[Federal Register Volume 59, Number 70 (Tuesday, April 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8734]
[[Page Unknown]]
[Federal Register: April 12, 1994]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 763
[OPPTS-62105B; FRL-4765-2]
Asbestos; Withdrawal of Rulemaking for Exemption from Asbestos
Ban on Manufacture, Processing and Distribution in Commerce
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA has decided to withdraw the proposed rulemaking to exempt
Omega Phase Transformations, Inc. (Omega) from processing prohibitions
in the Asbestos Ban and Phaseout (ABPO) Rule and not to initiate
rulemaking in response to a similar petition from Vitrifix, Inc.
(Vitrifix). Omega and Vitrifix had petitioned EPA for exemptions from
the ABPO Rule for thermal processes that convert asbestos-containing
waste material into non-asbestos glass, and EPA had agreed to initiate
rulemaking to exempt such processes from the ABPO Rule. EPA issued a
Notice of Proposed Rulemaking in the Federal Register of June 2, 1992,
to grant an exemption to Omega for its vitrification process. EPA has
since decided that thermal conversion processes that destroy asbestos
are not prohibited by the ABPO Rule. Accordingly, the exemption
rulemaking is unnecessary.
FOR FURTHER INFORMATION CONTACT: Mike Mattheisen, Chemical Management
Division (Mail Code 7404), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460,
Telephone: 202-260-7363.
SUPPLEMENTARY INFORMATION:
I. Background and Discussion
In the Federal Register of July 12, 1989 (54 FR 29460), EPA issued
the ABPO Rule at 40 CFR 763.160-763.179 under section 6 of the Toxic
Substances Control Act (TSCA), 15 U.S.C. 2605, to prohibit, at staged
intervals, the manufacture, importation, processing and distribution in
commerce of several categories of asbestos-containing products
identified in the ABPO Rule. One banned category is ``new uses of
asbestos,'' which is defined in the ABPO Rule as ``commercial uses of
asbestos not identified in Sec. 763.165 the manufacture, importation or
processing of which would be initiated for the first time after August
25, 1989'' (40 CFR 763.163). ``New uses of asbestos'' are banned by the
ABPO Rule after August 27, 1990 (40 CFR 763.165(a), 763.167(a), and
763.169(a)).
On October 18, 1991, the United States Court of Appeals for the
Fifth Circuit, in Corrosion Proof Fittings v. EPA, 947 F2d 1201 (5th
Cir., 1991), vacated and remanded most of the ABPO Rule. The ban on
``new uses of asbestos'' is unaffected by the Court's remand and
remains in effect. For a more complete discussion of the decision in
Corrosion Proof Fittings v. EPA, see 58 FR 58964, November 5, 1993.
The ABPO Rule specifies that applications for exemptions for new
uses of asbestos will be treated as petitions to amend the ABPO Rule
pursuant to section 21 of TSCA (15 U.S.C. 2620) (See 54 FR 29464, July
12, 1989 and 40 CFR 763.173.) Section 21 of TSCA provides, in part,
that any person may petition EPA to initiate a proceeding for the
issuance, amendment, or repeal of a rule issued under TSCA section 4,
6, or 8. The petition must set forth the facts which it claims
establish the need for the action. EPA is required to grant or deny the
petition within 90 days after filing. If EPA grants the petition, EPA
must promptly commence an appropriate rulemaking (15 U.S.C. 2620(a)).
The ABPO Rule also establishes general requirements for submission
of data that are needed for EPA decisions on all exemption
applications, including those submitted as section 21 petitions (40 CFR
763.173). Petitioners must submit evidence which demonstrates, among
other requirements, that the proposed manufacture, importation,
processing, distribution in commerce, and use, as proposed, will not
present an unreasonable risk of injury to human health (40 CFR
763.173(d)(1)(ix)).
In response to requests for clarification of the ABPO Rule from the
State of California (September 29, 1989) and Omega (October 13, 1989)
with respect to ``processes that transform asbestos into asbestos-free
material'' EPA responded that ``processing for commercial purposes
asbestos-containing material (ACM) by vitrification, or other
transformation processes, was a `new use' within the meaning of the
[ABPO Rule].'' Therefore, it was subject to the Rule and to the
exemption application procedures outlined in the Rule. EPA also noted
that the ABPO Rule ``does not regulate disposal activities'' and:
operations that transform asbestos-containing materials, as
defined in 40 CFR 61.141, into nonasbestos material solely for
disposal, (as an alternative disposal method under the asbestos
NESHAP regulations), would be subject to the disposal requirements
at 40 CFR 61.151 or 61.152, or any final standards revising the
asbestos NESHAP under 40 CFR 61.155.
