (e.g., brake
pads, linings and shoes) used in disc
and drum brake systems on automobiles
and trucks.
Article means a manufactured item:
(1) Which is formed to a specific
shape or design during manufacture;
(2) Which has end use function(s)
dependent in whole or in part upon its
shape or design during end use; and
(3) Which has either no change of
chemical composition during its end
use or only those changes of
composition which have no commercial
purpose separate from that of the article,
and that result from a chemical reaction
that occurs upon end use of other
chemical substances, mixtures, or
articles; except that fluids and particles
are not considered articles regardless of
shape or design.
Authorized person means any person
specifically authorized by the owner or
operator to enter, and whose duties
require the person to enter, a regulated
area.
Chrysotile asbestos is the asbestiform
variety of a hydrated magnesium silicate
mineral, with relatively long and
flexible crystalline fibers that are
capable of being woven.
Disposal means to discard, throw
away, or otherwise complete or
terminate the useful life of chrysotile
asbestos, including any chrysotile
asbestos-containing products or articles.
Distribution in commerce has the
same meaning as in section 3 of the Act,
but the term does not include
distribution of chrysotile asbestos waste
solely for purposes of disposal in
accordance with this Subpart.
Diaphragms means semipermeable
diaphragms, which separate the anode
from the cathode chemicals in the
production of chlorine and sodium
hydroxide (caustic soda).
Gasket means an article used to form
a leakproof seal between fixed
components.
Membrane technology means a chloralkali production technology that uses
chlorine production cells in which the
anode and the cathode are separated by
an ion-exchange membrane that is
designed to allow only sodium ions and
some water to pass through it.
Nuclear material means any source
material, special nuclear material, or
byproduct material (as such terms are
defined in the Atomic Energy Act of
1954, as amended, and regulations
issued under such Act).
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Oilfield brake blocks means the
friction brake blocks component in
drawworks used in the hoisting
mechanism for oil well drilling rigs.
Other gaskets means gaskets other
than sheet gaskets in chemical
production, to include gaskets used in
the exhaust systems of utility vehicles.
Other vehicle friction products means
friction articles such as brakes and
clutches, other than aftermarket
automotive brakes and linings, installed
on any vehicle, including on off-road
vehicles, trains, planes, etc. Other
vehicle friction products does not
include articles used in the NASA
Super Guppy Turbine aircraft, a
specialty cargo plane used for the
transportation of oversized equipment
that is owned and operated by the
National Aeronautics and Space
Administration (NASA).
Owner or operator means any person
who owns, leases, operates, controls, or
supervises a workplace covered by this
subpart.
Potentially exposed person means any
person who may be occupationally
exposed to a chemical substance or
mixture in a workplace as a result of a
condition of use of that chemical
substance or mixture.
Processing has the same meaning as in
section 3 of the Act, but the term does
not include processing of chrysotile
asbestos waste solely for purposes of
disposal in accordance with this
subpart.
Regulated area means an area
established by the regulated entity to
demarcate where airborne
concentrations of a specific chemical
substance exceed, or there is a
reasonable possibility they may exceed,
the ECEL.
Savannah River Site means the
Department of Energy’s nuclear waste
management and related national
defense operations at its Savannah River
Site in Aiken, Barnwell and Allendale
counties in South Carolina, including
operations at H-Canyon, F and H Tank
Farms, Defense Waste Processing
Facility, Savannah River National
Laboratory and any on-site facility
managed by Savannah River Nuclear
Solutions.
Sheet gaskets in chemical production
means gaskets cut from sheeting,
including asbestos-containing
rubberized sheeting, that are used in
facilities for extreme condition
applications such as titanium dioxide
manufacturing, or processing nuclear
material.
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§ 751.505 Manufacturing, processing,
distribution in commerce and commercial
use of chrysotile asbestos diaphragms in
the chlor-alkali industry.
(a) After May 28, 2024, all persons are
prohibited from manufacture (including
import) of chrysotile asbestos, including
any chrysotile asbestos-containing
products or articles, for diaphragms in
the chlor-alkali industry.
(b) After May 28, 2029, all persons are
prohibited from processing, distribution
in commerce and commercial use of
chrysotile asbestos, including any
chrysotile asbestos-containing products
or articles, for diaphragms in the chloralkali industry, except as provided in
paragraphs (c) through (d) of this
section.
(c) Any person who meets all of the
criteria of this paragraph (c) may
process, distribute in commerce and
commercially use chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for
diaphragms in the chlor-alkali industry
at no more than two facilities until May
25, 2032:
(1) On May 28, 2024, the person owns
or operates more than one facility that
uses chrysotile asbestos in chlor-alkali
production;
(2) The person is converting more
than one facility that the person owns
or operates that as of May 28, 2024 uses
chrysotile asbestos in chlor-alkali
production from the use of chrysotile
asbestos diaphragms to non-chrysotile
asbestos membrane technology, and by
May 28, 2029, the person has ceased all
processing, distribution in commerce
and commercial use of chrysotile
asbestos at one (or more) facility
undergoing or that has undergone
conversion to non-chrysotile asbestos
membrane technology; and
(3) The person certifies to EPA
compliance with the provisions of this
paragraph, in accordance with
§ 751.507.
(d) Any person who meets all of the
criteria of this paragraph (d) may
process, distribute in commerce and
commercially use chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for
diaphragms in the chlor-alkali industry
at not more than one facility until May
26, 2036:
(1) On May 28, 2024, the person owns
or operates more than two facilities that
use chrysotile asbestos in chlor-alkali
production; and
(2) The person is converting more
than two facilities that the person owns
or operates that as of May 28, 2024 use
chrysotile asbestos in chlor-alkali
production from the use of chrysotile
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asbestos diaphragms to non-chrysotile
asbestos membrane technology:
(i) By May 28, 2029, the person has
ceased all processing, distribution in
commerce and commercial use of
chrysotile asbestos at one (or more)
facility undergoing or that has
undergone such conversion; and
(ii) By May 25, 2032 the person has
ceased all processing, distribution in
commerce and commercial use of
chrysotile asbestos at two (or more)
facilities undergoing or that have
undergone conversion to non-chrysotile
asbestos membrane technology; and
(3) The person certifies to EPA
compliance with the provisions of this
paragraph, in accordance with
§ 751.507.
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§ 751.507 Certification of compliance for
the chlor-alkali industry.
(a) In addition to meeting the
requirements of §§ 751.505(c), any
person who processes, distributes in
commerce or commercially uses
chrysotile asbestos for diaphragms in
the chlor-alkali industry between May
28, 2029 and May 25, 2032 must:
(1) Certify to EPA their compliance
with all requirements of § 751.505(c);
and
(2) Provide the following information
to EPA to support their compliance with
the requirements of § 751.505(c):
(i) Identification of the facility for
which, by May 28, 2029, the person has
ceased all processing, distribution in
commerce and commercial use of
chrysotile asbestos, pursuant to
§ 751.505(c)(2), including:
(A) facility name, location, and
mailing address;
(B) name of facility manager or other
contact, title, phone number and email
address; and
(C) date the person ceased all
processing, distribution in commerce
and commercial use of chrysotile
asbestos at the facility.
(ii) Identification of the facility or
facilities (no more than two facilities)
for which the person will after May 28,
2029, continue to process, distribute in
commerce and commercially use
chrysotile asbestos diaphragms while
the facility or facilities are being
converted to non-chrysotile asbestos
membrane technology, pursuant to
§ 751.505(c), including for each facility:
(A) facility name, location, and
mailing address; and
(B) name of facility manager or other
contact, title, phone number and email
address.
(b) In addition to meeting the
requirements of paragraph (a) of this
section and §§ 751.505(d), any person
who processes, distributes in commerce
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or commercially uses chrysotile asbestos
for diaphragms in the chlor-alkali
industry between May 25, 2032 and
May 26, 2036 must:
(1) Certify to EPA their compliance
with all requirements of § 751.505(d);
and
(2) Provide the following information
to EPA to support their compliance with
the requirements of § 751.505(d):
(i) Identification of the facility
identified in § 751.505(d)(2)(ii) at which
as of May 25, 2032, the person has
ceased all processing, distribution in
commerce and commercial use of
chrysotile asbestos, including:
(A) facility name, location, and
mailing address;
(B) name of facility manager or other
contact, title, phone number and email
address; and
(C) date the person has ceased all
processing, distribution in commerce
and commercial use of chrysotile
asbestos at the facility.
(ii) Identification of the facility at
which the person will between May 25,
2032 and no later than May 26, 2036,
continue to process, distribute in
commerce and commercially use
chrysotile asbestos diaphragms while
the facility is being converted to nonchrysotile asbestos membrane
technology pursuant to § 751.505(d),
including:
(A) facility name, location, and
mailing address; and
(B) name of facility manager or other
contact, title, phone number and email
address.
(c) The certification required by
paragraphs (a) and (b) of this section
must be signed and dated by a
responsible corporate officer. For the
purpose of this section, a responsible
corporate officer means: a president,
secretary, treasurer, or vice-president of
the corporation in charge of chlor-alkali
operations, or any other person who
performs similar policy or decisionmaking functions for the corporation.
(d) Any person signing a document
under paragraph (c) of this section shall
also make the following certification:
‘‘I certify under penalty of law that this
document was prepared under my direction
or supervision, and the information is, to the
best of my knowledge and belief, true,
accurate, and complete. I am aware it is
unlawful to knowingly submit incomplete,
false and/or misleading information and
there are criminal penalties for such
conduct.’’
(e) This certification must be
submitted to the Director, Office of
Pollution Prevention and Toxics
(OPPT), using the address specified at
40 CFR 700.17(a).
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(1) The certification under paragraph
(a) of this section must be submitted no
later than 10 business days after May 28,
2029; and
(2) The certification under paragraph
(b) of this section must be submitted no
later than 10 business days after May 25,
2032.
§ 751.509 Other prohibitions and
restrictions on the manufacturing,
processing, distribution in commerce and
commercial use of chrysotile asbestos.
(a) After May 27, 2026, all persons are
prohibited from manufacturing
(including importing), processing,
distributing in commerce, and
commercial use of chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for use
in sheet gaskets for chemical
production, except as provided in
paragraphs (b) and (c) of this section.
Any sheet gaskets for chemical
production which are already installed
for use on May 27, 2026 are not subject
to the distribution in commerce and
commercial use prohibitions.
(b) Any person may commercially use
chrysotile asbestos sheet gaskets for
titanium dioxide production until May
28, 2029.
(c)(1)(i) Any person may
commercially use chrysotile asbestos
sheet gaskets for processing nuclear
material until May 28, 2029.
(ii) Any person may commercially use
chrysotile asbestos sheet gaskets for
processing nuclear material at the
Savannah River Site until December 31,
2037.
(2) After November 25, 2024, any
person commercially using chrysotile
asbestos sheet gaskets for processing
nuclear material pursuant to (c)(1)(i)
and (ii) must have in place exposure
controls expected to reduce exposure of
potentially exposed persons to asbestos,
and provide potentially exposed
persons in the regulated area where
chrysotile asbestos sheet gasket
replacement is being performed a fullface air purifying respirator with a P–
100 (HEPA) cartridge (providing an
assigned protection factor of 50), or
other respirator that provides a similar
or higher level of protection to the
wearer.
(3)(i) Any sheet gaskets for processing
nuclear material which are already
installed for use on May 28, 2029 are
not subject to the distribution in
commerce and commercial use
prohibitions in paragraphs (a) of this
section.
(ii) Any sheet gaskets for processing
nuclear material at the Savannah River
Site which are already installed for use
on December 31, 2037, are not subject
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to the distribution in commerce and
commercial use prohibitions in
paragraphs (a) of this section.
(d) After November 25, 2024, all
persons are prohibited from
manufacturing (including importing),
processing, distribution in commerce
and commercial use of chrysotile
asbestos, including any chrysotile
asbestos-containing products or articles,
for commercial use of:
(1) Oilfield brake blocks;
(2) Aftermarket automotive brakes and
linings;
(3) Other vehicle friction products;
and
(4) Other gaskets.
(e) After November 25, 2024, all
persons are prohibited from the
manufacturing (including importing),
processing, and distribution in
commerce of chrysotile asbestos,
including any chrysotile asbestoscontaining products or articles, for
consumer use of:
(1) Aftermarket automotive brakes and
linings; and
(2) Other gaskets.
(f) On November 25, 2024:
(1) Any aftermarket automotive brakes
and linings, other vehicle friction
products, and other gaskets which are
already installed for commercial use are
not subject to the prohibitions on
distribution in commerce and
commercial use under paragraph (d) of
this section.
(2) Any aftermarket automotive brakes
and linings, and other gaskets which are
already installed for consumer use are
not subject to the distribution in
commerce prohibition under paragraph
(e) of this section.
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§ 751.511 Interim workplace controls of
chrysotile asbestos exposures.
(a) Applicability. This section applies
to processing and commercial use of
chrysotile asbestos, including any
chrysotile asbestos-containing products
or articles, for chrysotile asbestos
diaphragms in the chlor-alkali industry;
and to the commercial use of chrysotile
asbestos sheet gaskets for titanium
dioxide production.
(b) Interim Existing Chemical
Exposure Limit (ECEL). Beginning
November 25, 2024, the owner or
operator must ensure that no person is
exposed to an airborne concentration of
chrysotile asbestos in excess of the
interim ECEL for chrysotile asbestos of
0.005 fibers (f)/cubic centimeter (cc) as
an eight (8)-hour time-weighted average
(TWA). Where an owner or operator
cannot demonstrate exposure at or
below the ECEL, including through the
use of all technically feasible
engineering controls or work practices
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as described in paragraph (e)(1) of this
section, and has not demonstrated that
it has appropriately supplemented with
respiratory protection that complies
with the requirements of paragraph (f) of
this section, this will constitute a failure
to comply with the ECEL.
(c) Exposure monitoring—(1) In
general. (i) Owners or operators must
determine each potentially exposed
person’s exposure from personal
breathing zone air samples that are
representative of the 8-hour TWA
exposure of each potentially exposed
person.
(ii) Representative 8-hour TWA of a
potentially exposed person’s exposure
must be determined on the basis of one
or more samples representing full-shift
exposures for each shift for each
potentially exposed person in each job
classification in each work area.
(2) Initial exposure monitoring. No
later than November 25, 2024 each
owner or operator covered by paragraph
(a) of this section as of May 28, 2024,
must perform initial exposure
monitoring of all potentially exposed
persons.
(3) Periodic exposure monitoring. The
owner or operator must establish an
exposure monitoring program for
periodic monitoring of exposure to
chrysotile asbestos. If one or more
samples representing full-shift
exposures from the most recent
exposure monitoring exceeds the ECEL
(>0.005 f/cc 8-hour TWA), periodic
exposure monitoring is required within
three months of the most recent
exposure monitoring. Otherwise,
periodic exposure monitoring is
required within six months of the most
recent exposure monitoring.
(4) Additional exposure monitoring.
The owner or operator must conduct
additional exposure monitoring within a
reasonable timeframe after there has
been a change in the production,
process, control equipment, personnel
or work practices that may result in new
or additional exposures above the ECEL
or the owner or operator has any reason
to suspect that a change may result in
new or additional exposures above the
ECEL.
(5) Method of monitoring. (i) Exposure
monitoring samples must be personal
breathing zone samples collected and
analyzed using methods and quality
control procedures described in
Appendix A to 29 CFR 1910.1001, or as
referenced in Appendix A to 29 CFR
1910.1001 (Appendix B to 29 CFR
1910.1001, OSHA method ID–160, or
the NIOSH 7400 method).
(ii) Owners or operators must use
exposure monitoring methods that
conform with the OSHA Reference
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Method specified in Appendix A of 29
CFR 1910.1001 or an equivalent
method. If an equivalent method is
used, the owner or operator must ensure
that the method meets the following
criteria:
(A) Replicate exposure data used to
establish equivalency are collected in
side-by-side field and laboratory
comparisons; and
(B) The comparison indicates that
90% of the samples collected in the
range 0.5 to 2.0 times the ECEL or the
lowest concentration possible have an
accuracy range of plus or minus 25
percent of the OSHA Reference Method
specified in Appendix A of 29 CFR
1910.1001 at a 95 percent confidence
level as demonstrated by a statistically
valid protocol. The NIOSH 7402
analytical method may be applied to
adjust the analytical result to include
only chrysotile asbestos.
(6) Notification of exposure
monitoring results. (i) The owner or
operator must, within 15 business days
of receipt of monitoring results, notify
each potentially exposed person of these
results either individually in writing or
by posting the results in an appropriate
location that is accessible to all
potentially exposed persons. The notice
must be in plain language and
understandable to all potentially
exposed persons.
(ii) The written notification required
by paragraph (c)(6)(i) of this section
must include the corrective action being
taken by the owner or operator to reduce
exposure to or below the ECEL,
wherever monitoring results indicated
that the ECEL had been exceeded.
(d) Regulated areas—(1)
Establishment. Beginning November 25,
2024 the owner or operator must
establish regulated areas wherever
airborne concentrations of chrysotile
asbestos exceed, or there is a reasonable
possibility that they may exceed, the
ECEL.
(2) Demarcation. The owner or
operator must demarcate regulated areas
from the rest of the workplace in a
manner that minimizes the number of
persons who will be exposed to
chrysotile asbestos.
(3) Access. The owner or operator
must limit access to regulated areas to
authorized persons or other persons
required by work duties to be present in
regulated areas.
(4) Provision of respirators. The owner
or operator must supply a respirator
selected in accordance with paragraph
(f) of this section to each person
entering a regulated area and must
require the use of such respirator.
(5) Prohibited activities. The owner or
operator must ensure that persons do
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not eat, drink, smoke, chew tobacco or
gum, or apply cosmetics in the regulated
area.
(e) Exposure Control Procedures and
Plan—(1) Exposure Controls. (A) The
owner or operator must institute
engineering controls and work practices
to reduce and maintain airborne
chrysotile asbestos concentrations to or
below the ECEL, except to the extent
that the owner or operator can
demonstrate that such controls are not
feasible.
(B) Wherever the feasible engineering
controls and work practices that can be
instituted are not sufficient to reduce
airborne chrysotile asbestos
concentrations to or below the ECEL,
the owner or operator must use them to
reduce exposures to the lowest levels
achievable by these controls. If the
feasible engineering controls and work
practices cannot reduce exposures to or
below the ECEL, the owner or operator
must supplement the controls by
providing and requiring the use of
respiratory protection that complies
with the requirements of paragraph (f) of
this section.
(2) Exposure Control Plan
Requirements. (i) Beginning March 28,
2025, when the airborne chrysotile
asbestos concentrations exceed the
ECEL, or are reasonably expected to
exceed the ECEL, owners and operators
must establish and implement an
exposure control plan to reduce
exposures to all potentially exposed
persons to or below the ECEL by means
of engineering controls and work
practices, and by the use of respiratory
protection where required under
paragraph (e)(1)(B) of this section. The
exposure control plan must be available
to persons exposed to chrysotile
asbestos.
(ii) The exposure control plan must be
reviewed and updated as necessary, but
at least annually, to reflect any
significant changes in the status of the
owner or operator’s compliance with the
requirements of this section.
(iii) The owner or operator must not
implement a schedule of personnel
rotation as a means of compliance with
the ECEL.
(iv) The exposure control plan must
include:
(A) An explanation of the exposure
controls considered, a rationale for why
exposure controls were selected or not
selected, based on feasibility,
effectiveness, and other relevant
considerations;
(B) Descriptions of actions the owner
or operator must take to implement the
exposure controls selected, including
proper installation, maintenance,
training, or other actions, and the
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estimated timeline for implementing
such controls;
(C) Description of activities conducted
by the owner or operator to review and
update the exposure control plan to
ensure effectiveness of the exposure
controls, identify any necessary updates
to the exposure controls, and confirm
that all persons are properly
implementing the exposure controls;
and
(D) An explanation of the procedures
for responding to any change that may
reasonably be expected to introduce
additional sources of exposure to
chrysotile asbestos, or otherwise result
in increased exposure to chrysotile
asbestos, including procedures for
implementing corrective actions to
mitigate exposure to chrysotile asbestos.
(f) Respiratory protection—(1) Method
of Compliance. Beginning November 25,
2024, if an owner or operator is required
to provide respiratory protection
pursuant to paragraphs (d)(4) or (e)(1)(B)
of this section, the owner or operator
must provide each potentially exposed
person with a respirator according to the
requirements of this section.
(2) Respirator program. For purposes
of this paragraph (f)(2), the crossreferenced provisions in 29 CFR
1910.134 applying to an ‘‘employee’’
also apply equally to potentially
exposed persons, and provisions
applying to an ‘‘employer’’ also apply
equally to owners or operators.
(i) Owners and operators must select
respiratory protection that properly fits
each affected person and communicate
respirator selections to each affected
person consistent with the requirements
of 29 CFR 1910.134(f) and 1910.134
App. A.
(ii) Owners and operators must
provide, ensure use of, and maintain (in
a sanitary, reliable, and undamaged
condition) respiratory protection that is
of safe design and construction for the
applicable condition of use consistent
with the requirements of 29 CFR
1910.134(g) through (j) and 1910.134
App. B–1 to B–2.
(iii) Prior to or at the time of initial
assignment to a job involving potential
exposure to chrysotile asbestos, owners
and operators must provide training and
retraining to all persons required to use
respiratory protection consistent with
29 CFR 1910.134(k).
(3) Respirator selection. Owners or
operators must select and provide
appropriate respirators based on the
most recent exposure monitoring. The
minimum respiratory protection that
must be provided is as follows:
(i) If the most recent exposure
monitoring indicates that the exposure
concentration is at or below the 0.005 f/
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22009
cc (ECEL): no respiratory protection is
required.
(ii) If the most recent exposure
monitoring indicates that the exposure
concentration is above 0.005 f/cc (ECEL)
and less than or equal to 0.05 f/cc (10
times the ECEL):
(A) A half-mask supplied-air
respirator (SAR) or airline respirator
operated in demand mode; or
(B) A half-mask self-contained
breathing apparatus (SCBA) respirator
operated in demand mode (Assigned
Protection Factor 10).
(iii) If the most recent exposure
monitoring indicates that the exposure
concentration is above 0.05 f/cc (10
times the ECEL) and less than or equal
to 0.125 f/cc (25 times the ECEL): A
loose fitting facepiece supplied-air
respirator (SAR) or airline respirator
operated in continuous flow mode
(Assigned Protection Factor 25).
(iv) If the most recent exposure
monitoring indicates that the exposure
concentration is above 0.125 f/cc (25
times the ECEL) and less than or equal
to 0.25 f/cc (50 times the ECEL):
(A) A full facepiece supplied-air
respirator (SAR) or airline respirator
operated in demand mode; or
(B) A half-mask supplied-air
respirator (SAR) or airline respirator
operated in continuous flow mode; or
(C) A half-mask supplied-air
respirator (SAR) or airline respirator
operated in pressure-demand or other
positive-pressure mode; or
(D) A full facepiece self-contained
breathing apparatus (SCBA) respirator
operated in demand mode; or
(E) A helmet/hood self-contained
breathing apparatus (SCBA) respirator
operated in demand mode (Assigned
Protection Factor 50).
(v) If the most recent exposure
monitoring indicates that the exposure
concentration is above 0.25 f/cc (50
times the ECEL) and less than or equal
to 5 f/cc (1,000 times the ECEL): A fullfacepiece supplied-air respirator (SAR)
or airline respirator operated in
pressure-demand or other positivepressure mode (Assigned Protection
Factor 1,000).
(vi) If the most recent exposure
monitoring indicates that the exposure
concentration is above 5 f/cc (1,000
times the ECEL) and less than or equal
to 50 f/cc (10,000 times the ECEL):
(A) A full-facepiece self-contained
breathing apparatus (SCBA) respirator
operated in pressure-demand or other
positive-pressure mode; or
(B) A helmet/hood self-contained
breathing apparatus (SCBA) respirator
operated in pressure-demand or other
positive-pressure mode (Assigned
Protection Factor 10,000).
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(vii) The respiratory protection
requirements in paragraph (f)(3) of this
section represent the minimum
respiratory protection requirements,
such that any respirator affording a
higher degree of protection than the
required respirator may be used.
(g) Workplace information and
training. (1) By November 25, 2024, the
owner or operator must institute a
training program and ensure that
persons potentially exposed to
chrysotile asbestos participate in the
program according to the requirements
of this paragraph (g).
(2) The owner or operator must train
each potentially exposed person prior or
at the time of a potential exposure to
chrysotile asbestos and at least annually
thereafter.
(3) The owner or operator must ensure
that information and training is
presented in a manner that is
understandable to each person required
to be trained.
(4) The following information and
training must be provided to all persons
potentially exposed to chrysotile
asbestos:
(i) The health effects associated with
exposure to chrysotile asbestos, based
on the most recent publication by EPA,
OSHA, NIOSH, and/or CDC;
(ii) The quantity, location, manner of
use, release, and storage of chrysotile
asbestos and the specific operations in
the workplace that could result in
exposure to chrysotile asbestos, noting
where each regulated area is located;
(iii) The specific procedures
implemented to control exposures and
manage occupational risks to persons
potentially exposed to chrysotile
asbestos, such as engineering controls,
work practices and personal protective
equipment to be used; and
(iv) The requirements of this section,
as well as how to access or obtain a
copy of these regulations.
(5) Whenever there are workplace
changes, such as modifications of tasks
or procedures or the institution of new
tasks or procedures, or when the
airborne concentration of chrysotile
asbestos increases, or when the
exposure control plan is updated
according to paragraph (e)(2)(ii) of this
section, the owner or operator must
update the training and re-train each
potentially exposed person.
§ 751.513
Disposal.
(a) After November 25, 2024, all
persons disposing of chrysotile asbestos
and any chrysotile asbestos-containing
products or articles subject to § 751.505,
must dispose of chrysotile asbestos and
any chrysotile asbestos-containing
products or articles, as applicable:
VerDate Sep<11>2014
20:44 Mar 27, 2024
Jkt 262001
(1) In accordance with the Asbestos
General Industry Standard—(29 CFR
1910.1001(k)).
(2) In conformance with the asbestos
waste disposal requirements at 40 CFR
61.150.
(b) After November 25, 2024, all
persons disposing of chrysotile asbestos
and any chrysotile asbestos-containing
products or articles subject to
paragraphs (a) through (c) of § 751.509
must dispose of chrysotile asbestos and
any chrysotile asbestos-containing
products or articles, as applicable:
(1) In accordance with the Asbestos
Safety and Health Regulations for
Construction—(29 CFR 1926.1101)
(2) [Reserved]
(c) After November 25, 2024, all
persons disposing of chrysotile asbestos
and any chrysotile asbestos-containing
products or articles subject to
§ 751.509(d) must dispose of chrysotile
asbestos and any chrysotile asbestoscontaining products or articles, as
applicable:
(1) In accordance with the Asbestos
General Industry Standard—(29 CFR
1910.1001).
(2) In conformance with the asbestos
waste disposal requirements at 40 CFR
61.150.
(d) After November 25, 2024, each
manufacturer (including importer),
processor, and distributor of chrysotile
asbestos, including any chrysotile
asbestos-containing products or articles,
for consumer use, disposing of
chrysotile asbestos and any chrysotile
asbestos-containing products or articles
subject to § 751.509(e), must dispose of
chrysotile asbestos and any chrysotile
asbestos-containing products or articles,
as applicable:
(1) In accordance with the Asbestos
General Industry Standard at 29 CFR
1910.1001(k).
(2) In conformance with the asbestos
waste disposal requirements at 40 CFR
61.150.
§ 751.515
Recordkeeping.
(a) General records. After November
25, 2024, all persons who manufacture
(including import), process, or
distribute in commerce or engage in
commercial use of chrysotile asbestos
must maintain ordinary business
records, such as invoices and bills-oflading related to compliance with the
prohibitions, restrictions, and other
provisions of this subpart.
(b) Certification of compliance for
chlor-alkali industry records. Persons
required pursuant to § 751.507 to certify
compliance with § 751.505 must:
(1) Retain records of certifications
prepared to comply with § 751.507 and
records to substantiate such
certifications; and
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(2) Make the records retained
pursuant to paragraph (b)(1) of this
section available to EPA for inspection.
(c) Interim workplace controls of
chrysotile asbestos exposures records—
(1) Exposure monitoring. For each
monitoring event, owners or operators
subject to the exposure monitoring
required by § 751.511(c) must
document, retain records of the
following and make them available to
EPA for inspection:
(i) Dates, duration, and results of each
sample taken;
(ii) The quantity, location(s) and
manner of chrysotile asbestos use at the
time of each monitoring event;
(iii) All measurements that may be
necessary to determine sampling
conditions that may have affected the
monitoring results;
(iv) Name, address, work shift, job
classification, work area, and type of
respiratory protection (if any) of each
monitored person;
(vi) Sampling and analytical methods
used and documentation of compliance
with the quality control procedures
described in § 751.511(c)(5)(i) and (ii);
and
(vii) Notification of exposure
monitoring results in accordance with
§ 751.511(c)(6).
(2) Other requirements. Owners or
operators subject to the interim
workplace controls described in
§ 751.511 must retain records and make
them available to EPA for inspection of:
(i) The exposure control plan and its
implementation as required by
§ 751.511(e).
(ii) Respiratory protection used and
program implementation as described in
§ 751.511(f); and
(iii) Information and training
provided by the owner or operator as
required by § 751.511(g).
(d) Disposal records. Each person,
except a consumer, who disposes of any
chrysotile asbestos and any chrysotile
asbestos-containing products or articles
subject to § 751.513, after November 25,
2024 must retain in one location at the
headquarters of the company, or at the
facility for which the records were
generated, documentation showing any
records related to any disposal of
chrysotile asbestos and any chrysotile
asbestos-containing products or articles
generated pursuant to, or otherwise
documenting compliance with,
regulations specified in § 751.513.
(e) Retention. The documentation in
this section must be retained for 5 years
from the date of generation.
[FR Doc. 2024–05972 Filed 3–27–24; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 89, Number 61 (Thursday, March 28, 2024)]
[Rules and Regulations]
[Pages 21970-22010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05972]
[[Page 21969]]
Vol. 89
Thursday,
No. 61
March 28, 2024
Part IV
Environmental Protection Agency
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40 CFR Part 751
Asbestos Part 1; Chrysotile Asbestos; Regulation of Certain Conditions
of Use Under the Toxic Substances Control Act (TSCA); Final Rule
Federal Register / Vol. 89 , No. 61 / Thursday, March 28, 2024 /
Rules and Regulations
[[Page 21970]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 751
[EPA-HQ-OPPT-2021-0057; FRL-8332-01-OCSPP]
RIN 2070-AK86
Asbestos Part 1; Chrysotile Asbestos; Regulation of Certain
Conditions of Use Under the Toxic Substances Control Act (TSCA)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
issuing this final rule under the Toxic Substances Control Act (TSCA)
to address to the extent necessary the unreasonable risk of injury to
health presented by chrysotile asbestos based on the risks posed by
certain conditions of use. The injuries to human health include
mesothelioma and lung, ovarian, and laryngeal cancers resulting from
chronic inhalation exposure to chrysotile asbestos.
DATES: This final rule is effective on May 28, 2024.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPPT-2021-0057, is available online
at https://www.regulations.gov. Additional instructions for visiting
the docket, along with more information about dockets generally, is
available at https://www.epa.gov/.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: Peter Gimlin, Existing Chemicals
Risk Management Division (7405M), Office of Pollution Prevention and
Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460-0001; telephone number: (202) 566-0515; email
address: [email protected].
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this final action if you
manufacture (including import), process, distribute in commerce, use,
or dispose of chrysotile asbestos. TSCA section 3(9) defines the term
``manufacture'' to mean to import into the customs territory of the
United States (as defined in general note 2 of the Harmonized Tariff
Schedule of the United States), produce, or manufacture. Therefore,
unless expressly stated otherwise, importers of chrysotile asbestos are
subject to any provisions regulating manufacture of chrysotile
asbestos. The following list of North American Industrial
Classification System (NAICS) codes is not intended to be exhaustive,
but rather provides a guide to help readers determine whether this
document applies to them. Potentially affected entities may include:
Oil and Gas Extraction (NAICS code 211).
Nuclear Electric Power Generation (NAICS code 221113).
Chemical Manufacturing (NAICS code 325).
Fabricated Metal Product Manufacturing (NAICS code 332).
Transportation Equipment Manufacturing (NAICS code 336).
Gasket, Packing, and Sealing Device Manufacturing (NAICS
code 339991).
Motor Vehicle and Motor Vehicle Parts and Supplies
Merchant Wholesalers (NAICS code 4231).
Motor Vehicle and Parts Dealers (NAICS code 441).
Automotive Repair and Maintenance (NAICS code 8111).
This action may also affect certain entities through pre-existing
import, including import certification, and export notification rules
under TSCA. Persons who import any chemical substance in bulk form, as
part of a mixture, or as part of an article (if required by rule) are
also subject to TSCA section 13 import certification requirements and
the corresponding regulations at 19 CFR 12.118 through 12.127; see also
19 CFR 127.28. Those persons must certify that the shipment of the
chemical substance complies with all applicable rules and orders under
TSCA. The EPA policy in support of import certification appears at 40
CFR part 707, subpart B. In addition, any persons who export or intend
to export a chemical substance that is the subject of this final rule
are subject to the export notification provisions of TSCA section 12(b)
(15 U.S.C. 2611(b)), and must comply with the export notification
requirements in 40 CFR part 707, subpart D. Asbestos (including
chrysotile asbestos) is already subject to TSCA section 6(a) (40 CFR
part 763, subparts G and I) rules and a significant new use rule under
TSCA section 5(a)(2) (40 CFR part 721.11095) that trigger the export
notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b); see
also 40 CFR 721.20). Any person who exports or intends to export
asbestos (including chrysotile asbestos) must comply with the export
notification requirements in 40 CFR part 707, subpart D.
If you have any questions regarding the applicability of this final
action to a particular entity, consult the technical information
contact listed under FOR FURTHER INFORMATION CONTACT.
