Document 3Q6voVNeGyRdNRR0yEpzG50qy

I Georgia F&cific ^ intracompany memo to Mr. T. F. Mitchell from J. M. Peters subiect CPSC Proposed Ban - Asbestos location Washington, D. C. location Washington, D. C. date May 26, 1977 Attached is the material I picked up today at the Consumer Products Safety Commission consisting of the following: 1. Rough draft of proposed banning rules on asbestos. 2. Staff background materials on proposed rules. 3. May 19, 1977 letter from Congressman John E. Moss (D-CA) critical of the procedure CPSC is using to ban asbestos. et al which is It is my understanding that Kip talked with Sheldon Butts, the CPSC Assistant Secretary, today and was advised the Commission will put the asbestos rule on the agenda for their next formal hearing. This may indicate they will attempt to expedite the rulemaking. JMP :ms Attachments /: / J. M. P. RECEIVED BY JUN 02 1977 GYPSUM DIVISION G*09 [(" Of ^ ?O ) > k T V y fc * X )#09 1C Of^ x * * * . : 1 ) )%. m > v. K * \t MOO |.Ct'5 / m y# ;*-* > : : > >%. k * a * y. * k k > o :C.QfJt: * * * y ' : ' > ' > ^ * mi nr k k moo I Gf > ."X y * x / .. : , ) X b k k h i w > Oi GOf^`jk a > i v ;;***; , : > ) k Mk> k y * y x hfOO I l, w^'_> ,>_> _> j _) _> _>J O' 1 Congress of If)c cLIiiitcb States We are deeply concerned chat the Consumer Product Safety Commission, in finally commencing action against asbestos-containing spackling compounds, decorative fireplace ash, and tremolitic talc, elected not to ban these products immediately under authority provided by the Federal Hazardous Substances Act, choosing instead to proceed under the Consumer Product Safety Act, a much slower process. In our view, the proven correlation between exposure to small concen trations of airborne asbestos and the development of lung cancer and meso I thelioma amply justifies classification of these products as an "imminent" I hazard to the public health" and warrants their immediate ban under Section 1 i 2 (q) (2) of the FHSA. We understand that it was the feeling of a majority of the Commission that regulatory action under the CPSA, while slower, would be less susceptible to legal challenges, and thus that the decision does not necessarily represent a determination that these products do not constitute an "imminent hazard." We hope this is the case and strongly urge the Commission, since it chose to proceed under CPSA authority, now to seek an immediate ban from the courts under authority provided in Section 12 (Imminent Hazards) of the Consumer Product Safety Act. We would appreciate further clarification of the Commission's position on the "imminent hazard" issue as it relates to consumer products containing asbestos and, in particular, would like to know whether the Commission is considering initiating legal action under Section 12. Wc would also be grateful for information as to what steps the Commission is taking to seek out and evaluate hazards presented by other products containing asbestos -- brake linings, modeling compounds, wallboard and textured paints, for example. Given the authority to seek an immediate 1 I ban under Section 12 for those products known already to be unreasonably hazardous, it would seem irresponsible to spend months, possibly years, developing a final standard under CPSA for only a few products, while leaving many others in the same category untouched. Sincerely, / * ; n-u. I , ' - < / ' \ / /' /. '"-'71 c i v. i Andrew Maguire 1 JL. ..aaa________ hs 11 Schcuer . ' LJIm... rt ;:/j St/f/sL/r*- //,r/J /?Shirley Chisholm " . Stephen L. Neal / Henry A. Waxman 1 I cc: All Commissioners 1 TO FROM UNITED STATES GOVERNMENT -- - - ............ - Msmorandum US- CONSUMER PRODUCT bAi h I Y UUMIVlIbblUN WASHINGTON, d.c. 20207 Francine Shncter, TAD/OSCA . oate: i % 'HAY 1377 Through: Assoc. Exec. Dir. for Compliance and Enforcement Through: Director, Division of In^tr^pion and Enforcement \x>f~ Charles M. Jacobson, BCMI SUOJECT: Cotnmission Briefing on Proposed Ban of Patching Compounds and Artificial Fireplace Log Ashes Containing Asbestos As we indicated in our memorandum of May 9, 1977, there are two aspects of the ban on the asbestos containing articles which are a concern to us from a compliance and enforcement standpoint. These are the questions of a prospective versus a retroactive ban and a finite level of asbestos at which products would be considered banned. We would urge the Commission to propose that the effective date be prospective and ban only those products manufactured after the effective date. This is based on the considerations that the products which will be subject to this ban represent only a small portion of the consumers total exposure to asbestos fibers. Even with this ban in place, it is not going to reduce the consumer exposure to asbestos fibers from joint compounds which are already in place, fireplace log ashes which are already in use, asbestos from automobile brake shoes, and all other sources of occupational, environmental, and consumer product exposures to asbestos. We would also anticipate that through the rulemaking process of proposal, reviewing comments, promulgating a final order, with some future effective date that the affected industry will begin making the conversions fairly early, resultinginthe amount of material on the market containing asbestos being significantly reduced by the effective date. To ban the offering for sale of anything after the effective date would result in a need to purge the marketplace from those limited numbers of items which may exist at that time. This would place a tremendous enforcement burden on the Commission in that we would have to enforce a ban which would stop thousands of retail outlets from continuing to sell products already on their shelves as opposed to the responsibility for seeing that only a limited number of manufacturers have ceased manufacturing these products. Even if we arc successful in stopping all retail sales, we doubt that it could be demonstrated that in the total asbestos picture, there would he any significant amount of consumer protection attained over and