            Supporting Statement for a Request for OMB Review under                           The Paperwork Reduction Act

1.	IDENTIFICATION OF THE INFORMATION COLLECTION

	1(a)	Title and Number of the Information Collection

	TITLE:	Reporting and Recordkeeping for Asbestos Abatement Worker Protection

	EPA ICR No.:	1246.12	OMB Control No.:	2070-0072

	1(b)	Short Characterization

	The Asbestos Worker Protection Rule (WPR) (40 CFR part 763, subpart G; see Attachment C) establishes workplace standards for the protection of state and local government employees who work with asbestos and who are not covered by a state plan approved by the Occupational Safety and Health Administration (OSHA). Currently, state and local government employees in 25 states, the District of Columbia and certain other U.S. territories who perform construction work, including building construction, renovation, demolition, and maintenance activities, and employees who perform brake and clutch repair work are covered by EPA's WPR.  The WPR incorporates, by reference, the OSHA Construction Industry Standard for Asbestos (29 CFR part 1926.1101) and the General Industry Standard for Asbestos (29 CFR part 1910.1001).  As a result, the WPR requires state and local government employers to use engineering controls and appropriate work practices to control the release of asbestos fibers. Covered employers must also monitor employee exposure to asbestos and provide employees with personal protective equipment, training, and medical surveillance to reduce the risk of asbestos exposure. Exposure monitoring records must be maintained for 30 years, medical surveillance records for the duration of employment of the affected employees plus 30 years, and training records for the duration of employment plus one year. Employers must also establish written respiratory protection programs and maintain procedures and records of respirator fit tests for one year.

2.	NEED FOR AND USE OF THE COLLECTION

	2(a)	Need/Authority for the Collection

	The purpose of the WPR is to provide protection from adverse health effects associated with occupa - tional exposure to asbestos for state and local government employees who are engaged in asbestos-related construction, custodial, and brake and clutch repair activities in states that do not have OSHA-approved state plans. Like the OSHA standards, the rule requires employers (in this case, state and local governments) to monitor employee exposure to asbestos, to take action to reduce exposures to levels below the permissible exposure limits (PELs), to provide employees with personal protective equipment,  - to monitor employee health, to train employees about the hazards of asbestos and how to minimize those hazards, and to provide employees with information about exposures to asbestos and the associated health effects.

      The records maintained as a result of this in - formation col - lection will provide the Environmental Protection Agency (EPA) with the data necessary for effec - tive enforcement of the WPR, as authorized under Sections 6 and 8(a) of the Toxic Substances Control Act (TSCA) (15 U.S.C. 2605, 2607(a)). (See Attachments A and B).

      2(b)	Use/Users of the Data

	The recordkeeping provisions contained in the rule are designed to ensure that employers comply with applicable standards and that protection of employees exposed to asbestos is provided to the full extent required. EPA's compliance officers examine the records for this purpose when conducting inspections. Addition - ally, the data contained in exposure measurements records are use - ful to employers in pinpointing areas of their operations that may require additional efforts to reduce exposure. If these data were not collected and maintained, compliance monitoring would be very difficult for EPA, and failures of asbestos-control measures could easily go unde - tected by the employer.

	Records of medical examinations are used by physicians who must periodically examine employees exposed to asbestos. Without records of previous medical exami - nations, the physician may not be able to determine whether an employee has suf - fered an adverse health effect since his or her last examination. Furthermore, when symptoms of organic damage appear, the physician often needs information regard - ing the patient's previous medical condition in order to make an accurate diagnosis of the new problem, its apparent cause, and the course of treatment required.

	In addition, the data and information contained in the records required to be kept and maintained by the WPR may be used by EPA for the development of asbestos ex - posure assessments. Exposure data and medical surveil - lance in - for - mation may be used for epidemiological and diagnostic investigations to determine, for example, dose-response relationships in diseases caused by asbestos exposure.

3.	NON-DUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

	3(a)	Non-Duplication

	EPA is not aware of any other laws or regulations that require the gen - eral compilation, maintenance, or provision of access to occupa - tional exposure and medical records for state and local government workers in the 25 states, the District of Columbia and certain other U.S. territories without an OSHA-approved state plan. Currently, all private sector workers, as well as state and local government employees in the 25 states as well as Puerto Rico and the U.S.Virgin Islands that have OSHA-approved state plans, are protected by the OSHA regulations.

	The rule uses the Office of Federal Register's incorporation-by-reference (IBR) approach to cross-reference the OSHA regulations in the EPA WPR. In addition to ensuring that all state and local government employees and private sector employees receive identical protection from occupational asbestos exposures under federal law, the use of IBR also ensures that this identical protection is maintained in the future.

	This approach eliminates potential confusion by ensuring that the regulated community only has to learn and comply with the OSHA standards, and ensures that the same level of protection for all persons who work with asbestos-containing material (ACM), whether those persons are employed by the private sector or by a state or local government.

	3(b)	Public Notice Required Prior to ICR Submission to OMB

	Prior to submission to OMB, this ICR will be made available to the public for comment through a Federal Register notice.  The public will have 60 days to provide comments.  Any comments received will be given consideration when completing the supporting statement that is submitted to OMB.

	3(c)	Consultations

Under 5 CFR 1320.8(d)(1) OMB requires agencies to consult with potential ICR respondents and data users about specific aspects of ICRs before submitting an original or renewal ICR to OMB for review and approval.  In accordance with this regulation, EPA will pursue additional consultations with interested parties during the development of the renewal of this collection.

	3(d)	Effects of Less Frequent Collection

	The information collection frequencies specified by this rule are the minimum EPA considers necessary to ensure that the health of public employees engaged in asbestos abatement activi - ties is adequately monitored. Initial exposure monitoring must be performed for most projects covered by this rule, but the employer will be able to rely on those results for approximately three years when performing similar projects. All employees covered by this rule must receive training on an annual basis. Most of these employees must also receive annual medical exams. These requirements are necessary to ensure that the employees are being adequately protected from asbestos hazards.

      3(e)	General Guidelines

	Information collected as a result of this request does not violate any of the guidelines imposed by 5 CFR part 1320.6. The requirement that records for medical surveillance and exposure monitoring be retained for more than three years is permis - sible under a provision contained in 5 CFR part 1320.6 that expressly exempts the retention of health and medical records from limitations other - wise imposed by the regulation.

3(f)	Confidentiality

	The Agency has instituted procedures to avoid the inappropriate release of confidential information as specified by 5 CFR part 1320.8(b)(3)(v). The confidentiality of collected information will be main - tained pursuant to the provisions of TSCA (15 U.S.C. 2613), EPA regulations in 40 CFR part 2, the Privacy Act of 1974, and OMB Circular A-108.

	3(g)	Sensitive Questions

	The rule requires employers to allow EPA access to medical records upon request. EPA primarily intends to use this information to determine whether the employer has complied with the medical surveillance requirements of the rule, although EPA may also use this information in epidemiological and diagnostic investigations. EPA will treat this information as confidential and exempt from disclosure under the Freedom of Information Act pursuant to 40 CFR 2.119(b).

4.	THE RESPONDENTS AND THE INFORMATION COLLECTED

	4(a)	Respondents/North American Industrial Classification System (NAICS) 			Codes

	Respondents for this information collection include states and local govern - ment employers in the 25 states, the District of Columbia and certain other U.S. territories that have employees en - gaged in asbestos-related construction, custodial, and brake and clutch repair activities without OSHA-approved state plans. The following table is intended to help identify potentially affected categories and entities. This listing is not, however, intended to be exhaustive. The North American Industrial Classification System (NAICS) applies to certain entities. To determine whether a state or local government employer is subject to the WPR, employers must carefully examine the applicability provisions in the regulation at 40 CFR part 763.121.

Categories NAICS Codes Examples of Potentially Affected Entities Public Administration 92 State or local government employers not subject to an OSHA-approved state Asbestos Plan or a state Asbestos Worker Protection Plan that EPA has determined is exempt from the requirements of the EPA WPR, and whose employees work with or near asbestos-containing material. Educational Services 61 School districts (subset of local government employers identified above) whose employees work with or near asbestos-containing material.

	4(b)	Respondent Activities and Information Requested

	The WPR contains several paperwork related requirements for state and local government employers in the 25 states, the District of Columbia and certain other U.S. territories covered by the WPR. The rule requires employers to collect, disseminate, and maintain information relating to employee asbestos exposures, respiratory protection, medical surveillance, and training. The records maintained as a result of this in - formation col - lection will provide EPA with the data necessary for effec - tive enforcement of the WPR, as authorized under TSCA sections 6 and 8.

