Chrysotile Asbestos Banned? More Like Certain Conditions of Use Will Be Eventually Banned!

Many of you, as did I, read about the "Ban of Chrysotile Asbestos" and rejoiced over something long overdue.  However, after reading this so-called ban it is obvious that it is not a ban.  Just reading the title of the rule tells you it is not a ban. "Asbestos Part 1 - Chrysotile Asbestos; Regulation of Certain Conditions of Use Under the Toxic Substances Control Act (TSCA)".  This rule is only regulating "certain conditions of use".  We would say the media needs a dictionary if they actually think after reading the title this is a ban.  What is the definition of a ban?  Ban is to prohibit or forbid especially by legal means (as by statute or order).  After reading the rule, it is obvious this is not banning all uses of chrysotile asbestos, but banning or restricting its use in very specific industries.  In addition, what about the other types of asbestos: amosite, crocidolite, tremolite, anthophyllite, actinolite, or the Libby amphiboles?  No mention of these there!

Since this is not a ban and 40,000 Americans die annually from asbestos-caused diseases it is even more important that we Tell Congress to Ban Asbestos!  The Asbestos Disease Awareness Organization (ADAO) has developed a coalition of firefighters, public health, and safety officials who are calling on the public’s support in their decades-long fight to convince the U.S. Congress to ban deadly asbestos.  Now, you have an opportunity to write your own message to US Senators and US Representatives to ask them to support the Alan Reinstein Ban Asbestos Now Act (ARBAN). This act would prohibit the manufacture, processing, use, and distribution of commercial asbestos in commerce - a known carcinogen that is still widely in use across the U.S. Make your voice heard on this link. It takes only a minute.

Chrysotile Asbestos

Before we go into this rule, let's remember we still have the Significant New Use Rule (SNUR) that came out on April 25, 2019.  This rule did not ban any forms of asbestos but allowed manufacturers (including importing), or processors of asbestos (including as part of an article) to seek permission from the Environmental Protection Agency (EPA) for the significant new use (it included a list of uses that would need permission).

The final rule can be found on EPA's website here.  The document consists of 40 pages (pages 21970 to 22010).  However, the rule is found on page 22005 (35 pages after the beginning of the document, meaning the rule consists of only 5 pages).  Subpart F - Chrysotile Asbestos starts with the different Sections of the Rule:

• 751.501 General
• 751.503 Definitions
• 751.505 Manufacturing, processing and commercial use of chrysotile asbestos diaphragms in the chlor-alkali industry. 
• 751.507 Certification of compliance for the chlor-alkali industry. 
• 751.509 Other prohibitions and restrictions of the manufacturing, processing and commercial use of chrysotile asbestos. 
• 751.511 Interim workplace controls of asbestos exposures. 
• 751.513 Disposal. 
• 751.515 Recordkeeping. 

As you can see from this list, these are the Certain Conditions of Use.  Let's look at 751.505 diaphragms (means semipermeable diaphragms, which separate the anode from the cathode chemicals in the production of chlorine and sodium hydroxide (caustic soda).  

• Section (a) states, after May 28, 2024, all persons are prohibited from manufacture (including import) of chrysotile asbestos, including any chrysotile asbestos-containing products or articles, for diaphragms in the chlor-alkali industry.  

That is a ban on the import of chrysotile asbestos, but only for diaphragms, however, the next section is on the use of diaphragms containing chrysotile asbestos, 

• Section (b) states, after May 28, 2029, all persons are prohibited from processing, distribution in commerce, and commercial use of chrysotile asbestos, including any chrysotile asbestos-containing products or articles, for diaphragms in the chlor- alkali industry, except as provided in paragraphs (c) through (d) of this section. 

