Mine Safety and Health Administration, Labor.
Advance notice of proposed rulemaking; notice of public meetings; notice of close of record.
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.
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.
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: email@example.com. 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.Start Further Info
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). Start Printed Page 15135End Further Info End Preamble Start Supplemental Information
I. Public Meetings
The public meetings will be held on the following dates and locations:
|April 30th||Holiday Inn 1901 Emmet Street Charlottesville, VA 22901||(434) 977-7700|
|May 2nd||Ramada Inn 164 Fort Couch Road Pittsburgh, PA 15241||(412) 833-5300|
|May 14th||Days Inn 4212 W Sunset Blvd Spokane, WA 99224||(509) 747-2021|
|May 16th||Hampton Inn & Suites 800 Mason Street Vacaville, CA 95687||(707) 469-6200|
|May 29th||Best Western 90 E Main Street Canton, NY 13617||(315) 386-8522|
|June 12th||Days Inn 701 Hattrick Ave Virginia, MN 55734||(218) 744-2703|
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.
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. Start Printed Page 15136
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.
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.
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.
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].
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.
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  .
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 Start Printed Page 15137present 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.
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?
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? Start Printed Page 15138
v. What would be the costs of such a rule?Start Signature
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