above that which would be attained by stopping the manufacture and future marketing of these products. U..OOVfANMCNT MINTING Of f ICE: 1974 1U *))/U04 IO  - J. Page 2 Another consideration in the issue of a prospective versus a retroactive ban is the nature of the hazard posed by asbestos. While an acute hazard may well warrant a retroactive banning situation, a chronic hazard, based upon long term exposure, would not appear to justify a retroactive ban. It is doubtful that the economic impact upon the industry or serious resource committment on the part of the agency to enforce a retroactive ban is justified if in fact the hazard presented by asbestos is chronic rather than acute in nature. An examination of r ir experiences with Tris may be helpful in ascertaining practical problems with a retroactive ban involving a chronic hazard. Since asbestos is a ubiquitous mineral which appears in many forms and is derived from many sources, we would suspect that almost any product could have the potential of at least carrying some asbestos contamination even though asbestos is not added as an ingredient. Therefore, we feel that the final ban on the above mentioned products containing asbestos should be based on some finite level of asbestos at which they will be defined as banned. We are not aware of how this could be defined at this time. However, we do not feel that that is reason to hold up the proposal of the ban. If we have no level available to include in the proposal we would then suggest that the proposal solicite comments from interested parties in an attempt to establish such a level in the final order. 1 UNITED STAXEEi GOVERNMENT Memorandum U.S. CONSUMER MMOnuCT safhty commisgtjn WASHINGTON. O.C. PD207 TO MSiOM The Commission ' /?Q^ date: May 23, 1977 Through: Office of the Secretary Through: Margaret A. Freeston, Deputy General Counsel Beatrice C. Pitkin, OGC r; () D{ SUBJECT Asbestos -- Proposed Ban The attached is a very rough draft of a proposed ban under section 8, CPSA for consumer patching compounds and fireplace ash containing respirable, free-form asbestos. The draft is transmitted for review prior to the staff briefing of the Commission on Wednesday, May 25, 1977. Although this draft is composed of materials contri buted by various bureaus and offices, none of these staff units have had an opportunity to review this draft. Several bureaus and offices have not completed the materials to be contributed to this proposal. In addition the format of the notice is not firmly set. The purpose of this draft is to give the Commission an idea of the scope of the proposal, to raise questions, and to obtain guidance from the Commission on further pronar^tijn of the proposal. In reviewing the draft, the Commission will note that among the matters needing Commission guidance are: (1) Effective date - BEA is currently exploring application of "the ban no goods manufactured, 30, 160 and 3C0 days after publication of a final rule. A retroactive ban is also possible. (2) Definitions - It may be that several more products could be defined as consumer patching compounds. (3) Banning criteria - Technical information is needed on how to detect and/or test noncomplving consumer products. (4) Compliance strategy - Commission guidance is needed on measures to be used f.or determining specific products that may be covered by the proposed ban. Under section 27 of the Ct PA the Commission can obtain informer ion fHIMINC OfH' fV4 iSl/HO* IO 1 2- - 1 h>ough.general orders,-special .orders. .(to .nnmed. norsons) oenas, and rulemaking. In addition to determining 'i'wi manufactures the products proposed to be banned, 1 I in Commission may use information obtained under section A/ as to what other products contain respirable, freel'/i;n asbestos. (5) The nethesda Office will transmit backup I til ormation developed by the staff as soon as possible. M Lachment CONSUMER PRODUCT SAFETY COMMISSION Respirable Frcc-form Asbestos PROPOSALS TO BAN TVJO CONSUMER PRODUCTS AGENCY: Consumer Product Safety Commission. ACTION: Proposed banning rules. SUMMARY: In this document, the Commission proposes to ban two consumer products containing asbestos that can be inhaled (respirable, free-form asbestos): (1) consumer patching compounds, including asbestiform tremolite, used to join or repair walls and ceilings. (Sanding of the product after it is applied releases asbestos fibers that can be inhaled); (2) Artificial fireplace logs and ash made with respirable free form asbestos for use in fireplaces to simulate log embers and ash. The Commission is proposing the bans to eliminate or reduce the risk of asbestosis or cancer that may result from inhaling these substances. DATES: The proposed effective date of the bans is days after publication of any final banning rule. Comments must be submitted by (insert date 30 days after publication of the proposal in the FEDERAL REGISTER). There will be an opportunity for interested persons to orally present data, views, or arguments on _at_ 1 Those wishing to make oral presentations should notify .tho_.Off.ice. of. .the Secretary..by .................................. ... ______ ADDRESSES: Written comrcnts should be submitted to the Secretary, Consumer Product Safety Commission, Washington, D.C. 20207. Persons wishing to make oral presentations should contact in the Office of the Secretary (202) 634-7700. All material which the Commission has that is relevant to this proceeding, including any comments that may be received on this proposal, may be seen in, and copies may be obtained from, the Office of the Secretary of the Commission, 3rd floor, 1111 18th Street, N.W. , Washington, D.C. FOR FURTHER INFORMATION CONTACT: Francine Shacter, Office of the Executive Director, Consumer Product Safety Commission, Washington, D.C. 20207 (301-492-6550). SUPPLEMENTARY INFORMATION: Commission decision. After consideration of three petitions concerning respirable free-form asbestos in consumer patching compounds and in artificial fire'place ash and logs, as well- as other information presently available to the Commission concerning respirable free-form asbestos, some of which is noted in this document, the Commission has concluded that these products should be banned. In addition, the Commission has directed the staff to investigate what other consumer products contain respirable asbestos. 