Document a19eb8voy3yzB0RpMB4bngbyR

`",\TZ.C PLAINTIFF'S EXHIBIT DUP-816 566G4 RULES AND REGULATIONS [4910-60-M] Till* 49--Transportation CHAPTER I--RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, DE PARTMENT OF TRANSPORTATION [Docket No. KM-160: Arndt. Nos. 172-47, 173-123, 174-33, 175-7, 176-, 177-44J TRANSPORTATION OF ASBESTOS Miscellaneous Amendment AGENCY: Materials Transportation Bureau. Research and Special Pro grams Administration, DOT. ACTION: Final Rule. SUMMARY; These amendments re quire shipments of commercial asbes tos fibers to be packaged in rigid, air tight or dust and sift proof packagings. Except when the shipment is by private carrier, non-rigid packages, such as bags, must be palletized and unitized using shrink-wrapping or strapped fiberboard wrapping. These amendments represent minimum safety requirements and are intended to reduce the risks to the public health associated with the generation of airborne concentrations of asbestos tiiat may result from the packaging and handling of asbestos fiber ship ments in commercial transportation. EFFECTIVE DATE: These regula tions are effective April 30, 1979. ADDRESS: All written comments re ceived In this rulemaking action are available for examination during regu lar business hours in the Dockets Branch, Room 6500, Trans Point Building. 2100 Second Street SW,, Washington. D.C. FOR FURTHER INFORMATION CONTACT: Douglas A. Crockett, Standards Divi sion. Materials Transportation Bureau, Research and Special _Progfams Administration, 2100 Second Street SW,, Washington, D.C. 20590, phone 202-426-2075. SUPPLEMENTARY INFORMATION: On March 2. 1978, a notice of proposed rulemaking (HM-160: Notice 78-3) was published in the Fedexal Register (43 FR 8562) stating that the MTB was planning to exercise regulatory con trol over the transportation of asbes tos. Specific regulatory reoulrements were proposed tor the control of cer tain forms of asbestos te.g.. milled or crude asbestos fibers), fro require ments were proposed for asbestos fibers which are immersed or nxed in a natural or artificial binder material. or for manufactured products contain ing asbestos. Interested persons were invited to participate in the rulemak ing proceeding through submission of written comments on the proposal to the MTB. All submissions, including late submissions, that were received on the proposal were fully considered by the MTB in the development of this final rule. Need To Regulate the Transportation or Asbestos Several commentera felt that the MTB had failed to establish a need to regulate the transportation ol asbes tos. One of the commenters suggested that there was no need for the pro posed regulatory control of asbestos in transportation because the "methods and procedures now in use for the packaging and transport of asbestos meet the requirements of Part 173. 24(AXsic) of the Transportation Act, that Is `under conditions normally in cident to transportation there will be no significant release of the hazardous materials to the environment' and `the effectiveness of the packaging will not be substantially reduced (t)he proposal contains no documentation to justify additional regulation.'' This eommenter, while apparently believing that asbesto* is a hazardous material, was incorrect in suggesting that asbes tos is currently regulated by the MTB: or in suggesting that the purpose of Notice 78-3 was to justify the addition al regulation by the MTB of asbestos in transportation. The transportation of asbestos is not now regulated by the MTB. It was precisely the purpose of Notice 78-3 that It should be. If. as the eommenter suggests, the transporta tion of asbestos is now "in compliance with pertinent provisions of the Trans portation Act." this rulemaking action will formalize and insure in a uniform and systematic manner that this is the case. Another eommenter stated that Notice 73-8 did "not establish a foun dation for regulation, in that it does not document, or even allege for that matter, the actual release of fiber during the transportation of asbestos." As was pointed out in Notice 78-3, the MTB has ``no detailed information on the amount of asbestos fibers released during transportation." The MTB does not now regulate asbestos, and has not therefore systematically collected acci dent data on the amounts of asbestos released In transportation or data on the frequency of such accidents. Most asbestos fiber, however, is currently shipped in bags, and it is undeniable that these bags can and do break, or can be and are being tom or punc tured. with a consequent release of some or all of the bag contents. It can be speculated, moreover, that If all of the 750.000 tons of asbestos