Document QB9nk03Obn7V67jGKBdMg9Y6

~ l^lgrf / V C\u^~ ^ C-4-4^J^ I1** <W-ci-*_^ Gypsum Association Eutern Office 1120 Connecticut Avenue, N.W. Washington, D.C. 20036 U~ (A/ C <L (202) 293-2646 Suite 940 Mr. w. C. Lehnert Georgia-Pacific- Corp. ri - U if3 November 21, 1977 Misters Gafford, Houser, Lehnert, Maddox and Marshall: Attached are a number of pages taken from a Consumer Product Safety Commission document which describe the study of "patching plaster" and the Commission's proposed ban. Action by the Commission will be delayed until after December 12, 1977. There is the same question as to whether the ban will be Issued at that time as there appears to be a good deal of confusion within the Commission as to what they are going to accomplish with this proposed ban. Herb Carlsen has the entire A.T. Kearney report summary, so if more details are required, please contact Herb. Very truly yours, D.E. Brackett Eastern Manager DEB/sw PLAINTIFF'S EXHIBIT SGP 0009386 INTRODUCTION In response to petitions filed in 1976 and 1977, the Consumer Product Safety Commission (CPSC) proposed to ban the manufacture and sale of consumer patching compounds and artificial fireplace embcrizing materials containing respirable free asbestos. This proposal was published in the Federal Register on July 29, 1977. The purpose of this report is to provide information to the Commission V' t _ regarding the probable economic impacts of the proposed ban and of alternati available to the Commission on certain issues. Study was initiated by Hi/Economics to examine the impacts of a potential ban in mid-1976. In the course of this study, a preliminary assessment of the ban on patching compounds was provided by A.T. Kearney, Inc. Sections III and V of that -report are attached as Appendices to this document. This report is divided into two parts: the first deals with the proposed ban on patching compounds, the second with thd proposed ban on artificial eraberizing materials. SGP 0009387 SUMMARY OF MAJOR ECONOMIC IMPACTS Patching Compounds If the ban is promulgated so as to cover only intentional addition of asbestos or asbestos-containing tremolitic (i.e., fibrous) talc or other raw materials to the product, thereby permitting inadvertent asbestos contamination to be present, patching compound production by many firms will be continued. Most products now on the market would have to be reformulated to comply with the ban and significant, disruption of inventoried products in distribution would occur; the production and, sale of some compounds would be continued without reformulation and without disruption of distribution channel inventories. Other principal alternatives such as setting a minimal contamination level (e.g., one fiber per thousand particles) or prohibiting the pressure of asbestos altogether (in the rule as proposed) would have substantially greater adverse effects. ' Many manufacturers who do not have extensive technical reformualtion capabilities may discontinue patching compound production temporarily or permanently. Some manufacturers have claimed that they may go out of business if the ban is promulgated. There may be particularly serious effects on the cost structures and competitive posture of small businesses. 'Costs associated with reformulation, raw materials procurement, production processes, inventory obsolescence and repurchase, and product testing may increase the average cost of producing patching compounds. The average prices to consumers and professional contractors m3y also rise. The total price effect of the ban may be about $10-60 million, depending on the extent of reformulation necessary and the ability of producers to pass on cost increases. SGP 0009388 -2- In professional uses of patching compounds, the aggregate labor cost of drywall finishing may increase for the first year by as much as $50-125 million. The effective date chosen and the way in which professional use of the product is treated will have a significant impact on the magnitude of these costs and on the degree of disruption in the construction industry. In the short run, near maximum adverse effects would accompany the proposed 30-day effective date and prohibition of the use of asbestos-containing compounds by professionals. The utility derived from the product by consumers and drywall contractors may be adversely affected; many substitute formulations are expected ,to have poorer performance qualities than those containing asbestos. , This is likely to be noticed more by professsional applicators; roost consumers, who are typically infrequent and unskilled users of the product, will probably perceive no significant difference in performance. To the extent that contractors and their employees and consumers are no longer exposed to free asbestos in patching compounds, the ban may have beneficial effects on the public health. The extent of these benefits is not known, but is expected to be fairly small. Artificial Emberizing Material The cost to manufacturers of producing some emberizing material mixtures may increase as a result of the use of substitutes for asbestos. This may lead to slight increases in the average price of separatelysold emberizing kits. This price effect is expected to total less than $25,000 in the year following the promulgation of the ban. No effect on the overall price level of gas logs is expected, whether they are frosted, unfrosted, or packaged with emberizing kits. Some manufacturers, distributors, and retailers have incurred and will for a period of time continue to incur costs associated with the voluntary recall of potentially banned products. These costs may total up to $20,000 for some firms. ' SGP 0009389 -4- PART I PATCHING COMPOUNDS Patching compounds arc mixtures of casein, clays, marble, mica, and other substances which are used to cover, seal, or mask cracks, joints, and holes in interior gypsum drywall structures, including ceilings. These may be packaged in "dry" form to be mixed with water, or in premixed ("wet") form. The Commission's proposed definition in the Federal Register notice of July 29, 1977, which discusses the hazard associated with sanding, is interpreted to cover such products as spackling compounds (including the industry term "patching plaster") and tape joint compounds (commonly referred to as "joint cement" or "tape joint mud"). f. Many of these products now use or have used asbestos as an ingredient in their formulations. Under the ban, addition of asbestos to the product would become a'prohibited act under Section 19 of the Consumer Product Safety Act. It appears that the use of constituent materials (e.g., talcs) known to contain significant levels of asbestos contamination, would also'be prohibited. Further, the ban may prohibit use of these products if they are inadvertently contaminated with asbestos above a certain minimum level. Significant amounts of naturally occurring tremolite asbestos and anthophyllite asbestos may be present in talc or other substances used in the manufacture of some patching compounds. Policy Issues This section is presented in the context of three basic issues on which the Commission has available to it policy alternatives, choices among which will have a direct bearing on the economic impact of the ban. These three sets of alternatives relate to the scope and coverage of the ban, levels of asbestos contamination in the product addressed by the ban, and the effective date of the ban. SGP 0009390 -9 The criterion of.one asbestos fiber per thousand particles is not based on any conclusions as to the lowest level of asbestos contamination the patching compound industry could reasonably attain. It is based on the Commission's best information on the feasibility, from a testing standpoint, of using a fiber-counting procedure as a compliance screening tool. The overall effect of the inclusion of the procedure in the ban may be to ban or bring into question most, if not all, existing patching compounds, and to cause confusion in the producing industry in the process. Virtually all patching compounds contain fibrous material, be it asbestos or some other substance. Most patching compound producers have never tested their products for asbestos contamination, although for quality control purposes, they do measure their own intentional addition of asbestos or asbestos-containing (i.e.,* labeled) talc. Inten tionally-added asbestos is generally quantified in terms? of percent content by weight; this method is not directly applicable to the detec tion and measurement of end-product contamination. It has been suggested that the lowest feasible level of contamination that manufacturers could achieve is on the order of 0.5 to 1.0 percent by weight; this would probably still allow detection of more than one true asbestos fiber per thousand particles in a sample. Even those firms with products that are labeled "asbestos-free" may have to change their formulations to reduce and compensate for unintentionally-added asbestos.* Some manufacturers are probably unaware of the possibility of truly inadvertent (i.e., raw materials) asbestos contamination. *The terms "unintentionally-added" and "contamination" imply a certain ignorance on the part of manufacturers concerning what goes into their products. This is not always the case; as mentioned previously, some talcs may contain fairly high levels of asbestos, and OSHA requires all asbestos-containing talc mined and sold to patching compound producers (or anyone else) to be labeled. Talc suppliers are thus certifying to manufacturers that they know certain kinds of talc contain asbestos. Truly inadvertent contamination of talcs or other constituent substances which are not supposed to contian fibrous material may also occur. This is likely to appear, however, at substantially lower levels than are present in compounds to which asbestos is currently added intentionally. SGP 0009391 -10- There exists considerable uncertainty in the industry over the accuracy and reliability of the screening procedure: some industry experts believe, for example, that fibrous materials other than asbestos would be counted as asbestos under the procedure. To -the extent that this is shown to be the case from actual sampling, some compounds which may contain less than one true asbestos fibesr per thousand particles may unnecessarily be banned, or manufacturers may be obliged to perform the more sophisticated forms of analysis to determine whether their products should or should not be banned. Uncertainty also exists concerning the definitions of fibers, asbestos fibers, samples, and other technical aspects of the testing procedures which manufacturers might use. This uncertainty may lead to measurement mistakes, resulting in the inadvertent marketing of a banned product. This would involve additional testing-related costs to manufacturers or raw materials suppliers. Few firms in these industries own x-ray diffraction equipment or electron microscopes (which may cost over $50,000 and $100,000, .respectively, and require one or more trained employees to operate); the only course of action for most firms would be independent laboratory certification. While there arc hundreds of laboratories across the country v;ith optical microscopy capabilities, there appear to be only a few offering x-ray diffraction and electron microscopy services. The magnitude of these testing costs may also be significant. Manufacturers may submit an unknown, but potentially large, number of samples for testing at an estimated $50 per sample for phase-contrast optical scanning and up to $300 per sample for the full complement of analytical procedures. Manufacturers would set up their own sampling plans according to good business practice, their perceived need for safety from prosecution, etc. Some compounds or production lots may be destroyed or diverted to other uses as a result; come small manufacturers have stated that they would, drop patching compounds from their product lines if significant formulation testing were required. SGP 0009392 -11- Some compounds, such as those containing no talc, may be found after testing to be below the one-fiber-per-thousand-particles level. Some firms may still decide to stop production rather than incur testing costs, or because they perceive that their products would be banned. Thus, the very existence of the screening procedure may cause significant disruptions to the producing industry to the extent that business decision involving costs or the financial and market status of firms may be made on the basis of perceptions about the Commission's enforcement policy. The Commission could ban intentionally-added asbestos, defining intentional addition to encompass the known asbestos content of fibrous talc. This would eliminate the sources of significant asbestos content in patching compounds while permitting some low level of truly inadvertent contamination, which may be greater or less than one fiber per thousand particles. The remaining discussion of the economic effects of the ban is based primarily on this alternative. Effective Date The Commission has proposed a 30-day effective date for the ban on patching compounds. Several comments were received requesting more time, typically ISO days. The costs associated with reformulation tend to be inversely related to time. As mentioned above, the major portions of virtually all patching compounds formulations are quite similar; small changes in ingredient combinations and substitutions, however, arc critical to arriving at a satisfactory result. Though the basic research on asbestos-free formulations has been performed by the large producers, many companies claim that considerable amount of time j.-! required Cor research and development and testing new formulations. This is especially true for some of the smaller firms whose compounds arc sold only in one or tv;o regions of the country in which specific climatic requirements are a prime formulation consideration. The range of .estimated reformulation time requirements is 6-18 months. Some manufacturers who may not be able to reformulate their products by Che effective date may have to stop production until products are reformulated satisfactorily. SGP 0009393 Some di6rup.-j.on of this sort may occur even rf the effective date of the ban is net at 180 days. This disruption would, however, be considerabl more widespread, particularly among small manufacturers, under a 30day effective date. A short effective date may also aggravate any potential asbestos-substitute supply shortage problems for small manufacturers. The second major effect of the ban which would vary considerably with the effective date is the effect on manufacturers', wholesalers', and retailers' inventories. As stated below, the proposed 30-day effective date may have substantial effects on certain firms' products, depending upon the treatment of the scope and coverage and contamination issues. Generally, a 30-day effective date will have greater adverse effects than a ISO-day effective date. A 180-day effective date alone would allow fdr the clearance of most inventories, even if all patching compounds were banned. The adverse effects of a 30-day effective date would be substantially mitigated by allowing professional use of asbestos-contain ing patching compounds since the major market for the product would not be disrupted by the ban. The impact on inventories of any effective date will be strongly affected by decisions concerning professional uses of patching compounds and contamination levels. Market/Industry Characteristics ' A summary of the characteristics of the patching compound-producing industry and the markets for the product is outlined below:* The value of shipments of patching compounds in 1976 was between $90 million and $150 million. Total 1977 shipments may be slightly higher in value. Total annual sales to end-uscro, including retail sales to consumers, arc estimated to be roughly $200-400 million in 1976 and in 1977. *For a more comprehensive profile, sec Section III of the A.T. Kearney report entitled, "Economic Impact Assessment of the Proposed 9 Ban of Asbestos-Containing 'Patching compounds'," attached as Appendix I. SGP 0009394 -J6- and lend desirable properties to the product. Since the three largest producers in the industry (Georgia-Pacific, National Gypsum, and United States Gypsum) already appear to have eliminated asbestos from their formulations, the costs associated with reformulation necessitated by the ban will be incurred primarily by the other producers. Some of the largest of the remaining firms now have asbestos-free formulations on the market. Host of the other firms in the industry, however, are small businesses which do not have asbestos-free compounds, and which lack the technical research capability that the industry leaders have used to develop asbestos-free formulations. Manufacturers will probably not need new physical plant or equipment to produce asbestos-free patching compounds. The ebsts of reformulation are thus primarily those of technical research and development, field testing, and pilot production. The largest producer reportedly spent over $1 million over a period of a few years to develop its asbestos- free formula. Other companies with non-asbestos formulations, or in the process of developing them, report reformulation expenditures of $10,000-100,000. Some of the largo manufacturers have stated that they may be able`to license their asbestos-free formulations (or parts of them) to smaller firms that wish to avoid or cannot afford the expense of reformulation, if those non-asbestos formulations do not contain sufficient contamination to be banned. The projected cost of sucb licensing agreements to the licensees has not yet been made available to us. All manufacturers may have to assess the amount of asbestos contamina tion in their products, and incur some testing costs, either by their own technical staffs or by outside testing laboratories. Alternatively, talc suppliers may be asked to certify that their shipments contain less than a certain percentage by weight of asbestos, as determined by the amount of talc in Lite final product. Testing by manufacurers may be limited if careful raw materials selections are made. Talc-containing formulations-may be altered, or discontinued in some cases, to the extent that manufacturers perceive that existing formulations would be banned. SGP 0009395 -18- It is likely that, since average retail turnover rates arc relatively slow (stocks turn over in approximately two to six months for moat stores), some banned products may remain in inventory whether the effective date is 30 days or 130 days. Producers and distributors may still be able to sell their inventories to industrial users, with some delay or some reduction in price to industrial buyers to the extent that short-run finished goods supplies exceed short-run demand. In general, the shorter the effective date, the greater the adverse effect on retail inventories will be. Effects on Competition ' If some of the producers of patching compounds go out of business or cease production temporarily or permanently as a result of the ban, the producing industry will become more concentrated. The overall and regional market shares of some producers may increase. This increase in concentration may be slight nationwide; however, significant increases in regional concentration may occur, since the firms likely to be put out of production are typically specialized, serving only certain regions, with few regional competitors. The promulgation of the ban may also affect, for some time after the effective date, the competitive posture of some of the smaller firms which remain in the industry if their newly-reformulated compounds arc relatively less desirable from a cost or performance standpoint and if their sales arc adversely affected as a result. A competitive advantage would be afforded those firms with the greatest reformulation expertise. The current competitive advantage hold by producers of asbestos-containing compounds will tend to disappear or be reversed until such time as all formulators can develop satisfactory products that are not banned. SGP 0009396 Other Effects -19- Some industry sources have indicated that substitute raw materials, particularly attapulgite clay, may be in short supply in 1977 and 1973, and that current supplies may be insuffici.cnt to meet the increased demand generated by patching compound manufacturers formulating with attapulgitc for the first time. Thus, some of these firms may lose sales and profits for a period of time until supplies are sufficient to continue production. If the major manufacturers continue production of current reformulations and can raise their prices as a result of the ban (sec sections on the Cons true t'ion Industry and Consumers, below), those firms or their patching compound-producing divisions may enjoy slightly higher profits, at least until other firms' products are perceived by purchasers.