Document ZB3q0Q69gDgzQMV0rv1yJn72Z

FILE NAME: No Safe Threshold (NST) DATE: 1994 Aug 10 DOC#: NST005 DOCUMENT DESCRIPTION: Excerpt - Federal Register - Asbestos Federal Register / Vol. 59, No. 153 / Wednesday, August 10. 1994 / Rules and Regulations 409G? to base its risk assessment on the benefit analysis is not required by the assumption that employers w ill statute because feasibility analysis is ." engineer to levels significantly below Id . at 509. * " the PEL. First, as discussed below, the Authority to issue this standard is PEL o f 0.1 f/cc is at the lim it of also found in section 8(c) of the A ct. In feasibility for those workplaces in general, this section gives the Secretary' w hich asbestos levels are most difficult authority to require employers to make, to control, and an assumption that keep, and preserve records regarding average exposures w ill be substantially activities related to the A ct. In below the PEL w ill clearly be unrealistic particular, section 8(c)(3) gives the for such workplaces. Second, O SH A Secretary authority to require employers found in issuing the 1986 standard that to " maintain accurate records of A IA 's argument about uncontrollable employee exposures to potentially toxic fluctuations was exaggerated because materials or harm ful physical agents such fluctuations could be m inim ized w hich are required to be monitored or through proper inspection and measured under section 6 ." Provisions m aintenance of engineering controls o f O SH A standards which require the and through proper training and making and maintenance of records of supervision of employees whose work m edical examinations, exposure practices affected exposure levels. (51 m onitoring, and the like are issued FR at 22653). Third, O SH A 's ~ pursuant to section 8(c) o f the A ct. enforcement policy gives employers the Because the revisions to the asbestos opportunity to show that a compliance standards are reasonably related to these officer's measurement over the PEL is statutory goals, the Secretary finds that unrepresentatively high and does not these standards are necessary and justify a citation, thus alleviating any appropriate to carry out is concern employers might have that they responsibilities under the A ct. w ill be cited on the basis o f a single Response to recom m endations o f measurement that results from public to further reduce risk: A s noted uncontrollable fluctuations. Fourth, above, this rulemaking proceeding is a even if some employers are sufficiently response to a remand order of the Court risk-averse to engineer down to well o f Appeals for the D .C . Circuit. The below the PEL to avoid a slight risk of Court determined that in the earlier citation, OSH A cannot base a realistic 1986 rulemaking, O SH A had not risk assessment on the assumption that sufficiently explained its decisions not most employers w ill do so. to adopt certain regulatory provisions . The 0.1 f/cc level leaves a remaining recommended by participants in that significant risk. However as discussed rulemaking. In particular, the Court of below, and in earlier documents, O SH A Appeals held that it is O SH A 's " duty to believes this is the practical lower lim it keep adding measures so long as they o f feasibility for measuring asbestos afford benefit and are feasible, up to the levels reliably. However the work point where (it) no longer finds practices and engineering controls significant risk," and that it is O SH A 's specified below for specific operations duty to consider the reasonableness of and required respirator use w ill in adopting them. 838 F.2d at 1269. The O SH A 's view further reduce the risk. As Court noted that O SH A need not justify discussed below, O SH A has carefully its failure to adopt all suggested reviewed all the public suggestions to provisions: rather, the Agency must further reduce significant risk and has defend not adopting only those adopted those which have merit. provisions demonstrated by their After O SH A has determined that a advocates, " to be feasible to implement significant risk exists and that such risk and w ill provide more'than a de can be reduced or eliminated by the m inim is benefit for worker health." The proposed standard, it must set the Court further explained, " (n)aturally the standard " which most adequately force o f the evidence and argument that assures, to the extent feasible on the O SH A must offer to defend its choice basis o f the best available evidence, that w ill vary with the force o f the no employee w ill suffer material proponent's evidence and argument." Id impairment of health* * * ," Section 6(b)(5) o f the A ct. The Supreme Court at 1271. In this final rule, based upon the has interpreted this section to mean that record evidence, O SH A is adopting O SH A must enact the most protective certain regulatory recommendations standard necessary to elim inate a made in the earlier rulemaking, is significant risk of material health rejecting other recommendations, and is impairment, subject to the constraints of issuing other provisions w hich are technological and economic feasibility. based on, but are altered versions o f yet Am erican Textile M anufacturers other recommendations in the earlier Institute, Inc. v. Donovan, 452 U .S . rulemaking. In addition, new, different 490(1981). The Court held that " cost- and expanded provisions also have been urged for adoption by participants in this rulemaking. These participants represent labor, public interest and industry interests. The Agency is adopting, rejecting and changing these recommendations as w ell. A large portion of this preamble is'' devoted to the Agency's explanations of these regulatory decisions. O SH A believes that its reasons when it has adopted or has not adopted recommended provisions are well supported by the evidence and that the reasons for its choices are stronger than the contrary arguments. In general, O SH A believes that the extent of its burden to refute claim s o f benefit for a recommended provision depends on the extent o f the supporting data. If the data are valid and extensive, O SH A 's burden is greater. If however, the claim of benefit is based on opinion, refutation by O SH A need not be grounded in data, but may be based on O SH A 's well reasoned and expert contrary opinion. In sum , O SH A 's decision not to adopt recommended provisions to reduce asbestos related risk reflects the Agency's expert judgment, often where available data creates considerable uncertainty, that the provisions would not offer more than de m inim is benefit in reducing a still significant risk. Many recommendations were unsupported by data showing benefit. For example, it was recommended to prohibit high speed burnishing of asbestos-containing floor tile. However, the data do not show a measurable reduction of airborne asbestos fiber levels, based on actual fiber counts using such practices. Other recommended provisions sim ply do not reduce a still significant risk. For exam ple, requiring very low clearance samples (analyzed by transmission electron microscopy) to deregulate all " regulated areas" to assure that EPAI AH ERA level of 0.01 f/cc is met does not appear to be necessary to reduce a significant risk to employees. There is an extremely low (although speculative) risk of asbestos related disease estimated at such clearance levels, and, there is evidence that immediate clearance sampling does not predict later concentration levels. O SH A discusses the recommendations made by participants in the preamble sections w hich cover the recommended provisions. The follow ing is a list of the major recommendations made by public w hich are discussed later: 1. Recommendations for a mandatory building inspection program: Recommended by BCTD (Ex. 143, Att. A); Gobbell Hays Partners, Inc. (7--149). Service Employees International Union (SEIU) (Ex. 144); Am erican Federation