[Federal Register: September 18, 2003 (Volume 68, Number 181)]
[Rules and Regulations]
[Page 54789-54793]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se03-15]
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Part II
Environmental Protection Agency
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40 CFR Part 61
National Emission Standards for Hazardous Air Pollution for Asbestos;
Direct Final Rule and Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[OAR-2002-0082, FRL-7561-2]
National Emission Standards for Hazardous Air Pollutants for
Asbestos
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule; amendments.
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SUMMARY: On November 20, 1990, the EPA issued national emission
standards for hazardous air pollutants (NESHAP) for asbestos under
section 112 of the Clean Air Act (CAA). This action will amend the
citation for labeling containers of asbestos waste materials, based on
requirements in the Occupational Safety and Health Administration
(OSHA) asbestos standard for the construction industry for proper
labeling of asbestos waste. The amendments are being made to correctly
cite the appropriate numbering of the provisions in the OSHA
regulations. We are making the amendments by direct final rule, without
prior proposal, because we view the revisions as noncontroversial and
anticipate no adverse comments.
DATES: The direct final rule is effective on November 17, 2003 without
further notice, unless EPA receives adverse written comment by October
20, 2003 or if a public hearing is requested by September 29, 2003. If
EPA receives such comments, it will publish a timely withdrawal in the
Federal Register indicating which provisions will become effective and
which provisions are being withdrawn due to adverse comment.
ADDRESSES: Comments. By U.S. Postal Service, send comments (in
duplicate, if possible) to: Air and Radiation Docket Center (6102T),
Attention Docket Number OAR-2002-0082, EPA West, Room B-108, 1200
Pennsylvania Avenue, NW, Washington, DC 20460. In person or by courier,
deliver comments (in duplicate, if possible) to: Air and Radiation
Docket Center (6102T), Attention Docket Number OAR-2002-0082, U.S. EPA,
1301 Constitution Avenue, NW., Room B-108, Washington, DC 20460. We
request that a separate copy of each public comment also be sent to the
contact person listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Ms. Susan Fairchild, U.S. EPA,
Minerals and Inorganic Chemicals Group (C-504-05), Emission Standards
Division, Office of Air Quality Planning and Standards, Research
Triangle Park, North Carolina 27711, telephone number (919) 541-5167,
facsimile number (919) 541-5600, electronic mail address:
fairchild.susan@epa.gov.
SUPPLEMENTARY INFORMATION: Regulated Entities. Entities potentially
regulated by this action are owners and operators of: asbestos mills,
fabricating and manufacturing operations that involve asbestos or
asbestos-containing products, demolition and renovation operations
involving asbestos-containing building materials, operations in which
asbestos-containing materials are spray applied, and active and
inactive asbestos waste disposal sites.
Categories and entities potentially regulated by this action
include those listed in the following table:
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Category NAICS Examples of regulated entities
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Industrial...................................... 23 Construction.
Industrial...................................... 23594 Wrecking and Demolition Contractors.
Industrial...................................... 562112 Hazardous Waste Collection.
Industrial...................................... 562211 Hazardous Waste Treatment and Disposal.
Industrial...................................... 5629 Remediation and Other Waste Management Services.
Industrial...................................... 56191 Packaging and Labeling Services.
Industrial...................................... 332992 Small Arms Ammunition Manufacturing.
Industrial...................................... 33634 Motor Vehicle Systems Manufacturing.
Industrial...................................... 327 Nonmetallic Mineral Product Manufacturing.
Industrial...................................... 3279 Other Nonmetallic Mineral Product Manufacturing.
Industrial...................................... 32791 Abrasive Product Manufacturing.
Industrial...................................... 32799 All Other Nonmetallic Mineral Product Manufacturing.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility is regulated by this action,
you should examine the applicability criteria in Sec. 61.140 of the
final rule. If you have any questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
Docket. The EPA has established an official public docket for this
action under docket number OAR-2002-0082. The public docket consists of
the documents specifically referenced in this action, any public
comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the Air Docket in the EPA Docket Center, Room B108, 1301 Constitution
Ave., NW., Washington, DC 20460. The EPA Docket Center Public Reading
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number for the Public Reading
Room is (202) 566-1744. The telephone number for the Air Docket is
(202) 566-1742.
Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index of the contents of the official public docket, and
access those documents in the public docket that are available
electronically. Once in the system, select ``search'' and key in the
appropriate docket identification number.
Comments. We are publishing the direct final rule without prior
proposal because we view the amendments as noncontroversial and do not
anticipate adverse comments. We consider the
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changes to be noncontroversial because the only effect is to correctly
cite the appropriate OSHA labeling requirements referenced in the
asbestos NESHAP for labeling containers of asbestos waste. The
revisions adopted by the direct final rule retain the labeling
requirements in 40 CFR 61.150. In the Proposed Rules section of this
Federal Register, we are publishing a separate document that will serve
as the proposal in the event that timely and significant adverse
comments are received.