*'to be equivalent or better in terras of price and performance. Impacts of the .Proposed Ban on the Construction Industry Cost Effects The drywall finishing industry is generally sensitive to two mnjor factors when purchasing and using patching compounds: price and performance. Both of these factors are likely to be adversely affected by the reforavalatic.. or discontinuation of compounds in order to comply with the ban. It appears that, because of competitive pressure from asbestoscontaining formulations in recent years, producers of asbestos-free formulations have not yet passed on to purchasers their increased coots of production and research. If the increased costs of making asbestosfree formulations can be passed on as a result of the ban by virtue of the fact that all producers will have to market asbestos-free formulations SGP 0009397 -21- ref incmcnts are made in asbcstos-fmc formulations; however, the widespread use of non-asbestos-containing compounds can be expected to result in less efficient drywall finishing and use of the product in terms of more material needed, more sanding required, and more time spent in actually applying the compounds and waiting for them to dry. Some contracto may be prompted to add their own asbestos to the product, if the improvement in the products' performance is perceived to be substantial. This practice would present a hazard which may be greater than the one the. Commission intends to reduce. There may also be an adverse effect on aesthetics, since premature shrinkage and cracking can occur. This reported inferiority of asbestosfree products may also be expected to diminish in' subsequent years as more nature reformulations are offered which cover joints, cracks, and nailheads more satisfactorily. Until such time as drywall finishers become more accustomed to using asbestos-free products, some jobs may have to be done over. Health Benefits to JVvwall Contractors Though the proposed ban is intended to protect consumers, the main health benefit will probably accrue to drywall contractors, if the use of asbestos-containing compounds by this industry is prohibited. Drywall mechanics arc the heaviest (i.e., almost daily) users of the product. Some benefits, in the form of longer life and reduced illness, may accrue to .these workers. The possible continued practice of adding raw asbestos to patching compounds in the field may offset this benefit somewhat. Other Effects To the extent that contractors' inventories are banned and to the extent that the availability of new asbestos-free compounds is delayed on a local basis, housing construction and renovation projects may be delayed up to several months, resulting i.`n an inefficient allocation of construction industry resources. SGP 0009398 -22Impacts of the Proposed Ban on Small Business As noCed above, most of the manufacturers and professional users of patching compounds arc small businesses. Small manufacturers may be disproportionately affected by the ban. They are the firms without extensive reformulation capabilities. Their products, which may often be sold in specialized geographical regions under specialized climatic conditions, arc most likely to be affected adversely by the use of substitute for asbestos when reformulation is achieved. Small producers may not have comparable access to supplies of substitute raw materials, particularly attapulgite, which m3y be in short supply in 1977 and 1970. Small producers may also,be in a less favorable position than larger firms to pass on cost increases to contractors because of long-term contractual price agreements. Those factors may afford a competitive advantage to the larger firms in the markets for the product affected by the ban. Since virtually all drywall finishing contractors are small, the impacts of the ban on this industry would be relatively uniform. The ban may hove adverse effects on contractors, including possible temporary reductions in employment, if drywall finishing cannot b completed due to regional materials shortages; this could lead to overall construction delays. Impacts on Consumers . Price Effects The average price of patching compounds may rise as a result of the ban. We estimate that price increases will occur to reflect, at the minimum, the`5-15 percent production cost increases. Thus, for example, a 1-gallon container of wet material, which typically retails at about $4.00, may increase in price by about $.20-.60; a 5-gal.lon container -- that inoat commonly used by drywall contractors -- which SGP 0009399 -23- typically cells in retail stores Cor $7.00 - 10.00, may increase in price by about $.35-1.50. Similarly, a 5-pound container of dry material, which typically retails at about $2.50, may increase in price by about $.12-.38. Some prices oC consumer-market patching compounds may increase disporportionntely to compensate for cost increases which cannot be passed on to the primary market of professional contractor because of contractual arrangements, etc. Prices of other paint and drywal1-rclated products (such as textured coatings, wnllbonrd, plaster, etc.) may also rise slightly to cover cost increases or other losses associated with patchingi,,compoundo. . If the total increase in patching compound production costs can be passed on to end-purchasers as a result of the ban, the total annual price effect for the year following the issuance of the ban may be $10 60 million. The magnitude of this effect may be reduced significantly in successive years as producers' development costs are amortized, as substitute raw materials and asbnesLos-free formulation technology become more widely available, and as price competition is increased because of market pressure and economics associated with full-scale production. To the extent that new construction and renovation labor costs are increased, there may be effects on the prices of new housing and renovation projects. As noted previously, the total annual direct labor cost associated with drywall finishing is around $1 billion, and the promulgation of the ban may lead to a $50-125 million increase in this cost. This would amount to an average of about $28-70 per new residential housing start in 1978, assuming a housing start rate of about 1.8 million in that year; far a 10* x 15' room, the increase may be about $5 to $10. The burden of the increased cost is expected to be spread across owners of existing homes who may engage in some renovation, and on purchaser of newly-renovated or ncwly-construcLod homes, though indirect long term price effects may accrue to users of.affected facilities such ns schools, ctorc, end other public buildings. 3GP 0009400 Ill - 4 (c) Product Packaging "Patching compounds" are sold in a wide variety o consumer and commercial packages. Consumer packaging is typically one gallon or less of premix (wot) and five pounds or less of dry mix. Often consumer packages include tape and an application knife. * Commercial packaging for premix is typically four gallon or fifty pound boxes (in a plastic bag) or five gallon or 62.5 pound pails. Commercial packaging for dry mix is typically 25 pound ' bags. " (d) Related Products "Patching compounds" are inherently part of the drywall construction process. Tape joint cement, tape, and corner beads make up the drywall finishing system. `The drywall itself is gypsum wallooard. About 13 billion square feet of gypsum wallboard were produced in 1976(2) with a manufacturer value of shipments of approximately $850 million.(3) Hanging and finishing labor for this amount of drywall would be on the order of $2.5 billion.(4) SIZE OF MARKET There are no published series of data recording prices and total sales volumes for "patching compounds." Estimates have been developed based on industry contacts. . (a) Pricing Typical prices for premix at the manufacturer level are about $1.00/gallon. For dry mix, typical prices are about about $.12/pound. Consumers prices are generally much higher ranging from about $1.00 to $4.0U for half pint to 1 gallon cans. (b) Total Mar ket The annual value of "patching compound" shipments were in the range of $90 to $150 million for 1976 based on different sources and methods of estimation. Kearney's best estimate is $120 million. (2) U. 5. Bureau of Mines (3) Composite of Industry Estimates (4) R. S. Means' Estimate SGP 0009401 OO Ill 5 (c) Market by _User Category . Kearney's estimates of sales by user category arc shown in the table below: Table III - 2 Estimated Percentage of Annual Sales of "Patching Compounds" by User Category User Category Consumer Dwellings Professional Remodeling Dwellings New Dwelling Commercial/Institutional Industrial Total Estimated Percentage of Sales 5% - 8% ) ) ] 10% - 22%] 42% - 55% 15% - 20% 5% - 10% . f * Total residential remodeling expenditures. ' Source: A. T. Kearney, Inc. F.W. Dodge Reports Total 19 7 fc Construct Expend:tu 28%* 41% 18% 13% 100% By weight, the consumer represents a smaller percentage of the total of the market than by dollar sales. This is due to the consumer pattern of purchasing smaller packages at a higher unit price. Kearney estimates that consumers purchase from 3% to 6% of total production by weight. STRUCTURE OF THE MARKET The flow of "patching compounds" from suppliers of raw materials to end users is graphically illustrated in Exhibit III-l. These stages include raw materials suppliers, patching compound manufacturers, distributors, retailers, and professional and con sumer applicators. The role of each of those groups in the market place is briefly discussed on the following pages. SGP 0009402 Ill 6 (a) Raw Materials _Suppl ier s Raw materials used in "patching compounds" includes lime stone, mica, talc, asbestos, clays, and other minor ingredients. The raw materials are generally supplied by large companies. The percentage of their production sold to the "patching compound" manufacturers is very small compared to overall production. For instance, the Asbestos Information Association (AIA) reported to the Commission that approximately 10,000 tons of asbestos were used annually in "patching compounds." This compares to an annual U. S. consumption of 750,000 tons of asbestos. Since the AIA report, Calidria reported to the Commission on August 15, 1977 that asbestos use was significantly reduced due to the "patch ing compound" industry's increased use of asbestos substitutes. (b) "Patching Compound" Manufacturers . "patching compound" manufacturers (see Appendix G) may be described as belonging to one of three groups. 1. Independent Operations. Thirty-eight firms or divisions were identified whose primary products include "patching compound". Many of these are "small businesses" who typically employ ten to twenty workers, have limited financial resources, and are not well prepared to conduct extensive product research and development. These firms are typically single-plant operations and usually supply a limited number of contractors. Their markets are characteristically regional due to shipping cost and limited sales force. They typically have annual sales of $1 to 2 million. 2. Drywall Manufacturers. Six firms, (Celotex, Georgia-Pacific, Grand Rapids, Kaiser, National Gypsum and U.S. Gypsum) were identified who manufactured both wall board and "patching compound". These firms are major corporations. Three of these firms (Georgia Pacific, National Gypsum, and U.S. Gypsum) are estimated to supply approximately half of the total "patching compound" market. Those three firms claim to have ceased manufacturing patching compounds with intentional asbestos additions. 3. Paint Manufacturers. Four firms were identified who manufacture paint as well as "patching compounds". These companies are not generally considered "small businesses". It is estimated that "patching compound" is not a significant element of their product line. ' SGP 0009403 SGP 0009404 economic impacts. The market conditions in this application segment dominate the "patching compound" market due to its size and its professional specilization which results in sensitivity to product characteristics. DEFINITION OF "ASBESTOS-FREE" "Asbestos-free" can be defined as eliminating intentional additions of asbestos from the product with a practically attain able "minimum contamination" permitted or it can be more strictly defined to require an "absolutely free" from asbestos "patching compound" formulation. A "minimum contaminant" formulation is feasible and workable. "Patching compounds" are currently on the market which meet this requirement although the extent of asbestos contamination in these products is not known. The economic impacts associated with the interpretation of the ban are those associated with changing over and utilizing the asbestos-free formulations. ' An "absolutely free" asbestos requirement for "patching . compounds" is li.kely to be technically and/or economically infeasible. Asbestos contamination in raw material is common according to manufacturers. Methods of identification and measurement of small amounts of asbestos contamination are not well established. In order to assess the economic impact of this interpretation of the ban, it appears reasonable to consider its effect as eliminating "patching compounds" from the marketplace. In the long run, completely new, currently unidentified drywall finishing "patching compounds" might be developed, or some other finishing system might be invented and accepted. Elimination of "patching compounds" used to finish drywall would result in serious economic disruption in the construction and building products markets. IMPACTS ON CONSUMERS The impacts on consumers (aside from the beneficial health effects of the elimination of asbestos) will depend primarily on the impact on professionals since the consumer, economically, is primarily a purchaser of professionally applied product rather than a personal user. SGP 0009405 V - 10 It was generally reported that an expedited effort to reform ulate would increase the investment required ami could expose smaller companies to serious financial losses if unsatisfactory formulations were rushed to the market. Alternatively smaller companies expressed concern that if they ceased production until a satisfactory formula were developed/ they would lay-off employees and possibly lose customers to larger competitors. Three broad conclusions follow from this analysis: 1. The cost of reformulating is a function of time available (the more time the less likelihood of losses due to unsatisfactory product). The time available is to some extent a function of size of company. Larger companies can afford to allocate more resources at one time to the reformulation project. 2. The economic consequence of the reformulation investment is closely related to size of company. The larger the company the greater the available assets and also the broader the sales base across which the cost of reformulation may be allocated. 3. It is possible that if the required date for reformulation is*less than twelve to eighteen months after pro mulgation of the ban, the large companies will have a significant advantage over tneir smaller competitors who have not achieved acceptable formulations. The degree of competitive advantage will vary with the amount of ijmformulation'' time allowed.. Any reduced competition could adversely affect the consumer by permitting significant price increases. AVAILABILITY OF SUBSTITUTE MATERIALS Research indicated that companies who plan to increase their production of asbestos-free compounds, whether they are presently producing exclusively asbestos-free, both asbestos-free and asbestos containing compounds, or exclusively asbestos containing compounds, face two primary raw material supply problems. 1, Judging from contacts with the two primary producers of attapulgite, this key asbestos substitute may be in short supply for the rest of 1977 and may not be readily available for 6 to 12 months. 2. The othor asbestos substitutes used with attapulgite are more readily available but may require more than 30 days to procure in quantity sufficient for production of new formulations. Kearney Consuliants SGP 0009406 V - 14 interviews were conducted on job-sites with employees who actually used the product on a day-to-day basis. The results of these interviews were not conclusive insofar as the amount of additional labor required is con cerned. However, the following points were noted: 1. Workers paid by the hour seemed less concerned about the quality of the product than those paid by the job. 2. Contractors using mature reformulations were less dissatisfied than those using a recent reformulation. 3. Many reported that U.S. Gypsum, which reformulated during 1975, had had a great deal of difficulty with the product for an extend-ed period, but had achieved a reasonably good pro duct after a year or so. Georgia-Pacific's ini.tial reformulated shipments of asbestos-free products were similarly perceived as less satisfactory than their asbestos formulations. . , 4. Some small contractors who paid their crew by the job rather than the hour reported that they had experimented with asbestos-free products but could not tell how much extra time was required to pe-rform satisfactory work because the crew refused to use the product long enough to develop a reasonable estimate. One of these contractors suggested 252 more labor might be required. A contractor who paid by the hour stated that his crew using an asbestos-free formulation regularly took about 25% longer, which cost about $150 more per house. Given the variety of inputs which did not yield readily quan tifiable results, Kearney attempted to estimate a range of possible cost increases which might be expected if the asbestos-free formu lations were required. 1. The increase in direct labor could not be too great or, despite the pressures to reduce, the use of asbestos, those manu facturers which do not use asbestos would have permanently lost a significant share' of the market. This statement is supported by the finding that the three largest suppliers are now manufacturing exclusively asbestos-free material. Considering a combination of factors including customer loyalty, some regional price cutting by asbestos-free manufacturers, and the concern of contractors, thoir customers, and their workers about the highly publicized health issues surrounding the use of asbestos, the highest reasonable estimate of increased labor would be 25%. SGP 0009407 Georgia-Pacific Corporation 900 S. W. Fifth Avenue Portland, Oregon 97204 Telephone (>03) 222-H61 fb b 0 Howbr 29, 1977 Hr* ft* ft* Byrne* Jr* Union Carbide Corporation Minins ft Metals Division P.0. Box 579 Sissarn Palls, fiw York 14302 Dear Bob: Please advise whan vs aighc aspect to receive Union Carbide's check to cover the earload of HPO asbestos returned to King City last August by our Marietta plant. Ve would like to get this whole natter cleared up before year-nod* Thank you* Very truly yours* -' ' . ,, Edvard l* Aasea Purchasing Manager Cypsue Division SLAshga cci Maasrs* IU V. Favero - Marietta Plant . D. C. Gorki11 - Portland (8) Mrs* G. McCrary - Marietta Plant . Cypatm Coat Dept - Portland (8) -j SGP 0009408 Georgia-Fbcific intracompany memo 10 Dave Gorkill from W. D. Brooks subject Joint System re: Asbestos ^ location location date Portland Dallas December 5* 1977 For your information, attached is a copy of a letter Proko sent to the trade. Apparently asbestos hasn't been banned} Proko is still selling asbestos type joint system. WDB/kb Attachment cc t Gene Burch W. D. B. !I I i SGP 0009409 I Ki ^J ------ PRODUCTS-* /' FIRST a " -r JJX. XX. V?V XV MX. W. XV /V XV IMPORTANT NEWS BULLETIN WAItK PAIN I : ond WATER PAINT SPECIALTIES August 17, 1977 .. Important Notice Subject: The use of Asbestos In Drywall Products - Is it legal or not? Much has been written and spoken by individuals, insurance companies, labor organizations and consumer advocates about the dangers and legality of the use of Asbestos in the Build ing Trades Industry; especially its use in Drywall Products both ready-mix and powder. In this bulletin we will seek to define our position as it relates to both Proko Industries, Inc. and our customers. As of the date of this bulletin the use of Asbestos in Drywall Products is legal as far as the Federal Government is concerned.. However, some states and local Municipalities have passed laws or ordinances banning the use of Asbestos in any product. Before ordering products for your area it would be advisable -to check these two areas out. If Asbestos is banned in your area, or if- a job calls for the use of a Non-Asbestos product; be sure and specify which type you need when ordering. Until recently the use of Asbestos in Drywlll Products has been under the control of the .Occupational Safety and Health Act and only applied at the manufacturing plant or when mix ing on the job-site. Under the provisions of the aforemen tioned act (OSHA), employees pannotbe exposed to excessive concentrations of Asbestos.fibers over an eight hour time- weighted period. The amount is (2) fibers per cubic centi meter of air. Also, employees at the manufacturing plants and job-sites must be given annual physical examinations and periodic monitoring of the air where employees work Is required. Records must be kept on these employees for thirty (30) years. Hedless to say this in itself creates quite a problem. . The Consumer Products Safety Commission on Friday, July 29, 1977, published In the Federal Register their Intent to ban "certain patching compounds" which contain respirable freeforn Asbestos. Under article 16cfr parts 1304 & 1305 of the THE r wc/ COMPANY Manu/aau'tr, "FINE WATER PAINTS" Gocaal Offices 1910 Wa.l ST. Dallas. Teas 7S2'9 42*1373 SGP 0009410 /. NJ "/ . Page 2 Subject: The use of Asbestos- in Drywall Products - is it legal or not? continued: .. . . aforementioned .Federal Register, Part 5, they propose to ban (consumer patching compounds uBed to join or repair interior vails aiid ceilings) which would, if implemented, nean. a total ban. on Asbestos in any Drywall Product, which has to bei mixed from a dry form cr any product which might - ba sanded af ter it is applied*. ..Interested parties are in- vited to submit'in writing, on or before August 29, 1977,. their comments ;to[Consumer Products Safety Commission, Washington, D. C.:. , . .. . = . . If.this proposed ban should become reality, Proko Industries, Inc., and all-other manufacturers of Drywall Products,. will . be. forced to.; discontinue the use of Asbestos in all Taping, Bedding, and Texturing Compounds. However, if this proposed ban in implemented,.and we beleive.that it will be, Proko Industries has Asbestos free products available at no sac rifice in quality. If Asbestos is banned it will probably be;somewhere around January 1, 1978. No one knows whether a recall-of products containing Asbestos will be a part of the order or not, but it could be. With this possibility in mind, we'will begin immediately to phase out the use of Asbestos inwall of.our Drywall Products. We hope this bulletin, which we beleive to be as accurate as possible, helps to clarify this touchy subject. .. ' . Sincerely, , ..'