[Federal Register Volume 59, Number 70 (Tuesday, April 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8734]


[[Page Unknown]]

[Federal Register: April 12, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 763

[OPPTS-62105B; FRL-4765-2]

 

Asbestos; Withdrawal of Rulemaking for Exemption from Asbestos 
Ban on Manufacture, Processing and Distribution in Commerce

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA has decided to withdraw the proposed rulemaking to exempt 
Omega Phase Transformations, Inc. (Omega) from processing prohibitions 
in the Asbestos Ban and Phaseout (ABPO) Rule and not to initiate 
rulemaking in response to a similar petition from Vitrifix, Inc. 
(Vitrifix). Omega and Vitrifix had petitioned EPA for exemptions from 
the ABPO Rule for thermal processes that convert asbestos-containing 
waste material into non-asbestos glass, and EPA had agreed to initiate 
rulemaking to exempt such processes from the ABPO Rule. EPA issued a 
Notice of Proposed Rulemaking in the Federal Register of June 2, 1992, 
to grant an exemption to Omega for its vitrification process. EPA has 
since decided that thermal conversion processes that destroy asbestos 
are not prohibited by the ABPO Rule. Accordingly, the exemption 
rulemaking is unnecessary.

FOR FURTHER INFORMATION CONTACT: Mike Mattheisen, Chemical Management 
Division (Mail Code 7404), Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460, 
Telephone: 202-260-7363.

SUPPLEMENTARY INFORMATION:

I. Background and Discussion

    In the Federal Register of July 12, 1989 (54 FR 29460), EPA issued 
the ABPO Rule at 40 CFR 763.160-763.179 under section 6 of the Toxic 
Substances Control Act (TSCA), 15 U.S.C. 2605, to prohibit, at staged 
intervals, the manufacture, importation, processing and distribution in 
commerce of several categories of asbestos-containing products 
identified in the ABPO Rule. One banned category is ``new uses of 
asbestos,'' which is defined in the ABPO Rule as ``commercial uses of 
asbestos not identified in Sec. 763.165 the manufacture, importation or 
processing of which would be initiated for the first time after August 
25, 1989'' (40 CFR 763.163). ``New uses of asbestos'' are banned by the 
ABPO Rule after August 27, 1990 (40 CFR 763.165(a), 763.167(a), and 
763.169(a)).
    On October 18, 1991, the United States Court of Appeals for the 
Fifth Circuit, in Corrosion Proof Fittings v. EPA, 947 F2d 1201 (5th 
Cir., 1991), vacated and remanded most of the ABPO Rule. The ban on 
``new uses of asbestos'' is unaffected by the Court's remand and 
remains in effect. For a more complete discussion of the decision in 
Corrosion Proof Fittings v. EPA, see 58 FR 58964, November 5, 1993.
    The ABPO Rule specifies that applications for exemptions for new 
uses of asbestos will be treated as petitions to amend the ABPO Rule 
pursuant to section 21 of TSCA (15 U.S.C. 2620) (See 54 FR 29464, July 
12, 1989 and 40 CFR 763.173.) Section 21 of TSCA provides, in part, 
that any person may petition EPA to initiate a proceeding for the 
issuance, amendment, or repeal of a rule issued under TSCA section 4, 
6, or 8. The petition must set forth the facts which it claims 
establish the need for the action. EPA is required to grant or deny the 
petition within 90 days after filing. If EPA grants the petition, EPA 
must promptly commence an appropriate rulemaking (15 U.S.C. 2620(a)).
    The ABPO Rule also establishes general requirements for submission 
of data that are needed for EPA decisions on all exemption 
applications, including those submitted as section 21 petitions (40 CFR 
763.173). Petitioners must submit evidence which demonstrates, among 
other requirements, that the proposed manufacture, importation, 
processing, distribution in commerce, and use, as proposed, will not 
present an unreasonable risk of injury to human health (40 CFR 
763.173(d)(1)(ix)).
    In response to requests for clarification of the ABPO Rule from the 
State of California (September 29, 1989) and Omega (October 13, 1989) 
with respect to ``processes that transform asbestos into asbestos-free 
material'' EPA responded that ``processing for commercial purposes 
asbestos-containing material (ACM) by vitrification, or other 
transformation processes, was a `new use' within the meaning of the 
[ABPO Rule].'' Therefore, it was subject to the Rule and to the 
exemption application procedures outlined in the Rule. EPA also noted 
that the ABPO Rule ``does not regulate disposal activities'' and:

    operations that transform asbestos-containing materials, as 
defined in 40 CFR 61.141, into nonasbestos material solely for 
disposal, (as an alternative disposal method under the asbestos 
NESHAP regulations), would be subject to the disposal requirements 
at 40 CFR 61.151 or 61.152, or any final standards revising the 
asbestos NESHAP under 40 CFR 61.155.