If we receive any relevant adverse comments on the amendments, we
will publish a timely withdrawal in the Federal Register informing the
public which provisions will become effective and which provisions are
being withdrawn due to adverse comment. We will address all public
comments in a subsequent final rule based on the proposed rule. Any of
the distinct amendments in the direct final rule for which we do not
receive adverse comment will become effective on the date set out
above. We will not institute a second comment period on the direct
final rule. Any parties interested in commenting must do so at this
time.
Worldwide Web (www). In addition to being available in the docket,
an electronic copy of this action will also be available through the
WWW. Following signature, a copy of this action will be posted on EPA's
Technology Transfer Network (TTN) policy and guidance page for newly
proposed or promulgated rules: http://www.epa.gov/ttn/oarpg. The TTN at
EPA's web site provides information and technology exchange in various
areas of air pollution control. If more information regarding the TTN
is needed, call the TTN HELP line at (919) 541-5384.
Judicial Review. Under section 307(b)(1) of the CAA, judicial
review of the direct final rule is available only by filing a petition
for review in the U.S. Court of Appeals for the District of Columbia
Circuit by November 17, 2003. Under section 307(d)(7)(B) of the CAA,
only an objection to the direct final rule that was raised with
reasonable specificity during the period for public comment can be
raised during judicial review. Moreover, under section 307(b)(2) of the
CAA, the requirements established by the direct final rule may not be
challenged separately in any civil or criminal proceedings brought by
the EPA to enforce these requirements.
Outline. The following outline is provided to aid in reading this
preamble to the direct final rule.
I. Background
II. Technical Amendment to the Asbestos NESHAP
A. How are we changing the labeling citations?
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
I. Background
On November 20, 1990, the Federal Register published EPA's revision
of the National Emission Standards for Hazardous Air Pollutants for
Asbestos (asbestos NESHAP), 40 CFR part 61, subpart M (55 FR 48406).
That final rule contained regulatory provisions for the labeling of
asbestos waste that cited to regulations then in place from OSHA for
proper labeling of asbestos waste. Subsequent to the publication of
that rule, OSHA has renumbered the provisions cited in the asbestos
NESHAP. The direct final rule amendments identify the current OSHA
regulatory citations for properly labeling asbestos waste that is
managed under the asbestos NESHAP.
II. Technical Amendment to the Asbestos NESHAP
The current OSHA citations identified in 40 CFR 61.150 (a)(1)(iv)
and Table 1 found at 40 CFR 61.156 do not correctly identify the
appropriate OSHA regulations. The direct final rule amendments will
correct the paragraph and table to conform with the applicable and
appropriate OSHA regulations.
A. How Are We Changing the Labeling Citations?
When EPA last revised the asbestos NESHAP, EPA's regulations
regarding labeling (40 CFR 61.150(a)(1)(iv) and Table 1 found at 40 CFR
61.156) cited to regulations then in place from the Occupational Safety
and Health Administration (OSHA) for proper labeling of asbestos waste.
Those citations were 29 CFR 1910.1001(j)(2) and 1926.58(k)(2)(iii).
Since that time, OSHA has renumbered the regulations cited in the
NESHAP for labeling asbestos waste (see 59 FR 40964, August 10, 1994;
and 60 FR 33973, June 29, 1995). The asbestos NESHAP regulation at 40
CFR 61.150(a)(1)(iv) will now cite 29 CFR 1910.1001(j)(4) and
1926.1101(k)(8). In Table 1-Cross Reference to Other Asbestos
Regulations, the left hand column under OSHA, the citation 28 CFR
1926.58 will be deleted and replaced with 29 CFR 1101.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 5173, October 4, 1993), the EPA
must determine whether the regulatory action is ``significant'' and,
therefore, subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Executive Order defines
``significant regulatory action'' as one that is likely to result in
standards that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect, in a material way, the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that the amendments do not constitute a ``significant
regulatory action'' because they do not meet any of the above criteria.
Consequently, this action was not submitted to OMB for review under
Executive Order 12866.
B. Paperwork Reduction Act
The information collection requirements in the final rule were
submitted to and approved by OMB under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. and assigned OMB control No. 2060-0101. An
Information Collection Request (ICR) document was prepared by EPA (ICR
No. 0111.10) and a copy may be obtained from Susan Auby by mail at U.S.
EPA, Office of Environmental Information, Collection Strategies
Division (2822T), 1200 Pennsylvania Avenue, NW, Washington DC 20460, by
e-mail at
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auby.susan@epamail.epa.gov, or by calling (202) 566-1672. A copy may
also be downloaded from the Internet at http://www.epa.gov/icr.