.c.- .----------- ' ---1 Proko Industries, Inc. SGP 0009411 .aeorgia-Fbcific ^ intracompany memo to Hr. W. D. Brooks from D. C. Corkill subject ASBESTOS IN JOINT SYSTEM PRODUCTS location location dale Dallas Reg Portland December 12 For your information, attached is a copy of the latest Consumer Products Safety Commission publication on asbestos in joint compounds. DCC:de Attach. cc: 0. . Burch - Portland D. C, C. SGP 0009412 1 43,784 ASBESTOS BAN PROPOSAL ACTION PERIOD EXTENDED The date by which proposed rule declaring two products containing respirable free-form asbestos to be banned hazardous products must be either promulgated or withdrawn has been postponed to November 28, 1977. The period tor action on the proposal was extended from September 27 by the Con sumer Product Safety Commission because the Commission needs more time to analyze the large number of technical comments received concerning the proposal. . The proposed rule would ban consumer patching compounds and artificial emberizing materials (embers and ash) containing respirable free-form asbestos. Preliminary determinations of the CPSC indicated that inhalation of asbestos fibers released during the use of these products presents an unreasonable risk of some types of cancer to the consum*r. The Commission also determined that these products are not adequately regulated by any other standard (42 F. R. 53970, October 4, 1977). See H 4004 I 43,785 PROBLEMS FORESEEN IN POSSIBLE LABELING RULE FOR FYROL Possible courses of action available to the Consumer Product $afety Com mission in response to recent Ames-test evidence that the flame retardant Fyrol FR-2 is mutagenic have been outlined in an October 5, 1977, briefing II 43,782 1977, Commerce Clearing Houie, Inc. SGP 0009413 UNITED STATES GOVERNMENT Memorandum U.S. CONSUMER PRODL . SAFETY COMMISSI WASHINGTON. D.C. 202 TO THRU THRU F ` See Distribution : S. John Byington, Chairmar^^/V^ Richard E. Rapps, Secretary ' Richard A. Danca,-.v& Office of the Secretary AT6: December], 1977 subject: p0jjow_jjp to Commission Meeting of December 1, 1977 (All Commissioners present and voting) AGENDA 1. ISSUE : Asbestos--Final Rule on Patching Compounds and Artificial Emberizing Materials DECISION: (A) Consumer Patching Compounds: Issue final ban. (B) Artificial Emberizing Materials: Issue final ban. (C) Scope of Ban on Patching Compounds: Approve scope as drafted. (D) Effective Date of Ban on Patching Compounds: 30 days for manufacture and initial introduction into interstate commerce; 180 days for all other sales. (E) Unintentional Addition of Asbestos Approve substitute language prepared by OGC as revised to read "to the maximum extent possible;'1 direct staff to prepare a proposal to study further a feasibly-attainable level of asbestos contamination. (F) Other Changes to FR Document: Commissioners to submit editorial changes, etc. to OGC. (G) Section 30(d) Rule: Approve with editorial changes. ACTION : OGC to redraft FR document to incorporate necessary changes OS~to circulate as ballot vote item. 2. ISSUE DECISION ACTION TAC/PPP Recommendation on Scent in Lighter Fluid Concur in resolution prepared by the advisory council. OGC to draft letter to lighter fluid manufacturers for Chairman's signature. . . OX COvtXMUtNT FAINTING 0MICf:l1?4 U>.JJ/U l-S SGP 0009414 AGENDA ITEM # 3. 4. . 5. Follow-Up to Commission Meeting of December 1, 1977 (Cont.) 2. ISSUE : DECISION: ACTION : ISSUE : DECISION: ACTION : ISSUE DECISION: ACTION : Recommendation to Accept Corrective Action Plans: Bombardier, Ltd. snowmobiles, ID 77-50; and Mikuni American Corp, snowmobile carburetors, ID 77-51 Accept and monitor corrective action plans; do not pursue timeliness case against either company. PDCD to take appropriate action. Also, staff to coordinate with Canadian Minister of Consumer and Corporate Affairs on Bombardier case and future section 15 cases involving Canadian companies. Recommendation to Accept Corrective Action Plan: Philco Consumer Electronics Corp. color television sets, ID 77-64 Accept and monitor corrective action plan. PDCD to take appropriate action. Recommendation to Close Possible Substantial Product Hazard Case: Cutler-Hammer, Inc. circuit breakers, ID 77-63 Close the case; do not pursue timeliness case. PDCD to take appropriate action. . CLOSED PORTION 6. ISSUE DECISION ACTION Freedom of Information Appeal from the Aluminum Association Deny appeal. OS to take appropriate action. Distribution Chairman Bylngton Commissioner Franklin Commissioner Pittle Executive Director Deputy Executive Director Associate Executive Directors Office Heads , FO for distribution to Area Offices SGP 0009415 Nr. c. w. Uhnert, OyptvNi Qiv' Qeorgta-Paciflc - Tigard. Ora, 1603 Orrington Ave., Suite 1210 Evanston, Illinois 60201 (312) 491-1744 December 27, 1977 TO ALL MEM8ERS OF THE MANUFACTURING & MINING COMMITTEE Subject: Consumer Product Safety Commission Asbestos Patching Compound Can Effective January 16, 1978 Gentlemen: The attached December 15, 1977, Federal Register covers the Consumer Product Safety Commission^ final rules for consumer patching compounds containing respirable, free-form asbestos effective January 16, 1978. Page 63363 of the Register, 1304.5 (b), specifies that consumer patching coumpound include drywall spaekling and tape joint compounds. files. This material Is forwarded for your information and . Very truly yours GYPSUM ASSOCIATION FJR:mf Attachments cc: Technical Committee F. J. Rogers Secretary V SGP 0009416 Georg&fecfffe ^ route slip LOCATION ATTN: p/C PLEASE MANGLE TO CONCLUSION READANO ONE ME YOUR COMMENTS PLEASE REAOANO RETURN OATE FROM GP02 \Zo FOR YOUR FILES FORYOUR APPROVAL O PER YOUR REQUEST SGP 0009417 THURSDAY, DECEMBER 15, 1977 PART III fc/f? A&ev/fTjt- CONSUMER PRODUCT SAFETY COMMISSION CONSUMER PATCHING COMPOUNDS AND ARTIFICIAL EMBERIZING MATERIALS (EMBERS AND ASH) CONTAINING RESPIRABLE FREE-FORM ASBESTOS Banned Hazardous Produets SGP 0009418 63354 RULES AND REGULATIONS [6355-01] TMte 16--Commercial Practices Also on July 29,1977, the Commission the CPSA. Pub. L. 92-573, 86 Btat. 1231. proposed In the FzszaM. Rsomrsa (42 as amended, 80 Stat. 510, 15 Ujb.c. FR 38783) a regulation under the CPSA 2078(d), the Commission amends Title CHAPTER If--CONSUMER PROOUCT that would declare as banned hazardous 16, Chapter n, Subchapter B, by adding SAFETY COMMISSION products, consumer patching compounds new II 1145.4 and 1145.5. auBCMAPm iBrir aA--CTcoRnCsOuUmLAcTaIOpNr*oduct PART 1145--REGULATION OP PRODUCTS SUBJECT TO OTHER ACTS UNDER THE CONSUMER PRODUCT SAFETY ACT Consumer Patching Compound* and Artifi cial Embar!zing Metadata (Ember* and Aali) Containing Respirable Free-Form Asbestos AGENCY: Consumer Product Safety Commission. ACTION: Final rules. SUMMARY: Hie Commission Issues final rules determining that It is in the public interest to regulate consumer patching compounds and artificial emberising ma terials (embers and ash) containing res pirable. Tree-form asbestos, for the pur pose of addressing the risk of cancer associated with Inhalation of asbestos and artificial emberlzlng materials (em bers and ash) containing respirable free form asbestos. The Commission's reasons in the pro posed section 30(d) rule for proceeding under the CPSA rather than the FHSA are: 1. The rulemaking proceedings for regulation of these products under the FHSA are likely to be lengthy and re source-consuming. 2. Rulemaking proceedings under the CPSA are governed by provisions of the Administrative Procedure Act (6 UJS.C. 563), and are Informal and nonad- versarial In nature and thus It would be more likely that participation of the pub lic, including consumers, would be forth coming in rulemaking proceedings under the CPSA. . 3. The Commission believes that civil penalty provisions available under the i 1145.4 Consumer patching compound* containing respirable free-form asbeatoai risk of cancer auoclated with Inhalation of asbestos fibers. (a) The Commission finds that It Is In the public Interest to regulate the risk of cancer associated with Inhalation of asbestos fibers from consumer patch ing compounds containing respirable free-form asbestos under the Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous Substances Act (FHSA) because of the desirability of avoiding, possibly lengthy resource consuming. inefficient rulemaking pro ceedings under the FHSA and because of the availability of civil penalties under the CPSA for knowing noncompliance. (b) Therefore, consumer patching compounds containing respirable free form asbestoe are regulated under CPSA. fibers, under the Consumer Product CPSA against persons who knowingly fi 1145.5 Emherlalng materials (embers Safety Act (CPSA) rather than under violate the CPSA may provide additional ,and ash) containing respirable free the Federal Hazardous Substance^ Act Incentive for compliance under the form asbestos; risk of cancer asso (FHSA). According to the CPSA. a risk CPSA. The FHSA does not provide the ciated with Inhalation of asbestos of injury that could be eliminated or remedy of civil penalties. fibers. reduced to a sufficient extent under the FHSA may not be regulated under the CPSA, unless the Commission finds by COWfZNTS (a) The Commission finds .that It Is in the public Interest to regulate the risk No comments were received by the of cancer associated with Inhalation of rule that it Is In the public Interest to Commission which deal directly with the asbestos fibers from artificial emberlstnc do so. proposed section 30(d) rule. In com materials (embers and ash) containing EFFECTIVE DATES: For consumer patching compounds containing respi rable, free-form asbestos, this rule be comes effective on January 16,1878. For artificial emberlzlng materials (embers and ash) containing respirable free-form asbestoe. this rule becomes effective De cember 15,1877. FOR FURTHER INFORMATION CON TACT: ments on the proposed ban, however, several persons in the marketing chain commented approvingly on the decision to regulate under the CPSA because CPSA does not require repurchase of banned hazardous products by manufac turers, distributors, and retailers. On the other hand, several groups of consumeroriented Interests noted that they would have preferred regulation under FHSA because FHSA provides for such re respirable free-form asbestos under the Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous Substances Act (FHSA) because of the desirability of avoiding possibly lengthy, resource-consuming, Inefficient rulemak ing proceedings under the FHSA, and because of the availability of civil pen alties under the CPSA for knowing non compliance. Charles M. Jacobson, Compliance and Enforcement Regulatory Management Division, Consumer Product Safety Commission, Washington, D.C. 20207, 301-482-6400. purchase. As noted In the proposed section 30(d) rule, the Commission is aware that regu lation under CPSA would preclude man dated repurchase of banned hazardous products. However, the CPSA does not (b) Therefore, artificial emberlzlng materials (embers and ash) containing respirable free-form asbestos are reg ulated under the CPSA. Effective dates: Section 1145.4 be SUPPLEMENTARY INFORMATION: preclude voluntary arrangements for re comes effective January 16,1878. Section Backoboukv On July 28, 1877, by publication of a purchase back up the distribution chain. Moreover, the advantages enumerated above, particularly, the advantage of 11455 becomes effective December 15. 1877. notice In the PssntAL Rboxstib (42 Fit having a final banning regulation In (Sec. 30(d), Pub. L. 82-573. 85 Sttt. 1231 38782), the Commission proposed a rule force without having to first provide for ae amended. 80 Btat. 510 (IS US.O. 2019 under section 30(d) of the Consumer lengthy adjudicatory proceedings, ap (d>>.) . Product Safety Act (CPSA) (16 UJ9.C, 2078(d)) as amended, that it is 8a the public Interest to regulate consumer patching compounds and artificial em berlzlng materials (embers and ash) pears to the Commission to be more beneficial to consumer health and safety than the refunds consumers would have under FHSA. In the matter of artificial emberlzlng materials, repurchase under Dated: December 12.1877. Shzldoh D. Butts, . Assistant Secretary, Consumer Product Safety Commission. containing respirable free-form asbestoe the FHSA would have meant that many under the CPSA rather than under the persons In the chain of distribution (PH Doc.77-36744 Ptlied 12-12-77:11:82 am| Federal Hazardous Substances Act (FHSA), (18 UJS.C. 1261-1274). Section would have handled these materials rather than disposing of them quickly [6355-01 ] 30(d) reads: A risk of Injury which I* ssocl>Ud with a .consumer product and which could be UmlnaUd or r*duo*d to a sufflcUnt extent under the Federal Kasardoue SubeUnoee Act * * * may be regulated under the CPSA only if the Oommlesion by rule that it In order to avoid additional exposure. Accordingly, the Commission finds that for the health and safety of con sumers, it Is In the public interest to regulate consumer patching compounds and artificial emberlzlng materials con taining respirable free-form asbestos CONSUMER PATCHING COMPOUNDS AND ARTIFICIAL EMBERIZINO MATERIALS (EMBERS AND ASH) CONTAINING RESPIRABLE FREE-FORM ASBESTOS Establishment As Banned Hazardous Products Is In the public Interest to regulate euch risk under the CPSA rather than the FHSA. AOENCY: Consumer Product Safety of Injury under (the CPSA.) Therefore, pursuant to section 30(d) of Commission. FtOBtAl lEOItm. VOL 41, NO. 241--THUtSOAY, DCCtMtfl 15. 1*ZF SGP 0009419 RULES AND REGULATIONS 63355 ACTION: Ttatl rales. On July 29,1977, by publication of a information available to the Commission SUMMARY: In this document the Com mission declares that the following prod ucts containing respirable froe-form as bestos are banned haiardoue products under the Consumer Product Safety Act: (1) consumer patching compounds used to loin or repair interior walls and ceil ings (mixing of the product before It is applied, sanding of the product after It Is dried, and cleanup after completion of the process, release asbestos fibers that can be inhaled); and (2) artificial emberising materials (embers and ash) used in fireplaces to simulate live embers and ash (ordinary air currents In the house hold move ssbeetoe fibers that can be In haled). The Commission Issues this ban in order to reduce or eliminate the unrea sonable risk of Injury from certain types of cancer that may result from Inhaling asbestos fibers released during the use of notice In the Pkdeul Rmjsrb <42 PR 88783). the commission also proposed a rule finding that It la In the public In terest to regulate consumer patching compounds and artificial emberizlng ma terial! containing respirable free-form asbestos under the Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous Substances Act (FHSA). Section 30(d) of the CPSA (18 UJ3.C. 2079(d) > requires the Commission to make such a finding by rule, before regulating under the CPSA, a risk of in jury which could be reduced or eliminat ed to a sufficient extent under the FHSA. The Commission issues this rule else where In the IkszxAi. Rxqisto. The data in these proposals are incorporated here in. by reference. Section 9(a) (2) of the CPSA requires that, in addition to providing an oppor indicated that most patching compounds for eommercial/industrUd use are dis tributed in such ways that consumers have access to these products (61) either by purchase or for their use and enjoy ment. Therefore, the Commission con cluded that these are consumer products subject to the Commission's Jurisdiction unless such patching compounds are la beled as, marketed, and sold solely for Industrial use. 1. Patching compounds as consumer products, (a) Several commester* re quested a clearer definition of consumer patching compound and a manufacturer questioned the boundaries of the term "consumer product" The manufacturer states that the definition of consumer patching compounds in the ban has been improperly broadened to include Juris diction over building materials. He be these products. EFFECTIVE DATES: (1) For consumer patching compounds containing respira tunity for making written submissions, the Commission shall provide Interested persons with an opportunity to make oral presentations of data, views or argu spbulreoeddfruebceet-!lfomowramnauatfsasbceetcsuttorioesnd, toh1re3I0nr4ei.tgiaauplllapytliiIoenns Istto rompree-nstersinnrtmaetlmiaotnii--nsgioonntothpaernobpaoAnsusaglwsuestortebh1a8en.a.r1Od97rba7y.l AduhcaeaAd fInnttAo AcoAmmmmsePrAcAe mon JJoanniiuRaPrVy I1s6/.' 1978, or after that date. For all other Vie_w___s__o__n_..t.h. e.__b__a__n_s___a__r_e___d__i_s_c__u_s__s__e^d b.e<l_o__w_ under Comments on Proposal. consumer patching compounds contain ing respirable free-form asbestos, jio matter when manufactured or initially Iintroduced imntmo conmmmeerrccee..,vtQhe regulua.tuion. In order to have sufficient time to re view all the responses to the banning proposal,4>imncl7ud(i4nagmlat8a3#7re0s)p, othnseecso, mon. lieves that the CPSA permits regulation only of articles used within the home, not the structure of the home Itself or the Integral parts of the structure. He states that since consumers have access to patching compounds containing res pirable free-form asbeetoe through moet marketing channels, these product* can be considered consumer products under the CPSA. Thus, he believes that it was lAauproprlate to cite a recent case, (`TUS-A. v. Anaconda Co. et aL." Mize. No. 77-8024. (DD.C.) June 15. 1977) berizfng materials containing respirable free-form asbestos, the regulation issued below at section 1308 applies to products In commerce on December 18, 1977, or after that date. FOR FURTHER INFORMATION CON TACT Charles M. Jacobson, Consumer Prod uct Safety Commission. Compliance and Enforcement Regulatory Manage ment Division, Washington, D.C. 20207, 301-492-8400. SUPPLEMENTARY INFORMATION: m19U778.totnheti"me Ind w"hi"ch iNtomveumstbeerith*er publish a consumer product safety rule or withdraw the proposals to ban. This date was further extended until Decem ber 12. 1077, by notice published in the Fmmuu RenisTn on November 29, 1977 (42 PR 60762). Commits on Psorosu. Oral views on the proposal were pre sented by 7 persons on August 16, 1977 with 3 representing consumer groups and 4 representing manufacturers. In addi tion, the Commission received 30 writ ten comments which represented 17 which indicates that the presence of a product in a consumer environment can help decide whether that product la a consumer product under the CPSA, Therefore, the commenter urge* "the Commission in It* final regulation to de lete" the paragraph on "Anaconda" case In order to "avoid the creation of an un necessary conflict * * * within the reg ulation Itself." ' In response to this comment, the Com mission notes that the paragraph which cites the case In question is not in the proposed regulation but In that part ot the preamble which explains the regu lation. in the preamble, the commission Backs iouxd On July 29, 1977, by publication of a notice in the Pxpiul Rxomrta (42 PR 38733), the Commission proposed rule* to declare that consumer patching com pounds and artificial emberlzlng materi als (embers and ash) containing respira ble free-form asbestos, are banned hasardous products under the Consumer Product Safety Act (CPSA). These raise were proposed because the Commission preliminarily determined that an unrea sonable risk of Injury of certain types of cancer, such as mesothelioma and lung cancer, Is associated with lnh&lable as bestos found In these products. The In formation on which the Commission's preliminary determination was based Is set forth in the proposal. The data tax the proposal are Incorporated herein by reference. The bibliography of 60 refer ences cited in the proposal are repeated in this preamble for convenience. Num manufacturers and 2 distributors; 4 fed eral agencies; 3 public interest groups; 2 concerned citizens; a supplier of raw materials; and a chemical research and development firm. Among the 10 cornmenters who expressed support for the ban were 6 manufacturers of patching compounds, 3 federal agencies and 2 pub lic Interest groups. The significant issues raised by the oral and written comments are set forth below. A. Scope and definition. The proposal states that consumer patching com pounds are those that are customarily produced or distributed for sale to or for the personal use, consumption or enjoy ment of consumers in or around a house hold or residence, a school, in recreation or otherwise. The Commission considered. In the proposal that patching compounds for application in these consumer en vironments are either distributed for sale cited "Anaconda" not In reliance on the ease as a basis for regulation but to show how the case Interprets the definition of consumer product at section 3(a) (1) ot the CP8A which reads. Tbs term "consumer product" mesas any article, or component pert tbsrsof, produoed or distributed (1) for sals to a consumer for ust In or around a parmanant or temporary household or ratldenoa, a school. In rocrea- Uon, or other*!