	4(b)(i)	Data Items

	40 CFR part 763 requires state and local government employers to develop and maintain a written respiratory protection pro - gram if their employees use respirators. Employers must provide information and guidance on the selection, use, and care of respirators, give annual fit tests, and maintain records of fit tests for one year. Fit-testing record summaries must include the follow - ing information:

	::	Name or identification of the employee tested;  	::	Type of fit test performed;  	::	Specific make, model, style, and size of respirator tested; 	::	Date of test; and 	::	The test results.

	 40 CFR part 763, subpart G requires an exposure assessment to determine accurately the airborne concentrations of asbestos to which em - ploy - ees are exposed. Employers can meet this requirement through  - objective data that demonstrate that the product or material containing the asbestos cannot release airborne fibers in concen - trations exceeding the PELs, historical monitoring data from similar projects that indicates that the PELs will not be exceeded, or initial monitoring results that demonstrate that employee exposures are below the PELs. However, employers must continue periodic exposure monitoring for employees who work in  - areas where exposures exceed or can reasonably be expected to exceed the PELs. Employers may forgo periodic monitoring if affected employees are equipped with supplied-air respirators, and EPA assumes that employers will choose to provide supplied-air respirators in these instances.

	Employers who use objective data to demonstrate that the PELs will not be exceeded are required to main - tain records for the duration of the employer's reliance upon such data. The records must include the following infor - mation:

	::	The product qualifying for exemption; 	::	The source of the objective data; 	::	The testing protocol, results of testing, and/or analysis of the material for asbestos release; 	::	A description of the operation exempted and how the data support the exemption; and 	::	Other data relevant to the operations, materials, pro - cessing or employee exposures covered by the exemp - tion.

	Employers must notify all affected employees of the moni - toring results, and they must notify individual employees of mon - i - toring results representing their personal exposures. For all measurements taken to monitor employee expo - sure to asbestos, the employer must maintain records of each measurement for a period of 30 years. Exposure monitoring records must be made available, upon request, to the affected employees. The records must include the following information for each exposure  -  - measurement:

	::	The date of measurement; 	::	The operation involving exposure to asbestos that is being monitored; 	::	Sampling and analytical methods used and evidence of their accuracy; 	::	Number, duration, and results of samples taken; 	::	Type of protective devices worn, if any; and 	::	Name, social security number, and exposure of the employees whose exposures are represented.

	 40 CFR part 763, subpart G requires employers to institute a medical sur - veillance program for all employees who engage in asbestos removal, renovation, and maintenance projects, or who are exposed at or above a PEL for 30 or more days each year. For each employee subject to medical surveil - lance, the employer is required to main - tain for the duration of employment plus 30 years records that contain the following infor - mation:

	::	The name and social security number of the employee; 	::	A copy of the employee's medical examination results, including the medical history, questionnaire responses, results of any tests, and physicians' recommendations; 	::	Physicians' written opinions; 	::	Any employee medical complaints related to exposure to asbestos; and 	::	A copy of the information provided to the physician.

	The employer must provide a copy of the physician's written opin - ion to the employee within 30 days of his/her receipt of the opinion. In addition, medical surveillance records must be made available to the affected employee upon request.

	40 CFR part 763, subpart G requires that a training program be insti - tuted for all employees who are likely to be exposed above the PELs and for those employees who perform asbestos removal, renovation, maintenance or construction-related custodial tasks. Em - ployees must be provided access to the training materials, including self-help smoking cessation information. In addition, each construction project must be supervised by a competent person, who must have, in most cases, additional training. Employers are required to maintain records of training for one year beyond the last date of the worker's employment.

	Under 40 CFR part 763, subpart G, employers must presume that asbestos is present in thermal system insulation (TSI) and surfacing material installed in buildings built prior to 1981.  Employers may rebut this presumption in two ways, through the results of a building inspection that meets the requirements of the Asbestos Hazard Emergency Response Act (AHERA) regulations at 40 CFR 763.85, or by testing the material. Such records must be maintained for as long as they are relied upon to rebut the presumption.

	Finally, the rule requires specific engineering control and work practice methods for each type of project. Employers are permitted to use alternative control methods if it is determined, in advance, that the alternative control method is adequate to reduce employee exposures below the PELs. For Class I projects, those that involve TSI, or surfacing material, an appropriately-qualified person must certify that the alternative control method will reduce employee exposures below the PELs and that the method will also prevent asbestos contamination beyond the regulated area where the project will be performed. For larger Class I projects, the employer who wishes to use alternative control methods must provide EPA with a copy of the evaluation and certification before the alternative control methods are used. EPA assumes that employers will choose to use listed control methods rather than alternatives in these instances.

	4(b)(ii)	Respondent Activities

	This section lists the major information collection related activities required of respondents, with specific steps necessary to fulfill all the con - ditions of the major activity.  Respondents must:

	A.	Read and interpret regulations. 	B.	Develop a respirator program. 		::	Provide guidance on selection, use, and care of respirators. 		::	Provide periodic fit tests and maintain records of fit tests for one year. 	C.	Establish a monitoring program. 		::	Provide objective data showing that the PELs will not be exceeded, or 			--	Initially monitor employee exposures if objective data are not provided;                   --	Periodically monitor employees whose exposures are expected to exceed a PEL, unless such employees are provided with supplied-air respirators;                   --	Notify workers of the results of employee exposure monitoring; and                   --	Maintain records of all exposure measurements for 30 years.

	D.	Communicate hazards to employees. 		::	Have a competent person evaluate risk associated with Class I and II work;             ::	Notify employees engaged in asbestos-related work about the nature of the work prior to beginning the project; and             ::	Notify other employees and building occupants about the occurrence of the asbestos-related work. 	E.	Institute training programs. 		::	Provide training for all employees engaged in asbestos removal, renovation, maintenance and construction-related custodial activities, as well as for all other employees exposed above the PELs;             ::	Provide employees with access to information and training materials; and             ::	Maintain training records for one year. 	F.	Institute a medical surveillance program. 		::	Provide medical examinations for  - all employees who engage in asbestos removal, renovation, and maintenance projects, or who are exposed at or above a PEL for 30 or more days each year; 		::	Provide information to the examining physician; 		::	Obtain a completed medical questionnaire from the affected employee;             ::	Obtain a written opinion from the examining physician; and             ::	Maintain records of medical examinations for the duration of employment plus 30 years. 	G.	Provide access to records at employee and/or EPA request. 	H.	Institute training for competent persons.             ::	Provide training for competent persons who will supervise construction projects.

5.	THE INFORMATION COLLECTED--AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT

	5(a)	Agency Activities

	In connection with this information request, the Agency may:

	(1)	Perform inspections and respond to inquiries; 	(2)	Investigate complaints and handle legal matters; and 	(3)	Develop asbestos exposure assessments and epidemio - logical/diagnostic studies.

	5(b)	Collection Methodology and Management

	Nothing in this information collection is derived from a survey or reporting to EPA. EPA does not receive the data; therefore, EPA does not have any special data collection methodology and management. All information subject to this col - lection request is to be gathered and maintained by the employer. The regulations specify the methods to be used for employee exposure monitoring and medical surveillance, as well as the subjects to be covered in training.  In general, the rule identi - fies what data must be collected and maintained without specif - ying a particular collection method. Therefore, industry has the option of utilizing improved data collection and maintenance technology.

	5(c)	Small Entity Flexibility

	The small entities potentially impacted by this rule are small government entities consisting of local governments (e.g., county, municipal, or towns) and school districts. The primary function of the statutory requirements of TSCA section 6 is the protection of human health and the environment. Consequently, no specific provi - sions exist for easing the burden on small local government entities. The records required are as necessary for the protection of employees of small local govern - ments as for other affected employees.

	5(d)	Collection Schedule

	On occasion, based on activities, employers who use their own employees to conduct asbestos construction, custodial, or brake and clutch repair activities are subject to the information collection and recordkeeping requirements described above. Depending upon the type of project, some or all of the information collection and recordkeeping requirements must be complied with before the project commences. For example, in most instances, employers must provide and document training for their employees before they may participate in the asbestos-related activities covered by this rule.

