MSHA Proposed Rule
Measuring and Controlling Asbestos Exposure [03/29/2002]
[PDF Version]
Volume 67, Number 61, Page 15134-15138
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 58 and 72
RIN 1219-AB24
Measuring and Controlling Asbestos Exposure
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Advance notice of proposed rulemaking; notice of public
meetings; notice of close of record.
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SUMMARY: We, the Mine Safety and Health Administration (MSHA), are
requesting information from the public concerning ways to increase
protection to miners when they are working in environments where
asbestos is present. We are concerned that miners may be exposed to
asbestos at mining operations with the ore bodies containing asbestos.
There is also a potential exposure at mine facilities with installed
asbestos-containing material which may be disturbed. Miners who are
exposed may also bring the substance home on their persons and clothes,
and in their automobiles.
Exposure to asbestos can cause asbestosis, mesothelioma, lung
cancer, and cancers of the digestive system. A recent report by the
U.S. Department of Labor's Office of the Inspector General (OIG)
recommended that MSHA lower its existing Permissible Exposure Limit
(PEL) for asbestos to a more protective level and address take-home
contamination from asbestos. The report also recommended that MSHA use
Transmission Electron Microscopy (TEM) instead of Phase Contrast
Microscopy (PCM) to analyze fiber samples that may contain asbestos. We
intend to use the submitted information to help determine how we should
proceed to address these issues.
We are also announcing in this document our intent to hold six (6)
public meetings to allow early participation in the rulemaking by
interested parties.
DATES: Comments on the advance notice of proposed rulemaking (ANPRM)
must be received on or before June 27, 2002.
The public meeting dates and locations are listed in the Public
Meetings section below under SUPPLEMENTARY INFORMATION.
You do not have to submit a written request to speak. There will be
a sign-up sheet at each of the meeting locations. Speakers will speak
in the order that they sign in. Speakers may also present information
to the MSHA panel for inclusion in the rulemaking record.
The rulemaking record will close June 27, 2002.
ADDRESSES: Comments on the ANPRM may be transmitted by electronic mail,
fax, or mail. Comments by electronic mail must be clearly identified as
pertaining to this ANPRM and sent to: comments@msha.gov. Comments by
fax must be clearly identified and sent to: MSHA, Office of Standards,
Regulations, and Variances, 703-235-5551. Comments by mail must be
clearly identified and sent to: MSHA, Office of Standards, Regulations,
and Variances, Room 631, 4015 Wilson Boulevard, Arlington, VA 22203-
1984.
The public meeting dates and locations are listed in the Public
Meetings section below under SUPPLEMENTARY INFORMATION.
This notice is available on our Web page at http://www.msha.gov,
under Statutory and Regulatory Information. We intend to place the
public comments on our website within five (5) working days after we
receive them.
FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director;
Office of Standards, Regulations, and Variances; MSHA, 4015 Wilson
Boulevard, Arlington, Virginia 22203-1984. Mr. Nichols can be reached
at Nichols-Marvin@msha.gov (e-mail), (703) 235-1910 (Voice), or 703-
235-5551 (Fax).
[[Page 15135]]
SUPPLEMENTARY INFORMATION:
I. Public Meetings
The public meetings will be held on the following dates and
locations:
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Date Location Phone
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April 30th...................... Holiday Inn 1901 (434) 977-7700
Emmet Street
Charlottesville,
VA 22901.
May 2nd......................... Ramada Inn 164 Fort (412) 833-5300
Couch Road
Pittsburgh, PA
15241.
May 14th........................ Days Inn 4212 W (509) 747-2021
Sunset Blvd
Spokane, WA 99224.
May 16th........................ Hampton Inn & (707) 469-6200
Suites 800 Mason
Street Vacaville,
CA 95687.
May 29th........................ Best Western 90 E (315) 386-8522
Main Street
Canton, NY 13617.
June 12th....................... Days Inn 701 (218) 744-2703
Hattrick Ave
Virginia, MN 55734.
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The public meetings will begin at 9:00 a.m. and end after the last
speaker appears; and in any event, not later than 5:00 p.m. each day.