**, or (11) for tha personal uaa, consumption or enjoyment of a con sumer in or eround a permanent, or tempo rary household or residence, a school, in recreation, or otherwise; - Although courts have not yet reached a definitive decision on the coverage of the term ``consumer product," the Com mission believes that the statute and leg islative history, by themselves, afford sufficient authority tor Commission Jurisdiction over the defined product and Its use in consumer environments. It ap pears to the Commission that the defini ber* 81 and over refer to additional lnfor- to consumers or are for the personal use tion of consumer patching compound In nation considered In issuing this rale. or enjoyment of consumers. Moreover, the proposal falls within section 3(a) (1) KDHAl MOISTM, VOL 4*. NO. 241--INUISDAY. PKIM9M 18, 1*77 SGP 0009420 63356 RULES AND REGULATIONS Of th CPSA and Out the "Anaconda." Occupational Safety and Health Ad to amend the definition of patching case underscores the definition. ministration of the Department of Labor compound at 1 13042(d). In order to minimize any confusion, (OSHA) and, since the consumer part 4. Asbestos terminology for both prod a new subsection (c) has been added to of his business Is small, the ban should ucts. (a) In discussing the proposed defi 1 1304.1 Scope and Application, to show not apply to compounds for commercial nition of "asbestos." a writer from a the coverage permitted by the CPSA. mid industrial um. chemical research and development cen That subsection reads: / As is indicated herein, any patching ter states that "silica" is a chemical com (c) only eonsumsr products are subjeot compound containing respirable free pound and as a compound Is not a com to this regulation. Patching compounds form asbestos that consumers have ac ponent of asbestos. He suggests that the which ere consumer produces are those which a oonsumer can purchase. Merely hMU| e patching oompound for Industrial u*e would not exduda such article* from Ufa ban. If the sale or use of the product by consumer* la facilitated. It Is subject to the cess to in consumer environments or may purchase would be subject to the ban. Therefore, such products, although they may be for Industrial/commercial use, are also considered to be consumer word "silicon" be used to denote that it la a single element which is present in asbestos. The Commission concurs that the term "silica" should not be used, but ra ben. Patching compounds which are labeled products. ther it should be "silicates," since asbes as. marketed, and sold solely for industrial i On the subject of regulation of these use in non-oonsumar environments are not subject to the ban. In addition to those prod* ucts which can be sold directly to consumers, the ban applies to patching compounds con* 'products by OSHA, the Commission notes that section 31 of the CP8A provides that the Commission shall have no authority talnlng respirable tree-form asbestos which to regulate any risk of injury associated tos is a generic term used to describe a number of naturally-occurring hydrated mineral silicates. Therefore, the word "silica" is deleted from the definition of asbestoe in II 13042(b) and 1305.2(b) are used in residences, schools, hospitals, with a consumer product if such risk below and the term `Jhydrated silicates" pobilo buildings or other areas where con could be eliminated or reduced to a suffi is substituted therefor. sumers have customary access. cient extent by actions taken under the (b> A public interest group takes is It* la clear from this language that use Occupational Safety and Health Act of sue with the definition of asbestos used of patching compounds in consumer en 1070. Under that Act, OSHA has issued in the proposal and urges the Commis vironments determines their status m regulations which specify the airborne sion to adopt a definition of asbestoe consumer products, whether the patch concentrations of asbestos fiber* to which proposed by OSHA in 1075. The defini ing compounds are applied profession any employee may be exposed (20 CFR tion of asbestos used in the Commission ally or by consumers And, although the 1010.03a). However, OSHA regulation*-, proposal is beised on the definition used hazard may be greater for professional apply only to workplace* and not to by the Bureau of Mines (56). The com users of patching compounds because of placet where consumer* would use the menter believes that the OSHA proposed their repeated exposure, residual dust product* themselves. Therefore, the definition could help resolve disputes from sanding during construction or Commission considers that action* to over the presence or absence of asbestos renovation Is also a hazard to consumers regulate this product which can be taken in consumer products. - who may not apply the patching com under the Occupational Safety and.. As the commenter pointed out several pounds themselves <36). Health Act of 1070, cannot reduce or federal agencies with responsibilities for lb) A manufacturer who supports the eliminate to a sufficient extent the un regulating asbestos (EPA. PDA. OSHA. ban states that he would have no way reasonable risk of injury to consumers CP8C) are working toward a uniform of policing the sale of different size con that is associated with the product Ac definition of asbestoe. At a recent work tainers. Therefore, although he packages cordingly, the Commission regulate* shop. July 16-20, 1077, at the National a l-gallon size of patching compound for this product under the CPSA. Bureau of Standards on asbestos defini sale to consumers and a 6-gallon size for- S. Type of patching compound covered tion and identification problems,' It was commercial-industrlal use, he believes by the ban. A manufacturer of caulking, agreed that there should be a uniform the ban should apply to all size*. sealing, glazing, adhesive and coating definition of asbestos which would be Given the availability of patching products believes the reputation of his mineralogically correct as well as reflect compounds to consumers through most product could be adversely affected by health concerns. However, there was marketing channels, the Commission the ban. Although the Commission has dearly a lack of agreement on a defini agrees that it would be burdensome for stated that the banned product presents tion and an interagency agreement on a manufacturers and distributors to assure a hazard because It Is mixed, sanded and definition has not yet been reached. that large sizes of patching compound*, moved about during cleanup operations; The definition which the commenter which they claim to be Industrial prod the commenter believes that the defini urges the Commission to adopt was pro ucts, are not sold to consumers. More tion of the banned product should spe posed by OSHA on October 10, 1075: it over, as noted in the preceding response, cifically exclude the above-listed prod has not yet been finalised and is subject merely labeling a patching compound uct* because they are designed to remain to change. The OSHA proposed defini for non-consumer use would not exclude flexible and are. therefore, not gener tion reflects OSHA's concern for the such articles from the ban. Where a ally sanded. Therefore, the commenter health aspect* of asbestos and is based manufacturer, distributor or retailer requests that the definition be -mended on experimental rinding* associated with fosters or facilitates the product's sale to cover only those compounds, "which fiber morphology (size and shape). The to or use by consumers, the product is after drying are requited to be or are Bureau of Mines also seeks to encourage considered a consumer product and la normally sanded to a smooth finish." uniform definition. Their definition within the scope of this ban. This com In response to this comment, the Oosn- which waa used by the Commission is ment indicates that it may be exceed mlsslon note* that the patching com based on minera!ogled composition. This ingly difficult to differentiate a patching pound* subject to the ban are those that has been adopted in final form by that compound that is a consumer product contain asbestos which can be inhaled agency. from one that might be termed a prod as a result of mixing, sanding and clean The Commission has reviewed much of uct for industrial use only. Neverthe up operations. Therefore, patching ma the available data on the characteristics less, as stated in section 1304.1 (e) Scope terials such as those listed by the com of asbestlform mineral fibers and their and Application, "patching compounds menter which are not sanded after nonasbestos counterparts. Prom these which are labeled as, marketed, and sold application because they are intended to data. It would appear that use of the solely for Industrial use In non-oonsumer remain flexible, would be exempt if they proposed OSHA definition could also in environments are not subject to the are not available in dry, ready-to-mix clude nonflbrous cleavage fragments and ban." form. The Commission believes it Is other particulate substances, as well as 2. Regulation of patching compounds clear that only consumer patching com other mlnerd fibers within the proposed by OSHA. A manufacturer of dry-wall pounds containing asbestos which can dimension range that are not asbestos Joint compounds states that the commer be inhaled when the product Is in dry fibers. While the Commission la inter- - , cial and professional market for such form or being sanded are subject to the ested in arriving at an unambiguous uni compounds is already regulated by the ban and therefore declines in this case form definition of asbestos, there is not KDKAl HKWfm, VOL St, NO. 341--THUKS0AY, PIClMgfK 13. WT SGP 0009421 RULES AND REGULATIONS 63357 yet enough evidence to taeM a definition of "azbeatoa" on fiber morphology. There fore, the CommLeVon believw the pro- noeed definition ibouU not bo changed the onei rule. Aa dreumstancee war rant, the definition could be amended at % lftttf dftt0. 5. Asbetto* contamination In patching compound*. Beveral manufacturer* ex* lag Mbastos. Vbiunt a manufacturer finds out that the finished produet contains as bestos. the manufacturer will be considered as knowingly using a raw material contain ing asbestos unless the manufacturer takes sups to reduce the asbestos to the maximum extent feasible. Therefore, the baa applies only to consumer patching compounds contain ing Intentionally-added respirable free ing a relatively small Inventory. Dis tributors report that they maintain a small inventory compared to their sales. Retailers have a much slower-moving Inventory (81). The Commission considered the pos sible adverse economic Impact of a 30day effective date on Inventories of man ufacturer*. distributors end retailer*. pressed concern that all patching com pounds would be subject to the ban rath form asbestos and will not apply to products having unavoidable trace The Commission also considered the pos sible advene effects of exposing con- er than only those compounds to which asbestos has been Intentionally added. amounts. 6. Artificial emberieing material*-- stimen to inhalable asbestos by permit ting the manufacture, distribution and They point out that asbestos Is ubiqui exemption from ban. A manufacturer of tous in the environment and that traces electrio artificial logs and electric fire of asbestos may be present as a contam places states that although the Commis inant In other minerals that are mined sion proposed to ban only artificial em- In areas of serpentine rock. One coal berlzlng materials containing respirable, menter suggests that the Commission free-fonn asbestos, references In the consider permitting patching compounds media to artificial logs and artificial fire which contain such naturally occurring places reflect adversely on his business. contaminants. Other commentors `sug He asks, therefore, that his products, gest that a percentage of asbestos con which use an artificial ash bed of vermlc- tamination by weight be permitted. The- uUto, be exempted from the ban. lowest percentage suggested by one corn- As the commenter noted, the Commis menter is l percent because the En sion ban applies only to emberising ma vironmental Protection Agency (EPA) terials containing respirable tree-form permits the presence of l percent asbes asbestos and not to any artificial logs or tos by weight In spray-on asbestos In artificial fireplaces with which they may sulation and fire proofing. be used. Since the banned product is As noted In the proposal, the Commis used with artificial logs. It Is understand sion Is aware that asbestos is present in able that questions are raised as to dif the environment. Further, the Commis ferent kinds of artificial logs. The Com sion does not wish to ban all consumer rhyming compounds In which traces of mission does not believe It would be ap propriate to exempt from the hen all asbestos are present as a contaminant- electric logs coated with unidentified rather than as an Intentionally added substances, or all artificial ash used in substance. electric fireplace*, since some of these The suggestion that the Commission article* could Include the banned prod permit contamination of 1 percent by uct. However, in order to clarify the mat weight, however, appears to be Inappro ter for consumers as well as producers, priate for consumer patching compounds the Commission adds a statement to because consumers would not be suffi f 1308.3(d), the definition of emberising ciently protected. One percent by weight materials, which reads, "electric artifi could mean a substantial number of small lightweight asbestos fibers, thus cial logs and artificial ash beds used In electric fireplaces which do not contain presenting a significant exposure to con respirable free-form asbestos are not in sumers of respirable free-form asbestos. cluded in this definition." Therefore, the Commission declines at B. Effective date. Six commented dis this- time to adopt a percentage by weight to define permissible contamlna- cussed the proposed effective date of the ban of consumer patching compounds sale to consumers of patching com pounds until 180 days after publication of a ban. It appears to the Commission that early discontinuance of the manu facture of this product would be neces sary in order to stop its continuing pro liferation In the market On the other band, substantial adverse economic im pacts could result from tha freezing of distributors* and retailers' inventories at an early effective date. The Commission concludes therefore that the ban should become effective at two different points In time. For manufacturers, the effec tive date should be dose to publication of the rule In order to stop the con tinuing manufacture of the product For distributors and retailers, the effective date should be delayed to help amelio rate adverse economic impacts. Therefore, the Commission declares below at 11304.4 that consumer patch ing compounds containing, respirable free-form asbestos. which have been manufactured or *n(n*nw Introduced Into commerce 30 or more days after publication of this rule are banned hazardous products. This means that a banned hazardous product, having been manufactured or Initially Introduced Into commerce, retains Its status as a banned hazardous product; thus. Its subsequent sale, offering for sale, or dis tribution In commerce, is prohibited by any person In the chain of distribution. In addition, the Commission dedans that all other consumer patching com pounds containing respirable free-form asbestos, no matter when manufactured Industry experts do not agree as to the amount of asbestos that might be pres ent In products without deliberately added asbestos. Nor is there agreement on the reliability of the technique* used to measure low levels (below 1 percent) of asbestos by weight. The Commission believes, however, that the use of ap propriate quality oootrol measures and careful selection of raw materials can serve to minimise contamination ftom unintentionally added asbestos (see the which was 30 days after publication of the final rule. Five manufacturers sug gested a date later than 30 days after publication. A public interest group sug gested that the effective date be the date of publication of the flnni rule. (1) One commenter suggested that the Commission consider a series of effective dates for the ban on consumer patching compounds: 30 days for manufacturers, 80 for distributors and 180 days for re tailers In order to clear Inventories. Several commenters believe that a 30- or initially Introduced Into commerce, are banned hazardous products 180 or more days after publication of this rule. (As stated below In 11304.4(g) of the rule. Initial Introduction Into commerce of this product occurs when the product Is physically shipped from a manufac turer's facility to a distributor, retailer, consumer or to another person for appli cation in a consumer environment.) ' In summary, 30 days after publication of this rule, manufacturers will be pro hibited from manufacturing or shipping Commission's economic Impact state day effective date might prove burden the product to distributors, retailers, ment on file at the Office of the Secre some to small manufacturers because of consumers, or to others for application tary). In order to emphasize that only the inventory problem. in consumer environments. Further, 180 patching compounds with clearly un The matter of Inventories was con days after publication of this rule, dis avoidable traces of asbestos contamina sidered In the July 39, 1877 propoeal to tributors and retailers will be prohibited tion will be permitted, the Commission ban and further discussed at the public from selling, offering for sale, or distrib defines "Intentionally-added asbestos" meeting of August 18. 