B. What is the Agency's authority for taking this action?
Under TSCA section 6(a) (15 U.S.C. 2605(a)), if the EPA determines
through a TSCA section 6(b) risk evaluation that a chemical substance
presents an unreasonable risk of injury to health or the environment,
without consideration of costs or other non-risk factors, including an
unreasonable risk to a potentially exposed or susceptible subpopulation
identified as relevant to the risk evaluation, under the conditions of
use, EPA must by rule apply one or more requirements to the extent
necessary so that the chemical substance or mixture no longer presents
such risk.
C. What action is the Agency taking?
Pursuant to TSCA section 6(b), EPA determined that chrysotile
asbestos presents an unreasonable risk of injury to health, without
consideration of costs or other non-risk factors, including an
unreasonable risk to potentially exposed or susceptible subpopulations
identified as relevant to the 2020 Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos by EPA, under the following conditions of use
(Ref. 1):
Processing and Industrial use of Chrysotile Asbestos
Diaphragms in the Chlor-alkali Industry;
Processing and Industrial Use of Chrysotile Asbestos-
Containing Sheet Gaskets in Chemical Production;
Industrial Use and Disposal of Chrysotile Asbestos-
Containing Brake Blocks in the Oil Industry;
Commercial Use and Disposal of Aftermarket Automotive
Chrysotile Asbestos-Containing Brakes/Linings;
Commercial Use and Disposal of Other Chrysotile Asbestos-
Containing Vehicle Friction Products;
Commercial Use and Disposal of Other Chrysotile Asbestos-
Containing Gaskets;
Consumer Use and Disposal of Aftermarket Automotive
Chrysotile Asbestos-Containing Brakes/Linings; and
Consumer Use and Disposal of Other Chrysotile Asbestos-
Containing Gaskets.
A detailed description of the conditions of use that contribute to
[[Page 21971]]
EPA's determination that chrysotile asbestos presents an unreasonable
risk is included in Unit II.C.2. Accordingly, to address the
unreasonable risk, EPA is issuing this final rule under TSCA section
6(a) to:
(i) Prohibit the manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, in
the chlor-alkali industry and require interim workplace controls;
(ii) Prohibit the manufacture (including import), processing, use,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
sheet gaskets in chemical production and require interim workplace
controls for certain commercial uses;
(iii) Prohibit the manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
oilfield brake blocks, aftermarket automotive brakes and linings, other
vehicle friction products and other gaskets;
(iv) Prohibit the manufacture (including import), processing, and
distribution in commerce of chrysotile asbestos, including any
chrysotile asbestos-containing products or articles, for consumer use
of aftermarket automotive brakes and linings and other gaskets; and
(v) Establish disposal and recordkeeping requirements.
D. Why is the Agency taking this action?
Under TSCA section 6(a), ``[i]f the Administrator determines in
accordance with subsection (b)(4)(A) that the manufacture, processing,
distribution in commerce, use or disposal of a chemical substance or
mixture, or that any combination of such activities, presents an
unreasonable risk of injury to health or the environment, the
Administrator shall by rule . . . apply one or more of the [section
6(a)] requirements to such substance or mixture to the extent necessary
so that the chemical substance no longer presents such risk.''
Chrysotile asbestos was the subject of a risk evaluation under TSCA
section 6(b)(4)(A) that was issued in December 2020 (Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos) (Ref. 1). On April 12, 2022,
EPA issued a proposed rule (87 FR 21706) (FRL-8332-02-OCSPP) under TSCA
section 6(a) to regulate those conditions of use evaluated in the 2020
Risk Evaluation for which EPA determined unreasonable risk, so that
chrysotile asbestos does not present unreasonable risk as determined in
the 2020 Risk Evaluation, and the Agency received public comment on the
proposal. After the close of the public comment period for the proposed
rule, EPA received comments and held meetings with stakeholders. EPA
issued a Notice of Data Availability on March 17, 2023 (88 FR 16389)
(FRL-8332-04-OCSPP), to request additional public comment on any
information received during and after the proposed rule public comment
period and how EPA should consider such information in the development
of this final rule. With this action, EPA is finalizing with
modifications the rule proposed on April 12, 2022 (87 FR 21706), so
that conditions of use of chrysotile asbestos do not present
unreasonable risk, as determined in the 2020 Risk Evaluation. The
unreasonable risk is described in Unit II.C.1. and the conditions of
use that are the subject of this final action are described in Unit
II.C.2.
E. What are the estimated incremental impacts of this action?
EPA has prepared an Economic Analysis of the potential incremental
impacts associated with this rulemaking. (Ref. 2).
1. Background
Asbestos use in the nation has been declining for decades and
current domestic consumption of raw asbestos is less than 0.1% of peak
consumption in the early 1970s. Chlor-alkali producers are the only
industry in the U.S. known to fabricate products from raw chrysotile
asbestos. In addition, EPA has concluded that imports of a few
asbestos-containing products are intended, known, or reasonably
foreseen to occur; while the total quantity of asbestos in those
products is uncertain, it is believed to be relatively small (see
Appendix C of the Risk Evaluation).
2. Costs
Three firms own a total of eight chlor-alkali facilities in the
U.S. that still use asbestos diaphragms to produce chlorine and sodium
hydroxide (also known as caustic soda). The eight facilities range in
age from 42 to 83 years old, although some have had new capacity added
as recently as 18 years ago, and others may have had recent
refurbishments. The share of total chlorine and caustic soda production
using asbestos diaphragm cells has been declining over time. The
diaphragm cells in these facilities currently represent about one-third
of U.S. chlor-alkali production capacity. EPA anticipates that firms
will respond to the rule by converting their asbestos diaphragm cells
to non-asbestos diaphragms or membrane cells, which do not use
asbestos. A more detailed discussion of the expected impacts of
conversion from asbestos-containing diaphragm cells to non-asbestos
diaphragms or membrane cells is located in Unit VII.B.5.
Converting the facilities using asbestos diaphragm cells to non-
asbestos technologies is predicted to require an investment of
approximately $2.8 billion to $3.4 billion across all eight facilities.
For a number of these facilities, the non-asbestos technologies,
particularly membrane cells, are more energy efficient than asbestos
diaphragm cells, so those conversions are expected to result in savings
for the companies that would accrue over the lifetimes of the
facilities. The dollar value of the expected change in energy usage
(which is a net energy savings across all the facilities) is included
in the estimated net annualized costs. Membrane cells also produce a
higher grade of caustic soda that has historically commanded a higher
price than the product from asbestos diaphragm cells, and which may
continue to do so in the future. EPA anticipates that the conversions
to non-asbestos diaphragms and membranes would occur in the coming
decades even without this final rule, following existing trends in the
chlor-alkali industry to transition away from asbestos. Compared to
this baseline trend, the incremental net effect of the rule on the
chlor-alkali industry over a 35-year period using a 3 percent discount
rate is estimated to range from an annualized cost of $7 million per
year to an annualized savings of $1 million per year, depending on
whether the higher grade of caustic soda produced by membrane cells
continues to command a premium price. Using a 7 percent discount rate,
the incremental annualized net effect is a cost ranging from $34
million to $43 million per year, again depending on whether there are
revenue gains from the caustic soda production.
EPA also estimates that approximately 1,800 sets of automotive
brakes or brake linings containing asbestos may be imported into the
U.S. each year, representing 0.002% of the total U.S. market for
aftermarket brakes. The cost of a prohibition would be minimal due to
the ready availability of alternative products that are only slightly
more expensive (an average cost increase of about $5 per brake). The
rule is estimated to result in total annualized costs for aftermarket
automotive brakes
[[Page 21972]]
of approximately $300,000 per year using a 3% discount rate and
$200,000 per year using a 7% discount rate.
EPA did not have information to estimate the costs of prohibiting
asbestos for the remaining uses subject to the rule (sheet gaskets used
in chemical production, including titanium dioxide production and
nuclear material processing; brake blocks in the oil industry; other
vehicle friction products; or other gaskets), so there are additional
unquantified costs. EPA believes that the use of these asbestos-
containing products has declined over time, and that, depending on
which products, they are now either used in very small segments of the
industries, or possibly not at all.
More information on the estimated costs is available in EPA's
Economic Analysis for the rule (Ref. 2).
3. Benefits
EPA's Economic Analysis for the rule (Ref. 2), quantified the
benefits from avoided cases of lung cancer, mesothelioma, ovarian
cancer, and laryngeal cancer due to reduced asbestos exposures to
workers, occupational non-users (ONUs), and do-it-yourselfers (DIYers)
related to the rule's requirements for chlor-alkali diaphragms,
aftermarket automotive brakes, and sheet gaskets used for titanium
dioxide production. The combined national quantified benefits of
avoided cancer cases associated with these products are approximately
$6,000 per year using a 3% discount rate and $3,000 per year using a 7%
discount rate, based on the cancer risk estimates from the Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos. EPA did not
estimate the aggregate avoided cancer benefits of the requirements for
sheet gaskets used for other forms of chemical production, oilfield
brake blocks, other vehicle friction products or other gaskets because
the Agency did not have sufficient information on the number of
individuals likely to be affected by the rule. To the extent that such
products are still manufactured, processed, distributed in commerce,
used, or disposed of, there would be additional benefits from reducing
exposures from these use categories.
There are also unquantified benefits due to other avoided adverse
health effects associated with asbestos exposure including respiratory
effects (e.g., asbestosis, non-malignant respiratory disease, deficits
in pulmonary function, diffuse pleural thickening and pleural plaques).
The rule will also generate unquantified benefits from other exposure
pathways and life cycle stages for which exposures were not estimated.
To the extent that the number of individuals exposed or exposure levels
in the baseline were underestimated, EPA's analysis underestimates the
benefits of the regulatory requirements.
In addition to the benefits of avoided adverse health effects
associated with chrysotile asbestos exposure, the rule is expected to
generate significant benefits from reduced air pollution associated
with electricity generation. Chlor-alkali production is one of the most
energy-intensive industrial operations in the United States. To the
extent that alternative technologies are more energy efficient,
converting asbestos diaphragm cells to non-asbestos technologies
reduces overall electricity consumption and thus the total level of
pollutants associated with electric power generation, including carbon
dioxide, particulate matter, sulfur dioxide, and nitrogen oxides.
Converting asbestos diaphragm cells to non-asbestos technologies could
yield millions of dollars per year in environmental and health benefits
from reduced emissions of these pollutants. EPA's Economic Analysis,
which can be found in the rulemaking docket (Ref. 2), contains more
information on the potential magnitude of these monetized benefits from
reduced criteria air pollutants and carbon dioxide emissions.
4. Small Entity Impacts
As described in more detail in Unit X.C. and in section 6.2 of the
Economic Analysis (Ref. 2), EPA estimates that 14 to 1,372 small
entities would be subject to the rule.
Chlor-alkali facilities account for nearly all of the quantified
costs of the rule, and none of the firms operating chlor-alkali
facilities are small businesses.
Eleven to 1,369 of the affected small businesses perform brake
replacements using aftermarket automotive brake linings and pads
containing asbestos. The estimate of 11 affected small entities assumes
that each affected business performs between 40 and 700 brake
replacements per year using asbestos brake linings or pads. The
estimate of 1,369 affected small entities assumes that each affected
business installs a single set of asbestos brake linings or pads per
year. Affected firms are expected to incur a cost of approximately $18
per brake replacement job for the additional expense of a set of four
non-asbestos brake linings or pads, and about $1 for recordkeeping
about their asbestos waste disposal activities. This results in annual
costs between $20 and $14,000 per firm (depending on the number of
brake replacements they perform). At the low-end estimate of 11
affected brake replacement firms, approximately 85% of firms would have
cost impacts of less than 1% of their annual revenues, about 10% would
have cost impacts between 1% and 3%, and around 6% would have cost
impacts of greater than 3%. At the high-end estimate of 1,369 affected
brake replacement firms, 100% of firms would have a cost impact of less
than 1% of their annual revenues.
Two small businesses are assumed to manufacture sheet gaskets
containing asbestos for titanium dioxide production. EPA does not have
data on the cost to these businesses resulting from the prohibition on
sheet gaskets containing asbestos. Therefore, EPA was unable to
estimate the magnitude of the impacts for these small entities.
Asbestos-free products in this application reportedly require more
frequent replacement than items containing asbestos. As a result, the
rule could increase revenues for the affected small business suppliers
if they sell a larger volume of non-asbestos products to the end users
as replacements.
One small business is known to import and distribute oilfield brake
blocks containing asbestos. EPA does not have data on the cost for this
use category resulting from the prohibition on products containing
asbestos. Therefore, EPA was unable to estimate the magnitude of the
impacts for this small entity. Asbestos-free products in this
application reportedly require more frequent replacement than items
containing asbestos. As a result, the rule could increase revenues for
the affected small business supplier if it sells a larger volume of
non-asbestos products to the end users as replacements.
No small businesses have been identified as using sheet gaskets for
chemical production or brake blocks in the oil industry.
EPA has not identified specific firms (of any size) manufacturing,
processing, distributing or using products containing asbestos for the
aftermarket automotive brakes, other gaskets, and other vehicle
friction products use categories. To the extent that there are any
small businesses engaged in these activities, there are likely only a
few firms facing a small cost increase for asbestos-free products.
5. Environmental Justice
This rule is expected to increase the level of environmental
protection for all affected populations without having disproportionate
and adverse health or environmental effects on any population,
including any communities
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with environmental justice concerns (Ref. 2). Most of the affected
chlor-alkali facilities and one other chemical manufacturer affected by
this rule are located in or near communities with high levels of
polluting industrial activities, elevated disease risk, and a high
proportion of people of color. For example, communities that contain
affected chlor-alkali facilities have a cumulative baseline cancer risk
from air toxics that is nearly twice the national average, and the
share of Black/African American persons in these communities is almost
three times the national average. This rule is not expected to increase
these pre-existing environmental justice concerns. Units III.B. and
X.J. discuss outreach conducted to advocates for communities with
environmental justice concerns that might be subject to
disproportionate exposure to chrysotile asbestos.
6. Children's Environmental Health
Consistent with Executive Order 13045 (62 FR 19885, April 23,
1997), EPA evaluated the health and safety effects of this action on
children. This action is also subject to EPA's Policy on Children's
Health (https://www.epa.gov//childrens-health-policy-and-plan) because
the environmental health risk addressed by this action has a
disproportionate effect on children.
Chrysotile asbestos has a disproportionate effect on children. The
health effect of concern relates to exposures to chrysotile asbestos
are mesothelioma, lung and other cancers, all of which have a long
latency period following exposure. The risk evaluation (Ref. 1)
demonstrated in sensitivity analyses that age at first exposure
affected risk estimates, with earlier exposures in life resulting in
greater risk. For children, exposures can be anticipated (1) as
bystanders for consumer uses such as aftermarket brakes and (2) in
consumer uses and occupational uses given that the risk evaluation
presented information indicating that children as young as 16 years of
age may engage in these activities. Furthermore, EPA recognizes it is
possible that workers exposed to chrysotile asbestos at work may cause
unintentional exposure to individuals in their residence, including
children, due to take-home exposure from contaminated clothing or other
items, although this additional pathway was not specifically evaluated
in the risk evaluation. This rule protects children from these
disproportionate environmental health risks.
The results of EPA's evaluation are contained in the risk
evaluation (Ref. 1) and the Economic Analysis (Ref. 2).
7. Effects on State, Local, and Tribal Governments
As discussed in Unit X.E., this action has federalism implications
because regulation under TSCA section 6(a) may preempt state law. It
does not impose costs on small governments or have tribal implications.
II. Background
A. Overview of Chrysotile Asbestos
Asbestos is defined in section 202 of TSCA Title II as:
``Asbestiform varieties of six fiber types--chrysotile (serpentine),
crocidolite (riebeckite), amosite (cummingtonite-grunerite),
anthophyllite, tremolite or actinolite.'' EPA used this definition of
asbestos at the onset of the asbestos risk evaluation in 2016. However,
EPA determined that chrysotile asbestos is the only type of asbestos
where import, processing, and distribution in commerce for use is
known, intended, or reasonably foreseen in the U.S. As such, EPA
assessed these non-legacy conditions of use of chrysotile asbestos in
the December 2020 Risk Evaluation for Asbestos, Part 1: Chrysotile
Asbestos (Ref. 1). Following a decision by the Ninth Circuit Court of
Appeals (Safer Chemicals Healthy Families v. EPA, 943 F.3d 397 (9th
Cir. 2019)) concerning legacy use and associated disposal of asbestos
(conditions of use that were not included in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos), EPA began developing a
supplemental risk evaluation to address legacy and associated disposal
conditions of use. The Risk Evaluation for Asbestos, Part 2:
Supplemental Evaluation Including Legacy Uses and Associated Disposals
of Asbestos will include evaluation of those conditions of use of
chrysotile asbestos, the five amphibole fiber types identified in the
TSCA Title II definition (crocidolite (riebeckite), amosite
(cummingtonite-grunerite), anthophyllite, tremolite and actinolite) and
Libby Amphibole Asbestos (mainly consisting of tremolite, winchite, and
richterite). Additionally, some talc deposits and articles containing
talc have been shown to contain asbestos. Thus, EPA recognizes that
certain uses of talc may present the potential for asbestos exposure.
Where EPA identifies reasonably available information demonstrating the
presence of asbestos in talc, and where such talc applications fall
under TSCA authority, those asbestos-containing talc conditions of use
will be evaluated in Part 2 of the risk evaluation for asbestos. Once
the Risk Evaluation for Asbestos, Part 2: Supplementary Evaluation
Including Legacy Uses and Associated Disposals is complete, EPA intends
to revisit the unreasonable risk determination issued in the 2020 Risk
Evaluation for Asbestos Part 1, and, as appropriate, make an
unreasonable risk determination for asbestos as a whole chemical
substance.
In addition, on April 25, 2019, EPA finalized a significant new use
rule for asbestos under TSCA section 5(a)(2) (40 CFR 721.11095) for
manufacturing (including importing) or processing of asbestos for
discontinued uses. This rule requires that persons notify EPA at least
90 days before commencing any manufacturing (including importing) or
processing of asbestos (including as part of an article) for uses other
than the uses evaluated under the Risk Evaluation for Asbestos, Part I:
Chrysotile Asbestos and uses that are already prohibited under TSCA.
The required notification would initiate EPA's evaluation of the risks
associated with the intended significant new use. Manufacturing
(including importing) and processing (including as part of an article)
for the significant new use may not commence until EPA has conducted a
review of the notice, made an appropriate determination on the notice,
and taken such actions as are required in association with that
determination. Also, on July 12, 1989, EPA issued a rule under TSCA
section 6 entitled: Asbestos: Manufacture, Importation, Processing, and
Distribution in Commerce Prohibitions (54 FR 29460, July 12, 1989)
(FRL-3476-2), that prohibited the manufacture (including import),
processing and distribution of commerce of almost all asbestos-
containing products. On October 18, 1991, in Corrosion Proof Fittings
v. EPA, 947 F.2d 1201, the United States Court of Appeals for the Fifth
Circuit vacated and remanded most of the 1989 rule. However, as a
result of the Court's decision, certain asbestos-containing products
remain banned including the manufacture, importation, processing, and
distribution in commerce of corrugated paper, rollboard, commercial
paper, specialty paper and flooring felt. Also, any ``new use'' remains
banned--defined by that rule as uses of asbestos for which the
manufacture, importation, or processing would be initiated for the
first time after August 25, 1989.
This final rule applies only to chrysotile asbestos (Chemical
Abstract Services Registry Number (CASRN) 132207-32-0). Chrysotile
asbestos is a hydrated magnesium silicate mineral, with relatively long
and flexible crystalline fibers that are capable of being woven.
Chrysotile asbestos fibers used in most commercial applications consist
of aggregates and usually contain a broad distribution of fiber
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lengths. Chrysotile asbestos fiber bundle lengths usually range from a
fraction of a millimeter to several centimeters, and diameters range
from 0.1 to 100 micrometers. More information on the physical and
chemical properties of chrysotile asbestos is in Section 1.1 of the
Risk Evaluation (Ref. 1).
EPA evaluated the conditions of use associated with six ongoing use
categories of chrysotile asbestos (chlor-alkali diaphragms, sheet
gaskets used in chemical production, oilfield brake blocks, aftermarket
automotive brakes/linings, other vehicle friction products, and other
gaskets). There is no longer any domestic mining of asbestos. All
imported raw asbestos is chrysotile asbestos, and it is used in the
manufacture of chlor-alkali diaphragms. According to the United States
Geological Survey (USGS), 152 metric tons of raw chrysotile asbestos
were imported in 2022 (Ref. 3) from Brazil; however, as discussed in
this preamble, public comments to the proposed rule indicate the
importation of raw chrysotile asbestos for chlor-alkali use has ceased
for now, while imports for the other use categories may be ongoing. EPA
is also aware that Brazil's Federal Supreme Court banned asbestos
mining, processing and export in 2022.
B. Regulatory Actions Pertaining to Chrysotile Asbestos
Because of its adverse health effects, chrysotile asbestos is
subject to numerous State, Federal, and international regulations
restricting and regulating its use. A summary of EPA regulations
pertaining to chrysotile asbestos, as well other Federal, State, and
international regulations, is in the docket (Ref. 1; Ref. 4).
C. Summary of EPA's Risk Evaluation Activities on Chrysotile Asbestos
In July 2017, EPA published a scope of the chrysotile asbestos risk
evaluation (82 FR 31592, July 7, 2017) (FRL-9963-57), and after
receiving public comment, published a problem formulation in June 2018
(83 FR 26998, June 11, 2018) (FRL-9978-40). In March 2020, EPA released
a draft risk evaluation for asbestos (EPA-HQ-OPPT-2019-0501-0002), and
in December 2020, following public comment and peer review by the
Science Advisory Committee on Chemicals (SACC), EPA finalized the Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos (Ref. 1).
In the Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos,
EPA evaluated risks associated with the conditions of use involving six
non-legacy use categories of chrysotile asbestos including: Chlor-
alkali diaphragms, sheet gaskets in chemical production, other gaskets,
oilfield brake blocks, aftermarket automotive brake/linings, and other
vehicle friction products. EPA evaluated the conditions of use within
these categories, including manufacture (including import), processing,
distribution, commercial use, consumer use, and disposal (Ref. 1).
Descriptions of these conditions of use are included in Unit II.C.2.
The risk evaluation identified potential adverse health effects
associated with exposure to chrysotile asbestos, including the risk of
mesothelioma, lung cancer, and other cancers from chronic inhalation. A
further discussion of the chrysotile asbestos hazards is included in
Unit II.C.1. The chrysotile asbestos conditions of use that EPA
determined contribute to the chemical substance's unreasonable risk to
health include processing and industrial use of diaphragms in the
chlor-alkali industry; processing and industrial use of sheet gaskets
used in chemical production; industrial use and disposal of brake
blocks in the oil industry; commercial use and disposal of aftermarket
automotive brakes/linings; commercial use and disposal of other vehicle
friction products; commercial use and disposal of other gaskets;
consumer use and disposal of aftermarket automotive brakes/linings; and
consumer use and disposal of other gaskets. This determination includes
unreasonable risk of injury to health to both workers and occupational
non-users (ONUs) during occupational exposures, and to consumers and
bystanders during exposures to consumer uses.
EPA determined that ongoing uses of chrysotile asbestos do not
present unreasonable risk to the environment (Ref. 1).
As previously discussed, following the November 2019 decision of
the Ninth Circuit Court of Appeals in Safer Chemicals Healthy Families
v. EPA, 943 F.3d 397, the agency is also conducting a Part 2 of the
Asbestos Risk Evaluation: Supplemental Evaluation Including Legacy Uses
and Associated Disposals of Asbestos, which is occurring in parallel
with its effort to pursue risk management to address unreasonable risk
identified in the Risk Evaluation for Asbestos, Part 1. Legacy uses and
associated disposals for asbestos are conditions of use for which
manufacture (including import), processing, and distribution in
commerce for a use no longer occur, but where use (e.g., in situ
building material) and disposal are still known, intended, or
reasonably foreseen to occur.
The October 13, 2021, consent decree in the case Asbestos Disease
Awareness Organization et al v. Regan et al, 4:21-cv-03716-PJH (N.D.
Cal.) requires the agency to publish a final Part 2 asbestos risk
evaluation on or before December 1, 2024. EPA published a draft scope
for the Part 2 asbestos risk evaluation on December 29, 2021 (86 FR
74088) (FRL-9347-01-OCSPP), and a final scope for the Part 2 asbestos
risk evaluation on June 29, 2022 (87 FR 38746) (FRL-9347-02-OCSPP).
As part of the problem formulation for the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos, EPA found that exposures to the
general population may occur from the conditions of use considered.
(Ref. 5). EPA determined, in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos, that exposure to the general population via
surface water, drinking water, ambient air, and disposal pathways falls
under the jurisdiction of other environmental statutes administered by
EPA. The Agency, therefore, at that time explained that it was
tailoring the scope of the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos using authorities in TSCA sections 6(b) and
9(b)(1). As such, EPA did not evaluate hazards or exposures to the
general population, and the unreasonable risk determinations made in
the Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos do not
account for exposures to the general population. However, EPA expects
that any potential exposures to the general population would be
adequately addressed through the prohibition on the manufacture
(including import), processing, distribution in commerce and commercial
use of chrysotile asbestos to address the unreasonable risk posed to
workers, ONUs, consumers and bystanders. EPA does plan to evaluate
exposures to the general population in the Risk Evaluation for
Asbestos, Part 2: Supplemental Evaluation Including Legacy Uses and
Associated Disposals of Asbestos.
EPA also concluded that, based on the reasonably available
information in the published literature provided by industries using
asbestos and reporting to EPA databases, there are minimal or no
releases of asbestos to surface water associated with the conditions of
use that EPA evaluated in Part 1. Therefore, EPA concluded that there
is low or no risk to aquatic and sediment-dwelling organisms from
exposure to chrysotile asbestos. Terrestrial pathways, including
biosolids from wastewater treatment plants, were excluded from the
analysis at the problem formulation stage (Ref. 1; Ref. 5). However,
EPA
[[Page 21975]]
expects that any potential exposures to terrestrial species, as with
the general population, would be adequately addressed through the
prohibition on the manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos.
1. Description of Unreasonable Risk
The health endpoint driving EPA's determination of unreasonable
risk for chrysotile asbestos under the conditions of use is cancer from
inhalation exposure (Ref. 1). This unreasonable risk includes the risk
of mesothelioma and lung, ovarian, and laryngeal cancers from chronic
inhalation exposure. Inhalation unit risk (IUR) is typically defined as
a plausible upper bound on the estimate of cancer risk per micrograms
per cubic meter ([micro]g/m\3\) air breathed for 70 years. For
asbestos, the IUR is expressed as cancer risk per fibers per cubic
centimeter (f/cc) (in units of the fibers as measured by Phase Contrast
Microscopy (PCM)). The IUR represents the total cancer incidence risk
from chronic inhalation exposure of chrysotile asbestos and was based
on epidemiological studies on mesothelioma and lung cancer in cohorts
of workers using chrysotile asbestos in commerce. The inhalation unit
risk for mesothelioma and lung cancer were directly estimated from the
selected epidemiologic studies reporting exposure-response
relationships between exposure to chrysotile asbestos and those
cancers. Since there was no exposure-response data for ovarian and
laryngeal cancer effects in the epidemiological literature, a direct
estimate of risk from ovarian and laryngeal cancer could not be made
for the inhalation unit risk calculation. An adjustment factor for
ovarian and laryngeal cancer effects was applied to risk value
estimates to correct for the underestimated total cancer risk derived
from only lung cancer and mesothelioma that yielded an IUR for total
cancer risk encompassing all four cancers known to be caused by
exposure to chrysotile asbestos. And, as discussed in Section 4.2.1 of
the Risk Evaluation (Ref. 1), for workers and ONUs exposed in a
workplace, EPA used as a benchmark extra risk of 1 cancer per 10,000
people, that is, a risk level of 1x10-4 (or 1E-4). In
addition, because non-cancer effects of asbestosis and pleural
thickening may also contribute to overall health risk resulting from
workplace exposures to chrysotile asbestos, the quantified health risks
of chrysotile asbestos are underestimates because they are based on
cancer risk alone.
For processing and industrial use of chrysotile asbestos diaphragms
in the chlor-alkali industry, EPA found unreasonable risk to workers
and ONUs from chronic inhalation exposure to chrysotile asbestos, based
on industry data including personal air monitoring (i.e., worker
breathing zone results) and area air monitoring (i.e., fixed location
air monitoring results) that led to the high-end risk estimates
exceeding the 1x10-4 risk benchmark (Section 5.2.1 of the
Risk Evaluation).
For both the processing (i.e., gasket cutting) and industrial use
activities of chrysotile asbestos-containing sheet gaskets for chemical
production, EPA found unreasonable risk to workers and ONUs from
chronic inhalation exposure to chrysotile asbestos based on monitoring
data provided by industry and data in the published literature (Section
5.2.1 of the Risk Evaluation).
For the industrial use and disposal of chrysotile asbestos-
containing oilfield brake blocks, EPA found unreasonable risk to
workers and ONUs from chronic inhalation exposure to chrysotile
asbestos based on a published literature (Section 5.2.1 of the Risk
Evaluation).
For the commercial use and disposal of aftermarket automotive
chrysotile asbestos-containing brakes/linings and other vehicle
friction products (except for the NASA Super Guppy Turbine aircraft
use), EPA found unreasonable risk to workers from chronic inhalation
exposure to chrysotile asbestos based on published literature and OSHA
data (Section 2.3.1.8.1 of the Risk Evaluation). EPA determined, based
on exposure data provided by NASA to EPA (Section 2.3.1.8.2 of the Risk
Evaluation), that the use and disposal of chrysotile asbestos-
containing brakes for NASA's Super Guppy Turbine aircraft did not
present an unreasonable risk of injury to health or the environment.
For the commercial use and disposal of other chrysotile asbestos-
containing gaskets, EPA found unreasonable risk to workers and ONUs
from chronic inhalation exposure to chrysotile asbestos based on
exposure scenarios from occupational monitoring data for asbestos-
containing gasket replacement activities in vehicles.
For consumer use and disposal of aftermarket automotive chrysotile
asbestos-containing brakes/linings and other chrysotile asbestos-
containing gaskets, EPA found unreasonable risk to consumers and
bystanders from chronic inhalation exposure to chrysotile asbestos,
using as a benchmark cancer risk level of 1x10-6 (1E-6) for
consumers and bystanders.
EPA also noted in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos that it is possible for industrial workers or
consumers working with aftermarket automotive products or other types
of asbestos-containing gaskets to cause unintentional exposure to
individuals in their residence due to take-home exposure from
contaminated clothing or other items.
The provisions of the final rule are described in Unit VI. and the
health effects of chrysotile asbestos and the magnitude of the
exposures to chrysotile asbestos are described in Unit VII.B.1.
2. Description of Conditions of Use
This unit describes the conditions of use subject to this final
action. Although EPA identified both industrial and commercial uses in
the Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos for
purposes of distinguishing scenarios, the Agency clarified then and
clarifies now that EPA interprets the authority over ``any manner or
method of commercial use'' under TSCA section 6(a)(5) to apply to both
industrial and commercial uses identified in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos.
The conditions of use for this final action do not include any
legacy uses or associated disposal for chrysotile asbestos or other
asbestos fiber types. EPA will consider legacy uses and associated
disposals in Part 2 of the risk evaluation for asbestos (Ref. 1).
a. Processing and industrial use of chrysotile asbestos diaphragms
in the chlor-alkali industry.
Chrysotile asbestos historically has been imported and used by the
chlor-alkali industry for the fabrication of semi-permeable diaphragms.
The chrysotile asbestos diaphragms are used in an industrial process
for the production of chlorine and sodium hydroxide (caustic soda).
Asbestos is chemically inert and able to effectively separate chlorine
and sodium hydroxide in electrolytic cells. The chlor-alkali chemical
production process involves the separation of the sodium and chloride
atoms of salt in saltwater (brine) via electricity to produce sodium
hydroxide (caustic soda), hydrogen, and chlorine. The electrolytic cell
contains two compartments separated by a semi-permeable diaphragm,
which is made mostly of chrysotile asbestos. The diaphragm prevents the
reaction of the caustic soda with the chlorine and allows for the
separation of both materials for further processing. Diaphragms are
typically used for 1-3 years before they must be replaced (Ref. 1).
b. Processing and industrial use of chrysotile asbestos-containing
sheet gaskets in chemical production.
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Sheet gaskets are used to form a leakproof seal between fixed
components. Chrysotile asbestos-containing gaskets are used primarily
in industrial applications with extreme operating conditions, such as
high temperatures, high pressures, and the presence of chlorine or
other corrosive substances. Such extreme operating conditions are found
in many chemical manufacturing and processing operations, including:
the manufacture of titanium dioxide and chlorinated hydrocarbons;
polymerization reactions involving chlorinated monomers; and steam
cracking at petrochemical facilities. Chrysotile asbestos-containing
gaskets used for titanium dioxide production are fabricated from sheets
composed of 80% (minimum) chrysotile asbestos fully encapsulated in
styrene butadiene rubber. The chrysotile asbestos-containing sheets are
articles which are imported into the U.S. in large rolls where they are
cut to shape by a fabricator and subsequently used at titanium dioxide
manufacturing facilities. Installed gaskets typically remain in use
anywhere from a few weeks to three years (Ref. 1). In addition to the
industrial uses specifically identified in the risk evaluation, the use
of sheet gaskets in the processing of nuclear material is also covered
by this condition of use because it involves processing chemicals under
extreme operating conditions, in this case operations involving
radioactive materials.
c. Industrial use and disposal of chrysotile asbestos-containing
brake blocks in oil industry.
The rotary drilling rig of an oil well uses a drawworks hoisting
machine to raise and lower the traveling blocks during drilling. The
drawworks is a permanently installed component of a mobile drilling
rig. The drawworks consists of a large-diameter steel spool, a motor, a
main brake, a reduction gear, and an auxiliary brake. The brake of the
drawworks hoisting machine is an essential component that is engaged
when no motion of the traveling block is desired. Chrysotile asbestos-
containing brake blocks are imported articles for use in some
drawworks, reportedly most often on larger drilling rigs. Spent brake
blocks must periodically be replaced by workers in the oilfield
industry who maintain the rig (Ref. 1).
d. Commercial use and disposal of aftermarket automotive chrysotile
asbestos-containing brakes/linings.
