I. Regulatory History

OSHA has regulated asbestos several times as more information has become available. Asbestos rulemakings marked the early years of the Agency. A 12 f/cc permissible exposure limit (PEL) for asbestos was included in the initial promulgation on May 29, 1971 (36 FR 10466) of OSHA standards pursuant to Section 6(a) of the Act. In response to a petition by the Industrial Union Department of the AFL-CIO, OSHA issued an Emergency Temporary Standard (ETS) on asbestos on December 7, 1971, which established a PEL of 5 f/cc as an 8-hour time-weighted average (TWA) and a peak exposure level of 10 f/cc.

In June 1972, OSHA promulgated a new final standard that established an 8-hour TWA PEL of 5 f/cc and a ceiling limit of 10 f/cc. These limits were intended primarily to protect employees against asbestosis, and it was hoped that they would provide some incidental degree of protection against asbestos induced forms of cancer. Effective July 1976, OSHA's 8-hour TWA limit was reduced to 2 f/cc and this limit remained in effect up to the effective date of the revised 1986 standards.

In October 1975, OSHA published a notice of proposed rulemaking (40 FR 47652) to revise the asbestos standard because the Agency believed that "sufficient medical and scientific evidence has been accumulated to warrant the designation of asbestos as a human carcinogen" and that advances in monitoring and protective technology made re-examination of the standard "desirable." This proposal would have reduced the 8-hour TWA to 0.5 f/cc and imposed a ceiling limit of 5 f/cc for 15 minutes. The 1975 proposal would have applied to all industries except construction.

At that time no separate proposal applicable to the construction industry was developed by the Agency.

On May 24, 1983 OSHA consulted with the Advisory Committee for Construction Safety and Health ("ACCSH") concerning the applicability of any new asbestos standard to the construction industry. ACCSH endorsed OSHA's position that any new PEL adopted for general industry should also apply to the construction industry (Ex. 84-424).

On November 4, 1983 OSHA published an ETS for asbestos (48 FR 51096). The ETS marked a new regulatory initiative, related to, but not part of the 1975 proceeding. The ETS was held invalid by the U.S.Circuit Court of Appeals for the Fifth Circuit on March 7, 1984.

Subsequently, OSHA published a notice of proposed rulemaking (49 FR 1416, April 10, 1984) for a standard covering occupational exposure to asbestos in all work places subject to the Act. Pursuant to Section 6(c) of the Act, the ETS also served as a proposed rule. On June 17, 1986, OSHA issued two revised standards, one governing occupational exposure to asbestos in general industry workplaces, the other applicable to construction workplaces (51 FR 22612 et seq., June 20, 1986). Effective July 21, 1986, the revised standards amended OSHA's previous asbestos standard issued in 1972. The 1986 standards explicitly applied to occupational exposure to non-asbestiform tremolite, anthophyllite and actinolite. After a subsequent and separate rulemaking proceeding OSHA has deleted these minerals from the scope of the asbestos standards. (57 FR 24310, June 8, 1992).

The separate comprehensive asbestos standards for general industry and construction which were issued in 1986 shared the same permissible exposure limit (PEL) and most ancillary requirements. Both standards reduced the 8-hour time weighted average (TWA) PEL tenfold to 0.2 f/cc from the previous 2 f/cc limit. Specific provisions were added in the construction standard to cover unique hazards relating to asbestos abatement and demolition jobs.

Several major participants in the rulemaking proceeding including the AFL-CIO, the Building and Construction Trades Department (BCTD) of the AFL-CIO, and the Asbestos Information Association (AIA), challenged various provisions of the revised standards. On February 2, 1988, the U.S. Court of Appeals for the District of Columbia issued its decision upholding most major challenged provisions, but remanding certain issues to OSHA for reconsideration (BCTD, AFL-CIO v. Brock, 838 F.2d 1258). The Court determined that OSHA had not adequately explained why it was not adopting certain recommended provisions in light of evidence suggesting that those provisions would be feasible to implement and would provide more than a de minimis benefit for worker health. The Court also ordered OSHA to clarify the regulatory text for two provisions and found one provision, a ban of spraying asbestos-containing products, unsupported by the record. In addition, OSHA's failure to adopt a short-term exposure limit (STEL) was ordered to be reconsidered within 60 days of the Court's mandate. In partial response, OSHA issued a STEL of 1 f/cc measured over a 30-minute sampling period, on September 14, 1988 (53 FR 35610).

In response to additional petitions by BCTD and the AFL-CIO, the Court, in an October 30, 1989 order, divided the remand issues into three categories as follows. With respect to three issues, the Court ordered OSHA to take action by December 14, 1989. These issues were:

  Issue 1. formally delete the ban on the spraying of asbestos-containing
materials;
  Issue 2. clarify that periodic monitoring in the construction industry
must be resumed after conditions change; and
  Issue 3. Clarify the exemption for "small-scale, short duration
operations" from the negative-pressure enclosure requirements of the
construction standard to limit the exemption to work operations where it
is impractical to construct an enclosure because of the configuration of
the work environment.

OSHA issued its response on these issues on December 14, 1989 (54 FR 52024, December 20, 1989). In that document OSHA (1) removed the ban on the spraying of asbestos-containing materials; (2) changed the regulatory text to clarify that construction employers must resume periodic monitoring whenever there has been a change in process, control equipment, personnel or work practices that may result in new or additional asbestos exposure; and (3) explained why OSHA was not amending the regulatory text to clarify the limited exemption for "small-scale, short-duration operations" in the construction industry standard, but instead would institute rulemaking on this issue.