1877. The concern uting any of the described products, no at 1 1304.3(f) of the rule below to mean of those Involved to clew their existing matter when manufactured or initially asbestos which Is inventories of consumer patching com Introduced Into commerce, to distribu (1) iddid daUbarately as an Ingradlant In tended to impart apactflo characteristic*: or pounds containing respirable free-form asbeetoe was considered. Information tors, retailers, consumers or to others tor application In consumer environments. (3) containad in tha anal product aa a result available to the Commission Indicates (3) The public Interest group recom oi knowingly using a raw material contain- that manufacturers are now maintain mends that tbe effective date of the ban KDItAl IfOISTH, VOL 43, NO. 341--THUtSOAV, 0ICEMSH 13, 1*77 SGP 0009422 63358 RULES AND REGULATIONS co patching compound* con taining respirable tree-form asbestos be the date of pubUcetlon of the final rule. m It is for artificial emhertring materlft-lf, The commission propoeed that the ef fective date of the ban on artificial emberlxlng material* be the date of publica tion although the Administrative Proce dure Act (8 UB.C. 8S3) which governs publication of consumer product safety rules, provides that a rule should be pub lished 30 days before Its effective date unless the Commission finds good cause to provide otherwise. Unlike patching compounds, where exposure to asbestos fibers Is most prevalent during mixing, sanding and cleanup operations, al though the fibers may remain suspended for a considerable duration of time, as bestos fibers in emberlzlng materials can be respired as long as such materials are In the home because they are alway In dry form and ready to be moved about by ordinary household air currents. It appeared to the Commission, therefore, that these emberlzlng materials should be removed from commerce as quickly as possible and that there Is good cause to have the ban effective on the date of pub lication. To assist persons who already had such materials In their homes, the Commission, on July 31, 1077, issued a press release on the Impending ban which Included a Consumer Alert advising con sumers of the dangers associated with these emberlzlng materials and Issuing Instructions for their safe removal. ' Economic advice to the Commission indicates. In addition, that no significant adverse economic Impacts are anticipat ed as a result of the immediate effective date for emberlzlng materials (51). As is Indicated In the foregoing discussion, the economic Impact of a 30-day and even a 180-day effective date for patching compounds would be significant and therefore It appear* that the economic impact of an immediate effective date would be more significant. Since no new Information has been presented to show that an earlier effective date should be promulgated, the. commission declines the suggestion of the public Interest group. Therefore, the effective date of the regulation on consumer patching com pounds containing respirable free-fonn asbestos Is 30 days after publication of this rule as to manufacture and initial Introduction into commerce and 180 days after publication as to all other units of the defined product no matter when manufactured or Initially Intro duced In commerce. C. Product riikt and rltk aitettmeitf. Several eommenten discussed the Com mission's risk assessment for patching compounds and questioned other aspects erf the hazard. (1) A manufacturer suggests that use by the general public or by asbestos workers Is not hazardous and that the greatest hazard Is to a worker during sanding operations if he also smokes. The Commission notes that while data from an epidemiological study of asbes tos Insulation workers Indicated there was an Increased risk at death from lung cancer among smokers, it also Indicated there was also an Increased risk of death from other asbestos-related diseases. In cluding asbestosIs, among nonsmokers (17). Data also suggest that the high risk of mesotheliomas (cancers of the pleura and peritoneum) from asbestos exposure appears to be unrelated to smoking (18, 8). (2) A distributor of fireplaces endfire place equipment doubts there Is a hazard associated with emberlzlng materials be cause the fibers used in emberlzlng ma terials are relatively large and fibers which would become airborne would be pulled up the fireplace flue. ' While it Is true that the large asbestos fiber bundles pose little risk of Inhalation, the fiber bundles release Individual fibers which in turn, can break logltudlnally into microscopic fibrils (87). Fibers could become airborne under normal use. In stallation, and handling conditions, as well as from room drafts. Once the fibers become airborne,-they can remain sus pended over long periods of time, eventu ally settling out on Items of furniture, draperies, etc., only to become airborne and available for respiration with use of these Items. As long as the freo-form as bestos emberlzlng material remains loose on the fireplace floor, there Is a possibil ity that It could become airborne and thus respired. (3) A manufacturer states that since Commission data are based on occupa tional statistics, it is difficult to document the Commission's view. In the proposal that, "for many people the major ex posure to Inhslable asbestos Is In the home." While It Is true that much of the Com mission data on asbestos-related disease are based on occupational statistics, a risk assessment was made of consumer exposure to respirable asbestos to patch ing compounds during mixing, sanding and cleanup operation* which estimated the Increased risk of lung cancer from such exposure In the home. A report of asbestos In consumer patching com pounds Indicated that significant levels of respirable freq-form asbestos fibers were detected In rooms adjacent to that where the actual patching and sanding operations had occurred so that other household , members could bo exposed as well as the individual performing the patching job (38). In many areas of the country (nonurban), then appears to be a relatively low background level of as bestos (52). Therefore, exposure to the home to asbestos fibers released from consumer products could represent the major exposure. As noted In the proposal. Dr. Paul Kotin, Johns-Manvlll*, stated In a presentation before the Commission. June 0, 1077, that young children an particularly vulnerable to exposure to carcinogen* end clearly their major ex posure to lnhaleble asbestos would be in the home. The Commission therefore feels it Is essential to minimize, to the extent possible, exposure to respirable asbestos. (4) A commenter questions Commis sion reliance on OSHA'a propoaad .amendment of October 0, 1075 to occu pational exposure to asbestos as the basis for the Commission proposal. The coal menter believes that portions of the OSHA review of October 1078 are scien tifically inaccurate. The Commission notes that most of the Information on hazards associated with Inhalation of asbestos Is based on occu pational exposure. It can be said that the body of scientific literature In the OSHA proposal has already bean subjected to public scrutiny. During preparation of the Commission proposal, Commission staff conferred with OSHA. As a result, the Commission proposal deleted refer ences to studies which OSHA termed to be of questionable validity. As pointed out In the Commission pro posal, there had been only one report of consumer exposure to asbestos In the scientific literature prior to the proposal. Based on the data from that study, a Commission assessment was made of the potential Increased risk of respiratory cancer associated with use of consumer patching compounds containing asbestos fibers. The Commission also based its pro posal on direct and Indirect evidence of asbestos Inhalation In non-occupationally exposed Individuals, Including re ports from autopsy findings of asbestos fibers In lung tissues and from epidemio logical studies. --- (5) In assessing the degree and nature of the risk of Injury to consumers from patching compounds, the Commission reviewed experimental data and human experience Information. In addition, on the basis of data by Roh) on exposure to asbestos during the use of consumer patching compounds (38), the Commis sion's Health Sciences staff calculated an assesment of the risk which was de scribed In the propose!. The calculations were baaed on the application of a theo retical model similar to that described by Enterline and Henderson (11), Sev eral highly technical comments were re ceived In response to the risk assessment. The significant Issues raised In these comments are discussed below. (a) Two commenters questioned the assumption In the risk assessment that exposure to asbestos Is cumulative over the lifetime of a person, and whether Intermittent exposure over several years has the same effect as If the same ex posure had taken place in a single year. In reviewing the literature on asbestos exposure, the Commission finds that as bestos fibers are unlike many chemicals and other materials which the body may metabolise and excrete. Body clearance of asbestos fibers Is much less effective. They have been found not only to re main In the body but to accumulate (58). Since the data tend to show that Inter mittent exposure can lead to cumulative buildup of asbestos fibers. It appears to the Commission that Intermittent ex posure over several yean could have the same hazardous effect as If the total Intermittent exposure had taken place within one year. (b) Two eommenten Indicated that the hazard from applying patching com pounds could differ In different clrcum- FfDESAl RfOtntl, VOL 42, NO. 241--IHUttbAY, DKIM0I0 IS, 19TT SGP 0009423 RULES AND REGULATIONS 63359 rtanoea. They Indicate that persons of mentions are biologically active under compounds. The sixth Is a distributor of differing skills may release different experimental conditions. gas fireplace lose. amounts of asbestos Into the According to correspondence dated One patching compound manufacturer air. Although these differences occur, a July 28, 1977 from Dr. Paul icntin of the claimed that some firms in that indus consumer would likely release more as Johns-Manville Co. with environmental try will go out of business should the bestos Into the air because he or she may consultant Barry Castleman, a Johna- ban be promulgated.. As noted below, be lees skilled in the process than a pro* ManvUle study la under way to assess the our studies indicate that some small feesional applicator. The Commission potential Inhalation hazard of certain producers may not .have the technical recognizee as these commentsrs point out naturally-occurring or man-made min capability to reformulate their product* that some products bare a smaller per eral fibers such as ceramic fibers. Ce satisfactorily or may be unable to obtain centage of asbestos than those which were used for exposure data In the Com ramic fibers are a potential substitute for artificial emberising materials. necessary raw materials by the effective date of the ban. Thus, some may cease mission risk assessment. For example, Human exposure data to substitutes production temporarily, until such re one commenter submitted asbestos ex are extremely limited. Occupational ex formulation Is achieved. Borne of the posure data from a study he conducted posure data to certain clay mineral fibers large manufacturers have indicated a using a compound that contained a which are proposed asbeetoe substitutes willingness to license their asbestos-free smaller amount of asbeetoa. Based on are scheduled to be presented at a Sym formulations (or ports of them) to small this commenter's exposure data, another posium on Occupational Exposure to Fi er firms. risk assessment was conducted. The re brous and Particulate Dust and their Ex Two commenter* discussed potential sults suggest that use of a patching com pound containing less asbestos may re duce but does not eliminate an excess of deaths due to exposure to asbestos In patching compounds. The range is from 1 death per million persons exposed for the projected live years exposure using one model and up to 336 lifetime excess tension Into the Environment, In Decem ber 1977.-These data are expected to in dicate the extent of exposure, rather than human experience findings on re sults of such exposure. Data on the re sults of human exposure to asbeetoe sub stitutes will not. In all likelihood, be available In the near future. cost effect* of the ban on patching compounds other than those relating to the product itself. One patching com pound producer estimated at 60 percent the' Increased "workload" with the professional application of non asbestos formulation* because of differ ent performance characteristic*. The cancer respiratory deaths per million persons exposed during another model (53). It should be noted here that while asbeetoa levels may vary, they do not change the fact that there 1s no known level below which InhalaMe asbestos may be considered safe. (e) Another commenter says that us ing a premixed compound reduces the consumer's exposure to asbestos. The commenter also thought that the Com mission's estimate of consumer exposure wee too high. The Commission's risk as sessment analysis did take Into consid eration the exposure during the mixing of a patching compound. While expo sure to asbeetoe fibers would be negligible during slight stirring of a premixed compound, the exposure during the ..ruling and cleaning operations in (1) A commenter suggests that substi tutes, since they would be fibrous, would present a risk. In assessing asbestos substitutes, data available to the Commission indicates that a number of substances may be used which are not fibrous such as calcium carbonlte. clay, resin* and mica. For the fibrous clay minerals which may be used as asbeetoa substitutes such as wollastonlte, kaoUnlte, sepioUte and bentonite, the Commission is aware that there la a lack Of conclusive data on the hazard potential associated with these minerals. Additional study Is needed to evaluate the risk of Inhalation exposure to such small mineral fibers. Nevertheless, the Commission believes that the known risk from lnhalable asbestos requires the banning of these products at this time. Commission has investigated the poten tial Increase In direct labor costa as sociated with existing asbestos and non asbestos formulations; It estimates an Initial 10 to 25 percent average Increase as a result of switching from the former to the latter. Other costs may accrue to professional users of the produet should different application tools be needed or should soma Jobs have to be redone to the relatively poor shrink- and ffrack- realstance of acme non-aebeetos formu lations. These Increased costs are ex pected to diminish over time a formula tions Improve and ae applicators become more accustomed to using non-asbestos formulations. . One company which may be adversely affected by the proposed ban reports that attapulglte. one of the prime sub volved would be the same at for the dry compound. Consequently, the risk as sessment values would not be signifi cantly reduced. At for the four-day, (2) A comment questions a statement in the proposal that fibrous glass could be considered a substitute for chrysotlle in enbcriiini stitutes for asbestos In patching com pounds, Is In "limited supply" and that some small manufacturers may have difficulty In obtaining that material. eight-hour exposure being too high an The Commission concurs with this Other Industry sources have reported estimate, no data were submitted to sub stantiate that contention. As stated In comment; It Is currently unaware of any manufacturers or distributors who use or this same problem. The' larger patching compound producers, who already have the proposal, therefore. It appears to the know of the use of fibrous glass for this asbestos-free formulations on the mar Commission that although the exposure may be high. It la a reasonably foreseeibis expofure. D. Substitute* lot asbestos. The July purpose. In addition, from a technical viewpoint, glass fiber* are not similar In rise and shape to chrysotlle. Unlike the rod-like glass fibers, chrysotlle tends to ket, are not expected to have as much difficulty In obtaining substitute materials. .. Two manufacturers discussed the ban's 29, 1971 proposal notes that substitutes lor asbeetoe are already being used In patching compounds. One of the meet common substitutes la attapulgtte, a fi brous clay. Other substitutes of a fibrous nature are woUastonlta, kaolin!t*. sepioUte and bentonite. Several oommcnts ex be curved, or be of curly fibers or fiber bundles, comprised of extremely smalldlamatered fibrils. However, glass fibers are similar--at least In shape--to some of the amphibole asbeetoe minerals. The diameter of most fibrous glass Is report edly greater than 3-8 microns and con potential adverse effect on the utility of the product. One expressed a belief that non-asbestos formulations are Inferior in performance to asbeetoe formulations. Another reinforced that belief, reporting that the absence of asbeetoe formula tions may prompt workmen to add their press concern that materials used as sub sidered too large to be respirable. How own asbestos to the product to help pre stitutes for asbestos may also pose has- ards. '. The Commission shares this concern. ever, glass fibers are not of uniform di mensions and a small percentage may be of respirable rise. Additional study la vent cracking when wan Joints are cov ered. However, the addition of asbestos would be tantamount to manufacture of Substitutes for asbestos have been under needed to assess the pathologic effects of the banned product and would thus be consideration for only a short time. little data are available on which to evaluate the safety of substitute materials. Ex perimental findings of Stanton (58) Indi cate that many mineral fibers (in addi Inhaled fibers. Including fibrous glass. E. Economic consideration*, six cornmenters expressed concern that the ben would have an advene economic impact on the industry. Five of the tlx are man prohibited. It appears that at least some existing non-asbestos formulations may bo less desirable, from a performance standpoint, to professional contractors; tion to asbeetoa) of small respirable di ufacturers who commented on patching most consumer applicator* are not ex- ROOM IfMim, VCM. 42, NO. >41--THUtfOAV, DICCMglt 15, 1*79 SGP 0009424 63360 RULES AND REGULATIONS pectod to perceive t significant difference containing respirable free-form asbestos CP8A, provides that a rule should be in ttw product's performance. are banned hazardous products under published 30 days before Us effective date As U Indicated in the proposal, the section 6 of the Consumer Product unless the Commission provides other Commission Is aware that economic im Safety Act - wise for good cause found and published pacts of Tarries degrees will oocur as Scope and application. The rules apply with the rule. a result of the ban on Inhalahle asbestos to the named consumer products that As described In the discussion above containing patching compounds and are customarily produced or distributed on effective date, the Commission to con emberislng materials containing res for sale to or for the personal use. con cerned that ordinary household air cur pirable free-form asbestos. Also, the sumption or enjoyment of consumers In rents In homes that contain artificial Commission Is aware that technology or around a household or residence, a emberizlng materials, can cause continu for producing asbestos-free patching- school, in recreation or otherwise. In ad ing exposure of consumers to the respira compound formillations la becoming dition to those products which can be ble free-form asbestos in artificial em more generally available. Hie economlo sold directly to consumers, the ban ap` bers and ash. It appears to the Commis Impact will tend to be reduced over time piles to the named consumer products sion, therefore, that these products as non-asbestos formulation technology which are used and enjoyed by consum should be removed from commerce as ex becomes more widespread and as exist ers, such as those used In residences, peditiously as possible in order to avoid ing recent formulations are improved by schools, hospitals, public buildings or having additional numbers of consumers manufacturers. H>s nature and extent other areas where consumers have cus unwittingly purchase these materials. of the effects on the Industries are dis tomary access, whether the patching The Commission finds there to good cause cussed In the Environmental and compounds are applied professionally or to Issue the rule on artificial emberizlng Economlo Assessments now on fils In the by consumers. Only consumer products materials effective on the date of pub Offloe of the Secretary and were con are subject to this regulation. lication. ' sidered by the Commission during this Patching compounds which are con PursDros rulemaking process. sumer products Include those which a P. Other comments. (1) Seversl com consumer can purchase. Merely label mentsrs suggested that the Commission ing a patching compound for Industrial should Investigate other products con use would not exclude such articles from taining asbestos in order to determine the ban. If the sale or use of the the existence of possible hasards. product to consumers to facilitated, In the proposal, the Commission noted >lt to subject to the ban. Patching that information on other products con compounds which are labeled as, mar taining Inhalahle asbestos would con keted, and sold solely for industrial use 1. CPSA Section t. Section 8 (1) and (3) of the CPSA require that, before Is suing a consumer product safety rule declaring a product to be a banned hasardous product, the Commission must flnd (l> that the product presents an unreasonable risk of injury and (3) that no feasible safety standard can ade quately protect the public from the un tinue to be developed In order to deter In non-consumer environments are not reasonable risk of Injury associated with Imine whether further regulation U nec essary. Accordingly, the staff has begun to develop plans for collecting such In formation. (2) One commenter suggested that the Commission Issue a rule that would prohibit stockpiling of the banned prod ucts. Section v(d) (2) of the CP8A provides that the Commission may, by notice and comment rulemaking, prohibit a manu subject to the ban. The ban applies to patching compounds containing Inten tionally-added respirable free-form as bestos sold directly to consumers and to those which ere used In residences, schools, hospitals, public buildings or other areas where consumers have cuetotnarj iccm. * Effective dates. (1) The rule at Part 1304 below applies to consumer patching compounds containing respirable free the product (a)Unreasonable risk of injury. The regulations are Intended to reduoe or eliminate the unreasonable risk of Injury to the public from cancers such as lung facturer from stockpiling a product for form asbestos that are manufactured or cancer and mesothelioma. Hie risk to which a consumer product safety rule initially Introduced into commerce on associated with asbestos fibers which hat been promulgated. In this case, the January 16,1273, or after that date. For are not tightly bound Into or encapsu baa on consumer patching compounds all other consumer patching compounds covers the manufacture and initial In containing respirable free-form asbestos, troduction of products into commerce 30 no matter when manufactured or Ini days after promulgation; the ban on tially Introduced into commerce the rule artificial emberizlng materials covert at Part 1304 applies on June 13. 