[Federal Register Volume 67, Number 61 (Friday, March 29, 2002)]
[Proposed Rules]
[Pages 15134-15138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7467]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 58 and 72

RIN 1219-AB24


Measuring and Controlling Asbestos Exposure

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Advance notice of proposed rulemaking; notice of public 
meetings; notice of close of record.

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SUMMARY: We, the Mine Safety and Health Administration (MSHA), are 
requesting information from the public concerning ways to increase 
protection to miners when they are working in environments where 
asbestos is present. We are concerned that miners may be exposed to 
asbestos at mining operations with the ore bodies containing asbestos. 
There is also a potential exposure at mine facilities with installed 
asbestos-containing material which may be disturbed. Miners who are 
exposed may also bring the substance home on their persons and clothes, 
and in their automobiles.
    Exposure to asbestos can cause asbestosis, mesothelioma, lung 
cancer, and cancers of the digestive system. A recent report by the 
U.S. Department of Labor's Office of the Inspector General (OIG) 
recommended that MSHA lower its existing Permissible Exposure Limit 
(PEL) for asbestos to a more protective level and address take-home 
contamination from asbestos. The report also recommended that MSHA use 
Transmission Electron Microscopy (TEM) instead of Phase Contrast 
Microscopy (PCM) to analyze fiber samples that may contain asbestos. We 
intend to use the submitted information to help determine how we should 
proceed to address these issues.
    We are also announcing in this document our intent to hold six (6) 
public meetings to allow early participation in the rulemaking by 
interested parties.

DATES: Comments on the advance notice of proposed rulemaking (ANPRM) 
must be received on or before June 27, 2002.
    The public meeting dates and locations are listed in the Public 
Meetings section below under SUPPLEMENTARY INFORMATION.
    You do not have to submit a written request to speak. There will be 
a sign-up sheet at each of the meeting locations. Speakers will speak 
in the order that they sign in. Speakers may also present information 
to the MSHA panel for inclusion in the rulemaking record.
    The rulemaking record will close June 27, 2002.

ADDRESSES: Comments on the ANPRM may be transmitted by electronic mail, 
fax, or mail. Comments by electronic mail must be clearly identified as 
pertaining to this ANPRM and sent to: [email protected]. Comments by 
fax must be clearly identified and sent to: MSHA, Office of Standards, 
Regulations, and Variances, 703-235-5551. Comments by mail must be 
clearly identified and sent to: MSHA, Office of Standards, Regulations, 
and Variances, Room 631, 4015 Wilson Boulevard, Arlington, VA 22203-
1984.
    The public meeting dates and locations are listed in the Public 
Meetings section below under SUPPLEMENTARY INFORMATION.
    This notice is available on our Web page at http://www.msha.gov, 
under Statutory and Regulatory Information. We intend to place the 
public comments on our website within five (5) working days after we 
receive them.

FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director; 
Office of Standards, Regulations, and Variances; MSHA, 4015 Wilson 
Boulevard, Arlington, Virginia 22203-1984. Mr. Nichols can be reached 
at [email protected] (e-mail), (703) 235-1910 (Voice), or 703-
235-5551 (Fax).

[[Page 15135]]


SUPPLEMENTARY INFORMATION:

I. Public Meetings

    The public meetings will be held on the following dates and 
locations:

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              Date                      Location             Phone
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April 30th......................  Holiday Inn 1901        (434) 977-7700
                                   Emmet Street
                                   Charlottesville,
                                   VA 22901.
May 2nd.........................  Ramada Inn 164 Fort     (412) 833-5300
                                   Couch Road
                                   Pittsburgh, PA
                                   15241.
May 14th........................  Days Inn 4212 W         (509) 747-2021
                                   Sunset Blvd
                                   Spokane, WA 99224.
May 16th........................  Hampton Inn &           (707) 469-6200
                                   Suites 800 Mason
                                   Street Vacaville,
                                   CA 95687.
May 29th........................  Best Western 90 E       (315) 386-8522
                                   Main Street
                                   Canton, NY 13617.
June 12th.......................  Days Inn 701            (218) 744-2703
                                   Hattrick Ave
                                   Virginia, MN 55734.
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    The public meetings will begin at 9:00 a.m. and end after the last 
speaker appears; and in any event, not later than 5:00 p.m. each day.