2- - 1 [describe petitions] Although these petitions were filed under the Federal Hazardous Substances Act (F1ISA) , 15 U.S.C. 12G1, et seg., and it appears that the risks of injury from carcinogenicity described by petitioners are regulatable under the FIISA, the Commission proposes to ban these products under the Consumer Product Safety Act (CPSA), 15 U.S.C. 2051, et seg. Section 30(d) of the CPSA, 15 U.S.C. 2064(d), as amended, provides that a risk of injury associated with a consumer product v/hich can be eliminated or reduced to a sufficient extent by action under a transferred Act such as the FUSA, may nevertheless be regulated under the CPSA if the Commission, by rule, determines that regulation under the CPSA is in the public interest. The Commission preliminarily finds that is is in the public interest to dec-l-a-i-e this ban under the CPSA. The Commission also preliminarily determines that consumer patching compounds containing respirable free form asbestos including asbestiform tremolite, and arti ficial fireplace ash and logs containing respirable free form asbestos arc being and will be distributed in commerce, that they present an unreasonable risk of injury to the public due to carcinogencity, and that no feasible standard under the CPSA would adequately protect the public from the unreasonable risk of injury associated with these -3- product.';. Therefore-, in accordance with section 0 of the CPSA (15 U.S.C. 2057), the Commission proposes that these products be declared banned hazardous products. The petitions, relevant scientific and technical information, and Commission conclusions are more fully described below. BACKGROUND "Asbestos" is a general term for any of several varieties of mineral fibers composed of silica, oxygen, hydrogen, and other elements such as sodium, calcium, iron, or magnesium. The ^inc is derived from the ancient Greek term for "incombustible". There are six basic varieties of asbestos minerals which are found in fiber form: chrysolite (the most common variety, and that ordinarily found in asbestos-containing products), anthophyilite, amosite, crocidolite, actinolite, and tremolite. Most of the world supply of commcrical asbestos is chrysotile, the fibrous form of serpentine. Asbestos has a variety of industrial uses related to its heat and moisture resistance. Asbestos fibers are used in patching compounds to reinforce the material as it cures, to control shrinkage and cracking, and as the compound is alternately exposed to heat, cold and moisture after curing. Asbestos also provides a measure of sound and heat insulation to the material, and enhances the workability of the compound, -4- '. 1 particularly during troweling. .The following properties arc strongly considered by industry in the preparation of patching compounds: Asbestos is not affected by fungus, mildew, vapor, etc.; it has low density, good absorption qualities, high electrical resistivity, fire resistance, resistance to alkalincs, low magnetic permeability and it not a smooth fiber. Medical consequences of using asbestos. [This will come from BBS and will be based on epidemiological literature in addition to the summary below:] The inhalation of asbestos dust has been associated with the production of a variety of diseases, namely asbestosis (fibrotic,non-malignant scarring of the lungs), mesothelioma (cancer of the chest wall or abdominal lining) and cancers of the lung and digestive tract. Asbestosis and asbestos cancers usually dc noc become clinically evident for more than 20 years after initial exposure. Variation in the time of occurrence of these diseases ** may depend on the intensity and duration of exposure and on individual sensitivity. [(OMD, memo, 7/30/76)] Mesothelioma, as well as other cancers and even asbestosis can result from mild intermittent exposure to asbestos. Among the many reported cases of mesothelioma following short, non-occupational exposure to asbestos -5- ' l 1 include eases which followed exposure to dusty (asbestos) clothes in the homos of person with reported mesotheliomas, many of whom had worked or lived near an asbestos plant and also included members of families whose relatives worked in asbestos plants. [(BBS, Tab B-8)] Based on clinical and epidemiological data collected over many years, it is generally accepted by medical authoritie that heavy exposure to asbestos dust over prolonged periods or intense intermittent exposure as encountered in certain occupational situations has been associated with the development of asbestosis as well as cancers of the lung and digestive trace and of mesothelioma. Other agency actions to regulate exposure to asbestos. The Occupational Safety and Health Administration of the Department of Labor (OSHA), the Food and Drug Administration (FDA) and the Bnvironmental Frot.ection Agency (Ei'A) each has a responsibility to regulate exposure to asbestos. OSHA regulates exposure to asbestos by workers in all industrial and commerical settings except agri culture. The regulation (29 CFR ) permits exposure not to exceed contact or inhalation potential of ambient air containing more than five fibers five micrometers in length per cubic centimeter of breathing air over an eight-house time weighted average limit. In 197(1, OSHA proposed an amendment to lower exposure to .5 fibers per cubic centimeter of breathing air. FDA lias banned the use of asbestos in filters used in the formulation of parenteral drugs (21 CFR ) . and*, prior, .to the establishment oil the. Consumer. Product.. . Safety Commission, banned the use of asbestos in fabric used for yeneral wearing apparel. (21 CFR ) EPA regulates asbestos which is released into the air and into the water. These regulations ( CFR ) do not set standards for allov.