Here is the devil in the details:

• Section (c) Any person who meets all of the criteria of this paragraph (c) may process, distribute in commerce and commercially use chrysotile asbestos, including any chrysotile asbestos- containing products or articles, for diaphragms in the chlor-alkali industry at no more than two facilities until May 25, 2032: (1) On May 28, 2024, the person owns or operates more than one facility that uses chrysotile asbestos in chlor-alkali production; (2) The person is converting more than one facility that the person owns or operates that as of May 28, 2024 uses chrysotile asbestos in chlor-alkali production from the use of chrysotile asbestos diaphragms to non-chrysotile asbestos membrane technology, and by May 28, 2029, the person has ceased all processing, distribution in commerce and commercial use of chrysotile asbestos at one (or more) facility undergoing or that has undergone conversion to non-chrysotile asbestos membrane technology; and (3) The person certifies to EPA compliance with the provisions of this paragraph, in accordance with §751.507. 
• (d) Any person who meets all of the criteria of this paragraph (d) may process, distribute in commerce and commercially use chrysotile asbestos, including any chrysotile asbestos- containing products or articles, for diaphragms in the chlor-alkali industry at not more than one facility until May 26, 2036: (1) On May 28, 2024, the person owns or operates more than two facilities that use chrysotile asbestos in chlor-alkali production; and (2) The person is converting more than two facilities that the person owns or operates that as of May 28, 2024 use chrysotile asbestos in chlor-alkali production from the use of chrysotile asbestos diaphragms to non-chrysotile asbestos membrane technology: (i) By May 28, 2029, the person has ceased all processing, distribution in commerce and commercial use of chrysotile asbestos at one (or more) facility undergoing or that has undergone such conversion; and (ii) By May 25, 2032 the person has ceased all processing, distribution in commerce and commercial use of chrysotile asbestos at two (or more) facilities undergoing or that have undergone conversion to non-chrysotile asbestos membrane technology; and (3) The person certifies to EPA compliance with the provisions of this paragraph, in accordance with §751.507. 

So other words we have a ban on the manufacture/importing of chrysotile asbestos to make diaphragms but the use of chrysotile asbestos diaphragms is not banned until 2036.  In addition, 751.509  Other prohibitions and restrictions of the manufacturing, processing, and commercial use of chrysotile asbestos covers:

• Prohibit the manufacture (including import), processing, use, distribution in commerce and commercial use of chrysotile asbestos, including any chrysotile asbestos-containing products or articles, for sheet gaskets in chemical production and require interim workplace controls for certain commercial uses after May 27, 2026.  With exceptions for titanium dioxide production until May 28, 2029, and processing nuclear material at the Savannah River Site until December 31, 2037. 
• Prohibit the manufacture (including import), processing, distribution in commerce, and commercial use of chrysotile asbestos, including any chrysotile asbestos-containing products or articles, for oilfield brake blocks, aftermarket automotive brakes, and linings, other vehicle friction products, and other gaskets after November 25, 2024; 
• Prohibit the manufacture (including import), processing, and distribution in commerce of chrysotile asbestos, including any chrysotile asbestos-containing products or articles, for consumer use of aftermarket automotive brakes and linings and other gaskets after November 25, 2024.
• All of these have exceptions to the distribution in commerce prohibition if they are already installed.

https://www.asbestos.com/occupations/auto-mechanics/

Section 751.511 Interim workplace controls of asbestos exposures is an interesting section considering it's stepping on the toes of the Occupational Safety and Health Administration (OSHA).  This section applies to the processing, and commercial use of chrysotile asbestos, including any chrysotile asbestos-containing products or articles, for chrysotile asbestos diaphragms in the chlor-alkali industry; and to the commercial use of chrysotile asbestos sheet gaskets for titanium dioxide production.   The section establishes an exposure limit called the Interim Existing Chemical Exposure Limit (ECEL):

• Beginning November 5, 2024,....no person is exposed to an airborne concentration of chrysotile asbestos in excess...0.005 fibers per cubic centimeter (f/cc) as an 8-hour time-weighted average (TWA).  Remember the OSHA Permissible Exposure Limit for asbestos is 0.1 f/cc as an 8-hour time weighted average.  The ECEL is a 20 times reduction from the PEL.
• Requires initial (performed as of May 28, 2024, and no later than November 25, 2024) & periodic exposure monitoring (performed within three months or six months based on previous results).
• Method of Monitoring utilizes OSHA 1910.1001 Appendix A, OSHA method ID-160, or the National Institute of Occupational Safety and Health (NIOSH) 7400 method.  Allowance for the NIOSH 7402 method to adjust the analytical result to include only chrysotile asbestos. 