II. Background
Regulatory History
Our asbestos regulations date to 1967 and are based on the former
U.S. Bureau of Mines standard of 5 mppcf (million particles per cubic
foot of air). In 1969, the Bureau proposed and finalized a 2 mppcf and
12 fibers/ml (milliliter) standard. In 1970, the Bureau proposed to
lower the limit to 5 fibers/ml, which was promulgated in 1974. We
issued our current standard of 2 fibers/cc (cubic centimeter) in 1976
for coal mining and 2 fiber/ml in 1978 for metal and nonmetal mining.
In 1989, we proposed as part of our Air Quality rulemaking to lower the
PEL for asbestos to 0.2 fibers/cc (cubic centimeter), in line with
then-current levels promulgated by the Occupational Safety and Health
Administration (OSHA) in its Air Contaminants rulemaking. However, an
appeals court decision invalidated OSHA's generic rulemaking approach,
which had grouped categories of substances with similar properties
under a single rulemaking. The Court ruled that the PEL for each
substance must be supported by substantial scientific evidence of
significant risk of material impairment of health, as if each substance
were the subject of a separate substance-specific rule. Since we used
an approach similar to OSHA's in our Air Quality proposed rule, we
believed our rule would be subject to similar legal scrutiny. For this
and other reasons, the air contaminants portion of the Air Quality
proposed rule has not been finalized.
In 1994, OSHA promulgated a revised substance-specific asbestos
standard that lowered the PEL and the short-term exposure limit to an
eight (8) hour time-weighted average limit of 0.1 f/cc of air and to
1.0 f/cc as averaged over a sampling period of thirty (30) minutes.
These lowered limits reflected scientific evidence of increased
asbestos-related disease risk to asbestos-exposed workers.
MSHA's existing rules at 30 CFR 56.5001(b) and 57.5001(b) states:
The 8-hour time-weighted average airborne concentration of
asbestos dust to which employees are exposed shall not exceed 2
fibers per milliliter greater than 5 microns in length, as
determined by the membrane filter method at 400-450 magnification (4
millimeter objective) phase contrast illumination. No employees
shall be exposed at any time to airborne concentrations of asbestos
fibers in excess of 10 fibers longer than 5 micrometers, per
milliliter of air, as determined by the membrane filter method over
a minimum sampling time of 15 minutes. ``Asbestos'' is a generic
term for a number of hydrated silicates that, when crushed or
processed, separate into flexible fibers made up of fibrils.
Although there are many asbestos minerals, the term ``asbestos'' as
used herein is limited to the following minerals: chrysotile,
amosite, crocidolite, anthophylite asbestos, tremolite asbestos, and
actinolite asbestos.
Asbestos is also covered in an existing coal rule for surface coal
mines and surface work areas of underground coal mines under 30 CFR
71.702. The rule states:
(a) The 8-hour average airborne concentration of asbestos dust
to which miners are exposed shall not exceed two fibers per cubic
centimeter of air. Exposure to a concentration greater than two
fibers per cubic centimeter of air, but not to exceed 10 fibers per
cubic centimeter of air, may be permitted for a total of 1 hour each
8-hour day. As used in this subpart, the term asbestos means
chrysotile, amosite, crocidolite, anthophylite asbestos, tremolite
asbestos, and actinolite asbestos but does not include nonfibrous or
nonasbestiform minerals. (b) The determination of fiber
concentration shall be made by counting all fibers longer than 5
micrometers in length and with a length-to-width ratio of at least 3
to 1 in at least 20 randomly selected fields using phase contrast
microscopy at 400-450 magnification.
Events Leading up to the Inspector General's Recommendations
In 1980, we requested that the National Institute for Occupational
Safety and Health (NIOSH) investigate health problems at vermiculite
operations, including one in Libby, Montana. The results of the NIOSH
study were published in 1986 and indicated very high occupational
exposure prior to 1974 at the Libby operation. The highest exposures
were in the mill. In 1974, the mine began to use a wet process to
concentrate vermiculite in the mill, and exposures dropped markedly.
The study also pointed out an increased risk of lung cancer among the
miners.
In November 1999, a Seattle newspaper published a series of
articles on the unusually high incidence of asbestos-related illnesses
and fatalities among individuals who had lived in Libby, Montana. The
miners employed at the vermiculite mine in Libby, which produced
approximately 89 percent of the world's supply of vermiculite from 1924
until 1991, were exposed to asbestos through the processing of ore and
inadvertently carried the dust home on their clothes and in their
personal vehicles, thereby continuing to expose themselves and family
members. Because MSHA had jurisdiction over the mine, the OIG undertook
an evaluation of our role in the Libby situation.