annually shipped in the United States were packaged in. as one eommenter states, the "standard package" of a 100-pound bag; and If as little as one-tenth of one percent of these bags were damaged in transportation during the year (one out of a thousand) and if on the aver age 1 percent of the contents of the bags so damaged were released, the total amount of asbestos released per year would equal about 7.5 tons. These calculations give a general Idea of the magnitude of asbestos fiber that would be released, given a 99.9 percent efficiency factor for "bag Integrity" in transportation, and a 99.0 percent effi ciency factor in minimizing the amount of asbestos released given a tear in the bag. The rather evident fact that asbestos has been accidental ly released during transportation has not been contradicted by anything submitted to the public docket on this rulemaking action. One eommenter. for example. In discussing the use of open-bed trailers with side racks and tarpaulins to transport asbestos stated that there is no evidence that the use of such trailers "has contributed to bag breakage and the release of air borne concentrations of asbestos fiber." The Asbestos Information As sociation, an incorporated nonprofit organization representing 51 firms in the United States and Canada engaged in the manufacture or processing of asbestos-containing products and the tnlnlng/mllllng of asbestos fibers, stated that with "the very large volume of asbestos shipped, occasional container damage may occur." Although several commenters who discussed this matter do not contend that asbestos has not been released in transportation, they generally are of the view that the amounts that are being released are not significant or of a sufficient amount to pose an unrea sonable risk to public health. The MTB does not agree; It believes that the amounts of asbestos fibers that are being released now, or would be re leased in the future, in the absence of these amendments, may pose an un reasonable risk to health. Several commenters were concerned with the statement appearing in Notice 78-3 that "asbestos in its sever al commercial forms, poses serious health hazards to individuals subject to long term exposure to airborne as bestos concentrations." One commenter stated that "not ail long-term exposures to airborne concentrations pose any health hazards v An other eommenter suggested that the statement needed "more explicit defi nition" and that "reference should have been made to unanswered ques tions within the scientific community concerning mineral type, fiber size and smoking in the asbestos-cancer rela tionship." One eommenter stated that there is a dose-response relationship between exposure to asbestos and dis ease causation, and that this conclu sion is supported by an OSHA state ment from its June 7, 1972 preamble FEDERAL REGISTER, VOL. 4], NO. 232--MONDAY, DECEMBER 4, 1911 DBE DUP 0501721 DU 001442 RULES ANO REGULATIONS 56663 ..-IvL'.irv.vji Da.t^l: November 27, 1978. Douglas M. Costle. Administrator. Part 52 o\Tltle_40, Code of Federal Regulations'^ amended by revising $ 52.470 (c!(U)\o read as follows: Subpart J--District of Columbia 5 52.170 IdcntiftcadiiK of Plan. effects are masked need not be submit ted"--should contain the words "Studtes of" before the first word. FOR FURTHER INFORMATION CONTACTOR: John D. Rltch, Industry Assistance Office, Office of Toxic Substances (TS-799), Environmental Protection Agency. 401 M Street, SW,, Wash ington, D.C. 20460,800-424-9085. Dated: November 22. 1978. <c) The plan revision*, listed below were submitted on the dates specified Douglas M. Costle. Administrator. (FR Doc. 78-33725 Filed 12-1-78: 8:45 am] (11) Amendments to Sections 8-2:704 (Use of Certain Fuel Oils Forbidden), 8-2:705 (Use of Certain Coal'Korbldden), and 8-2:713 (Visible Emissions) [3510-03-Ml of the District of Columbia Air Qual ity Control Regulations submitted Title 46--Shipping March 3. 1977 by the Mayor. . CHAPTER 11--MARITIME ADMINIS TRATION, DEPARTMENT OF COM/ (FR Doc. 78-33593 Filed 12-1-78: 8:45 ami 4ERCE The purpose of this amendment is td implement the Maritime AdministAtion policy that midshipmen shall-eceive the same rate of pay frony their steamship company employers/for the sea year training as cadets/Aceive at the Federal academies. The rate of pay received by midship men while assigned hr subsidized mer chant vessels is a nuftter of public con tract with the owners of such vessels. Also, this amendment has been deter mined not type a significant regula tion within/the scope of E.O. 12044. "Improving Government Regulations" (43 FR/I2661, March 24, 1978), as im plemented by criteria in Appendix F of yNotlce In the Federal