II. Background

Regulatory History

    Our asbestos regulations date to 1967 and are based on the former 
U.S. Bureau of Mines standard of 5 mppcf (million particles per cubic 
foot of air). In 1969, the Bureau proposed and finalized a 2 mppcf and 
12 fibers/ml (milliliter) standard. In 1970, the Bureau proposed to 
lower the limit to 5 fibers/ml, which was promulgated in 1974. We 
issued our current standard of 2 fibers/cc (cubic centimeter) in 1976 
for coal mining and 2 fiber/ml in 1978 for metal and nonmetal mining. 
In 1989, we proposed as part of our Air Quality rulemaking to lower the 
PEL for asbestos to 0.2 fibers/cc (cubic centimeter), in line with 
then-current levels promulgated by the Occupational Safety and Health 
Administration (OSHA) in its Air Contaminants rulemaking. However, an 
appeals court decision invalidated OSHA's generic rulemaking approach, 
which had grouped categories of substances with similar properties 
under a single rulemaking. The Court ruled that the PEL for each 
substance must be supported by substantial scientific evidence of 
significant risk of material impairment of health, as if each substance 
were the subject of a separate substance-specific rule. Since we used 
an approach similar to OSHA's in our Air Quality proposed rule, we 
believed our rule would be subject to similar legal scrutiny. For this 
and other reasons, the air contaminants portion of the Air Quality 
proposed rule has not been finalized.
    In 1994, OSHA promulgated a revised substance-specific asbestos 
standard that lowered the PEL and the short-term exposure limit to an 
eight (8) hour time-weighted average limit of 0.1 f/cc of air and to 
1.0 f/cc as averaged over a sampling period of thirty (30) minutes. 
These lowered limits reflected scientific evidence of increased 
asbestos-related disease risk to asbestos-exposed workers.
    MSHA's existing rules at 30 CFR 56.5001(b) and 57.5001(b) states:

    The 8-hour time-weighted average airborne concentration of 
asbestos dust to which employees are exposed shall not exceed 2 
fibers per milliliter greater than 5 microns in length, as 
determined by the membrane filter method at 400-450 magnification (4 
millimeter objective) phase contrast illumination. No employees 
shall be exposed at any time to airborne concentrations of asbestos 
fibers in excess of 10 fibers longer than 5 micrometers, per 
milliliter of air, as determined by the membrane filter method over 
a minimum sampling time of 15 minutes. ``Asbestos'' is a generic 
term for a number of hydrated silicates that, when crushed or 
processed, separate into flexible fibers made up of fibrils. 
Although there are many asbestos minerals, the term ``asbestos'' as 
used herein is limited to the following minerals: chrysotile, 
amosite, crocidolite, anthophylite asbestos, tremolite asbestos, and 
actinolite asbestos.

    Asbestos is also covered in an existing coal rule for surface coal 
mines and surface work areas of underground coal mines under 30 CFR 
71.702. The rule states:

    (a) The 8-hour average airborne concentration of asbestos dust 
to which miners are exposed shall not exceed two fibers per cubic 
centimeter of air. Exposure to a concentration greater than two 
fibers per cubic centimeter of air, but not to exceed 10 fibers per 
cubic centimeter of air, may be permitted for a total of 1 hour each 
8-hour day. As used in this subpart, the term asbestos means 
chrysotile, amosite, crocidolite, anthophylite asbestos, tremolite 
asbestos, and actinolite asbestos but does not include nonfibrous or 
nonasbestiform minerals. (b) The determination of fiber 
concentration shall be made by counting all fibers longer than 5 
micrometers in length and with a length-to-width ratio of at least 3 
to 1 in at least 20 randomly selected fields using phase contrast 
microscopy at 400-450 magnification.

Events Leading up to the Inspector General's Recommendations

    In 1980, we requested that the National Institute for Occupational 
Safety and Health (NIOSH) investigate health problems at vermiculite 
operations, including one in Libby, Montana. The results of the NIOSH 
study were published in 1986 and indicated very high occupational 
exposure prior to 1974 at the Libby operation. The highest exposures 
were in the mill. In 1974, the mine began to use a wet process to 
concentrate vermiculite in the mill, and exposures dropped markedly. 
The study also pointed out an increased risk of lung cancer among the 
miners.
    In November 1999, a Seattle newspaper published a series of 
articles on the unusually high incidence of asbestos-related illnesses 
and fatalities among individuals who had lived in Libby, Montana. The 
miners employed at the vermiculite mine in Libby, which produced 
approximately 89 percent of the world's supply of vermiculite from 1924 
until 1991, were exposed to asbestos through the processing of ore and 
inadvertently carried the dust home on their clothes and in their 
personal vehicles, thereby continuing to expose themselves and family 
members. Because MSHA had jurisdiction over the mine, the OIG undertook 
an evaluation of our role in the Libby situation.

