[Federal Register Volume 88, Number 52 (Friday, March 17, 2023)]
[Proposed Rules]
[Pages 16389-16391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05325]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 751

[EPA-HQ-OPPT-2021-0057; FRL-8332-04-OCSPP]
RIN 2070-AK86


Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain 
Conditions of Use Under Section 6(a) of the Toxic Substances Control 
Act (TSCA); Notice of Data Availability and Request for Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule, notice of data availability.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing the 
availability of and soliciting public comment on additional data 
received by EPA related to the proposed rule for Part 1: Chrysotile 
Asbestos; Regulations of Certain Conditions of Use under TSCA. These 
additional data pertain to chrysotile asbestos diaphragms used in the 
chlor-alkali industry and chrysotile asbestos-containing sheet gaskets 
used in chemical production and may be used by EPA in the development 
of the final rule, including EPA's determination of what constitutes 
``as soon as practicable'' with regard to the proposed chrysotile 
asbestos prohibition compliance dates for these uses.

DATES: Comments must be received on or before April 17, 2023.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2021-0057, using the Federal eRulemaking Portal 
at https://www.regulations.gov. Follow the online instructions for 
submitting comments. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Additional 
instructions on commenting or visiting the docket, along with more 
information about dockets generally, is available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: 
    For technical information contact: Peter Gimlin, Existing Chemicals 
Risk Management Division (7404M), Office of Pollution Prevention and 
Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460-0001; telephone number: (202) 566-0515; email 
address: [email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In the Federal Register of April 12, 2022 (87 FR 21706 (FRL-8332-
02-OCSPP)), EPA proposed a rule under TSCA section 6(a) to address the 
unreasonable risk presented by chrysotile asbestos under the conditions 
of use evaluated in the Risk Evaluation for Asbestos, Part 1: 
Chrysotile Asbestos. EPA proposed to prohibit manufacture (including 
import), processing, distribution in commerce and commercial use of 
chrysotile asbestos for chrysotile asbestos diaphragms for use in the 
chlor-alkali industry and chrysotile asbestos-containing sheet gaskets 
used in chemical production, effective two years after the effective 
date of the final rule, which is 60 days after publication of the final 
rule. EPA also proposed to prohibit the manufacture (including import), 
processing, distribution in commerce, and commercial use of chrysotile 
asbestos-containing brake blocks used in the oil industry, aftermarket 
automotive chrysotile asbestos-containing brakes/linings, other 
chrysotile asbestos-containing vehicle friction products, and other 
chrysotile asbestos-containing gaskets, effective 180 days after the 
effective date of the final rule. EPA also proposed to prohibit 
manufacture (including import), processing, and distribution in 
commerce of aftermarket automotive chrysotile asbestos-containing 
brakes/linings for consumer use, and other chrysotile asbestos-
containing gaskets for consumer use, effective 180 days after the 
effective date of the final rule. Additionally, EPA proposed disposal 
and related recordkeeping requirements. In accordance with TSCA section 
6(c)(2)(A), EPA also discussed in the preamble to the proposed rule a 
primary alternative regulatory option to address

[[Page 16390]]