-uble amounts of asbestos in the breathing air but rather minimize or eliminate emissions from industrial locations. These regulations specifically prohibit the present of asbestos in emissions from plants manufacturing materials for use in building roadways and in manufacturing items such as cloth, textiles, cement, fireproofing and friction products, paper, felt, flooring materials, pain's, adhesives, sealants, caulks, and a variety of other items. Consnmcr use of asbestos. [The staff is accumulating information on respirable free-form asbestos in consumer products.] The proposed ban covers the following products: ' Consumer patching compounds: Patching compounds are mixtures of talcs, pigments, clays, casein, ground marble, mica or other similar materials with v?ater and a binding material such as asbestos. Patching compounds is sold in a dry form (.to be mixed with water by user) -7- or a ready mix paste form. It iused to cover, seal or mask crack;;, joints, holes and similar openings in the trim, walls, ceilings, etc. of buildings. After drying it is sanded to a smooth finish. (See also the definition at section 1304.__ of proposed rule.) In consumer patching compounds, asbestos is released in-one of two ways: cither when using the dry form and mixing it with water or by sanding or scraping the dried patching compound in the process of finishing and smoothing the surface or during demolition. . Artificial fireplace ash. Artificial fireplace ash is a material containing asbestos placed under logs in gas-burning fireplace systems or in artificial fireplaces for decorative purposes. The asbestos material may also be glued to logs or artificial logs. When subjected to high temperatures, the material glows like real embers and ash. In fireplace logs, asbestos fibers might be released when they are attached to the logs with ordinary household glue which melts at high temperatures or the asbestos in the material scattered under the logs to simulate ashes could become airborne as a consequence of air currents and down drafts generated in the house and near the fire place. (See also the definition at section 1304.___ of proposed rule.) -8- If" IIP 76-13 (consumer patching compounds containing respirable asbestos): On July 15, 1976, the national Resources Defense Council (NRDC) and Consuniers Union (CU) petitioned the Commission under the FIISA to ban consumer patchiny compounds containing asbestos that are used for drywall taping, spackling and senliny of joints. The petitioners believe that high quantities of asbestos fibers remain in the air after these products are sanded and that the fibers substantially increase the risk of mesothelioma and lung cancer. UP 77-9: On February 9, 1977, the Public Citizens Health Research Group (HRG) petitioned the Commission under the FHSA to declare that trcmolitic talcs containing asbestos fibers (asbestiform tremolite) are banned hazardous products and an imminent hazard to the public health. HP 77-11: On April 15, 1977, a request from Ms. Rachel Scott that had been investigated as a consumer complaint was jointed by the Environmental Defense Fund (EDF). The Commission designated the requests a petition to ban the use of artificial fireplace as containing respir able free-form asbestos. This product is used on artificia logs and on fireplace floors beneath them to simulate ember and ashes. -9- Most of the risk and injury information reviewed by Commission staff in response to these petitions deals with occupational exposure. In addition recent clinical evidence suggests that low levels of exposure to asbestos dust can product asbestos cancers. These levels are ranch lower than encountered in occupational situations and lowc than known to cause asbestosis. Specifically, adverseeffects have been known to occur in family members of asbestos workers, persons living near asbestos plants, individuals having brief work exposure to asbestos, and those only indirectly exposed to asbestos by working in the same general area. (OMD memo, 7/76) [at this point we need to plug in some information from the literature on deaths from asbestos exposure either from BBS or OMD. It should tell" that most of the data on the risk of exposure comes from industrial data but that there are numerous incidents of death from mesothelioma, a cancer caused only be asbestos, after more limited exposure and link this with the exposure of consumers] The data on asbestos insulation workers indicate that after a 1-year exposure of approximately 10 to 20 times -10- 1 , that projected for frequent consumer use of spacklinc: or joint compounds (flic Bureau of Economic Analysis . _ projection, is. 4 times during, one year,. heavy, exposure) ,........ there are no additional lung cancers during the first 20 years of follow-up than might bo expected normally (relative risk equals 1.0). At levels of exposure 40 to 80 times that of projected consumer exposure, the relative risks are 1.3 and 2.5 respectively duriny the first 20 years (Enterline and Henderson, 1970). * ******** Decision to regulate under CPSA. The Commission considered, upon review of all the information presently available to it, that the products in question should be regulated. Consideration was initially given to banning these products under section 2(q)(1)(B) of the FHSA since it appeared that the statutory require ments for regulating these products under FHSA could be met and it appeared that the hazard presented by these products could be sufficiently reduced or eliminated under FI1SA. Under the FHSA, however, a person affected by a regulatory decision may file objections and if valid objections are filed an evidentiary hearing would be conducted, in accordance with section 701(e) of the Federal Food, Drug, and Cosmetic Act . The nature of a "701(c) hearing" (see 21 U.S.C. 371(c) and 21 CFR 2.48 et r.eq.) is very time-consuming and a regulatory action -11- would be hold in abeyance during the pendency ol the 701(e) proceeding. In considering alternative regulatory action, the Commission noted that section 30(d) of the CPSA (15 U.S.C. 2079(d)), as amended by the Consumer