OIG Findings and Recommendations

    The findings and recommendations of the OIG were published in a 
report dated March 22, 2001. The OIG found that MSHA had conducted 
regular inspections and personal exposure sampling at the Libby mine. 
The OIG concluded: ``we do not believe that more inspections or 
sampling would have prevented the current situation in Libby.'' The 
report made several recommendations to MSHA, three of which would 
require rulemaking. The OIG recommended that MSHA: (1) Lower the 
existing PEL to a more protective level; (2) use a more sensitive 
method, Transmission Electron Microscopy (TEM), to quantify fibers in 
our samples, rather than the Phase Contrast Microscopy (PCM) method 
currently used; and (3) address take-home contamination from asbestos.

[[Page 15136]]

Reducing the PEL

    A finding of OSHA's 1984 risk assessment was that lowering the TWA 
PEL from 2 f/cc to 0.2 f/cc reduced the asbestos cancer mortality risk 
from lifetime exposure from 64 to 6.7 deaths per 1,000 exposed workers, 
respectively. OSHA estimated that the incidence of asbestosis would be 
5 cases per 1,000 workers exposed for a working lifetime under the TWA 
PEL of 0.2 f/cc. In 1994, OSHA promulgated a revised substance-specific 
standard that lowered the asbestos PEL to an eight (8) hour time-
weighted average limit of 0.1 f/cc of air. It also lowered the short-
term exposure limit to 1.0 f/cc as averaged over a sampling period of 
thirty (30) minutes. These lowered limits reflected scientific evidence 
of significant, asbestos-related disease risk at existing exposure 
levels. OSHA's risk assessment also showed that reducing exposure to 
0.1 f/cc would further reduce, but not eliminate, significant risk. The 
excess cancer risk at that level would be reduced to a lifetime risk of 
3.4 per 1,000 workers. These data indicate that if we adopt OSHA's 
asbestos PEL, the level of risk of asbestos-related diseases would be 
reduced substantially.

Analytical Method

    At least two methods are generally used to analyze asbestos in air 
samples: Phase Contrast Microscopy (PCM) and Transmission Electron 
Microscopy (TEM). MSHA uses the PCM method. A difference between the 
two methods is the level of magnification available to identify and 
count fibers. The PCM method magnifies fibers between 400 and 450 fold 
whereas the TEM method magnifies fibers 20,000 fold or greater. This 
increased magnification allows for the mineralogical identification of 
the fiber and allows a more accurate count of asbestos fibers for 
purposes of evaluating compliance with the PEL. OSHA uses PCM in their 
method ID-160 to measure asbestos in air. The NIOSH Manual of 
Analytical Methods (NMAM) includes asbestos methods 7400 and 7402. 
Method 7400 is a PCM procedure, equivalent to the OSHA methods. Method 
7402 uses TEM to identify fibers. The OIG recommended that MSHA use TEM 
to analyze asbestos samples.