6.	ESTIMATING THE BURDEN AND COST OF THE COLLECTION

	Section 6(a) discusses respondent burden and section 6(b) addresses respondent costs.  Section 6(c) reports EPA burdens and costs and sections 6(d), 6(e), and 6(f) summarize respondent burdens, discuss changes in burden estimates, and provide the Federal Register burden statement, respectively.

	6(a)	Estimating Respondent Burden

	The respondents for this rule are state and local governments in the 25 states, the District of Columbia and certain other U.S. territories that do not have OSHA-approved state plans.  Tables 1 through 3 document EPA's calculations of the respondent burden. Table 1 provides EPA's estimates of the burden per response for each paperwork requirement. Table 2 provides EPA's estimates of the total number of responses for each requirement. Finally, Table 3 provides EPA's estimates of total respondent burden by multiplying the burden per response (Table 1) and the total number of responses (Table 2) for each requirement.

	For this ICR, respondent burden calculations are based on 26 entities. Some underlying calculations carried forward from previous analyses are based on 27 entities and then modified as necessary to reflect that one of the 27 (Illinois) had earlier adopted an OSHA approved plan. This analysis follows the same approach in using those modified calculations as was used for the immediately prior (2010) ICR renewal supporting statement.

	Typically, respondents will need three categories of labor to comply with the ICR requirements: supervisory, employee (e.g., asbestos abatement worker/custodial worker or brake and clutch repair mechanic), and clerical. In addition, exposure monitoring and developing a respiratory protection plan will require an industrial hygienist's time.

	The estimated burden hours and cost estimates for this ICR are based on data and methods discussed in the Economic Analysis for this rule (40 CFR part 763, subpart G) and on OSHA ICRs for its Construction and General Industry Standards for Asbestos (OSHA, 2000a,b). Table 1. Hourly Burden per Respondent

Collection Activity Hourly Burden per Respondent

Clerical Employees Supervisory Industrial Hygienist Total [c] A) Read And Interpret Regulation   - - 3.00 - 3.00 B) Respirator Program

  1) Develop Program, Large Gov's [a] - - - 4.00 4.00   2) Fit Testing

    a) Full-Face Respirators - 0.25 0.25 - 0.50     b) Half-Mask-Face Respirators - 0.17 0.17 - 0.34   3) Maintain Records for Fit Tests 0.08 - - - 0.08 C) Exposure Monitoring

  1) Initial Exposure Assessment

    a) Construction - - - 2.00 2.00     b) Brake and Clutch Repair - - - 2.00 2.00   2) Maintain Records 0.08 - - - 0.08   3) Post Monitoring Results, Brake/Clutch 0.08 - - - 0.08 D) Hazard Communication

  1) Evaluate Risk - - 0.75 - 0.75   2) Notify Employees

    a) Construction - - 0.08 - 0.08     b) Brake and Clutch Repair - - 0.08 - 0.08   3) Notify Other Employees/ Tenants - - 0.08 - 0.08 E) Training

  1) Provide Training

    a) Class II - 32.00 - - 32.00     b) Class III - 16.00 - - 16.00     c) Class IV - 2.00 - - 2.00   2) Maintain Records 0.08 - - - 0.08 F) Medical Surveillance

  1) Medical Exams - 0.75 0.75 - 1.50   2) Initial Questionnaire - 0.50 0.50 - 1.00   3) Periodic Questionnaire - 0.17 0.17 - 0.34   4) Information to Physicians 0.08 - - - 0.08   5) Physician's Written Opinion 0.08 - - - 0.08   6) Maintain Records 0.08 - - - 0.08 G) Access to Records

1) Employee Access 0.08 - - - 0.08   2) EPA Access

    a) Construction 0.08 - 0.08 - 0.16     b) Brake and Clutch Repair 0.08 - 0.08 - 0.16 H) Competent Person

  1) Training

    a) Class I and II [b] - - 14.00 - 14.00     b) Class III and IV [b] - - 3.00 - 3.00   2) Maintain Records 0.08 - - - 0.08 Total 0.92 51.83 23.00 8.00 83.75 Notes: Except where noted, these estimates reflect annual burden estimate for each response. a) This burden is only incurred once every five years. EPA adjusted the number of responses in Table 2 to annualize total burden estimates in Table 3. b) This is the annualized number of hours for this requirement. The Class II and Class IV competent person training occurs once every five years.  c) Totals may not sum due to rounding.

Table 2.  Total Annual Response Estimates

Collection Activity Total Annualized Responses

Clerical Employees Supervisory Industrial Hygienist Total [c] A) Read And Interpret Regulation a  0 0 375 0 375 B) Respirator Program

  1) Develop Program, Large Gov's [b] 0 0 0 144 144   2) Fit Testing

    a) Full-Face Respirators 0 38 38 0 76     b) Half-Mask-Face Respirators 0 2,610 2,610 0 5,220   3) Maintain Records for Fit Tests 2,648 0 0 0 2,648 C) Exposure Monitoring

  1) Initial Exposure Assessment

    a) Construction 0 0 0 4,081 4,081     b) Brake and Clutch Repair 0 0 0 1,296 1,296   2) Maintain Records 11,922 0 0 0 11,922   3) Post Monitoring Results, Brake/Clutch 2,874 0 0 0 2,874 D) Hazard Communication

  1) Evaluate Risk 0 0 4,111 0 4,111   2) Notify Employees

    a) Construction 0 0 458,116 0 458,116     b) Brake and Clutch Repair 0 0 11,496 0 11,496   3) Notify Other Employees/ Tenants 0 0 458,116 0 458,116 E) Training

  1) Provide Training

    a) Class II 0 1,945 0 0 1,945     b) Class III 0 805 0 0 805     c) Class IV 0 46,883 0 0 46,883   2) Maintain Records 49,633 0 0 0 49,633 F) Medical Surveillance

  1) Medical Exams 0 1,740 1,148 0 2,888   2) Initial Questionnaire 0 83 55 0 138   3) Periodic Questionnaire 0 1,657 1,093 0 2,750   4) Information to Physicians 2,888 0 0 0 2,888   5) Physician's Written Opinion 2,888 0 0 0 2,888   6) Maintain Records 2,888 0 0 0 2,888 G) Access to Records

1) Employee Access 5,534 0 0 0 5,534   2) EPA Access

    a) Construction 4,602 0 4,602 0 9,204     b) Brake and Clutch Repair 29 0 29 0 58 H) Competent Person

  1) Training

    a) Class I and II 0 0 640 0 640     b) Class III and IV 0 0 26,479 0 26,479   2) Maintain Records 27,119 0 0 0 27,119 Total 113,024 55,761 968,907 5,521 1,143,214 Notes:  a) This burden was incurred by all supervisors over the three year period of the initial ICR. EPA assumes that five percent of the annual number of respondents from the initial ICR will incur the burden each year to account for turnover by supervisors. The number of responses in Table 2 (375) is five percent of the total number of townships (22,488) divided by 3 (22,488/3 =7,496). b) This is the annualized number of responses. EPA assumes that respirator programs will require updating once every five years. Thus, this is calculated by dividing the total number of affected respondents (721 large governments with industrial hygienists on staff) by five.  c) Totals may not sum due to rounding. Table 3.  Total Annual Burden Estimates

Collection Activity Total Annual Burden Hours

Clerical Employees Supervisory Industrial Hygienist Total [c] A) Read And Interpret Regulation  0 0 1,124 0 1,124 B) Respirator Program

  1) Develop Program, Large Govts  0 0 0 577 577   2) Fit Testing

    a) Full-Face Mask Respirators 0 10 10 0 20     b) Half-Face Mask Respirators 0 435 435 0 870   3) Maintain Records for Fit Tests 221 0 0 0 221 C) Exposure Monitoring

  1) Initial Exposure Assessment

    a) Construction 0 0 0 8,161 8,161     b) Brake and Clutch Repair 0 0 0 2,592 2,592   2) Maintain Records 994 0 0 0 994   3) Post Monitoring Results, Brake / Clutch 239 0 0 0 239 D) Hazard Communication

  1) Evaluate Risk 0 0 3,083 0 3,083   2) Notify Employees

    a) Construction 0 0 38,176 0 38,176     b) Brake and Clutch Repair 0 0 958 0 958   3) Notify Other Employees / Tenants 0 0 38,176 0 38,176 E) Training

