Document 10n1EK8kKjGMMb9X7nvxVxE5q

226152 '.' Federal Register / Vol. 51, No. 119 / Friday, June 20, 1980 / Rules and Regulations Table-10.--Estimated Number of Workers Exposed and Asbestos Exposure Levels in the Construction Industry--Contin ued Sector - Estimated No. ot workers exposed Mean 8- hour TWA exposue levels (f/cc) Routine maintenance br com mercial end residential buikJings........ ...... ........... ................ Routine maintenance in general industry............ ...................... Total...... ......................... 217.745 259.643 746,228 0.29 0.51 Sources: RTI (Exhibit 473); Building Ownors Survey (Ex. 94-474); Consad Phase > Report (Ex. 84-474): end 1982 Census of Constructioa Technological Feasibility Introduction This analysis determines the extent to which it is currently feasible to reach a permissible exposure limit (PEL) of 0.2 fibers per cubic centimeter during affected work operations without the use of respirators. The information in the public record provides the basis for OSHA's determination that a PEL of 0.2 f/cc for an 8 hour time-weighed average (TWA) can be achieved, with a few exceptions, across the asbestosproducts manufacturing industry. Exposure data indicate that some: of the plants in this industry have combined engineering cohtrols and prudent work practices to reach exposure levels below 0.2 f/cc. OSHA recognizes that some data show the current difficulties of reaching a 0.2 f/cc TWA, but OSHA believes compliance with the new PEL will become increasingly feasible in these operations. In the construction. industry, the data show the capability of meeting, the PEL in most operations by the conscientious application of engineering and work practice controls. Based bn this analysis, OSHA has determined that compliance with the 0.2 f/cc PEL is feasible in most industries most of the time through the use of wet methods; engineering controls, and good housekeeping practices. There' are some operations, however, for which compliance through the use of engineering controls and work practices alone does not appear feasible at this, time. These situations are usually due to the inability of the operation to use wet methods (e.g., textiles, nuclear rip-out, building repair, etc.), and the volume of dust generated (e.g., cutting operations for A/C pipe and sanding A/C sheet). During these operations, therefore, respiratory protection must also be used until employers apply current technology more effectively or apply new technology to the control of asbestos dust. General Considerations Claims about technological feasibility As stated above. OSHA based its conclusion about the technological feasibility of the 0.2 f/cc level on the record evidence and data summarized later in this section. The following discussion sets out the legal and policy framework for making these determinations. Section 6(b)(5) of the Occupational Safety and Health (OSH) Act provides that OSHA may promulgate standards to the extent that they are economically and technologically feasible. In meeting its statutory mandatte to set "feasible" standards. 0$HA is.guided by judicial review of 14 years of Agency standards setting. made by participants in the rulemaking supported all exposure levels considered in the proposal, from 0.1 f/cc to 0.5 f/cc. Participants advanced policy arguments and evidence in support of their positions..For example, the AFLCIO stated that the evidence showed that 0.1 f/cc was feasible for general industry to achieve primarily through engineering and work practice controls [see, for example, Exhibits 143 and 335).' However, as detailed in the specific industry sector discussions, the evidence indicates that the 0.1 f/cc level is not currently feasible in most dry operations in manufacturing and secondary processing of asbestos products. In the construction activities According to the Supreme Court, of renovation and major abatement, a ' requirements may be imposed up to the proponent of a 0.1 f/cc level for limits of what is "technologically construction agrees with OSHA that achievable." /American Textile Mfgs. supplemental respirator use will be Institute et al. 452 U.S., fn. 34,1981 necessary to meet that lower level [see OSHA sec. 25,457.) Accordingly, OSHA Exhibit 330). Therefore, OSHA has may promulgate standards which can be determined that a 0.1 f/cc may not be met most of the time by the achievable in most operations without technologically advanced plants in an routine respirator use. industry. [See e.g.. American-Iron and In contrast, other participants Steel Inst, vsrOSHA ,577 F. 2d 825, 932- . contended that a 0.2 f/cc'level was 35 (3d Cir. 1978).) [Ibid. 5717 F. 2d at technologically infeasible in most 835.) Current exposure levels in such manufacturing industries and, therefore, technologically advanced plants may that a 0.5 f/cc should be designated as meet the PEL only one some measured the PEL. Proponents ofa 0.5 f/cc PEL did days, yet that level may be considered not dispute reports of the levels of feasible [Ibid-, 577 F. 2d. at 835). In exposure currently being achieved in addition, in cases where data show the such industries. In fact, the major current industry exposure levels are in proponent of the 0.5 f/cc level, the excess of the new PEL, the new PEL is. Asbestos Information Association of nevertheless, determined to be North America (AIA/NA) agreed that technologically feasible if substantial "OSHA's proposed PEL of 0.2 f/cc is evidence exists to show that companies close to the center of the best acting in good faith can develop the achievable exposure range for most . necessary technology to reach the new manufacturing workplaces [see Exhibit PEL |United Steelworkers, 647 F. 2d at 312 A). Additionally. AIA-projects that 1269,1272). the incentive effect of a new reduced The D.C. Circuit has explained that PEL will result in "long term average the purpose served by OSHA's'industry exposures to typical asbestos product wide feasibility determination is to manufacturing workers . . y in the create "a general presumption of neighborhood of 0.1 f/cc or below." ALA feasibility for an industry . , . [is] that industry can meet the PEL without relying on respirators" (647 F. 2d at further projects that "[e]ven employees . in the most difficult to control industry workplaces would not experience - 1296). In the case of asbestos. OSHA has average exposure levels above 0.2 f/cc" . determined based on this rulemaking [Exhibit 312 A). record and guided by this body of A1A objected to finding the 0.2 f/cc decisions that most industry sectors in level technologically feasible for two most operations most of the time will be reasons. First, AIA defined a "feasible" able to meet a time Weighted average exposure level as one in which an PEL of 0.2 f/cc primarily through the employer will have a 95 percent level of application of currently available confidence that exposures on any day- engineering and work practice controls. will not exceed the PEL. Therefore, Supplemental respirator use will be according to AIA, because airborne needed only occasionally. (Later, in this asbestos exposure levels fluctuate from section OSHA discusses on an industry day to day, setting a 0.5 f/cc PEL would sector basis more detailed reasons and be necessary to assure that employers evidence supporting these feasibility will not be subject to citation on. determinations.) unrepresentative "high" days. The GLEASON-000900