Product Safety Cormi.ission Improvements Act of 1976 (Pub. L. 9<-2QA; 90 Stat. 510), provides for certain regulatory actions to proceed under the CPSA rather than the FltSA and reads as follows: (d) A risk of injury which is associated with a consumer product and which could be eliminated or reduced to a sufficient extent by action und^r the Federal Hazardous Substances Act, the Poison Prevention Packaging Act of 1970, or the Flammable Fabrics Act may be regulated under this Act only if the Commission by rule finds that it is in the public interest to regulate such risk of injury under this Act. Such a rule shall identify the risk of injury proposed to be regulated under this Act and shall* be promulgated in accordance with section 553 of the Title 5, United States Code, except that the period to be provided by the Commission pursuant to sub section (c) of such section for submission of data, views, and arguments respecting the rule shall not exceed thirty days from the date of publication pursuant to subsection (b) of such section of a notice respecting the rule. -12- T I" Sec:Lion 9 of the CPSA which governs the ir,:;i;anrc of consumer product safety rules requires tJi.it notice of a proponed rule be published in accordance wit!. 5 U..5.C. 553. In addition, any interested person must lie provided an opportunity to make an oral presentation of data, viev.'s or arguments on the rule. Therefore, in order to save the time that would Ijo expended in a 701(e) hearing under FHSA and since full provision for public notice as well, as written and ora) comment is available under CPSA, the Commission, in accordance witli the provisions of section 30(d) of the CPSA, as amended, finds that it is in the public interest to regulate these products under the CPSA. (The Commission seeks data, views and .arguments from the public on this Commission finding. Such comments should be made in writing and forwarded to the Commission's Office of the Secretary. Section 30(d) of the CPSA, as amended, requires that comments made on this Commission finding that it is in the public interest to regulate those products under \ * the CTSA, must be made within 30 days of this publication date.) The Commission preliminarily determines in accordance with section 8 of the CPSA which sets forth the findings that must be made to ban consumer products under the CPSA, that consumer patching compounds and artificial fireplace ash containing respirable free-form asbestos arc being and -13- will lx. d j r.kri Luted in commerce. Ihr/j r.g conclud'd from Material:: available to the Commi ssi on that theca product-a ci!T2 associatod with t ho -ha ?.n rd- of care) nr>o'~>nioi t"', the Commission preiiminarily dotr.-rniir.es that these products present an unreasonable risk of injury to the public. Presently available information (cite 03HA, NCI data) indicate that a safe threshhojd level of respirable free-form asbestos is unknown (add here more information on no feasible standard from EES). Therefore, the Commission believes that no feasible consumer product safety standard under the CPSA can adequately protect the public from the unreasonable risk of injury associated with these products and the Commission proposes to issue this rule declaring that the consumer patching compounds defined at section 1304.__ and the artificial fireplace ash defined at section 1304.__ are banned hazardous products. SUMMARY Or PROPOSAL Need information from BES, BCM Proposed banning criteria. (Need input from BES, BCM) Test. (Lemberg, Shactcr) -14- 1 Industry rmirc.c_consider-'-1 io;r\ A wide range o economic ofleets may result from a Commission banning action which affects some or a]] of the above product classes. The Commission has already voted to ban free-form asbestos-containing artificial fireplaceashes and patching compounds. The following issues are being investigated with respect to both the proposed ban and the Commission's options concerning the other product groups: Identificationof types and numbers of products subject to a ban. In order to assess the economic effects of a ban, wo will have to determine the exact nature and number of products subject to the ban. Some figures on artificial fireplace logs and patching compounds are or will soon be available, but we have little or no information on the other categories. We suspect, however, that a ban on paints, coatings, and wallboard containing asbestos would have far-reaching implications. Assessment of substitutes. We currently know of two substitutes for asbestos in fireplace ashes, and at least two in patching compounds. Questions concerning the relative safety of these substitutes have not yet been resolved. Some substitutes for asbestos such as ste*3! and glass fiber have apparently been tested for use in wallboard and paints (primarily as a result of OSllA's efforts to limit exposure to asbestos in occupational -15- i settings), but with limited :;ucm;r:c. Subs ti t.u t i on may also lead to higher cost:; and prices from some of those products. Some firms (including some manufacturers of patching compounds) may not yet have the technical capability to reformulate their products without asbestos; many paint and coatings producers are, however, either presently marketing asbestos-free foundations or expect to in the near future. Cost and Price Effects. The actual cost to most patching compound and gas log manufacturers of chemically reformulating products or simply substituting another material for asbestos is not expected to be large; it is, however, expected that some cost increases will occur which will likely be passed on in the form of higher prices (for patching compounds this may be as high as 10-15 percent, according to an economic study prepared for OSHA). We expected that substitute paint formulations and substitute wallboard products will be somewhat more expensive than those containing asbestos, but we have no specific information on probable percentageincreases at this time. Other effects. The principal adverse effect of the use of substitutes for asbestos in these classes of products will pi'obably be on the utility of the products. Asbestos possesses a unique combination of strength, -1G- pliability, and heat, co]d, and Moisture-ri-:* * ' 1 * *1 quali Lion; substitutes v;hich have been to:;l.