Register of ij 30, 1978, (43 FR 23184), as aended. Therefore, this amendment ' to the Merchant Marine Training reg ulations is adopted without notice of proposed rulemaking. [6560-01-M] SUBCHAPTE* *--TCXIC SUBSTANCES CONTROL SU8CHAFTER H--TRAINING Pat310--MERCHANt I TRAINING Part 310 of Title 46 of the Code of Federal Regulations Is amended by re-. vising the first sentence of paragraph (c) of $ 310.58 to read as follows: (FRL 1008-4) Subpart C--'Admlssloy and Training 5 310.58 Training on subsidized vessels. PART 730--HEALTH AND SAFETY STUDY REPORTING REGULATIONS Final Rule; Corrections of Midshipmen aMna United States Merchant MariwAcademy lira (c) Pav--Midshipmen shall receive pay, while attached to merchant ves AGENCY: Environmental Protection AGENCY: /Maritime \Administratlon. sels. at the rate of $351.00 per month Agency. Commerce: from their steamship company em ACTION: Typographical corrections lo preamble of final rule. ACTION: Final rule. SDMJCARY: The Maritim\ Adminis ployers. SUMMARY: In its citizens' petition of tration amends its regulation^relating September 12, 1978, referenced else to/merchant marine trainings to in Effective date. This amendment where in today's edition of the Feder al Register, the Manufacturing i-ease the pay that midshlpmen'qf the ''United States Merchant Marine Acad Chemists Association (MCA) noted/ emy receive while assigned to mer shall become effective January 20. 1979. one minor typographical error in tl chant vessels for sea year trainin (Section 204A(b>, Merchant Marine Act, preamble to the final regulations c/b- The purpose of this amendment is tb 1936. as amended (49 Stat. 1987, 46 U.S.C. mulgated in the July 18, 1978 FznraAL implement the Marttime Administra 1114), Reorganization Plans No. 21 o( 1950 Register (43 FR 30984) under section 3(d) of the Toxic Substances/Control Act (TSCA) 15 U.S.C. 2520. These reg ulations concerned health imd safety tion policy that midshipmen shall re ceive the same rate of pay from their steamship company employers for the sea year training as cadets receive at V<64 Stat. 1273) and No. 7 of 1961 (75 Stat. 121 as amended by Pub. L. 91-469 (84 Stac. 1096), Department of Commerce Order 10-8 (38TO 19707, July 23. 1973).) study reporting requlrentents under the Federal academies. CatalSeof Federal Domestic Assistance Pro the TSCA. MCA also nofed a minor ty pographical error in the rule correc EFFECTIVE DATE January 20, 1979. gram ftp. 11-507 U.S. Merchant Marine Academy\Klngs Point). ..'5 - tion of August 16. 1348 (43 FR 36249). These errors are corrected herein. fn the section on confidential claims procedures on page 30986 of the July 13. 1973 FeoejCu. Register the refer FOR FURTHER INFORMATION CONTACT: Arthur Friedberg, Director, Office of Maritime Manpower (202) 377-3018. Note.--lt\s hereby certified that the eco nomic and Inflationary Impacts of this resulation have bebn carefully evaluated In sc* cordance with OMB Circular A-107. ence in the first column, second para SUPPLEMENTARY INFORMATION: Dated: November 27, 1978. graph. fourth Une should read Part 310 of Title 46 of the Code of "5 730.B"/instead of "5 730.7." Federal Regulations is hereby amend By order of the YUslstant Secretary On Ittee 36249 of the August 16. ed. This amendment increases the pay of Commerce for Moktime Affairs. 1973 /Federal Register the second sentence in the quoted material- fixtures which contain only very hail amounts of a substance whose that midshipmen of the United States Merchant Marine Academy receive while assigned to merchant vessels for sea year training. James S. Dawson. Jr.. Secretary. tFR Doc. 78-33788 Filed 12-i\78: 8:45 ami FSOERAl REGISTER. VOt. 43, NO. 233--MONDAY, DEC1MBIR 4, 1778 DUP 0501722 DBE pH 001443 RULES AND REGULATIONS 56665 to its standard for exposure to asbes taminatlng trace element. The amend aging and shipping practices currently tos dust (37 FR 11318). The OSHA ments apply only to asbestos in ffj in effect. As one commenter pointed statement is that: "No one has disput several commercial forms since it Is out: ed that exposure to asbestos of high enough Intensitv and long enough du ration is causally related to asbestosis and cancers" (emphasis added). Al though the MTB had also quoted this those forms of asbestos that have been firmly~established' as posing serious health hazards to individuals. A new paragraph has been added which would define commercial asbestos as Commercial asbestos is fluffy. It Is diffi cult to pack this material is a rigid contain er. and. because the fiber would gradually compact during shipment, it would be diffi cult to remove it for introduction into the statement In Notice 78-3, the words any material or product containing