OIG Findings and Recommendations
The findings and recommendations of the OIG were published in a
report dated March 22, 2001. The OIG found that MSHA had conducted
regular inspections and personal exposure sampling at the Libby mine.
The OIG concluded: ``we do not believe that more inspections or
sampling would have prevented the current situation in Libby.'' The
report made several recommendations to MSHA, three of which would
require rulemaking. The OIG recommended that MSHA: (1) Lower the
existing PEL to a more protective level; (2) use a more sensitive
method, Transmission Electron Microscopy (TEM), to quantify fibers in
our samples, rather than the Phase Contrast Microscopy (PCM) method
currently used; and (3) address take-home contamination from asbestos.
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Reducing the PEL
A finding of OSHA's 1984 risk assessment was that lowering the TWA
PEL from 2 f/cc to 0.2 f/cc reduced the asbestos cancer mortality risk
from lifetime exposure from 64 to 6.7 deaths per 1,000 exposed workers,
respectively. OSHA estimated that the incidence of asbestosis would be
5 cases per 1,000 workers exposed for a working lifetime under the TWA
PEL of 0.2 f/cc. In 1994, OSHA promulgated a revised substance-specific
standard that lowered the asbestos PEL to an eight (8) hour time-
weighted average limit of 0.1 f/cc of air. It also lowered the short-
term exposure limit to 1.0 f/cc as averaged over a sampling period of
thirty (30) minutes. These lowered limits reflected scientific evidence
of significant, asbestos-related disease risk at existing exposure
levels. OSHA's risk assessment also showed that reducing exposure to
0.1 f/cc would further reduce, but not eliminate, significant risk. The
excess cancer risk at that level would be reduced to a lifetime risk of
3.4 per 1,000 workers. These data indicate that if we adopt OSHA's
asbestos PEL, the level of risk of asbestos-related diseases would be
reduced substantially.
Analytical Method
At least two methods are generally used to analyze asbestos in air
samples: Phase Contrast Microscopy (PCM) and Transmission Electron
Microscopy (TEM). MSHA uses the PCM method. A difference between the
two methods is the level of magnification available to identify and
count fibers. The PCM method magnifies fibers between 400 and 450 fold
whereas the TEM method magnifies fibers 20,000 fold or greater. This
increased magnification allows for the mineralogical identification of
the fiber and allows a more accurate count of asbestos fibers for
purposes of evaluating compliance with the PEL. OSHA uses PCM in their
method ID-160 to measure asbestos in air. The NIOSH Manual of
Analytical Methods (NMAM) includes asbestos methods 7400 and 7402.
Method 7400 is a PCM procedure, equivalent to the OSHA methods. Method
7402 uses TEM to identify fibers. The OIG recommended that MSHA use TEM
to analyze asbestos samples.
Take-Home Contamination
Workers can carry hazardous substances home from work on their
clothes, bodies, tools, and other items. They can unknowingly expose
themselves and their families to these substances, causing various
health effects. In our 1989 Air Quality proposed rule, we addressed
take-home contamination. As proposed, miners would have been required
to wear protective clothing and other personal protective equipment
before entering areas containing asbestos. They would have also been
required to remove their protective clothing and store them in adequate
containers to be disposed of or decontaminated by the operator. This is
a common practice when workers are exposed to particularly hazardous
materials, such as carcinogens, in carrying out their regular job
duties. The OIG recommended that similar requirements be incorporated
into a new asbestos rule. OSHA, NIOSH, MSHA, and the Department of
Labor OIG have addressed the issue of take-home contamination.
OSHA
The OSHA asbestos standards address protective work clothing and
equipment (i.e., provision and use; removal and storage; cleaning and
replacement) and hygiene facilities and practices (i.e., change rooms;
showers; lunchrooms) to prevent take-home contamination [OSHA: 29 CFR
1910.1001 and 29 CFR 1926.58].