The two primary types of automobile brakes are drum brakes and disc
brakes, and chrysotile asbestos has been found in both, in linings for
drum brake assemblies and pads in disc brake assemblies. Disc brakes
are much more common today than drum brakes, but many passenger
vehicles have a combination of disc brakes for the front wheels and
drum brakes for the rear wheels. Chrysotile asbestos fibers offer many
properties that are desired for brake linings and brake pads, and up
through the 1990s many new automobiles manufactured in the United
States had brake assemblies with asbestos-containing components. By
2000, asbestos was no longer used in the brakes of virtually any
original equipment manufacturer (OEM) automobiles sold domestically;
however, asbestos-containing brake products continue to be imported and
sold in the United States. The quantity of asbestos-containing brake
part articles imported is unknown. Therefore, asbestos could be found
in the United States: (1) In vehicles on the road that have asbestos-
containing brakes, whether from older and vintage vehicles or
aftermarket parts; and (2) In vehicles that have new replacement
asbestos-containing brakes installed by establishments or individuals
that use certain imported products. Brakes must be repaired and
replaced periodically, which involves activities that create dust and
potential occupational exposure to asbestos (Ref. 1).
e. Commercial use and disposal of other chrysotile asbestos-
containing vehicle friction products.
While EPA has verified that U.S. automotive manufacturers are not
installing asbestos-containing brakes on new cars for domestic
distribution, EPA identified a company that claimed to import asbestos-
containing brakes and then install them on cars in the United States
for export only. Following completion of the risk evaluation, and
during the risk management phase following publication of the final
risk evaluation, this company disavowed this practice (Ref. 6).
In addition, there is a limited use of asbestos-containing brakes
for a special, large transport plane, the ``Super-Guppy'' Turbine (SGT)
aircraft, owned and operated by the National Aeronautics and Space
Administration (NASA). The SGT aircraft is a specialty cargo plane that
transports oversized equipment, and it is considered a mission-critical
vehicle. Only one SGT aircraft is in operation today, and NASA acquired
it in 1997. The SGT aircraft averages approximately 100 flights per
year. When not in use, it is hangered and maintained at a NASA facility
in El Paso, Texas. The SGT aircraft has eight landing gear systems, and
each system has 32 brake blocks, which contain chrysotile asbestos.
Potential worker exposures are associated with servicing the brakes. As
explained in the risk evaluation, the following two conditions of use
do not present unreasonable risk, and therefore do not require
mitigation by this final rule: Use of chrysotile asbestos-containing
brakes for a specialized, large NASA transport plane; and the disposal
of chrysotile asbestos-containing brakes for a specialized, large NASA
transport plane (Ref. 1).
f. Commercial use and disposal of other asbestos-containing
gaskets.
EPA also identified the use of chrysotile asbestos-containing
gaskets in the exhaust system of a specific type of utility vehicle
manufactured and available for purchase in the United States. The
utility vehicle manufacturer purported at the time to receive the pre-
cut gaskets which are then installed during manufacture of the vehicle.
The gaskets may be removed during servicing of the exhaust system at
utility vehicle dealerships and other repair and maintenance shops.
Exhaust gasket installation and repair activities create asbestos
exposure. (Ref. 1).
g. Consumer use and disposal of aftermarket automotive chrysotile
asbestos-containing brakes/linings.
Asbestos could be found in the United States: (1) In vehicles on
the road that have asbestos-containing brakes, whether from original
manufacturers (primarily for older and vintage vehicles) or aftermarket
parts; and (2) In vehicles that have new replacement asbestos-
containing brakes installed by establishments or individuals that use
certain imported products. Brakes must be repaired and replaced
periodically, activities which create dust and exposure to asbestos for
consumers and bystanders who perform their own do-it-yourself
automobile maintenance and repairs on asbestos-containing components
(Ref. 1).
h. Consumer use and disposal of other asbestos-containing gaskets.
EPA also identified the use of chrysotile asbestos-containing
gaskets in the exhaust system of a specific type of utility vehicle
manufactured and available for purchase in the United States. The
gaskets may be removed during servicing of the exhaust system. EPA
determined that do-it-yourself consumers who may repair these vehicles
and bystanders are exposed to asbestos (Ref. 1).
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III. EPA's Proposed Rule Under TSCA Section 6(a) for Chrysotile
Asbestos
A. Description of TSCA Section 6(a) Requirements
Under TSCA section 6(a), if the Administrator determines through a
TSCA section 6(b) risk evaluation that a chemical substance presents an
unreasonable risk of injury to health or the environment, without
consideration of costs or other non-risk factors, including an
unreasonable risk to a potentially exposed or susceptible subpopulation
identified as relevant to the Agency's risk evaluation, under the
conditions of use, EPA must by rule apply one or more requirements to
the extent necessary so that the chemical substance no longer presents
such risk.
The TSCA section 6(a) requirements can include one or more of the
following actions alone or in combination:
Prohibit or otherwise restrict the manufacturing
(including import), processing, or distribution in commerce of the
substance or mixture, or limit the amount of such substance or mixture
which may be manufactured, processed, or distributed in commerce (TSCA
section 6(a)(1)).
Prohibit or otherwise restrict the manufacturing,
processing, or distribution in commerce of the substance or mixture for
a particular use or above a specific concentration for a particular use
(TSCA section 6(a)(2)).
Limit the amount of the substance or mixture which may be
manufactured, processed, or distributed in commerce for a particular
use or above a specific concentration for a particular use specified
(TSCA section 6(a)(2)).
Require clear and adequate minimum warning and
instructions with respect to the substance or mixture's use,
distribution in commerce, or disposal, or any combination of those
activities, to be marked on or accompanying the substance or mixture
(TSCA section 6(a)(3)).
Require manufacturers and processors of the substance or
mixture to make and retain certain records or conduct certain
monitoring or testing (TSCA section 6(a)(4)).
Prohibit or otherwise regulate any manner or method of
commercial use of the substance or mixture (TSCA section 6(a)(5)).
Prohibit or otherwise regulate any manner or method of
disposal of the substance or mixture, or any article containing such
substance or mixture, by its manufacturer or processor or by any person
who uses or disposes of it for commercial purposes (TSCA section
6(a)(6)).
Direct manufacturers or processors of the substance or
mixture to give notice of the unreasonable risk determination to
distributors, certain other persons, and the public, and to replace or
repurchase the substance or mixture (TSCA section 6(a)(7)).
EPA analyzed how the TSCA section 6(a) requirements could be
applied so that the unreasonable risk described in the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos is no longer present. TSCA
section 6(c)(2)(A) requires EPA, in proposing and promulgating TSCA
section 6(a) rules, to include a statement of effects addressing
certain issues, including the effects of the chemical substance on
health and the environment; the magnitude of exposure of the chemical
substance to humans and the environment; the benefits of the chemical
substance for various uses; and the reasonably ascertainable economic
consequences of the rule, including consideration of the likely effects
of the rule on the national economy, small business, technological
innovation, the environment and public health; and the costs and
benefits and the cost effectiveness of the regulatory action and of the
one or more primary alternative regulatory actions considered by the
Administrator. As a result, EPA is finalizing a regulatory action and
describing two primary alternative regulatory actions considered, which
are discussed in Unit VI. and Unit VII.A., respectively.
Related to TSCA section 6(a) actions, TSCA section 6(c)(2)(C)
requires that, in deciding whether to prohibit or restrict the chemical
substance in a manner that substantially prevents a specific condition
of use and in setting an appropriate transition period for such action,
EPA consider, to the extent practicable, whether technically and
economically feasible alternatives that benefit health or the
environment will be reasonably available as a substitute when the
prohibition or restriction takes effect. Unit VII.B.5. includes more
information regarding EPA's consideration of alternatives.
Also as part of TSCA section 6(a) actions or separately, under the
authority of TSCA section 6(g), EPA may consider granting by rule a
time-limited exemption for a specific condition of use for which EPA
finds: That the specific condition of use is a critical or essential
use for which no technically and economically feasible safer
alternative is available, taking into consideration hazard and
exposure; that compliance with the proposed requirement would
significantly disrupt the national economy, national security, or
critical infrastructure; or that the specific condition of use of the
chemical substance, as compared to reasonably available alternatives,
provides a substantial benefit to health, the environment, or public
safety. EPA did not propose to grant and is not finalizing an exemption
from the rule requirements under TSCA section 6(g).
B. Consultations and Other Stakeholder Outreach
EPA conducted consultations and outreach in preparing for the
proposed regulatory action. The Agency held a federalism consultation
on May 13, 2021, as part of this rulemaking process and pursuant to
Executive Order 13132 (Ref. 7). On May 24, 2021, and June 3, 2021, EPA
held tribal consultations for the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos (Ref. 8). EPA also conducted outreach to advocates
of communities that might be subject to disproportionate exposure to
chrysotile asbestos, such as communities with environmental justice
concerns. EPA's environmental justice (EJ) consultation occurred from
June 1 through August 13, 2021. On June 1 and 9, 2021, EPA held public
meetings as part of this consultation. These meetings were held
pursuant to Executive Orders 12898 and 14008 (Ref. 9). Units X.E.,
X.F., X.J. provide more information regarding the consultations.
In addition to the consultations described in Units X.E., X.F., and
X.J. on February 3, 2021, EPA held a public webinar (Ref. 10) and also
attended a Small Business Administration roundtable on February 5, 2021
(Ref. 11). Furthermore, EPA engaged in discussions with industry, non-
governmental organizations, other national governments, asbestos
experts and users of chrysotile asbestos. Summaries of external
meetings held during the development of this rulemaking are in the
docket.
C. Proposed Regulatory Action
On April 12, 2022, EPA issued a proposed rule under TSCA section
6(a) to regulate certain conditions of use, so that chrysotile asbestos
does not present the unreasonable risk of injury to health as
determined in the 2020 Risk Evaluation (87 FR 21706). EPA proposed
pursuant to TSCA section 6(a) to prohibit manufacture (including
import), processing, distribution in commerce, and commercial use of
chrysotile asbestos in bulk form or as part of chrysotile asbestos
diaphragms used in the chlor-alkali industry and chrysotile asbestos-
containing sheet gaskets used in chemical production. EPA proposed that
these prohibitions would take effect two years after the
[[Page 21978]]
effective date of the final rule. EPA also proposed pursuant to TSCA
section 6(a) to prohibit manufacture (including import), processing,
distribution in commerce, and commercial use of: chrysotile asbestos-
containing brake blocks used in the oil industry, aftermarket
automotive chrysotile asbestos-containing brakes/linings, other
chrysotile asbestos-containing vehicle friction products and other
chrysotile asbestos-containing gaskets. EPA proposed that these
prohibitions would take effect 180 days after the effective date of the
final rule. EPA further proposed pursuant to TSCA section 6(a) to
prohibit manufacture (including import), processing, and distribution
in commerce of: aftermarket automotive chrysotile asbestos-containing
brakes/linings for consumer use, and other chrysotile asbestos-
containing gaskets for consumer use. EPA proposed that these
prohibitions would take effect 180 days after the effective date of the
final rule. EPA also proposed disposal and recordkeeping requirements
under which regulated parties would document compliance with the
proposed disposal requirements. Disposal and recordkeeping requirements
would take effect 180 days after the effective date of the final rule.
EPA additionally proposed definitions of certain terms used in the
proposed regulatory text.
D. Primary Alternative Regulatory Action Described in the Proposed Rule
As indicated by TSCA section 6(c)(2)(A), EPA must consider the cost
and benefits and the cost effectiveness of the proposed regulatory
action and one or more primary alternative regulatory actions. In the
April 12, 2022, proposed rule (87 FR 21706), EPA's primary alternative
regulatory action described in the proposed rule was to: prohibit
manufacture (including import), processing, distribution in commerce
and commercial use of chrysotile asbestos in bulk form or as part of:
chrysotile asbestos diaphragms in the chlor-alkali industry and for
chrysotile asbestos-containing sheet gaskets in chemical production,
with prohibitions taking effect five years after the effective date of
the final rule, and require, prior to the prohibition taking effect,
compliance with an existing chemical exposure limit (ECEL) to reduce
inhalation exposures for the processing and commercial use of
chrysotile asbestos for these uses. The primary alternative regulatory
action described in the proposed rule additionally included a
prohibition on the manufacture (including import), processing,
distribution in commerce, and commercial use of chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; and other vehicle
friction products (with prohibitions taking effect two years after the
effective date of the final rule and with additional requirements for
disposal). The primary alternative regulatory action described in the
proposed rule also included prohibitions on manufacture (including
import), processing, and distribution in commerce of aftermarket
automotive chrysotile asbestos-containing brakes/linings for consumer
use and other chrysotile asbestos-containing gaskets for consumer use
(with prohibitions taking effect two years after the effective date of
the final rule). The primary alternative regulatory action described in
the proposed rule also included a requirement to dispose of chrysotile
asbestos-containing materials in a manner identical to the proposed
regulatory action, with additional provisions for downstream
notification and signage and labeling.
IV. Summary of Public Comments
A. Public Comments Regarding the Proposed Rule
EPA received a total of 10,847 public comments on the April 12,
2022, Proposed Rule titled ``Asbestos Part 1: Chrysotile Asbestos;
Regulation of Certain Conditions of Use Under Section 6(a) of the Toxic
Substances Control Act (TSCA).'' The comment period for the proposed
rule was originally scheduled to end on June 13, 2022, but was extended
until July 13, 2022, in response to public requests (87 FR 31814, FRL-
8332-03-OCSPP). EPA received 158 unique comments from trade
organizations, industry stakeholders, environmental groups, and non-
governmental health advocacy organizations, among others. A separate
document that summarizes all comments submitted and EPA's responses to
those comments is available in the docket for this rulemaking (Ref.
12).
B. Notice of Data Availability and Request for Comment
After the close of the public comment period for the proposed rule,
EPA received comments and held meetings with stakeholders, including
affected industry and interested groups, related to the use of
chrysotile asbestos diaphragms in the chlor-alkali industry and
chrysotile asbestos-containing sheet gaskets used in chemical
production. Topics of these comments and meetings included media
reports regarding asbestos workplace practices in the chlor-alkali
industry, the timing of any prohibition on the manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos diaphragms and chrysotile asbestos-containing sheet
gaskets, and the requirement, included in the primary regulatory
alternative described in the preamble to the proposed rule, for
processors and users of chrysotile asbestos diaphragms and chrysotile
asbestos-containing sheet gaskets to comply with an ECEL as an interim
inhalation exposure control measure prior to the effective date of a
prohibition. Meetings were held with: ADAO (July 6 and October 13,
2022); Chlorine Institute (July 6, 2022); Dow Chemicals (October 28,
2022); Axial/Westlake (November 3, 2022); Olin Corporation (Olin)
(November 14, 2022); OxyChem (November 16, 2022, December 7, 2022, and
February 9, 2023), and Chemours (January 18, 2023). EPA received data
as part of and following those stakeholder meetings and made the
information available to the public in the rulemaking docket (EPA-HQ-
OPPT-2021-0057) through a Notice of Data Availability (NODA) and
Request for Comment (88 FR 16389, March 17, 2023) (FRL-8332-04-OCSPP).
In addition, EPA posted to the docket other information made
available after the close of the public comment period, including
several public comments submitted to EPA, including from state and
local government officials, regarding the potential impacts of the
proposed rule's compliance date for the prohibition on the commercial
use of chrysotile asbestos diaphragms in the chlor-alkali industry on
the supply of chlorine used for drinking water disinfection, wastewater
treatment and potential impacts on state and local water supply
systems; the timing of the prohibition on the manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos-containing sheet gaskets in chemical production;
and discussion of workplace monitoring strategies to comply with an
asbestos ECEL during the interim period prior to a prohibition on the
commercial use of chrysotile asbestos diaphragms.
EPA requested public comment on any data in the docket that was
received during and after the proposed rule public comment period, and
how EPA should consider it during the development of the final rule.
EPA received 47 unique comments that were responsive to the Agency's
request for
[[Page 21979]]
comments. Commenters included trade organizations, industry
stakeholders, unions, and non-governmental health advocacy
organizations. A separate document that summarizes all comments
submitted regarding the NODA, and EPA's responses to those comments is
available in the docket for this rulemaking (Ref. 13).
V. Changes From the Proposed Rule
This unit summarizes the main changes from the proposed rule to the
final rule, based on the consideration of the public comments.
A. Chrysotile Asbestos Diaphragms for Use in the Chlor-Alkali Industry
TSCA section 6(d) requires EPA to specify mandatory compliance
dates for all requirements of a TSCA section 6(a) rule. The mandatory
compliance dates must be ``as soon as practicable'' and ``provide for a
reasonable transition period.'' Except when EPA is imposing a ban or
phase-out of a chemical substance, the mandatory compliance date for a
requirement in a TSCA section 6(a) rule must be no later than five
years after the date of promulgation of the final rule. If EPA is
requiring a ban or phase-out of a chemical substance, EPA must specify
a mandatory compliance date for the start of the ban or phase-out that
is no later than five years after the date of promulgation of the final
rule, and must specify mandatory compliance dates for full
implementation of the ban or phase-out which are as soon as
practicable. Pursuant to TSCA section 6(d)(2), EPA may establish
different mandatory compliance dates for different persons.
EPA proposed to prohibit manufacture (including import),
processing, distribution in commerce and commercial use of chrysotile
asbestos for chrysotile asbestos diaphragms for use in the chlor-alkali
industry, effective two years after the effective date of the final
rule. In the proposed rule, EPA sought public comment ``to support or
refute its assumption that [chlor-alkali] facilities using asbestos
diaphragms will convert to non-asbestos technologies, and the
timeframes required for such conversions,'' and as well as on a
prohibition compliance date that would be both ``as soon as
practicable'' and ``provide for a reasonable transition period'' (87 FR
21721, 21726). In the notice of data availability, EPA described
comments and other information that the Agency had received regarding
these issues and requested additional public comment on how EPA should
consider this information in developing the final rule. 88 FR 16389,
16391. Based on public comments received in response to the proposed
rule and notice of data availability, EPA concludes that the proposed
mandatory compliance date for the prohibition on the manufacture
(including import), processing, distribution in commerce and commercial
use of chrysotile asbestos for chrysotile asbestos diaphragms would not
be ``as soon as practicable,'' and would not provide for a reasonable
transition period, as required under TSCA section 6(d)(1). 15 U.S.C.
2605(d)(1). EPA is therefore finalizing mandatory compliance dates that
differ from those in the proposed rule.
Specifically, EPA concludes that it is practicable to prohibit the
manufacture (including import) of chrysotile asbestos for diaphragms in
the chlor-alkali industry as of the effective date of the final rule.
All chlor-alkali companies that currently use chrysotile asbestos
already have a sufficient supply of chrysotile asbestos for foreseeable
future operations prior to the prohibition compliance dates for
processing, distribution in commerce and commercial use. The three
chlor-alkali companies that use asbestos diaphragms provided comment to
EPA that they all ceased importing raw asbestos and do not need or
intend to resume importing raw asbestos. Therefore, EPA is prohibiting
the manufacture (including import) of chrysotile asbestos for
diaphragms for use in the chlor-alkali industry as of the effective
date of the final rule.
With respect to the prohibition on the processing, distribution in
commerce, and commercial use of chrysotile asbestos for chrysotile
asbestos diaphragms, EPA concludes that five years after the effective
date of this final rule is as soon as practicable for this prohibition
to start. Additionally, EPA concludes that the date by which the full
implementation of this prohibition is practicable varies for different
persons affected by this prohibition. Therefore, as described in
further detail below, EPA is finalizing multiple compliance dates for
full implementation of this prohibition to provide a reasonable
transition time.
EPA received significant comment on the timing of the proposed
prohibition on use of chrysotile asbestos diaphragms in the chlor-
alkali industry during the public comment period for the proposed rule,
as well as in response to the notice of data availability. While EPA
received comments supporting the proposed two-year prohibition
timeline, many commenters argued the two-year timeline would not
provide the chlor-alkali industry a reasonable transition period.
Comments included information regarding the types of activities
involved in the transition to non-asbestos diaphragms, the limited
number of suppliers that are able to provide the necessary materials
for the transition, the technical expertise needed and its scarcity,
capital cost investments needed, projected chlorine production impacts
from the expected transition, and time it generally takes to obtain
permits, including environmental permits, required for the transition.
Commenters requested that EPA provide additional time to allow the
chlor-alkali industry to transition away from asbestos-containing
diaphragms, and to allow for this transition to occur without causing
economic disruptions or public health impacts resulting from potential
disruption of drinking water disinfection and wastewater treatment
supplies due to fluctuations in the production of chlorine and other
chlor-alkali products. Other commenters also raised concerns of impacts
to other chemical industries that use chlorine as their main feedstock
for their processes. Some commenters also expressed concerns about the
proposed alternative five-year timeline for similar reasons.
Regarding the timing of the prohibition on processing, distribution
in commerce and commercial use of chrysotile asbestos for chrysotile
asbestos-containing diaphragms, EPA concludes based on public comments
that five years after the effective date of this final rule is as soon
as practicable for this prohibition to begin, and that the practicable
compliance dates for the full implementation of this prohibition vary
for different affected persons and depend on the number of facilities a
person is converting to membrane technology. Three companies own a
total of eight chlor-alkali facilities in the United States that use
chrysotile asbestos diaphragms; the number of facilities owned by each
company varies from one to five, and the size of the asbestos diaphragm
chlorine capacity at the eight facilities varies from 171 thousand
metric tons to 981 thousand metric tons. Several factors affect the
time needed for each individual chlor-alkali company to transition away
from chrysotile asbestos diaphragm technology, including the number and
size of facilities owned by the chlor-alkali company, the company's
approach to transition away from asbestos (e.g., a decision to either
convert facilities to non-asbestos diaphragms or to membrane
technologies), and technical differences in specific facility
conversions. Comments received described the
[[Page 21980]]
different approaches to move away from chrysotile asbestos use given
the different designs of chrysotile asbestos diaphragm technology, the
type of intended conversion to a non-asbestos diaphragm technology or
membrane technology, the limited availability of suppliers and
technical expertise required for the conversion process, as well as
differences regarding permits needed for the conversion of facilities
and permitting timelines based on their location. In particular,
comments explained that due to such issues, one company's conversion of
multiple facilities to membrane technology cannot be performed
simultaneously and can only be accomplished in a sequential conversion
process. In the final rule, EPA is adopting an approach that can
accommodate differences among facilities to provide a reasonable
transition period for each remaining chlor-alkali facility still using
chrysotile asbestos diaphragms, while ensuring the associated
unreasonable risk is addressed as soon as practicable without
anticipated disruption to the available supply of chlor-alkali
chemicals needed to treat drinking water and wastewater.
The mandatory compliance dates for the prohibition on processing,
distribution in commerce and commercial use of chrysotile asbestos for
chrysotile asbestos diaphragms for use in the chlor-alkali industry
included in this final rule are longer than the proposed regulatory
action; however, the prohibition phase-in dates begin five years after
the effective date of the final rule, which was the compliance date in
the primary alternative regulatory option described in the proposed
rule for this condition of use. The primary alternative regulatory
option described in the proposed rule included a prohibition effective
five years after the effective date of the final rule, as well as a
requirement to comply with an existing chemical exposure limit (ECEL)
before this prohibition would take effect and related monitoring and
recordkeeping requirements. The final rule also includes a requirement
to comply with interim controls before the prohibition takes effect.
Unit V.B. describes the changes to these interim controls.
There are two main technologies that can be used to replace
asbestos diaphragms in chlor-alkali production, non-asbestos diaphragm
cells and membrane cells. Development of non-asbestos diaphragm cells
began in the mid-1980s. Non-asbestos diaphragms operate in a similar
manner to asbestos diaphragms. In a diaphragm cell, a diaphragm is
placed between the anode and cathode of an electrolysis cell to
separate the chlorine, hydrogen, and caustic soda products. The
diaphragm ensures that the chlorine and hydrogen do not spontaneously
ignite, and the chlorine and caustic soda do not form undesirable
reactant products. Non-asbestos diaphragms generally last longer in
service than asbestos diaphragms and can reduce energy consumption due
to lower cell voltages. The process to convert a chlor-alkali facility
from asbestos diaphragms to non-asbestos diaphragms is not as complex
as the process to convert to membrane technology; it requires fewer
design changes, less construction, and may be performed over several
years without significant disruption of facility operations or product
output. Significantly, the conversion to non-asbestos diaphragms can
proceed concurrently at several facilities, subject to the availability
of supplies of non-asbestos diaphragm cell components. Membrane cell
technology was developed in the early 1970's; the membrane cell process
is different from the diaphragm process in a number of significant ways
and operates through the selective permeability of the membranes, which
allow only specific components to pass through. Membrane technology
conversions are more complicated than diaphragm technology conversions.
Membrane technology conversions require new cells, as well as multiple
other plant infrastructure changes, including changes to: brine
processing, caustic soda handling, piping, storage tanks, and power
supply. However, as compared to diaphragm technology, membrane
technology uses less energy and produces a higher-quality product
(containing less salt) for which there is greater market demand, and is
therefore generally considered the current best available technology in
the chlor-alkali industry.
Based on public comments and meetings with companies, EPA
understands that at least four of eight chlor-alkali facilities, two
operated by OxyChem and two operated by Olin, will be converted to non-
asbestos diaphragm cell technology. A fifth facility, operated by
Westlake, is being converted to an unspecified non-asbestos technology.
As described in Unit IV.B., EPA issued a Notice of Data Availability
(NODA) and Request for Comment (88 FR 16389, March 17, 2023), that,
among other topics, provided additional information on and sought
comment on the timing of any prohibition on the manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos diaphragms. Based on this information, including
public comment received in response to this notice, EPA concludes these
five conversions to non-asbestos diaphragms (or alternative non-
asbestos process) can be achieved in five years.
On April 4, 2023, during the public comment period for the March
2023 Notice of Data Availability, one chlor-alkali company, Olin, met
with EPA and submitted a letter to EPA stating its support for ``an EPA
action to ban the installation of any new or replacement asbestos-based
diaphragms in two years, in combination with an additional five years
to operate any existing asbestos-based diaphragm production cells.''
The comment suggested that this seven-year ban should apply to the
entire chlor-alkali industry. The company also noted that during the
proposed additional five-year window it ``would use an in-situ process
to maintain the diaphragms which does not involve workers removing
asbestos diaphragms from the closed process for repairs or constructing
new asbestos diaphragms.'' (Ref. 14) No further written information was
provided to support this comment during the public comment period,
which ended April 17, 2023. In August 2023, Olin requested to meet
again with EPA and provided a one-page slide with bullet-points on its
plans to convert its two facilities using asbestos diaphragms to non-
asbestos diaphragms within the seven-year timeline it had proposed in
April. The company stated it has several thousand asbestos diaphragm
cells and after an initial two-year period during which it would
continue to install new asbestos diaphragms; it would require five
additional years to replace all its asbestos diaphragms. (Ref. 15)
In the preamble to the proposed rule, EPA sought public comment on
a compliance date for a prohibition on the use of chrysotile asbestos-
containing diaphragms in chlor-alkali production, including ``specific
and detailed timelines to build asbestos-free facilities or to convert
existing asbestos-using facilities to asbestos-free technology'' and
``specific information regarding potential barriers to achieving the
proposed prohibition date while considering the supply of chlor-alkali
chemicals'' (87 FR 21726). Olin's comments do not provide EPA with
adequate information to establish that seven years is as soon as
practicable for the company to convert its two facilities to non-
asbestos diaphragms or otherwise end the use of asbestos, or that this
rule's five-year prohibition for non-membrane conversions does not
provide the company with a reasonable transition period. For example,
it is
[[Page 21981]]
unclear why two years are required for the company to continue
installing new asbestos diaphragms before the company can begin
converting cells, since the company did not provide supporting data to
explain why waiting two years to start the conversion, is as soon as
practicable for cell conversions. The company did not provide
information indicating any difficulties with its expected ability to
obtain replacement parts, including any information from or on
suppliers; and no supporting information was provided to EPA to show
that a higher conversion rate or beginning the conversion immediately
rather than in two years could disrupt the company's ability to produce
sufficient chlor-alkali chemicals for its customers. Additional
information that would have been needed for EPA to assess whether the
proposed seven-year compliance date is as soon as practicable includes:
information regarding the types of activities involved in the
transition to non-asbestos diaphragms, what suppliers provide the
necessary materials, what type of technical expertise is needed and its
availability, capital cost investments needed, projected chlorine
production and impacts from the expected transition. In establishing
the chrysotile asbestos diaphragm phase-out timeframes in the rule, EPA
based its compliance timeframe on reasonably available information,
including information provided in public comments, as well as in
meetings with interested stakeholders. EPA took into consideration the
technical differences in specific facility conversions and how those
affect the time needed for each individual chlor-alkali company to
transition away from chrysotile asbestos diaphragm technology, such as
the different designs of chrysotile asbestos diaphragm technology, the
type of intended conversion to a non-asbestos diaphragm technology or
membrane technology, the limited availability of suppliers and
technical expertise required for the conversion process, as well as
differences regarding permits needed for the conversion of facilities
and permitting timelines based on facility location.
Also, beyond a general description, Olin provided no additional
information on its proposed chrysotile asbestos-containing slurry cell
maintenance process, how it may or may not differ from previously
described practices by the company, or to what extent this process
would reduce exposure. Furthermore, EPA has no information on other
companies' ability to implement such an asbestos-containing slurry
process within two years, or its effect on national chlor-alkali
production in the period after two years and before final phase-out.
While seven years was presented as being as soon as practicable to
transition one company's operations to non-asbestos diaphragm
technology, seven years was also presented to EPA as a chrysotile
asbestos use ban date for the entire chlor-alkali industry. The
proposal does not consider other companies' comments on their abilities
to phase-out asbestos use as soon as practicable, or what is a
reasonable transition time for those firms. Other companies have told
EPA or provided information to EPA that leads EPA to conclude that they
can complete all of their planned conversions to non-asbestos
diaphragms within five years (Ref. 16; Ref. 17). Allowing all of the
chlor-alkali companies seven years--an additional two years--to convert
to non-asbestos diaphragms therefore would not be as soon as
practicable given the information received from other companies.
Furthermore, EPA believes that Olin's suggested approach for
conversion from asbestos diaphragms to non-asbestos diaphragms is not
practical for other companies who are converting from diaphragm to
membrane technology, and EPA believes that there would be adverse
impacts on the availability of chlorine for drinking water should this
approach be uniformly adopted. Regarding the plans of another company,
OxyChem, to sequentially convert three facilities to membrane
technology, EPA has received detailed information on the sequential
conversion schedule. The company's first facility can be converted
within five years; allowing seven years for its conversion would not be
as soon as practicable. The second facility conversion is not scheduled
to be complete for eight years. EPA has no basis to conclude this
schedule could be shortened to seven years while still providing a
reasonable transition period, given the limited global supply of
essential metals, the limited capacity to produce electrode elements,
the limited number of specialized electrochemical and technical experts
for chlor-alkali facilities and the inability to concurrently schedule
and procure for multiple, unique membrane facility conversions, as
documented in extensive and detailed information provided to EPA by
OxyChem. Finally, the third facility's membrane conversion will not be
completed for 12 years; EPA has no basis to conclude seven years
provides a reasonable transition period for this conversion; in fact,
the conversion process is not scheduled to begin before eight years due
to the need to complete the conversion of the second facility in
advance of this third facility. A ban that is implemented in seven
years would force the closure of this third facility for five years
before chlor-alkali production could resume. EPA expects this forced
closure would have deleterious impacts on the supply of chlor-alkali
chemicals for water treatment as well as the chemicals industry, and
also would have significant financial impacts for the company.
The issuance of this final rule does not preclude Olin from
presenting additional information to EPA on its conversion plans in the
future. For example, EPA has discretion under TSCA section 6(g) to
grant an exemption from a requirement of a TSCA section 6(a) rule for a
specific condition of use of a chemical substance, if EPA finds that,
among other reasons, compliance with the requirement would
significantly disrupt the national economy, national security, or
critical infrastructure, or the condition of use provides a substantial
benefit to health or public safety. EPA believes the provision of
chlor-alkali chemicals for water treatment has potential implications
for all these considerations. Information that would help EPA to
evaluate an alternate transition time would include: Conversion plans
and schedules; progress made; impediments to ending asbestos use in
five years; impacts of the five-year end date on production output;
impact on the company's customers; and the impact on the supply of
chlor-alkali chemicals for water treatment. However, EPA currently has
no basis to conclude that requiring compliance with the five-year
period would significantly disrupt the national economy, national
security, or critical infrastructure, or that a longer transition
period for the conversion of asbestos diaphragms to non-asbestos
diaphragms would provide a substantial benefit to public safety, such
that a section 6(g) exemption may be appropriate. Similarly, EPA
currently has no basis to conclude that the five-year period provided
in this final rule is not as soon as practicable and does not provide a
reasonable transition time for chlor-alkali companies to convert to
non-asbestos diaphragms.