the unreasonable risk presented by chrysotile asbestos under the 
conditions of use evaluated in the Risk Evaluation for Asbestos, Part 
1: Chrysotile Asbestos. This primary alternative regulatory option 
included, among other requirements, a prohibition on the manufacture 
(including import), processing, distribution in commerce, and 
commercial use of chrysotile asbestos diaphragms in the chlor-alkali 
industry and chrysotile asbestos-containing sheet gaskets in chemical 
production effective 5 years after the effective date of the final rule 
and a requirement to comply with an Existing Chemicals Exposure Limit 
(ECEL) and related monitoring and recordkeeping requirements prior to 
the prohibition taking effect.
    After being extended 30 days (87 FR 31814, May 25, 2022 (FRL-8332-
03-OCSPP)), the comment period for the proposed rule closed on July 13, 
2022. EPA received about 155 discrete comments as of the end of the 
extended public comment period. In the proposed rule, EPA requested 
public comment on several aspects of the proposed rule including the 
proposed prohibition compliance dates for the manufacture (including 
import), processing, distribution in commerce and commercial use of 
chrysotile asbestos.
    Specific to chrysotile asbestos diaphragms used in the chlor-alkali 
industry, EPA sought public comment ``to support or refute its 
assumption that [chlor-alkali] plants using asbestos diaphragms will 
convert to non-asbestos technologies, and the timeframes required for 
such conversions.'' 87 FR 21721. EPA sought comment on a prohibition 
compliance date that under TSCA sections 6(d)(1) would be both ``as 
soon as practicable'' and ``provide for a reasonable transition 
period,'' including information on the specific and detailed timelines 
to build asbestos-free facilities or to convert existing asbestos-using 
facilities to asbestos-free technology and the availability of 
asbestos-free technology. 87 FR 21726. EPA also requested information 
on ``potential barriers to achieving the proposed prohibition date 
while considering the supply of chlor-alkali chemicals and on the 
potential impact of this transition on the market price of chlor-alkali 
chemicals.'' Id.
    EPA received significant comment on these issues during the public 
comment period for the proposed rule. EPA received comments supporting 
the proposed two-year prohibition timeline, such as from the Asbestos 
Disease Awareness Organization (ADAO). ADAO stated: ``EPA's proposal 
correctly calls for the chlor-alkali industry to stop importing and 
using asbestos two years after the final rule becomes effective. . . . 
this phase-out deadline . . . can be accomplished without disrupting 
the U.S. supply of chlorine and caustic soda . . . [industry's] recent 
voluntary closure of substantial asbestos-diaphragm capacity 
demonstrates that the remaining plants can be shut down quickly and 
without hardship to industry or consumers.'' (EPA-HQ-OPPT-2021-0057-
0397). However, many commenters argued the two-year timeline would not 
provide the chlor-alkali industry a reasonable transition period and 
requested EPA provide additional time to allow the chlor-alkali 
industry to transition away from asbestos-containing diaphragms, to 
allow for this transition to occur without causing economic 
disruptions, and public health impacts resulting from potential 
disruption of drinking water disinfection supplies due to fluctuations 
in the production of chlorine. Some commenters also expressed concerns 
about the proposed alternative five-year timeline for similar reasons. 
Commenters provided EPA with information on the conversion process to 
non-asbestos technologies and the timing involved, including examples 
