[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38725-38726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18620]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[FRL-5266-2]
Asbestos NESHAP Clarification of Intent
AGENCY: Environmental Protection Agency.
ACTION: Notice of clarification.
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SUMMARY: On November 20, 1990, the Federal Register published the
Environmental Protection Agency's (the Agency's) revision of the
National Emission Standard for Hazardous Air Pollutants for Asbestos
(asbestos NESHAP), 40 CFR part 61, subpart M. 55 FR 48406. Since the
publication of this revision, EPA has received several inquiries from
municipalities regarding whether the ``residential building exemption''
from the asbestos NESHAP applies to the demolition or renovation of
isolated residential buildings with four or fewer dwelling units
(``small residential buildings'') that have been declared safety
hazards or public nuisances by local governments. EPA is publishing
this notice to clarify that, in EPA's opinion, the demolition or
renovation of an isolated small residential building by any entity is
not covered by the asbestos NESHAP. This notice does not affect EPA's
policy regarding demolition by fire. However, EPA also believes that
the demolition or renovation of multiple (more than one) small
residential buildings on the same site by the same owner or operator
(or owner or operator under common control) is covered by the asbestos
NESHAP.
FOR FURTHER INFORMATION CONTACT:
Mr. Tom Ripp, United States Environmental Protection Agency (2223A),
401 M Street, SW., Washington, DC 20460, telephone (202) 564-7003.
SUPPLEMENTARY INFORMATION: This clarification does not supersede,
alter, or in any way replace the existing Asbestos NESHAP. This notice
is intended solely as guidance and does not represent an action subject
to judicial review under section 307(b) of the Clean Air Act or section
704 of the Administrative Procedure Act.
I. The Asbestos NESHAP and the ``Residential Building Exemption''
On April 6, 1973, the Agency published its initial NESHAP for
asbestos (38 FR 8820) after determining that asbestos was associated
with asbestosis and certain cancers. The initial asbestos NESHAP
covered ``any institutional, commercial and industrial building
(including apartment buildings having more than four dwelling units),
structure, facility, installation or portion thereof * * *'' 38 FR 8829
(codified at 40 CFR 61.22(d) (1973)). The NESHAP did not cover
individual residential buildings containing four or fewer dwelling
units. EPA based this ``residential building exemption'' on a National
Academy of Sciences' Report which stated ``[i]n general, single-family
residential structures contain only small amounts of asbestos
insulation.'' EPA stated that apartment houses with four or fewer
dwelling units were considered to be equivalent to single-family
residential structures. 38 FR 8821.
Since that time, EPA has revised the asbestos NESHAP on several
occasions. EPA has not substantially revised the exemption for small
residential buildings. However, EPA has stated that residential
buildings demolished or renovated as part of larger projects, for
instance, highway construction projects, were not exempt from the
NESHAP. See Letter from John S. Seitz, Director, Stationary Source
Compliance Division, U.S. EPA to Thomas S. Hadden, Supervisor, Division
of Air Pollution Control, Ohio EPA, dated March 15, 1989; letter from
Ann Pontius, U.S. EPA Region 5 to Thomas Hadden, dated September 28,
1988; letter from David Kee, Air Section, U.S. EPA to Richard Larson,
Minneapolis Housing and Redevelopment Authority, dated May 16, 1973.
II. The 1990 Revisions to the Asbestos NESHAP
On November 20, 1990, EPA published a revision to the asbestos
NESHAP. 55 FR 48406. The purpose of the revision was ``to enhance
enforcement and promote compliance with the current standard without
altering the stringency of existing controls.'' Id. The revisions
revised and added several definitions in order to clarify the
requirements of the NESHAP. The preamble accompanying the revisions
also contained clarifying information.
In particular, the 1990 revisions clarified the definition of
``facility'' to include:
Any institutional, commercial, public, industrial, or
residential structure, installation, or building (including any
structure, installation or building containing condominiums or
individual dwelling units operated as a residential cooperative, but
excluding residential buildings having four or fewer dwelling units)
* * *
Id. at 48415 (codified at 40 CFR 61.141). The 1990 amendments also
added a definition of ``installation'' that stated:
Installation means any building or structure or any group of
buildings or structures at a single demolition or renovation site
that are under the control of the same owner or operator (or owner
or operator under common control).
Id. (codified at 40 CFR 61.141). In responding to comments regarding
the ``residential building exemption,'' the preamble noted that:
EPA does not consider residential structures that are demolished
as part of a commercial or public project to be exempt from this
rule. For example, the demolition of one or more houses as part of
an urban renewal project, a highway construction project, or a
project to develop a shopping mall, industrial facility, or other
private development would be subject to the NESHAP. * * * The owner
of a home that renovates his house or demolishes it to construct
another house is not to be subject to the NESHAP.
Id. at 48412.1 Further, in response to a comment asking whether a
group of residential buildings at one location would be covered by the
rule, the preamble stated:
\1\ EPA considers demolitions planned at the same time or as
part of the same planning or scheduling period to be part of the
same project. In the case of municipalities, a scheduling period is
often a calendar year or fiscal year or the term of a contract.
A group of residential buildings under the control of the same
owner or operator is considered an installation according to the
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definition of ``installation'' and is therefore covered by the rule.