(Letter to State of California, Department of Health Services, dated 
March 29, 1990. See also, letter to Omega, dated March 30, 1990). The 
National Emission Standard for Hazardous Air Pollutants Standard for 
Operations that Convert Asbestos-containing Waste Material into Non-
asbestos (Asbestos-free) Material (the Asbestos NESHAP Standard) went 
into effect in November 1990 (40 CFR 61.155).
    On October 9, 1990, Omega submitted a TSCA section 21 petition to 
EPA requesting an exemption from the ABPO Rule's ``new use'' 
prohibitions in order to operate its vitrification process at a 
location in California. Omega's proposed process converts ACM (e.g., 
demolition debris from asbestos abatement projects) into glass. Omega 
proposed to sell the glass as aggregate for paving material, among 
other uses. In addition, the metal ingots produced from the molten 
metal waste by-product would be sold as scrap metal. The Omega 
vitrification process is a modification of glassmaking technology which 
would utilize high temperatures over 2000  deg.F to melt the asbestos 
fibers. Evaluation of the Omega process for the proposed rule indicates 
that when asbestos is exposed to temperatures over 2000  deg.F, the 
needle-like structure of asbestos fibers breaks down to form amorphous 
molten glass and asbestos fibers are destroyed. The Omega petition was 
followed by a section 21 petition from Vitrifix, Inc., on November 26, 
1990. An earlier feasibility test conducted by Vitrifix for EPA's 
Office of Air Quality Planning and Standards demonstrated that, under 
the test conditions utilizing high temperatures over 2000  deg.F, ACM 
waste material was converted into non-asbestos material.
    EPA granted Omega's and Vitrifix's section 21 petitions on January 
7, 1991, and February 20, 1991, respectively, indicating its intent to 
initiate rulemakings under TSCA section 6 to amend the ABPO Rule to 
allow Omega and Vitrifix to operate their proposed vitrification 
operations.
    On June 2, 1992 (57 FR 23183), EPA issued a proposal to amend the 
ABPO Rule to allow vitrification by Omega. EPA never issued a proposed 
rule to allow vitrification by Vitrifix. EPA has reached the 
conclusion, as explained below, that thermal processes that convert 
asbestos into non-asbestos material are not governed by the ABPO Rule. 
It was not the intent of the ABPO Rule to regulate processes that 
permanently remove asbestos from the environment. Rather, the objective 
was to prevent introduction of new asbestos into the environment.

II. Interpretation

    The ABPO Rule specifically prohibits ``processing for any use'' an 
asbestos-containing product listed in 40 CFR 763.165, including ``new 
uses of asbestos'' (40 CFR 763.167). The ABPO Rule, however, does not 
prohibit disposal or processing for disposal. Because thermal 
conversion operations destroy asbestos fibers, such operations 
constitute processing for disposal and do not constitute use of 
asbestos as contemplated by the ABPO Rule, and are, therefore, not 
regulated by the ABPO Rule. EPA is revising its initial response on the 
issue of vitrification (as set forth in EPA's March 29, 1990, letter to 
the State of California) to reconcile the function of these operations 
with the intent of the Rule.
    This interpretation is consistent with EPA's overall intent when it 
promulgated the ABPO Rule. In general, EPA developed the ABPO Rule to 
limit the introduction or continued marketing of additional asbestos 
products, rather than to regulate disposal of products that were 
already in use when the ABPO Rule was issued. In keeping with the 
overall objective to reduce entry of asbestos into commerce and into 
the environment, the ABPO Rule does not prohibit other distribution 
activities undertaken solely to dispose of asbestos. (see generally 40 
CFR 763.163).
    In some situations, thermal conversion operations may still be 
subject to the ABPO Rule. If the end product contains asbestos that has 
not been converted into glass, for example, and the end product is used 
for any purpose, the operation would be subject to the prohibition 
against processing for use in Sec. 763.167 of the ABPO Rule. In that 
case, an exemption would be necessary to engage in the activity.
    As building materials deteriorate, or as buildings are renovated or 
demolished, much of this asbestos waste will require disposal. In a 
national survey of asbestos-containing friable materials in buildings, 
conducted in 1984, EPA estimated that approximately 20 percent of all 
buildings have some asbestos-containing friable materials. EPA further 
estimated that buildings targeted in the survey contained approximately 
1.2 billion square feet of sprayed- or trowelled-on ACM (in an 
estimated range of 18,000 to 365,000 buildings), and that approximately 
16 percent (or between 239,000 - 888,000 buildings) contain asbestos 
pipe and boiler insulation. EPA also estimates that approximately 
31,000 schools contain asbestos. (Asbestos in Buildings - A National 
Survey of Asbestos-Containing Friable Materials - EPA Publication No. 
560/5-84-006, October 1984, EPA Docket No OPPTS-62105). In addition to 
building materials, asbestos is a component of automotive brakes, 
clutches and transmission components, as well as other commercial and 
industrial friction materials which are eventually discarded for 
disposal after the components' useful life. The magnitude of asbestos 
waste requiring disposal will place an increasing economic burden on 
society as landfill capacity decreases.
    By converting asbestos into glass, vitrification provides an 
alternative to land disposal of asbestos waste and produces a 
commercially useful non-asbestos product. Vitrification avoids costs of 
landfilling and of health costs associated with exposure to asbestos 
waste. These costs could include a substantial burden on the individual 
and society, including medical costs of treating asbestos-related 
diseases resulting from exposure to asbestos throughout the life cycle 
of asbestos products and disposal of asbestos waste. The asbestos 
vitrification process destroys asbestos and eliminates any risks from 
asbestos exposure which occur in the disposal and landfill stages of 
the asbestos fiber life cycle.

