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Final Statement of Reasons for Rulemaking
Including Summary of Comments and Agency Responses
PUBLIC HEARING TO CONSIDER
THE PROPOSED ASBESTOS AIRBORNE TOXIC CONTROL MEASURE FOR CONSTRUCTION,
GRADING, QUARRYING AND SURFACE MINING OPERATIONS Public Hearing Date: July 27, 2001
Agenda Item No.: 01-6-7
TABLE OF CONTENTS I. GENERAL 1 II. MODIFICATIONS MADE TO THE ORIGINAL PROPOSAL 2 General Exemptions (subsection (c)) 3 Requirements for Road Construction and Maintenance (subsection (d))
3 Air Monitoring for Asbestos (subsection (g) 4
Definitions (subsection (i)) 4
Structural and Organizational Changes to the ATCM 4 Non-substantial or Solely Grammatical modifications Made After the
Close of
the 15-Day Comment Period 5
III. SUMMARY OF COMMENTS AND AGENCY RESPONSES 5
Responses to Comments Received During the 45-day Public
Comment Period 5 1. ATCM Development Process 9
2. ATCM Implementation 18
3. ATCM Focus/Rock Type 21
4. Recordkeeping and Reporting 28
5. Road Construction and Maintenance 30
6. ATCM Definitions 34
7. Economic Impacts 35
8. Test Methods 38
9. Geologic Exemption 40
10. General Exemptions 43
11. Exemptions - Remote Locations 48
12. Visible Emissions 51
13. Signing 56
14. Health Effects 58
15. Supporting Data 64
16. Ambient Monitoring 69
17. Maps 78
18. Asbestos Dust Mitigation Plan 78
19. Off-site Transport 83
20. Environmental Impact Analysis 85
A. General Comments on the CEQA Requirements 85 B. Potential Water Impacts 92
C. Potential Impacts of Increased Electricity Use
98
D. Potential Air Quality Impacts 99 21. General 105
22. Support Comments 113
Responses to Comments Received During the 15-day Comment
Period 114 C. Responses to Comments Made By the Office of Small Business
Advocate and the Trade and Commerce Agency 123
State of California
AIR RESOURCES BOARD Final Statement of Reasons for Rulemaking,
Including Summary of Comments and Agency Responses
PUBLIC HEARING TO CONSIDER THE PROPOSED
ASBESTOS AIRBORNE TOXIC CONTROL
MEASURE FOR CONSTRUCTION, GRADING, QUARRYING, AND SURFACE MINING OPERATIONS Public Hearing Date: July 27, 2001
Agenda Item No.: 01-6-7 I. GENERAL On July 27, 2001, the Air Resources Board (ARB or Board) conducted a
public hearing to consider an Asbestos Airborne Toxic Control Measure
(ATCM) for Construction, Grading, Quarrying, and Surface Mining Operations:
contained in section 93105, title 17, California Code of Regulations (CCR).
The ATCM will require dust mitigation measures when construction, grading,
quarrying, and surface mining operations are carried out in areas where
naturally-occurring asbestos is found or is likely to be found. The Staff
Report: Initial Statement of Reasons for the Proposed Asbestos Airborne
Toxic Control Measure for Construction, Grading, Quarrying, and Surface
Mining Operations, released to the public on June 8, 2001 (staff report),
is incorporated by reference herein. At the July 27, 2001, hearing, the
Board approved the proposed ATCM with various modifications. The
modifications made to the ATCM were made available for a 15-day public
comment period from December 19, 2001, to January 15, 2002. This Final
Statement of Reasons for Rulemaking (FSOR) updates the staff report by
identifying and explaining the modifications that were made to the original
proposal. The FSOR also summarizes the written and oral comments received
during the 45-day comment period preceding the July 27, 2001, public
hearing, the hearing itself, and the 15-day comment period for proposed
modifications, and contains the ARB's responses to those comments.