< 1,1 product categories often do not lent as long, '' ' workable, and may take a long time to perfect ( >>;:(,i:'" free spackling compounds were at least five y`,l,! 111 development). Some products not readily re l 1 l"" 1 ' 111 '' may be dropped from the market. Availabili'v 11 ' products may also be limited temporarily on > basis, depending on the paint and building m-> i 1 industries' ability to reformulate asbestos-e> Iii km products. Effective date. Inventories of existin' I '1 1 *" 1 ' in distribution channels may vary from very small (''`I** a fc..' small manuf acturc-rs ' inventories of im' I 1 to very large (e.g., thousands of retailers' '|,Vl1" " " of paint products). Similarly, inventory ............ 1 '1 11 ' at variou: point's in distribution- may vary ecu--"|, i 11 A set of effective dates may be desirable. AH'in.il > vt 1\/ several individual'ban could be proposed un>i<`i t * *ii H of the CPSA on a product-by product basis r.t ;!>> t Imu one general ban. All of the above considerations may be affected by OSIlA's course of action on asbest > *< hh"iUl a commorcial/industrial use ban be imposed, t h" iu.ln.-li\ will probably eliminate asbestos from all c.u-.'umci 1 '* * * * *11 ' 1 -17- 1 compounds, paintc, and v.vj] Ibocrd product:; as well since consumer sales constitute: such a small percentage (probably under 5 percent) of toal building material sales. This would, of course, minimize the marginal impact of a erse ban on similar products. On the other hand, certain patching compounds in container sizes intended for sale to"comraorcial users, i.e., contractors, may be construed to be "consumer products" (and therefore banned if they contained asbestos) since they are available in some retail stores. Vie expect that publication of a proposed ban in the.FEDERAL REGISTER, will prompt a great deal of comment, providing us with further specific information on the potential economic effects of such a ban. Environnental issues. The Commission has begun the study of environmental effects of this proposal as required by the National Environmental Policies Act. The Commission requests comment on other environmental issues as well as those raised here. Asbestos is a' ubiquitous mineral fiber that has been used for many years in the U.S. in occupational settings (primarily building construction). This has led to lowlevel, but widespread consumer exposure. Asbestos is found in the air, water, and land (in minute concentrations rela tive to those found in or near asbestos minor or processing facilities). -18- 1; The elimination of asbestos from consumer patching compounds will reduce environmental asbestos fiber re3 ease from all patching compounds by lose than 5 percent. Thi.s constitutes a negligible percentage of all asbestos fiber release. Disposal of present inventories is also expected to pose no significant problems since it would account for a miniscule portion of all asbestos disposal. Similar the elimination of asbestos from gas log ember i zi ny kits is not expected to reduce free fiber emissions significantly, either nationally or regionally (most of the manufacturers are located in California). Further, the staff is issuing guidelines to minimize consumer exposure to floating fibers durrny cleanup and disposal of embers. Thus, no significant effects are expected from the ban itself. The potential environmental (i.e., health) effects of the use of substitutes, is however, an issue which needs further study before we can prepare a complete environmental assessment. To the best of our knowledge, there are two currently-availabJe substitutes for asbestos in artificial fireplace ashes, and two substitutes for asgestos in patching compounds. Wc currently have no information concerning the safety of the ember materials (one is a synthetic fiber and may be similar in shape and size the asbestos). Animal testing is underway to develop a body of knowledge about the patching compound -ID- ir subr< i (- u ( r::;; no about their safely have yr. t been made. 3 bus, although wo cannot show evidcMice that the Known substitutes arc hazardous, wo also cannot show c-vidcmce that they are not. This discussion is linked to the notion that specific chronic hazards policy decision may become necessary on the question of how the Commission wishes to treat potential or suspected, but not proven, carcinogens find other long-term or chronic health hazards. More laboratory testing may be desirable before regulatory decisions on substitutes are made. Effective date considerations. The Commission staff is currently assessing the probable effects on the relevant industries or effective dates of 30, 180 and 360 days after publication of the ban in the FEDERAL REGISTER. It appears that many of the gas log manufacturers have already caused shipment of asbestos-containing me--chand.ise. We expect that, the gas log manufacturers can produce complying (non-asbostos-contqnining) merchandise for shipment in a relatively short period of time (perhaps 30 days after publication) with less disruption of manufacturing and mar keting practices than can those manufacturers of patching compounds who have not reformulated their products. Both groups, however, may have considerable difficulty in tracinq their products through the channels of distribution, which often may be long and complex. Wc know little about the -20- ir current state of inventories at various levels of dist.ribution at this time. We are attempting to dotenujnc typical turnover cycles, etc., as wo further define the products to be covered by the ban. Wo are also assessing the potential effects of a propscctive versus retroactive ban (i.e., one applicable to-products in distribution channels as of the effective date). A retroactive ban would probably result in greater total cost to an disruption of the industry than a prospective one. Further