II. Pertinent Legal Authority

Authority for issuance of this standard is found primarily in sections 6(b), 8(c), and 8(g)(2) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. 655(b), 657(c), and 657(g)(2) and in the Construction Safety Act, 40 U.S.C. 333. Section 6(b)(5) governs the issuance of occupational safety and health standards dealing with toxic materials or harmful physical agents. Section 3(8) of the Act defines an occupational safety and health standard as:

* * * A standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

The Supreme Court has said that section 3(8) applies to all permanent standards promulgated under the Act and requires the Secretary, before issuing any standard, to determine that it is reasonably necessary and appropriate to remedy a significant risk of material health impairment. Industrial Union Department v. American Petroleum Institute, 448 U.S. 607 (1980).

The "significant risk" determination constitutes a finding that, absent the change in practices mandated by the standard, the workplaces in question would be "unsafe" in the sense that workers would be threatened with a significant risk of harm. Id. at 642. A significant risk finding, however, does not require mathematical precision or anything approaching scientific certainty if the "best available evidence" does not warrant that degree of proof. Id. at 655-656; 29 U.S. 655 (b)(5). Rather, the Agency may base its finding largely on policy considerations and has considerable leeway with the kinds of assumptions it applies in interpreting the data supporting it, Id. 655-656; 29 U.S. 655(b)(5). The Court's opinion indicates that risk assessments, which may involve mathematical estimates with some inherent uncertainties, are a means of demonstrating the existence of significant risk.

The court further stated:

It is the Agency's responsibility to determine in the first instance what it considers to be a "significant" risk. Some risks are plainly acceptable and others are plainly unacceptable. If, for example, the odds are one in a billion that a person will die from cancer by taking a drink of chlorinated water, the risk clearly could not be considered significant. On the other hand, if the odds are one in a thousand that regular inhalation of gasoline vapors that are 2% benzene will be fatal a reasonable person might well consider the risk significant and take the appropriate steps to decrease or eliminate it. (I.U.D. v A.P.I., 448 U.S. et 655).

OSHA has always considered that a working lifetime risk of death of over 1 per 1000 from occupational causes is significant. This has been consistently upheld by the courts. See the recent discussion in the cadmium preamble 57 FR 42102, 42204 and the earlier asbestos preambles.

OSHA believes that compliance with these final amendments to reduce the PEL to 0.1 f/cc as a time-weighted average measured over 8 hours will further reduce a significant health risk which existed after imposing a 0.2 f/cc PEL. OSHA's risk assessment accompanying the 1986 standard, showed that lowering the TWA PEL from 2 f/cc to 0.2 f/cc reduces the asbestos cancer mortality risk from lifetime exposure from 64 deaths per 1,000 workers to 7 deaths per 1,000 workers. OSHA estimated that the incidence of asbestosis would be 5 cases per 1,000 workers exposed for a working lifetime under the TWA PEL of 0.2 f/cc. Counterpart risk figures for 20 years of exposure are excess cancer risks of 4.5 per 1,000 workers and an estimated asbestosis incidence of 2 cases per 1,000 workers.

OSHA's risk assessment also showed that reducing exposures to 0.1 f/cc would reduce excess cancer risk to 3.4 per 1,000 workers and a 20 year exposure risk to 2.3 per 1,000 workers. OSHA concludes therefore that reducing the exposure limit to 0.1 f/cc will further reduce significant risk.

OSHA's current estimates of employee exposure in the various operations covered by these standards are referenced in the Regulatory Impact Analysis found later in this document. Additional exposure estimates, based on record evidence are referenced throughout this document in the relevant preamble discussion concerning each operation.

In the Court of Appeals litigation, AIA challenged OSHA's use of the PEL to calculate the residual risk remaining after the standard is implemented. AIA contended that workers would actually be exposed to average levels significantly below the PEL because employers would be required to engineer down to levels well below the PEL to assure that random fluctuations would not result in an OSHA compliance officer measuring an exposure level over the PEL during a routine inspection. Therefore, AIA contended, in calculating residual risk, OSHA should assume that employees will be exposed to average levels that are between one-half and one-quarter of the PEL. The Court implied that such an argument might have merit if factually supported and suggested that OSHA should make its own calculations of the relation between permissible exposure limit and the actual exposures such a limit would produce. (838 F.2d at 1266) Having carefully considered the issue, OSHA concludes it would be unrealistic to base its risk assessment on the assumption that employers will engineer to levels significantly below the PEL. First, as discussed below, the PEL of 0.1 f/cc is at the limit of feasibility for those workplaces in which asbestos levels are most difficult to control, and an assumption that average exposures will be substantially below the PEL will clearly be unrealistic for such workplaces. Second, OSHA found in issuing the 1986 standard that AIA's argument about uncontrollable fluctuations was exaggerated because such fluctuations could be minimized through proper inspection and maintenance of engineering controls and through proper training and supervision of employees whose work practices affected exposure levels. (51 FR at 22653). Third, OSHA's enforcement policy gives employers the opportunity to show that a compliance officer's measurement over the PEL is unrepresentatively high and does not justify a citation, thus alleviating any concern employers might have that they will be cited on the basis of a single measurement that results from uncontrollable fluctuations. Fourth, even if some employers are sufficiently risk-averse to engineer down to well below the PEL to avoid a slight risk of citation, OSHA cannot base a realistic risk assessment on the assumption that most employers will do so.