In regard to the remaining three chlor-alkali facilities, EPA has
been provided detailed information on OxyChem's plans to sequentially
convert all three facilities to membrane technology. Conversion work on
one facility has
[[Page 21982]]
begun and is expected to be completed within five years; the other two
facilities are planned to be converted in sequence to membrane
technology after the first conversion project is finished. The final
rule prohibits the processing, distribution in commerce, and commercial
use of chrysotile asbestos for chrysotile asbestos diaphragms effective
five years after the effective date of the final rule, but allows
longer staggered phase-out periods of 8- and 12-years in order to
provide companies with a reasonable transition period for the
sequential conversion to membrane technology of up to three of their
chlor-alkali facilities still using chrysotile asbestos diaphragms,
provided certain conditions are met and progress toward initiating
phase-out has been demonstrated. The 5-8-12 years staggered phase-out
period allows for the required construction and required planning,
permits and capital investment needed for the transition from
chrysotile asbestos diaphragms to membrane technology. The final rule
allows a company to continue to process, distribute in commerce and
commercially use chrysotile asbestos for diaphragms in the chlor-alkali
industry at no more than two of its facilities until eight years after
the effective date of the final rule, to provide a reasonable period
for sequential conversions of facilities from chrysotile asbestos
diaphragm technology to membrane technology. In order to be eligible
for this extended phase-out period under the final rule, a company
must: own or operate more than one facility that uses chrysotile
asbestos in chlor-alkali production as of the effective date of the
final rule; be converting more than one of those facilities to membrane
technology; have, by the date five years after the effective date of
the final rule, ceased all processing, distribution in commerce and
commercial use of chrysotile asbestos at one (or more) facilities that
are undergoing or have undergone such conversion; and certify to EPA
compliance with these provisions. A company that does this may then
also continue to process, distribute in commerce and commercially use
chrysotile asbestos for diaphragms in the chlor-alkali industry at not
more than one facility until 12 years after the effective date of the
final rule, so that it may continue to produce chlor-alkali chemicals
during conversion to membrane technology, subject to similar conditions
and the submission of a second certification to EPA by eight years
after the effective date of the final rule. This means that by eight
years after the effective date of the rule, a company must certify:
that they own or operate more than two facilities that uses chrysotile
asbestos in chlor-alkali production as of the effective date of the
final rule; be converting more than two of those facilities to membrane
technology; and have, by the date eight years after the effective date
of the final rule, ceased all processing, distribution in commerce and
commercial use of chrysotile asbestos at all facilities but one. In no
situation may any facility continue to process, distribute in commerce
or commercially use chrysotile asbestos for diaphragms in the chlor-
alkali industry after 12 years after the effective date of the final
rule.
B. Interim Controls
EPA's primary alternative regulatory action described in the
proposed rule was to prohibit the manufacture (including import),
processing, distribution in commerce and commercial use of chrysotile
asbestos in bulk form or as part of chrysotile asbestos diaphragms in
the chlor-alkali industry and for chrysotile asbestos-containing sheet
gaskets in chemical production (with prohibitions taking effect five
years after the effective date of the final rule), which also included
a requirement, prior to the prohibition taking effect, to comply with
an ECEL for the processing and commercial use of chrysotile asbestos
for these uses. The final rule includes interim control requirements
developed from the ECEL provisions described in the preamble to the
proposed rule with some modifications to address public comments
regarding monitoring limitations which could impact the ability to
implement an action level. The final rule does not include the ECEL
action level of 0.0025 f/cc as an 8-hour time weighted average (TWA)
described in the preamble to the proposed rule, in response to concerns
raised in comments about the feasibility of accurately measuring to
this level. Under the primary alternative regulatory action described
in the proposed rule, the ECEL action level would have been used to
determine how frequently periodic exposure monitoring would be required
if initial exposure monitoring revealed concentrations of chrysotile
asbestos below the ECEL: if exposure monitoring revealed concentrations
of chrysotile asbestos below the ECEL action level, the owner or
operator would be required to conduct periodic exposure monitoring
every five years; however, if exposure monitoring revealed
concentrations of chrysotile asbestos at or above the ECEL action level
but below the ECEL, the owner or operator would be required to conduct
periodic exposure monitoring every six months. Since an ECEL action
level is not being included as part of the final rule due to concerns
with accurately measuring down to the ECEL action level, EPA is
requiring all persons subject to the interim control requirements to
conduct exposure monitoring every six months if the most recent
exposure monitoring shows exposure at or below the ECEL. This testing
frequency is the same as the periodic exposure monitoring frequency
under the primary alternative regulatory action described in the
proposed rule where concentrations are at or above the ECEL action
level but at or below the ECEL.
Some commenters proposed that an ECEL would be sufficient to
eliminate the unreasonable risk, without a need for a ban on chrysotile
asbestos. EPA considered all risk management approaches and the adverse
health effects from chrysotile asbestos, including the risk of
mesothelioma, lung cancer, and other cancers from chronic inhalation as
well as who is exposed and how they are exposed to chrysotile asbestos
and concluded that a prohibition is the only requirement that would
ensure that chrysotile asbestos no longer presents an unreasonable
risk. An ECEL is a requirement that can be used to minimize the
exposure to the potentially exposed persons at the chlor-alkali
facilities during the interim period before the prohibition takes
effect, provided that a robust monitoring program and effective
exposure controls, such as engineering controls, are in place. However,
as explained in the proposed rule, and supported by public comment,
monitoring to and below the ECEL, while achievable, may at times be
problematic due to analytical and field sampling challenges, resulting
in the modifications to the interim controls described earlier in this
Unit. Therefore, owners or operators may be unable to reliably ensure
with sufficient confidence that potentially exposed persons are not
exposed to air concentrations above the ECEL. The feasibility of
instituting additional engineering controls at chlor-alkali facilities
is unlikely due to the nature of the tasks that require workers
handling chrysotile asbestos. As such, compliance with the ECEL for
workers is unlikely to be achieved without long-term reliance on the
use of respirators. Respirators are the least effective means of
ensuring worker protection in the hierarchy of controls, particularly
in the case of protecting workers and ONUs against exposure to asbestos
fiber
[[Page 21983]]
inhalation. As discussed in section 2.3.2.1 of the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos, based on studies investigating
the performance of respirators, some workers and ONUs may have
protection below the nominal applied protection factor for respirator
use and would not be protected so that chrysotile asbestos does not
present unreasonable risk. For these reasons, EPA believes that an ECEL
cannot ensure that chrysotile asbestos does not present unreasonable
risk to workers and, therefore, it is not a substitute for a ban as a
long-term risk management solution.
C. Chrysotile Asbestos-Containing Sheet Gaskets in Chemical Production
EPA proposed to prohibit manufacture (including import),
processing, distribution in commerce, and commercial use of chrysotile
asbestos, including any chrysotile asbestos-containing products or
articles, for sheet gaskets in chemical production, with these
prohibitions taking effect two years after the effective date of the
final rule. EPA is finalizing these prohibitions with several
modifications based on public comment received in response to the
proposed rule and notice of data availability.
First, commenters noted the proposed ban would prohibit the ongoing
use of previously installed chrysotile asbestos-containing sheet
gaskets in chemical production, which presented several concerns. They
noted that the number of sheet gaskets remaining in use in chemical
plants and refineries could be in the hundreds of thousands and
potentially millions. This is a much larger universe than the asbestos-
containing gasket use that EPA characterized in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos. Comments noted it would be
impossible for facilities to be certain which older gaskets contain
asbestos, and therefore to ensure compliance with the prohibition as
proposed, the facilities would have to remove all older gaskets on the
assumption that they may contain chrysotile asbestos. Such a
replacement program would be expensive, it would disrupt production,
including prolonged plant shutdowns, and would be difficult to
accomplish even in two years. Commenters also noted that the ongoing
use of installed gaskets does not present unreasonable risk: rather the
risk is present during asbestos gasket removal and recommended that the
most effective and safest strategy would be to replace asbestos gaskets
when they reach the end of their service life. These comments are
consistent with EPA's evaluation of exposure to in the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos. The worker activities most
relevant to chrysotile asbestos exposure include receiving new gaskets,
removing old gaskets, bagging old gaskets for disposal, and inserting
replacement gaskets into flanges and other process equipment. Outside
of these activities, EPA did not find the ongoing use of installed
gaskets presented unreasonable risk. In response to these comments, EPA
is specifying in the final rule that any chrysotile asbestos-containing
sheet gaskets for chemical production which are already installed and
in use prior to the compliance date for the prohibitions are not
subject to the distribution in commerce and commercial use
prohibitions. Allowing distribution in commerce of installed chrysotile
asbestos-containing sheet gaskets will permit the sale of equipment and
facilities that may contain such gaskets.
Second, EPA is finalizing a prohibition on the commercial use of
chrysotile asbestos sheet gaskets for titanium dioxide production with
a modified mandatory compliance date of five years after the effective
date of the final rule. This provision responds to information provided
by a titanium dioxide producer that it requires additional time to
replace asbestos gaskets that are used in specialized equipment for
titanium dioxide production. The company provided information that it
is actively working on a transition to non-asbestos gaskets at its two
large titanium dioxide production facilities in the United States;
however, the replacement of asbestos gaskets in the oxidation reaction
area of the process, which are subject to high temperature, pressure,
and corrosive chemicals, is a complicated engineering project that will
require the redesign and replacement of specialized reactor vessel
flanges. (Ref. 18; Ref. 19) Due to the specialized nature of the
project, the need to continue titanium dioxide production, and safety
concerns, EPA has concluded that five years is as soon as practicable
and provides a reasonable transition period for the implementation of a
ban on the commercial use of asbestos gaskets for titanium dioxide
production. Consistent with the proposed primary regulatory
alternative, to address worker exposure to asbestos during this five-
year period, interim workplace controls of chrysotile asbestos
exposures will be required for the commercial use of sheet gaskets for
titanium dioxide production. The titanium dioxide producer did not
request additional time to import or process asbestos for this use, and
the manufacture (including import), processing, and distribution in
commerce of chrysotile asbestos sheet gaskets for titanium dioxide
production has an unmodified mandatory compliance date of two years
after the effective date of the final rule while use can continue until
five years after the effective date of the final rule.
Finally, after publication of the proposed rule, EPA received a
comment from a Department of Energy contractor, Savannah River Nuclear
Solutions, stating that there is an ongoing use of chrysotile asbestos
sheet gaskets in the processing of nuclear material at the Savannah
River Site, which EPA has determined falls within the sheet gaskets in
chemical production category of use, based on the information provided
by the commenter (Ref. 20). The commenter states they have been unable
to identify non-asbestos substitute materials that are as durable in
the radioactive environment associated with the use. EPA met with the
commenter and gathered additional information on the use, which also
includes some use of chrysotile asbestos sheet gaskets for steam
systems in low or no radiation areas at the nuclear facility.
The comment stated that the use of less durable, non-asbestos,
gasket material would require more frequent gasket replacements, which
in turn increases the frequency of radiation exposure for the workers
who perform this task in radioactive areas. In addition, the comment
indicated that the protective clothing, gloves, and respiratory
equipment required to minimize exposure to the radiological hazards
associated with the nuclear material also protects workers in
radioactive areas from exposures to chrysotile asbestos. At this
facility, there is also some use of asbestos gaskets in low or no
radiation areas, but removal and replacement of asbestos gaskets is
performed in compliance with OSHA 29 CFR 1926.1101 (Class III work) at
a minimum. In addition, minimum respiratory protection used by workers
for this task is a full-face air purifying respirator with a P-100
(HEPA) cartridge which has an APF of 50. In high radiation areas,
respirators with APF of 1,000 or 10,000 are used, depending on the
protective suit required.
In response to this comment, EPA reached out to the Department of
Energy for additional information regarding any ongoing use of
chrysotile asbestos sheet gaskets at its nuclear facilities and
confirmed that additional DOE nuclear
[[Page 21984]]
facilities do still use such gaskets. EPA received additional
information on use of chrysotile asbestos sheet gaskets in the
processing of nuclear material from the Department of Energy during OMB
interagency review, regarding DOE operations at its Savannah River
Site. DOE explained that chrysotile asbestos sheet gaskets are used at
SRS in the H-Canyon, F and H Tank Farms, Defense Waste Processing
Facility, and at the Savannah River National Laboratory. DOE stated
that the greatest impacts of this rule would be on the operations of H-
Canyon; this facility is the sole nuclear separations facility in the
nation and is integral to DOE's mission to safely dispose of nuclear
materials from across the DOE complex. H-Canyon is used to help process
certain materials for disposition, such as spent nuclear fuel--used
fuel from nuclear reactors--some of which contains highly enriched
uranium. DOE also explained that asbestos gaskets provide the most
robust protection against potential leaks or radiological contamination
events, they are the longest lasting material for these environments,
and they continue to be the only usable gasket for some specialized
infrastructure. Further, SRS was added to the National Priorities List
(NPL) on December 21, 1989, and the site is subject to the SRS Federal
Facility Agreement (FFA) signed by DOE, EPA, South Carolina Department
of Health and Environmental Control (SCDHEC) in 1993 pursuant to
Section 120 of CERCLA Section 120 and Sections 3008(h) and 6001 of RCRA
(Ref. 21). Under the FFA, DOE, EPA Region 4 and the SCDHEC have entered
into a 2022 High Level Waste Milestone Agreement that specifies
completion of the liquid waste program at SRS by the end of 2037 (Ref.
22). Even if a suitable replacement could be identified for this use of
asbestos gaskets, DOE explained, the time required to replace the
asbestos gaskets, incur an outage of waste processing, and restart
facilities would result in a significant delay in the completion of the
liquid waste program. Thus, EPA has determined that compliance with a
two or five year prohibition on the use of chrysotile asbestos sheet
gaskets at SRS is not practicable, and does not provide for a
reasonable transition period, as required under TSCA section 6(d).
Rather, in order to provide SRS with a reasonable transition period to
move away from asbestos gaskets without disruption of its existing
commitments to complete the liquid waste program, EPA has determined
that 2037 is as soon as practicable for the full implementation of the
ban on the use of chrysotile asbestos sheet gaskets in chemical
processing at SRS.
EPA also contacted the Nuclear Energy Institute (NEI), which
reported that some commercial nuclear facilities continue to use
chrysotile asbestos sheet gaskets, while many do not. NEI also stated
that its largest supplier of specialty gaskets for nuclear applications
does not provide asbestos gaskets. EPA spoke to the commenter's
supplier of asbestos gaskets, who informed EPA that, while there is
ongoing difficulty finding suitable substitutes for asbestos in
specific nuclear applications, they have been unable to find sources of
asbestos cloth to produce new asbestos gaskets and are phasing out of
this market.
Although the current workplace controls described by the commenter,
Savannah River Nuclear Solutions, potentially reduce the risk posed to
some workers, because the use of chrysotile asbestos sheet gaskets in
the processing of nuclear material was first identified to EPA by
public comment received after publication of the proposed rule, which
followed publication of the Risk Evaluation, EPA was unable to evaluate
this industry's specific work practices in the Risk Evaluation.
Therefore, in the Risk Evaluation, EPA does not present information
specific to risk to workers and ONUs for the use of chrysotile asbestos
sheet gaskets in the processing of nuclear material; however,
information received after the Risk Evaluation describes the current
workplace controls for processing of nuclear material and the related
challenges to transition to a substitute material. EPA does not have
sufficient information to determine that unreasonable risk can be
eliminated with PPE and current workplace controls alone; therefore, a
prohibition is necessary to address the unreasonable risk. In
consideration of the information received, EPA is providing additional
time for the use of chrysotile asbestos-containing sheet gaskets for
processing nuclear material. Under the final rule, persons may continue
to manufacture (including import), process and distribute in commerce
chrysotile asbestos-containing sheets gaskets for two years after the
effective date of the final rule and commercially use chrysotile
asbestos-containing sheet gaskets for processing nuclear material for
five years after the effective date of the final rule, and until the
end of 2037 for the Savanah River Site.
Similar to the primary alternative regulatory action described in
the proposed rule, to address worker exposure to asbestos during this
five-year period of commercial use, interim workplace controls of
chrysotile asbestos exposures will be required for the commercial use
of sheet gaskets. In the case of the chrysotile asbestos-containing
sheet gaskets used in the processing of nuclear material, EPA is
incorporating the current worker protection practices identified by the
commenter as part of the interim controls for that use to reduce
chrysotile asbestos exposures until the prohibition compliance date.
This includes ongoing compliance with the OSHA Asbestos Safety and
Health Regulations for Construction (29 CFR 1926.1101) and minimum
respiratory protection of a full-face air purifying respirator with a
P-100 (HEPA) cartridge with an APF of 50 for potentially exposed
persons. A respirator with an APF 50 is a higher level of PPE than
would be needed to reduce worker exposure to below the cancer benchmark
for general sheet gasket use (replacing gaskets) in the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos (Ref. 1). However, as
discussed in section 2.3.2.1 of the Risk Evaluation for Asbestos, Part
1: Chrysotile Asbestos, based on studies investigating the performance
of respirators, some workers and ONUs may have protection below the
nominal applied protection factor for respirator use and would not be
protected; EPA would need additional information to determine if the
unreasonable risk can be eliminated without a prohibition for the use
of asbestos gaskets in the processing of nuclear material. The
commenter also requested an exemption from the final rule since the
asbestos gaskets are integral to the safe operation of the process.
TSCA section 6(g)(2) requires EPA to analyze the need for the
exemption, and to make public the analysis and statement on how the
analysis was considered when proposing an exemption under TSCA section
6(g). EPA is considering a separate action to provide a future time-
limited exemption under TSCA section 6(g) for the processing of nuclear
material.
D. Other Conditions of Uses
EPA proposed to prohibit all persons from the manufacture
(including import), processing, distribution in commerce and commercial
use of chrysotile asbestos, including any chrysotile asbestos-
containing products or articles, for commercial use of: (1) Oilfield
brake blocks; (2) Aftermarket automotive brakes and linings; (3) Other
vehicle friction products; and (4) Other gaskets, beginning 180 days
after the effective date of the final rule. Public comments noted the
difficulty in
[[Page 21985]]
identifying asbestos components previously installed in vehicles; that
it is not possible to tell by visual inspection whether previously
installed aftermarket brake pads or shoes contain asbestos, and that
very few aftermarket brake pads and shoes contain asbestos. Without
existing records, it may not be possible to establish that a vehicle's
brakes do not contain asbestos unless they are replaced. This is also
the situation for other vehicle friction products and gaskets in
vehicles. Based on this information, EPA is finalizing the proposed
prohibition, with modifications to specify that any aftermarket
automotive brakes and linings, and other gaskets which are already
installed and in use before the prohibition is effective are not
subject to the distribution in commerce and commercial use
prohibitions. Allowing the continued use of these installed products
for their useful life will not increase repair and replacement worker
activity or related exposure or risk for these uses.
EPA received similar comments regarding the proposed prohibition on
the manufacturing (including importing), processing, and distribution
in commerce of chrysotile asbestos, including any chrysotile asbestos-
containing products or articles, for consumer use of aftermarket
automotive brakes and linings and other gaskets; namely that it would
be difficult to determine if previously installed components of a
vehicle contain asbestos, as it is not possible to tell by visual
inspection whether previously installed aftermarket brake pads or shoes
contain asbestos or not. Therefore, EPA is finalizing the proposed
prohibition, with modifications to specify that any aftermarket
automotive brakes and linings, and other gaskets which are already
installed and in consumer use by 180 days after the effective date of
the final rule are not subject to this distribution in commerce
prohibition. This will permit the resale of vehicles that contain
already-installed asbestos brakes and linings, or other gaskets. This
prohibition does not apply to the consumer use of any aftermarket
automotive brakes and linings, and other gaskets, so it is not
necessary to modify the proposal to permit the continued consumer use
of these asbestos-containing components, including consumer use in
vehicles that may contain these components. This modification will not
increase repair and replacement workers' exposure or risk for these
uses.
E. Recordkeeping
EPA is also finalizing modified recordkeeping provisions. The
recordkeeping provisions included in the proposed rule addressed
retention of disposal records. The final rule includes additional
recordkeeping requirements to reflect additional provisions of the
final rule. Specifically, EPA's final recordkeeping provisions include
additional requirements to maintain records regarding interim workplace
controls of chrysotile asbestos exposures, as well as records of
certifications of compliance for the chlor-alkali industry. Full
description of the recordkeeping requirements is in Unit VI.F.
F. Definitions
In the final rule, EPA is adding definitions in Sec. 751.503 for
``Authorized person,'' ``Membrane technology,'' ``Nuclear material,''
``Regulated area,'' and ``Savannah River Site.'' These new definitions
are being added to address provisions that were not in the proposed
regulatory text, such as the interim controls and phased-in compliance
dates for the chlor-alkali industry prohibitions.
VI. Provisions of the Final Rule
This final rule sets certain restrictions on the manufacture
(including import), processing, distribution in commerce, and
commercial use and disposal of chrysotile asbestos to prevent
unreasonable risk of injury to health in accordance with TSCA section
6(a), 15 U.S.C. 2605(a). Pursuant to TSCA section 12(a)(2), this rule
applies to chrysotile asbestos even if being manufactured, processed,
or distributed in commerce solely for export from the United States
because EPA has determined that chrysotile asbestos presents an
unreasonable risk to health within the United States or to the
environment of the United States.
A. Manufacturing, Processing, Distribution in Commerce and Commercial
Use of Chrysotile Asbestos Diaphragms in the Chlor-Alkali Industry
Provisions regulating the manufacture (including import),
processing, distribution in commerce and commercial use of chrysotile
asbestos diaphragms in the chlor-alkali industry are specified in
Sec. Sec. 751.505 and 751.507. As of the effective date of the final
rule, all persons are prohibited from the manufacture (including
import) of chrysotile asbestos, including any chrysotile asbestos-
containing products or articles, for diaphragms in the chlor-alkali
industry. Additionally, beginning five years after the effective date
of the final rule, all persons are prohibited from processing,
distribution in commerce and commercial use of chrysotile asbestos for
diaphragms in the chlor-alkali industry, except as provided in
Sec. Sec. 751.505(c) and (d).
Section 751.505(c) permits a person to process, distribute in
commerce and commercially use chrysotile asbestos for diaphragms in the
chlor-alkali industry at no more than two facilities until eight years
after the effective date of the final rule, provided that: (1) On the
effective date, the person owns or operates more than one facility that
uses chrysotile asbestos in chlor-alkali production; (2) The person is
converting more than one facility that the person owns or operates
that, as of the effective date, uses chrysotile asbestos in chlor-
alkali production from the use of chrysotile asbestos diaphragms to
non-chrysotile asbestos membrane technology; (3) By the date five years
after the effective date of the final rule, the person has ceased all
processing, distribution in commerce and commercial use of chrysotile
asbestos at one (or more) facility that is undergoing or has undergone
such conversion; and (4) The person certifies to EPA compliance with
the provisions of the paragraph, in accordance with certification
provisions in Sec. 751.507.
Section 751.505(d) permits a person who meets all of the criteria
of that paragraph to process, distribute in commerce and commercially
use chrysotile asbestos for diaphragms in the chlor-alkali industry at
not more than one facility until 12 years after the effective date of
the final rule, provided that: (1) On the effective date of the final
rule, the person owns or operates more than two facilities that use
chrysotile asbestos in chlor-alkali production; (2) The person is
converting more than two facilities that the person owns or operates
that, as of the effective date of the final rule, use chrysotile
asbestos in chlor-alkali production, from the use of chrysotile
asbestos diaphragms to non-chrysotile asbestos membrane technology; (3)
By five years after the effective date of the final rule, the person
has ceased all processing, distribution in commerce and commercial use
of chrysotile asbestos at one (or more) facility that is undergoing or
has undergone such conversion, and by eight years after the effective
date of the final rule, the person has ceased all processing,
distribution in commerce and commercial use of chrysotile asbestos at
two (or more) facilities that are undergoing or have undergone such
conversion; and (4) The person certifies to EPA compliance with the
provisions
[[Page 21986]]
of the paragraph, in accordance with the certification provisions of
Sec. 751.507.
B. Certification of Compliance for Chlor-Alkali Industry
Requirements for certifications of compliance for the chlor-alkali
industry are specified in Sec. 751.507. A person who processes,
distributes in commerce or commercially uses chrysotile asbestos for
diaphragms in the chlor-alkali industry between five years and eight
years after the effective date of the final rule must certify to EPA
their compliance with all requirements of Sec. 751.505(c) and provide
the following information to EPA: (1) Identification of the facility
(or facilities) at which, by five years after the effective date of the
final rule, the person has ceased all processing, distribution in
commerce and commercial use of chrysotile asbestos, including the
facility name, location, and mailing address; the name of facility
manager or other contact, with title, phone number and email address;
and the date the person ceased all processing, distribution in commerce
and commercial use of chrysotile asbestos at the facility; and (2) The
identification of the one or two facilities (no more than two
facilities) at which the person will after five years after the
effective date of the final rule, continue to process, distribute in
commerce and commercially use chrysotile asbestos diaphragms while the
facility or facilities are being converted to non-chrysotile asbestos
membrane technology, including for each facility, the facility name,
location, and mailing address; and (3) The name of facility manager or
other contact, with title, phone number and email address.
A person who processes, distributes in commerce or commercially
uses chrysotile asbestos for diaphragms in the chlor-alkali industry
between 8 and 12 years after the effective date of the final rule must
certify to EPA their compliance with all requirements of Sec.
751.505(d) and provide the following information to EPA: (1)
Identification of the facility at which the person has ceased all
processing, distribution in commerce and commercial use of chrysotile
asbestos after five years after the effective date of the final rule
but no later than eight years after the effective date of the final
rule, including the facility name, location, and mailing address; the
name of facility manager or other contact, with title, phone number and
email address; and the date the person has ceased all processing,
distribution in commerce and commercial use of chrysotile asbestos at
the facility; (2) The identification of the facility at which the
person will between eight years after the effective date of the final
rule and no later than 12 years after the effective date of the final
rule, continue to process, distribute in commerce and commercially use
chrysotile asbestos diaphragms while the facility is being converted to
non-chrysotile asbestos membrane technology pursuant to Sec.
751.505(d), including the facility name, location, and mailing address;
and (3) The name of facility manager or other contact, with title,
phone number and email address.
Such certification must be signed and dated by a responsible
corporate officer, which means: a president, secretary, treasurer, or
vice-president of the corporation in charge of chlor-alkali operations,
or any other person who performs similar policy or decision-making
functions for the corporation. The certification must include the
statement:
``I certify under penalty of law that this document was prepared
under my direction or supervision, and the information is, to the
best of my knowledge and belief, true, accurate, and complete. I am
aware it is unlawful to knowingly submit incomplete, false and/or
misleading information and there are criminal penalties for such
conduct.''
Certifications must be submitted to the Director of the Office of
Pollution Prevention and Toxics in Washington, DC, no later than 10
business days after the date five years after the effective date of the
final rule, or 10 business days after the date 8 years after the
effective date of the final rule, as appropriate.
C. Other Prohibitions of, and Restrictions on the Manufacturing,
Processing, Distribution in Commerce and Commercial Use of Chrysotile
Asbestos
1. Prohibition on manufacture (including import), processing,
distribution in commerce, and commercial use of chrysotile asbestos for
chrysotile asbestos-containing sheet gaskets in chemical production.
Provisions regulating the manufacturing, processing, distribution
in commerce and commercial use of chrysotile asbestos-containing sheet
gaskets in chemical production are specified in Sec. 751.509,
specifically paragraphs (a) through (c), of this rule. Beginning two
years after the effective date of the final rule, all persons are
prohibited from manufacturing (including importing), processing,
distributing in commerce, and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
use in sheet gaskets for chemical production, except as provided in
Sec. 751.509(b) and (c). However, any sheet gaskets for chemical
production which are already installed and in use as of the applicable
compliance date, are not subject to this distribution in commerce and
commercial use prohibition.
Section 751.509(b) allows the commercial use of chrysotile asbestos
sheet gaskets for titanium dioxide production past the general two-year
prohibition; any person may use chrysotile asbestos sheet gaskets for
titanium dioxide production until five years after the effective date
of the final rule. This provision only applies to commercial use;
manufacturing (including import), processing and distribution in
commerce must cease after two years, pursuant to Sec. 751.509(a).
Section 751.509(c) allows the commercial use of chrysotile asbestos
sheet gaskets for processing of nuclear material past the general two-
year prohibition: any person who meets the applicable criteria in the
paragraph may commercially use chrysotile asbestos sheet gaskets for
processing nuclear material until five years after the effective date
of this final rule; at the Department of Energy's Savannah River Site,
use may continue until the end of 2037. This provision only applies to
commercial use; manufacturing (including import), processing and
distribution in commerce must cease after two years, pursuant to Sec.
751.509(a). Section 751.509(c) requires that, beginning 180 days after
the effective date of the final rule, all persons commercially using
chrysotile asbestos sheet gaskets for processing nuclear material must
have in place exposure controls (i.e., engineering controls, work
practices, or a combination of both) expected to reduce exposure of
potentially exposed persons to asbestos, and provide potentially
exposed persons in the regulated area where chrysotile asbestos sheet
gasket replacement is being performed with a full-face air purifying
respirator with a P-100 (HEPA) cartridge (providing an assigned
protection factor of 50), or other respirators that provide a similar
or higher level of protection to the wearer.
EPA did not consider workplace practices in the nuclear industry
during the development of the primary alternative interim workplace
controls in the proposed rule, and EPA has concerns about unintended
consequences were those controls to be imposed for this specific use.
In the case of the processing of nuclear material, EPA is not adopting
an ECEL to avoid imposing requirements that could
[[Page 21987]]
increase asbestos air monitoring beyond what is currently required
under the OSHA Asbestos Safety and Health Regulations for
Construction--(29 CFR 1926.1101). This is to ensure that this final
rule does not have the unintended consequence of increasing persons
exposure to radiation from nuclear material and the risk of any
associated health effects. Aside from additional worker exposure to
radiation that may result from additional sample collection activities
(such as would be required under interim workplace controls with an
ECEL under Sec. 751.511), air sampling in radioactive environments
presents special technical challenges: first, the equipment used to
collect samples may become contaminated and unfit for further use, and
second, the collected samples may be too radioactive for laboratories
to accept for analysis.
EPA expects that during the interim period before the full-ban
compliance date, existing measures under the OSHA asbestos standards,
as well as radiological control protocols under Department of Energy
regulations at 10 CFR part 835, will adequately mitigate asbestos risk
in relation to the cancer benchmark. EPA notes that the OSHA
requirements clearly delineate a regulated area in which the gasket
replacement work is occuring that has strict access controls, while
access is further restricted to radioactive areas, such that no one is
permitted in the workspace without full PPE, which includes respirators
of APF 50 or higher, in accordance with industry practices. Respirators
with APF 50 is a higher level of PPE than would be needed to reduce
exposure to workers below the cancer benchmark as identified in the
TSCA risk evaluation for general sheet gasket use (replacing gaskets).
(Table 4-19 in section 4.2.2.3. of the Risk Evaluation for Asbestos,
Part 1: Chrysotile Asbestos). However, as explained before, EPA also
recognizes that respirators are the least effective means of ensuring
worker protection in the hierarchy of controls, particularly in the
case of protecting workers against exposure to asbestos fiber
inhalation. As discussed in section 2.3.2.1 of the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos, some workers may have protection
below the nominal applied protection factor for respirator use and
would not be protected. Therefore, while respirators with APF of 50
reduce exposures to workers, only a prohibition on use ensures no
unreasonable risk. By requiring facilities to continue using the
current respiratory protection with an assigned protection factor of 50
or higher, EPA is reducing the risk to potentially exposed persons from
the unreasonable risk presented by chrysotile asbestos while ensuring a
reasonable transition period until the relevant prohibition goes into
effect. During the development of any future TSCA section 6(g)
exemption for this specific use of chrysotile asbestos sheet gaskets,
should one be proposed, EPA could give more consideration to the need
for a chrysotile asbestos monitoring program beyond asbestos monitoring
that is already required by OSHA under the Asbestos Safety and Health
Regulations for Construction at 29 CFR 1926.1101.
2. Prohibition on manufacture (including import), processing,
distribution in commerce, and commercial use of: chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; asbestos-containing
vehicle friction products; and other asbestos-containing gaskets.
Provisions regulating the manufacture (including import),
processing, distribution in commerce and commercial use of chrysotile
asbestos-containing brake blocks in the oil industry; aftermarket
automotive chrysotile asbestos-containing brakes/linings; other
asbestos-containing vehicle friction products; and other asbestos-
containing gaskets are specified in Sec. 751.509(d). Beginning 180
days after the effective date of the final rule, all persons are
prohibited from manufacturing (including importing), processing,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
commercial use of: (1) Oilfield brake blocks; (2) Aftermarket
automotive brakes and linings; (3) Other vehicle friction products; and
(4) Other gaskets. However, any aftermarket automotive brakes and
linings, other vehicle friction products and other gaskets which are
already installed and in use as of 180 days after the effective date of
the final rule, are not subject to this distribution in commerce and
commercial use prohibition.
3. Prohibition on manufacture (including import), processing, and
distribution in commerce for aftermarket automotive chrysotile
asbestos-containing brakes/linings and other asbestos-containing
gaskets for consumer use.
Provisions regulating the manufacture (including import),
processing, and distribution in commerce for aftermarket automotive
chrysotile asbestos-containing brakes/linings and other asbestos-
containing gaskets for consumer use are specified in Sec. 751.509(e).
Beginning 180 days after the effective date of the final rule, all
persons are prohibited from the manufacturing (including importing),
processing, and distribution in commerce of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
consumer use of: aftermarket automotive brakes and linings; and other
gaskets. However, any aftermarket automotive brakes and linings, and
other gaskets which are already installed and in consumer use as of 180
days after the effective date of the final rule are not subject to this
distribution in commerce prohibition.
This prohibition does not apply to the consumer use of any
chrysotile asbestos-containing aftermarket automotive brakes and
linings, and other gaskets. EPA's authority to regulate commercial use
under TSCA section 6(a)(5) does not extend to consumer use of chemical
substances or mixtures. The prohibition on the upstream manufacturing,
processing and distribution of chrysotile asbestos aftermarket
automotive brakes and linings, and other gaskets for consumer use will
remove these products from the consumer market and over time eliminate
their use as these products wear out and are replaced, or the vehicles
in which they are components are retired from use.
D. Interim Workplace Controls of Chrysotile Asbestos Exposures
1. Overview
For most of the conditions of use where, pursuant to this final
rule, the prohibition on processing and industrial use will take effect
in five or more years after the effective date of this final rule, EPA
is requiring that owners or operators comply with an eight-hour
existing chemical exposure limit (ECEL), beginning six months after the
effective date of the final rule. Specifically, this requirement
applies to the following conditions of use: (1) Processing and
industrial use of chrysotile asbestos in bulk form or as part of
chrysotile asbestos diaphragms used in the chlor-alkali industry; and
(2) Industrial use of chrysotile asbestos sheet gaskets for titanium
dioxide production. Once a facility has completed the phase-out of
chrysotile asbestos and no longer uses chrysotile asbestos in their
operations, the interim requirements no longer apply.
EPA uses the term ``potentially exposed person'' in this Unit and
in the regulatory text to include workers, occupational non-users,
employees, independent contractors, employers,
[[Page 21988]]
and all other persons in the work area where chrysotile asbestos is
present and who may be exposed to chrysotile asbestos under the
conditions of use for which these interim workplace controls apply.