1376. products in commerce on the date of and after that dAt6. itii ntuu tbAt promulgation. Therefore, In practical ef >0 days after publication of this rule, fect, there would not be time for manu manufacturers are prohibited from man facturers to stockpile; nor would there ufacturing or shipping the product to be time prior to these effective dates for distributors, retailers, consumers or to notice and comment rulemaking. others for application in consumer envi (2) A commenter expressed concern ronments. Further, 180 days after publi that the banned products be kept out cation of this rule, distributors and re of International commerce. ' tallers will be prohibited from selling, of The Commission notes that this com fering' for sale or distributing in com ment is directed not to the proposed rule merce the described products, no matter but to its enforcement. If this matter when manufactured or Initially Intro should become a problem It would be duced Into commerce, to distributors, re considered in the context of enforce tailers, and users. ment. ' (2) The rule at Part 1305 below appUse (4) Several oomments suggested edi to artlfiJcal emberislng materials (embers torial changes in the proposal. These and ash) containing respirable free-form suggestions were considered and, where asbestos that are In commerce on De appropriate, have been Included herein. cember 15, 1277, or after that date. This Dsscumow or ths Bur prohibition applies to products In Inven tory as well as to those manufactured lated In the composition of a product The health risk occurs when asbestos fibers become airborne such as by mix ing, sanding, or cleanup operations when using patching compounds, or-by the effect of ordinary household air currents on artificial emberislng materials In fireplaces. Tests show that certain malig nancies are related to asbestifonn min erals; these can arise 20 or more years after occupational exposure. However, also reported are malignancies from In direct. non-occupational exposure. In a recent case, the court recognized a study on asbestos exposure cited by the En vironmental Protection Agency at 40 PR 48295, showing "new biological evidence supporting the significance of single, short-term exposures * * One-day In halation exposures in animal experi ments have produced an Increase in the Incidence of mesothelioma." National Association of Demolition Contractors v. Environmental Protection Agency. Civ. Hoe. 74-1645, 75-2078, D.C. Clr., October 13. 1877. The banned products. Parts 1304 and . on or after the effective date. 1306 declare, respectively, that consumer The Administrative Procedure Act (5 patching compounds and artificial em UJ3.C. 553) which governs the matter of berizlng materials (embers and ash) . effective date for banning rules under the The Information on which the Com mission made the determination of un reasonable risk consists primarily of data on exposure of Industrial workers to respirable free-form asbestos. Infor mation on exposure of the public to ln- halablc asbestos In Individual consumer SCpfitM tcotsrn, VOL 41, NO. 341--THUttOAY, PKIM252dp1ero5nd,tu1fcr9ot7sm7 toth'leimeixtetedn.sHivoewbeibvelior,gsraepthoyeIvni cluded herein there 4to general scientific SGP 0009425 RULES AND REGULATIONS 63361 nd medical agreement that there U no known threshold level below which It to safe for people to be exposed to respi rable free-form asbestos. ............. As noted In the proposal* inhalable handicapped persons to determine the extent to which such persons may be adversely selected by such rule. The Commission has considered these needs and has determined that no adverse ef 11. Interline P.. and Henderson. V.: A Modal for Extrapolating to Low Levels of Asbestos Xsposure. Presented at Conference oo Problems of Extrapolating the Results of Laboratory Animal Data to Men and Extrapolating the Reaults from High Dose asbestos In the household from consumer fect on elderly or handicapped persons Level Experiments to Low Dose Level Expo patching compounds and artificial embertotng materials presents a great risk due to the presence In the household of persons, such as children, who may be particularly vulnerable to carcinogens. Because of the long latency period, ex posure to Inhalable asbestos In the home will result from this regulation. It to In the best interest of the entire public, In cluding the elderly and handicapped, that these hazards be reduced. S. CPSA Section tie). Section 9(c) of the CPSA requires that prior to promul gating a consumer product safety rule sure. Pinehuret, N.O. (Kerch 1878). . 13. EnterUne, p., DeCoufle, p., and Hender son, V.: Mortality in Relation to Occupa tional Exposure in the Asbestos industry. J. of Occupational Medicine 14 (13): 887-803 (1873). IS. Bntleknap, J. B., and Smlther. W. J.: Peritoneal Tumours in Asbestosis Brit. J. Ind. can be life shortening for children. The the Commission shall consider and shall Med. 31:30-81 (1884). Commission notes that consumers are exposed to asbestos from sources other titan the banned products. However, con sumers who are exposed to asbestos fibers from patching compounds and artificial embers and ash receive additional doses make appropriate findings for Inclusion In such a rule as to: (l) The degree and nature of the risk of Injury the rule to designed to eliminate or reduce: (2) the approximate number of consumer prod ucts, or types or classes thereof, subject 14. Environmental Defense Fund: Petition for Action under section 13 of the CPSA against fireplace ashes and Logs Containing Asbestos. Footnote 1. May 13, 1877. 18. Fletcher, D. O.: A Mortality Study of Shipyard Workers and Pleural Plaques. Br. J. Ind. Med. 38:143-148 (1873). of asbestos and can be assumed to face to such rule; (3) the need of the public 18. Oreenberg, M,, and Davies, A. L.: a greater risk than persons not so ex posed. and a greater cumulative risk than If no asbestos were present in the general environment. In determining that the risk of cancers to unreasonable, the Commission con for the consumer products subject to such rule, and the probable effect of ' such rule upon the utility, cost, or avail ability of such products to meet such need: (4) any means of achieving the effect of the order while minimizing ad Mesothelioma Register 18878, Br. J. Ind. Med. 81:81-104 (1874). 17. Hammond, E. C, BeUkoff, I. J. and Churg, J.: Neoplasia Among Insulation Workers in the United States with Special Reference to Intra Abdominal Neoplasia. Ann. N.T. Acad. BeL 183:518-838 (1888). cludes that the degree and nature of the verse effects on competition or disruption 18. Hammond. ED, and Sellkoff, L J.: Re risk of Injury and the probability that or dislocation of manufacturing and lation of Cigarette Smoking to Risk of Death the risk will result In harm outweighs the rules' effect on the products' utility, cost and availability to the consumer. <b) No feasible safety standard. The Commission to not aware of a technically other commercial practices consistent of Aabeatoo Associated Disease Among Insu with the public health and safety; (8). that the rule Is reasonably necessary to eliminate or reduce ah unreasonable risk associated with such product; and (8) lation Workers In the United States, pp. 313 817 International Agency lor Research on Oanoer (1873). 13. Harries, F. CL: Asbestos Haaard In Navel Dockyards. Ann. Oocup. Hyg. 11:184-145 feasible procedure .for removing the that the promulgation of the'rule Is In (!). . hazards of cancer from respirable free form asbestos In the named products. The Commission believes that not all patching oompounds present an unrea sonable risk of Injury to the public, only patching compounds containing respir the public interest (15 Uff.O. 2058(c)). The ewiMnga required by Section 9(c) of the act have been described generally In the preamble and are Incorporated In II 13044 and 13.054 of the rules below. 38. Hasan, Ikynl M. et al: The Blgnlfloanoe of Asbestos Exposure In the Diagnosis of. Mesothelioma: A 38 year Experience from Major urban Hospital. Amer. Rev. Beep. Die. 115:781-783 (1877). 31. Huff, J. X, Hammons, a. 8, Dinger, O. A, Whltldald, B. L, and Ulrlokaon. O. U.: able free-form asbestos. The hazard as sociated with this product to caused by the free form In which the asbestos ap pears. A safe level of exposure to free form asbestos to not known. Therefore, It does not appear that a standard for BUn.UMStVHV 1. Anderaon. H. A. Mils. H.. Daum. 8.. Plechbeln, A, 8. and 8eUkoB, I. J.: HouseholdOontaet Aibetw Neoplastic Blit Ann. N.T. Acad. BeL 371:811-821 (1878). 3. Asbestos Information Assoc.: Informa Asbestos: An Overview. Env. Chemicals Human and Animal Health 3rd Annual Con ference Proceedings. 33. ZABO Working Oroup on the Evaluation. of the Careinogenio Risk of Chemicals to Man. IABO Monographs on the Evaluation of the Carcinogenic Risk to Man: Asbestos. Inti patching compounds containing respir tion from Bsprsssntstlve of tbs Asbestos In Agency far Research on Cancer, 1877. able free-form asbestos to feasible. ternational Association Conference, Barn- 38. Interagency Collaborative Oroup on The product artificial embertolng ma burg Oermany, 1878, funs 37,1877 memo. Environmental Carcinogens, 18th. Meeting, terials for fireplaces, containing respira ble free-form asbestos to used only in dry form. Thus Individual asbestos fibers are never bound together. If the asbestos fibers were coated by another material to 3. Borrow, if., Conston, A* Uvornsas, L. I* and Schist, N.: Mesothelioma and Its Asso ciation With Asbestos. JAMA (8): 88-87 (1887). . 4. Canada. Consumer and Corporate Affaire, Consumer Standards Directorate, Product NIH. Aug. 14,1878. 24. Jones, H. B,, and Orindon, A.: Environ mental Factors In the Origin of Cancer and Estimation of the Possible Haaard to Man. Fd. Ooemet. Toxicol. 18:381-288 (1873). 38. Lllllngton, O. A. et al: Conjugal Malig bind the fibers. It would no longer be the Safety Branch. Asbestos In Toy* and nant Mesothelioma. New Eng. J, Med. 381 same product and would not give the de Materials Issue No. a, June, 1878. (11): 883-884 (Sept. 13. 1874). sired decorative effect. In considering the dry character of the product and the fact that a safe level of exposure to res pirable free-form asbestos to not known. It does not appear that a standard for 8. Department of Labor. Occupational Safety and Health Administration: Asbestos Dust Standard. 38 CVB 181048a. 8. Department of Labor. Occupational Safety and Health Administration: Occupa tional exposure to Asbestos. Notice of Pro 38. McDonald. J. C, McDonald. A. D, Olbbs, A. W., et al: The Health of ChryaotUa Asbestos Mine and Mill Worken of Quebec. Arch. Env. Health 38:81 1874. 37. MoSwen. J, Flnlayson. A, Melr, A., and Olbeon, A. A. M.: Mesothelioma In Bcotiand. artificial embertolng materials contain posed Rulemaking. PR Vol. 40, No. 187, pp. Br.Med. J. 4:874-878 (1870). ing respirable free-form asbestos to 47883-87888. (Oct. 8. 1878). 38. Mareweether. E. XL A, and Price, C. W-: feasible. V. Department of Labor. Occupational Report on the Effects of Asbestos Dust on The Commission believes that no standard can render the defined prod ucts non-hazardous and concludes that only banning these products can ade quately protect the public from unrea Safety and Health Administration: Asbestos Dust in the Construction Industry. Pre liminary Draft: Technical PessIbUlty Assess ment, Speckling and DrywaU Joint Com pounds. p. 113. (1877). 8. Edge. J. R.: Asbestos Related Disease In the Lungs and Dust Suppression in Asbestos Industry. ELM. Stationsry Office. London (1880). 38. National Institute for Occupational Safety and Health: Criteria for a Recom mended Standard ... Occupational Exposure sonable risks of Injury associated with Barrow In Fumesa Knv. Res. 11:244-347 to Asbestos. (1873). them. ' (1878). 80. Newhouse, M. L,, and Berry O.: The 2. CPSA Section 2(6). Section 9(b) of the CPSA, IS U.S.C. 2058 (b>, as amended, requires the Commission to consider and take Into account in the promulgation 8. Blmas, P. O. and Simpson, M. J. C.: Insu lation Workers In Belfast 3. Mortality 1840 88. BrJ. Ind. Med. 38: 338-338 (1871). 10. England. Health and Safety Rzec. Dept, of Prices and Consumer Protection. Asbestos Risk of Developing Mesothelioma Among Workers in an Asbestos Textile Factory'. XVII International Congress on Occupation Health, Bristol, England (1875). 81. Newhouse, K. L, and Thompson, H.: of a rule the special needs of elderly and Labeling Scheme. Apru 1878. Mesothelioma of Pleura and Peritoneum Fol- OMAl 8IOI5TX8, VOL 42, NO. 241--THUtSPAV, OCCfMIft 15, 1*77 SGP 0009426 RULES AND REGULATIONS ___ taorar* to Asbssrtos la ths loedoa Effects of Asbestos, 1ABO Publication No. 0, trial use in non-consumer environment* Msd. 23:Ml (196B).___ pp. 389-394, Lyon. 197*. are not subject to the ban. In addition to *ia. Nswhoue*. M: Asbestos tathsWortl pum ut tbo Community. Ana* Ooe. Hjrg. 19: 07-107 (1071). _ __ ,, _ SS. Nswhous*. M. L- Md Borry. 0, Pr*- of Mortality from MowtliaUoom Tumours In A*boatoo Factory Wcrksrs. Br. J. lad. Mod. 00:147-101 (1070). 04. NovUouM. M. L. and Bony O.: At- boatoo ond Loryasotl Carcinoma lanoot. 0: CoNciuauftr Upon considering the published pro posal, the oml and written response* to the proposal and other relevant material, the Commjsalon bans consumer patching compounds and artificial emberlzlng ma terials (ember* and ash) as set forth those products which can be sold directly to consumers, the ban applies to patching compounds containing respirable free form asbestos which are used In resi dences, schools, hospitals, public build ings or other areas where consumers have customary access. 010 (1070). 30. Nicholson, W. J.: Cow Study 1: As bestos Tbo TLV Approach. N T. Asad. Sol. 071: 100-100 (1070). 30. Rohl, A. N.. at al: Exposure to Asbestos In tho Uoa of Consumer Speckling. Patching below. Accordingly; pursuant to provisions of the Consumer Product Safety Act (sections 8 and 8, 88 Btat. 1318-17, as amended, 80 Btat 608. 18 UjS.C. 3057, 8 130&2 Purpose. The purpose of this ruleJs to ban con sumer patching compounds containing Intentionally added respirable, free-form asbestos. These products present an un and Taping Compounds. Sclonoo 100:031-000 3058), new Parts 1304 and 1305 are added reasonable risk of injury due to inhala (Aug. 10.1970). 07. SeUkoff. X. J.: Asbestos and Nooplasla. Am. J. Med. 40(4): 407-400 (1007). 30. SeUkoff. X. J, and Hammond, a. 0.:HI Community Effect* of Non-Occupational En vironmental Asbestoa Bxpottiro. Am. J. Pub. to Title 16, Chipter H, Subchapter B, as follows: PART 1304--SAN OF CONSUMER PATCH ING COMPOUNDS CONTAINING RESPI RABLE FREEFORM ASBESTOS tion of fibers which increase the risk of developing cancer, including lung cancer and mesothelioma, disease* which have been demonstrated to be caused by expo sure to asbestos fiber*. Health 00(9) .'1000-1000 (1909). 39. SoUkolf, I. J., Churg, J,, and Hammond. B. o.: Tho Ooeurrenoo of Ashootools Among Insulation Workers In the United states. N.T. Acad, of Set. 100:130-100 (1900). 40. SeUkoff, X. J, Hammond, B. C- and Churg, J.: Asbestoa Exposure. Smoking, and Neoplasia. JAMA 004(0); 100-110 (190S). 41. SeUkoff, I. J, Hammond. E. O, and Beldman, H.: Cancer Risk of Xnsulatioa Workoro la the United States. pp. 009-010 International Agency for Beeearoh on oanoer Sao. 1004.1 Soops and appUeation. 10043 purpose. 18040 Definitions. 1004.4 Consumer pitching compounds as banned hasardous product*. 10040 Findings. Authosttt: Sections 0, 0. 00 Btat. 1310 1017, as amended 00 Stat. 806, IS U0.O. 0007. 3000. 8 1304.3 Definitions. (a) The definitions In section 3 of the Consumer Product Safety Act (15 UJS.C. 2053) apply to this Part 1304. (b) "Asbestos" means a group of min eral fibers composed of hydrated sili cates, oxygen, hydrogen, and other ele ments such as sodium, lion, magnesium, and calcium in diverse combinations and are: Amoslte, chrysotlle, crocldollte, (1970). 8 1304.1 Scope and application. anthophylllte asbestos, actlnollte asbes 40. SeUkoff, 1. J,, Hammond.' B. 0,, and Churg. J.: Carcinogenicity of Amoelte As bestos. Arch. Bn*. Health 00:100-100 (1970). 43. SeUkoff, I. J., Nicholson. W. J- and Langer, A. M.: "Asbestoa Air PoUutian": Arch. Environ. Health, 20: US. July 1073. 44. Sheers, O.: Effects of Asbestos In Dock yard Workers. Br. Med. J. 0:074-079 (1900). 40. Stall, P. M,, and MoOtU, T.: Asbastoa and Laryngeal Carcinoma. Lanoet 3:410-417 (1970). - 40. Stumphlus, J.: Epidemiology of Meso thelioma on Walchtran Island. Br. J. Ind. Med. 30:69-00 (1971). 47. Wagner, J. O- Slsgga. O. A, and Mar- chand, p.: DUTusa Pleural MsaotheUoma and Asbestos Exposure In the North Western Cape Prorlnoe. Brit. J.Xnd. Mad. 17:309-371 (1000). 46, Wagnar, J, C., et al.: The Effects of the Inhalation of Asbestos In Rate. Br. d. Canosr, 00 : 303-309 (1074). 49. Webstar, X.: Asbestos and Malignancy. BA. Med. J. 47:100-171 (1903). 00. WhltweU. P- and Raorollffa. B. M.: Dif fusa Malignant Pleural Mesothelioma and Asbestos Exposure. Thorax 96:633 (1971). 01. Kearney, A. T.: Eoonomie Impact As sessment of the Proposed Ban of Asbestos Containing Patching Compounds, October 1977, 33. Rohl, A., Langer, A. and SeUkoff, I.: Environmental Asbastoa Pollution Related to Use of Quarried Serpentina Book. Solanos. T, (it) In this Part 1304 the Consumer Product Safety Commission declares that consumer patching compound* contain ing intentionally-added respirable free form asbestoa in such a manner that the asbestos fiber* can become airborne under reasonably foreseeable condition* of use, are banned hasardous products under sections 8 and 9 of the Consumer Product Safety Act (CP8A) (IS UB.C. 3057 and 3058). This ban applies to patching compounds which are (1) used to cover, seal or mask cracks. Joints, holes and similar openings In the trim, walls, celling, etc. of building Interior*, which after drying are sanded to a smooth finish and (3) are produced and dis tributed for sale to or for the personal use, consumption or enjoyment of a con sumer In or around a permanent or temporary household or residence, a school, In recreation or otherwise. (b) Ihe Commission has found that (I) these patching compounds are being or will be distributed In commerce: (3) that they present an unreasonable risk of Injury: and (3) that no feasible con sumer product safety standard under the CP8A would adequately protect the pub tos, and tremolite asbestos. (c) "Free-fonn asbestos" Is that.Which Is not bound, or otherwise "locked-in" to a product by resins or other bonding agents, or which can readily become air borne with any reasonably foreseeable use. . - (d) "Patching compounds" are mix ture* of talc, pigments, clays, casein, ground marble, mica.or other similar materials and a binding material such as asbestos which are sold In a dry form ready to be mixed with water, or such combinations In ready-mix paste form. (e) "Consumer patching compounds" are those that are customarily produced or distributed for sale'to or for the per sonal use, consumption or enjoyment of consumers in or around a permanent or temporary household or residence, a school, in recreation or otherwise. The Commission considers that patching compounds for application in these con sumer environments are either distrib uted for sale to or are for the personal use or enjoyment of consumer*. (f) "Intentionally-added asbestos" is asbestos which 1* (1) added deliberately aa an ingredient Intended to Impart spe 190, pp. 1819-1033. June IT, 1977. 09. Bayard, 8.: Memorandum, Bisk of Respiratory Canoer Due to Iiow-Levsl Expo sure to Asbestos from Speckling and Joint Taping Compounds. June 0, 1977. 04. Bayard, 8.: Memorandum to Pile: Re sponses to Comments, October 1977. 00. Thompson. J. Q, Ann. of N.T. Aoad. 8d. lic from the unreasonable risk of injury associated with these products. This rule applies to the b*mned hazardous products defined in section 13940 and described further In section 1304.4. (c) Only consumer products are sub ject to this regulation. Patching com cific characteristics; or, (3) contained in the final product as the result of know ingly using a raw material containing asbestos. Whenever a manufacturer finds out that the finished product contains asbestos, the manufacturer will be con sidered as knowingly using a raw mate 103:190-314, I960. pound* which are consumer product* rial containing asbestos, unless the 00. Dept, of Interior, Bureau of Mine*: Se lected Silicate Minerals and their Asbeatlferm Varieties. 1077. 67. Harrington. J. 8., at al.: Mineral Plhere: Chemical, Physicochemical and Biological Properties. Ad*. Pharmacol. Chemothar. 