NIOSH
The Workers' Family Protection Act of 1992 (Public Law 102-522, 29
U.S.C. 671a) directed NIOSH to study contamination of workers' homes by
hazardous substances (including asbestos) transported from the
workplace [NIOSH: ``Protect Your Family: Reduce Contamination at
Home.'' DHHS (NIOSH) Publication No. 97-125. NIOSH, Cincinnati, OH
(1997)]. The NIOSH study documented cases of home contamination from 28
countries and 36 states in the United States. Reported cases covered a
wide variety of materials (including asbestos), industries, and
occupations.
NIOSH discussed the prevention of take-home contamination from
asbestos [NIOSH (1997)]. The means by which hazardous substances
(including asbestos) have reached workers' homes and families include
the following: work clothing; tools and equipment; other items taken
home from work; the worker's body; cottage industries (i.e., work
performed at home); and family visits to the workplace. Asbestos
reaching workers' homes has occurred worldwide, resulting in all forms
of asbestos disease among workers' family members, including over 100
identified deaths from mesothelioma in the United States.
MSHA
Our 1989 proposed rule on air quality delineated provisions for the
use of protective clothing and equipment and hygiene facilities and
practices to minimize take-home contamination from asbestos [54 FR
35760, August 29, 1989]. Due to the long-term health risks, carcinogens
like asbestos warrant special safety requirements. Under the proposed
rule, miners would have had to wear full-body protective clothing
(e.g., smocks, coveralls, or long-sleeved shirts and pants and other
personal protective equipment) before entering an area in which
asbestos-containing ore or material were processed or handled. Upon
exiting such areas, miners would also have been required to remove
their protective clothing and equipment and have them stored in
impervious (i.e., air-tight) containers, which would either be disposed
of or decontaminated by the employer. Finally, miners would have had to
thoroughly cleanse themselves and shower upon leaving at the end of the
workday. NIOSH stated that these measures are effective in reducing or
eliminating take-home contamination \1\.
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\1\ NIOSH: Report to Congress on Workers' Home Contamination
Study Conducted Under The Workers' Family Protection Act (29 U.S.C.
671a). DHHS (NIOSH) Publication No. 95-123. NIOSH, Cincinnati, OH
(September 1995).
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Department of Labor Office of the Inspector General
The Department of Labor OIG supported the development and
implementation of special safety requirements (e.g., availability,
training, and proper use of personal protective clothing and equipment;
appropriate storage, disposal, and decontamination of personal
protective clothing and equipment; suitable hygiene facilities and
practices) for asbestos and vermiculite mining and milling [USDOL:
Evaluation of MSHA's Handling of Inspections at the W.R. Grace &
Company Mine in Libby, Montana. Report No. 2E-06-620-0002, March 22,
2001. USDOL, Office of the Inspector General, Office of Analysis,
Complaints and Evaluations, Washington, DC (2001).]
MSHA's Asbestos Field Sampling and Awareness of Asbestos Hazards
Recently, we adopted new sampling techniques and have increased the
scope of sampling for airborne asbestos fibers at mines in an attempt
to better determine miners' exposure levels to asbestos. Our efforts
have included taking samples at all existing vermiculite, taconite,
talc, and other mines to determine whether asbestos is
[[Page 15137]]
present and at what levels. Since the Spring of 2000, we have taken
almost 900 samples at more than 40 operations employing more than 4,000
miners. A preliminary review and analysis by the Agency indicate few
exposures above the OSHA 8-hr TWA of 0.1 f/cc occurred during the
sampling period. A final report on the sampling results will be made
public as soon as it is available by placing it on our Web site at
http://www.msha.gov, under the link to Special Initiatives, Asbestos, a
single source page. Also, the report will be made part of this
rulemaking record.
During those sampling events, we discussed with miners and mine
operators the potential hazards of asbestos and the types of preventive
measures that could be implemented to reduce exposures. We are
encouraging mine operators to comply with the OSHA asbestos PEL of 0.1
f/cc. Our current 8 hour PEL is 20-fold higher than OSHA's. Our intent
in using this approach is to educate operators to recognize that a
``standard of care'' based on lower exposure will reduce the potential
for illness and liability.
Impact of the Rule
We are assessing both the costs and benefits of intended
regulations in accordance with Executive Order 12866. Under the
Executive Order, we are to base decisions on the best reasonably
obtainable scientific, technical, economic, and other data and
information concerning the need for and the consequences of the
regulations. We are seeking information and comment on the benefits and
costs related to the issues addressed in this ANPRM.