The 0.1 f/cc level leaves a remaining significant risk. However as discussed below, and in earlier documents, OSHA believes this is the practical lower limit of feasibility for measuring asbestos levels reliably. However the work practices and engineering controls specified below for specific operations and required respirator use will in OSHA's view further reduce the risk. As discussed below, OSHA has carefully reviewed all the public suggestions to further reduce significant risk and has adopted those which have merit.

After OSHA has determined that a significant risk exists and that such risk can be reduced or eliminated by the proposed standard, it must set the standard "which most adequately assures, to the extent feasible on the basis of the best available evidence, that no employee will suffer material impairment of health* * *," Section 6(b)(5) of the Act. The Supreme Court has interpreted this section to mean that OSHA must enact the most protective standard necessary to eliminate a significant risk of material health impairment, subject to the constraints of technological and economic feasibility. American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490(1981). The Court held that "cost-benefit analysis is not required by the statute because feasibility analysis is." Id. at 509.

Authority to issue this standard is also found in section 8(c) of the Act. In general, this section gives the Secretary authority to require employers to make, keep, and preserve records regarding activities related to the Act. In particular, section 8(c)(3) gives the Secretary authority to require employers to "maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 6." Provisions of OSHA standards which require the making and maintenance of records of medical examinations, exposure monitoring, and the like are issued pursuant to section 8(c) of the Act.

Because the revisions to the asbestos standards are reasonably related to these statutory goals, the Secretary finds that these standards are necessary and appropriate to carry out is responsibilities under the Act.

"Response to recommendations of public to further reduce risk": As noted above, this rulemaking proceeding is a response to a remand order of the Court of Appeals for the D.C. Circuit. The Court determined that in the earlier 1986 rulemaking, OSHA had not sufficiently explained its decisions not to adopt certain regulatory provisions recommended by participants in that rulemaking. In particular, the Court of Appeals held that it is OSHA's "duty to keep adding measures so long as they afford benefit and are feasible, up to the point where (it) no longer finds significant risk," and that it is OSHA's duty to consider the reasonableness of adopting them. 838 F.2d at 1269. The Court noted that OSHA need not justify its failure to adopt all suggested provisions: rather, the Agency must defend not adopting only those provisions demonstrated by their advocates, "to be feasible to implement and will provide more than a de minimis benefit for worker health." The Court further explained, "(n)aturally the force of the evidence and argument that OSHA must offer to defend its choice will vary with the force of the proponent's evidence and argument." Id at 1271.

In this final rule, based upon the record evidence, OSHA is adopting certain regulatory recommendations made in the earlier rulemaking, is rejecting other recommendations, and is issuing other provisions which are based on, but are altered versions of yet other recommendations in the earlier rulemaking. In addition, new, different and expanded provisions also have been urged for adoption by participants in this rulemaking. These participants represent labor, public interest and industry interests. The Agency is adopting, rejecting and changing these recommendations as well.

A large portion of this preamble is devoted to the Agency's explanations of these regulatory decisions. OSHA believes that its reasons when it has adopted or has not adopted recommended provisions are well supported by the evidence and that the reasons for its choices are stronger than the contrary arguments. In general, OSHA believes that the extent of its burden to refute claims of benefit for a recommended provision depends on the extent of the supporting data. If the data are valid and extensive, OSHA's burden is greater. If however, the claim of benefit is based on opinion, refutation by OSHA need not be grounded in data, but may be based on OSHA's well reasoned and expert contrary opinion.