as manufacturing process. It would also be ex underlined for emphasis had been in advertently omitted. Under these cir cumstances, some commenters appar ently felt that the MTB was asserting the view that because, according to some commenters, asbestos is ubiqui tous. long term exposure to ambient levels of asbestos fibers poses serious health hazards to all people, without regard to their occupational or paraoccupational status. It was not the in tention of the MTB to assert this view. That there are or can be "undisputed grave consequences from exposure to asbestos" (37 FR 11318) does not depend on the questioned conclusiveness of the evidence reported by OSHA (40 FR 47652) regarding the po tential health hazards posed by lowlevel. brief or Intermittent exposure to asbestos. The MTB relies on the fore going Federal Register references for the general view that exposure to as bestos may pose an unreasonable risk to the public. Section 173.1090(a) and (b) bestos that has commercial value be cause of its asbestos content, and ap propriate modifications have been made in the amendments to reflect this clarification. This new paragraph Is identified In this amendment as paragraph (b) (paragraphs (b> and (c) In the notice are now paragraphs (c) and (d). respectively). One commenter recommended that the scope of Notice 78-3 be amended to include, "in addition to asbestos fibers, "all mineral and man-made (fibers) which have been Identified by UB. Government agencies as being carcinogenic and which may pose seri ous health risk." On December 9,1978, the MTB published an Advance Notice of Proposed Rulemaking (41 FR 53824) in Docket No. HM-145 entitled "Environmental and Health Effects Materials." In that Notice, the MTB announced that It was considering whether new or additional transporta tion controls are necessary for certain classes of materials which are not gen erally subject to the existing Hazard tremely cumbersome, if not Impossible, to empty rigid containers effectively and rapid ly Into hoods designed for bags. Spillage would no doubt occur and workers would bo unnecessarily exposed to fibers. Another eommentar recommended that a DOT Specification 56 portable tank be included in the amended rule as an acceptable package "for the transportation of asbestos-type prod ucts." This commenter stated that "with the use of equipment designed for the purpose, the D.O.T. 56 package cam be readily filled or emptied with out release of any product dust to the atmosphere or contact with the prod uct by the operator." Another com menter insisted that only metal drums and not fiber drums were acceptable for the transportation of asbestos fibers. These commenters apparently lost sight of the fact that proposed i 173.1090(c)(1) does not "mandate." as one commenter suggested, or even en courage the use of rigid, airtight pack aging such as metal or fiber drums or even portable tanks. It provides an al Several commenters stated that there are certain mineral ores, ore con centrates and milled mineral products which may have trace amounts of as bestos, or minor amounts of asbestos occurring as contaminants. They sug gested that these materials presented no risk to property and Uttle, if any, nsk to public health and safety In transportation. Moreover, since the packaging requirements proposed in Notice 78-3 applied to only certain kinds of asbestos, namely milled or crude asbestos fibers produced by an asbestos mill, they further suggested that only "commercial asbestos fibers" be defined as a hazardous material. The MTB recognizes that there are certain mineral ores, ore concentrates and milled mineral products, as well as other products, that contain certain amounts of asbestos, and that the commercial value of these minerals or products is not dependent on their as bestos content. The specific require ments in these amendments for the control of asbestos fibers In transpor tation do not apply to such materials or products, nor do they apply to as bestos as a waste product1 or as a con- ous Materials Regulations. The ques tion of whether all mineral and man made fibers, which have been identi fied by U.S. Government agencies as being carcinogenic and which pose an unreasonable risk to public health, should be controlled in transportation will bs considered in terms of the fur ther development and resolution of the Issues associated with Docket HM145. Notice 78-3 however, pointed out that a large number of comments were received in Docket HM-145, and that a considerable amount of staff evalua tion of these comments was still re quired before It would be possible to Issue a notice or notices of proposed rulemaking for environmental and health