Personal Sampling Pump

The section also includes additional requirements for exposure monitoring, establishing regulated areas, exposure control procedures, respiratory protection, and workplace information and training.  The respirator section makes for interesting reading for those who know the OSHA respiratory protection standard.  Below are some examples of the respirator requirements:

• If exposure monitoring indicates the exposure is above 0.00view 5 f/cc and less than or equal to 0.05 f/cc.  The employer must provide either a half-mask supplied air (SAR) or airline respirator operated in demand mode or a half-mask self-contained breathing apparatus (SCBA) respirator operated in demand mode.
• If exposure monitoring indicates the exposure is above 0.05 f/cc and less than or equal to 0.125 f/cc.  The employer must provide a loose-fitting facepiece supplied air (SAR) or airline respirator operated in continuous flow mode.

Supplied airline respirator

It is obvious from these respirator selections EPA is reaffirming that there is no safe exposure level to asbestos.  For those of us who remember the EPA's and NIOSH's White Book "A Guide to Respiratory Protection for the Asbestos Abatement Industry", remember that this quote was in that book:

"Respirators which use filters to remove contaminants from the air do not provide as high a degree of protection for workers as respirators which supply clean pressurized air to the workers from a protected source."

Realize these restrictions are stricter than OSHA requirements and we wonder what this means for Part 2 of this evaluation process when EPA will be looking at Legacy issues?

Related articles

• The National Law Review - EPA Bans Ongoing Uses of Asbestos https://www.natlawreview.com/article/epa-bans-ongoing-uses-asbestos
• ADAO's FAQs and Quotes on EPA Part 1 Chrysotile Asbestos Rule
   https://www.asbestosdiseaseawareness.org/newsroom/blogs/faqs-and-quotes-on-epa-part-1-chrysotile-asbestos-rule/

That Time of Year! Conferences, Posting Requirements, and OSHA Violations Increased!

It's that time of year again. We're between conferences.  February 15-16, 2024 was the Professional Abatement Contractors of New York (PACNY) Environmental Conference and the Environmental Information Association (EIA) National Conference & Exhibition is March 18 - 21, 2024.  This year we have the honor of speaking at both conferences.  We are speaking on the "Fallacy of PCM Clearance" in other words 5 reasons PCM should not be used for clearance.  We are speaking on Wednesday, March 20, 2024, at 1:00 PST if you happen to be in San Diego, California come down and say hello!  We're looking forward to arriving early and seeing the San Diego Wildlife Park and the Zoo, two different areas.  Our speech was very well received at the PACNY Environmental Conference.  If you would like to see the posts from the PACNY Conference visit PACNY's Linkedin page.

FEDTC's Booth at PACNY Conference

There are other things also happening at the beginning of the year.  For example, remember to post your Occupational Safety and Health Administration (OSHA) 300A if you have 10 or more employees, see last month's post for more information.  The 300A, which is the summation of injuries and illnesses your company had in 2023, should be posted from February 1st, 2024 to April 30, 2024.  Also, remember certain employers must electronically submit the OSHA 300A information directly to OSHA by March 2, 2024.

300a Must Be Posted & For Some Must be Submitted

On January 16, 2024, the OSHA maximum penalties for serious and other-than-serious violations increased from $15,625 per violation to $16,131 per violation.  The maximum penalty for willful or repeated violations also increased from $156,259 per violation to $161,323 per violation.  These increases happen every January 15th.  This year's increase was delayed because January 15th was a Federal holiday (Martin Luther King Day).