[[Page 38726]]
Id.
III. Programs to Demolish or Renovate Residential Buildings
Since the publication of the 1990 revisions to the asbestos NESHAP,
certain questions have arisen regarding whether demolitions or
renovations of residential homes that are demolished or renovated by
municipalities for reasons of public health, welfare or safety
(``nuisance abatement demolitions'') are covered by the asbestos
NESHAP.2 Several municipalities have stated that they believe such
demolitions or renovations to be excluded from the NESHAP under the
residential building exemption. Municipalities have also stated that
EPA officials have been inconsistent in their determinations of this
issue. In particular, officials from several municipalities in Florida
have asked EPA to issue a notice clarifying EPA's interpretation of the
asbestos NESHAP with regard to this issue. In addition, the House of
Representatives Report accompanying H.R. 4624 (House Report 103-555,
reported by the House Appropriations Committee), also noted these
allegedly inconsistent interpretations and directed EPA to issue a
notice of clarification that a nuisance abatement demolition or
renovation does not subject an otherwise exempt structure to the
asbestos NESHAP regulations. In an effort to clarify this issue for the
regulated community, EPA is presenting this notice giving its
interpretation of the NESHAP with regard to this issue.
\2\ Demolition of such homes typically occur after a
municipality orders a building condemned for public health or safety
reasons (e.g. condemnation of a building that is abandoned and/or in
danger of collapse). This type of demolition does not include
demolitions of buildings for the purpose of building public
facilities like highways or sports arenas.
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IV. EPA Interpretation
EPA believes that individual small residential buildings that are
demolished or renovated are not covered by the asbestos NESHAP. This is
true whether the demolition or renovation is performed by agents of the
owner of the property or whether the demolition or renovation is
performed by agents of the municipality. EPA believes that the
residential building exemption applies equally to an individual small
residential building regardless of whether a municipality is an ``owner
or operator'' for the purposes of the demolition or renovation. EPA
believes that the exemption is based on the type of building being
demolished or renovated and the type of demolition or renovation
project that is being undertaken, not the entity performing or
controlling the demolition or renovation.
However, EPA believes that the residential building exemption does
not apply where multiple (more than one) small residential buildings on
the same site 3 are demolished or renovated by the same owner or
operator as part of the same project or where a single residential
building is demolished or renovated as part of a larger project that
includes demolition or renovation of non-residential buildings. The
definition of facility specifically includes ``any residential
structure, installation or building'' but excludes only ``residential
buildings having four or fewer dwelling units'' [emphasis added]. Id.
at 48415. Specifically not excluded from the definition of facility
were residential installations. EPA believes that the fact that the
residential building exemption is limited to residential buildings, and
does not include residential installations, shows that the residential
building exemption was not designed to exempt from the NESHAP
demolitions or renovations of multiple buildings at a single site by
the same owner or operator. Moreover, to the extent the regulations are
ambiguous, EPA believes the language of the preamble to the 1990
regulations quoted above makes clear that the Agency interpreted the
residential building exemption not to include the demolition of a group
of residential buildings on the same site under the control of the same
owner or operator. The preamble also notes that demolitions of
residential buildings as a part of larger demolition projects (e.g.
construction of a shopping mall) are not excluded from the NESHAP. EPA
believes that this interpretation is consistent with the original
purpose of the residential building exemption, which was to exempt
demolitions or renovations involving small amounts of asbestos. EPA
does not believe the residential building exemption was designed to
exempt larger demolitions or renovations on a particular site, even
where small residential buildings are involved.4
\3\ The term ``site'' is not defined in the regulations and EPA
does not intend to provide any determination of the boundaries of a
``site'' in today's clarification. However, to provide guidance, EPA
notes that a ``site'' should be a relatively compact area. In EPA's
view, an entire municipality, or even a neighborhood in a
municipality, should not be considered a single site. Where an area
is made up of multiple parcels of land owned and operated by various
parties, EPA believes that parcels on the same city block may be
considered as a single site. (Where a site can not be easily defined
as a city block, the site should be a comparably compact site. In
any event, the local government should use common sense when
applying this guide.) Obviously, EPA believes that if a demolition
project involves the demolition of several contiguous city blocks,
the entire area could be considered a site. However, EPA believes
that demolition of two individual residences separated by several
city blocks should not be considered a demolition on a single site.
In EPA's view, the area of a site may be larger where the area is
owned and operated as a unitary area by a single owner/operator
(e.g. a shopping mall or amusement park).
\4\ EPA notes that 40 CFR 61.19 forbids owners and operators
from attempting to circumvent any NESHAPs by carrying out an
operation in a piecemeal fashion to avoid coverage by a standard
that applies only to operations larger than a specified size.
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While this notice clarifies EPA's belief that certain demolitions
or renovations performed by municipalities are not subject to the
asbestos NESHAP, EPA encourages municipalities (and other owners and
operators) to perform such demolitions or renovations in a manner that
provides appropriate consideration for any potential adverse health
impacts to the public. This notice applies only to the Federal asbestos
NESHAP. Other Federal, State or local agency regulations may apply.
Dated: July 17, 1995.
Richard Wilson,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 95-18620 Filed 7-27-95; 8:45 am]
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