1. A prohibition or limitation on the amount manufactured, processed or distributed in commerce;

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1 Section III Environment Books Inc. Page K1 PUBLISHER S NOTE: The Asbestos Phase-Out Rule" that is published in this Chapter (Section III, Chapter K) has been the subject of significant court decisions. The Asbestos Phase-Out Rule was published at 54 FR on July 12, However, on October 18, 1991 the U.S. Court of Appeals for the Fifth Circuit vacated (overturned) the Asbestos Phase-Out Rule. The court remanded (returned) the rule to EPA for further consideration, consistent with the court s opinion. See Corrosion Proof Fittings v. EPA, Case No , United States Court of Appeals for the Fifth Circuit, October 18, Also see a subsequent decision in Corrosion Proof Fittings v. EPA, filed on November 15, In its October 18, 1991 decision, the court concluded that EPA had not met its statutory obligations under TSCA 6. Section 6(a) of TSCA provides that when EPA issues a Section 6 rule it must apply one or more of the following possible requirements using the least burdensome requirements to the extent necessary to protect adequately against the risk: 1. A prohibition or limitation on the amount manufactured, processed or distributed in commerce; 2. A prohibition or limitation on the amount manufactured, processed or distributed in commerce for a particular use; 3. The use of warnings and instructions, possibly including warning labels or accompanying literature; 4. Recordkeeping, monitoring or testing; 5. Prohibitions or regulations regarding manners or methods of commercial use; 6. Prohibitions or regulations regarding manners or methods of disposal; and 7. Notices of risk, or replacement or repurchase of the substance or mixture. The above alternatives are listed in 6(a) of TSCA, and are in order from most burdensome to least burdensome according to the court s October 18, 1991 decision. (The above listing of 7 alternatives is found on pages of the Text of TSCA in Volume 5 of this book.) Noting that total bans head the list as the most burdensome regulatory option, the court concluded that: *Under TSCA, the EPA was required to evaluate, rather than ignore, less burdensome regulatory alternatives. TSCA imposes a least-to-most-burdensome hierarchy. In order to impose a regulation at the top of the hierarchy -- a total ban of asbestos -- the 04/00 Hyperlinks to Regulations and Other Documents are in Blue

2 Section III Environment Books Inc. Page K1a EPA not only must show that its proposed action reduces the risk of the product to an adequate level, but also that the actions Congress identified as less burdensome also would not do the job. The failure of the EPA to do this constitutes a failure to meet its burden of showing that its actions not only reduce the risk, but do so in the Congressionally-mandated least burdensome fashion. The court went on to say that: Upon an initial showing of product danger, the proper course for the EPA to follow is to consider each regulatory option, in the order mandated by Congress, and the costs and benefits of regulation under each option. The EPA cannot simply skip several rungs, as it did in this case, for in doing so, it may skip a less-burdensome alternative mandated by TSCA. Here, although the EPA mentions the problems posed by intermediate levels of regulation, it takes no steps to calculate the costs and benefits of these intermediate levels.... Without doing this, it is impossible, both for the EPA and for this court on review, to know that none of these alternatives was less burdensome than the ban in fact chosen by the agency. The court also determined that: 1. the EPA failed to properly calculate the costs and benefits associated with an asbestos ban; 2. the EPA did not adequately evaluate whether substitute products are available, nor did it adequately evaluate the dangers of likely substitutes; and 3. the EPA rulemaking was procedurally deficient because it adopted data after public comment was concluded, and thus deprived interested parties of their right to comment on that data. Also, the EPA did not allow certain EPA witnesses to be cross-examined as required by TSCA. Significantly, the court also noted that the regulation would be very costly when compared with the benefits that the regulation was intended to achieve. The court summarized the Agency s cost-benefit analysis: Even taking all of the EPA s figures as true, and evaluating them in the light most favorable to the agency s decision...the agency s analysis results in figures as high as $74 million per life saved. For example, the EPA states that its ban of asbestos pipe will save three lives over the next thirteen years, at a cost of $ million ($43-76 million per life saved), depending upon

3 Section III Environment Books Inc. Page K1b the price of substitutes; that its ban of asbestos shingles will cost $23-34 million to save 0.32 statistical lives ($ million per life saved); that its ban of asbestos coatings will cost $ million to save 3.33 lives ($14-54 million per life saved); and that its ban of asbestos paper products will save 0.60 lives at a cost of 4-5 million ($7-8 million per life saved). * * * While we do not sit as a regulatory agency that must make the difficult decision as to what an appropriate expenditure is to prevent someone from incurring the risk of an asbestosrelated death, we do note that the EPA, in its zeal to ban any and all asbestos products, basically ignored the cost side of the TSCA equation. * * * The EPA s willingness to argue that spending $23.7 million to save less than one-third of a life reveals that its economic review of its regulations, as required by TSCA, was meaningless.... Such high costs are rarely, if ever, used to support a safety regulation. The court, however, decided in part V.D of its opinion that it will not disturb the agency s decision to ban products that no longer are being produced in or imported into the United States. Seeking to clarify this part of the court s decision, EPA filed a Motion for Clarification. In response to the Motion, the court stated that: The holding in part V.D of our opinion applies only to products that were not being manufactured, imported or processed on July 12, 1989, the date of the rule s promulgation. To the extent, if any, that there is doubt as to whether particular products are in that category, the EPA may resolve the factual dispute on remand. EPA has interpreted the above clarification to mean that provisions of the asbestos phase-out rule continue to govern new asbestos-containing products, as well as asbestos-containing products that had been produced in the past but that were no longer being manufactured, imported or processed on July 12, In a Federal Register notice on April 2, 1992 (57 FR 11364) the Agency identified products that it believes may remain subject to the prohibition and labeling requirements of the rule because they were no longer in production or being imported on July 12, In a subsequent Federal Register notice on June 2, 1992 (57 FR 23183), EPA reasoned that the New Use prohibitions of the rule continue to apply because, by definition, any new use of asbestos could not have been initially manufactured, imported or processed on July 12, 1989, and that therefore new uses continue to be regulated by the Asbestos Phase-Out Rule.