13:091-403.1970. Include those which a consumer can pur chase. Merely labeling a patching com*, pound for Industrial use would not ex clude such articles from the ban. If the sale or use of the product by consumers la facilitated, It Is subject to the ban. manufacturer takes steps to reduce the asbestos to the maximum extent feasible. (g) "Initial Introduction into com merce" occurs when the manufacturer ships a product covered by this regula 00. Stanton, M. D^ Boms Etiological Con Patching compounds which are labeled tion from a facility of the manufacturer siderations of Fiber Carcinogenesis. Biological aa, marketed, and sold solely for Indus to a distributor, retailer, or user. , ffOttAt tMUm, VOL 43, NO. 341--THUtSPAV, DICEM0EI 15, 197/ SGP 0009427 RULES AND REGULATIONS 63363 | U04.4 Contuner watching compounds posure to Inhalable asbestos Is in the as banned haurooui products. home. On the basis that airborne asbestos fibers present the hazards of cancer, In cluding lung cancer and mesothelioma to the public, consumer patching com pounds containing intentionally-added, respirable free-form asbestos, which have been manufactured or Initially In troduced Into commerce after January 16.1978, are banned hazardous products. In addition, all other consumer patching compounds containing Intentionallyadded, respirable free-form asbestos, no (b) Products subject to the ban. Con sumer patching compounds as defined in 1 1034.3 (d>, (e>. (f) Include such prod ucts as drywall speckling compounds and tape Joint compounds (commonly known as "joint cement" or "tape joint mud"). The Commission estimates annual ship ments of patching compounds subject to the ban at approximately 30-S0 million "units," or individual packages, of vari ous sizes from 0.5 to 38 pounds (dry) or 0.5 to 5 gallons (wet). The Commis matter when manufactured or Initially introduced Into cdlnmerce. are banned hazardous products after June 11, 1978. sion believes that about half the patch ing compounds sold in 1977, and Intended for sale to or use or enjoyment by con sumers, .were formulated with asbestos. g 1304.5 Findings. Many others containing significant levels (a) The degree and nature of the risk of asbestos contamination will also be of Injury. The Commission finds that the affected by the ban. risk of Injury which this regulation is . (c) Need of the public far the products designed to eliminate or reduce is from and effects of the rule, on their utility, cancer, including lung cancer and cost and availability. Patching com mesothelioma. In assessing the degree pounds, though used primarily by com and nature of the risk of Injury mercial construction workers, are also to consumers, the Commission has used by consumers, and are used for the reviewed experimental data and hu patching and sealing of cracks and Joints man experience information. The Com in and around the household and in mission noted that in the scientific literature, there is general agreement that there is no known threshold level below which exposure to respirable free form asbestos would be considered safe. Further on the basis of such scientific opinion, it appears to the Commission other consumer environments either by consumers or professional applicators. The compounds are used to cover areas on gypsum drywall which might other wise be aesthetically undesirable or which might lead to structural damage; energy loss or lower property value. The that children sire particularly vulnerable asbestos in these compounds acts as a to carcinogens because of their longer structural reinforcing agent which helps potential lifetime and their rapid rate to reduce cracking and shrinkage of the of growth. In areas of the country where compound over time, and which renders asbestos may not be prevalent in the en the compound more pliable or "work vironment. the major risk of exposure for able" upon application. children and others may occur tn the <1) Utility. The elimination of asbestos household. In areas of the country where from these products may result in the more asbestos fibers are present In the Increased use or new development of environment, the public la exposed to ad substitutes which have similar proper ditional risks from the presence of as ties to those of asbestos, or which impart bestos fibers in households and other similar qualities to the product. In cur consumer environments, the Commission rent reformulations, asbestos is replaced concluded on the basis of these factors by a combination of substances, of which that consumer patching compounds con the most common is attapulglte, a fibrous taining respirable free-form asbestos clay. Borne non-asbestos formulations present an unreasonable risk of injury to are reportedly not as effective as those the public. In addition, a risk assessment containing asbestos in controlling was made. For purposes of this assess shrinkage and cracking over time. The ment, the Commission considered the use workability of some compounds may be of patching compounds by the consumer, diminished as well. This may adversely for six hours a day four times a year, to affect the utility derived from the prod be a high yet reasonably foreseeable ex uct by consumer*, and by professional posure. The increased risk of death from contractors until such time as Improved respiratory cancer Induced by this ex formulations are developed and available posure is estimated at between 10 and to end*UMrt. 3,000 per million. For five years of ex (3) Cost. Asbestos-free patching com posure at these levels, the risk Increases pound formulations may require more geometrically and Is estimated at be time to use. This would tend to Increase tween 1,000 and 13.000 per million. The the direct labor costa of residential and lower estimate of 10 per million is closer other construction and renovation. The to the actual risk for a one-year ex expected Increase Is between 10 Mid 25 posure. Nevertheless, In view of the seri percent. The Commission estimates that ousness of the Injury and the cumulative the annual labor cost of drywall finishing effects of asbestos exposure, even this minimum figure represents an unaccept Ionrdtheerseocf o3n1submielliroenn.viTrohnemeusnets Is on the of non able risk. The Commission believes that asbestos patching compound formula reducing exposure to respirable free tions In all applications may Increase this form asbestos in the home represents a cost by 350-3125 million, assuming that substantial decrease in risk to consumers, roughly half the current labor costs (l.e., since, for many people, the major ex that portion now associated with the use of asbestos formulations) are affected by the 10-36 percent Increase. The burden of this cost Is expected to fall directly on owners of existing homes who may engage in some renovation, and on pur chasers of newly-renovated or newlyconstructed homes. These Increased costs are expected to diminish over time as formulations Improve and as applicators become more accustomed to using non asbestos formulations. The use of asbes tos substitutes may also lead to cost In creases in the manufacture of patching compounds. The Commission estimates this cost, which may vary widely from firm to firm, at an average of 5-15 per cent. This Is made up primarily of In creased costs of raw materials and of formulation research and development. It is expected that the price of many patching compounds may rise as a result. Producers, distributors, and retailers of patching compounds may also have to incur costs associated with the disposal of products in Inventory. The commis sion estimates that the wholesale value of manufacturers' and distributors' in ventories at the time the ban becomes effective will be approximately 315 mil lion. These costs may be reflected In the prices charged for asbeetoe-free patching compound formulations, and in the prices of other drywall and paint prod ucts. It appear* that, because of com petitive pressure from asbestoe-contain ing compounds, producers of asbestosfree formulations have not yet passed on to purchasers their Increased costs. If the increased production costs of as bestos-free formulations can be passed on completely as a result of the ban. the total annual price effect for the year fol lowing the issuance of the ban may be 310-360 million. The magnitude of this effect may be reduced significantly in successive years following the Issuance of the ban as producers' development costs'! are amortized, as raw materials become more widely available, and as price com petition Is strengthened because of mar ket pressure and economies of scale as sociated with production. (3) Availability. The supply of asbes tos substitutes, particularly attapulgtte clay and relatively uncontaminated talc, for use in the manufacture of patching compounds may be Insufficient to meet the short-run demand which Is expected to be stimulated by the promulgation of the ban. Further, many small producers probably lack the technical capability to reformulate their products, and may be forced to cease production, at least until formulations of satisfactory cost and performance are developed. This may affect some professional contractors. In the short run, consumers may be in directly affected by delays In drywall finishing and building completion. (d) Any means of achieving the ob jective of the ban while minimizing ad verse effects on competition or disruption or dislocation of manufacturing and oth er commercial practices consistent with the public health and safety. The ad verse effects of the ban on patching com pounds containing asbestos is reduced by Ffonui REOiSTCt, VOL 42, NO. 241---THURSDAY, DKIMRIR 15, 1* 11 SGP 0009428 63364 RULES AND REGULATIONS ilmJtUV the ben to Intentionally added diseases which have been demonstrated or glued to gas logs, or sprinkled on fire asbestos. Other alternatives such M to be caused by exposure to asbestos place floors. tiwiiMwfr the scope of the ban only to fibers. . (c> Need of the public for the prod products purchased and used by con sumers or to issuing a ban with a later 6 1505.3 Definitions. ucts and effects of the rule on their util ity, cost, and availability. Artificial fire effective date, were considered by the (a) The definitions in section 3 of the place emberlzing material serves a Commission. However, none was found Consumer Product Safety Act (IS UJ3.C. strictly decorative purpose and does not that would cause less disruption or dis 2052) apply to this Part 1305. materially affect the actual perform location of manufacturing and other (b) "Asbestos" means a group of min ance of the fireplace gas system In terms commerlcal practices, consistent with eral fibers composed of hydrated silicates, of Its ability to provide heatT A certain public health and safety. . oxygen, hydrogen and other elements degree of aesthetic desirability exists, Conclusion. The Commission finds that this rule, including Its effective date is reasonably necessary to eliminate or reduce the unreasonable risk of injury from cancers such as lung cancer and mesothelioma that are associated with the banned products described herein, that no feasible consumer product safety standard under the Consumer Product Safety Act can adequately protect the public from this risk, and that promulga tion of this rule is in the public interest. PART 1305--BAN OF ARTIFICIAL EMBER- IZINO MATERIALS (ASH AND EMBERS) CONTAINING RESPIRABLE FREE-FORM ASBESTOS ' Sec. 1306.1 Scope and application. 13063 Puipoee. 1S063 Definitions. 1306.4 Artificial fireplace ash and embers as banned hazardous products. 13056 findings. Atrraoairr: Secs. t. 0. 30(d), Pub. I*. 80 673. ss amended. Pub. L. 04-384; SO Btat. such as sodium, iron, magnesium and cal however, since the product "system" lt- cium in diverse combinations and are; . self (the gas log, ashes, and embers) Is Amoslte, chrysotlle, crocldollte, antho- Intended to simulate burning wooden pbylilte asbestos, acttnollte asbestos, and logs. Oas logs may be sold with artificial tremollte asbestos. emberlzing material attached at the fac (c) "Free-form asbestos" Is that which tory (the log commonly, referred to as Is not bound, woven, or otherwise being "frosted"), or with the "embers" "locked-ln" to a product by. resins or in a separate kit. often mixed with simu other bonding agents, or those from lated "ashes." Virtually all gas logs are which fibers can readily become airborne either frosted or packaged with an em- with any reasonably foreseeable use. bertzlng kit; however, the majority of (d) "Emberlzing materials" means an gas logs produced in 1977 were packaged asbestos-containing material generally packed In an "emberislng" kit to be placed under artificial logs in gas-burn ing fireplace systems or in artificial fire places for decorative purposes. The prod with non-asbestos-contalnlng emberixlng kits. The Commission estimates annual sales of artificial gas logs at ap proximately 100.000 units. Some 35,000 30.000 of these would be subject to the uct is also glued to artificial logs, either at a factory or by a consumer using an emberlzing kit. (Synthetic logs manufac tured of celluloslc products which sire consumed by flames are .not Included in this definition. Electric artificial logs and artificial ash beds used in electric fire places, which do not contain respirable free-form asbestos are not included in this definition.) ban. Approximately 100,000 gas logs frosted or treated by consumers with as bestos are estimated to be In existence. The Commission believes that the ma jority of gas logs are sold with emberIzlng kite; this give# the consumer a choice as to whether or not to use the artificial embers and ashes. (1) Utility. Manufacturers of artifi cial gas log emberlzing material are cur 1318-17, as amended. 90 Btat. 600 (16 UB.O. 3067, 3068). 8 1505.4 Artificial fireplace ash and embers as banned hazardous prod rently using four substitutes for asbestos In their products: vermlcullte. rock wool, 6 1305.1 Scope end application. ucts. mica, and a synthetic fiber. None of the In this Part 1305 the consumer Prod uct Safety Commission declares that artificial emberlzing materials (ash and embers) containing respirable free-form asbestos generally packaged in an emberizlng kit for use in fireplaces, and designed for use in such a manner that the asbestos fibers can become airborne under reasonably foreseeable condition* of use are banned hazardous products under sections 8 and 0 of the Consumer Product Safety Act (CPSA) (15 UJS.C. 2057 and 2058). This ban applies to arti ficial emberlzing materials available in separate kits or with artificial fireplace logs for use In fireplaces and sprinkled or coated by consumers on the artificial logs to simulate live embers and ashes and give a glowing appearance when subjected to high temperatures. Bags of material containing asbestos that are sold separately to be sprinkled on and under artificial logs to simulate burning and glowing ashes also come within the scope of this ban. On the basis that airborne asbestos fibers present the hazards of cancer such as lung cancer and mesothelioma to the public, artificial fireplace ash and embers containing respirable free-form esbestoe are banned hazardous products. 6 1505.5 Findings. . (a) The degree and nature of the risk of injure. The Commission finds that the risk of injury which this regulation is designed to eliminate or reduce Is from cancer, including lung cancer and meso thelioma. Measurements are not avail able of the amounts of asbestos in the air from asbestos-containing emberlzing materials In homes. However, it appears that the amount of alrbo--s asbestos in such homes would Increase when air cur rents in the home are created by down drafts from a fireplace chimney or other activities that stir air in any room. Since emberlzing materials may contain up to 60 percent asbestos, which if not per manently bound Into artificial fireplace logs would be In respirable form, the risk four is claimed to be as aesthetically ef fective as asbestos. Thus, the utility de rived by consumers from some gas-burn ing fireplace systems may be adversely affected. (2) Cost. No effect on the overall price level of gas logs Is anticipated as a result of the ban. The average price of ember lzing kits may rise somewhat; the Com mission estimates the total price effect of the ban on consumers at under 825.000. (3) Availability. The Commission be lieves that all producers of artificial emberizlng material will have eliminated asbestos from their products by the time the ban becomes effective. No significant Impact on the availability of asbestos substitutes to producers nor on the avail ability of gas logs or emberlzing kits to retail dealers and consumers is expected as a result of the ban. (d) Any means of achieving the objec tive of the ban while minimizing adverse effects on competition or disruption or dislocation of manufacturing and other fi 1305.2 Purpose. The purpose of this rule Is to ban arti ficial emberlzing materials containing respirable free-form asbestos. These products present an unreasonable risk of injury due to inhalation of fibers which increase the risk of developing cancers associated with emberlzing materials Is considerable, especially since it continues to exist 24 hours a day. (b) Productt subject to the ban. Arti ficial emberlzing materials are decorative simulated ashes or embers, used In cer tain gas-burning fireplace systems, which glow to give the appearance of real burn commercial practices consistent uHth the public health and safety. The Commis sion believes that there will be minimal disruption to the market for artificial emberlzing materials as a consequence of the ban and that no further reduction in adverse effects is feasible. Conclusion. The Commission finds that such ss lung cancer and mesothelioma. ing embers. The'material is sprinkled on this rule, including Its effective date, is FfOfAAl IfOISTH, VOL 42, NO. 241--THUt$0AY, PKUUU IS, 1477 / \ SGP 0009429 RULES AND REGULATIONS reasonably necessary to eliminate or re duce the unreasonable risk of Injury from, cancers such as Lung cancer and mesothelioma that are associated with the banned products described herein, that no feasible consumer product safety standard under the Consumer Product Safety Act can adequately protect the public from this risk, and that promul gation of this rule is in the publlo in terest. Effective Dates: Part 1304 becomes ef fective January 16,1078. Part 1305 becomes effective December 15.1077. Dated: December 13,1077. Shilook D. Butts, AtiUtant Secretary. Consumer Product Safety Commission. (FBDOC.77-SS746 Filed 13-13-77;11:33 sm| 63365 F5DRAI HOIST!X, VOL 41, NO. 341--THIMSPAV, MCEMSIX 13, 1977 SGP 0009430 THURSDAY, DECEMBER 15, 1977 PART III CONSUMER PRODUCT SAFETY COMMISSION CONSUMER PATCHING COMPOUNDS AND ARTIFICIAL EMBERIZ1NG MATERIALS (EMBERS AND ASH) CONTAINING RESPIRABLE FREE-FORM ASBESTOS Banned Hazardous Products SGP 0009431 RUISS AM) REGULATIONS ACTION: flail rules. IUUVCARY: In this document the Com* mission declares that the followtag prod* nets containing respirable free-form as bestos are banned hazardous products under the Consumer Product 8afety Act: (1) Consumer patching compounds used to Join or repair interior walls and cell* tags (mixing of the product before It la applied, sanding of the product after It is dried, and cleanup alter completion of the process, release asbestos fibers that cam be Inhaled): and (2) artificial em* berltlng materials (embers and ash) used in fireplaces to simulate live embers and ah (ordinary air currents In the house* bold move asbestoe fibers that can be In haled) . The Commission Issues this ban in order to reduce or eliminate the unrea sonable risk of injury from certain types of cancer that may result from Inhaling asbestos fibers released during the use of these products. EFFECTIVE DATES: (i> For consumer Pt/.sir>T compounds containing respira ble tree-form asbestoe. the regulation Is sued below at section 1304. applies to products manufactured or initially intro duced on January 16. H74. or after tkat date. nor au otnar -- p-temnr rmnrvMmrU contain ing respirable free-form asbestos. pa. mawMfacnired r Initially Sitroduced Into coTM"<Mf raniiatinn ft MdUon 1304 apnlles on June 12.19T3. a/har Hi Wnr artificial tmT w>4iwy materials containing respirable free-form asbestoe. the regulation issued below ft section 1303 applies to products la commerce on December 18, 1877, or after that date. On July 28.1877, by publication of 6 notice in the rntut Rseorsa (42 FR 38732). the Commission also proposed a rule finding that it is In the public In terest to regulate consumer patching compounds and artificial cmberltlng ma terials containing respirable free-form asbestos under tho Consumer Product Safety Act (CPSA) rather than under the Federal Hazardous Substances Act (FHSA). Section 30(d) of the CPSA (IS XJS.C. 2079(d) > requires the Commission to make such a finding by rule, before regulating under the CPSA. a risk of In jury which could be reduced or eliminat ed to a sufficient extent under the FHSA. The Commission issues this rule else where in the FrsnAL Rtowrxa. Hie data in these proposals are Incorporated hare-; in. by reference. - Section 9(a) (2) of the CPSA requires that, in addition to providing an oppor tunity for wMnf written submissions, the Commission shall provide Interested persons with an opportunity to make oral presentations of data, views or argu ments relating to proposals to ban. Oral presentation* on the bans war* heard by the Commission an August 18, 1977. Views on the bans are discussed below under Comments on Proposal. In order to have sufficient time to re view all the responses to tho banning proposal, including late response*, on October 4.1977 (42 FR 83970). the Com mission extended until November 28. 1977. the time In which It must either publish a consumer product safety rule or withdraw the proposals to ban. This date waa furthsr txtendod until Decem ber 12, 1977. bv notice published In tho Fmnua Reams* on November 29, 1977 information available to the Commission indicated that most patching compounds for commercial/Industrial us* an dis tributed in such ways that eonsumen have access to these products (81) either by purchase or for their use and enjoy ment. Therefore, the Commission con cluded that these an consumer products subject to the Commission's Jurisdiction unless such patching compounds are la beled as. marketed, and sold solely for industrial use. -- 1. Patching compounds as consumer products, (a) Several commenten re-, quested a clearer definition of consumer patching compound and a manufacturer questioned the boundaries of the term "consumer product" The manufacturer states that the definition of consumer patching compounds In the ban has been Improperly broadened to include Juris diction over building materials. He be lieves that the CPSA permits regulation only of articles used within the home, not the structure of the home Itself or the integral parte of the structure. He states that tines eonsumen have access to patching compounds containing res pirable free-form asbestoe through most marketing channels, these products can be considered consumer products under the CPSA. Thus, ha believes that It was Inappropriate to cite a recent easa, ("U.S.A. v. Anaconda Co, at at," Miss. No. 77-0034. (DD.C.V June 15, 1877) which Indicates that the presence of a product In a consumer environment can help decide whether that product Is a consumer product under the CPSA. Therefore, the commenter urges "the Commission In Its final regulation to de lete" the paragraph bn "Anaconda" case FOR FURTHER INFORMATION CON TACT: Charles M Jacobson. Consumer Prod uct Safety Commission. Compliance and Enforcement Regulatory Manage ment Division. Washington. D.C. 20207, 301-483-6400. SUPPLEMENTART INFORMATION: Bacauaotm On July 28. 