EPA's intention is to require interim workplace controls that address
the unreasonable risk from chrysotile asbestos to workers directly
handling the chemical or in the area where the chemical is being used
until the relevant prohibitions go into effect. The 2020 Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos did not
distinguish between employers, contractors, or other legal entities or
businesses that manufacture, process, distribute in commerce, use, or
dispose of chrysotile asbestos. For this reason, EPA uses the term
``owner or operator'' to describe the entity responsible for
implementing the interim workplace controls in any workplace where an
applicable condition of use described in Units III.B.2.a. and
III.B.2.b. and subject to the interim workplace controls is occurring.
The term includes any person who owns, leases, operates, controls, or
supervises such a workplace. EPA has proposed to amend 40 CFR 751.5 to
add a definition of ``owner or operator'' consistent with this
description as part of its proposed TSCA section 6(a) rules to regulate
methylene chloride (88 FR 28284) and perchloroethylene (88 FR 39652).
In this final rule, EPA is using the same definition of ``owner or
operator'' to apply to where it appears in the regulatory text for
chrysotile asbestos.
As mentioned in the proposed rule (87 FR 21706), TSCA risk
management requirements could incorporate and reinforce requirements in
OSHA standards. For chrysotile asbestos, EPA's approach for interim
controls seeks to align, to the extent possible, with certain elements
of the existing OSHA standard for regulating asbestos under 29 CFR
1910.1001 and 29 CFR 1926.1101. The OSHA PEL and ancillary requirements
have established a long-standing precedent for exposure limit threshold
requirements within the regulated community. However, EPA is applying a
lower, more protective exposure limit or ECEL derived from the TSCA
2020 Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos.
However, in this final rule, EPA is not establishing medical
surveillance requirements based on the ECEL to align with those under
29 CFR 1910.1001. Companies must continue to follow the medical
surveillance requirements established by OSHA at 0.1 fiber per cubic
centimeter of air as an eight (8)-hour time-weighted average (TWA)
level.
This unit includes a summary of the interim controls, including a
description of the ECEL; and the implementation requirements such as
monitoring and notification requirements; regulated area; exposure
control plan; respiratory protection; and additional requirements for
workplace information and training. The recordkeeping associated with
the interim controls is included under the recordkeeping requirements
(Unit VI.F). This Unit also describes compliance timeframes for these
requirements.
2. Existing Chemical Exposure Limit (ECEL)
EPA calculated the ECEL to be 0.005 fibers (f)/cubic centimeter
(cc), for inhalation exposure to chrysotile asbestos as an eight-hour
time-weighted average (TWA) for use in workplace settings based on
incidence of lung cancer, mesothelioma and other cancers. (Ref. 23).
As part of the primary regulatory alternative included in the
proposed rule (87 FR 21706), EPA considered an ECEL-action level of
0.0025 f/cc as an eight-hour TWA, which would initiate certain required
activities such as more frequent periodic monitoring of exposures to
chrysotile asbestos. However, as discussed above in Unit V.B., after
public comments regarding the difficulties of measuring asbestos at
such low concentrations, EPA has decided not to finalize an ECEL-action
level in this final rule. Instead, EPA is finalizing more frequent
periodic monitoring requirements when exposure monitoring shows levels
below the ECEL than those that were described in the primary regulatory
alternative in the proposed rule. In the proposed rule, periodic
exposure monitoring results below the ECEL but above the ECEL action-
level would trigger an increase in periodic exposure monitoring to
every six months. Due to the difficulties expressed in public comments
of effectively measuring asbestos to the ECEL action level and to be
health protective in the absence of reliable test results to the ECEL
action level, the final rule will require periodic monitoring every six
months when measurements are at or below the ECEL and periodic
monitoring every three months when the ECEL is exceeded.
Commenters also expressed concerns with being able to effectively
measure asbestos to the ECEL, citing complicating factors such
analytical limitations, sample equipment, contributions from background
sources, and typical worker task exposure scenarios. While EPA in this
final rule will not include an ECEL action level due to the analytical
concerns raised in public comment, EPA believes that current analytical
methods and modern air sampling equipment allow for air monitoring with
a detection limit that allows for comparison with the ECEL level, and
the feasibility of the ECEL level is further demonstrated through the
personal air monitoring data submitted to EPA by the chlor-alkali
industry. However, for scenarios in which a sufficient limit of
detection cannot be achieved for comparison to the ECEL, owners and
operators may elect to use increased respiratory protection with an
appropriate Assigned Protection Factor (APF) to demonstrate compliance
with the ECEL as an interim workplace control, discussed more in Unit
VI.D.6.
In addition, in the proposed rule, EPA indicated that
implementation of an ECEL would require time and resources and
therefore did not propose to include it for the two-year period prior
to the proposed prohibition date. However, since this final rule's
prohibition dates for the processing and industrial use of chrysotile
asbestos in bulk form or as part of chrysotile asbestos diaphragms used
in the chlor-alkali industry and processing and industrial use of
chrysotile asbestos-containing sheet gaskets for titanium dioxide
production are at least five years, or potentially longer for certain
entities meeting EPA's requirements, EPA finds it necessary to issue
interim controls to reduce worker exposures for the period prior to the
prohibition taking effect. As part of an interim control measure,
requirements to implement the ECEL start six months after the effective
date of the rule. Specifically, owners or operators are required to
ensure that no person in the workplace is exposed to an airborne
concentration of chrysotile asbestos in excess of 0.005 f/cc as an
eight-hour TWA beginning six months after the effective date of the
final rule. EPA is also requiring owners or operators to comply with
additional requirements that are needed to ensure successful
implementation of the ECEL.
3. Monitoring
Monitoring requirements are a key component of implementing EPA's
interim workplace controls. Initial monitoring for chrysotile asbestos
is critical for establishing a baseline of exposure for potentially
exposed persons; similarly, periodic exposure monitoring assures
continued compliance over time so that potentially exposed persons are
not exposed to levels above the ECEL. In some cases, a change in
workplace conditions with
[[Page 21989]]
the potential to impact exposure levels would warrant additional
monitoring, which is also described.
EPA is requiring that owners or operators determine the 8-hour TWA
exposure of each potentially exposed person's exposure by taking one or
more personal breathing zone air samples that are representative of the
full-shift exposures for each potentially exposed person in each job
classification in each work area. These requirements are a modification
of the requirements described in the proposed regulation, which allowed
for sampling only some of the potentially exposed persons. The
requirements in this final rule align with the approach taken for
characterization of employee exposure in the OSHA standard for asbestos
(see 29 CFR 1910.1001(d)(1)(i) and (ii)) and allow for multiple samples
to fully represent the exposures during a full shift, based on the job
classification in each work area of the potentially exposed person.
Exposure samples must be analyzed using analytical methods
described in Appendix A to 29 CFR 1910.1001, or as referenced in
Appendix A to 29 CFR 1910.1001 (Appendix B to 29 CFR 1910.1001, OSHA
method ID-160, or the NIOSH 7400 method). In the proposed rule, the
primary regulatory alternative would have required use of a laboratory
that complies with the Good Laboratory Practice Standards in 40 CFR
part 792; however, in this final rule, and based on public comment, EPA
is aligning the laboratory quality standards with the OSHA general
asbestos standard. The OSHA method ID-160 and NIOSH 7400 analytical
methods are the required methods in the OSHA general asbestos standard
at 29 CFR 1910.1001 and the OSHA asbestos construction standard at 29
CFR 1926.1101. In addition, 29 CFR 1910.1001 Appendix A includes the
quality control procedures that must be implemented by laboratories
performing the analysis. Owners and operators subject to this final
rule are already familiar with the use of these methods since they are
used to comply with the OSHA asbestos standards. By incorporating the
use of these standards in this final rule, EPA is aligning with
existing analytical practice.
In the event that the owner or operator needs to use an equivalent
method to the OSHA reference method, EPA also is allowing use of such
equivalent method if the owner or operator ensures the equivalency of
the method by ensuring that replicate exposure data used to establish
equivalency are collected in side-by-side field and laboratory
comparisons, and the comparison indicates that 90% of the samples
collected in the range 0.5 to 2 times the ECEL have an accuracy range
of plus or minus 25% of the OSHA reference method at 95% confidence
level as demonstrated by a statistically valid protocol. These
requirements align with the approach taken in the OSHA standard for
asbestos (see 29 CFR 1910.1001(d)(6)(ii) and (iii)).
In addition, and as supported by commentors, the NIOSH 7402
analytical method may be applied to adjust the analytical result to
include only chrysotile asbestos. PCM analysis does not differentiate
between asbestos and other fibers. The NIOSH 7402 analytical method
uses a TEM microscope to determine the fraction of fibers that are
asbestos from a filter prepared and analyzed following NIOSH 7400. To
ensure consistency across both methods, airborne fibers analyzed using
TEM under the NIOSH 7402 analytical method align with those specified
in the NIOSH 7400 PCM method. The NIOSH 7402 method is not designed for
the quantification of the air concentration of asbestos fibers and
therefore should be used in conjunction with NIOSH 7400 under this
final rule for asbestos fiber identification.
a. Initial exposure monitoring.
In this final rule, each owner or operator of a facility engaged in
one or more of the conditions of use listed earlier in Unit VI.D.1. is
required to perform initial exposure monitoring no later than 180 days
after the effective date of the final rule to determine the extent of
exposure of potentially exposed persons to chrysotile asbestos. Initial
monitoring will notify owners and operators of the magnitude of
possible exposures to potentially exposed persons with respect to their
work conditions and environments. Based on the magnitude of possible
exposures in the initial exposure monitoring, the owner or operator may
need to increase the frequency of future periodic monitoring, and/or
adopt new exposure controls (such as engineering controls,
administrative controls, and/or a respiratory protection program).
In the primary regulatory alternative included as part of the
proposed regulation, EPA stated that if the regulated entity had
existing monitoring data less than five years old that followed the
initial exposure monitoring criteria described in the preamble to the
proposed rule, and where a process change was not implicated, the owner
or operator could choose to use this existing data as the initial
exposure monitoring instead of conducting initial exposure monitoring.
However, given the lower exposure limit set by the ECEL compared to the
current monitoring practices, and given the expected changes at the
chlor-alkali and chemical production facilities transitioning to non-
asbestos technologies, EPA has decided to require all owners or
operators to conduct new initial monitoring. Owners and operators may
not use data collected before the publication of this final rule to
comply with the initial monitoring requirement.
b. Periodic exposure monitoring.
EPA's final rule is aligned with elements of the existing OSHA
asbestos standard (29 CFR 1910.1001(d)(3) through (5)) to the extent
possible. Based on the results from the initial exposure monitoring, or
the most recent monitoring, EPA is requiring the following periodic
monitoring for owners or operators:
If one or more samples representing full-shift exposures
from the most recent exposure monitoring exceeds the ECEL (>0.005 f/cc
8-hour TWA), periodic exposure monitoring will be required within three
months of the most recent exposure monitoring.
Otherwise, periodic exposure monitoring will be required
within six months of the most recent exposure monitoring.
In the primary alternative regulatory action described in the
proposed rule, EPA based the exposure monitoring frequency on both the
ECEL-action level and the ECEL. However, since EPA is not finalizing an
ECEL action level due to the comments received regarding effectively
measuring asbestos to the ECEL action level, the exposure monitoring
frequency under the final rule is based only on the comparison of the
monitoring results with the ECEL. Because EPA is not finalizing an ECEL
action level, the final rule requires owners and operators to conduct
periodic exposure monitoring every six months if the most recent
exposure monitoring indicates airborne exposure is at or below the
ECEL. This exposure monitoring frequency is consistent with the
exposure monitoring described in the primary alternative regulatory
action in the proposed rule associated with exposure monitoring results
revealing a concentration of chrysotile asbestos above the ECEL action
level but at or below the ECEL. Further, since EPA is not finalizing an
ECEL action level, EPA could not finalize an option to terminate
exposure monitoring if all samples taken during initial exposure
monitoring were at or below the ECEL action level, as was described in
the primary regulatory alternative action described in the proposed
rule.
[[Page 21990]]
In addition, under the primary regulatory alternative described in
the proposed regulation, if an owner or operator did not use chrysotile
asbestos during an exposure monitoring period, the owner or operator
would not need to conduct exposure monitoring until the next exposure
monitoring period. Further, the proposed primary regulatory alternative
provided that an owner or operator had to conduct exposure monitoring
at minimum every five years. However, EPA expects continued use of
chrysotile asbestos in the limited number of conditions of use subject
to the interim workplace control requirements and, as discussed above,
is requiring all persons engaged in these conditions of use to conduct
exposure monitoring at least every six months. EPA has therefore
concluded there is no need to include provisions in the final rule to
suspend monitoring or conduct monitoring only every five years.
c. Additional exposure monitoring.
In addition to initial and periodic monitoring, EPA is requiring
that the owner or operator complying with the interim workplace
controls carry out additional exposure monitoring (analogous to those
requirements outlined in 29 CFR 1910.1001(d)(5)) after any changes in
production, process, control equipment, personnel, or work practices
that may reasonably be anticipated to result in new or additional
exposures above the ECEL, or when the owner or operator has any reason
to suspect that the change may result in new or additional exposures
above the ECEL. This additional exposure monitoring event may result in
an increased frequency of periodic monitoring. The required additional
exposure monitoring should be conducted within a reasonable timeframe
after there has been a change to ensure that it is representative of
the new procedures. In cases of malfunctions and other incidents, the
monitoring should not delay implementation of any necessary corrective
actions to restore malfunctioning processes, necessary emergency
response, cleanup or other remedial action to reduce the exposures to
potentially exposed persons.
d. Notification of exposure monitoring results.
In this final rule, EPA is requiring that the owner or operator
must, within 15 working days after receipt of the results of any
exposure monitoring, notify each potentially exposed person in writing,
either individually to each potentially exposed person or by posting
the information in an appropriate and accessible location, such as
public spaces or common areas, consistent with 29 CFR 1910.1001(d)(7).
The notification is required to include a description of any action
taken by the owner or operator to reduce inhalation exposures to or
below the ECEL or refer to a document available to the potentially
exposed persons which identifies the actions to be taken to reduce
exposures. For example, the owner or operator may notify a worker (or
other potentially exposed person) of the results as follows: ``Based on
the monitoring conducted on [date], the exposure to chrysotile asbestos
by workers installing gaskets was [0.03 f/cc]. This concentration is
above the limit set by EPA of 0.005 f/cc as an 8-hour time weighted
average to protect workers, and therefore the company is requiring use
of half-mask supplied-air respirator (SAR), or airline respirator
operated in a demand mode to ensure exposure prevention. Workers can
access the exposure control plans, exposure monitoring records, and
respiratory program implementation and documentation at the office
during regular business hours.''
4. Regulated Areas
Analogous to the OSHA Standard (29 CFR 1910.1001(e)), EPA is
requiring that 6 months after the effective date of the rule, the owner
or operator demarcate any area where airborne concentrations of
chrysotile asbestos are reasonably expected to exceed the ECEL. This
regulated area must be demarcated in a manner that minimizes the number
of persons who will be exposed to chrysotile asbestos, e.g.,
establishing boundaries for the area, using highly visible signifiers,
in multiple languages as appropriate, placed in conspicuous areas to
clearly mark the boundary of such regulated area. The owner or operator
is required to restrict access to the regulated area only to those
authorized to enter.
EPA is also requiring that the owner or operator must supply a
respirator that complies with the requirements described in Unit
VI.D.6.5. and ensure that all persons within the regulated area are
using the provided respirators whenever chrysotile asbestos exposures
may exceed the ECEL. Finally, the owner or operator must ensure that,
within a regulated area, persons do not engage in non-work activities
which may increase chrysotile asbestos exposure, such as eating,
drinking, smoking, chewing tobacco or gum, or applying cosmetics.
5. Exposure Control Plan
EPA recommends and encourages the use of pollution prevention as a
means of controlling exposures whenever practicable. Pollution
prevention, also known as source reduction, is any practice that
reduces, eliminates, or prevents pollution at its source (e.g.,
elimination and substitution), as described in the hierarchy of
controls. In the proposed rule (87 FR 21706), EPA's primary alternative
regulatory action included a requirement to document efforts to
implement the hierarchy of controls, specifically, the use of
elimination and substitution, followed by the use of engineering
controls, administrative controls, or work practices prior to requiring
the use of respirators as a means of controlling inhalation exposures
to chrysotile asbestos below EPA's ECEL. In this final rule, EPA
recognizes that the owners and operators subject to the requirements
are already taking steps to eliminate the use of chrysotile asbestos,
and therefore the requirement in this final rule is to institute and
maintain engineering controls and work practices that reduce chrysotile
asbestos to or below the ECEL. When the engineering controls and work
practices (such as clean-up of accumulated asbestos) cannot reduce
chrysotile asbestos exposures to or below the ECEL, owners and
operators are required to reduce chrysotile asbestos exposures to the
lowest level achievable by these controls and supplement them using
respiratory protection. The respirators must be supplied in accordance
with the requirements outlined in Unit VI.D.6.
The final requirements state that, as of one year after the
effective date of the final rule, an owner or operator subject to the
interim workplace control requirements has to demonstrate the
consideration of engineering controls and/or work practices to reduce
the airborne chrysotile asbestos concentrations to the lowest levels
achievable. If the resulting chrysotile asbestos concentrations are not
at or below the ECEL, adequate respiratory protection must be given to
potentially exposed persons, in accordance with Unit VI.D.6. Owners or
operators must not implement a schedule of personnel rotation as a
means of compliance with the ECEL. Finally, owners and operators must
document their exposure control strategy in an exposure control plan.
The exposure control plan must be reviewed and updated as necessary,
but at least annually, to reflect any significant changes in the
approach taken to reduce the chrysotile asbestos airborne
concentrations.
Similar to the primary regulatory alternative described in the
proposed rule, in this final rule EPA is requiring
[[Page 21991]]
that owners or operators document their efforts in an exposure control
plan. Such plan could be part of any existing documentation of the
facility's safety and health program developed as part of meeting OSHA
requirements or other safety and health standards. EPA is requiring
that the owner or operator document in the exposure control plan the
following:
Identification of all engineering and work practices or
administrative controls that were considered.
For each engineering and administrative control
identified, a rationale for why the control was selected or not
selected, based on feasibility, effectiveness, and other relevant
considerations;
Any actions the owner or operator must take to implement
the engineering and administrative controls selected, including proper
installation, maintenance, training or other steps taken. In addition,
the owner or operator must indicate the estimated timeline for
implementing the controls selected.
Descriptions of the activities conducted by the owner or
operator during the review and annual update of the exposure control
plan to ensure effectiveness of the exposure controls, identify any
necessary updates to the exposure controls, and confirm that all
persons are implementing the exposure controls correctly. These
activities could consist of regular inspections or other type of
evaluations of the exposure controls; and
Description of procedures for responding to any change
that may reasonably be expected to introduce additional exposures of
chrysotile asbestos or result in increased exposures to chrysotile
asbestos. The plan should also describe the corrective actions taken to
mitigate the exposures to chrysotile asbestos.
6. Respiratory Protection
a. In general.
Six months after the effective date of this rule, EPA is requiring
owners or operators to supply a respirator selected in accordance with
the requirements of this Unit and ensure that all potentially exposed
persons are using the provided respirators whenever chrysotile asbestos
exposures exceed or can reasonably be expected to exceed the ECEL.
EPA's requirements are compatible with OSHA's Respiratory Protection
standard at 29 CFR 1910.134, and the respiratory protection provision
of the OSHA Asbestos standard for general industry at 29 CFR
1910.1001(g).
In this final rule, EPA is requiring that owners or operators must
provide, ensure use of, and maintain (in a sanitary, reliable, and
undamaged condition) respirators that are of safe design and
construction for the work to be performed. These requirements are
consistent with the requirements of 29 CFR 1910.134(g) through (j),
1910.134 App. B-1 to B-2. Owners and operators must select respirators
that properly fit each affected person and communicate respirator
selections to each affected person. These requirements are consistent
with the requirements of 29 CFR 1910.134(f), 1910.134 App. A.
EPA is also requiring that owners and operators provide training in
accordance with 29 CFR 1910.134(k) to all persons required to use
respirators prior to or at the time of initial assignment to a job
involving potential exposure to chrysotile asbestos. Such training must
be repeatedly at least annually or whenever the owner or operator has
reason to believe that a previously trained person does not have the
required understanding and skill to properly use the respirator, or
when changes in the workplace or in the required respirator render the
previous training obsolete.
b. Respirator selection.
EPA is requiring that owners and operators select and provide all
potentially exposed persons with respirators, based on the most recent
monitoring results. The following represents the minimum respiratory
protection that must be provided based on the most recent monitoring
results, such that any respirator affording the same or higher degree
of protection than the following requirements may be used.
If the most recent exposure monitoring indicates that the
exposure concentration is at or below 0.005 f/cc (the ECEL): no
respiratory protection is required.
If the most recent exposure monitoring indicates that the
exposure concentration is above 0.005 f/cc (the ECEL) and less than or
equal to 0.05 f/cc (10 times the ECEL): (i) a half-mask supplied-air
respirator (SAR) or airline respirator operated in demand mode; or (ii)
a half-mask self-contained breathing apparatus (SCBA) respirator
operated in demand mode (APF 10).
If the most recent exposure monitoring indicates that the
exposure concentration is above 0.05 f/cc (10 times the ECEL) and less
than or equal to 0.125 f/cc (25 times the ECEL): a loose fitting
facepiece supplied-air respirator (SAR) or airline respirator operated
in continuous flow mode (APF 25).
If the most recent exposure monitoring indicates that the
exposure concentration is above 0.125 f/cc (25 times the ECEL) and less
than or equal to 0.25 f/cc (50 times the ECEL): (i) a full facepiece
supplied-air respirator (SAR) or airline respirator operated in demand
mode; or (ii) a half-mask supplied-air respirator (SAR) or airline
respirator operated in continuous flow mode; or (iii) a half-mask
supplied-air respirator (SAR) or airline respirator operated in
pressure-demand or other positive-pressure mode; or (iv) a full
facepiece self-contained breathing apparatus (SCBA) respirator operated
in demand mode; or (v) a helmet/hood self-contained breathing apparatus
(SCBA) respirator operated in demand mode (APF 50).
If the most recent exposure monitoring indicates that the
exposure concentration is above 0.25 f/cc (50 times the ECEL) and less
than or equal to 5 f/cc (1,000 times the ECEL): a full-facepiece
supplied-air respirator (SAR) or airline respirator operated in
pressure-demand or other positive-pressure mode (APF 1,000).
If the most recent exposure monitoring indicates that the
exposure concentration is above 5 f/cc (1,000 times the ECEL) and less
than or equal to 50 f/cc (10,000 times the ECEL): (i) a full-facepiece
self-contained breathing apparatus (SCBA) respirator operated in
pressure-demand or other positive-pressure mode; or (ii) a helmet/hood
self-contained breathing apparatus (SCBA) respirator operated in
pressure-demand or other positive-pressure mode (APF 10,000).
The respirator requirements have been updated from the primary
regulatory alternative described in the proposed regulation to make
them compatible with the OSHA's Asbestos standard for general industry
at 29 CFR 1910.1001(g)(2)(i). The respiratory protection requirements
in this final rule represent the minimum respiratory protection
requirements; therefore, owners or operators may provide respirators
affording a higher degree of protection than the required respirator.
However, in situations where a sufficient limit of detection cannot be
reached for comparison to the ECEL, owners and operators may elect to
use the lowest measurable concentration possible as their basis for the
selection of the respirators, and use an increased respiratory
protection with an appropriate APF to demonstrate compliance with the
ECEL as an interim control measure. For example, if the lowest
measurable concentration possible is 0.1 f/cc, then, the owner or
operator should assume that the measured exposure concentration is
above 0.05 f/cc and less than or equal to 0.125 f/cc or 25 times the
ECEL, and
[[Page 21992]]
provide a loose fitting facepiece supplied-air respirator (SAR) or
airline respirator in continuous flow mode.
7. Workplace Information and Training
In the proposed rule primary regulatory alternative (87 FR 21706),
EPA described requirements to ensure worker participation. In this
final rule, EPA is requiring specific information to be provided to
potentially exposed persons and associated training to ensure that
potentially exposed persons are taking the necessary steps to reduce
exposure to chrysotile asbestos.
Six months after the effective date of the final rule EPA is
requiring that owners or operators provide information and training for
each person prior to or at the time of potential exposure to chrysotile
asbestos and repeat the training annually. The information and training
must be presented in a manner that is understandable to each person
required to be trained.
In this final rule, EPA is requiring that the information and
training that must be provided to all persons potentially exposed to
chrysotile asbestos is based on the most recent public information
available from EPA, OSHA, NIOSH, and/or CDC, and include:
The health effects associated with exposure to chrysotile
asbestos;
The quantity, location, manner of use, release, and
storage of chrysotile asbestos and the specific operations in the
workplace that could result in exposure to chrysotile asbestos,
particularly noting where each regulated area is located;
The specific procedures implemented by the owner or
operator to protect persons potentially exposed to chrysotile asbestos,
such as engineering controls, work practices and personal protective
equipment to be used; and
The requirements associated with the interim controls, as
described in Unit VI.D., as well as how to access or obtain a copy of
these regulations in the workplace.
The training must be conducted as necessary to ensure that each
person maintains understanding of the principles of safe use and
handling of chrysotile asbestos in the workplace, but at minimum, the
training must be given annually. The owner or operator will need to
develop a training program that is conducted in a manner that allows
each person potentially exposed to understand the information, in an
understandable manner (i.e., plain language) and in multiple languages
as appropriate (e.g., based on languages spoken by potentially exposed
persons). The owner or operator would consider factors such as the
skills required to perform the work activity, the existing skill level
of the staff performing the work. Finally, whenever there are changes
in the workplace, such as modification of tasks or procedures, or
institution of new tasks or procedures, or when airborne concentrations
of chrysotile asbestos increase, or when the exposure control plan has
been updated according to Unit VI.D.5, the owner or operator must
update the training to reflect any additional steps that are needed to
maintain the procedures implemented to reduce exposures to chrysotile
asbestos in the workplace, and re-train each potentially exposed
person.
E. Disposal
EPA is finalizing the disposal provisions in the proposed rule
without significant changes. These disposal provisions at Sec. 751.513
cross reference existing EPA and OSHA regulations that address
asbestos-containing waste disposal. By following these existing
regulations, worker and ONU exposure to chrysotile asbestos during
disposal can be prevented. For this rule, EPA is requiring that for the
chrysotile asbestos diaphragm condition of use, as well as oilfield
brake blocks, other vehicle friction products, and any commercial use
of other gaskets and aftermarket automotive brakes and linings
conditions of use, regulated entities must adhere to waste disposal
requirements described in OSHA's Asbestos General Industry Standard in
29 CFR 1910.1001, including 1910.1001(k)(6), which requires waste,
scrap, debris, bags, containers, equipment, and clothing contaminated
with asbestos that are consigned for disposal to be disposed of in
sealed impermeable bags or other closed, impermeable containers. For
the chrysotile asbestos sheet gaskets in chemical production condition
of use, regulated entities must adhere to waste disposal requirements
described in OSHA's Asbestos Safety and Health Regulations for
Construction in 29 CFR 1926.1101.
Additionally, for the chrysotile asbestos diaphragm condition of
use, as well as oilfield brake blocks, other vehicle friction products,
and any commercial use of other gaskets and aftermarket automotive
brakes and linings, EPA is cross-referencing the disposal requirements
of Asbestos National Emission Standards for Hazardous Air Pollutants
(NESHAP) (40 CFR part 61, subpart M) at 40 CFR 61.150. The asbestos
NESHAP reduces exposure to airborne asbestos by generally requiring
sealing of asbestos-containing waste material from regulated activities
in a leak-tight container and disposing of it in a landfill permitted
to receive asbestos waste. EPA is not cross-referencing this same
NESHAP waste disposal provision for the disposal of chrysotile
asbestos-containing waste from sheet gasket processing and use because
EPA did not find unreasonable risk for the disposal of sheet gaskets.
EPA is also requiring that each manufacturer (including importer),
processor, and distributor of chrysotile asbestos, including as part of
products and articles, for consumer uses subject to this proposed
regulation, dispose of regulated products and articles in accordance
with specified disposal provisions. These consumer uses are aftermarket
automotive brakes and linings, and other gaskets. These consumer use
supply chain disposal requirements are consistent with those for
disposers of aftermarket automotive brakes and linings, and other
gaskets, intended for commercial use. EPA does not generally have TSCA
section 6(a) authority to directly regulate consumer use and disposal,
but under TSCA section 6(a) EPA may nonetheless regulate the disposal
activity of suppliers of these products, including importers,
wholesalers and retailers of asbestos-containing aftermarket automotive
brakes and linings, and other gaskets.
The disposal requirements at Sec. 751.513 will take effect 180
days after the effective date of the final rule, as was proposed.
F. Recordkeeping
This final rule establishes recordkeeping provisions. A general
records provision at Sec. 751.515(a) of the final rule, requires that,
beginning 180 days after the effective date of the final rule, all
persons who manufacture (including import), process, or distribute in
commerce or engage in industrial or commercial use of chrysotile
asbestos must maintain ordinary business records, such as invoices and
bills-of-lading related to compliance with the prohibitions,
restrictions, and other provisions of this rulemaking and must make
them available to EPA for inspection.
Section 751.515(b) of the final rule addresses recordkeeping for
certifications of compliance for the chlor-alkali industry required
under Sec. 751.507 of the rule: persons must retain records for five
years to substantiate certifications required under that provision and
must make them available to EPA for inspection.
[[Page 21993]]
Section 751.515(c) of the final rule requires retention of records
for interim workplace controls of chrysotile asbestos exposures. For
each monitoring event, owners or operators subject to the exposure
monitoring provisions of Sec. 751.511(c) must document and retain
records of:
(1) The dates, duration, and results of each sample taken;
(2) The quantity, location(s) and manner of chrysotile asbestos use
at the time of each monitoring event;
(3) All measurements that may be necessary to determine the
sampling conditions that may have affected the monitoring results, such
as humidity or ventilation rates, based on the expertise of the person
conducting the sampling;
(4) The name, address, work shift, job classification, work area,
and type of respiratory protection (if any) of each person monitored;
(5) Sampling and analytical methods used and compliance with the
Good Laboratory Practice Standards or laboratory quality standards
required under the OSHA general asbestos standard described in Sec.
751.511(c)(5)(i); and
(6) Notification of monitoring results as required by Sec.
751.511(c)(6).
Additionally, Sec. 751.515(c) of the final rule requires that
owners or operators subject to the interim workplace controls described
in Sec. 751.511 must retain records of:
(1) The exposure control plan and its implementation as required by
Sec. 751.511(e), which must be available to persons exposed to
chrysotile asbestos;
(2) Respiratory protection used and program implementation as
described in Sec. 751.511(f); and
(3) Information and training provided by the owner or operator as
required by Sec. 751.511(g).
Section 751.515(d) of the final rule requires the retention of
disposal records. It specifies that each person, except a consumer, who
disposes of any chrysotile asbestos and any chrysotile asbestos-
containing products or articles subject to Sec. 751.513, beginning 180
days after the effective date of the final rule, must retain in one
location at the headquarters of the company, or at the facility for
which the records were generated: any records related to any disposal
of chrysotile asbestos and any chrysotile asbestos-containing products
or articles generated pursuant to, or otherwise documenting compliance
with, regulations specified in Sec. 751.513. All records under this
rule must be retained for five years from the date of generation.
VII. Other TSCA Considerations
A. Primary Alternative Regulatory Actions Considered
Pursuant to TSCA section 6(c)(2)(A), EPA considered the cost and
benefits and the cost effectiveness of the final regulatory action and
one or more primary alternative regulatory actions. EPA considered two
primary alternative regulatory actions for chrysotile asbestos
diaphragms in the chlor-alkali industry. One is to prohibit manufacture
(including import), processing, distribution in commerce and commercial
use of chrysotile asbestos in bulk form or as part of: chrysotile
asbestos diaphragms in the chlor-alkali industry, with prohibitions
taking effect five years after the effective date of the final rule,
without exception, and require, prior to the prohibition taking effect,
compliance with an existing chemical exposure limit (ECEL) for the
processing and commercial use of chrysotile asbestos for this use. The
other was to prohibit manufacture (including import), processing,
distribution in commerce and commercial use of chrysotile asbestos in
bulk form or as part of: chrysotile asbestos diaphragms in the chlor-
alkali industry, with prohibitions taking effect twelve years after the
effective date of the final rule, without exception, and require, prior
to the prohibition taking effect, compliance with an ECEL for the
processing and commercial use of chrysotile asbestos for this use.
The primary alternative regulatory action for sheet gaskets used in
chemical production is to prohibit manufacture (including import),
processing, distribution in commerce and commercial use, with
prohibitions taking effect five years after the effective date of the
final rule, and require, prior to the prohibition taking effect,
compliance with an ECEL for the processing and commercial use of
chrysotile asbestos for this use.
The primary alternative regulatory action additionally includes a
prohibition on the manufacture (including import), processing,
distribution in commerce, and commercial use of chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; and other vehicle
friction products, with prohibitions taking effect two years after the
effective date of the final rule. The primary alternative regulatory
action also included prohibitions on manufacture (including import),
processing, and distribution in commerce of aftermarket automotive
chrysotile asbestos-containing brakes/linings for consumer use and
other chrysotile asbestos-containing gaskets for consumer use, with
prohibitions taking effect two years after the effective date of the
final rule.
The primary alternative regulatory actions also include
recordkeeping and disposal requirements identical to those in the final
action.
B. TSCA Section (c)(2) Considerations
The following is EPA's statement of effects, as required by TSCA
section 6(c)(2)(A), with respect to this final rule.
1. Effects of chrysotile asbestos on health and the magnitude of
the exposure of human beings to chrysotile asbestos under TSCA section
6(c)(2)(A)(i).
EPA's analysis of the health effects of and magnitude of exposure
to chrysotile asbestos is in the Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos (Ref. 1). A summary is presented here. Many
authorities have established causal associations between asbestos
exposures and lung cancer and mesothelioma in humans based on
epidemiologic studies. EPA identified in the literature a causal
association between exposure to asbestos and cancer of the larynx and
cancer of the ovary and suggestive evidence of a positive association
between asbestos and cancer of the pharynx, stomach, and colorectum.