4 Section III Environment Books Inc. Page K1c Subsequently, on November 5, 1993 EPA clarified the status of the asbestos-containing products that were initially the subject of its July 12, 1989 Asbestos Phase-Out Rule as follows: In accordance with the Court decision, and based on information from the (Regulatory Impact Analysis) for the rule, responses to EPA s April 2, 1992, notice in the Federal Register, and additional EPA research, EPA concludes that: 1. The six asbestos-containing product categories that are still subject to the rule are corrugated paper, rollboard, commercial paper, specialty paper, flooring felt, and new uses of asbestos. 2. The asbestos-containing product categories that are no longer subject to the rule are: asbestos-cement corrugated sheet, asbestos-cement flat sheet, asbestos clothing, pipeline wrap, roofing felt, vinyl-asbestos floor tile, asbestoscement shingle, millboard, asbestos-cement pipe, automatic transmission components, clutch facings, friction materials, disc brake pads, drum brake linings, brake blocks, gaskets, non-roofing coatings, and roof coatings. (58 FR 58966, Nov. 5, 1993) On June 28, 1994, the US EPA issued amendments to the Asbestos Phase-Out Rule to bring it into conformance with the court s 1991 decisions in Corrosion Proof Fittings. An explanation of the amended rule, and the amended rule itself, are published on the following pages K1d-K10.

5 Section III Environment Books Inc. Page K1d Prohibition of the Manufacture, Importation, Processing, and Distribution in Commerce of Certain Asbestos- Containing Products; Labeling Requirements ( Asbestos Phase-Out Rule ) Summary of the Requirements. The manufacture, import, processing, and distribution in commerce of certain asbestos-containing products is prohibited in accordance with the following schedule: 1 ASBESTOS-CONTAINING PRODUCTS a manufacture or import 27, , 1996 ACTIVITY processing distribution in commerce 25, , 1997 Flooring felt and new uses of asbestos. 27, , 1996 Commercial paper, corrugated paper, rollboard, and specialty paper. a. For definitions of these products see 40 CFR The above import prohibitions do not apply to (1) the import into the customs territory of the United States of products imported solely for shipment outside the customs territory of the United States (unless further repackaging or processing of the product is performed in the United States); or (2) activities involving purchases or acquisitions of small quantities of products made outside the customs territory of the United States for personal use in the United States. 2 Any person who is subject to a ban on distribution in commerce (including any manufacturer, importer, or processor) must, within 6 months of the effective date of the ban on distribution, dispose of all of its remaining stock-on-hand of that product, by means that are in compliance with all applicable federal, state and local laws and regulations See 40 CFR , , and which are printed on the following pages CFR (c) CFR (c).

6 Section III Environment Books Inc. K2 Manufacturers, importers, and processors of the asbestos-containing products identified in the chart above are subject to labeling requirements, including the labeling of all stockon-hand. Those requirements are found in , which is printed on the following pages. The label must be in English as follows: NOTICE This product contains ASBESTOS. The U.S. Environmental Protection Agency has banned the distribution in U.S. commerce of this product under section 6 of the Toxic Substances Control Act (15 U.S.C. 2605) as of (insert effective date of ban on distribution in commerce). Distribution of this product in commerce after this date and intentionally removing or tampering with this label are violations of Federal law. Except when the product is used or disposed of, it is a violation to intentionally remove, deface, cover, or otherwise obscure or tamper with a label or sticker that has been applied in compliance with ,5 Who is Subject to the Requirements? All manufacturers, importers, processors, and distributors of the asbestos-containing products noted above are subject to these requirements. Special Notes: Any person who is subject to a prohibition on the manufacture, import, processing, or distribution in commerce of an asbestos-containing product may file an application for exemption. The contents and timing of exemption applications are set forth in 40 CFR Recordkeeping is required with respect to inventory of stock-on-hand, and with respect to commercial transactions. See 40 CFR for details. Claims of confidentiality of business information may be made with respect to information submitted to the Agency, in accordance with 40 CFR CFR The Asbestos Phase-Out Rule was promulgated at 54 FR (July 12, 1989). The Rule was substantially amended at 59 FR 33208, June 28, 1994 to bring it into conformance with the Fifth Circuit Court of Appeals rulings in Corrosion Proof Fittings v. EPA, 947 F. 2d 1201 (5th Cir. 1991).

Final Regulation Environmental Protection Agency

Final Regulation Environmental Protection Agency Page A4 Environmental Protection Agency 747.115 PART 747--METALWORKING FLUIDS Subpart A [Reserved] Subpart B-Specific Use Requirements for Certain Chemical Substances Sec. 747.115 Mixed mono and diamides