  1) Provide Training

    a) Class II 0 62,240 0 0 62,240     b) Class III 0 12,886 0 0 12,886     c) Class IV 0 93,766 0 0 93,766   2) Maintain Records 4,136 0 0 0 4,136 F) Medical Surveillance

  1) Medical Exams 0 1,305 861 0 2,166   2) Initial Questionnaire 0 41 27 0 68   3) Periodic Questionnaire 0 276 182 0 458   4) Information to Physicians 241 0 0 0 241   5) Physician's Written Opinion 241 0 0 0 241   6) Maintain Records 241 0 0 0 241 G) Access to Records

1) Employee Access 461 0 0 0 461   2) EPA Access

    a) Construction 383 0 383 0 767     b) Brake and Clutch Repair 2.4 0 2.4 0 5 H) Competent Person

  1) Training

    a) Class I and II 0 0 8,960 0 8,960     b) Class III and IV 0 0 79,437 0 79,437   2) Maintain Records 2,260 0 0 0 2,260 Total 9,419 170,959 171,815 11,330 363,523 a) Totals may not sum due to rounding. 	 	Reporting requirements vary among the different burden categories. Some categories impose annual paperwork burdens at the state or local government level while others impose paperwork burdens at the project or employee level.1 EPA estimates that 22,488 state and local governments will be affected by these information collection activities and that these are the respondents for the ICR. However, many of these respondents will not be affected by all of the information collection requirements. Furthermore, the estimates presented here reflect the hours and costs found in 40 CFR part 763, subpart G. In the sections that follow, EPA discusses (a) each burden category, (b) the level at which the burden is applied, and (c) the data and assumptions used to derive burden estimates.

Activity-by-Activity Burden Estimation Methods

	A.	Reading and Interpreting the Regulation

	In the initial ICR, EPA assumed that at least one person at the state or local government would need to read and interpret the requirements of the rule. EPA expected that this person would be a construction supervisor. The supervisor would read the relevant sections of the Regulation as well as the relevant cross-referenced sections of OSHA's Construction and General Industry Standards. Approximately half of the regulatory text, however, consists of technical appendices that will not be of direct importance to the super - visor. For example, most projects will not need to employ fit testing methods, and monitoring methods presumably will be performed by a contracted specialist. Given these assumptions, EPA projected that, on average, the supervisor would need three hours to read and understand the regulation. EPA expected that some supervisors would require more time to read and interpret the regulations while some would require less time. Thus, EPA assumed that on average a supervisor in each state or local government would need to spend three hours on this activity. This requirement, however, was assumed to be incurred only in the first year of the rule. To provide an annualized estimate of the burden over the three-year ICR period, EPA divided the total number of respondents (25,312 state and local governments (EPA, 2000) by three. This provided an annualized estimate of 8,437 responses. Thus, this activity was assumed to require 25,312 hours on an annualized basis (8,437 responses x 3 hours).

          Although the initial ICR assumed that this activity would be undertaken by supervisors only during the first year of the rule, the current ICR still accounts for turnover by supervisors.  EPA is assuming that there will be a turnover of five percent of all supervisors annually and that the new supervisors will need to read and interpret the regulation. Thus, for purposes of this analysis, five percent of the annual respondents will spend three hours reading and interpreting the rule annually. This analysis assumes the total number of respondents to be 22,488 and an annualized estimate of 7,496 responses (22,488 / 3). Therefore, this activity is assumed to require 1,124 hours on an annualized basis (7,496 responses x 5 percent x 3 hours).

	B.	Respirator Program.

	The respiratory protection program under the rule encompasses three paperwork activities: (a) developing written guidance for implementing the respirator requirements of the rule, (b) fit testing, and (c) maintaining records of the fit tests.

	Written standard operating procedures covering the care, use, and selection of respirators must be established for each workplace in which respirators are used. Much of the information needed to develop these procedures is specified in the OSHA asbestos standard for construction, as amended by OSHA's 1998 respiratory protection standard (63 FR 1152; January 8, 1998).  EPA assumed that large governments2 would have an industrial hygienist on staff who would need four hours to comply with this requirement. EPA assumes that small governments, on the other hand, will not have an industrial hygienist on staff and will instead contract out this service.  Using the Regulatory Flexibility Act (RFA) definition of small government, 21,767 affected governments (96.79 percent of the 22,488 total) would be classified as small, leaving 721 large governments with an industrial hygienist on staff. EPA further assumes that the respirator program will need updating every five years. Thus dividing the total number of large governments by five yields 144 responses annually. Multiplying by the burden per response (4 hours) results in an estimated annual burden of 577 hours of industrial hygienists' time.

	Fit testing imposes a requirement on both the worker being fit-tested and the worker's supervisor who conducts the fit test. EPA estimates that fit tests for full-face respirators will require 15 minutes and half-mask respirators will require a fit test lasting 10 minutes. EPA further estimates that 38 full-time equivalent (FTE) staff will require full-face fit tests and 2,610 FTE staff will require half-mask fit tests, annually. Thus, fit tests for full-face respirators will require 10 hours each for both workers and supervisors (0.25 hours per fit test x 38 fit tests) or 19 hours total, and half-mask respirator fit tests will require 435 hours each for both workers and supervisors (0.1667 hours x 2,610 fit tests) or 870 hours total. In total, workers and supervisors will need to spend 889 hours each on fit-testing each year.

	Maintaining records of the fit tests is assumed to require five minutes of clerical time for each fit test. Thus, a total of 2,648 fit tests will occur annually (38 for full-face respirators and 2,610 for half-mask respirators), requiring 221 hours of clerical labor time each year (0.0833 hours x 2,648 fit tests).

	C.	Exposure Monitoring.

	The exposure monitoring section of the rule requires affected projects to perform periodic exposure monitoring unless a negative exposure assessment has been made. For the construction-related activities, this will require affected crews (i.e., groups of workers) to have an initial exposure assessment. EPA estimates that this will require two hours of an industrial hygienist's time every three years. There are a total of 27,144 crews that must be evaluated, resulting in an annual average of 9,048 crews. As with developing respirator programs, EPA assumes that only large governments incur this as a paperwork burden.3 Furthermore, EPA assumes that large governments will incur a disproportionate amount of the hours associated with this requirement.  Specifically, EPA assumes that the number of crews employed by large governments is proportional to the populations of large governments. EPA estimates that 54.90 percent of the total population in the 25 affected states, the District of Columbia and certain other U.S. territories resides in small local government jurisdictions.4 Thus, EPA assumes that the remainder (45.10 percent) reside in large government jurisdictions. This implies that 4,081 annual responses are generated under this requirement (9,048 crews x 45.10 percent) in the construction sector. Multiplying by the burden per response (2 hours) results in an annual burden of 8,161 industrial hygienist hours.

	For brake and clutch repair activities (which are classified as a general industry activity), this provision will require affected repair shops to establish an exemption from periodic exposure monitoring. EPA estimates that this will require two hours of an industrial hygienist's time annually. As noted above, only large governments with on-staff industrial hygienists will incur a paperwork burden under this rule. As with the number of crews above, EPA assumes that large governments will operate a disproportionate number of the affected brake and clutch shops.  Specifically, EPA assumes that the number of affected brake and clutch shops in large governments is proportional to the population residing in large governmental jurisdictions. Thus, EPA estimates that 45.10 percent of all affected brake and clutch shops are owned by large state and local governments. Thus, the annual burden for this requirement is based on establishing exemptions at 1,296 repair shops (45.10 percent of the 2,874 affected repair shops) for an annual burden of 2,592 industrial hygienist hours.

	In addition to performing the initial exposure assessment, the rule requires that records of the findings from the assessment be kept on file. EPA estimates that this activity will require five minutes of clerical time for each assessment. Although some of the assessments are performed by non-staff industrial hygienists (i.e., those for small local governments), records from all assessments will need to be kept on file. Thus, there are a total of 11,922 annual assessments for which records must be kept (9,048 in the construction sector and 2,874 in the brake and clutch sector). Multiplying by the burden per response (five minutes) yields an estimated annual clerical burden of 994 hours.

	As part of the brake and clutch repair assessment, the rule requires that the results of any exposure monitoring conducted pursuant to the rule be posted for employees to review.  Following OSHA's ICRs, EPA assumes that it will require five minutes of clerical time to post the results. All 2,874 repair shops will need to have results posted annually (i.e., shops owned by both small and large governments), resulting in an annual burden of 239 clerical hours.