Today's action consists primarily of clarifications to the final
rule that impose no new information collection requirements on industry
or EPA. For that reason, we have not revised the ICR for the existing
rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq. generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedures Act or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. The EPA has determined that the amendments will not have a
significant economic impact on a substantial number of small entities.
For purposes of assessing the impact of today's technical amendments on
small entities, small entities are defined as: (1) A small business
that has fewer than 750 employees; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's direct final rule
amendments on small entities, the EPA has concluded that this action
will not have a significant impact on a substantial number of small
entities. The direct final rule amendments will not impose any new
requirements on small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, the
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires the EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows the EPA
to adopt an alternative other than the least costly, most cost-
effective, or least burdensome alternative if the Administrator
publishes with the final rule an explanation of why that alternative
was not adopted. Before the EPA establishes any regulatory requirements
that may significantly or uniquely affect small governments, including
tribal governments, it must have developed under section 203 of the
UMRA a small government agency plan. The plan must provide for
notifying potential affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
The EPA has determined that the direct final rule amendments do not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in aggregate,
or the private sector in any one year, nor does the rule significantly
or uniquely impact small governments, because it contains no
requirements that apply to such governments or impose obligations upon
them. Thus, the requirements of the UMRA do not apply to the direct
final rule amendments.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
The direct final rule amendments do not have federalism
implications. The amendments change only the citation of the labeling
requirements for asbestos waste and do not modify existing or create
new responsibilities among EPA Regional Offices, States, or local
enforcement agencies. The technical amendments will not have new
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to the direct final rule amendments.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Government
Executive Order 13175 (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' The direct final rule amendments do
not have tribal implications as specified in Executive Order 13175.
They would not have substantial direct effects on tribal governments,
on the relationship between the Federal government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes, as specified in Executive Order
13175. Thus, Executive Order 13175 does not apply to the direct final
rule amendments.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. The direct final rule amendments
are not subject to Executive Order 13045 because they do not establish
an environmental standard intended to mitigate health or safety risks.
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H. Executive Order 13211: Actions That Significantly Affect Energy,
Supply, Distribution, or Use
The direct final rule amendments are not subject to Executive Order
13211 (66 FR 28355, May 22, 2001) because they are not a significant
regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Because today's action contains no new test methods, sampling
procedures or other technical standards, there is no need to consider
the availability of voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. The direct final
rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 61
Environmental protection, Air pollution control, Hazardous
substances.
Dated: September 12, 2003.
Marianne L. Horinko,
Acting Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, part 61 is
amended as follows:
PART 61--[AMENDED]
0
1. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart M--[AMENDED]
0
2. Section 61.150 is amended by revising paragraph (a)(1)(iv) to read
as follows:
Sec. 61.150 Standard for waste disposal for manufacturing,
fabricating, demolition, renovation, and spraying operations.
* * * * *
(a) * * *
(1) * * *
(iv) Label the containers or wrapped materials specified in
paragraph (a)(1)(iii) of this section using warning labels specified by
Occupational Safety and Health Standards of the Department of Labor,
Occupational Safety and Health Administration (OSHA) under 29 CFR
1910.1001(j)(4) or 1926.1101(k)(8). The labels shall be printed in
letters of sufficient size and contrast so as to be readily visible and
legible.
* * * * *
0
3. Section 61.156 is amended by revising Table 1 to read as follows:
Sec. 61.156 Cross-reference to other asbestos regulations.
* * * * *
Table 1.--Cross-Reference to Other Asbestos Regulations
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Agency CFR citation Explanation
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EPA............................... 40 CFR part 763, subpart E. Requires schools to inspect for asbestos and
implement response actions and submit asbestos
management plans to States. Specifies use of
accredited inspectors, air sampling methods,
and waste disposal procedures.
40 CFR part 427............ Effluent standards for asbestos manufacturing
source categories
40 CFR part 763, subpart G. Protects public employees performing asbestos
abatement work in States not covered by OSHA
asbestos standard.
OSHA.............................. 29 CFR 1910.1001........... Worker protection measures--engineering
controls, worker training, labeling,
respiratory protection, bagging of waste, 0.2
f/cc permissible exposure level.
29 CFR 1926.1101........... Worker protection measures for all construction
work involving asbestos, including demolition
and renovation work practices, worker
training, bagging of waste, 0.2 f/cc
permissible exposure level.
MSHA.............................. 30 CFR part 56, subpart D.. Specifies exposures limits, engineering
controls, and respiratory protection measures
for workers in surface mines.
30 CFR part 57, subpart D.. Specifies exposure limits, engineering
controls, and respiratory protection measures
for workers in underground mines.
DOT............................... 49 CFR parts 171 and 172... Regulates the transportation of asbestos-
containing waste material. Requires waste
containment and shipping papers.
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[FR Doc. 03-23846 Filed 9-17-03; 8:45 am]
BILLING CODE 6560-50-P