effects materials, either on a comprehensive or on a selective basis. Section 173.1090(cX1) Several commenters objected to the reference made to metal or fiber drums to illustrate the rigid packaging alternative for asbestos fibers. These commenters stated that the asbestos industry has not developed the tech nology to use this type of packaging alternative: that available technology is not transferable to the use of metal ternative method of shipping commer cial asbestos fibers. As was indicated in Notice 78-3, the MTB believes that its proposed non-specification packaging standards as applied to the transporta tion of commercial asbestos is an ef fective and efficient means of preclud ing potential problems associated with asbestos airborne emissions occurring during transportation: and that they are consistent with the standards oi the EPA and the OSHA. Some of the commenters however were also appar ently unaware that the transportation standards for the control of asbestos are designed to be comprehensive in nature such that, once the standards are promulgated, commercial asbestos cannot be packaged and transported in any matter not specified in the amend ments. If under more advanced tech nology the use of rigid, airtight pack aging would lessen the likelihood o( airborne asbestos emissions associated with bag breakages under current in dustry wide non-uniform non-standardized packaging practices, then It is necessary that alternative transporta tion standards be available so as not to preclude the development and utiliza tion of such technology. Although the or fiber drums: and that, among other public record on Notice 78-3 contains 'Under Docket KM-MSA (43 FR 22826, things, the use of this alternative statements that the asbestos industry May 25. 1978), new standards and proce dures were proposed for the transportation of hazardous waste materials. That proposal would Include waste asbestos if so Identified by EPA under Section 3001 of the Solid Waste Disposal Act as amended by the Re- could generate far greater airborne concentrations of asbestos than pack- source Conservation and Recovery Act (Pub. L. 94-580). is seeking to improve the technology involved in the shipment and handling of commercial asbestos so as to mini mize the possibility for the accidental release of such asbestos incident to KDERAl HOISTU, VOL 43, NO. 233--MONDAY, DECEMBER 4, MTS DUP 0501723 DBE DU 001444 5666S RULES AND REGULATIONS transportation, it Is by no means cer tain that the pace ol such technologi cal improvements is rapid enough or that the best, economically feasible technology is being considered. How ever. the classification of asbestos as an ORM-C will, for the first time, re quire the submission of Incident re ports to the MTB by carriers of any unintentional release of asbestos during transportation, and enable the MTB to monitor the safety performance record associated not only with the transportation alternatives availa ble under current technology as pro vided for by these amendments, but also with any improvements in that technology. For these reasons, the substance of proposed 5173.1090(0(1) is being re tained but modified to reflect an even broader range of permissible rigid, air tight packaging alternatives. This sec tion now is identified in thi3 amend ment as 173.1090(d)(1) because of the addition of new paragraph (b). Section 173.1090(0(2) Proposed paragraph (0(2) of Notice 78-3 covered the transportation alter native of shipping commercial asbestos in bags when in closed freight contain ers. motor vehicles, or rail ears that were loaded by the consignor and un loaded by the consignee. Several com mented noted that, unless reliance was placed on using the rigid, airtight packaging alternative provided in the proposal, this alternative would pre clude the shipment of asbestos fibers by open-bed trailers. One commenter noted that there Is "no evidence to In dicate that the use of open-bed trailers with side racks and tarpaulins has con tributed to bag breakage and the re lease of airborne concentrations of as bestos fiber." Another commenter noted that the type of bag permitted by proposed paragraph (cX2) was not specified, and that the shipper could package asbestos in burlap bags, or very thin paper or polyethylene bags which could permit asbestos fibers to be easily released into the air during transit. Another commenter was con cerned with "small volume users of as bestos and customers who, from time to time, require sample shipments for trial production runs of a few hundred pounds," and who under 173.1090(c)(2) would be forced to ac quire the exclusive use of a railcar or highway trailer, or rely on the alterna tive provided by f 173.1090(c)(1). Given the lack of detailed data on the amount of asbestos fibers released in transportation and the circum stances and causes for such release, the MTB is in general agreement with the thrust of these comments; accord ingly. a new paragraph (d)(2) recog nizes less restrictive handling of bagged asbestos than was proposed. Sections 174.840, 173.640, 176.906. 