	D.	Hazard Communication - Notification Requirements.

	40 CFR part 763, subpart G, contains three notification requirements that will impose paperwork burdens: (a) evaluating the risk associated with Class I and II work, (b) notifying employees engaged in asbestos-related work about the nature of the work, and (c) notifying other employees (i.e., employees not engaged in asbestos-related work) and building occupants about the occurrence of asbestos-related work.

	40 CFR part 763, subpart G, requires competent persons to evaluate the risk associated with asbestos-related construction projects. EPA assumes that this only imposes a paperwork burden on Class I and II projects. EPA assumes that other covered activities (Class III and IV projects and new construction activities) can be evaluated without any incremental burden.  Following OSHA's Asbestos Construction Standard ICR, EPA assumes that this will impose a burden of 45 minutes of supervisory time for each Class I and II project. A total of 4,111 Class I and II projects are covered by the rule, implying a total annual burden of 3,083 supervisory hours (0.75 hours x 4,111 projects).

	The rule also requires employers to notify employees that will be performing asbestos-related work prior to beginning the project (40 CFR 763, subpart G).  For construction activities, EPA assumes that this will require 5 minutes of a construction supervisor's time for all affected projects. EPA excludes Class IV custodial projects from this burden estimate because custodial activities are assumed to occur continuously over the course of the year and are not generally divided into discrete "projects." EPA estimates that 458,116 construction projects will require these notifications. Multiplying the estimated number of projects by five minutes (0.0833 hours) yields an estimated 38,176 construction supervisor hours to comply with this requirement (458,116 projects x 0.0833 hours).

	For brake and clutch repair, EPA assumes that this requirement will be incurred four times (e.g., quarterly) each year at each brake and clutch repair shop. Furthermore, EPA assumes that compliance with this requirement will impose a five minute burden on brake and clutch repair supervisors. There are 2,874 repair shops, so the annual burden for this requirement among brake and clutch repair shops will be 958 hours (2,874 shops x 0.0833 hours x 4 times annually).

	Finally, the rule requires employers to notify other employees (i.e., those not performing the asbestos-related work) and tenants about the occurrence of asbestos-related work in the building (40 CFR 763, subpart G). EPA assumes that this will be incurred only by construction projects and will impose a burden of five minutes of supervisory time per project. EPA estimates that 458,116 projects will be affected by this requirement. Multiplying by the burden per response (five minutes), results in an estimated burden of 38,176 hours of supervisory time annually to comply with this requirement (458,116 projects x 0.0833 hours).

	E.	Training Program.

	40 CFR part 763, subpart G, requires affected construction workers to be trained based on the Class of work they perform. Training requirements for Class I abatement workers are not incremental to the rule and thus do not impose an incremental paperwork burden. The annual training requirements are 32 hours for Class II workers, 16 hours for Class III workers, including new construction projects, and 2 hours for Class IV workers. EPA estimates that training will be required for 1,945 Class II workers, 805 Class III workers, and 46,883 Class IV workers. This implies annual training requirements of 62,240 hours for Class II workers (32 hours x 1,945 workers), 12,880 hours for Class III workers (16 hours x 805 workers), and 93,766 hours for Class IV workers (2 hours x 46,883 workers). The total annual employee hours required for training is 168,886.

	Records of the training must be kept on file for each worker who is trained. EPA assumes that this will require five minutes of clerical time per worker trained. A total of 49,633 workers will be trained annually (1,945 Class II workers + 805 Class III workers + 46,883 Class IV workers), requiring 4,136 clerical hours annually to maintain these records (49,633 x 0.0833 hours).

	The rule also requires employers to maintain training materials on file for employees to access (40 CFR 763, subpart G). The burden associated with this requirement has been included in the burden estimate under Employee Access to Records, below.

	F.	Medical Surveillance.

	The rule requires a medical exam for Class I, II, or III employees, including new construction workers, and for workers who are exposed at or above the PEL for more than 30 days annually (40 CFR 763, subpart G). The medical surveillance section of the rule will impose five paperwork activities on affected entities: (1) medical exams, (2) initial and periodic questionnaires, (3) providing information to physicians, (4) obtaining the physician's written opinion, and (5) maintaining records of the medical exam. In estimating the paperwork burden for this requirement, EPA does not include the physician's time as part of the burden estimate.  EPA assumes that the physicians performing these activities are not part of the affected entities' staff, but provide these services under contract.

	EPA assumes that all Class II and III construction workers will need to undergo medical exams each year. Although Class I workers will also require medical exams, the 1987 EPA asbestos WPR covers these activities and thus medical exams are not incremental for Class I workers under the revised rule. EPA estimates that 2,750 workers will require medical exams.  Of this total, 1,093 are supervisors (one for each crew; 640 Class II crews and 453 in Class III) and 1,657 are non-supervisory construction workers. To account for turnover, EPA inflated each of these estimates by five percent. Thus, each year, a total of 2,888 workers, including 1,148 supervisors and 1,740 non-supervisory construction workers, will require medical exams. EPA assumes that these exams will require 45 minutes each, imposing an annual burden of 2,166 hours (1,305 hours for construction workers and 861 hours for supervisors).

	The rule also requires that workers undergoing medical exams fill out medical questionnaires designed to assess current and past asbestos-related risk (40 CFR 763, subpart G).  For a first-year worker's initial exam under the rule, the worker must fill out an initial medical questionnaire. For subsequent exams, the worker fills out an abbreviated form of that questionnaire (i.e., the periodic questionnaire). Both of these questionnaires can be found in OSHA's Construction Standard (29 CFR 1926.1101, Appendix D). EPA estimates the annual number of initial exams given to first-year workers for this three-year ICR period as five percent of the number of initial exams that took place during the first three-year period of the ICR. Thus, 55 supervisors (1,093 x .05) and 83 non-supervisory construction workers (1,657 x .05) will fill out initial questionnaires annually. EPA assumes that completing the initial questionnaire imposes a burden of one half-hour. Thus, completing initial questionnaires will impose an annual burden of 27 hours on supervisory construction workers (55 workers x .5 hour) and 41 hours on non-supervisory construction workers (83 workers x .5 hour), or 68 hours total.

	EPA assumes that all workers who undergo a non-initial exam will be required to complete a periodic questionnaire each year. Thus, EPA estimates that 1,093 supervisors and 1,657 non-supervisory workers will complete the periodic questionnaire each year. EPA assumes that the periodic questionnaire will take 10 minutes to complete. Thus, this requirement imposes a burden of 182 hours on supervisors (1,093 workers x 0.1667 hours) and 276 hours on non-supervisory construction workers (1,657 workers x 0.1667 hours), or 458 hours total.

	The rule requires employers to provide examining physicians with a number of pieces of information, including:

         * A copy of the OSHA Construction Standard, including Appendices D, E, and I of the Standard;

         * A description of the employee's duties;

         * The employee's representative exposure level;

         * A description of any personal protective equipment used by the employee; and

         * Information from previous medical exams that is not otherwise available to the physician.

EPA assumes that providing this information will impose a five-minute burden for each annual medical exam and that affected government entities will use clerical labor to comply with this requirement. There are a total of 2,888 medical exams (initial and non-initial) performed annually (1,148 for supervisory construction workers and 1,740 for non-supervisory construction workers). Thus, this requirement will impose an annual burden of 241 clerical hours.

	40 CFR part 763, subpart G, requires employers to obtain a written opinion from the physician for each medical exam. EPA assumes that obtaining the physician's written opinion will impose a five-minute burden for each annual medical exam and that affected government entities will use clerical labor to comply with this requirement. There are a total of 2,888 medical exams performed annually. Thus, obtaining the physician's written opinion will impose an annual burden of 241 clerical hours.

	The rule requires employers to maintain medical records for each employee (40 CFR 763, subpart G). EPA assumes that maintaining medical records will impose a five-minute burden for each annual medical exam and that affected government entities will use clerical labor to comply with this requirement. There are a total of 2,888 medical exams performed annually. Thus, EPA estimates that maintaining medical records will impose an annual burden of 241 clerical hours.

	G.	Access to Records.

	The rule requires affected employers (a) to allow employees access to a variety of records and (b) to allow the EPA to inspect those records (40 CFR 763, subpart G).