III. Asbestos Regulations

    Several existing regulations provide protection against asbestos 
exposures and releases from asbestos conversion operations if such 
facilities are established. Owners or operators of facilities that 
intend to commence operations to convert asbestos-containing waste 
material into non-asbestos material are subject to permit and 
performance requirements under the Asbestos NESHAP Standard and to 
certain reporting requirements under several other EPA regulations. In 
addition, such companies would be subject to the worker protection 
requirements of the Occupational Safety and Health Administration 
(OSHA) or of OSHA-approved state, or EPA asbestos worker protection 
standards.
    The Asbestos NESHAP Standard was established as an alternative to 
land disposal of asbestos waste (55 FR 48406, November 20, 1990). The 
Standard establishes permit and performance requirements, including a 
requirement to obtain EPA approval to construct a facility, as well as 
monitoring, recordkeeping, and reporting requirements. During normal 
operations, a company must demonstrate by laboratory analysis that ACM 
is completely destroyed. If laboratory testing reveals that the output 
material contains asbestos, the company must reprocess the ACM, or 
dispose of it as asbestos-containing waste material according to 40 CFR 
61.150. Continuous monitoring requirements are also imposed under 
Sec. 61.155 of the Asbestos NESHAP Standard. The Standard is designed 
to ensure that there are no visible air emissions and that the output 
material contains no asbestos.
    Asbestos thermal disposal facilities may also be subject to public 
disclosure and notification requirements under the Emergency Planning 
and Community Right-to-Know Act (EPCRA) (42 U.S.C. 11001 11050). Among 
other things, EPCRA requires emergency notification of any release of 1 
pound or more of friable forms of asbestos to the appropriate State 
Emergency Response Commission and Local Emergency Planning Committee. 
Section 313 of EPCRA requires submission of Toxics Release Inventory 
(TRI) reports to EPA and designated State officials, including the 
amount of the toxic chemical entering each environmental medium, such 
as air and water, annually. Asbestos thermal disposal facilities would 
be subject to section 313 of EPCRA only if they fall within the 
Standard Industrial Classification (SIC) codes 20-39, they employ the 
equivalent of 10 full time employees, and they manufacture, process, or 
otherwise use a listed toxic chemical in excess of the TRI reporting 
thresholds. Conversion of material containing friable forms of asbestos 
into non-asbestos glass that is distributed in commerce is subject to 
section 313 reporting if the facility otherwise meets the SIC Code and 
threshold requirements. Under the Pollution Prevention Act of 1990 (42 
U.S.C. 13101-13109), facilities that are required to file a TRI report 
under EPCRA section 313 must include with it certain additional 
information about toxic chemical source reduction and recycling. Under 
the Comprehensive Emergency Response, Compensation and Liability Act 
(CERCLA), certain releases must also be reported to the National 
Response Center and advertised in local newspapers (42 U.S.C. 9663, 
9611 (g)).
    Asbestos thermal disposal facilities are also subject to OSHA, EPA, 
or State laws for occupational exposure to asbestos in the workplace 
(see e.g., 29 CFR part 1910 and 1926 and 40 CFR 763.120-763.125). These 
laws all set permissible exposure limits to asbestos and establish 
required work practices to protect workers.
    Asbestos thermal disposal facilities must also obtain construction 
approval from other appropriate Federal, State and local authorities.

IV. Administrative Record

    EPA has established a record of those documents EPA considered in 
addressing Omega's and Vitrifix's petitions. The record consists of 
documents located in the file designated by docket control number, 
OPPTS-62105 located at the TSCA Nonconfidential Information Center 
(NCIC). A public version of the record, without any confidential 
business information, is available in the TSCA NCIC for reviewing and 
copying from noon to 4 p.m., Monday through Friday, excluding legal 
holidays, at EPA headquarters, Rm. E-G102, 401 M St., SW., Washington, 
DC 20460.

V. Conclusion

    EPA hereby withdraws the proposed rule entitled Proposed Exemption 
from Asbestos Ban on Manufacture, Processing, and Distribution in 
Commerce issued June 2, 1992 (57 FR 23183).

List of Subjects in Part 763

    Environmental protection, Administrative practice and procedure, 
Asbestos, Confidential business information, Hazardous substances, 
Imports, Intergovernmental relations, Labeling, Occupational safety and 
health, Reporting and recordkeeping requirements, Schools.

    Dated: April 5, 1994.
Carol M. Browner,
Administrator.
[FR Doc. 94-8734 Filed 4-11-94; 8:45 am]
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