177.844 In these Sections, Notice 78-3 had proposed that, incident to its transpor tation. asbestos must be loaded, han dled. and any asbestos contamination removed, in a manner that will prevent occupational exposure to airborne as bestos particles (emphasis added). Some commenters objected to the word "prevent." believing that this word was intended to mean completely precluding the possibility of an acci dent occurring in which asbestos fibers would be released; or completely iso lating people involved In the transpor tation. loading and unloading of asbes tos from exposure to asbestos fibers from whatever source such fibers were generated. One commenter pointed out that with "the very large volume of asbestos snipped, occasional con tainer damaga may occur." Another commenter pointed out. although In a somewhat contradictory fashion, that since "asbestos Is ubiquitous." there fore "airborne levels of asbestos fibers can be present In any place of employ ment, regardless of whether or not as bestos or products containing known quantities of asbestos are handled" (emphasis added). The Asbestos Infor mation Association in its comments stated that "asbestos is ubiquitous, and there are no workplaces where there is aero occupational exposure to asbestos" (original emphasis). If Notice 78-3 was not as clear as it might have been on this point, it is only necessary to say that the basic purpose of these amendments Is to minimize the exposure to airborne as bestos particles accidentally released during or incident to transportation; and appropriate changes to Farts 174, 173, 178, and 177 have been made to reflect this purpose. ORM-C Classification Notice 78-3 proposed that the classi fication for "asbestos" would be as an ORM-C, (Other Regulated Material. Group C). Several commenters were uncertain and concerned about the marking requirements associated with ORM-C classifications. One com menter noted that the designation ORM-C would "carry no meaningful warning to the person handling or opening the package." Another noted that the present regulations of the Oc cupational Safety and Health Admin istration (OSHA) on labeling require ments for asbestos convey much more information than an ORM-C marking requirement. These commenters were apparently not completely familiar with the marking requirements associ ated with ORM-C designated materi als. The ORM-C marking not only warns when a package contains haz ardous material, but it Is also a certifi cation by the person offering the package for transportation that the material Is properly described, classed, packaged, marked, and labeled (when appropriate) and in proper condition for transportation according to appli cable regulations of the Department. Neither function precludes or pre empts OSHA labeling requirements or creates "contradictory regulatory re quirements for labeling" as one com menter suggested. For these reasons, no changes have been made with re spect to any marking requirements for asbestos packages. Economic/Intlationart Impact In reviewing the potential economic and inflationary Impacts associated with the final rule, the MTB has de termined that such impacts will be minimal. Based on the comments re ceived, and the consequent modifica tion of Notice 78-3, the only economic costs associated with final amendment pertain to the reporting requirements to be submitted to MTB on the acci dental releases of commercial asbestos fibers during or Incident to transporta tion. The absolute annual magnitude of these costs will be, of course, a func tion of the total number of incident reports that are submitted on acciden tal releases of asbestos fibers: but in view of the undisputed grave conse quences from exposure to asbestos fibers, these reporting requirements will not Impose an unnecessary burden on the economy, on individuals, or on public and private organizations. In consideration of the foregoing, Title 49. Code of Federal Regulations, Farts 172, 173, 174. 175, 176. and 177 are amended as follows: PART 172--HAZARDOUS MATERIALS TAIL! AND HAZARDOUS MATERI ALS COMMUNICATIONS REGULA TIONS 1. In 172.101 the Hazardous Materi als Table is amended by adding a new entry, immediately following "Arsine," to read as follows: FEDERAL REOISIEJt, VOL. 43, NO. 231--MONDAY, DECEMIER 4, 1971 DUP 0501724 0BE laov*' DU 001445