(Letter to State of California, Department of Health Services, dated
March 29, 1990. See also, letter to Omega, dated March 30, 1990). The
National Emission Standard for Hazardous Air Pollutants Standard for
Operations that Convert Asbestos-containing Waste Material into Non-
asbestos (Asbestos-free) Material (the Asbestos NESHAP Standard) went
into effect in November 1990 (40 CFR 61.155).
On October 9, 1990, Omega submitted a TSCA section 21 petition to
EPA requesting an exemption from the ABPO Rule's ``new use''
prohibitions in order to operate its vitrification process at a
location in California. Omega's proposed process converts ACM (e.g.,
demolition debris from asbestos abatement projects) into glass. Omega
proposed to sell the glass as aggregate for paving material, among
other uses. In addition, the metal ingots produced from the molten
metal waste by-product would be sold as scrap metal. The Omega
vitrification process is a modification of glassmaking technology which
would utilize high temperatures over 2000 deg.F to melt the asbestos
fibers. Evaluation of the Omega process for the proposed rule indicates
that when asbestos is exposed to temperatures over 2000 deg.F, the
needle-like structure of asbestos fibers breaks down to form amorphous
molten glass and asbestos fibers are destroyed. The Omega petition was
followed by a section 21 petition from Vitrifix, Inc., on November 26,
1990. An earlier feasibility test conducted by Vitrifix for EPA's
Office of Air Quality Planning and Standards demonstrated that, under
the test conditions utilizing high temperatures over 2000 deg.F, ACM
waste material was converted into non-asbestos material.
EPA granted Omega's and Vitrifix's section 21 petitions on January
7, 1991, and February 20, 1991, respectively, indicating its intent to
initiate rulemakings under TSCA section 6 to amend the ABPO Rule to
allow Omega and Vitrifix to operate their proposed vitrification
operations.
On June 2, 1992 (57 FR 23183), EPA issued a proposal to amend the
ABPO Rule to allow vitrification by Omega. EPA never issued a proposed
rule to allow vitrification by Vitrifix. EPA has reached the
conclusion, as explained below, that thermal processes that convert
asbestos into non-asbestos material are not governed by the ABPO Rule.
It was not the intent of the ABPO Rule to regulate processes that
permanently remove asbestos from the environment. Rather, the objective
was to prevent introduction of new asbestos into the environment.
II. Interpretation
The ABPO Rule specifically prohibits ``processing for any use'' an
asbestos-containing product listed in 40 CFR 763.165, including ``new
uses of asbestos'' (40 CFR 763.167). The ABPO Rule, however, does not
prohibit disposal or processing for disposal. Because thermal
conversion operations destroy asbestos fibers, such operations
constitute processing for disposal and do not constitute use of
asbestos as contemplated by the ABPO Rule, and are, therefore, not
regulated by the ABPO Rule. EPA is revising its initial response on the
issue of vitrification (as set forth in EPA's March 29, 1990, letter to
the State of California) to reconcile the function of these operations
with the intent of the Rule.
This interpretation is consistent with EPA's overall intent when it
promulgated the ABPO Rule. In general, EPA developed the ABPO Rule to
limit the introduction or continued marketing of additional asbestos
products, rather than to regulate disposal of products that were
already in use when the ABPO Rule was issued. In keeping with the
overall objective to reduce entry of asbestos into commerce and into
the environment, the ABPO Rule does not prohibit other distribution
activities undertaken solely to dispose of asbestos. (see generally 40
CFR 763.163).
In some situations, thermal conversion operations may still be
subject to the ABPO Rule. If the end product contains asbestos that has
not been converted into glass, for example, and the end product is used
for any purpose, the operation would be subject to the prohibition
against processing for use in Sec. 763.167 of the ABPO Rule. In that
case, an exemption would be necessary to engage in the activity.
As building materials deteriorate, or as buildings are renovated or
demolished, much of this asbestos waste will require disposal. In a
national survey of asbestos-containing friable materials in buildings,
conducted in 1984, EPA estimated that approximately 20 percent of all
buildings have some asbestos-containing friable materials. EPA further
estimated that buildings targeted in the survey contained approximately
1.2 billion square feet of sprayed- or trowelled-on ACM (in an
estimated range of 18,000 to 365,000 buildings), and that approximately
16 percent (or between 239,000 - 888,000 buildings) contain asbestos
pipe and boiler insulation. EPA also estimates that approximately
31,000 schools contain asbestos. (Asbestos in Buildings - A National
Survey of Asbestos-Containing Friable Materials - EPA Publication No.
560/5-84-006, October 1984, EPA Docket No OPPTS-62105). In addition to
building materials, asbestos is a component of automotive brakes,
clutches and transmission components, as well as other commercial and
industrial friction materials which are eventually discarded for
disposal after the components' useful life. The magnitude of asbestos
waste requiring disposal will place an increasing economic burden on
society as landfill capacity decreases.
