[Federal Register Volume 69, Number 138 (Tuesday, July 20, 2004)]
[Rules and Regulations]
[Pages 43322-43325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16447]


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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: 
[email protected].

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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:

                             Table 1.--Cross-Reference to Other Asbestos Regulations
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                 Agency                           CFR citation                          Comment
----------------------------------------------------------------------------------------------------------------
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.
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    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.

* * * * *

                             Table 1.--Cross-Reference to Other Asbestos Regulations
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                 Agency                           CFR citation                          Comment
----------------------------------------------------------------------------------------------------------------
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]
BILLING CODE 6560-50-P