EPA also identified increases in lung cancer and mesothelioma mortality
in both workers and residents exposed to various asbestos fiber types,
including chrysotile asbestos, as well as fiber mixtures. Mesothelioma
tumors arise from the thin membranes that line the chest and abdominal
cavities and surround internal organs.
Asbestos exposure is known to cause various non-cancer health
outcomes as well, including asbestosis, non-malignant respiratory
disease, deficits in pulmonary function, diffuse pleural thickening,
and pleural plaques. Various immunological and lymphoreticular effects
are suggested but not well-established.
For the conditions of use that contribute to unreasonable risk,
populations exposed to chrysotile asbestos (including potentially
exposed or susceptible subpopulations) include workers, ONUs, consumer
users, and bystanders to consumers using products containing chrysotile
asbestos. For these conditions of use EPA estimates that, annually, at
least 256 workers and 222 ONUs are exposed to chrysotile asbestos at
over 49 operations either processing or using products containing
chrysotile asbestos. Additional workers and ONUs are exposed to
oilfield brake blocks and
[[Page 21994]]
may potentially be exposed to other vehicle friction products and other
gaskets. Each year, approximately 400 consumers are potentially exposed
to asbestos through the use of products containing chrysotile asbestos
subject to this rule. The number of exposed bystanders is unknown to
EPA. The breakdown by category of use is as follows:
Diaphragms--80 workers and 80 ONUs at 8 sites;
Sheet gasket stamping--at least 4 workers and 8 ONUs at 4
sites;
Sheet gasket use (non-nuclear)--at least 18 workers and
119 ONUs at 4 sites;
Sheet gasket use (nuclear)--up to 139 workers at 1 site; number of
workers and ONUs at approximately 20 additional sites is unknown;
Oilfield brake blocks--Unknown;
Aftermarket automotive brakes--15 to 1,400 workers and 15
to 1,400 ONUs at 12 to 1,400 sites;
Other vehicle friction products--Unknown;
Other gaskets--Unknown; and
DIY mechanics--400 consumers and unknown bystanders.
More information on the derivation of these estimates is provided
in the Economic Analysis for this rulemaking that can be found in the
rulemaking docket (Ref. 2).
As discussed in Unit II.C., EPA did not evaluate hazards or
exposures to the general population in the Risk Evaluation for
Asbestos, Part 1: Chrysotile Asbestos.
2. Effects of the chrysotile asbestos on the environment and the
magnitude of the exposure of the environment under TSCA section
6(c)(2)(A)(ii).
EPA's analysis of the environmental effects of and the magnitude of
exposure of the environment to chrysotile asbestos are in the Risk
Evaluation for Asbestos, Part 1: Chrysotile Asbestos (Ref. 1). A
summary is presented here.
Chrysotile asbestos may be released to the environment through
industrial or commercial activities, such as processing raw chrysotile
asbestos, fabricating/processing asbestos-containing products, or the
dispersing of friable chrysotile asbestos during use, disturbance and
disposal of asbestos-containing products.
Although this action is focused on chrysotile asbestos fiber type,
some of the information in this unit pertains to asbestos fibers in
general. Asbestos is a persistent mineral fiber that can be found in
soil, sediments, in the air and windblown dust, surface water, ground
water and biota. Asbestos fibers are largely chemically inert in the
environment. They may undergo minor physical changes, such as changes
in fiber length or leaching of surface minerals, but do not react or
dissolve in most environmental conditions.
In water, chrysotile asbestos will eventually settle into sediments
(or possible biosolids) and can enter wastewater treatment plants.
EPA's review of aquatic vertebrate and invertebrate studies indicated
that chronic exposure to waterborne chrysotile asbestos at a
concentration range of 10\4\-10\8\ fibers/L, which is equivalent to
0.01 to 100 million fibers per liter (MFL), may result in reproductive,
growth and/or sublethal effects to fish and clams. In addition, acute
exposure of clams to waterborne chrysotile asbestos at a concentration
range of 10\2\-10\8\ fibers/L demonstrated reduced siphoning activity.
EPA has determined that there are minimal or no releases of
asbestos to surface water associated with the conditions of use that
EPA evaluated in the Risk Evaluation for Asbestos, Part 1: Chrysotile
Asbestos and that are the subject of this action.
3. Benefits of chrysotile asbestos for various uses under TSCA
section 6(c)(2)(A)(iii).
The only form of asbestos manufactured (including imported),
processed, or distributed for use in the United States today is
chrysotile asbestos. The United States Geological Survey (USGS)
estimated that 152 metric tons of raw chrysotile asbestos were imported
into the United States in 2022 (Ref. 3). This raw asbestos is used
exclusively by the chlor-alkali industry, and imported amounts between
2018 and 2022 ranged from 41 to 681 metric tons during a given year
(Ref. 3).
In addition to the use of raw imported chrysotile asbestos by the
chlor-alkali industry, EPA is also aware of imported asbestos-
containing products; however, the imported volumes of those products
are not fully known. The asbestos-containing products that EPA has
identified as potentially being imported and used are sheet gaskets
(which are imported in large sheets and cut to size domestically by a
fabricator), oilfield brake blocks, aftermarket automotive brakes/
linings, other vehicle friction products, and other gaskets. Chrysotile
asbestos is chemically inert, durable, and able to effectively separate
the anode and cathode chemicals in the electrolytic cells used in the
chlor-alkali process. Asbestos-containing gaskets have been used in
chemical production because they are resistant to cyclical high
temperatures and immense pressure. During the manufacture of titanium
dioxide, temperatures can exceed 1850 degrees Fahrenheit and pressures
can be greater than 50 pounds per square inch. For processing of
nuclear material, asbestos-containing sheet gaskets are preferred for
their durability in radioactive environments. The physical properties
of chrysotile asbestos including heat resistance make asbestos a useful
material for uses where friction is produced and extreme heat is
generated, including its application in brakes, gaskets and other
vehicle friction product uses considered in this rule.
4. Reasonably ascertainable economic consequences of the rule under
TSCA section 6(c)(2)(A)(iv).
The reasonably ascertainable economic consequences of this rule
include several components, all of which are described in the economic
analysis for this rule and summarized here (Ref. 2).
a. The likely effect of this Part 1: Chrysotile Asbestos rule on
the national economy, small business, technological innovation, the
environment, and public health (TSCA section 6(c)(2)(A)(iv)(I)).
With respect to the anticipated effects of this rule on the
national economy, the economic impact of a regulation on the national
economy generally only becomes measurable if the economic impact of the
regulation reaches 0.25 percent to 0.5 percent of Gross Domestic
Product (GDP) (Ref. 24). Given the current GDP of $27.62 trillion, this
is equivalent to a cost of $69 billion to $138 billion which is
considerably higher than the estimated cost of this rule. EPA
considered the number of businesses and workers that would be affected
and the costs and benefits to those businesses and workers and society
at large and did not find that there would be a measurable effect on
the national economy. In addition, EPA considered the employment
impacts of this rule. While EPA assumes that chlor-alkali facilities
currently using asbestos diaphragms will convert to non-asbestos
technologies, some facilities may not do so before the effective
prohibition date in the rule. As a result, even with the extended
compliance dates in the final action, it is possible that the rule may
result in facility closures and job losses, at least temporarily, at
some chlor-alkali facilities as well as at facilities that use
chlorine, caustic soda, or their derivatives as intermediates, and may
result in shortages or price increases for chlorine, caustic, and their
derivatives. There may be similar employment effects at chemical
facilities using asbestos gaskets. However, the extended compliance
dates in the final rule reduce the likelihood and potential magnitude
of such impacts compared to the proposed rule. There may also be
[[Page 21995]]
increased temporary employment associated with new construction as
firms convert their facilities to replace asbestos diaphragms and
asbestos gaskets with substitute technologies. There may also be
increases in employment at facilities that currently use asbestos-free
technologies (Ref. 2).
EPA has determined that the rule will not have a significant impact
on a substantial number of small entities; EPA estimates that the rule
will affect 11 to 1,369 small businesses supplying aftermarket brakes,
incurring costs between $20 and $14,000 per firm (depending on the
number of brake replacements they perform). At the low-end estimate of
the number of affected brake replacement firms, approximately 85% of
firms would have cost impacts of less than 1% of their annual revenues,
about 10% would have cost impacts between 1% and 3%, and around 6%
would have cost impacts of greater than 3%. At the high-end estimate of
the number of affected brake replacement firms, 100% of firms would
have a cost impact of less than 1% of the annual revenue. An additional
three small entities that do not supply aftermarket brakes are
estimated to be affected by the rule; two are assumed to manufacture
sheet gaskets for titanium dioxide production, and one imports oilfield
brake blocks. EPA did not have the information necessary to estimate
the cost impacts on these other four small entities (Ref. 2).). EPA
found no literature that described the costs of converting to asbestos-
free products for either sheet gaskets used in titanium dioxide
production or oilfield brake blocks. Moreover, there were no public
comments in response to the proposed rule or the subsequent notice of
data availability that provided information on the costs for these use
categories.
The uses of asbestos subject to the rule are all in mature
industries and the amount of asbestos consumed in them has been
declining for some time. There is no evidence of innovative
applications of asbestos in these uses in recent years, nor is there
any expectation that such innovations would occur in the future in the
absence of a prohibition on these uses of asbestos.
The effects of this rule on public health are estimated to be
positive, due to the avoided incidence of adverse health effects
attributable to asbestos exposure, including lung cancer, mesothelioma,
and cancers of the larynx and ovary (Ref. 2). Despite the uncertainties
about possible greater use and release of PFAS discussed in Unit
VII.B.5., EPA believes the benefits of removing chrysotile asbestos, a
known human carcinogen that causes cancer (mesothelioma, lung, ovarian,
and laryngeal cancers), from continued use in the United States, are
significant enough to outweigh the potential additional exposure to
PFAS that might result from this action.
Converting chlor-alkali diaphragm cells to non-asbestos technology
is expected to reduce total electricity consumption by the chlor-alkali
industry and thus the level of air pollution associated with electric
power generation. This reduction in air pollution would provide
environmental benefits as well as health benefits (Ref. 2).
b. Costs and benefits of the regulatory action and of the primary
alternative regulatory actions considered by the Administrator.
i. Regulatory action.
EPA was able to quantify the costs of the rule for the chlor-alkali
industry and the aftermarket automotive brake industry, as well as a
portion of the costs for firms using sheet gaskets. Nearly all of the
quantified costs are due to the requirements for the chlor-alkali
industry. The rule is predicted to require an investment of $2.8
billion to $3.4 billion to convert chlor-alkali facilities using
asbestos diaphragm cells to cells using non-asbestos diaphragms or
membranes. The rule accelerates existing trends in the industry to
transition away from asbestos diaphragms, and EPA expects that these
conversions would eventually occur in the baseline even without the
rule, although more slowly than with the prohibition deadlines in the
rule. For a number of these facilities the non-asbestos technologies
are more energy efficient than asbestos diaphragm cells, resulting in
cost savings that would accrue over the lifetimes of the facilities.
Membrane cells also produce a higher grade of caustic soda that has
historically commanded a higher price than the product from asbestos
diaphragm cells; that price differential may or may not continue in the
future. If some facilities are unable to complete their conversions to
non-asbestos technology by the mandatory compliance dates in the rule,
the unconverted portions of those facilities would need to close until
the conversions are completed. Such temporary closures would result in
lost producer surplus (as well as lost consumer surplus, which EPA was
unable to quantify) until the conversions are completed. The
incremental net annualized costs of the rule to the chlor-alkali
industry are calculated by combining conversion costs, changes in
energy usage, potential revenue gains from increased production of
membrane-grade caustic soda, and the lost producer surplus from
possible temporary facility closures (all compared to the baseline),
and annualizing the results over the 35-year expected lifetime of new
chlor-alkali facility equipment.
Compared to this baseline trend, the net cost of the rule to the
chlor-alkali industry over a 35-year period using a 3 percent discount
rate is estimated to range from an annualized cost of $7 million per
year (if the additional membrane grade caustic soda that is produced
sells for the same price as diaphragm grade caustic soda) to an
annualized savings of $1 million per year (if the higher grade of
caustic soda produced by membrane cells continues to command a premium
price, as it has in the past). Using a 7 percent discount rate, the
incremental net cost of the rule to the chlor-alkali industry ranges
from a cost of $34 million per year (if there is a premium for
membrane-grade caustic soda) to $43 million per year (if there is no
premium for membrane-grade caustic soda).
EPA also estimates that approximately 1,800 sets of automotive
brakes or brake linings containing asbestos may be imported into the
U.S. each year, representing 0.002% of the total U.S. market for
aftermarket brakes. The cost of a prohibition would be minimal due to
the ready availability of alternative products that are only slightly
more expensive (an average cost increase of about $5 per brake). The
rule is estimated to result in total annualized costs for aftermarket
automotive brakes of approximately $300,000 per year using a 3%
discount rate and $200,000 per year using a 7% discount rate.
EPA estimated a lower bound of the cost of the ECEL and disposal
requirements for titanium dioxide producers using sheet gaskets
containing asbestos. These annualized costs are estimated at
approximately $44,000 per year using a 3% discount rate or $65,000 per
year using a 7% rate. However, EPA was unable to estimate the potential
cost to sheet gasket users of substituting non-asbestos products.
EPA also did not have information to estimate all of the costs of
prohibiting asbestos in brake blocks in the oil industry, and any other
vehicle friction products or other gaskets. (EPA believes that the use
of these asbestos-containing products has declined over time, and that
they are now used in at most small segments of the relevant
industries.) Since EPA could not quantify all of the costs of the rule
for all of the use categories, the quantified estimates of the total
costs of the rule are an upper
[[Page 21996]]
bound estimate of total cost savings and a lower bound estimate of
total costs. Thus, the total net incremental costs of the rule are
estimated to range from an annualized cost of greater than $7 million
per year to an annualized savings of less than $1 million per year
using a 3 percent discount rate. Using a 7 percent discount rate, these
costs range from greater than $34 million per year to more than $43
million per year.
EPA quantified the benefits from avoided cases of cancer due to
reduced asbestos exposures attributable to the rule's requirements for
chlor-alkali diaphragms and aftermarket brakes, and sheet gaskets used
for titanium dioxide production. The combined total national quantified
benefits of avoided cancer cases associated with these use categories
are approximately $6,000 per year using a 3% discount rate and $3,000
per year using a 7% discount rate. EPA did not estimate the avoided
cancer benefits of the requirements for sheet gaskets used for other
forms of chemical production, oilfield brake blocks, other vehicle
friction products or other gaskets, in part because the Agency did not
have sufficient information to accurately characterize the number of
individuals whose exposures are likely to be affected by the rule. To
the extent that products in these use categories are still
manufactured, processed, distributed in commerce, used, or disposed of,
the rule will generate additional benefits from reducing the exposures
associated with these uses.
There are also unquantified benefits due to other avoided adverse
non-cancer health effects associated with asbestos exposure, such as
respiratory effects (e.g., asbestosis, non-malignant respiratory
disease, deficits in pulmonary function, diffuse pleural thickening and
pleural plaques). The rule will also generate unquantified benefits
from other exposure pathways and life cycle stages for which exposures
were not estimated in the risk evaluation.
In addition to the benefits of avoided adverse health effects
associated with chrysotile asbestos exposure, the rule is expected to
generate benefits from reduced air pollution associated with
electricity generation. Chlor-alkali production is one of the most
energy-intensive industrial operations. Converting asbestos diaphragm
cells to non-asbestos technologies will reduce overall electricity
consumption and thus the total level of pollutants resulting from
electric power generation, including carbon dioxide, particulate
matter, sulfur dioxide, and nitrogen oxides. Converting asbestos
diaphragm cells to non-asbestos technology could yield millions of
dollars per year in environmental and health benefits from reduced
emissions of criteria air pollutants and greenhouse gases (Ref. 2). The
decreased air pollution resulting from the rule was not the driver for
the decision making under TSCA section 6(a).
EPA's Economic Analysis, which can be found in the rulemaking
docket (Ref. 2), contains more information on the estimated costs and
benefits of the regulatory action.
ii. Primary alternative regulatory actions.
EPA considered two primary regulatory alternatives to the
requirements that are being finalized in this action for chrysotile
asbestos diaphragms in the chlor-alkali industry. Under one
alternative, the prohibitions on the processing, distribution in
commerce and commercial use of asbestos diaphragms at chlor-alkali
facilities would take effect at all facilities after five years; the
prohibitions on sheet gaskets for chemical production would take effect
after two years for sheet gaskets used to produce titanium dioxide or
to process nuclear materials, and two years for all other sheet gaskets
used for chemical production; and after 180 days for the remaining use
categories subject to the rule. Under the other alternative, these
prohibitions would take effect at all chlor-alkali facilities after 12
years; after 5 years for all sheet gaskets used in chemical production;
and after 2 years for the remaining use categories.
Under the alternative regulatory action with a 5-year prohibition
on asbestos diaphragms for all chlor-alkali facilities, the total cost
of the rule using a 3 percent discount rate is estimated to range from
an annualized costs of more than $14 million per year (if the
additional membrane-grade caustic soda that is produced sells for the
same price as diaphragm grade caustic soda) to an annualized cost of
more than $5 million per year (if the higher grade of caustic soda
produced by membrane cells continues to command a premium price, as it
has in the past). Using a 7 percent discount rate, the estimates range
from a cost of more than $42 million per year (if there is a premium
for membrane-grade caustic soda) to a cost of more than $51 million per
year (if there is no premium for membrane-grade caustic soda).
Under the alternative regulatory action with a 12-year prohibition
on asbestos diaphragms for all chlor-alkali facilities, the total cost
of the rule using a 3 percent discount rate ranges from a savings of
less than $1 million per year (if the higher grade of caustic soda
produced by membrane cells continues to command a premium price) to a
cost of greater than $7 million per year (if the additional membrane
grade caustic soda that is produced receives the same price as
diaphragm grade caustic soda). Using a 7 percent discount rate, the
cost ranges from more than $31 million per year (if there is a premium
for membrane-grade caustic soda) to more than $38 million per year (if
there is no premium for membrane-grade caustic soda).
The alternative option with a 12-year prohibition deadline for all
chlor-alkali facilities has estimated annualized incremental costs that
are similar to those for the final rule, and are slightly lower than
the final rule when using a 7% discount rate. These differences are due
to how the timing of expenditures affects the annualized cost
estimates. The vast majority of the quantified costs of the rule are
associated with the chlor-alkali industry. Converting all eight plants
using asbestos diaphragm cells to non-asbestos technologies is
predicted to require an investment of approximately $2.8 billion to
$3.4 billion, and these costs are assumed to be the same regardless of
how quickly the conversions occur. Where the incremental cost of a 12-
year prohibition deadline is less than the incremental cost of the
final rule, part of the reason is that the rate of conversion to non-
asbestos technologies under the alternative option is closer to the
baseline conversion rate. (The incremental cost estimate compares the
costs and savings associated with conversions under each option to the
costs and savings that would be incurred each year in the absence of
the rule). This means that the chlor-alkali companies are incurring the
same actual costs under both options (since the conversions have the
same costs and savings per ton of chlorine and caustic soda produced
under all of the options), but under the 12-year option some of those
costs are not attributed to the rule. In addition, some of the
compliance costs are incurred at later points in time under the 12-year
option than under the final rule, and expenditures that occur at later
dates result in smaller annualized costs than those that occur sooner.
These factors can make the alternative option with a 12-year
prohibition deadline for all chlor-alkali facilities appear slightly
less costly than the final rule, despite the fact that same facility
conversions eventually occur under all the regulatory alternatives.
c. Cost effectiveness of the regulatory action and primary
alternative regulatory actions considered by the Administrator.
[[Page 21997]]
The regulatory action reflected in the final rule and the
alternative regulatory actions all reduce risks to the extent necessary
such that unreasonable risk would no longer be present after such
actions were implemented. The estimated costs of achieving this result
differ across the possible regulatory actions and can be compared in
terms of their cost-effectiveness. The measure of cost-effectiveness
considered is the annualized net incremental cost of each regulatory
option per micro-risk reduction in cancer cases estimated to occur as a
result of the option, where a micro-risk refers to a one in one million
reduction in the risk of a cancer case. The estimated cost-
effectiveness of the final rule ranges from a cost of $185 to a savings
of $35 per micro-risk reduction at a 3% discount rate, and a cost of
$860 to $1,075 per micro-risk reduction at a 7% discount rate (where a
micro-risk represents a one in a million chance of the adverse health
outcome, which in this case is cancer). The estimated cost-
effectiveness of the alternative regulatory action with a 5-year
prohibition on asbestos diaphragms for all chlor-alkali facilities
ranges from a cost of $128 to $348 per micro-risk reduction at a 3%
discount rate, and a cost of $1,044 to $1,259 per micro-risk reduction
at a 7% discount rate. The estimated cost-effectiveness of the
alternative regulatory action with a 12-year prohibition on asbestos
diaphragms for all chlor-alkali facilities ranges from a cost of $172
to a savings of $13 per micro-risk reduction at a 3% discount rate, and
a cost of $779 to $953 per micro-risk reduction at a 7% discount rate.
The alternative option with a 12-year prohibition deadline for all
chlor-alkali facilities appears to be somewhat more cost effective than
the final rule when using a 7 percent discount rate. But as noted
previously, these differences are due to how the timing of expenditures
affects the annualized cost estimates.
5. Consideration of alternatives under TSCA section 6(c)(2)(C).
Under TSCA section 6(c)(2)(C), and based on the information
published under TSCA section 6(c)(2)(A), in deciding whether to
prohibit or restrict in a manner that substantially prevents a specific
condition of use of a chemical substance or mixture, and in setting an
appropriate transition period for such action, EPA must also consider,
to the extent practicable, whether technically and economically
feasible alternatives that benefit health or the environment will be
reasonably available as a substitute when the prohibition or other
restriction takes effect.
a. Health and environmental effects of the chemical alternatives or
substitute methods.
In considering the potential chemical alternatives or substitute
methods for chrysotile asbestos for the conditions of use evaluated in
the risk evaluation, EPA notes that chrysotile asbestos is not
currently the primary substance most commonly used in these conditions
of use, nor has it been for the last decade. Chlor-alkali asbestos
diaphragms, sheet gaskets for chemical production, aftermarket
automotive breaks, oilfield brake blocks, other gaskets and other
friction products containing chrysotile asbestos are relatively
uncommon in the market space, as described in the risk evaluation.
There are a number of alternatives to asbestos in these conditions of
use that make up the majority of the market share and have been
preferentially used for some time, in part as a result of the known
severe and adverse health effects related to asbestos exposure. Based
on the information published under TSCA section 6(c)(2)(A), EPA does
not expect any adverse impacts to human health and the environment to
result from the further reduction of asbestos in these conditions of
use when compared to the continued use of asbestos.
EPA acknowledges that substitute technologies for asbestos-
containing diaphragms in chlor-alkali production use an increased
concentration of per- and polyfluoroalkyl substances (PFAS) relative to
the amount of PFAS compounds contained in asbestos-containing
diaphragms. As discussed in the Economic Analysis, the three types of
chlor-alkali production technologies commonly used in the United States
vary in their use of PFAS. Non-asbestos diaphragms have a higher
concentration of polytetrafluoroethylene (PTFE, a polymeric
perfluorinated substance) than asbestos-containing diaphragms, and non-
asbestos membranes are made of PTFE, perfluorinated carboxylic acids
and perfluorosulfonic acids. However, the impact of the transition away
from asbestos-containing diaphragms on the quantities of PFAS compounds
used and released is uncertain. Although they contain a higher
concentration of PFAS compounds than diaphragms made with asbestos,
non-asbestos diaphragms and membranes have a typical lifespan that can
be several times longer than that for asbestos diaphragms. Therefore,
it is unclear how increased use of non-asbestos technologies will
affect the total production, usage, or releases of PFAS compounds, or
exposures to such compounds. Despite these uncertainties about the use
and release of PFAS, EPA believes the benefits of removing chrysotile
asbestos from continued use in the United States are significant even
though there are uncertainties regarding the potential changes in
exposure to PFAS that might result from this action. Still, when
possible, EPA recommends a transition to safer alternatives. Additional
information on PFAS, including Agency guidance, is available at https://www.epa.gov/.
To the extent that alternative technologies are more energy
efficient, converting asbestos diaphragm cells to non-asbestos
technologies reduces overall electricity consumption and thus the total
level of pollutants associated with electric power generation,
including carbon dioxide, particulate matter, sulfur dioxide, and
nitrogen oxides.
b. Technically and economically feasible and reasonably available
chemical alternatives or substitute methods.
As mentioned, there are a number of alternatives to asbestos in
these conditions of use that make up the majority of the market share
and have been preferentially used for some time. EPA received input
from stakeholders regarding their concerns about alternatives to
chrysotile asbestos. EPA expects non-asbestos diaphragms and membrane
cells will be the likely substitutes to asbestos diaphragms. Prior to
the proposed rule, the chlor-alkali industry expressed concerns to EPA
about the economic feasibility of transitioning to asbestos free
technology in general (Ref. 25; Ref. 26; Ref. 27; Ref. 28; Ref. 29) and
indicated that it would take a significant amount of time. Subsequent
public comments and information from the chlor-alkali industry obtained
after the proposed rule was published indicates that conversion to
asbestos-free technology is commercially viable, but that the
conversion can take a significant amount of time, depending on the
technology adopted and the number of facilities to be converted (Ref.
12; Ref. 13).
Several stakeholders provided feedback on alternatives to
chrysotile asbestos for the sheet gasket use in chemical production.
Generally, these stakeholders described how the transition from
asbestos use for titanium dioxide production would require
modifications to the facilities that would be time consuming. One
stakeholder noted in 2021 that they had a titanium dioxide production
facility located in Taiwan that uses asbestos-free gaskets. The
stakeholder, however, stated at that time that the technology used in
the Taiwan facility would not suit certain domestic titanium dioxide
[[Page 21998]]
facilities because the large diameter flanges in the domestic
facilities result in performance issues with the asbestos-free gaskets
(Ref. 25). The same stakeholder subsequently informed EPA in 2023 that
they could transition to the use of non-asbestos gaskets in their
domestic facilities by re-engineering the flanges, although that
process will require several years to complete (Ref. 18). Non-asbestos
technologies already dominate the market for other gaskets, oilfield
brake blocks, brakes and other friction products. Although,
stakeholders indicated the advantages of using asbestos (e.g., asbestos
in automotive drum brakes advantages include thermal stability,
flexibility, resistance to wear, and low cost), and limitations of the
non-asbestos replacements (e.g., non-asbestos replacements in brake
blocks have a useful life half that of products containing asbestos,
are more expensive than asbestos-containing products, and are subject
to sudden failure) (Ref. 2). Non-asbestos aftermarket automotive brakes
are estimated to cost an average of $4 more than brakes containing
asbestos. EPA was unable to identify any companies currently supplying
or using other gaskets or other friction products containing asbestos,
so the Agency does not have information on the cost differentials
between products that contain asbestos and those that are asbestos-
free. Additional information is available in the risk evaluation (Ref.
1) and economic analysis (Ref. 2).
6. Replacement parts under TSCA section 6(c)(2)(D).
TSCA section 6(c)(2)(D) states that EPA shall exempt from TSCA
section 6(a) rules replacement parts for complex durable goods and
complex consumer goods that are designed prior to the publication of a
final risk management rule, unless such replacement parts contribute
significantly to the risk, identified in a risk evaluation conducted
under TSCA section 6(b)(4)(A), to the general population or to an
identified potentially exposed or susceptible subpopulation. TSCA
section 6(c)(2)(D) defines complex consumer goods as electronic or
mechanical devices composed of multiple manufactured components, with
an intended useful life of three or more years, where the product is
typically not consumed, destroyed, or discarded after a single use, and
the components of which would be impracticable to redesign or replace.
The term ``complex durable goods'' means manufactured goods composed of
100 or more manufactured components, with an intended useful life of
five or more years, where the product is typically not consumed,
destroyed or discarded after a single use. Several of the conditions of
use addressed by this final rule impact these replacement part
categories. Aftermarket automotive brakes/linings are replacement parts
for automobiles and other vehicles. Other asbestos-containing gaskets
may be available as both new and replacement parts on utility and other
vehicles. Oilfield brake blocks are replacement parts for the drilling
rigs used in the oil industry. These vehicles and drilling rigs are
composed of numerous components, manufactured separately and assembled
together into a machine designed for a useful life of at least three
years if properly maintained. By their nature, EPA believes these meet
the TSCA definition of complex durable goods. In the Risk Evaluation
for Asbestos, Part 1: Chrysotile Asbestos, however, EPA found
unreasonable risk from use and disposal of chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; and other asbestos-
containing gaskets. EPA's risk evaluation evaluated scenarios involving
these replacement parts, and EPA finds that the replacement parts
contribute significantly to the identified unreasonable risk for these
conditions of use to the potentially exposed or susceptible
subpopulations identified in the risk evaluation. Accordingly, EPA is
not exempting replacement parts from regulation in this final rule.
7. Article considerations under TSCA section 6(c)(2)(E).
Under this final rule, EPA is regulating the manufacture,
processing, and distribution in commerce of articles containing
chrysotile asbestos. TSCA section 6(c)(2)(E) states: ``In selecting
among prohibitions and other restrictions, the Administrator shall
apply such prohibitions or other restrictions to an article or category
of articles containing the chemical substance or mixture only to the
extent necessary to address the identified risks from exposure to the
chemical substance or mixture from the article or category of articles
so that the substance or mixture does not present an unreasonable risk
of injury to health or the environment identified in the risk
evaluation conducted in accordance with section 6(b)(4)(A).'' TSCA does
not define ``article,'' but EPA proposed to define ``article'' and is
now finalizing that definition. Based on this definition, the
conditions of use subject to this regulation include articles, e.g.,
sheet gaskets, brake blocks, brake/linings, other gaskets and other
vehicle friction products.
Except for bulk chrysotile asbestos imported for use in asbestos
diaphragms, all of the other conditions of use that are the subject of
this regulation involve the use and/or disposal of products or articles
containing chrysotile asbestos. For each condition of use, the article
is subject to circumstances during use that change or alter the article
as a direct result of the use. Releases of chrysotile asbestos, and the
associated unreasonable risk from exposure to chrysotile asbestos
identified in the risk evaluation, result from use of the articles. The
articles themselves include sheet gaskets, other gaskets, brake blocks,
brakes and linings, which wear down during use and release asbestos
fibers. The risk evaluation determined that exposure to workers, ONUs,
consumers and bystanders can occur when these items are replaced or
repaired, resulting in harmful exposures. These identified risks from
articles containing asbestos could result from exposure of any kind
and, as a result, EPA had no feasible option to prevent these risks
other than a complete prohibition. In particular, without effective
respiratory protection to reduce asbestos exposure, no other
restriction EPA researched could sufficiently prevent unreasonable risk
to ONUs, consumers, and bystanders who were not expected to wear
respiratory protection. For example, EPA does not assume consumers who
replace their own automobile brakes will consistently use appropriate
respiratory protection, nor can EPA in this rule require respirator use
for consumers. Accordingly, EPA's final regulatory action sets
requirements for articles only to the extent necessary to address the
identified risks from exposure to chrysotile asbestos from the article
so that chrysotile asbestos does not present an unreasonable risk to
health.
C. TSCA Section 9 Analysis
1. TSCA section 9(a) analysis.
Section 9(a) of TSCA provides that, if the Administrator determines
in the Administrator's discretion that an unreasonable risk may be
prevented or reduced to a sufficient extent by an action taken under a
Federal law not administered by EPA, the Administrator must submit a
report to the agency administering that other law that describes the
risk and the activities that present such risk. TSCA section 9(a)
describes additional procedures and requirements to be followed by EPA
and the other federal agency after submission of the report. As
discussed in this Unit, the Administrator does not determine that
unreasonable risk from the conditions of use of chrysotile
[[Page 21999]]
asbestos may be prevented or reduced to a sufficient extent by an
action taken under a Federal law not administered by EPA.
TSCA section 9(d) instructs the Administrator to consult and
coordinate TSCA activities with other Federal agencies for the purpose
of achieving the maximum enforcement of TSCA while imposing the least
burden of duplicative requirements. For this rule, EPA has consulted
with other appropriate Federal executive departments and agencies
including OSHA and NIOSH.
OSHA requires that employers provide safe and healthful working
conditions by setting and enforcing standards and by providing
training, outreach, education and assistance. OSHA has three separate
health standards for asbestos covering employers in General Industry
(29 CFR 1910.1001); Shipyards (29 CFR 1915.1001); and Construction (29
CFR 1926.1101). These standards include a permissible exposure limit
(PEL) for asbestos of 0.1 fibers per cubic centimeter (cc) of air as an
eight-hour time weighted average (TWA), and an excursion limit of 1.0
asbestos fibers per cubic centimeter over a 30-minute period. The
standards apply to all occupational exposures to asbestos and require
exposure monitoring to determine employee exposure. Exposure monitoring
includes both initial monitoring of employees who are, or may
reasonably be expected to be, exposed to airborne concentrations at or
above the TWA PEL or excursion limit, as well as additional monitoring.
Monitoring frequency depends on work classification exposure while
additional monitoring may be required based on changes in the workplace
environment that may result in new or additional exposures above the
TWA PEL or excursion limit.
This rule addresses risk from exposure to chrysotile asbestos in
both workplace and consumer settings (e.g., do-it-yourself automobile
maintenance). With the exception of TSCA, there is no Federal law that
provides authority to prevent or sufficiently reduce these cross-
cutting exposures. No other Federal regulatory agency can evaluate and
address the totality of the risk that EPA is addressing in this rule.
For example, OSHA may set exposure limits for workers, but its
authority is limited to the workplace and does not extend to consumer
uses of hazardous chemicals (while EPA does not regulate consumer use
directly under TSCA 6(a)(5), it has authority to regulate the upstream
supply of chemicals for consumer uses). Further, OSHA does not have
direct authority over state and local employees, and it has no
authority at all over the working conditions of state and local
employees in states that have no OSHA-approved State Plan under 29
U.S.C. 667. Other individuals that may not be covered by OSHA
requirements include university students, volunteers, and self-employed
persons. CPSC is charged with protecting the public from unreasonable
risks of injury or death associated with the use of the thousands of
types of consumer products under the agency's jurisdiction, CPSC has
the authority to regulate chrysotile asbestos in such consumer
products, but not in automobiles, trucks and motorcycles, which are not
under its jurisdiction.