1877. by publication of a notice in the Fnnn Racism (42 PR 38783), the Commission proposed rules to declare that consumer patching com pounds and artificial embertslag materi als (embers and ash) containing respira ble free-form asbeetoe. are banned haz ardous products under tho Consumer Product Safety Act (CPSA). These rules were proposed because the Commission preliminarily determined that an unrea sonable risk of injury of certain types of cancer, such es mesothelioma and lung cancer, is associated with inhalable asbarto* found In these products. The In formation on which the Commission's preliminary determination was based Is set forth In the proposal. The data la the proposal are Incorporated herein by reference. The bibliography of 30 refer ences cited In the proposal art repeated la this preamble for convenience. Num bers 31 and over refer to additional infor (42 PR 60732). CoswxMxg on PsoroeAX. Oral views on the proposal wars pre sented by 7 persons on August 18. 1977 with 3 representing consumer groups and 4 rsprssenting manufacturer*. In addi tion, tho Commission received 30 writ ten comments which represented 17 manufacturers and 3 distributors: 4 fed eral agendas; 3 pubtio Interest groups: 3 concerned citizens; a supplier of raw materials: and a chemical research and development linn. Among tho 10 cornmenten who expressed support for tho ben wen S'manufacture* of patching compounds, 3 federal agendas and 3 pub lic Interest groups. Hit significant Issues raised by tho oral and written commerits an sat forth below. A. scop* end definition. Hit proposal state* that consumer patching com pounds are those that an customarily produced or distributed for sale to or for the personal use. consumption or enjoy ment of eonsumen In or around a house hold or residence, a school In recreation or otherwise The Commission considered In the proposal that patching compounds for application In these consumer en vironments are either distributed for sals to eonsumen or are for the personal us* in order to "avoid the creation of an un necessary conflict ,* * * within tho reg ulation Itself." In response to this comment the Com mission notes that the paragraph which cites the ease in question Is not In the proposed regulation but In that part of the preamble which explains the regu lation. m the preamble, the Commission cited "Anaconda" not In reliance on the ease as a basis for regulation but to show how the case Interprets the definition of consumer product at section 3(a) (1) of the CPSA which reads. Tbs urm "eocaumar product" moans say artlels. or eempoaent part Unroof, produced or distributed (l) for eele to a consumer for uee in or areoad a permanent or temporary household or ratidance, a school, In rocrea tion. or otherwise, or (11) for the pereonal use. eonsumpttoa or enjoyment of a con sumer la or around a permanent, or tempo rary household or raaidsne*. a school, la recreation, or otherwise; Although courts have not yet reached a definitive decision on the coverage of the term "consumer product." the Com mission believes that the statute and leg islative history, by themselves, afford sufficient authority for Commission Jurisdiction over the defined product and Its use In consumer environments. It ap pears to the Commission that the defini tion of consumer patching compound In mation considered in Issuing this rule. or enjoyment of eonsumen. Moreover, the proposal falls within section 3(a) (1) NOMAt uoism. VOL 42. NO. 841--IHWSOAV, PICtMMfi 13, 1977 SGP 0009432 tutu AND RKGUIAT10NS *3357 Tit enough evidence to bos* definition of "ubHtM" on fiber morphology. There* fare, the Commission believe* the pro* posed definition should not be changed tat the final rule. As circumstances war* rant the definition could be amended at ing esteems. Whenever a manufacturer finds out the* the ttnlmbed product contains as bestos. tbs manufacturer wtu be eonaldsrtd as knowingly using s raw material contain ing asbestos unlaw the manufacturer tokos steps to reduce tbs asbestos to tbs msslmiim extent feasible. a later date. Therefore, the boa applies only to 5. Asbestos contamination tat patching consumer patching compounds contain compound*. Beveral manufacturere ex* ing Intentionally-added respirable free pressed concern that all patching com form asbestos and will not apply to pounds would be subject to the ban rath* products having unavoidable trace or than only those compounds to which amounts. asbestos has been Intentionally added. 6. Artificial tmhertsing materials-- They point out that asbestos is ubiaul* exemption from ban. A manufacturer of tous in the environment and that traces electric artificial logs and electric fire of asbestos may be present as a contam places states that although the Commis inant in other minerals that are mined sion proposed to ban only artificial em- tat areas of serpentine rock. One corn- bertzmg materials containing respirable, menter suggests that the Commission free-form asbestos, references In the consider permitting patching compounds media to artificial logs and artificial fire which contain such naturally occurring contaminants. Other eommenters -sug places reflect adversely on his business. He asks, therefore, that his products, gest that a percentage of asbestos con which use an artificial ash bed of vermlc- tamination by weight be permitted. The ullto. be exempted from the boa. lowest percentage suggested by one com As the commenter noted, the Commis monter is 1 percent because the En vironmental Protection Agency <EPA) sion baa applies only to emberlzlng ma terials containing respirable free-form permits the presence of 1 percent ashes- asbestos and not to any artificial logs or toe by weight In spray-on asbestos in* hIaMiw &n(| flM DfOOflnf As noted in the proposal, the Commis sion is aware that asbe*toe is present in the environment. Further, the Commis sion does not wish to ban all consumer patching compounds In which traces of asbestos are present as a contaminant rather than as an intentionally added artificial fireplaces with which they may be used. Since the banned product Is used with artificial logs, it is understand able that questions are raised as to dif ferent kinds of artificial logs. The Com mission doss not btllevo it would be ap propriate to exempt from the bon all electric logs coated with unidentified substances, or all artificial ash used in The suggestion that the Commission permit contamination of 1 percent by weight, however, appears to bo Inappro priate for consumer patching compounds because consumers would not be suffl- eientty protected. One percent by weight could mean a substantial number of moll lightweight asbestos fibers, thus presenting a significant exposure to con sumers of respirable free-form asbestos. Thsrcfors, the Commission declines at tUs* time to adopt a percentage by fddU to pennittUU tian. . . Industry experts do not agree as to the amount of asbestos that might be pres ent m products without deliberately added asbestos. Nor Is there agreement on the reliability of the techniques used to measure low levels (below 1 percent) of asbestos by weight The Commission believes, however, that the uaa of ap propriate quality control measures end careful selection of raw materials can serve to minimise contamination from unintentionally added asbestos (see the Commission's ecocomio impact state ment on file at the Offlee of the Secra tary). In order to emphasize that only electric fireplaces, since some of these articles could include the banned prod uct. However, in order to clarify the mat ter for consumers as well as producers, the Commission adds a statement to 11309J(d>, the definition of embtrizir.g material*, which reads, "electric artifi cial logs and artificial ash beds used in electric fireplaces which do not contain respirable free-form asbestos are not in cluded in this definition." B. effective date. Six commentere dis cussed the proposed effective date of the ban of consumer patching compounds which was 30 days after publication of th* fizial rule. Firs monufsetursrs sug gested a date later than 30 days after publication. A public interest group sug gested that the effective date be the daw of publication of the final rule. (1) One commenter suggested that the commission consider a series of effective dotes for the bon on consumer patching compounds: 30 days for manufacturers, 94 for distributor* end 1*0 days for re tailers in order to clear Inventories. Several commenter* believe that a 30- day effective date might prove burden some to small manufacturers because of the inventory problem. patching compounds with clearly un avoidable traces of asbestos contamina The matter of Inventories was con sidered tat the July 29. 1977 proposal to tion will be permitted, the Commission ban and further discussed at the public defines "Intentionally-added asbestos" meeting of August IS. 1977. The concern at | IJMJU) of the rule below to mean of those involved to clear their existing asbestos which Is inventories of consumer patching com (1) added deliberately as sa ingredient in- pounds containing respirable free-form tsoded to import spciOe etsiwunatla; or asbestos was considered. Information (9) eeatsined In th* anal product u a result available to the commission indicates of knowingly using e raw material contain that manufacturer! ore now maintain ing a relatively until inventory. DU* tributer* report that (bey maintain a small Inventory compared to their sales. Retailers have a much slower-moving inventory (51). The Commission considered the pos sible adverse economic impact of a 30day effective d*te on Inventories of man ufacturers. distributors and retailers. The Commission also considered the pos sible advene effects of exposing con sumers to Inhslabl* asbestos by permit ting the manufacture, distribution and sale to consumers of patching com pounds until iso days after publication of a bon. It appears to the Commission that early discontinuance of the manu facture of this product would be neces sary in order to stop its continuing pro liferation In the market. On the other hand, substantial advene economic im pacts could result from the freezing of distributors' end retailers' inventories at on early effective date. The Commission concludes therefore that the ban should become effective at two different points tax time. For manufacturers, the effec tive date should be close to publication of the rule in order to stop the con tinuing manufacture of the product. For distributors and retailers, the effective date should be delayed to help amelio rate adverse economic impact*. Therefore, the Commission doclore* telow at 1 1304.4 that consumer patch ing compounds containing respirable fres-form asbestos which have been manufactured or initially introduced into commerce 30 or more days' after publication of this rule are banned hazardous products, nils means that a banned hazardous product, having been manufactured or initially Introduced Into commerce, retains its status sa a banned hazardous product: thus, its subsequent tele, offering for sale, or dis tribution in commerce, is prohibited by any person in the chain of distribution. In addition, the commission declares that all other consumer patching com pounds containing respirable free-form asbestos, no matter when manufactured or initially introduced into commerce or* banned hazardous products ISO or more days after publication of this rule. (As stated below in 1 1304.4(g) of the rul*. initial Introduction into commere* of this product occurs when the product is physically shipped from a manufac turer's facility to a distributor, retailer, consumer or to another person for appli cation In a consumer environment.) In summary, 30 days after publication of this rule, manufacturers will be pro hibited from manufacturing or shipping the product to distributors, retailers, consumers, or to others for application in consumer environments. Further, 180 days after publication of this role, dis tributors and retailers will be prohibited from selling, offering for sale, or distrib uting any of the described product-!, no matter when manufactured or Initially introduced into commerce, to distribu tors. retailers, consumers or to others for application In consumer environments. (3) The public Interest group recom mends that the effective date of the ban HM9AI UOUTU, VOL 43, NO. a4l~4MUU0AV, MCIM3M IS, 1937 SGP 0009433 RULES AND REGULATIONS 633S9 gtsnosg. Tttr todiexte that persons of dfflsrtng Skills may release Olfierent amount* of Inhalable asbestos Into the atr. Although these differences occur, a oearamar would likely release more asboatoa Into tha air beeauaa ha or aha may ha laaa skilled In tha proceaa than a profaariotial applicator. Tha Commission recognize* as these commonter* point out that soma products hava a smaller per* eentage of asbestos than those which wan used for exposure data in the Com* ndaslon risk assessment. For example, oca commenter submitted asbestos ex* posum data from a study ha conducted ustat a compound that contained a amount of asbestos. Based on this eommenter's exposure data, another risk assessment was conducted. The re sults softest that use of a patching com pound containing less asbestos may re does but doss not eliminate an excess of deaths due to exposure to asbestos In patching compounds. Tha range ls from 1 death per million persons exposed for the projected flea years exposure using one model and up to 82# lifetime excess cancer respiratory death* per million parsons exposed during another model (. It should ho noted hers that while abato tarsia may vary, they do not change tha fact that there la no known level below which inhalable asbestos may be considered safe. - (o) Another commenter ray* that ushig a pramhtad compound reduces the consumer's exposure to asbestos. The commenter also thought that tha Com pelsrirwi's estimate of consumer exposure was too high. Tha Commission's risk asamount analysts did taka into eonsid* emtloa the exposure during the mixing of s patching compound. While expo sure to asbestos fibers would be negliglble during alight stirring of a premized compound, the exposure during the sanding and cleaning operations in volved would be tha same as for tha dry compound, Consequently. tha risk as sessment velum would not be signifi cantly reduced. Aa for the four-day. eight-hour exposure being too high an no data were submitted to sub stantiate that contention. Aa stated in the proposal, therefore, U appears to the commission that although the exposure mag be high, it la a reasonably forests able exposure. St SubttUnUs /or asbestos. The July 29, tm proposal notes that substitutes for asbestos are already being used in patching compounds, one cf the moat wm substitutes is attapulgita. a fi brous clay. Other substitutes of a fibrous nature ere woUastonlte. kaolinito. setfioUte and bentonite. Several comments ex press concern that materials used os sub stitute* for aabestoe may also pose hasards. The Commission shares this concern. Substitutes for asbestos have been under eamldtraUon for only a short time. Uttie data arc available on which to evaluate tha safety of substitute material*. Ex perimental findings of Stanton (Ml Indi cate that many mineral fibers (in addl- 'Ion to asbestos) of small respirable dl- mrations are biologically active under experimental conditions. According to correspondence dated July 26.1917 from Dr. Paul Kotin of the Johns-Manvllle Co. with environmental consultant Barry Caatleman. a JohnsManvlUe study is under way to assess the potential inhalation hazard of certain naturally-occurring or man-made min eral fibers such as ceramic fibers. Ce ramic fibers are a potential substitute for artificial emberising materials. Human exposure data to substitutes are extremely limited. Occupational ex posure data to certain clay mineral fiber* which are proposed asbestos substitutes are scheduled to be presented at a Sym posium on Occupational Exposure to fi brous and Particulate Dust and their Ex tension into the Environment, in Decem ber 1977. These data are expected to in dicate the extent of exposure, rather than human experience finding* on re sults of such exposure. Date on the re sults of human exposure to asbestos sub stitutes will not. In all likelihood, be available In the near future. (1) A commenter suggests that substi tutes. since they would be fibrous, would present a risk. In assessing asbestos substitutes, data available to the Commission Indicates that a number of substances may be used which are not fibrous such as *ii<nmi carbonlts, elay, rosins and mica. For tha fibrous elay minerals which may be used as asbestos substitutes such as woUasto nlte, kaoiinltc, septoute and bentonite, the Commission Is aware that there it a lack or conclusive data on the hazard potential associated with these minerals. Additional study ls needed to evaluate the risk of inhalation exposure to such small mineral fibers. Nevertheless, tha Commission believes that the known risk from inhalable asbestos requires the banning of these products at this time. (2) a comment questions a statement in the proposal that fibrous glass could be considered a substitute for cluysouie In cmberulng materials. The Commission concurs with this comment: it is currently unaware of any manufacturers or distributors who use or know of the us* of fibrous glass for this purpose, m addition, from a technical viewpoint, class fibers are not similar in siaa and shape to ebrysotUe. Unlike the rod-like glass fibers, chiysoule tends to be curved, or be of curly fibers or fiber bundles, comprised of extremely small- diamaterad fibrils. However, glass fibers are similar--at lesat in shape--to some of the amphlbolo asbestos minerals. The diameter of most fibrous glass ls report edly greater than S-S microns and con sidered too large to be respirable. How ever. glass fiber* are not of uniform di mensions and a small percentage may be of respirable size. Additional study is needed to assess the pathologic efiecti of inhaled fibers. Including fibrous glass. E. Economic consideration*. Six com- menters expressed concern that the baa would have an advene economic impact on the Industry, five of the six are man ufacturers who commented on patching compounds. The sixth is a distributor of gas fireplace logs. One patching compound manufacturer claimed that some firms in that indus try will go out of business should the ben be promulgated. As noted below, our studies Indicate that some small producers may not have the technical capability to reformulate their products satisfactorily or may be unable to obtain necessary raw materials by the effective date of the bon. Thus, some may cease production temporarily, until such re formulation la achieved. Some of the Urge manufacturers have Indicated a willingness to license their asbestos-free formulations (or parts of them) to small er firms. - Two commenter* discussed potential eost effects of tha bon on patching compounds other than those relstine ta the product itself. One patching com pound producer estimated at 60 percent the Increased ''workload" associated with the professional application of non asbestos formulations because of differ ent performance characteristic*. The Commission has investigated the poten tial increase in direct labor costs as sociated with existing aabestoe and non asbestos formulations; it estimates an initial io to 26 percent average increase as a result of switching from the former to the Utter. Other costs may accrue to professional users of the product should different application tooU be needed or should some jobs have to be redone to tha relatively poor shrink- end crackresistance of tome non-asbestos formu lations. These increased cuts are ex pected to diminish over time a formula tions improve and as applicators become more accustomed to using non-asbestos formulations. One company which may be adversely affected by the proposed ban reports that attapulgita. one of the prime sub stitutes for asbestos in patching com pounds. U in `'limited supply" and that some small manufacturers may have difficulty in obtaining that material. Other industry sources have reported this same problem. The larger patching compound producers, who already have asbestos-free formuUtiona on the mar ket, are not expected to hay* as much difficulty In obtaining substitute materials. Two manufacturers discussed the ban's potential adverse effect on the utility of the product. One expressed a belief that non-asbestos formulations are Inferior In performance to asbestos formulations. Another reinforced that belief, reporting that the absence of asbestos formula tions may prompt workmen to add their own asbestos to the product to help pre vent cracking when wall joints are cov ered. However, the addition of asbestos would be tantamount to manufacture of the banned product end would thus be prohibited. It appears that at least some existing non-asbestos formulations may be less desirable, from a performance standpoint, to professional contractors: most consumer applicator* are not ex- HDMAL RMUTtt, VOC 42. NO. 241--DWtSOAr. OICUUM IS. 19f9 SGP 0009434