III. Issues
We are seeking any supporting information or data that would help
us evaluate whether to lower our asbestos PEL, to revise existing PCM
or TEM methods and criteria specifically for the mining industry, to
implement safeguards to limit take-home exposures, and the likely
impact on benefits and costs of such rulemaking actions. In particular,
we encourage the public to respond to the questions posed below.
Please be as specific as possible in your responses to the
questions and in suggesting alternatives. When you comment, we request
that you include the rationale for the comment rather than a short
``yes'' or ``no'' answer. Please also include specific examples and
impact estimates where possible to support your rationale. This will
help us to effectively evaluate and analyze your comments.
1. Asbestos PEL
We are considering rulemaking to lower both the eight (8) hour
time-weighted average and the short-term exposure limits, and request
comments on the most appropriate fiber concentrations to designate in
light of their health risk and their technological and economic
feasibility.
We seek information, data, and comments on the following:
a. What exposure limit would provide the appropriate level of
protection to exposed miners? Would adopting the OSHA limits afford
sufficient protection to miners?
b. MSHA's recent field sampling data show that none of the samples
collected exceed OSHA's 8 hour time weighted average of 0.1 f/cc when
analyzed using the TEM method. Considering the low fiber levels
observed, what would be an appropriate agency action?
2. Analytical Method
We are considering the use of TEM rather than PCM to analyze fiber
samples that may contain asbestos. We seek information, data, and
comment on the following:
c. What is the advantage for MSHA to use TEM to initially analyze
airborne fibers collected on all filters?
d. What is the availability and cost of commercial TEM analysis
services?
e. Should we measure PEL compliance using TEM?
f. Are there studies which correlate asbestos exposure determined
by TEM with incidence of asbestos disease?
g. Are there data comparing PCM to TEM fiber counts from the same
filter for the mine environment?
h. What method is most appropriate for MSHA to use (e.g., EPA,
ASTM, OSHA, or NIOSH) to analyze bulk samples for asbestos in the
mining industry?
3. Take-Home Contamination
We are also considering methods of reducing take-home contamination
from asbestos. We specifically request information, data, and comments
on the following:
i. How and/or should MSHA require operators to address take-home
contamination from asbestos?
j. How should MSHA asbestos regulations provide for any special
needs of small mine operators?
k. What technical assistance (e.g., step-by-step instructions,
model programs, certification of private programs) should we provide to
mine operators when they develop a program to reduce take-home
contamination from asbestos?
l. What types of protective clothing are miners currently using
when working in areas where asbestos is present?
m. What types of preventive measures (e.g., appropriate disposal of
contaminated clothing; hand and face washing; showering) are currently
in use when miners leave areas where asbestos may be present?
4. Sampling and Awareness of Asbestos Hazards
We are reviewing the adequacy of our field sampling methods for
asbestos and how sampling results are being used, by both MSHA and
operators, to protect miners. We specifically request information,
data, and comments on the following:
n. How can mineral dust interference be most accurately removed
from the samples?
o. Does our current field sampling meet the needs of the mining
community?
p. How should mine operators ensure that miners are aware of
potential asbestos hazards at the mine site and provide adequate
protection?
q. What educational and technical assistance (e.g., step-by-step
instructions, model programs) should we provide to mine operators when
we develop a program to sample and analyze for asbestos?
r. What other factors, circumstances, or measures should MSHA
consider when engineering controls can not reduce asbestos exposure
below the PEL?
5. Impact
We anticipate that the benefits of a rulemaking addressing
measurement and control of asbestos would be the reduction or
elimination of asbestos-related diseases (cancers and asbestosis)
arising from exposure to asbestos. We anticipate there will be operator
and agency costs associated with lowering our asbestos PEL, reducing
take-home contamination, and using TEM to analyze fiber samples.
We request information, data, and comments on the following:
s. How many miners are currently being exposed to asbestos?
t. What engineering controls and personal protective equipment are
currently being used to protect miners from exposure to asbestos and to
prevent take-home contamination? What are the costs of these
engineering controls and personal protective equipment?
u. What would be the benefits of a rule that would reduce exposure
to asbestos?
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v. What would be the costs of such a rule?
Dated: March 22, 2002.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 02-7467 Filed 3-26-02; 12:05 pm]
BILLING CODE 4510-43-P