consideration of the potential benefit to the public of a retroactive ban is needed. We have no information to indicate that a retroactive ban would significantly reduce total annual fiber release. The Commission seeks further comment on this natter. FINDINGS The CPSA requires that before issuing a consumer product safety rule, the Commission make certain findings. Although section 9(c) of the CPSA does not require *that those findings be made when a proposal is published, the Commission is publishing the preliminary findings set forth below to assist in making findings in any final rule the Commission issues. (a) The degrce and nature of the risk of injury. To be submitted by BBS and the Medical Director. -21- i (b) The appro.v.ir....te number of < :0!iPun.er pmducts, (; or c 3. a s:;c;r. thereof,, subject to the ban. This ban covers two basic kinds of consumer prodnets artificial fireplace ashes, and patching compounds, including tape joint, spacklincj, and caulking compounds, crack patches, putties, and other substances intended for use in'patching, masking, or scaling cracks or holes in walls, ceilings, etc. - The Commission estimates annual sales of artificial gas logs or omberizing kits potentially subject to the ban at 25,000-30,000 units, assuming a sales rate of one , emberizing kit per log. Some of these logs come "frosted1' ?1 ; with asbestos, in which case the entire log would be : banned; others come packaged with omberizing kits inc.lud.ing; > still other are sold independently of the emberizing kits. The Commission is currently investigating the category ur products called "patching compounds" to deter mine which products should properly fall in that category and how many units* of production and inventories might be subject to the ban. There may be millions of individuals units of product in distribution which would be banned. (c) The need of the public for the consumer products subject to the ban, and the ban's probably effects upon the utility, cost of availability of such urodnet?; to meet such need. -22- \ If 7.rLifici.'il f xrcp] ace ashes nerve a decorative purpose, and do not materially affect the actual per formance of the log, its gas "jets, or its ability to provide heat. There is a certain aesthetic desirability, however, since the product (the gas log, ashes and embers) is intended to simulate something, i.e., a real burning log. To the extent that artificial emberi.zing material enhances consumers' enjoyment of the product, there is some perceived need for the material. Patching compounds, though used primarily by commercial construction workers, are also used by con sumers, and are used for the patching and sealing cf holes, cracks, etc., in and around the household. As such they arc thereby subject to consumer maintenance, including sanding or cutting, regardless of who the installer was. The compounds arc used to cover holes and cracks which might otherwise lead, to structural damage, energy loss, and lower property value. Not all patching compounds contain asbestos. In those that do, asbestos is used as a strutural reinforcing agent. There are not substitutes for patching compounds in these applications. ' The elimination of asbestos from these products will necessitate the use or development of substitutes which have similar properties to those of asbestos, or -23- I which impart similar qualities to the product. There are two known substitutes for asbestos in artificial fire place ashes. The use of these substitutes is already growing in the industry; it is not expected to affect the utility consumers derive from the product. One substitute's reported cost to producers is about ten times that of raw or milled asbestos fiber. This may lead to a price rise for seme soparutc-ly-sold emberizirig kits (which currently sell for about $3-$5). This is not expected to affect significantly the price of frosted gas logs, however, since the "frosting" constitutes a negligible percentage of the cost of the item. No effect on the overall price level of gas logs is anticipated. Neither the availability of the asbestos substitute to producers nor the availability of non-asbcstos-containing logs and emberizing kits to consumers is expected to be restricted significantly by the imposition of the ban. We currently are aware of two substitutes for asbestos in patching compounds. Some industry sources have reported that at this time the substitute formulations are not as effective as asbestos-containing formulations in controlling shrinkage and cracking over a period of several years. The pliability of some compounds may be diminished somewhat as well. This may adversely affect the utility derived from the product by consumers until such time ns -24- improved substitutes arc developed and ore available to consumers. The use of substitutes is not expected to have'u Leciiiijp Ojj Liie oLiier proper Lies "of patch j ny compounds (e.g., color, smell, sandability, etc.). A study performed for 0SH7i on the effects of reformulatino certain hinds of commercial patching compounds estimated at. 12-13 percent price increase associated with that reformulation. Similar increases may occur in the consumer segment of this market for some products; other products, there may be smaller or larger increases (if any). Prices currently vary over a fairly wide range among and between products; thus, direct price comparisons of asbestoscontaining versus non-asbcstcs-containing brands may not be useful at this time. The availability of asbestosfree patching compounds may be restricted to some extent. Ue are currently investigating alternate effective date recommendations. Tt appears that those patching compound manufacturers whose products are already asbestos-free may have a temporary competitive advantage (in terms of availability in distribution and to consumers) over those firms whose products will have to be reformulated. (d) Tiny means of achievinq the objective of tne ban whi1o minimizinn adverse effects on competition or disruption or dislocation of manufacturing and other commercial practices consistent