from plants in the United States and elsewhere in the world. Commenters 
noted that Canada provided 11 years for the conversion of one plant, 
and in the European Union, Germany allowed 14 years for the conversion 
of one plant. Comments indicated that a single plant could be converted 
within 45 to 55 months, including project design and engineering, 
permitting, construction and startup (EPA-HQ-OPPT-2021-0057-0405c). 
However, commenters expressed concerns, including: ``recent supply 
chain disruptions cast doubt on whether that aggressive five-year 
timeline can be met for a single . . . facility conversion; it would be 
clearly infeasible for multiple plant conversions. . . . Globally, 
there are only four electrolyzer manufacturers. Based on raw metal 
supply disruptions, electrolyzer market demand and production capacity, 
manufacturers have indicated they may only support a large-scale 
conversion every 3-4 years. . . . The logistical and cost-intensive 
process of converting several facilities simultaneously compound the 
infeasibility of EPA's proposed timeframe.'' (EPA-HQ-OPPT-2021-0057-
0405) That commenter (and others) noted the time required to obtain an 
air permit: ``. . . preparing, applying for, and obtaining an [state] 
air permit, which is generally required to commence construction, . . . 
can easily take eighteen months or even the entire twenty-four-month 
period.'' The commenter also noted ``. . . sequential conversion to 
membrane is needed to maintain an ongoing supply of the chlor-alkali 
chemicals. Even if it were possible to construct the plants 
concurrently, shutting down that amount of capacity at the same time 
would have dramatic impact on supply across many industries and public 
services . . .'' (EPA-HQ-OPPT-2021-0057-0405). Many commenters raised 
concerns about the impact the 2-year prohibition on the nation's supply 
of chlorine and caustic soda, which are essential chemicals for many 
industries. Many commenters asserted that a sudden shortage of chlorine 
could severely impact the ability of municipal water treatment 
facilities to disinfect public drinking water and therefore present a 
public health concern.
    After the close of the public comment period for the proposed rule, 
EPA received comments and held meetings with stakeholders, including 
affected industry and interested groups, related to the use of 
chrysotile asbestos diaphragms in the chlor-alkali industry and 
chrysotile asbestos-containing sheet gaskets used in chemical 
production. Topics of these comments and meetings included media 
reports regarding asbestos workplace practices in the chlor-alkali 
industry, the timing of any prohibition on the manufacture (including 
import), processing, distribution in commerce and commercial use of 
chrysotile asbestos diaphragms and chrysotile asbestos-containing sheet 
gaskets, and the requirement, included in the primary regulatory 
alternative described in the preamble to the proposed rule, for 
processors and users of chrysotile asbestos diaphragms and chrysotile 
asbestos-containing sheet gaskets to comply with an ECEL as an interim 
control measure prior to the effective date of a prohibition. Meetings 
were held with: ADAO (July 6 & October 13, 2022); Chlorine Institute 
(July 6, 2022); Dow Chemicals (October 28, 2022); Axial/Westlake 
(November 3, 2022); Olin Corp. (November 14, 2022); OxyChem (November 
16, December 7, 2022 & February 9, 2023), and Chemours (January 18, 
2023). EPA received data as part of and following those stakeholder 
meetings and is now making those public data and stakeholder meeting 
summaries available to the public in the rulemaking docket (EPA-HQ-
OPPT-2021-0057). Some industry information made available to EPA has 
been claimed as