	EPA assumes that allowing employees to access their own records will require five clerical minutes for each occurrence. EPA estimates that 55,335 employees will be affected by the rule and that 10 percent of those will access their own records each year. Thus, employees will access records 5,534 times annually. This results in a total annual burden of 461 clerical hours.

	EPA assumes that its access to employer records will require five minutes for both a clerical worker and a supervisor for each time the Agency accesses records. For the construction sector, EPA assumes that this will occur in approximately five-percent of Class I projects and one-percent of new construction and Class II, III, and IV projects. For brake and clutch work, EPA assumes that one-percent of all brake and clutch repair shops will be inspected annually.  Based on these assumptions, EPA will access the records of 4,602 construction projects each year and the records of 29 brake and clutch repair shops. Thus EPA will access records 4,631 times annually. This results in a total annual burden of 383 hours each of both clerical and supervisory time for construction-related work and a total annual burden of 2.4 hours each of both clerical and supervisory time for brake and clutch repair.

	H.  	Competent Person.

	40 CFR part 763, subpart G, requires all construction work sites that are covered by the rule to be supervised by an individual trained as a competent person. This will require affected state and local governments to train one person from each work crew as a competent person.  EPA assumes that competent person training for Class I crews is not incremental to the rule. For Class II work, EPA assumes that competent person training will require a 40-hour training course every five years with an eight-hour course in all other years. The average annual training hours for Class II competent persons during the three-year period of the ICR can be calculated as follows:  8 hours + 32 hours/5 years = 14.4, rounded to 14 hours per year. The 32 hours is the additional training beyond the 8 hours of training that occurs each year (40 hours  -  8 hours = 32 hours) which is annualized over a five-year period (32/5 = 6.4, rounded to 6 hours), and then added to the annual training requirement of 8 hours, for a total of 14 hours average training per year. This can be applied to the 640 supervisors that must be trained as Class II competent persons, for an annual burden of 8,960 hours.

	For Class III and IV workers, including new construction workers, EPA assumes that competent person training will require a 16-hour training course once every five years. Thus, the average annual burden for training Class III and IV competent persons is 3 hours (16 hours/5 years rounded to 3 hours). This can be applied to 26,479 supervisors that must be trained as Class III or IV competent persons, for an annual burden of 79,437 supervisor hours.

	In addition to training, records must be kept to document that the persons have been trained. EPA assumes that for each person trained, affected state and local governments will incur a burden of five minutes of clerical time. Based on the estimates above, a total of 27,119 competent persons will be trained annually (640 under Class II and 26,479 under Class III and IV).  Thus, maintaining records of competent person training will require 2,260 clerical hours (27,119 competent persons x (5 min./60 min.)) annually.

Summary of Burden Estimates

	Table 3 summarizes the total burdens associated with each of the categories discussed above.  EPA estimates that the total annual respondent burden for this ICR will be 363,523 hours. The ICR affects a total 22,488 respondents (i.e., all affected state and local governments).  The total number of annual responses is estimated to be 1,143,213 (see Table 2), a decrease in 120,910 responses from the last ICR, and an average of about 51 responses per respondent. The burden per respondent is 16.16 hours ([363,523 burden hours] / [22,488 respondents]) and the average burden per response is 0.32 hours ([363,523 burden hours] / [1,143,213 responses]).

	6(b)	Estimating Respondent Costs

	Table 4 provides an estimate of respondent costs, based on the burden estimates (Table 3) and the following hourly labor cost assumptions:

 Clerical labor costs $24.84 per hour;

 Construction employee (non-supervisory) labor costs $33.28 per hour;

 Brake and clutch repair employee labor costs $28.92 per hour;

 Construction supervisor labor costs $46.31 per hour;

 Brake and clutch repair supervisor labor costs $46.31 per hour; and

 Industrial hygienist labor costs $59.06 per hour.

	These hourly labor costs reflect both wage and non-wage benefits for these categories of employees in year 2012 dollars. The derivation of the labor costs appear in Attachment D to the ICR. Cost estimates in Table 4 are derived by multiplying the respondent burden hours for each requirement by the appropriate hourly labor cost from above.

Table 4.  Total Annual Respondent Cost

Collection Activity Total Annual Industry Cost

Clerical Employees Supervisory Industrial Hygienist Total a I) Read And Interpret Regulation $0 $0 $52,050 $0 $52,050 II) Respirator Program

  A) Develop Program, Large Gov's $0 $0 $0 $34,077 $34,077   B) Fit Testing

    1) Full-Face Respirators $0 $316 $440 $0 $756     2) Half-Mask-Face Respirators $0 $14,477 $20,144 $0 $34,620   C) Maintain Records for Fit Tests $5,490 $0 $0 $0 $5,490 III) Exposure Monitoring

  A) Initial Exposure Assessment

    1) Construction $0 $0 $0 $481,980 $481,980     2) Brake and Clutch Repair $0 $0 $0 $153,081 $153,081   B) Maintain Records $24,691 $0 $0 $0 $24,691   C) Post Monitoring Results, Brake/Clutch $5,937 $0 $0 $0 $5,937 IV) Hazard Communication

  A) Evaluate Risk $0 $0 $142,767 $0 $142,767   B) Notify Employees

    1) Construction $0 $0 $1,767,847 $0 $1,767,847     2) Brake and Clutch Repair $0 $0 $44,363 $0 $44,363   C) Notify Other Employees/ Tenants $0 $0 $1,767,847 $0 $1,767,847 V) Training

  A) Provide Training

    1) Class II $0 $2,071,310 $0 $0 $2,071,310     2) Class III $0 $428,838 $0 $0 $428,838     3) Class IV $0 $3,120,476 $0 $0 $3,120,476   B) Maintain Records $102,739 $0 $0 $0 $102,739 VI) Medical Surveillance

  A) Medical Exams $0 $43,430 $39,871 $0 $83,301   B) Initial Questionnaire $0 $1,379 $1,266 $0 $2,644   C) Periodic Questionnaire $0 $9,191 $8,438 $0 $17,629   D) Information to Physicians $5,978 $0 $0 $0 $5,978   E) Physician's Written Opinion $5,978 $0 $0 $0 $5,978   F) Maintain Records $5,978 $0 $0 $0 $5,978 VII) Access To Records

A) Employee Access $11,455 $0 $0 $0 $11,455   B) EPA Access

    1) Construction $9,526 $0 $17,759 $0 $27,285     2) Brake and Clutch Repair $59 $0 $111 $0 $170 VIII) Competent Person

  A) Training

    1) Class I and II $0 $0 $414,918 $0 $141,918     2) Class III and IV $0 $0 $3,678,568 $0 $3,678,568   B) Maintain Records $56,137 $0 $0 $0 $56,137 Total $233,968 $5,689,417 $7,956,387 $669,138 $14,548,910    a) Totals may not sum due to rounding.

	Based on the above hourly labor cost data, EPA has calculated the total respondent cost to be approximately $14.5 million annually. This translates into a per respondent cost of $646.96.6  The total respondent cost and the per-respondent cost have both increased from the last ICR because of labor cost increases since the previous ICR (see Attachment D).

	6(c)	Estimating Agency Burden and Cost

	Due to the elimination of funding for this program, current guidance states that the Agency will no longer dedicate any resources to managing the WPR asbestos program. For the same reason, the Agency does not expect to conduct any enforcement or compliance assistance activities under this program. The Agency expects to incur no burden hours and no cost in connection with this data collection.

	6(d)	Bottom Line Burden Hour and Costs

	The total annual respondent tally for this information collection is as follows:

	Respondent Burden Hours:	363,523 	Respondent Cost:		$14,548,910

	6(e)	Reasons for Change in Burden

      This request reflects no change in the total estimated respondent burden from that currently in the OMB inventory. The estimated burden per respondent is 16.16 hours, at an estimated average 0.32 hours of burden per response Both of those estimates are unchanged from the previous estimates.