with the public health and safety. -25- 1 The; primary r.cLho-J by which the Comm i :a: i on a:n minimize any adverse effects of: the ban is to adjust the effective date. As discussed above, the cost and availability of substitute patching compounds may be significantly affected by the chosen effective date. The Commission is currently considering effective dates of 30, 130, and 3C0 days after publication of the ban in the FEDERAL REGISTER. A date will be chosen which reasonably considers the potential effect of a delay on the public health and the relative economic impact of such a decision on the industry and on consumers. CONCLUSION ANP PROPOSAL Based on the foregoing information, the Commission proposes to declare that consumer patching compounds containing respirable, free-form asbestos and artificial fireplace ash containing respirable free-form asbestos arc banned hazardous products. (Phrase needed here on separability). Accordingly, 'pursuant to provisions of the Cl'SA (sections 8, 9, 30(d), 86 Stat. 1215-17, 1231 as amended, 90 Stat. 506, 510; 15 U.S.C. 2057, 2058, 2079(d)), the Commission proposes that Title 16, Chapter II, be amended by adding to Subchapter B the following new sections 1145.3 and 1145.4 and Part 1304. -26- 1 Sect.'on 1.1 45.2 Consumr r patching compounds c<-nt a i ning respirable, Iroe- torn: a:;)x:r.tor. (a) The Corir.iijJS.ion finds that it in in the- public interest to regulate the rish of carcinogenicity from consumer patching compounds under the CPSA rather than under the FHSA because- of the undue time that would need to be expended for an evidentiary hearing required by the FHSA upon filing of objections by adversely affected persons. The Commission finds that regulation under the CPSA provides ample opportunity for interested persons to present data, views or arguments, both .oral and written while protecting the public in a timely fashion from the unreasonable risk of injury associated with consumer patching compounds. (b) The consumer patching compounds described in section 1304.__ and defined in section 1304.__ are the subject of this rule. Section 1145.4 Artificial fireplace ash containing respirable, frec-form asbestos (a) The Commission finds that it is in _the public interest to regulate the risk of carcinogenicity from artificial fireplace ash containing respirable, free form asbestos under the CPSA rather than under the FHSA because of the undue time that would need to be expended for an evidentiary hearing required by FJJSA upon filing of objections by adversely affected persons. The Commission finds that regulation under the CPSA provides -27- i amp] e o; >} lortun i ty for i n t >'- re s l ed po r '<on r; l;o present data, views or arguments Loth ora] and written while protecting the public in a timely fashion from the unreasonable risk of injury associated with artificial fireplace ash containing respirable, freo-form asbestos. (b) The artificial fireplace ash defined at section 13.0-5. k is the subject ot this rule. kkk'kkk'kk Part 1304.__B/VPU'O HAZARDOUS PRODUCTS CONTAINING ASbbSTOE. Section 1304.1 Scope and application. In this Part 1304 the Consumer Product Safety Commission (Commission) declares certain consumer products containing asbestos end designed for use in such menner than' the asbestos fibers can become airborne under reasonably foreseeable conditions of use to be banned hazardous products under sections 8 and 9 of the Consumer Product Safety Act (CPS.A) (15 U.S.C. 2057 and 2058.) This ban applies to (1) patching compounds which are sold to consumers to cover, seal or mask cracks, joints, holes and similar openings in the trim, walls, ceilings, etc. of buildings, which after drying are sanded to a smooth finish; and (2) artificial fireplace ash which arc sold along with artificial fireplace logs to be installed in fireplaces and sprinkled or coated with -28- ir the male.* i al or have the sprink. ed booc-.ut.li the artificial logs to simulate; ashes and to give the upneurunee of glowing (referred to ir. the trade ae emberiziny). In addition, bays of material containing asbestos and sold separately to bo sprinkled on and under gas fired logs to simulate burning and glowing ashes come within the scope of this ban. Section 1304.2 Purpose. The purpose of this rule is to ban consumer patching compounds containing respirable, free-form asbestos, including asbestiform tromolite, and artificial fireplace ash containing respirable free-form asbestos. These products present an unreasonable risk of injury due to inhalation of fibers which increase the risk of developing asbestesis and mesothelioma, diseases which have been demonstrated to be caused onl-y be exposure to .asbestos fibers. Section 1304.3 Definitions. (a) The definitions in section 3 of the Consumer Product Safety Act (15 U.S.C. 2052) apply to this Part 1304. (b) "Asbestos" means a group of mineral fibers composed of silica, oxygen, hydrogen and other elements such as sodium, iron, magnesium and calcium in diverse combinations and includes the following asbestiform minerals; -29- iir tr c'iiiol i to, chryr.o La ] , croc idol j i c, anthoghyl1 it a, amoslto, and actinolite. ........... (qj.. ."Free-.form or.bor.tos." i s. that, wh i.c:h. in notbound, woven, or otherwise "loc);cc?-in" to a product by resins or other bonding agents, or those from which fibers can readily become airborne with any reasonable foreseeable use. (d) "Patching compounds" arc mixtures of talc, r*pig'.rnents, clays, casein, ground marble, mica or other similar materials with water and a binding material such as asbestos which are sold in a dry form ready to be mixed with water or a ready mix paste form. (e) "/u'tificial fireplace ash" is a material containing asbestos sold to be placed under artificial cusp logs or glued to the logs and which is designed to simulate ash and glowing embers. Section 1304.4 Findings. Section 1304.5 Banning criteria, Section 1304.6 Testing. *** -30- r Section 1304.7 Affective dote. * ****** Dated: 1<J CHARD J-AIM'S , Socrc-tai y Coiiourr.er Product Safety Comm ssi on -31- ir i ir