Looking Forward to EIA's Conference in San Diego & Visiting the Wildlife Park

It's That Time! Remember to Post Your 300A Form and Electronically Report Your 2023 OSHA 300A Data to OSHA Using a New Login Procedure.

Every year at this time the Occupational Safety and Health Administration (OSHA) requires employers with 10 or more employees to post the OSHA 300A form from February 1 to April 30th, 2024.  Each year certain employers must electronically submit the OSHA 300A information directly to OSHA by March 2, 2024.  If you remember, the 300A form summarizes the injury and illness information that was kept on the OSHA 300 log form.  In addition, remember COVID-19 is a recordable and reportable illness if confirmed, work-related, and led to a loss of workdays (see below for a further discussion).  It would be recorded as a respiratory illness on the OSHA 300 form.  Because this is an illness, if an employee voluntarily requests that his name not be entered on the log, the employer must comply as specified under 29 CFR 1904.29(b)(7)(vi) and list it as a privacy case. 

OSHA 300A Form - Posting/Reporting Form

If you need assistance in completing the OSHA 300A form we did a webinar together with Keevily Spero & Whitelaw on completing the OSHA 300 & 300A form.  You can find the webinar here or watch it below.   Remember covered employers are required to prepare and maintain records of serious occupational injuries and illnesses that occur at a workplace on the OSHA 300 log form.  At the end of the year, covered employers are required to tally the totals on each column and enter the totals on the OSHA 300A form.  The information should be used by employers to evaluate safety in the workplace and determine ways to eliminate or reduce hazards in the workplace.  OSHA's 300A form is required to be posted until April 30, 2024, and must be retained for 5 years.  During the retention period, you are required to update the log to add new information regarding the occupational injuries and illnesses recorded on it.  OSHA has a brief tutorial to help you complete the forms.  

A final rule was issued and went into effect on January 1, 2017, requiring certain employers to electronically submit injury and illness data to OSHA.  OSHA has provided an online secure website (click here for the website) for submitting this information.  Remember there is a new login procedure that became effective in October 2022.  The OSHA Injury Tracking Application (ITA) transitioned its login procedure to the public's one account access to government applications, Login.gov.  All current and new account holders must connect their ITA account to a Login.gov account with the same email address to access the application for the 2024 collection of Calendar Year 2023 Form 300A data.  You can watch the video on creating this account here.  You must submit this information by March 2, 2024, OSHA started collecting the information on January 2, 2024.  If you meet the following criteria you DO NOT have to electronically submit your 300A information to OSHA:

OSHA 300 Log Form

 

• The establishment's peak employment during the previous calendar year was 19 or fewer, regardless of the establishment's industry.
• The establishment's industry is on this list, regardless of the size of the establishment.
• The establishment had peak employment between 20 and 249 employees during the previous calendar year and the establishment's industry is not on this list.   Construction and remediation and other waste management services are both on this list, so if you are in those industries and meet the size requirements you must electronically report your OSHA 300A information.

SARS-CoV2

In addition, COVID-19 can be a reportable and a recordable illness if a worker is infected as a result of performing their work-related duties.  If your work-related confirmed COVID-19 case results in a hospitalization you must report it within 24 hours of exposure to COVID-19 at work or if it results in a fatality you must report it if it occurred within 30 days of exposure to COVID-19 at work (see OSHA coronavirus reporting for more information).  However, employers are only responsible for reporting or recording cases of COVID-19 if all of the following are true:

• The case is a confirmed case of COVID-19 (see Centers for Disease Control (CDC) information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
• The case is work-related (as defined by 29 CFR 1904.5); and 
• The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, days away from work).

Employers should follow the OSHA guidance found in the Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19).

Related Articles:

• OSHA Recordkeeping Webinar To Discuss Posting Requirements For 300A Form & Filing It Electronically! (futureenv.blogspot.com)
• It's That Time Again! Did You Remember to POST Your OSHA 300A Form! (futureenv.blogspot.com)
• Have You Remembered To Post The OSHA 300A Form? (futureenv.blogspot.com)