Take-Home Contamination

    Workers can carry hazardous substances home from work on their 
clothes, bodies, tools, and other items. They can unknowingly expose 
themselves and their families to these substances, causing various 
health effects. In our 1989 Air Quality proposed rule, we addressed 
take-home contamination. As proposed, miners would have been required 
to wear protective clothing and other personal protective equipment 
before entering areas containing asbestos. They would have also been 
required to remove their protective clothing and store them in adequate 
containers to be disposed of or decontaminated by the operator. This is 
a common practice when workers are exposed to particularly hazardous 
materials, such as carcinogens, in carrying out their regular job 
duties. The OIG recommended that similar requirements be incorporated 
into a new asbestos rule. OSHA, NIOSH, MSHA, and the Department of 
Labor OIG have addressed the issue of take-home contamination.
OSHA
    The OSHA asbestos standards address protective work clothing and 
equipment (i.e., provision and use; removal and storage; cleaning and 
replacement) and hygiene facilities and practices (i.e., change rooms; 
showers; lunchrooms) to prevent take-home contamination [OSHA: 29 CFR 
1910.1001 and 29 CFR 1926.58].
NIOSH
    The Workers' Family Protection Act of 1992 (Public Law 102-522, 29 
U.S.C. 671a) directed NIOSH to study contamination of workers' homes by 
hazardous substances (including asbestos) transported from the 
workplace [NIOSH: ``Protect Your Family: Reduce Contamination at 
Home.'' DHHS (NIOSH) Publication No. 97-125. NIOSH, Cincinnati, OH 
(1997)]. The NIOSH study documented cases of home contamination from 28 
countries and 36 states in the United States. Reported cases covered a 
wide variety of materials (including asbestos), industries, and 
occupations.
    NIOSH discussed the prevention of take-home contamination from 
asbestos [NIOSH (1997)]. The means by which hazardous substances 
(including asbestos) have reached workers' homes and families include 
the following: work clothing; tools and equipment; other items taken 
home from work; the worker's body; cottage industries (i.e., work 
performed at home); and family visits to the workplace. Asbestos 
reaching workers' homes has occurred worldwide, resulting in all forms 
of asbestos disease among workers' family members, including over 100 
identified deaths from mesothelioma in the United States.
MSHA
    Our 1989 proposed rule on air quality delineated provisions for the 
use of protective clothing and equipment and hygiene facilities and 
practices to minimize take-home contamination from asbestos [54 FR 
35760, August 29, 1989]. Due to the long-term health risks, carcinogens 
like asbestos warrant special safety requirements. Under the proposed 
rule, miners would have had to wear full-body protective clothing 
(e.g., smocks, coveralls, or long-sleeved shirts and pants and other 
personal protective equipment) before entering an area in which 
asbestos-containing ore or material were processed or handled. Upon 
exiting such areas, miners would also have been required to remove 
their protective clothing and equipment and have them stored in 
impervious (i.e., air-tight) containers, which would either be disposed 
of or decontaminated by the employer. Finally, miners would have had to 
thoroughly cleanse themselves and shower upon leaving at the end of the 
workday. NIOSH stated that these measures are effective in reducing or 
eliminating take-home contamination \1\.
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    \1\ NIOSH: Report to Congress on Workers' Home Contamination 
Study Conducted Under The Workers' Family Protection Act (29 U.S.C. 
671a). DHHS (NIOSH) Publication No. 95-123. NIOSH, Cincinnati, OH 
(September 1995).
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Department of Labor Office of the Inspector General
    The Department of Labor OIG supported the development and 
implementation of special safety requirements (e.g., availability, 
training, and proper use of personal protective clothing and equipment; 
appropriate storage, disposal, and decontamination of personal 
protective clothing and equipment; suitable hygiene facilities and 
practices) for asbestos and vermiculite mining and milling [USDOL: 
Evaluation of MSHA's Handling of Inspections at the W.R. Grace & 
Company Mine in Libby, Montana. Report No. 2E-06-620-0002, March 22, 
2001. USDOL, Office of the Inspector General, Office of Analysis, 
Complaints and Evaluations, Washington, DC (2001).]

MSHA's Asbestos Field Sampling and Awareness of Asbestos Hazards

    Recently, we adopted new sampling techniques and have increased the 
scope of sampling for airborne asbestos fibers at mines in an attempt 
to better determine miners' exposure levels to asbestos. Our efforts 
have included taking samples at all existing vermiculite, taconite, 
talc, and other mines to determine whether asbestos is

[[Page 15137]]

present and at what levels. Since the Spring of 2000, we have taken 
almost 900 samples at more than 40 operations employing more than 4,000 
miners. A preliminary review and analysis by the Agency indicate few 
exposures above the OSHA 8-hr TWA of 0.1 f/cc occurred during the 
sampling period. A final report on the sampling results will be made 
public as soon as it is available by placing it on our Web site at 
http://www.msha.gov, under the link to Special Initiatives, Asbestos, a 
single source page. Also, the report will be made part of this 
rulemaking record.
    During those sampling events, we discussed with miners and mine 
operators the potential hazards of asbestos and the types of preventive 
measures that could be implemented to reduce exposures. We are 
encouraging mine operators to comply with the OSHA asbestos PEL of 0.1 
f/cc. Our current 8 hour PEL is 20-fold higher than OSHA's. Our intent 
in using this approach is to educate operators to recognize that a 
``standard of care'' based on lower exposure will reduce the potential 
for illness and liability.

Impact of the Rule

    We are assessing both the costs and benefits of intended 
regulations in accordance with Executive Order 12866. Under the 
Executive Order, we are to base decisions on the best reasonably 
obtainable scientific, technical, economic, and other data and 
information concerning the need for and the consequences of the 
regulations. We are seeking information and comment on the benefits and 
costs related to the issues addressed in this ANPRM.