	6(f)	Burden Statement

	The annual public burden for this collection of informa - tion, which is approved under OMB Control No. 2070-0072, is estimated to average 0.32 hours per response. According to the Paperwork Reduction Act, "burden" is defined in 5 CFR 1320.3(b). An Agency may not conduct or sponsor such a request and a person or facility is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR part 9 and included on the related collection instrument or form, if applicable.          The Agency has established a public docket for this ICR under Docket ID No. EPA-HQ-OPPT-2012-0915, which is available for online viewing at www.regulations.gov, or in-person viewing at the Pollution Prevention and Toxics Docket in the EPA Docket Center (EPA/DC).  The EPA/DC Public Reading Room is located in the EPA West Building, Room 3334, 1301 Constitution Ave., N.W., Washington, DC.  The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.  The telephone number for the EPA/DC Public Reading Room is<PHONE_NUMBER>, and the telephone number for the Pollution Prevention and Toxics Docket is<PHONE_NUMBER>.          You may submit comments regarding the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden, including the use of automated collection techniques. Submit your comments, referencing Docket ID No. EPA-HQ-OPPT-2012-0915 and OMB Control No. 2070-0072, to (1) EPA online using www.regulations.gov (our preferred method), or by mail to: Pollution Prevention and Toxics Docket, Environmental Protection Agency Docket Center (EPA/DC), Mailcode: 28221T, 1200 Pennsylvania Ave., N.W., Washington, DC 20460, and (2) OMB by mail to: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, N.W., Washington, DC 20503.

 References for Section 6    OSHA, 2000a.  Supporting Statement for the Information Collection Requirements of the	Asbestos Standard (Construction), OMB Approval Number 1218-0134.    OSHA, 2000b.  Supporting Statement for the Information Collection Requirements of the	Asbestos Standard (General Industry), OMB Approval Number 1218-0133.    U.S.  EPA, 2000. U.S. EPA, Office of Pollution Prevention and Toxics  Final Asbestos Worker	Protection Rule Economic Analysis, Economic and	Policy Analysis Branch, Economics,	Exposure and Technology Division, Office of Pollution Prevention and Toxics,	September 25.


[Federal Register Volume 84, Number 103 (Wednesday, May 29, 2019)]
[Rules and Regulations]
[Pages 24719-24722]
[FR Doc No: 2019-10875]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2018-0829; FRL-9993-84-Region 1]

Air Plan Approval; Massachusetts; Nonattainment New Source Review
Program Revisions; Infrastructure Provisions for National Ambient Air
Quality Standards; Nonattainment New Source Review Requirements for the
2008 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Massachusetts. On February 9, 2018, the Massachusetts Department of
Environmental Protection (MassDEP) submitted revisions to the EPA
satisfying the MassDEP's earlier commitment to adopt and submit
provisions that meet certain requirements of the Nonattainment New
Source Review (NNSR) air permit program regulations. The EPA is also
approving the Commonwealth's NNSR certification, which was included in
the February 9, 2018, SIP revision, as sufficient for the purposes of
satisfying the 2008 8-hour ozone National Ambient Air Quality Standard
(NAAQS). In addition, this action converts the EPA's December 21, 2016,
conditional approval for certain infrastructure provisions relating to
Massachusetts's NNSR air permit program to full approval. This action
is being taken under the Clean Air Act.

DATES: This rule is effective on June 28, 2019.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R01-OAR-2018-0829. All documents in the docket
are listed on the https://www.regulations.gov website. Although listed
in the index, some information is not publicly available, i.e., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available at https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA
Region 1 Regional Office, Air and Radiation Division, Air Permits,
Toxics, and Indoor Programs Branch, 5 Post Office Square--Suite 100,
Boston, MA. EPA requests that if at all possible, you contact the
contact listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
legal holidays.

FOR FURTHER INFORMATION CONTACT: Eric Wortman, Office of Ecosystem
Protection, U.S. Environmental Protection Agency, EPA Region 1, 5 Post
Office Square--Suite 100 (Mail Code 05-2), Boston, MA 02109--3912, tel.
(617) 918-1624, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background and Purpose
    A. NNSR SIP Revisions and the EPA's December 21, 2016
Conditional Approval
    B. NNSR Certification for 2008 Ozone NAAQS
II. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On February 14, 2019, the EPA published a Notice of Proposed
Rulemaking (NPRM) for the Commonwealth of Massachusetts. See 84 FR
4021. The NPRM proposed approval of several revisions to the
Commonwealth's NNSR permit program to address the relevant issues
identified in the EPA's December 21, 2016 conditional approval of the
Commonwealth's infrastructure SIP for the 1997 ozone, 2008 lead, 2008
ozone, 2010 nitrogen dioxide (NO2), and 2010 sulfur dioxide
NAAQS. As a result of the proposed approval of the NNSR permitting
revisions, the EPA also proposed to convert the December 21, 2016
conditional approval to a full approval for Clean Air Act (CAA) section
110(a)(2)(D)(i)(II). In addition, the NPRM proposed to approve the
Commonwealth's NNSR certification as sufficient for addressing the NNSR
requirements for the 2008 ozone NAAQS for the Dukes County
Nonattainment Area. The formal SIP revision was submitted by
Massachusetts on February 9, 2018.

A. NNSR SIP Revisions and the EPA's December 21, 2016 Conditional
Approval

    On December 21, 2016, the EPA published a final conditional
approval for Massachusetts's June 6, 2014 infrastructure SIP submittal
for the 1997 ozone, 2008 lead (Pb), 2008 ozone, 2010 NO2,
and 2010 sulfur dioxide (SO2) NAAQS. See 81 FR 93627. This
rulemaking identified that a provision under section
110(a)(2)(D)(i)(II) of the CAA was not included in the Commonwealth's
June 6, 2014 SIP submittal. Among other things, section
110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any
source or other type of emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state. The EPA sometimes refers to this
requirement under subsection 110(a)(2)(D)(i)(II) as ``prong 3.'' To
address the conditional approval for prong 3, on February 9, 2018, the
MassDEP submitted regulatory provisions for approval into the
Commonwealth's SIP. As explained in the NPRM, the revisions addressed
the NNSR requirements that would make the Commonwealth's NNSR program
applicable to sources regardless of the attainment status of the area
where the source is located. These revisions were necessary because
Massachusetts is located in the Ozone Transport Region (OTR).\1\
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    \1\ CAA section 184 details specific requirements for a group of
states (and the District of Columbia) that make up the OTR. States
in the OTR are required to mandate a certain level of emissions
control for the pollutants that form ozone, even if the areas in the
state meet the ozone standards. Thus, NNSR permitting requirements
apply statewide, even if the state is designated attainment for the
ozone NAAQS.
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B. NNSR Certification for 2008 Ozone NAAQS

    Dukes County in Massachusetts was designated nonattainment for the
2008 8-hour ozone NAAQS on July 20, 2012 using 2009-2011 ambient air
quality data. See 77 FR 30088 (May 21, 2012). At the time of
designation, Dukes County was classified as a marginal nonattainment
area. On March 6, 2015, the EPA issued a final rule entitled,
``Implementation of the 2008 National Ambient Air Quality Standards for
Ozone: State Implementation Plan Requirements'' (SIP Requirements
Rule), which established the requirements that state, tribal, and local
air quality management agencies must meet in developing implementation
plans for areas where ozone concentrations exceed the 2008 8-hour ozone