With respect to the second group of issues, the Court ordered OSHA to complete its response on the existing record by January 28, 1990. These issues are:

  Issue 4. The possibility of further regulations governing employee
smoking controls;
  Issue 5. The effectiveness levels of various respirators and OSHA's
policy of requiring respirators to protect workers at only PEL level; and
  Issue 6. The possibility of bi-lingual warnings and labels for employers
with a significant number of non-English-speaking employees.

The Court stated that if OSHA determines that these issues could not be resolved on the existing record, OSHA may explain why and commence new rulemaking instead.

On January 28, 1990, OSHA issued its response on these issues (55 FR 3724, February 5, 1990). In that document, OSHA: (1) prohibited workplace smoking in areas where occupational exposure to asbestos takes place; expanded training requirements to include information about available smoking cessation programs; required the distribution of self-help smoking cessation material; and, required a written opinion by the physician stating that the employee has been advised of the combined dangers of smoking and working with asbestos; (2) explained how and why the 1986 respiratory protection standards will reduce employee risk below that remaining solely as a result of the PEL, and that the effectiveness levels of respirators are under review; and (3) required employers to ensure that employees working in or near regulated areas understand warning signs, and required training programs to specifically instruct employees as to the content and presence of signs and labels.

Finally, as to the third group of three remaining remand issues, the Court ordered OSHA to resolve these issues after rulemaking. These issues are:

  Issue 7. The establishment of operation-specific permissible exposure
limits;
  Issue 8. The extension of reporting and information transfer
requirements; and
  Issue 9. The expansion of the competent person requirement to all
employers engaged in any kind of construction work.

In addition, the Court granted OSHA's unopposed request to publish the Notice of Proposed Rulemaking on this group of issues on April 13, 1990, to allow sufficient time to consult with the Advisory Committee on Construction Safety and Health (ACCSH). Under the Construction Safety Act (40 USC 333) and regulations in 29 CFR 1911.10 and 29 CFR 1912.3, OSHA was required to consult with that committee in the formulation of regulatory proposals which would apply to employment in construction. OSHA presented the proposed regulatory text and pertinent explanatory materials to the ACCSH and consulted with them on March 14, 1990. The Committee submitted comments and suggestions which were discussed in the proposal. The Court, on May 2, 1990 granted OSHA's further motion and extended the time to issue the proposal until July 12, 1990, in order to allow coordination of the proposal with other regulatory agencies, in particular EPA.

The proposed revisions were published July 20, 1990 (55 FR 29712). The date for close of the public comment period in the NPRM was September 25, 1990 with the public hearing scheduled to commence October 23, 1990. However, several interested parties requested additional time for comment on the NPRM due to the breadth of issues it presented. OSHA felt the objective of developing a complete rulemaking record would be served and extended the period for submission of public comments and for notices to appear at the informal hearing until December 3, 1990. The Agency also rescheduled the informal hearing to begin January 23, 1991. In the notice extending the time periods, OSHA also explained more clearly that the ACCSH report referenced in the NPRM was submitted by the labor representatives on that committee and not by the committee as a whole (55 FR p. 38703, September 20, 1990).

The informal hearing was held for 13 days from January 23 to February 8, 1991. At the close of the hearing Administrative Law Judge Sheldon Lipson set April 12, 1991 as the close of the post-hearing comment period and June 12, 1991 as the close of the post-hearing briefing period. Subsequently on request, Judge Lipson extended these periods to April 26 and June 26 respectively. BCTD requested OSHA extend the post-hearing briefing period 4 weeks to allow additional time to fully address all issues of concern due to the extent and complexity of the records. OSHA granted this request and notified participants that the post-hearing briefing period was extended to July 24, 1991.

On November 3, 1992, by Federal Register notice, OSHA re-opened the comment period to allow supplementary public comment on options to protect workers from inadvertent exposure to asbestos in buildings (57 FR 49697). This issue, not part of the Court's remand order, was broached by the Agency in the preamble to the proposal, and had been the subject of litigation brought by Service Employees International Union (SEIU) against EPA. In 1988 the Service Employees International Union, AFL-CIO petitioned the Environmental Protection Agency for regulation of asbestos in public and commercial buildings and subsequently sued the Agency. This resulted in the convening of a series of "Policy Dialogue" meetings established by EPA in an attempt to reach agreement on issues concerning asbestos in public and commercial buildings. As discussed in the NPRM of July 20, 1990, OSHA and a variety of other interested parties participated in the meetings which took place between May 1989 and May 1990. These groups included realty interests, lenders and insurance interests, unions, asbestos manufacturers, public interest groups, asbestos consultants and contractors and states. The group failed to agree on all issues, but did generally agree that the presence of asbestos should be known to building service workers. The major area of disagreement in the group dealt with the characterization of risk to general building occupants and office workers. The group also did not agree on the need for specific federal asbestos inspection requirements.

SEIU and other unions also participated in this rulemaking and urged OSHA to issue a building inspection rule. After discussions with EPA and review of the record concerning how best to protect employees against unknowing exposure the Agency published a request for comment on a regulatory approach to protect building service workers. The approach would require certain high-risk materials in accessible building/facility areas be designated presumptive asbestos containing materials and thus be treated as if they contained asbestos, until or unless the presumption was rebutted through sampling or specific information in the owner's possession relation to construction specifications. The notice also asked for comments on the Health Effects Institute (HEI) report which had been submitted to the record after the close of the post-hearing briefing periods. The notice resulted in submission of an additional 60 sets of comments, and the comment period closed on January 4, 1993.

The record of this rulemaking consists of over 55,000 pages. OSHA has worked closely with EPA so that the regulations of both agencies are compatible to the extent OSHA's mandate allows.

[59 FR 40964, Aug. 10, 1994]