In 1990, the Board adopted an Asbestos ATCM for Asbestos-Containing
Serpentine. The 1990 Asbestos ATCM prohibited the use of serpentine
aggregate on unpaved surfaces if the asbestos content is greater than five
percent. Information from ambient air monitoring studies and dust emission
models developed since the adoption of the 1990 ATCM demonstrates a
potential for elevated exposures and risks for individuals living near
unpaved roads surfaced with asbestos-containing aggregates and from
construction, grading, and mining activities carried out in areas where
naturally-occurring asbestos is found. In 2000, the Board approved
amendments to the 1990 ATCM for surfacing applications. The amendments
prohibited the use of aggregate most likely to contain asbestos in unpaved
surfacing applications unless the asbestos content is measured and found to
be less than 0.25 percent. In 2001, ARB staff proposed the current
rulemaking action: the Asbestos ATCM for Construction, Grading, Quarrying,
and Surface Mining Operations. The ARB has determined that the adoption of the Asbestos ATCM will
not impose a mandate upon or create costs or savings, as defined in
Government Code section 11346.5(a)(6), to any school district. However,
the ARB has determined that the adopted regulatory action will impose a
mandate upon and create costs to local agencies (i.e., the local air
pollution control and air quality management districts; the "districts").
The costs to the districts can be fully recovered by fees that are within
the districts' authority to assess under Health and Safety Code sections
42311 and 40510. In other words, the districts have the authority to levy
service charges, fees, or assessments sufficient to pay for the program or
level of service within the meaning of section 17556 of the Government
Code. Therefore, the Executive Officer has determined that the adoption of
this regulatory action imposes no costs on local agencies that are required
to be reimbursed by the State pursuant to Part 7 (commencing with section
17500), Division 4, Title 2 of the Government Code, and does not impose a
mandate on local agencies that is required to be reimbursed pursuant to
Section 6 of Article XIII B of the California Constitution. The Air Resources Board (ARB) has determined that no reasonable
alternative considered by the agency or that has otherwise been identified
and brought to the attention of the agency would be more effective in
carrying out the purpose for which the regulatory action was proposed, or
would be as effective and less burdensome to affected private persons or
businesses, than the action taken by the ARB.
II. MODIFICATIONS MADE TO THE ORIGINAL PROPOSAL
Various modifications to the original proposal were made to address
comments received during the 45-day public comment period, and to clarify
the regulatory language. These modifications are described below. A
"Notice of Public Availability of Modified Text," together with a copy of
the modified sections of the Asbestos ATCM, was mailed on December 19,
2001, to each of the individuals described in subsections (a)(1) through
(a)(4) of section 44, Title 1, CCR. Additionally, this notice was made
available on ARB's website. By these actions, the modified Asbestos ATCM
was made available to the public for a comment period from December
19, 2001, to January 15, 2002, pursuant to Government Code section 11346.8.
To be consistent with the terminology customarily used for rulemaking
actions, the FSOR will refer to this comment period as the "15-day comment
period" even though a total of 27 days was actually allowed for public
comment because the Christmas and New Years holidays occurred during the
comment period, and staff wanted to provide the public with some extra
time. Responses to comments made during the 15-day comment period for
these modifications are presented in Section III of this FSOR. After the
close of the 15-day comment period, the Board's Executive Officer
determined that no additional modifications should be made to the Asbestos
ATCM with the exception of the non-substantial or solely grammatical
modifications described below. The Executive Officer subsequently issued
Executive Order G-02-026, which adopted the proposed Asbestos ATCM.
General Exemptions (subsection (c))
The term "naturally-occurring asbestos" was deleted from subsection (c)(1)
to avoid any confusion about the intent of the geologic exemption. The
geologic exemption is not intended to allow an area with ultramafic rock to
receive an exemption based on a claim that there is no naturally-occurring
asbestos in the ultramafic rock. The originally proposed language was
intended to allow an exemption for an area that contains no ultramafic rock
(even though the map indicates that the area is located in a geographic
ultramafic rock unit) or any known deposits of naturally-occurring
asbestos. However, because of the concern on the part of some that this
language was confusing, and because subsection (b)(2) makes the regulation
applicable if naturally-occurring asbestos is known to occur outside of a
geographic ultramafic rock unit, staff made this modification to the
regulatory language