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

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

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

B. SCOPE. This instruction applies OSHA-wide.

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

D. CANCELLATIONS. The following OSHA Instructions are canceled:

1. OSHA Instruction STP 2-1.126, July 28, 1986, OccupationalExposure 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, OccupationalExposure to Asbestos, Tremolite, Anthophyllite and Actinolite.

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

1. Ensure that this instruction is forwarded to each Statedesignee.

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

3. Explain the technical content of the FEDERAL REGISTER notice at57 FR 7877, March 5, 1992, Occupational Exposure to Asbestos, Tremolite,Anthophyllite and Actinolite; Extension of Partial Stay and Amendment ofFinal 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 thisinstruction in writing, within 30 days of notification, to the RegionalAdministrator. The acknowledgment should include (a) the State's plan toadopt and implement the standard change, or (b) the State's intention not toamend its standard to adopt the new Federal change. A plan supplement is notrequired unless the State will be amending its standard.

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

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

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

H. EXPLANATION.

1. On June 20, 1986, OSHA published in the FEDERAL REGISTER (51 FR22612) revised final standards for Occupational Exposure to Asbestos,Tremolite, Anthophyllite and Actinolite for general industry and forconstruction which revoked OSHA's 1972 Asbestos standard and established apermissible exposure limit of 0.2 fiber per cubic centimeter of air (f/CC)determined as an eight-hour time- weighted average (TWA) airborneconcentration.

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

3. The FEDERAL REGISTER notice published on March 5, 1992 (57 FR7877), which extended the Administrative Stay, also made some minorconforming amendments to the text of notes to the affectedstandards.

4. On June 8, 1992, OSHA published in the FEDERAL REGISTER (57 FR24330) its amended final standards for regulating occupational exposure toasbestos in general industry (1910.1001) and in construction(1926.58).

5. OSHA also reviewed available relevant evidence concerning thehealth effects of nonasbestiform tremolite, anthophyllite, and actinolite andexamined the feasibility of various regulatory options. Based on the entirerulemaking record before it, OSHA made a determination that substantialevidence is lacking to conclude that nonasbestiform varieties of asbestosminerals present the same type of magnitude of health effect asasbestos.

6. Further, substantial evidence did not support a finding thatexposed employees would be at a significant risk because nonasbestiformtremolite, anthophyllite, and actinolite was not regulated in the asbestosstandard. Therefore, OSHA decided to lift the Administrative Stay, remove andreserve 29 CFR 1910.1101, and amend the revised asbestos standards to excludethese three nonasbestiform varieties of asbestos minerals fromcoverage.

7. On June 30, 1992, OSHA published in the FEDERAL REGISTER (57 FR29119) 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 providedup to six months from the publication in the FEDERAL REGISTER for adoption ofparallel State standards and amendments.

Dorothy L. Strunk Acting Assistant Secretary

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