In sum, OSHA's decision not to adopt recommended provisions to reduce asbestos related risk reflects the Agency's expert judgment, often where available data creates considerable uncertainty, that the provisions would not offer more than de minimis benefit in reducing a still significant risk. Many recommendations were unsupported by data showing benefit. For example, it was recommended to prohibit high speed burnishing of asbestos-containing floor tile. However, the data do not show a measurable reduction of airborne asbestos fiber levels, based on actual fiber counts using such practices. Other recommended provisions simply do not reduce a still significant risk. For example, requiring very low clearance samples (analyzed by transmission electron microscopy) to deregulate all "regulated areas" to assure that EPA/AHERA level of 0.01 f/cc is met does not appear to be necessary to reduce a significant risk to employees. There is an extremely low (although speculative) risk of asbestos related disease estimated at such clearance levels, and, there is evidence that immediate clearance sampling does not predict later concentration levels.

OSHA discusses the recommendations made by participants in the preamble sections which cover the recommended provisions. The following is a list of the major recommendations made by public which are discussed later:

1. Recommendations for a mandatory building inspection program:

Recommended by BCTD (Ex. 143, Att. A); Gobbell Hays Partners, Inc. (7- 149), Service Employees International Union (SEIU) (Ex. 144); American Federation of State, County and Municipal Employees, (AFSCME, Ex. 141); ORC, or assume it is asbestos (Ex. 145), SBA, limited to employers whose work duties involve contact with ACM shall assure that all ACM in workplace is identified, need not inspect building areas constructed since 1980.

2. Mandatory notification to OSHA by employers of all removal, renovation, and abatement work: Recommended by BCTD, (Ex. 143, Att. A at 3), The Courdith-Roberts Group, (L7-185); Gobbell Hays Partners, Inc. (7-149).

3. Mandatory use of negative pressure enclosures in regulated areas, except for small-scale, short-duration operations and other limited circumstances: Recommended by BCTD, (Ex. 143 Att A at 5).

4. Mandatory procedures for deregulating regulated areas including mandatory clearance sampling. Recommended by BCTD, (Ex. 143, Att. A at 6); AFSCME (Ex. 141).

5. OSHA accreditation of training and OSHA designated detailed training curricula. Recommended by BCTD (Ex. 143 Att. A at 8) 6. Reduction of PEL below 0.1 f/c. Recommended by Gobbell Hays Partners, Inc. (Ex. 7-149).

7. Require that required protective clothing be impervious. Recommended by Melco, Inc. (L7-187), J.Loften, Asbestos Workers Local Union #16 (Ex. 137).

8. Specific training for maintenance and custodial workers in buildings that contain asbestos-containing material. Recommended by SEIU. (Ex. 144 at 14).

9. Requirement that building owner respond to knowledge of asbestos in building by establishing O&M plan. Recommended by SEIU (Ex. 144 at 17); AFSCME, (Ex. 141).

10. Change in medical surveillance requirements for maintenance and custodial workers in ACM buildings -- they exceed the 30 day limit. Recommended by AFSCME, (Ex. 141).

11. Reduce action level to 0.05 f/cc. Recommended by BCTD. (Ex. 143). 12. Reduce STEL to 0.5 f/cc over 30 minutes. Recommended by BCTD. (Ex.

143), also by SESAC and NIOSH (Ex. 7-77, 125).

13. Require most effective respirators feasible in all asbestos work. Recommended by BCTD. (Ex. 143).

14. Require more specific and protective brake repair procedures. Recommended by Clayton Associates, Inc. (Ex. 148).

15. Regulate activities involving "friable" asbestos-containing material differently from those involving "non-friable" asbestos. Recommended by Edison Electric Institute, (Ex. 7-145 , at e.g., 8 for quantity cut-offs for SSSD activities.) 16. A clearance fiber level of 0.04 f/cc was recommended by SESAC who stated that such a requirement was needed to "ensure that the asbestos work area is safe to enter by unprotected personnel after the asbestos work operation is completed." (Ex. 7-77).

Relationship to Indoor Air Quality Proposed Rule

On April 5, 1994 at 59 FR 15968, OSHA proposed a new standard for indoor air quality. The proposed regulation included a clause making brief reference to asbestos. See Paragraph (d)(8) at page 16036. That reference was unintended as OSHA, intends to cover all asbestos issues in the final asbestos rule where full consideration has been given to them. OSHA will not create new requirements in a final Indoor Air Quality Standard that are specifically designed to control asbestos exposures, and will announce that it is withdrawing the asbestos clause in paragraph (d)(8) at the commencement of the indoor air hearing. Accordingly there is no need for parties to submit asbestos-related materials into the Indoor Air record.

[59 FR 40964, Aug. 10, 1994]