[[Page 16391]]

confidential information under TSCA section 14 and is not available in 
the public docket. The additional information provided in the docket 
includes a supplemental letter from ADAO that provided additional 
information and recommendations to EPA on chlor-alkali diaphragm use 
(EPA-HQ-OPPT-2021-0057-0412). The ADAO letter notes a report on 
workplace practices, which provides documentation on the exposure of 
workers at chlor-alkali facilities to chrysotile asbestos. The letter 
also provides information to show that the chlor-alkali industry ``has 
shut down a substantial portion of its asbestos diaphragm production 
capacity in the last three years and is in the process of transitioning 
to non-asbestos membrane technology,'' and information on industry 
conversion to membrane technology, specifically the conversion of the 
OxyChem facility in LaPorte/Battleground, Texas (EPA-HQ-OPPT-2021-0057-
0412). Finally, in the letter, ADAO recommends EPA seek answers from 
industry to seven specific questions regarding chlor-alkali production 
statistics; reduction of asbestos-diaphragm capacity, supply of chlor-
alkali chemicals to water treatment facilities; specific conversion 
plans for asbestos-diaphragm facilities; financial and economic 
analyses, import volumes, and amounts of stockpiled asbestos (EPA-HQ-
OPPT-2021-0057-0412).
    In addition, other information made available to EPA after the 
close of the public comment period has been posted to the docket, 
including several public comments submitted to EPA regarding the 
potential impacts of the proposed rule's compliance date for the 
prohibition on the commercial use of chrysotile asbestos diaphragms in 
the chlor-alkali industry on the supply of chlorine used for drinking 
water disinfection.
    EPA received comments pertaining to the timing of the prohibition 
on the manufacture (including import), processing, distribution in 
commerce and commercial use of chrysotile asbestos diaphragms 
requesting the consideration of the current transition schedules for 
chlor-alkali facilities from chrysotile asbestos diaphragms to non-
asbestos alternative technology. For example, comments suggest it may 
be practicable to prohibit the manufacture (including import) of 
chrysotile asbestos before prohibiting processing, distribution in 
commerce and commercial use of chrysotile asbestos, as all chlor-alkali 
companies that currently use chrysotile asbestos already have or will 
have a sufficient supply of chrysotile asbestos for foreseeable future 
operations prior to the prohibition compliance dates. Regarding the 
timing of the prohibition on processing, distribution in commerce and 
commercial use, some commenters believe it may be practicable for the 
compliance dates to vary for different affected persons, as comments 
have informed EPA that individual chlor-alkali companies may have 
different considerations for the timing of any transition away from 
chrysotile asbestos diaphragm technology, based on whether they intend 
to close or convert facilities, the number and size of facilities they 
have, and inherent technical differences in specific plant conversions. 
Comments received described the different approaches to move away from 
chrysotile asbestos use given the different designs of chrysotile 
asbestos diaphragm technology, the type of intended conversion to a 
non-asbestos diaphragm technology or membrane technology, the limited 
availability of suppliers and technical expertise during the conversion 
process, as well as differences regarding permits needed for the 
conversion of facilities and permitting timelines based on their 
location. Comments indicate that an approach that can accommodate 
differences among facilities may provide a reasonable transition period 
for each remaining chlor-alkali facility still using chrysotile 
asbestos diaphragms, while ensuring the associated unreasonable risk is 
addressed as soon as practicable. Another commenter, however, believes 
that since industry is already transitioning to non-asbestos chlor-
alkali technology an expeditious ban of the use of chrysotile asbestos 
in chlor-alkali production will not only protect public health but 
achieve important economic and environmental benefits.
    Comments EPA received regarding the timing of the prohibition on 
the manufacture (including import), processing, distribution in 
commerce and commercial use of chrysotile asbestos-containing sheet 
gaskets in chemical production, state that the prohibition compliance 
date should be delayed for titanium dioxide production facilities to 
allow a transition from chrysotile asbestos containing sheet gaskets to 
non-asbestos sheet gaskets, as titanium dioxide producers have 
different technical considerations from other chemical producers for 
the transition away from the chrysotile asbestos-containing sheet 
gaskets.
    Comments from stakeholders also included discussion of workplace 
monitoring strategies to comply with an asbestos ECEL during the 
interim period prior to a prohibition on the commercial use of 
chrysotile asbestos diaphragms. For example, AIHA stated that ``the 
proposed exposure limits of 0.005 f/cc and 0.0025 f/cc cannot be 
measured for an 8-hour work shift by existing sampling and analytical 
protocols for asbestos . . . due to the volume of air that would need 
to be collected to achieve the detection limit necessary . . .'' (EPA-
HQ-OPPT-2021-0057-0288). OxyChem has suggested that calculation of 
compliance with an ECEL could take into account the assigned protection 
factor (APF) used for individual tasks when such respirator use is 
required by a facility's exposure control plan.

II. Request for Public Comments

    EPA requests public comment on any data in the docket that was 
received during and after the proposed rule public comment period, and 
how EPA should consider it during the development of the final rule. In 
particular, EPA is seeking comments on how to consider the additional 
information received regarding maintaining the prohibition compliance 
dates, staggering the prohibition compliance dates or establishing 
longer deadlines for the prohibition on processing, distribution in 
commerce and commercial use of chrysotile asbestos for chrysotile 
asbestos diaphragms for use in the chlor-alkali industry and chrysotile 
asbestos-containing sheet gaskets used in chemical production. EPA is 
also seeking comments on the new information provided regarding the 
practicability of measuring 0.005 f/cc and 0.0025 f/cc for an 8-hour 
work shift by existing sampling and analytical protocols and how EPA 
could put in place effective interim exposure reduction requirements in 
a way that they are compatible with OSHA requirements and industrial 
hygiene practices, where those requirements and practices will address 
unreasonable risk until prohibitions are fully implemented. EPA also 
seeks comments on the workplace safety concerns in the chlor-alkali 
industry raised by ADAO in its comments.

List of Subjects in 40 CFR Part 751

    Environmental protection, Chemicals, Export certification, 
Hazardous substances, Import certification, Recordkeeping.

    Dated: March 10, 2023.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2023-05325 Filed 3-16-23; 8:45 am]
BILLING CODE 6560-50-P