III. Issues

    We are seeking any supporting information or data that would help 
us evaluate whether to lower our asbestos PEL, to revise existing PCM 
or TEM methods and criteria specifically for the mining industry, to 
implement safeguards to limit take-home exposures, and the likely 
impact on benefits and costs of such rulemaking actions. In particular, 
we encourage the public to respond to the questions posed below.
    Please be as specific as possible in your responses to the 
questions and in suggesting alternatives. When you comment, we request 
that you include the rationale for the comment rather than a short 
``yes'' or ``no'' answer. Please also include specific examples and 
impact estimates where possible to support your rationale. This will 
help us to effectively evaluate and analyze your comments.

1. Asbestos PEL

    We are considering rulemaking to lower both the eight (8) hour 
time-weighted average and the short-term exposure limits, and request 
comments on the most appropriate fiber concentrations to designate in 
light of their health risk and their technological and economic 
feasibility.
    We seek information, data, and comments on the following:
    a. What exposure limit would provide the appropriate level of 
protection to exposed miners? Would adopting the OSHA limits afford 
sufficient protection to miners?
    b. MSHA's recent field sampling data show that none of the samples 
collected exceed OSHA's 8 hour time weighted average of 0.1 f/cc when 
analyzed using the TEM method. Considering the low fiber levels 
observed, what would be an appropriate agency action?

2. Analytical Method

    We are considering the use of TEM rather than PCM to analyze fiber 
samples that may contain asbestos. We seek information, data, and 
comment on the following:
    c. What is the advantage for MSHA to use TEM to initially analyze 
airborne fibers collected on all filters?
    d. What is the availability and cost of commercial TEM analysis 
services?
    e. Should we measure PEL compliance using TEM?
    f. Are there studies which correlate asbestos exposure determined 
by TEM with incidence of asbestos disease?
    g. Are there data comparing PCM to TEM fiber counts from the same 
filter for the mine environment?
    h. What method is most appropriate for MSHA to use (e.g., EPA, 
ASTM, OSHA, or NIOSH) to analyze bulk samples for asbestos in the 
mining industry?

3. Take-Home Contamination

    We are also considering methods of reducing take-home contamination 
from asbestos. We specifically request information, data, and comments 
on the following:
    i. How and/or should MSHA require operators to address take-home 
contamination from asbestos?
    j. How should MSHA asbestos regulations provide for any special 
needs of small mine operators?
    k. What technical assistance (e.g., step-by-step instructions, 
model programs, certification of private programs) should we provide to 
mine operators when they develop a program to reduce take-home 
contamination from asbestos?
    l. What types of protective clothing are miners currently using 
when working in areas where asbestos is present?
    m. What types of preventive measures (e.g., appropriate disposal of 
contaminated clothing; hand and face washing; showering) are currently 
in use when miners leave areas where asbestos may be present?

4. Sampling and Awareness of Asbestos Hazards

    We are reviewing the adequacy of our field sampling methods for 
asbestos and how sampling results are being used, by both MSHA and 
operators, to protect miners. We specifically request information, 
data, and comments on the following:
    n. How can mineral dust interference be most accurately removed 
from the samples?
    o. Does our current field sampling meet the needs of the mining 
community?
    p. How should mine operators ensure that miners are aware of 
potential asbestos hazards at the mine site and provide adequate 
protection?
    q. What educational and technical assistance (e.g., step-by-step 
instructions, model programs) should we provide to mine operators when 
we develop a program to sample and analyze for asbestos?
    r. What other factors, circumstances, or measures should MSHA 
consider when engineering controls can not reduce asbestos exposure 
below the PEL?

5. Impact

    We anticipate that the benefits of a rulemaking addressing 
measurement and control of asbestos would be the reduction or 
elimination of asbestos-related diseases (cancers and asbestosis) 
arising from exposure to asbestos. We anticipate there will be operator 
and agency costs associated with lowering our asbestos PEL, reducing 
take-home contamination, and using TEM to analyze fiber samples.
    We request information, data, and comments on the following:
    s. How many miners are currently being exposed to asbestos?
    t. What engineering controls and personal protective equipment are 
currently being used to protect miners from exposure to asbestos and to 
prevent take-home contamination? What are the costs of these 
engineering controls and personal protective equipment?
    u. What would be the benefits of a rule that would reduce exposure 
to asbestos?

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    v. What would be the costs of such a rule?

    Dated: March 22, 2002.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 02-7467 Filed 3-26-02; 12:05 pm]
BILLING CODE 4510-43-P