By converting asbestos into glass, vitrification provides an
alternative to land disposal of asbestos waste and produces a
commercially useful non-asbestos product. Vitrification avoids costs of
landfilling and of health costs associated with exposure to asbestos
waste. These costs could include a substantial burden on the individual
and society, including medical costs of treating asbestos-related
diseases resulting from exposure to asbestos throughout the life cycle
of asbestos products and disposal of asbestos waste. The asbestos
vitrification process destroys asbestos and eliminates any risks from
asbestos exposure which occur in the disposal and landfill stages of
the asbestos fiber life cycle.
III. Asbestos Regulations
Several existing regulations provide protection against asbestos
exposures and releases from asbestos conversion operations if such
facilities are established. Owners or operators of facilities that
intend to commence operations to convert asbestos-containing waste
material into non-asbestos material are subject to permit and
performance requirements under the Asbestos NESHAP Standard and to
certain reporting requirements under several other EPA regulations. In
addition, such companies would be subject to the worker protection
requirements of the Occupational Safety and Health Administration
(OSHA) or of OSHA-approved state, or EPA asbestos worker protection
standards.
The Asbestos NESHAP Standard was established as an alternative to
land disposal of asbestos waste (55 FR 48406, November 20, 1990). The
Standard establishes permit and performance requirements, including a
requirement to obtain EPA approval to construct a facility, as well as
monitoring, recordkeeping, and reporting requirements. During normal
operations, a company must demonstrate by laboratory analysis that ACM
is completely destroyed. If laboratory testing reveals that the output
material contains asbestos, the company must reprocess the ACM, or
dispose of it as asbestos-containing waste material according to 40 CFR
61.150. Continuous monitoring requirements are also imposed under
Sec. 61.155 of the Asbestos NESHAP Standard. The Standard is designed
to ensure that there are no visible air emissions and that the output
material contains no asbestos.
Asbestos thermal disposal facilities may also be subject to public
disclosure and notification requirements under the Emergency Planning
and Community Right-to-Know Act (EPCRA) (42 U.S.C. 11001 11050). Among
other things, EPCRA requires emergency notification of any release of 1
pound or more of friable forms of asbestos to the appropriate State
Emergency Response Commission and Local Emergency Planning Committee.
Section 313 of EPCRA requires submission of Toxics Release Inventory
(TRI) reports to EPA and designated State officials, including the
amount of the toxic chemical entering each environmental medium, such
as air and water, annually. Asbestos thermal disposal facilities would
be subject to section 313 of EPCRA only if they fall within the
Standard Industrial Classification (SIC) codes 20-39, they employ the
equivalent of 10 full time employees, and they manufacture, process, or
otherwise use a listed toxic chemical in excess of the TRI reporting
thresholds. Conversion of material containing friable forms of asbestos
into non-asbestos glass that is distributed in commerce is subject to
section 313 reporting if the facility otherwise meets the SIC Code and
threshold requirements. Under the Pollution Prevention Act of 1990 (42
U.S.C. 13101-13109), facilities that are required to file a TRI report
under EPCRA section 313 must include with it certain additional
information about toxic chemical source reduction and recycling. Under
the Comprehensive Emergency Response, Compensation and Liability Act
(CERCLA), certain releases must also be reported to the National
Response Center and advertised in local newspapers (42 U.S.C. 9663,
9611 (g)).
Asbestos thermal disposal facilities are also subject to OSHA, EPA,
or State laws for occupational exposure to asbestos in the workplace
(see e.g., 29 CFR part 1910 and 1926 and 40 CFR 763.120-763.125). These
laws all set permissible exposure limits to asbestos and establish
required work practices to protect workers.
Asbestos thermal disposal facilities must also obtain construction
approval from other appropriate Federal, State and local authorities.
IV. Administrative Record
EPA has established a record of those documents EPA considered in
addressing Omega's and Vitrifix's petitions. The record consists of
documents located in the file designated by docket control number,
OPPTS-62105 located at the TSCA Nonconfidential Information Center
(NCIC). A public version of the record, without any confidential
business information, is available in the TSCA NCIC for reviewing and
copying from noon to 4 p.m., Monday through Friday, excluding legal
holidays, at EPA headquarters, Rm. E-G102, 401 M St., SW., Washington,
DC 20460.
V. Conclusion
EPA hereby withdraws the proposed rule entitled Proposed Exemption
from Asbestos Ban on Manufacture, Processing, and Distribution in
Commerce issued June 2, 1992 (57 FR 23183).
List of Subjects in Part 763
Environmental protection, Administrative practice and procedure,
Asbestos, Confidential business information, Hazardous substances,
Imports, Intergovernmental relations, Labeling, Occupational safety and
health, Reporting and recordkeeping requirements, Schools.
Dated: April 5, 1994.
Carol M. Browner,
Administrator.
[FR Doc. 94-8734 Filed 4-11-94; 8:45 am]
BILLING CODE 6560-50-F