NAAQS.\2\ See 80 FR 12264. Areas that were designated as marginal
nonattainment areas for the 2008 8-hour ozone NAAQS were required to
attain no later than July 20, 2015, based on 2012-2014 monitoring data.
See 40 CFR 51.1103. The Dukes County nonattainment area attained the
2008 8-hour ozone NAAQS by July 20, 2015, and therefore on April 11,
2016, the EPA Administrator signed a final determination of attainment
for the 2008 8-hour ozone standard for the Dukes County nonattainment
area. See 81 FR 26697 (May 4, 2016).
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    \2\ The SIP Requirements Rule addresses a range of nonattainment
area SIP requirements for the 2008 ozone NAAQS, including
requirements pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control technology,
reasonably available control measures, major new source review,
emission inventories, and the timing of SIP submissions and of
compliance with emission control measures in the SIP. The rule also
revokes the 1997 ozone NAAQS and establishes anti-backsliding
requirements.
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    Based on initial nonattainment designations for the 2008 8-hour
ozone standard, as well as the March 6, 2015 final SIP Requirements
Rule, Massachusetts was required to develop a SIP revision addressing
certain CAA requirements for the Dukes County nonattainment area, and
submit to the EPA an NNSR Certification SIP or SIP revision no later
than 36 months after the effective date of area designations for the
2008 8-hour ozone NAAQS (i.e., July 20, 2015).3 4 Because
Massachusetts already has a NNSR program that applies statewide,
Massachusetts can certify the adequacy of its existing NNSR program
with respect to the 2008 ozone NAAQS for the Dukes County nonattainment
area.\5\ See 40 CFR 51.1114.
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    \3\ Where an air agency determines that the provisions in or
referred to by its existing EPA approved SIP are adequate with
respect to a given infrastructure SIP element (or sub-element) even
in light of the promulgation of a new or revised NAAQS, the air
agency may make a SIP submission in the form of a certification.
This type of infrastructure SIP submission may, e.g., take the form
of a letter to the EPA from the Governor or her/his designee
containing a ``certification'' (or declaration) that the already-
approved SIP contains or references provisions that satisfy all or
some of the requirements of section 110(a)(2), as applicable, for
purposes of implementing the new or revised NAAQS.
    \4\ Massachusetts's obligation to submit the NNSR Certification
SIP was not affected by the D.C. Circuit Court's February 16, 2018
decision on portions of the SIP Requirements Rule in South Coast Air
Quality Mgmt. Dist. v. EPA.
    \5\ Massachusetts's February 9, 2018 certification of adequacy
that the SIP meets the NNSR requirements for the 2008 ozone NAAQS
relies on the inclusion of the SIP revisions approved in this
action.
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    On February 3, 2017, the EPA found that 15 states (including the
Commonwealth of Massachusetts) and the District of Columbia failed to
submit SIP revisions in a timely manner to satisfy certain requirements
for the 2008 8-hour ozone NAAQS that apply to nonattainment areas and/
or states in the ozone transport region.\6\ See 82 FR 9158. MassDEP
submitted its February 9, 2018 SIP revision to address the specific
NNSR requirements for the 2008 8-hour ozone NAAQS, located in 40 CFR
51.160-165, as well as its obligations under the EPA's February 3, 2017
Findings of Failure to Submit.
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    \6\ States have three years after the effective date of
designation for the 2008 8-hour ozone NAAQS to submit SIP revisions
addressing NNSR for their nonattainment areas. See 40 CFR 51.1114.
Massachusetts's SIP revision certified that its SIP-approved state
regulation addressing nonattainment new source review for all new
stationary sources and modified existing stationary sources in the
Commonwealth exceeds the requirements of section 182(a)(2)(C) for
the 2008 8-hour ozone NAAQS. However, EPA does not believe that the
two-year deadline contained in CAA section 182(a)(2)(C) applies to
NNSR SIP revisions for implementing the 8-hour ozone NAAQS. See 80
FR 12264, 12267 (March 6, 2015); 70 FR 71612, 71683 (November 29,
2005). The submission of NNSR SIPs due on November 15, 1992,
satisfied the requirement for states to submit NNSR SIP revisions to
meet the requirements of CAA sections 172(c)(5) and 173 within two
years after the date of enactment of the 1990 CAA Amendments. Id.
---------------------------------------------------------------------------

    Other specific requirements of the Commonwealth's NNSR SIP
revisions and NNSR certification, and the rationale for EPA's proposed
action, are explained in the NPRM and will not be restated here. No
public comments were received on the NPRM.

II. Final Action

    The EPA's review of MassDEP's February 9, 2018 SIP submittal
indicates that the submittal satisfies the requirements of the CAA and
is appropriate for inclusion into the SIP. The EPA therefore is
approving the SIP revisions submitted by MassDEP. Also, as a result of
our approval of the NNSR permitting revisions in this action, the EPA
is converting the December 21, 2016 conditional approval to a full
approval for prong 3 of CAA section 110(a)(2)(D)(i)(II). Other aspects
of EPA's December 21, 2016 conditional approval will be addressed in
other actions.
    The EPA is also approving MassDEP's February 9, 2018 SIP revision
addressing the NNSR requirements for the 2008 ozone NAAQS for the Dukes
County Nonattainment Area. The EPA has concluded that MassDEP's
submission fulfills the 40 CFR 51.1114 revision requirement, meets the
requirements of CAA sections 110 and 172 and the minimum SIP
requirements of 40 CFR 51.165, as well as its obligations under the
EPA's February 3, 2017 Findings of Failure to Submit relating to
submission of a NNSR certification.

III. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of
Massachusetts's 310 CMR 7.00: Appendix A as described in the amendments
to 40 CFR part 52 set forth below. The EPA has made, and will continue
to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information). Therefore, these materials have
been approved by EPA for inclusion in the State implementation plan,
have been incorporated by reference by EPA into that plan, are fully
federally enforceable under sections 110 and 113 of the CAA as of the
effective date of the final rulemaking of EPA's approval, and will be
incorporated by reference in the next update to the SIP compilation.\7\
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    \7\ 62 FR 27968 (May 22, 1997).
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IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     This action is not an Executive Order 13771 regulatory
action because this action is not significant under Executive Order
12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 29, 2019. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Sulfur oxides, Volatile organic compounds.

    Dated: May 19, 2019.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
    Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart W--Massachusetts

Sec.  52.1119   [Amended]

0
2. Section 52.1119 is amended by removing and reserving paragraph
(a)(4).
0
3. Section 52.1120 is amended:
0
a. In the table in paragraph (c), by revising the entry for ``310 CMR
7.00, Appendix A''; and
0
b. In the table in paragraph (e), by adding entries for
``Infrastructure SIP for the 1997 Ozone NAAQS'', ``Infrastructure SIP
for the 2008 Lead NAAQS'', ``Infrastructure SIP for the 2008 Ozone
NAAQS'', ``Infrastructure SIP for the 2010 NO2 NAAQS'', and
``Infrastructure SIP for the 2010 SO2 NAAQS'' at the end of
the table.
    The revision and additions read as follows:

Sec.  52.1120   Identification of plan.

* * * * *
    (c) * * *

                                     EPA Approved Massachusetts Regulations
----------------------------------------------------------------------------------------------------------------
                                                     State effective   EPA approval date
         State citation            Title/subject           date               \1\              Explanations
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
310 CMR 7.00, Appendix A.......  Emission Offsets   October 22, 1999.  May 29, 2019       Approves revisions for
                                  and                                   [Insert Federal    consistency with
                                  Nonattainment                         Register           underlying federal
                                  Review.                               citation].         regulations that make
                                                                                the Commonwealth's
                                                                                SIP-approved NNSR
                                                                                program applicable to
                                                                                certain sources of
                                                                                NOX and VOC
                                                                                statewide.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ To determine the EPA effective date for a specific provision listed in this table, consult the Federal
  Register notice cited in this column for the particular provision.

* * * * *
    (e) * * *

                                          Massachusetts Non Regulatory
----------------------------------------------------------------------------------------------------------------
                                     Applicable
   Name of non regulatory SIP      geographic or     State submittal   EPA approved date
           provision               nonattainment      date/effective          \3\              Explanations
                                        area               date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Infrastructure SIP for 1997      Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 Ozone NAAQS.                                                           [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                110(a)(2)(D)(i)(II)
                                                                                which were
                                                                                conditionally
                                                                                approved on December
                                                                                21, 2016 are now
                                                                                fully approved.
Infrastructure SIP for 2008      Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 Lead NAAQS.                                                            [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                110(a)(2)(D)(i)(II)
                                                                                which were
                                                                                conditionally
                                                                                approved on December
                                                                                21, 2016 are now
                                                                                fully approved.
Infrastructure SIP for 2008      Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 Ozone NAAQS.                                                           [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                110(a)(2)(D)(i)(II)
                                                                                which were
                                                                                conditionally
                                                                                approved on December
                                                                                21, 2016 are now
                                                                                fully approved.
Infrastructure SIP for 2010 NO2  Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 NAAQS.                                                                 [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                110(a)(2)(D)(i)(II)
                                                                                which were
                                                                                conditionally
                                                                                approved on December
                                                                                21, 2016 are now
                                                                                fully approved.
Infrastructure SIP for 2010 SO2  Statewide........  February 9, 2018.  May 29, 2019       Certain aspects
 NAAQS.                                                                 [Insert Federal    relating to PSD for
                                                                        Register           prong 3 of CAA
                                                                        citation].         section
                                                                                110(a)(2)(D)(i)(II)
                                                                                which were
                                                                                conditionally
                                                                                approved on December
                                                                                21, 2016 are now
                                                                                fully approved.
----------------------------------------------------------------------------------------------------------------
\3\ To determine the EPA effective date for a specific provision listed in this table, consult the Federal
  Register notice cited in this column for the particular provision.

[FR Doc. 2019-10875 Filed 5-28-19; 8:45 am]
 BILLING CODE 6560-50-P