Moreover, the 2016 amendments to TSCA, Public Law 114-182, alter
both the manner of identifying unreasonable risk under TSCA and EPA's
authority to address unreasonable risk under TSCA, such that risk
management under TSCA is increasingly distinct from analogous
provisions of the Consumer Product Safety Act (CPSA), the Federal
Hazardous Substances Act (FHSA), or the OSH Act. These changes to TSCA
reduce the likelihood that an action under the CPSA, FHSA, or the OSH
Act would sufficiently prevent or reduce the unreasonable risk of
chrysotile asbestos. In a TSCA section 6 rule, following an
unreasonable risk determination, EPA must apply risk management
requirements to the extent necessary so that the chemical no longer
presents unreasonable risk and only consider costs to the extent
practicable, 15 U.S.C. 2605(a) and (c)(2), subject to time-limited
conditional exemptions, 15 U.S.C. 2605(g). By contrast, a consumer
product safety rule under the CPSA must include a finding that ``the
benefits expected from the rule bear a reasonable relationship to its
costs.'' 15 U.S.C. 2058(f)(3)(E). Additionally, the 2016 amendments to
TSCA reflect Congressional intent to ``delete the paralyzing `least
burdensome' requirement,'' 162 Cong. Rec. S3517 (June 7, 2016), a
reference to TSCA section 6(a) as originally enacted, which required
EPA to use ``the least burdensome requirements'' that protect
``adequately'' against unreasonable risk, 15 U.S.C. 2605(a) (1976).
However, a consumer product safety rule under the CPSA must impose
``the least burdensome requirement which prevents or adequately reduces
the risk of injury for which the rule is being promulgated.'' 15 U.S.C.
2058(f)(3)(F). Analogous requirements, also at variance with recent
revisions to TSCA, affect the availability of action CPSC may take
under the FHSA relative to action EPA may take under TSCA. 15 U.S.C.
1262. Gaps also exist between OSHA's authority to set workplace
standards under the OSH Act and EPA's obligations to sufficiently
address chemical risks under TSCA. To set PELs for chemical exposure,
OSHA must first establish that the new standards are economically
feasible and technologically feasible (79 FR 61387, October 10, 2014).
But under TSCA, EPA's substantive burden under TSCA section 6(a) is to
demonstrate that, as regulated, the chemical substance no longer
presents an unreasonable risk, with unreasonable risk being determined
under TSCA section 6(b)(4).
EPA therefore concludes that: TSCA is the only regulatory authority
able to prevent or reduce risks of chrysotile asbestos to a sufficient
extent across the range of conditions of use, exposures and populations
of concern; these risks can be addressed in a more coordinated,
efficient and effective manner under TSCA than under different laws
implemented by different agencies, and there are key differences
between the finding requirements of TSCA and those of the OSH Act. For
these reasons, in the Administrator's discretion, the Administrator
does not determine that unreasonable risk from the conditions of use of
chrysotile asbestos may be prevented or reduced to a sufficient extent
by an action taken under a Federal law not administered by EPA.
More than 10 comments were received regarding issues generally
related to TSCA section 9. Some commenters supported EPA's decision to
not make a determination and submit a report to another agency under
TSCA section 9(a). Other commenters contended that the OSHA regulation
that relates to reducing worker exposure sufficiently mitigates the
unreasonable risk and that EPA lacks authority to regulate worker
exposures because OSHA is better positioned to enforce both safety
measures and occupational exposures. EPA's response to these comments
is available in the docket for this rulemaking (Ref. 12).
2. TSCA section 9(b) analysis.
If EPA determines that actions under other Federal laws
administered in whole or in part by EPA could eliminate or sufficiently
reduce a risk to health or the environment, TSCA section 9(b) instructs
EPA to use these other authorities unless the Administrator determines
in the Administrator's discretion that it is in the public interest to
protect against such risk under TSCA. In making such a public interest
finding, TSCA section 9(b)(2) states: ``the Administrator shall
consider, based on information reasonably available to the
[[Page 22000]]
Administrator, all relevant aspects of the risk . . . and a comparison
of the estimated costs and efficiencies of the action to be taken under
this title and an action to be taken under such other law to protect
against such risk.''
Although several EPA statutes have been used to limit chrysotile
asbestos exposure (Ref. 4), regulations under those EPA statutes have
limitations because they largely regulate releases to the environment,
rather than direct human exposure. The Clean Air Act generally focuses
on releases of asbestos to the ambient air. Under the Resource
Conservation and Recovery Act (RCRA) Subtitle D, the disposal of
chrysotile asbestos is regulated as a non-hazardous solid waste; RCRA
does not address exposures during manufacturing, processing,
distribution and use of products containing chrysotile asbestos. Only
TSCA provides EPA the authority to regulate the manufacture (including
import), processing, distribution in commerce, commercial use and
commercial disposal of chemicals substances to be able to address
chrysotile asbestos direct exposure to humans.
For these reasons, the Administrator does not determine that
unreasonable risk from the conditions of use of chrysotile asbestos
could be eliminated or reduced to a sufficient extent by actions taken
under other Federal laws administered in whole or in part by EPA.
D. TSCA Section 26(h) Considerations
In accordance with TSCA section 26(h), EPA has used scientific
information, technical procedures, measures, methods, protocols,
methodologies, and models consistent with the best available science.
The unreasonable risk determination was based on a risk evaluation,
which was subject to peer review and public comment, was developed in a
manner consistent with the best available science and based on the
weight of the scientific evidence. The extent to which the various
information, procedures, measures, methods, protocols, methodologies or
models, as applicable, used in EPA's decision have been subject to
independent verification or peer review is adequate to justify their
use, collectively, in the record for this rule. In particular, the ECEL
value incorporated into the interim workplace controls is derived from
the analysis in the 2020 Risk Evaluation for Asbestos, Part 1:
Chrysotile Asbestos; it likewise represents decisions based on the best
available science and the weight of the scientific evidence (Ref. 23).
The ECEL value of 0.005 f/cc as an 8-hour TWA is based incidence of
lung cancer, mesothelioma and other cancers. Additional information on
the peer review and public comment process, such as the peer review
plan, the peer review report, and the Agency's response to comments,
can be found at EPA's risk evaluation docket at EPA-HQ-OPPT-2019-0501
(Ref. 30).
E. TSCA Section 14 Requirements
EPA is also providing notice to manufacturers, processors, and
other interested parties about potential impacts to confidential
business information that may occur with this final rule. Under TSCA
section 14(b)(4), if EPA promulgates a rule pursuant to TSCA section
6(a) that establishes a ban or phase-out of a chemical substance, the
protection from disclosure of any confidential business information
regarding that chemical substance and submitted pursuant to TSCA will
be ``presumed to no longer apply,'' subject to the limitations
identified in TSCA section 14(b)(4)(B)(i) through (iii). Pursuant to
TSCA section 14(b)(4)(B)(iii), the presumption against protection from
disclosure would apply only to information about the specific
conditions of use that this rule would prohibit. Manufacturers or
processors seeking to protect such information would be able to submit
a request for nondisclosure as provided by TSCA sections 14(b)(4)(C)
and 14(g)(1)(E). Any request for nondisclosure would need to be
submitted within 30 days after receipt of notice from EPA under TSCA
section 14(g)(2)(A). EPA anticipates providing such notice via the
Central Data Exchange (CDX).
F. TSCA Section 18(c)(3) Federal Preemption
TSCA section 18(c)(3) defines the scope of federal preemption with
respect to any final rule EPA issues under TSCA section 6(a). That
provision provides that federal preemption of ``statutes, criminal
penalties, and administrative actions'' applies to ``the hazards,
exposures, risks, and uses or conditions of use of such chemical
substances included in any final action the Administrator takes
pursuant to [TSCA section 6(a)].'' With respect to this final TSCA
section 6(a) rule for chrysotile asbestos, federal preemption applies
to the COUs evaluated in the TSCA Risk Evaluation for Asbestos, Part 1.
Federal preemption as a result of this section 6(a) rule does not apply
to COUs that are being evaluated in EPA's Risk Evaluation for Asbestos,
Part 2, including legacy uses and associated disposals, other types of
asbestos fibers in addition to chrysotile, and conditions of use of
asbestos-containing talc.
VIII. Severability
EPA intends that each provision of this rulemaking be severable. In
the event of litigation staying, remanding, or invalidating all or a
portion of EPA's risk management approach for one or more conditions of
use (COUs) in this rule, EPA intends to preserve the risk management
approach in the rule for all other portions of the risk management
approach for a COU and all other COUs to the fullest extent possible.
The Agency evaluated the risk management options in TSCA section
6(a)(1) through (7) for each COU and generally EPA's regulation of a
COU to address the unreasonable risk from chrysotile asbestos functions
independently from EPA's regulation of other COUs, which may have
different characteristics leading to EPA's risk management decisions.
Further, the Agency crafted this rule so that different risk management
approaches are reflected in different provisions or elements of the
rule that are capable of operating independently. Accordingly, the
Agency has organized the rule so that if any provision or element of
this rule is determined by judicial review or operation of law to be
invalid, that partial invalidation will not render the remainder of
this rule invalid.
There are many permutations of the above. Accordingly, rather than
walking through each one, EPA is providing the following two
representative examples for illustrative purposes. The first example of
how the regulation of one COU is independent of another COU is based on
the following COU examples of: the commercial use of chrysotile
asbestos for use in sheet gaskets for chemical production, which EPA
prohibited in Sec. 751.509(a), and the commercial use of chrysotile
asbestos for oilfield brake blocks, which EPA prohibited in Sec.
751.509(d)(1). To the extent that a court were to find EPA lacked
substantial evidence to support its prohibition of the commercial use
of chrysotile asbestos for use in sheet gaskets for chemical production
or otherwise found flaw with EPA's approach to that COU, it would have
no bearing on other COUs, such as the commercial use of chrysotile
asbestos for oilfield brake blocks, unless the specific flaw also
applies to the particular facts associated with the commercial use of
chrysotile asbestos for oilfield brake blocks. This is reflected in the
structure of the rule, which does not intertwine the prohibitions for
commercial use of chrysotile asbestos for use in sheet
[[Page 22001]]
gaskets for chemical production and the commercial use of chrysotile
asbestos for oilfield brake blocks, but rather separately prohibits
each of these COUs.
Another example of how different risk management approaches are
reflected in different provisions or elements of the rule that are
capable of operating independently is the regulatory provisions for the
commercial use of chrysotile asbestos sheet gaskets for titanium
dioxide production. EPA's risk management approach includes two
elements: (1) a prohibition on the commercial use of chrysotile
asbestos sheet gaskets for titanium dioxide production under Sec.
751.509(b) and (2) interim workplace controls to reduce risk to workers
until the prohibition takes effect under Sec. 751.511. To the extent
that a court were to find that EPA lacked substantial evidence to
support the interim workplace controls for the commercial use of sheet
gaskets for titanium dioxide production, or otherwise found flaw with
EPA's approach with respect to this aspect of the risk management for
this COU, it would have no bearing on EPA's decision to prohibit the
commercial use of sheet gaskets for titanium dioxide production. This
is reflected in the structure of the rule, which does not make the
prohibition of the commercial use of sheet gaskets for titanium dioxide
production contingent on the application of interim workplace controls.
IX. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents referenced
within the documents that are included in the docket, even if the
referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
1. EPA. Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos.
December 2020. Office of Chemical Safety and Pollution Prevention.
Washington, DC. December 2020. (EPA Docket Document Number EPA-HQ-
OPPT-2021-0057-0007). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0007.
2. EPA. 2023. Economic Analysis of the TSCA Section 6 Final Rule for
Asbestos Risk Management, Part 1. March 2024.
3. U.S. Geological Survey. (2023). Minerals Yearbook. Asbestos. 2022
tables-only release.
4. EPA. Regulatory History of Asbestos. March 2024.
5. EPA. Problem Formulation for the Risk Evaluation of Asbestos. May
2018. (EPA-HQ-OPPT-2016-0736-0131). https://www.regulations.gov/document/EPA-HQ-OPPT-2016-0736-0131.
6. EPA. Email Exchange with Mobis and EPA on the presence of
Asbestos in its Brake and Friction Products. March to June, 2021.
(EPA-HQ-OPPT-2021-0057-0016). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0016.
7. EPA. Section 6(a) Rulemakings under the Toxic Substances Control
Act (TSCA) Chrysotile Asbestos Rulemakings E.O. 13132: Federalism
Consultation. May 13, 2021 (EPA-HQ-OPPT-2021-0057-0239). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0239.
8. EPA. Notification of Consultation and Coordination on Proposed
Rulemakings under the Toxic Substances Control Act for Asbestos Part
1: Chrysotile Asbestos. May 24, 2021 and June 3, 2021. Tribal
Consultation. (EPA-HQ-OPPT-2021-0057-0013). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0013.
9. EPA. Environmental Justice Consultation on Forthcoming Proposed
Rulemakings under TSCA Section 6(a). May 12, 2021. (EPA-HQ-OPPT-
2021-0057-0242). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0242.
10. EPA. Part 1. Asbestos (Chrysotile) Public Webinar Slides.
February 3, 2021. (EPA-HQ-OPPT-2021-0057-0003. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0003.
11. EPA. Part 1. Asbestos (Chrysotile) Small Business Administration
roundtable slides on February 5, 2021. (EPA-HQ-OPPT-2021-0057-0004).
https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0004.
12. EPA. Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain
Conditions of Use Under Section 6(a) of the Toxic Substances Control
Act (TSCA); Proposed Rule. Docket EPA-HQ-OPPT-2021-0057. Response to
Public Comments. March 2024.
13. EPA. Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain
Conditions of Use Under Section 6(a) of the Toxic Substances Control
Act (TSCA); Notice of Data Availability and Request for Comment EPA-
HQ-OPPT-2021-0057. Response to Comments. March 2024.
14. Olin Corporation. Comment submitted by Olin Corporation. EPA-HQ-
OPPT-2021-0057-0475. https://www.regulations.gov/comment/EPA-HQ-OPPT-2021-0057-0475.
15. EPA. Meeting with Olin Corporation, August 17, 2023.
16. EPA. Meeting with OxyChem Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. February 9,
2023. EPA-HQ-OPPT-2021-0057-0445. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0445.
17. EPA. Meeting with Westlake Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. November 3,
2022. EPA-HQ-OPPT-2021-0057-0446. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0446.
18. EPA. Meeting with Chemours Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. January 18,
2023. EPA-HQ-OPPT-2021-0057-0442. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0442.
19. The Chemours Company. Comment submitted by The Chemours Company,
EPA-HQ-OPPT-2021-0057-0366. https://www.regulations.gov/comment/EPA-HQ-OPPT-2021-0057-0366.
20. Savannah River Nuclear Solutions. Comment submitted by Savannah
River Nuclear Solutions. EPA-HQ-OPPT-2021-0057-0478. https://www.regulations.gov/comment/EPA-HQ-OPPT-2021-0057-0478.
21. EPA, DOE, SCDHEC. Federal Facility Agreement for the Savannah
River Site, Administrative Docket No. 89-05-FF. August 16, 1993.
22. EPA, DOE, SCDHEC. 2022 High Level Waste Tank Milestones
Agreement; Savannah River Site Federal Facilities Agreement
Modification. December 2022.
23. EPA. Existing Chemical Exposure Limit (ECEL) for Occupational
Use of Chrysotile Asbestos. March 2, 2021. EPA-HQ-OPPT-2021-0057-
0017. https://www.regulations.gov/document/EPA-HPA-HQ-OPPT-2021-0057-0017.
24. Office of Management and Budget. Memorandum for the Heads of
Executive Departments and Agencies (M-95-09). Guidance for
Implementing Title II of S. 1. March 31, 1995. https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/1995-1998/m95-09.pdf. Accessed December 14, 2021.
25. EPA. Meeting with Chemours Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. March 29,
2021. (EPA-HQ-OPPT-2021-0057-0018). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0018.
26. EPA. Meeting with Olin Corporation on Risk Management under TSCA
section 6, Asbestos Part 1: Chrysotile Asbestos. June 2, 2021. (EPA-
HQ-OPPT-2021-0057-0019). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0019.
27. EPA. Meeting with OxyChem Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. May 27, 2021.
(EPA-HQ-OPPT-2021-0057-0020). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0020.
28. EPA. Meeting with Westlake Corporation on Risk Management under
TSCA section 6, Asbestos Part 1: Chrysotile Asbestos. May 20, 2021.
(EPA-HQ-OPPT-2021-0057-0021). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0021.
29. EPA. Meeting and Correspondence with The Chlorine Institute on
Risk
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Evaluation and Risk Management for Part 1: Chrysotile Asbestos. May
18, 2021. (EPA-HQ-OPPT-2021-0057-0024). https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0024.
30. EPA. Summary of External Peer Review and Public Comments and
Disposition for Chrysotile Asbestos. May 2020 (EPA-HQ-OPPT-2019-
0501).
31. EPA. Information Collection Request (ICR) for the Regulation of
Part 1: Chrysotile Asbestos under TSCA Section 6(a) (Final Rule).
EPA ICR No. 2707.02; OMB No. 2070-0220. March 2024.
32. EPA. Unfunded Mandates Reform Act Statement. Asbestos Part 1:
Chrysotile Asbestos; Regulation of Certain Conditions of Use under
TSCA Section 6(a). March 2024.
33. Asbestos Disease Awareness Organization. Comments submitted at
the Environmental Justice Webinar. June 1, 2021. EPA-HQ-OPPT-2021-
0057-0005. https://www.regulations.gov/document/EPA-HQ-OPPT-2021-0057-0005.
X. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/regulations/and-executive-orders.
A. Executive Orders 12866: Regulatory Planning and Review and 14094:
Modernizing Regulatory Review
This action is a ``significant regulatory action'' as defined under
section 3(f)(1) of Executive Order 12866 (58 FR 51735, October 4,
1993), as amended by Executive Order 14094 (88 FR 21879, April 11,
2023). Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for Executive Order 12866 review.
Documentation of any changes made in response to Executive Order 12866
review is available in the docket.
As summarized in Unit I.E., EPA prepared an analysis of the
potential costs and benefits associated with this action (Ref. 2), a
copy of which is available in the docket and discussed in Unit VII.B.
B. Paperwork Reduction Act (PRA)
The information collection requirements in this final rule have
been submitted to OMB for approval under the PRA, 44 U.S.C. 3501 et
seq. The Information Collection Request (ICR) document prepared by EPA
has been assigned EPA ICR No. 2707.02 and OMB Control No. 2070-0220.
You can find a copy of the ICR in the docket for this rule (Ref. 31),
and it is briefly summarized here. The information collection
requirements are not enforceable until OMB approves them.
The information collection activities required under this rule
include reporting and recordkeeping requirements. As explained in Unit
VI.F. and specified at Sec. 751.511, companies that manufacture
(including import), process, distribute in commerce and use chrysotile
asbestos would be required to retain certain information at the company
headquarters for five years from the date of generation. These
information collection activities are necessary to provide EPA with
information upon inspection. EPA believes that these information
collection activities would not significantly impact the regulated
entities. As further explained in the ICR document:
Four (4) titanium dioxide manufacturing facilities that
use sheet gaskets and 8 chlor-alkali facilities are estimated to incur
costs associated with the ECEL (specifically, developing the exposure
control plan, conducting exposure monitoring, and the associated
notifications and recordkeeping). Each firm is predicted to an incur an
average burden of 182.98 hours per year.
Five (5) chemical manufacturing facilities that use sheet
gaskets and 12 to 1,400 companies installing aftermarket automotive
brakes are estimated to incur additional recordkeeping costs associated
with their disposal activities. Firms are predicted to incur a burden
of ranging from 0.03 hours to 4.42 hours per year.
For the remaining industry sectors and recordkeeping
activities required by the rule, records that comply with the
requirements are assumed to already be maintained as part of ordinary
business records. Therefore, EPA estimates that such respondents would
incur no additional incremental paperwork burdens due to the rule.
Respondents/affected entities: Chrysotile asbestos manufacturers
(including importers), processors, distributors, and users.
Respondent's obligation to respond: Mandatory. TSCA section 6(a)
and the final rule.
Estimated number of respondents: 721.
Frequency of response: On occasion.
Total estimated burden: 2,269 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $370,973 (per year), includes $233,425
annualized capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. The small entities subject to the requirements of
this action manufacture (including import), process, distribute in
commerce and use chrysotile asbestos in the conditions of use covered
by this rule. As described in more detail in section 6.2 of the
Economic Analysis (Ref. 2), EPA has determined that 14 to 1,372 small
entities would be subject to the rule. The available information about
the magnitude of the small entity impacts for each use category are
summarized below:
Chlor-alkali facilities: None of the three affected firms are small
businesses.
Sheet gasket manufacturing for chemical production: EPA does not
have the information to calculate the costs of the rule to small
businesses in this sector, so small business impacts have not been
estimated. EPA is aware of the identity of a small business that
manufactures sheet gaskets containing asbestos for chemical production
(including titanium dioxide production), and the Agency assumes that
there may be a second small business providing sheet gaskets containing
asbestos for similar uses. While EPA lacks the information to estimate
the compliance cost and the resulting impact on firms in this sector,
the one firm EPA is aware of supplying this sector sells a diverse line
of products (including non-asbestos gaskets and many products other
than gaskets) serving several different industries, and it operates
several sites that do not manufacture gaskets containing asbestos. This
suggests that asbestos-containing gaskets are not a primary source of
revenue for the firm. EPA assumes that if there is another manufacturer
of asbestos gaskets for similar uses, that it also sells non-asbestos
gaskets. Since asbestos gaskets are such a niche portion of the gasket
industry, EPA believes this is a reasonable assumption. If the
customers using gaskets containing asbestos are able to convert
entirely to asbestos-free gaskets, the affected gasket manufacturers
could likely provide the
[[Page 22003]]
substitute products. These customers consist of chemical manufacturers
that are all large businesses as far as EPA is aware. To the extent
that asbestos-free gaskets do not last as long as those containing
asbestos, the rule could potentially increase revenues for the affected
gasket manufacturers. Asbestos-free products in these applications
reportedly require more frequent replacement than items containing
asbestos. As a result, the rule could increase revenues for the
affected small business suppliers if they sell a larger volume of non-
asbestos products to the end users as replacements.
Sheet gasket end users (chemical production): None of the 4 firms
known to be affected are small businesses. It is possible there may be
other unknown small businesses that may be affected.
Oilfield brake block importer: EPA does not have the information to
calculate the costs of the rule to small businesses in this sector, so
small business impacts have not been estimated. There is one firm known
to import and distribute oilfield brake blocks containing asbestos and
it is a small business. While EPA was not able to estimate the
compliance cost and its impact on this firm, if the customers (which
may include other small businesses) with older drilling rigs currently
using brake blocks containing asbestos continue to use those rigs, the
importer could likely provide the asbestos-free brake blocks used as
substitutes. To the extent that asbestos-free brake blocks are more
expensive and do not last as long as those containing asbestos, the
rule could potentially increase revenues for the affected brake block
importer. A less durable product might be less profitable for the
customers, but selling a product that has to be replaced more often
could increase revenues for the importer if it sells a larger volume of
non-asbestos products to the end users as replacements.
Oilfield brake block--end users: EPA has not identified any small
businesses using oilfield brake blocks containing asbestos. If there
are such small businesses, EPA does not have the information needed to
calculate the costs of the rule to them. Industry sources have
indicated that the use of asbestos-containing brake blocks has declined
over time because the type of drilling rigs that use them have been
replaced by equipment that does not require the use of brake blocks
containing asbestos, or that do not use brake blocks at all. Since
there is only one known importer and it is small, there are likely few
companies still using asbestos-containing brake blocks.
Aftermarket automotive brakes: 11 to 1,369 small businesses are
estimated to be affected by the rule. The estimate of 11 affected small
entities assumes that each affected business performs between 40 and
700 brake replacements per year using asbestos brake linings or pads.
The estimate of 1,369 affected small entities assumes that each
affected business installs a single set of asbestos brake linings or
pads per year. Affected firms are expected to incur a cost of
approximately $18 per brake replacement job for the additional expense
of a set of four non-asbestos brake linings or pads, and about $1 for
recordkeeping for their waste disposal activities. This results in
annual costs between $20 and $14,000 per firm (depending on the number
of brake replacements they perform). At the low-end of 11 affected
brake replacement firms, approximately 85% would have cost impacts of
less than 1% of their annual revenues, about 10% would have cost
impacts between 1% and 3%, and roughly 6% would have cost impacts over
3%. At the high-end estimate of 1,369 affected brake replacement firms
affected, 100% of firms would have a cost impact of less than 1% of
their annual revenue. As described in the Economic Analysis (Ref. 2),
aftermarket automobile brakes containing asbestos are estimated to have
a very small share (0.002%) of the total market. EPA did not estimate
any costs for these businesses associated with finding suppliers of
non-asbestos brakes because EPA assumes that these businesses already
sell non-asbestos brakes as well as brakes containing asbestos.
Other gaskets: EPA is not aware of any firms that would be affected
for this use category, since the one firm that previously indicated
that it used these products subsequently stated that it does not do so.
Therefore, no impacts are predicted on this use category as a result of
the rule.
Other vehicle friction products: EPA is not aware of any firms
impacted for this use category because the one firm that previously
indicated to EPA that it used products in this use category
subsequently stated that it does not do so. Therefore, no impacts are
predicted on this use category as a result of the rule. To the extent
there are ongoing uses, it is likely that the effects of the rule would
be similar to those for aftermarket auto brakes (a few firms facing a
small cost increase for asbestos-free products that probably can be
passed on to consumers).
Details of this analysis are presented in the Economic Analysis
(Ref. 2).
D. Unfunded Mandates Reform Act (UMRA)
This action contains a federal mandate under UMRA, 2 U.S.C. 1531-
1538, that may result in expenditures of more than the inflation-
adjusted UMRA threshold of $100 million or more for state, local and
tribal governments, in the aggregate, or the private sector in any one
year. Accordingly, the EPA has prepared a written statement required
under UMRA section 202. The statement is included in the docket for
this action and briefly summarized here. (Ref. 32)
Total annual net compliance costs per year over the first 12 years
of this rule are estimated to range from a cost of $342 million to a
savings of $126 million, depending on the year. (This does not include
costs for sheet gaskets used in chemical production, brake blocks in
the oil industry, other vehicle friction products, or other gaskets,
which were not quantified). Thus, the cost of the rule in any one year
can exceed $177 million, the inflation-adjusted UMRA threshold. When
longer term savings in the chlor-alkali industry are accounted for over
a 35-year period (the estimated useful lifespan of facilities in the
chlor-alkali industry), the quantified incremental costs of the rule
using a 3% discount rate range from savings of less than $1 million per
year to costs of more than $7 million per year. Using a 7% discount
rate, the incremental costs range from more than $34 million per year
to greater than $43 million per year.
The economic impact of a regulation on the national economy is
generally considered to be measurable only if the economic impact of
the regulation reaches 0.25 percent to 0.5 percent of Gross Domestic
Product (GDP) (Ref. 24). Given the current GDP of $27.62 trillion, this
is equivalent to a cost of $69 billion to $138 billion. Therefore, EPA
has concluded that this rule is highly unlikely to have any measurable
effect on the national economy.
The quantified benefits of avoided cancer incidence due to the
requirements for chlor-alkali facilities, sheet gaskets in chemical
production, and aftermarket automobile brakes total approximately
$6,000 per year using a 3% discount rate and $3,000 per year using a 7%
discount rate. There are also benefits due to the reduction in
pollutants generated by electric utilities that supply power to the
chlor-alkali facilities, as well as various unquantified benefits.
UMRA section 205 requires that before promulgating any rule for
which a written statement is required under
[[Page 22004]]
UMRA section 202, the agency shall identify and consider a reasonable
number of regulatory alternatives and from those alternatives select
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule, unless the head of the
affected agency publishes with the final rule an explanation of why the
least costly, most cost-effective or least burdensome method of
achieving the objectives of the rule was not adopted; or the provisions
are inconsistent with law.
EPA considered two primary regulatory alternatives to the
requirements that are being finalized in this action for chrysotile
asbestos diaphragms in the chlor-alkali industry. Under one alternative
the prohibitions on the processing, distribution in commerce and
commercial use of asbestos diaphragms at chlor-alkali facilities would
take effect at all facilities five years after the effective date of
the final rule. Under the other alternative these prohibitions would
take effect at all facilities after 12 years. The 12-year option has
slightly lower estimated annualized costs than the final rule in EPA's
Economic Analysis (Ref. 2) when using a 7 percent discount rate.
However, as described in Unit VII.B.4.b.ii., this is an artifact of how
the time at which costs are incurred affects the incremental annualized
cost estimates of the rule. Moreover, neither alternative option is
consistent with the statute or the objectives of the rule.
EPA has concluded that the regulatory alternatives it considered
are not consistent with the statute or the objectives of the rule. TSCA
requires that EPA specify mandatory compliance dates for all
requirements of a TSCA section 6(a) rule, and that the dates be ``as
soon as practicable'' and ``provide for a reasonable transition
period.'' As described in Unit V., given the differences among chlor-
alkali facilities, EPA has concluded that a compliance deadline of five
years for the processing, distribution in commerce and commercial use
at all facilities would not provide a reasonable transition period
without anticipated disruption to the available chlorine supply for
water treatment. But allowing the processing, distribution in commerce
and commercial use of asbestos diaphragms to continue for 12 years at
all facilities would not be as soon as practicable, since some
facilities will be able to complete their conversion to non-asbestos
technology in less than 12 years. Therefore, neither of the alternative
options considered would be consistent with the statute or the
objectives of the rule. Instead, EPA is finalizing requirements that
provide longer staggered phase-out periods to provide a reasonable
period for companies to sequentially convert some facilities from
chrysotile asbestos diaphragm technology to membrane technology that is
still as quickly as is practicable.
Additional information on EPA's estimates of the benefits and costs
of this action are provided in Units I.E. and VII.B.4. and in the
Economic Analysis (Ref. 2). Information on the authorizing legislation
is provided in Unit I.B. Information on prior consultations with
affected State, local, and Tribal governments is provided in Units X.E
and X.F.
This action is not subject to the requirements of UMRA section 203
because it contains no regulatory requirements that might significantly
or uniquely affect small governments.
E. Executive Order 13132: Federalism
As discussed in Unit I.E.7., EPA has concluded that this action has
federalism implications as specified in Executive Order 13132 (64 FR
43255, August 10, 1999) because regulation under TSCA section 6(a) may
preempt state law. EPA provides the following federalism summary impact
statement. The Agency consulted with state and local officials early in
the process of developing the proposed action to facilitate their
meaningful and timely input into its development. EPA invited the
following national organizations representing state and local elected
officials to a meeting on May 13, 2021, in Washington, DC: National
Governors Association, National Conference of State Legislatures,
Council of State Governments, National League of Cities, U.S.
Conference of Mayors, National Association of Counties, International
City/County Management Association, National Association of Towns and
Townships, County Executives of America, and Environmental Council of
States. A summary of the meeting with these organizations, including
the views that they expressed, is available in the docket (Ref. 7). EPA
provided an opportunity for these organizations to provide follow-up
comments in writing but did not receive any such comments.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rulemaking
would not have substantial direct effects on tribal government because
chrysotile asbestos is not manufactured, processed, or distributed in
commerce by tribes and would not impose substantial direct compliance
costs on tribal governments. Thus, Executive Order 13175 does not apply
to this action. EPA nevertheless consulted with tribal officials during
the development of this action, consistent with the EPA Policy on
Consultation and Coordination with Indian Tribes.
EPA met with tribal officials via teleconferences on May 24, 2021,
and June 3, 2021, concerning the prospective regulation of chrysotile
asbestos under TSCA section 6 (Ref. 8). Tribal officials were given the
opportunity to meaningfully interact with EPA risk managers concerning
the current status of risk management. EPA received questions during
both meetings held during the consultation period concerning potential
risks to workers, consumers, and general population. Participants in
the consultations expressed interest in the conditions of use where EPA
found unreasonable risk and how EPA would address that unreasonable
risk. EPA responded by providing the suite of options provided the
agency under TSCA section 6 to address the unreasonable risk (Ref. 8).
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) directs federal
agencies to include an evaluation of the health and safety effects of
the planned regulation on children in federal health and safety
standards and explain why the regulation is preferable to potentially
effective and reasonably feasible alternatives. This action is subject
to Executive Order 13045 because it is a significant regulatory action
under section 3(f)(1) of Executive Order 12866, and, as discussed in
Unit I.E.6., EPA believes that the environmental health or safety risk
addressed by this action has a disproportionate effect on children. The
health effects of concern related to exposures to chrysotile asbestos
are mesothelioma, lung and other cancers, all of which have long
latency periods following exposure. Accordingly, we have evaluated the
environmental health or safety effects of asbestos on children.
The Risk Evaluation for Asbestos, Part 1: Chrysotile Asbestos (Ref.
1) demonstrated in sensitivity analyses that age at first exposure
affected risk estimates, with earlier exposures in life resulting in
greater risk. For children, exposures can be anticipated (1) as
bystanders for consumer uses such as aftermarket brakes and (2) in
consumer uses and occupational uses given that
[[Page 22005]]
the risk evaluation presented information indicating that children 16
years of age may engage in these activities.
The results of EPA's evaluation are contained in the risk
evaluation (Ref. 1) and the Economic Analysis (Ref. 2). Copies of these
documents have been placed in the public docket for this action.
This action is preferred over other regulatory options analyzed
because this action prohibits the manufacture (including import),
processing, commercial use, and distribution in commerce of chrysotile
asbestos for the regulated conditions of use as soon as practicable
while providing for a reasonable transition period.
