[Federal Register Volume 68, Number 181 (Thursday, September 18, 2003)]
[Rules and Regulations]
[Pages 54790-54793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23846]



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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

  Federal Register / Vol. 68, No. 181 / Thursday, September 18, 2003 / 
Rules and Regulations  

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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which provisions are being withdrawn due to adverse comment.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: 
[email protected].

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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[email protected], 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
----------------------------------------------------------------------------------------------------------------
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