OSHA Instruction STP 2-1.126A October 21, 1992 Office of State Programs

Subject: Occupational Exposure to Asbestos, Tremolite, Antrohyllite, and Actinolite; Final Rules Amending Present Standards in General Industry (29 CFR 1910.1001) and in Construction (29 CFR 1926.58), and Lifting of Administrative Stay

A. PURPOSE. This instruction describes a Federal Program Change to the Regions and State designees.

B. SCOPE. This instruction applies OSHA-wide.

C. REFERENCE. OSHA Instruction STP 2-1.117, August 31, 1984, State Standards.

D. CANCELLATIONS. The following OSHA Instructions are canceled:

1. OSHA Instruction STP 2-1.126, July 28, 1986, Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite, Final Rules: 29 CFR 1910.1001 (Amended), 29 CFR 1926.58 (New).

2. OSHA Instruction STP 2-1.137, June 8, 1987, Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite.

E. FEDERAL PROGRAM CHANGE. This instruction describes a Federal Program Change which affects State programs. Each Regional Administrator shall:

1. Ensure that this instruction is forwarded to each State designee.

2. Provide a copy of each of the FEDERAL REGISTER notices to the State designee upon request.

3. Explain the technical content of the FEDERAL REGISTER notice at 57 FR 7877, March 5, 1992, Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite; Extension of Partial Stay and Amendment of Final Rule; the FEDERAL REGISTER notice at 57 FR 24330, June 8, 1992, Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite; Final Rule; and the FEDERAL REGISTER notice at 57 FR 29119, June 30, 1992, Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite; Correction, to the State designees upon request.

4. Ensure that each State designee acknowledges receipt of this instruction in writing, within 30 days of notification, to the Regional Administrator. The acknowledgment should include (a) the State's plan to adopt and implement the standard change, or (b) the State's intention not to amend its standard to adopt the new Federal change. A plan supplement is not required unless the State will be amending its standard.

5. Inform each State designee that, in the interest of national consistency, the State is encouraged, within six months of the date of publication in the FEDERAL REGISTER, to amend its final rule to adopt the new Federal change to the Final Rule for Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite; 1910.1001 and 1926.58. The State must submit a plan supplement to the Regional Administrator within 30 days of State promulgation only if it will be amending its final rule.

F. DIFFERENT STATE STANDARDS. Section 18(c)(2) of the Act requires that State standards be "at least as effective" as the Federal and, when applicable to products used or distributed in interstate commerce, the standards must be required by compelling local conditions and not unduly burden interstate commerce. In addition to the "at least as effective" criterion, this "product clause test" will be applied to State standards with substantively different requirements from the comparable Federal standard, as described in STP 2-1.117. A State standard expanded in scope from the Federal is considered to be a substantively different standard. Public comment may be sought on State standards that are not amended to reflect this Federal change.

G. EFFECTIVE DATES. The final rule became effective on May 29, 1992, and the Administrative Stay expired on May 30, 1992. The initial effective date for an identical or different State standard may be no later than the date of State promulgation or the Federal effective date, whichever is later.

H. EXPLANATION.

1. On June 20, 1986, OSHA published in the FEDERAL REGISTER (51 FR 22612) revised final standards for Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite for general industry and for construction which revoked OSHA's 1972 Asbestos standard and established a permissible exposure limit of 0.2 fiber per cubic centimeter of air (f/CC) determined as an eight-hour time- weighted average (TWA) airborne concentration.

2. On October 17, 1986, OSHA issued a partial stay of the revised standards (51 FR 37002) insofar as they applied to occupational exposure to nonasbestiform tremolite, anthophyllite and actinolite, in order to enable the agency to review new submissions raising questions about the appropriateness of regulating these minerals in the revised asbestos standards, and to allow sufficient time to reopen the rulemaking record and conduct supplemental rulemaking proceedings limited to this issue.

3. The FEDERAL REGISTER notice published on March 5, 1992 (57 FR 7877), which extended the Administrative Stay, also made some minor conforming amendments to the text of notes to the affected standards.

4. On June 8, 1992, OSHA published in the FEDERAL REGISTER (57 FR 24330) its amended final standards for regulating occupational exposure to asbestos in general industry (1910.1001) and in construction (1926.58).

5. OSHA also reviewed available relevant evidence concerning the health effects of nonasbestiform tremolite, anthophyllite, and actinolite and examined the feasibility of various regulatory options. Based on the entire rulemaking record before it, OSHA made a determination that substantial evidence is lacking to conclude that nonasbestiform varieties of asbestos minerals present the same type of magnitude of health effect as asbestos.

6. Further, substantial evidence did not support a finding that exposed employees would be at a significant risk because nonasbestiform tremolite, anthophyllite, and actinolite was not regulated in the asbestos standard. Therefore, OSHA decided to lift the Administrative Stay, remove and reserve 29 CFR 1910.1101, and amend the revised asbestos standards to exclude these three nonasbestiform varieties of asbestos minerals from coverage.

7. On June 30, 1992, OSHA published in the FEDERAL REGISTER (57 FR 29119) a minor editorial correction to its final rule published on June 8, 1992.

8. Under 29 CFR 1953.23(a) and (b), State Plan States are provided up to six months from the publication in the FEDERAL REGISTER for adoption of parallel State standards and amendments.

Dorothy L. Strunk Acting Assistant Secretary

DISTRIBUTION: National and Regional Offices State Designees 18(b) State Monitors OSHA Training Institute