FR Doc 04-16447

[Federal Register: July 20, 2004 (Volume 69, Number 138)]
[Rules and Regulations]
[Page 43322-43325]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jy04-10]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 61

[OAR-2002-0082; FRL 7789-5]

National Emission Standards for Hazardous Air Pollutants for
Asbestos

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendments.

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SUMMARY: On September 18, 2003 (68 FR 54790), EPA issued amendments to
the national emission standards for hazardous air pollutants (NESHAP)
for asbestos under section 112 of the Clean Air Act (CAA). This action
corrects typographical errors in Table 1 to the amendments that were
promulgated on September 18, 2003.
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C.
553(b)(B), provides that, when an agency for good cause finds that
notice and public procedure are impracticable, unnecessary, or contrary
to the public interest, the agency may issue a rule without providing
notice and an opportunity for public comment. We have determined that
there is good cause for making this action final without prior proposal
and opportunity for comment because the corrections to the final rule
do not change the requirements of the final rule. They are minor
technical corrections and are not controversial. Thus, notice and
public procedure are unnecessary. We find that this constitutes good
cause under 5 U.S.C. 553(b)(B) (see also the final sentence of section
307(d)(1) of the Clean Air Act (CAA), 42 U.S.C. 7607(d)(1), indicating
that the good cause provisions of the APA continue to apply to this
type of rulemaking under the CAA).

DATES: The final rule is effective on August 19, 2004.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. OAR 2002-0082. All documents in the docket are listed in
the EDOCKET index at http://www.epa.gov/edocket. Although listed in the

index, some information is not publicly available, i.e., confidential
business information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in EDOCKET or in hard copy at the EPA
Air Docket. This Docket Facility is open from 8:30 a.m. to 4:30 p.m.
e.s.t., Monday through Friday, excluding legal holidays. The EPA Air
Docket is located at the EPA Docket Center, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The 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, and the telephone number for the EPA Air Docket is (202) 566-
1742.

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.

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SUPPLEMENTARY INFORMATION: Regulated Entities: Entities potentially
regulated by this action include:

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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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World wide Web (WWW). In addition to being available in the docket,
an electronic copy of this action will also be available on the WWW
through the Technology Transfer Network (TTN). Following signature, a
copy of this action will be posted on EPA's 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.

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 rule contained regulatory provisions for the labeling of asbestos
waste that cited to regulations then in place from the Occupational
Safety and Health Administration (OSHA) for proper labeling of asbestos
waste. Subsequent to the publication of that rule, OSHA renumbered the
provisions cited in the asbestos NESHAP.
On September 18, 2003, the Federal Register published EPA's
amendments to the National Emission Standards for Hazardous Air
Pollutants for Asbestos (asbestos NESHAP), 40 CFR part 61, subpart M,
(55 FR 48406). Those amendments correctly identify the current OSHA
regulatory citations for properly labeling asbestos waste that is
managed under the asbestos NESHAP. However, typographical errors
occurred in Table 1: Cross Reference to Other Asbestos Regulations in
the Federal Register publication of that notice and today's final rule
amendments correct the errors.

II. Final Rule Amendments to the Asbestos NESHAP

The current OSHA permissible exposure limit (PEL) is 0.1 fibers per
cubic centimeter (f/cc). However, Table 1 found at 40 CFR 61.156
erroneously identifies the OSHA PEL as 0.2 f/cc. Today's action
corrects Table 1 at 40 CFR 61.156, to reference the OSHA regulation but
the NESHAP will not reference the current level of the PEL. Therefore,
the section of Table 1 which is being corrected now reads as follows:

We find for good cause under 5 U.S.C. 553(b)(B) that notice and
comment procedures are unnecessary, and we are not soliciting comments
on the amendments. The corrections are nonsubstantive in nature and do
not affect the requirements for subject persons under the regulations.
The regulations will continue to cite to the same OSHA regulations, and
merely revise commentary statements accompanying the citations. In
addition, the changes are noncontroversial and simply correct two
typographical errors. Finally, the final rule amendments raise no new
substantive issues beyond those raised in the previous direct final
rule and notice of proposed rulemaking published on September 18, 2003.
The EPA received no adverse comments regarding those notices, so an
additional period of public comment is unnecessary.

III. Statutory and Executive Order Reviews

Under Executive Order 12866, Regulatory Planning and Review (58 FR
51735, October 4, 1993), this action is not a ``significant regulatory
action'' and is, therefore, not subject to review by the Office of
Management and Budget. This action is not a ``major rule'' as defined
by 5 U.S.C. 804(2). The final rule does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.). Because EPA has made a ``good cause''
finding that this action is not subject to notice and comment
requirements under the APA or any other statute, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). In addition, this action
does not significantly or uniquely affect small governments or impose a
significant intergovernmental mandate, as described in sections 203 and
204 of

[[Page 43324]]

the Unfunded Mandates Reform Act. The final rule does not have
substantial direct effects on the States, or on the relationship
between the national government and the States, as specified in
Executive Order 13132, Federalism (64 FR 43255, August 10, 1999).
Today's action also does not significantly or uniquely affect the
communities of tribal governments, as specified by Executive Order
13175, Consultation and Coordination with Indian Tribal Governments (65
FR 67249, November 6, 2000). Also, the final rule is not subject to
Executive Order 13045, Protection of Children from Environmental Health
and Safety Risks (62 FR 1985, April 23, 1997) because it is not
economically significant. The final rule is not subject to Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because
it is not a significant regulatory action under Executive Order 12866.
The final rule does not involve changes to the technical standards
related to test methods or monitoring methods; thus the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272) do not apply. Also, the final rule does not
involve special consideration of environmental justice-related issues
as required by Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994). The EPA has complied with
Executive Order 12630, Governmental Actions and Interference With
Constitutionally Protected Property Rights (Takings) (53 FR 8859, March
15, 1988) by examining the takings implications of the final rule in
accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the Executive Order. In issuing the final rule, EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct, as required by section 3 of Executive Order 12988, Civil
Justice Reform (61 FR 4729, February 7, 1996). 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 the final 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 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, Asbestos, Air pollution control,
Hazardous substances.

Dated: July 13, 2004.
Robert Brenner,
Acting Assistant Administrator, Office of Air and Radiation.

0
For the reasons stated in the preamble, title 40, chapter I, part 61 is
amended as follows:
0
1. The authority citation for part 61 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

0
2. Section 61.156 is amended by revising Table 1 to read as follows:

Sec. 61.156 Cross-reference to other asbestos regulations.

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Table 1.--Cross-Reference to Other Asbestos Regulations
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Agency CFR citation Comment
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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, 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, permissible exposure level.
MSHA.................................... 30 CFR part 56, subpart D.. Specifies exposure 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. 04-16447 Filed 7-19-04; 8:45 am]

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