Furthermore, as discussed in Unit I.E.6., EPA's Policy on
Children's Health also applies to this action. Information on how the
Policy was applied is available under ``Children's Environmental
Health'' in the SUPPLEMENTARY INFORMATION unit of this preamble.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution in Commerce, or Use
This action is not a ``significant energy action'' under Executive
Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to
have a significant adverse effect on the supply, distribution or use of
energy. The action is predicted to reduce energy use and is not
expected to reduce energy supply or increase energy prices.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards under NTTAA,
15 U.S.C. 272.
J. Executive Orders 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and 14096:
Revitalizing our Nation's Commitment to Environmental Justice for All
In accordance with Executive Orders 12898 (59 FR 7629, February 16,
1994) and 14096 (88 FR 25251, April 26, 2023), EPA considered the
environmental justice (EJ) conditions that exist prior to this action,
and the likely effects of this action. EPA believes that the human
health or environmental conditions that exist prior to this action
result in or have the potential to result in disproportionate and
adverse human health or environmental effects on communities with EJ
concerns. As summarized in Unit I.E.5. and described more fully in the
Economic Analysis (Ref. 2), the firms that will be subject to
regulation, particularly for the chlor-alkali and sheet gasket use
categories, are often located in areas with a high concentration of
industrial activities that pose a variety of environmental hazards to
surrounding populations. It is not possible to separate potential EJ
concerns currently posed by the use categories being regulated from
other risks in the community that are unrelated to chrysotile asbestos.
Although data are not available on the worker demographics at specific
companies, chemical workers in communities with chlor-alkali facilities
are more likely to be Hispanic, less likely to be a race other than
White or Black, and have higher incomes on average than chemical
workers nationally. Workers in communities with other affected chemical
producers are more likely to be Black and less likely to be Hispanic or
a race other than White or Black than chemical workers nationally.
EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on communities with EJ concerns.
Any disproportionate impacts related to the conditions of use that are
subject to this rule will be reduced, and ultimately eliminated once
all of the prohibitions in the rule take effect. Thus, EJ concerns will
be mitigated compared to the baseline.
EPA conducted outreach to advocates of communities with EJ concerns
that might be subject to disproportionate exposure to chrysotile
asbestos. EPA's EJ consultation occurred from June 1 through August 13,
2021. On June 1 and 9, 2021, EPA held public meetings as part of this
consultation (Ref. 9). See also Unit III.A.1. These meetings were held
pursuant to and in compliance with Executive Order 12898 and Executive
Order 14008, Tackling the Climate Crisis at Home and Abroad (86 FR
7619, February 1, 2021). EPA received several comments following the EJ
meetings. Commenters expressed concerns that consumers who live near
chlor-alkali facilities and Do-It-Yourself (DIY) auto workers could be
exposed unless chrysotile asbestos is banned (Ref. 33). EPA also
acknowledges that there are pre-existing EJ concerns in communities
surrounding some of the affected chlor-alkali facilities and one other
chemical manufacturer in Louisiana and Texas due to high levels of
polluting industrial activities and high proportions of residents who
are people of color (described in more detail in the Economic Analysis
(Ref. 2)). This rule is not expected to affect all of these pre-
existing EJ concerns, since some of the EJ concerns in these
communities result from pollutants other than chrysotile asbestos from
facilities that are not affected by this rule.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and the
EPA will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action meets the
criteria set forth in 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 751
Environmental protection, Chemicals, Export certification,
Hazardous substances, Import certification, Recordkeeping.
Michael S. Regan,
Administrator.
Therefore, for the reasons set forth in the preamble, 40 CFR
chapter I is amended as follows:
PART 751--REGULATION OF CERTAIN CHEMICAL SUBSTANCES AND MIXTURES
UNDER SECTION 6 OF THE TOXIC SUBSTANCES CONTROL ACT
0
1. The authority citation for part 751 continues to read as follows:
Authority: 15 U.S.C. 2605, 15 U.S.C. 2625(l)(4).
0
2. Add a subpart F, consisting of Sec. Sec. 751.501 through 751.515,
to read as follows:
Subpart F--Chrysotile Asbestos
Sec.
751.501 General.
751.503 Definitions.
751.505 Manufacturing, processing and commercial use of chrysotile
asbestos diaphragms in the chlor-alkali industry.
751.507 Certification of compliance for the chlor-alkali industry.
751.509 Other prohibitions and restrictions of the manufacturing,
processing and commercial use of chrysotile asbestos.
751.511 Interim workplace controls of asbestos exposures.
751.513 Disposal.
751.515 Recordkeeping.
Sec. 751.501 General.
This subpart sets certain restrictions on the manufacture
(including import), processing, distribution in commerce, and
commercial use and disposal of chrysotile asbestos (CASRN 132207-32-0)
to prevent unreasonable risk of injury to health in accordance with
TSCA section 6(a), 15 U.S.C. 2605(a).
Sec. 751.503 Definitions.
The definitions in subpart A of this part apply to this subpart
unless otherwise specified in this section. In
[[Page 22006]]
addition, the following definitions apply to this subpart:
Aftermarket automotive brakes and linings means any automotive
friction brake articles sold in the secondary market as replacement
parts (e.g., brake pads, linings and shoes) used in disc and drum brake
systems on automobiles and trucks.
Article means a manufactured item:
(1) Which is formed to a specific shape or design during
manufacture;
(2) Which has end use function(s) dependent in whole or in part
upon its shape or design during end use; and
(3) Which has either no change of chemical composition during its
end use or only those changes of composition which have no commercial
purpose separate from that of the article, and that result from a
chemical reaction that occurs upon end use of other chemical
substances, mixtures, or articles; except that fluids and particles are
not considered articles regardless of shape or design.
Authorized person means any person specifically authorized by the
owner or operator to enter, and whose duties require the person to
enter, a regulated area.
Chrysotile asbestos is the asbestiform variety of a hydrated
magnesium silicate mineral, with relatively long and flexible
crystalline fibers that are capable of being woven.
Disposal means to discard, throw away, or otherwise complete or
terminate the useful life of chrysotile asbestos, including any
chrysotile asbestos-containing products or articles.
Distribution in commerce has the same meaning as in section 3 of
the Act, but the term does not include distribution of chrysotile
asbestos waste solely for purposes of disposal in accordance with this
Subpart.
Diaphragms means semipermeable diaphragms, which separate the anode
from the cathode chemicals in the production of chlorine and sodium
hydroxide (caustic soda).
Gasket means an article used to form a leakproof seal between fixed
components.
Membrane technology means a chlor-alkali production technology that
uses chlorine production cells in which the anode and the cathode are
separated by an ion-exchange membrane that is designed to allow only
sodium ions and some water to pass through it.
Nuclear material means any source material, special nuclear
material, or byproduct material (as such terms are defined in the
Atomic Energy Act of 1954, as amended, and regulations issued under
such Act).
Oilfield brake blocks means the friction brake blocks component in
drawworks used in the hoisting mechanism for oil well drilling rigs.
Other gaskets means gaskets other than sheet gaskets in chemical
production, to include gaskets used in the exhaust systems of utility
vehicles.
Other vehicle friction products means friction articles such as
brakes and clutches, other than aftermarket automotive brakes and
linings, installed on any vehicle, including on off-road vehicles,
trains, planes, etc. Other vehicle friction products does not include
articles used in the NASA Super Guppy Turbine aircraft, a specialty
cargo plane used for the transportation of oversized equipment that is
owned and operated by the National Aeronautics and Space Administration
(NASA).
Owner or operator means any person who owns, leases, operates,
controls, or supervises a workplace covered by this subpart.
Potentially exposed person means any person who may be
occupationally exposed to a chemical substance or mixture in a
workplace as a result of a condition of use of that chemical substance
or mixture.
Processing has the same meaning as in section 3 of the Act, but the
term does not include processing of chrysotile asbestos waste solely
for purposes of disposal in accordance with this subpart.
Regulated area means an area established by the regulated entity to
demarcate where airborne concentrations of a specific chemical
substance exceed, or there is a reasonable possibility they may exceed,
the ECEL.
Savannah River Site means the Department of Energy's nuclear waste
management and related national defense operations at its Savannah
River Site in Aiken, Barnwell and Allendale counties in South Carolina,
including operations at H-Canyon, F and H Tank Farms, Defense Waste
Processing Facility, Savannah River National Laboratory and any on-site
facility managed by Savannah River Nuclear Solutions.
Sheet gaskets in chemical production means gaskets cut from
sheeting, including asbestos-containing rubberized sheeting, that are
used in facilities for extreme condition applications such as titanium
dioxide manufacturing, or processing nuclear material.
Sec. 751.505 Manufacturing, processing, distribution in commerce and
commercial use of chrysotile asbestos diaphragms in the chlor-alkali
industry.
(a) After May 28, 2024, all persons are prohibited from manufacture
(including import) of chrysotile asbestos, including any chrysotile
asbestos-containing products or articles, for diaphragms in the chlor-
alkali industry.
(b) After May 28, 2029, all persons are prohibited from processing,
distribution in commerce and commercial use of chrysotile asbestos,
including any chrysotile asbestos-containing products or articles, for
diaphragms in the chlor-alkali industry, except as provided in
paragraphs (c) through (d) of this section.
(c) Any person who meets all of the criteria of this paragraph (c)
may process, distribute in commerce and commercially use chrysotile
asbestos, including any chrysotile asbestos-containing products or
articles, for diaphragms in the chlor-alkali industry at no more than
two facilities until May 25, 2032:
(1) On May 28, 2024, the person owns or operates more than one
facility that uses chrysotile asbestos in chlor-alkali production;
(2) The person is converting more than one facility that the person
owns or operates that as of May 28, 2024 uses chrysotile asbestos in
chlor-alkali production from the use of chrysotile asbestos diaphragms
to non-chrysotile asbestos membrane technology, and by May 28, 2029,
the person has ceased all processing, distribution in commerce and
commercial use of chrysotile asbestos at one (or more) facility
undergoing or that has undergone conversion to non-chrysotile asbestos
membrane technology; and
(3) The person certifies to EPA compliance with the provisions of
this paragraph, in accordance with Sec. 751.507.
(d) Any person who meets all of the criteria of this paragraph (d)
may process, distribute in commerce and commercially use chrysotile
asbestos, including any chrysotile asbestos-containing products or
articles, for diaphragms in the chlor-alkali industry at not more than
one facility until May 26, 2036:
(1) On May 28, 2024, the person owns or operates more than two
facilities that use chrysotile asbestos in chlor-alkali production; and
(2) The person is converting more than two facilities that the
person owns or operates that as of May 28, 2024 use chrysotile asbestos
in chlor-alkali production from the use of chrysotile
[[Page 22007]]
asbestos diaphragms to non-chrysotile asbestos membrane technology:
(i) By May 28, 2029, the person has ceased all processing,
distribution in commerce and commercial use of chrysotile asbestos at
one (or more) facility undergoing or that has undergone such
conversion; and
(ii) By May 25, 2032 the person has ceased all processing,
distribution in commerce and commercial use of chrysotile asbestos at
two (or more) facilities undergoing or that have undergone conversion
to non-chrysotile asbestos membrane technology; and
(3) The person certifies to EPA compliance with the provisions of
this paragraph, in accordance with Sec. 751.507.
Sec. 751.507 Certification of compliance for the chlor-alkali
industry.
(a) In addition to meeting the requirements of Sec. Sec.
751.505(c), any person who processes, distributes in commerce or
commercially uses chrysotile asbestos for diaphragms in the chlor-
alkali industry between May 28, 2029 and May 25, 2032 must:
(1) Certify to EPA their compliance with all requirements of Sec.
751.505(c); and
(2) Provide the following information to EPA to support their
compliance with the requirements of Sec. 751.505(c):
(i) Identification of the facility for which, by May 28, 2029, the
person has ceased all processing, distribution in commerce and
commercial use of chrysotile asbestos, pursuant to Sec. 751.505(c)(2),
including:
(A) facility name, location, and mailing address;
(B) name of facility manager or other contact, title, phone number
and email address; and
(C) date the person ceased all processing, distribution in commerce
and commercial use of chrysotile asbestos at the facility.
(ii) Identification of the facility or facilities (no more than two
facilities) for which the person will after May 28, 2029, continue to
process, distribute in commerce and commercially use chrysotile
asbestos diaphragms while the facility or facilities are being
converted to non-chrysotile asbestos membrane technology, pursuant to
Sec. 751.505(c), including for each facility:
(A) facility name, location, and mailing address; and
(B) name of facility manager or other contact, title, phone number
and email address.
(b) In addition to meeting the requirements of paragraph (a) of
this section and Sec. Sec. 751.505(d), any person who processes,
distributes in commerce or commercially uses chrysotile asbestos for
diaphragms in the chlor-alkali industry between May 25, 2032 and May
26, 2036 must:
(1) Certify to EPA their compliance with all requirements of Sec.
751.505(d); and
(2) Provide the following information to EPA to support their
compliance with the requirements of Sec. 751.505(d):
(i) Identification of the facility identified in Sec.
751.505(d)(2)(ii) at which as of May 25, 2032, the person has ceased
all processing, distribution in commerce and commercial use of
chrysotile asbestos, including:
(A) facility name, location, and mailing address;
(B) name of facility manager or other contact, title, phone number
and email address; and
(C) date the person has ceased all processing, distribution in
commerce and commercial use of chrysotile asbestos at the facility.
(ii) Identification of the facility at which the person will
between May 25, 2032 and no later than May 26, 2036, continue to
process, distribute in commerce and commercially use chrysotile
asbestos diaphragms while the facility is being converted to non-
chrysotile asbestos membrane technology pursuant to Sec. 751.505(d),
including:
(A) facility name, location, and mailing address; and
(B) name of facility manager or other contact, title, phone number
and email address.
(c) The certification required by paragraphs (a) and (b) of this
section must be signed and dated by a responsible corporate officer.
For the purpose of this section, a responsible corporate officer means:
a president, secretary, treasurer, or vice-president of the corporation
in charge of chlor-alkali operations, or any other person who performs
similar policy or decision-making functions for the corporation.
(d) Any person signing a document under paragraph (c) of this
section shall also make the following certification:
``I certify under penalty of law that this document was prepared
under my direction or supervision, and the information is, to the
best of my knowledge and belief, true, accurate, and complete. I am
aware it is unlawful to knowingly submit incomplete, false and/or
misleading information and there are criminal penalties for such
conduct.''
(e) This certification must be submitted to the Director, Office of
Pollution Prevention and Toxics (OPPT), using the address specified at
40 CFR 700.17(a).
(1) The certification under paragraph (a) of this section must be
submitted no later than 10 business days after May 28, 2029; and
(2) The certification under paragraph (b) of this section must be
submitted no later than 10 business days after May 25, 2032.
Sec. 751.509 Other prohibitions and restrictions on the
manufacturing, processing, distribution in commerce and commercial use
of chrysotile asbestos.
(a) After May 27, 2026, all persons are prohibited from
manufacturing (including importing), processing, distributing in
commerce, and commercial use of chrysotile asbestos, including any
chrysotile asbestos-containing products or articles, for use in sheet
gaskets for chemical production, except as provided in paragraphs (b)
and (c) of this section. Any sheet gaskets for chemical production
which are already installed for use on May 27, 2026 are not subject to
the distribution in commerce and commercial use prohibitions.
(b) Any person may commercially use chrysotile asbestos sheet
gaskets for titanium dioxide production until May 28, 2029.
(c)(1)(i) Any person may commercially use chrysotile asbestos sheet
gaskets for processing nuclear material until May 28, 2029.
(ii) Any person may commercially use chrysotile asbestos sheet
gaskets for processing nuclear material at the Savannah River Site
until December 31, 2037.
(2) After November 25, 2024, any person commercially using
chrysotile asbestos sheet gaskets for processing nuclear material
pursuant to (c)(1)(i) and (ii) must have in place exposure controls
expected to reduce exposure of potentially exposed persons to asbestos,
and provide potentially exposed persons in the regulated area where
chrysotile asbestos sheet gasket replacement is being performed a full-
face air purifying respirator with a P-100 (HEPA) cartridge (providing
an assigned protection factor of 50), or other respirator that provides
a similar or higher level of protection to the wearer.
(3)(i) Any sheet gaskets for processing nuclear material which are
already installed for use on May 28, 2029 are not subject to the
distribution in commerce and commercial use prohibitions in paragraphs
(a) of this section.
(ii) Any sheet gaskets for processing nuclear material at the
Savannah River Site which are already installed for use on December 31,
2037, are not subject
[[Page 22008]]
to the distribution in commerce and commercial use prohibitions in
paragraphs (a) of this section.
(d) After November 25, 2024, all persons are prohibited from
manufacturing (including importing), processing, distribution in
commerce and commercial use of chrysotile asbestos, including any
chrysotile asbestos-containing products or articles, for commercial use
of:
(1) Oilfield brake blocks;
(2) Aftermarket automotive brakes and linings;
(3) Other vehicle friction products; and
(4) Other gaskets.
(e) After November 25, 2024, all persons are prohibited from the
manufacturing (including importing), processing, and distribution in
commerce of chrysotile asbestos, including any chrysotile asbestos-
containing products or articles, for consumer use of:
(1) Aftermarket automotive brakes and linings; and
(2) Other gaskets.
(f) On November 25, 2024:
(1) Any aftermarket automotive brakes and linings, other vehicle
friction products, and other gaskets which are already installed for
commercial use are not subject to the prohibitions on distribution in
commerce and commercial use under paragraph (d) of this section.
(2) Any aftermarket automotive brakes and linings, and other
gaskets which are already installed for consumer use are not subject to
the distribution in commerce prohibition under paragraph (e) of this
section.
Sec. 751.511 Interim workplace controls of chrysotile asbestos
exposures.
(a) Applicability. This section applies to processing and
commercial use of chrysotile asbestos, including any chrysotile
asbestos-containing products or articles, for chrysotile asbestos
diaphragms in the chlor-alkali industry; and to the commercial use of
chrysotile asbestos sheet gaskets for titanium dioxide production.
(b) Interim Existing Chemical Exposure Limit (ECEL). Beginning
November 25, 2024, the owner or operator must ensure that no person is
exposed to an airborne concentration of chrysotile asbestos in excess
of the interim ECEL for chrysotile asbestos of 0.005 fibers (f)/cubic
centimeter (cc) as an eight (8)-hour time-weighted average (TWA). Where
an owner or operator cannot demonstrate exposure at or below the ECEL,
including through the use of all technically feasible engineering
controls or work practices as described in paragraph (e)(1) of this
section, and has not demonstrated that it has appropriately
supplemented with respiratory protection that complies with the
requirements of paragraph (f) of this section, this will constitute a
failure to comply with the ECEL.
(c) Exposure monitoring--(1) In general. (i) Owners or operators
must determine each potentially exposed person's exposure from personal
breathing zone air samples that are representative of the 8-hour TWA
exposure of each potentially exposed person.
(ii) Representative 8-hour TWA of a potentially exposed person's
exposure must be determined on the basis of one or more samples
representing full-shift exposures for each shift for each potentially
exposed person in each job classification in each work area.
(2) Initial exposure monitoring. No later than November 25, 2024
each owner or operator covered by paragraph (a) of this section as of
May 28, 2024, must perform initial exposure monitoring of all
potentially exposed persons.
(3) Periodic exposure monitoring. The owner or operator must
establish an exposure monitoring program for periodic monitoring of
exposure to chrysotile asbestos. If one or more samples representing
full-shift exposures from the most recent exposure monitoring exceeds
the ECEL (>0.005 f/cc 8-hour TWA), periodic exposure monitoring is
required within three months of the most recent exposure monitoring.
Otherwise, periodic exposure monitoring is required within six months
of the most recent exposure monitoring.
(4) Additional exposure monitoring. The owner or operator must
conduct additional exposure monitoring within a reasonable timeframe
after there has been a change in the production, process, control
equipment, personnel or work practices that may result in new or
additional exposures above the ECEL or the owner or operator has any
reason to suspect that a change may result in new or additional
exposures above the ECEL.
(5) Method of monitoring. (i) Exposure monitoring samples must be
personal breathing zone samples collected and analyzed using methods
and quality control procedures described in Appendix A to 29 CFR
1910.1001, or as referenced in Appendix A to 29 CFR 1910.1001 (Appendix
B to 29 CFR 1910.1001, OSHA method ID-160, or the NIOSH 7400 method).
(ii) Owners or operators must use exposure monitoring methods that
conform with the OSHA Reference Method specified in Appendix A of 29
CFR 1910.1001 or an equivalent method. If an equivalent method is used,
the owner or operator must ensure that the method meets the following
criteria:
(A) Replicate exposure data used to establish equivalency are
collected in side-by-side field and laboratory comparisons; and
(B) The comparison indicates that 90% of the samples collected in
the range 0.5 to 2.0 times the ECEL or the lowest concentration
possible have an accuracy range of plus or minus 25 percent of the OSHA
Reference Method specified in Appendix A of 29 CFR 1910.1001 at a 95
percent confidence level as demonstrated by a statistically valid
protocol. The NIOSH 7402 analytical method may be applied to adjust the
analytical result to include only chrysotile asbestos.
(6) Notification of exposure monitoring results. (i) The owner or
operator must, within 15 business days of receipt of monitoring
results, notify each potentially exposed person of these results either
individually in writing or by posting the results in an appropriate
location that is accessible to all potentially exposed persons. The
notice must be in plain language and understandable to all potentially
exposed persons.
(ii) The written notification required by paragraph (c)(6)(i) of
this section must include the corrective action being taken by the
owner or operator to reduce exposure to or below the ECEL, wherever
monitoring results indicated that the ECEL had been exceeded.
(d) Regulated areas--(1) Establishment. Beginning November 25, 2024
the owner or operator must establish regulated areas wherever airborne
concentrations of chrysotile asbestos exceed, or there is a reasonable
possibility that they may exceed, the ECEL.
(2) Demarcation. The owner or operator must demarcate regulated
areas from the rest of the workplace in a manner that minimizes the
number of persons who will be exposed to chrysotile asbestos.
(3) Access. The owner or operator must limit access to regulated
areas to authorized persons or other persons required by work duties to
be present in regulated areas.
(4) Provision of respirators. The owner or operator must supply a
respirator selected in accordance with paragraph (f) of this section to
each person entering a regulated area and must require the use of such
respirator.
(5) Prohibited activities. The owner or operator must ensure that
persons do
[[Page 22009]]
not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in the
regulated area.
(e) Exposure Control Procedures and Plan--(1) Exposure Controls.
(A) The owner or operator must institute engineering controls and work
practices to reduce and maintain airborne chrysotile asbestos
concentrations to or below the ECEL, except to the extent that the
owner or operator can demonstrate that such controls are not feasible.
(B) Wherever the feasible engineering controls and work practices
that can be instituted are not sufficient to reduce airborne chrysotile
asbestos concentrations to or below the ECEL, the owner or operator
must use them to reduce exposures to the lowest levels achievable by
these controls. If the feasible engineering controls and work practices
cannot reduce exposures to or below the ECEL, the owner or operator
must supplement the controls by providing and requiring the use of
respiratory protection that complies with the requirements of paragraph
(f) of this section.
(2) Exposure Control Plan Requirements. (i) Beginning March 28,
2025, when the airborne chrysotile asbestos concentrations exceed the
ECEL, or are reasonably expected to exceed the ECEL, owners and
operators must establish and implement an exposure control plan to
reduce exposures to all potentially exposed persons to or below the
ECEL by means of engineering controls and work practices, and by the
use of respiratory protection where required under paragraph (e)(1)(B)
of this section. The exposure control plan must be available to persons
exposed to chrysotile asbestos.
(ii) The exposure control plan must be reviewed and updated as
necessary, but at least annually, to reflect any significant changes in
the status of the owner or operator's compliance with the requirements
of this section.
(iii) The owner or operator must not implement a schedule of
personnel rotation as a means of compliance with the ECEL.
(iv) The exposure control plan must include:
(A) An explanation of the exposure controls considered, a rationale
for why exposure controls were selected or not selected, based on
feasibility, effectiveness, and other relevant considerations;
(B) Descriptions of actions the owner or operator must take to
implement the exposure controls selected, including proper
installation, maintenance, training, or other actions, and the
estimated timeline for implementing such controls;
(C) Description of activities conducted by the owner or operator to
review and update the exposure control plan to ensure effectiveness of
the exposure controls, identify any necessary updates to the exposure
controls, and confirm that all persons are properly implementing the
exposure controls; and
(D) An explanation of the procedures for responding to any change
that may reasonably be expected to introduce additional sources of
exposure to chrysotile asbestos, or otherwise result in increased
exposure to chrysotile asbestos, including procedures for implementing
corrective actions to mitigate exposure to chrysotile asbestos.
(f) Respiratory protection--(1) Method of Compliance. Beginning
November 25, 2024, if an owner or operator is required to provide
respiratory protection pursuant to paragraphs (d)(4) or (e)(1)(B) of
this section, the owner or operator must provide each potentially
exposed person with a respirator according to the requirements of this
section.
(2) Respirator program. For purposes of this paragraph (f)(2), the
cross-referenced provisions in 29 CFR 1910.134 applying to an
``employee'' also apply equally to potentially exposed persons, and
provisions applying to an ``employer'' also apply equally to owners or
operators.
(i) Owners and operators must select respiratory protection that
properly fits each affected person and communicate respirator
selections to each affected person consistent with the requirements of
29 CFR 1910.134(f) and 1910.134 App. A.
(ii) Owners and operators must provide, ensure use of, and maintain
(in a sanitary, reliable, and undamaged condition) respiratory
protection that is of safe design and construction for the applicable
condition of use consistent with the requirements of 29 CFR 1910.134(g)
through (j) and 1910.134 App. B-1 to B-2.
(iii) Prior to or at the time of initial assignment to a job
involving potential exposure to chrysotile asbestos, owners and
operators must provide training and retraining to all persons required
to use respiratory protection consistent with 29 CFR 1910.134(k).
(3) Respirator selection. Owners or operators must select and
provide appropriate respirators based on the most recent exposure
monitoring. The minimum respiratory protection that must be provided is
as follows:
(i) If the most recent exposure monitoring indicates that the
exposure concentration is at or below the 0.005 f/cc (ECEL): no
respiratory protection is required.
(ii) If the most recent exposure monitoring indicates that the
exposure concentration is above 0.005 f/cc (ECEL) and less than or
equal to 0.05 f/cc (10 times the ECEL):
(A) A half-mask supplied-air respirator (SAR) or airline respirator
operated in demand mode; or
(B) A half-mask self-contained breathing apparatus (SCBA)
respirator operated in demand mode (Assigned Protection Factor 10).
(iii) If the most recent exposure monitoring indicates that the
exposure concentration is above 0.05 f/cc (10 times the ECEL) and less
than or equal to 0.125 f/cc (25 times the ECEL): A loose fitting
facepiece supplied-air respirator (SAR) or airline respirator operated
in continuous flow mode (Assigned Protection Factor 25).
(iv) If the most recent exposure monitoring indicates that the
exposure concentration is above 0.125 f/cc (25 times the ECEL) and less
than or equal to 0.25 f/cc (50 times the ECEL):
(A) A full facepiece supplied-air respirator (SAR) or airline
respirator operated in demand mode; or
(B) A half-mask supplied-air respirator (SAR) or airline respirator
operated in continuous flow mode; or
(C) A half-mask supplied-air respirator (SAR) or airline respirator
operated in pressure-demand or other positive-pressure mode; or
(D) A full facepiece self-contained breathing apparatus (SCBA)
respirator operated in demand mode; or
(E) A helmet/hood self-contained breathing apparatus (SCBA)
respirator operated in demand mode (Assigned Protection Factor 50).
(v) If the most recent exposure monitoring indicates that the
exposure concentration is above 0.25 f/cc (50 times the ECEL) and less
than or equal to 5 f/cc (1,000 times the ECEL): A full-facepiece
supplied-air respirator (SAR) or airline respirator operated in
pressure-demand or other positive-pressure mode (Assigned Protection
Factor 1,000).
(vi) If the most recent exposure monitoring indicates that the
exposure concentration is above 5 f/cc (1,000 times the ECEL) and less
than or equal to 50 f/cc (10,000 times the ECEL):
(A) A full-facepiece self-contained breathing apparatus (SCBA)
respirator operated in pressure-demand or other positive-pressure mode;
or
(B) A helmet/hood self-contained breathing apparatus (SCBA)
respirator operated in pressure-demand or other positive-pressure mode
(Assigned Protection Factor 10,000).
[[Page 22010]]
(vii) The respiratory protection requirements in paragraph (f)(3)
of this section represent the minimum respiratory protection
requirements, such that any respirator affording a higher degree of
protection than the required respirator may be used.
(g) Workplace information and training. (1) By November 25, 2024,
the owner or operator must institute a training program and ensure that
persons potentially exposed to chrysotile asbestos participate in the
program according to the requirements of this paragraph (g).
(2) The owner or operator must train each potentially exposed
person prior or at the time of a potential exposure to chrysotile
asbestos and at least annually thereafter.
(3) The owner or operator must ensure that information and training
is presented in a manner that is understandable to each person required
to be trained.
(4) The following information and training must be provided to all
persons potentially exposed to chrysotile asbestos:
(i) The health effects associated with exposure to chrysotile
asbestos, based on the most recent publication by EPA, OSHA, NIOSH,
and/or CDC;
(ii) The quantity, location, manner of use, release, and storage of
chrysotile asbestos and the specific operations in the workplace that
could result in exposure to chrysotile asbestos, noting where each
regulated area is located;
(iii) The specific procedures implemented to control exposures and
manage occupational risks to persons potentially exposed to chrysotile
asbestos, such as engineering controls, work practices and personal
protective equipment to be used; and
(iv) The requirements of this section, as well as how to access or
obtain a copy of these regulations.
(5) Whenever there are workplace changes, such as modifications of
tasks or procedures or the institution of new tasks or procedures, or
when the airborne concentration of chrysotile asbestos increases, or
when the exposure control plan is updated according to paragraph
(e)(2)(ii) of this section, the owner or operator must update the
training and re-train each potentially exposed person.
Sec. 751.513 Disposal.
(a) After November 25, 2024, all persons disposing of chrysotile
asbestos and any chrysotile asbestos-containing products or articles
subject to Sec. 751.505, must dispose of chrysotile asbestos and any
chrysotile asbestos-containing products or articles, as applicable:
(1) In accordance with the Asbestos General Industry Standard--(29
CFR 1910.1001(k)).
(2) In conformance with the asbestos waste disposal requirements at
40 CFR 61.150.
(b) After November 25, 2024, all persons disposing of chrysotile
asbestos and any chrysotile asbestos-containing products or articles
subject to paragraphs (a) through (c) of Sec. 751.509 must dispose of
chrysotile asbestos and any chrysotile asbestos-containing products or
articles, as applicable:
(1) In accordance with the Asbestos Safety and Health Regulations
for Construction--(29 CFR 1926.1101)
(2) [Reserved]
(c) After November 25, 2024, all persons disposing of chrysotile
asbestos and any chrysotile asbestos-containing products or articles
subject to Sec. 751.509(d) must dispose of chrysotile asbestos and any
chrysotile asbestos-containing products or articles, as applicable:
(1) In accordance with the Asbestos General Industry Standard--(29
CFR 1910.1001).
(2) In conformance with the asbestos waste disposal requirements at
40 CFR 61.150.
(d) After November 25, 2024, each manufacturer (including
importer), processor, and distributor of chrysotile asbestos, including
any chrysotile asbestos-containing products or articles, for consumer
use, disposing of chrysotile asbestos and any chrysotile asbestos-
containing products or articles subject to Sec. 751.509(e), must
dispose of chrysotile asbestos and any chrysotile asbestos-containing
products or articles, as applicable:
(1) In accordance with the Asbestos General Industry Standard at 29
CFR 1910.1001(k).
(2) In conformance with the asbestos waste disposal requirements at
40 CFR 61.150.
Sec. 751.515 Recordkeeping.
(a) General records. After November 25, 2024, all persons who
manufacture (including import), process, or distribute in commerce or
engage in commercial use of chrysotile asbestos must maintain ordinary
business records, such as invoices and bills-of-lading related to
compliance with the prohibitions, restrictions, and other provisions of
this subpart.
(b) Certification of compliance for chlor-alkali industry records.
Persons required pursuant to Sec. 751.507 to certify compliance with
Sec. 751.505 must:
(1) Retain records of certifications prepared to comply with Sec.
751.507 and records to substantiate such certifications; and
(2) Make the records retained pursuant to paragraph (b)(1) of this
section available to EPA for inspection.
(c) Interim workplace controls of chrysotile asbestos exposures
records--(1) Exposure monitoring. For each monitoring event, owners or
operators subject to the exposure monitoring required by Sec.
751.511(c) must document, retain records of the following and make them
available to EPA for inspection:
(i) Dates, duration, and results of each sample taken;
(ii) The quantity, location(s) and manner of chrysotile asbestos
use at the time of each monitoring event;
(iii) All measurements that may be necessary to determine sampling
conditions that may have affected the monitoring results;
(iv) Name, address, work shift, job classification, work area, and
type of respiratory protection (if any) of each monitored person;
(vi) Sampling and analytical methods used and documentation of
compliance with the quality control procedures described in Sec.
751.511(c)(5)(i) and (ii); and
(vii) Notification of exposure monitoring results in accordance
with Sec. 751.511(c)(6).
(2) Other requirements. Owners or operators subject to the interim
workplace controls described in Sec. 751.511 must retain records and
make them available to EPA for inspection of:
(i) The exposure control plan and its implementation as required by
Sec. 751.511(e).
(ii) Respiratory protection used and program implementation as
described in Sec. 751.511(f); and
(iii) Information and training provided by the owner or operator as
required by Sec. 751.511(g).
(d) Disposal records. Each person, except a consumer, who disposes
of any chrysotile asbestos and any chrysotile asbestos-containing
products or articles subject to Sec. 751.513, after November 25, 2024
must retain in one location at the headquarters of the company, or at
the facility for which the records were generated, documentation
showing any records related to any disposal of chrysotile asbestos and
any chrysotile asbestos-containing products or articles generated
pursuant to, or otherwise documenting compliance with, regulations
specified in Sec. 751.513.
(e) Retention. The documentation in this section must be retained
for 5 years from the date of generation.
[FR Doc. 2024-05972 Filed 3-27-24; 8:45 am]
BILLING CODE 6560-50-P