Document 99j63en1JYdkpZzXzwo6jDmb3

A TO: EOIC Executive Committee Interoffice Communlcotl n FROM: DATE: SUBJ: T. G. Grumbles August 8, 1989 OSHA PROPOSED RULE: METHODS OF COMPLIANCE The subject rule has multiple questions and requests for comments and/or data regarding the use of respiratory protection for compliance with occupational exposure limits. Specifically, there are many references to the EO EL rulemaking record regarding the use of respirators to comply with the 5.0 ppm EL. I believe EOIC needs to comment on at least the EO specific issues, particularly the use of respirators for EL compliance, as well as some of the general issues raised. I've attached a copy of the proposal with the question raised by OSHA numbered in the margins. I believe we need to comment on at least the following: 1, 2, 4, 7, 8, 10, 13, 14, 15, 17, 20, 22, and 25. These questions deal with the cost/benefits of respirator use, specific jobs where respirators can be used solely, and additional data to support specific changes to the Ethylene Oxide standard. We need to review our comments in the EL rulemaking records and determine what we believe we could add to reemphasize our prior position or new information to address OSHA's questions. % T. G. Grumbles dlj cc's: R. Romano S. Schotland VEU-325820 F deral Register / Vol. 54. No. 106 / Monday, June S. 1989 / Proposed Rules 2 23991 from the Superintendent of Documents, U.S. Government Printing Office, Washington. DC 20402, Stock No. 050001-00308-2. The FHWA both receives and initiates requests for amendments to the MUTCD. The MUTCD is a promulgation of uniform national traffic control devices standards and applications for use on all streets and highways open to public travel regardless of type or class or the governmental agency having Jurisdiction. Issued on: May 30,1989. R. D. Morgan, Executive Director. {FR Doc. 89-13280 Filed 8-2-89:8:45 am] aaiiNO code esw-a-M DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. H-160J RIN 1216-AA28 H alth Standards; Methods of Compliance aqencv; Occupational Safety and Health Administration (OSHA), Labor. action: Proposed rule. summary: By this notice the Occupational Safety and Health Administration (OSHA) proposes to modify the existing provisions for controlling employee exposures to toxic substances found in 29 CFR 1910.1000(e) and 29 CFR 1910.134(a)(1). The Agency proposes to incorporate additional flexibility in its methods of compliance requirements by more explicitly setting forth the circumstances under which respiratory protection may be used in lieu of engineering controls. While some additional approaches are not reflected in actual proposed regulatory language, comment is requested on the appropriateness of addressing all of the various areas discussed by this notice in a final methods of compliance rule.*This action is being taken based on data the Agency has received in response to an Advance Notice of Proposed Rulemaking (ANPR) published in February. 1983 (48 FR 7473) that solicited Comment on its policy relating to the use of engineering controls and respirators and on data found in OSHA's 6(b) rulemaking records addressing the methods of compliance issue (Ex.4). Notice is also given, herein, that certain modifications to the compliance requirements with respect to short-term exposures in the recently promulgated standards for benzene (52 FR 34460), formaldehyde (52 FR 46168), and ethylene oxide (53 FR 11414) may result from this rulemaking. date: Comments and requests for a hearing should be submitted by October 3,1989. ADDRESSES: Comments should be submitted in quadruplicate to the Docket Officer, Docket No. H-160, Room N3870, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington. DC 20210. Requests for a hearing should be submitted in quadruplicate to Mr. Tom Hall, OSHA. Division of Consumer Affairs, Docket No. H-160, Room N3837, U.S. Department of Labor, 200 Constitution Ave., NW,, Washington, DC, 20210. FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, Occupational Safety and Health Administration. Office of Public Affairs, Room N-3649, U.S. Department of Labor, 200 Constitution Avenue. NW, Washington. DC 20210. Telephone: (2D2) 523-8151. SUPPLEMENTARY INFORMATION: I. Background OSHA's methods of compliance policy, first adopted by OSHA from national consensus standards in 1971, and subsequently included in OSHA substance specific health standards, requires that employers rely primarily on feasible engineering controls to prevent employee exposures from exceeding permissible levels. This requirement in particular, is stated in the OSHA Respiratory Protection Standard. 29 CFR 1910.134(a)(1), which applies to all exposures to airborne toxic substances, and in the Air Contaminant Standard. 29 CFR S 1910.1000(e), which applies to exposures to 800 substances listed in Tables Z-l. Z-2. and Z-3. Thus. 29 CFR 1910.1000(e) requires employers to first implement engineering and administrative controls to comply with the permissible exposure limits for substances listed in the above Tables. Similar language appears in OSHA's generic respirator standard which set forth the condition? of respirator use required to protect the health of employees. (29 CFR 1910.134(a)(1)). These standards were adopted without full rulemaking proceedings to allow OSHA to quickly put into place a body of workable regulations, pursuant to section 6(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655 et seq). This methods of compliance policy has also been incorporated in every health standard adopted pursuant to section 6(b) of the Act after OSHA's evaluation of the related rulemaking records. All substance specific health standards (except for the 13 carcinogen standards, 29 CFR 1910.1003-1016. which mandate specific engineering controls) and the carcinogen policy (29 CFR Part 1990) recite a generalized preference for engineering and work practice controls. However, in each such standard OSHA has identified circumstances or operations where the record shows the infeasibility or impracticably of installing engineering controls and has allowed reliance on respiratory protection as well However, the generic standards, 29 CFR 1910.1000(e) and 134(a)(1). do not set out most of these modifying circumstances in their regulatory texts. In certain recognized situations and conditions under OSHA's substance specific standards, engineering controls are not required and respirator use is permitted. For example, the following standards permit the use of respiratory protective devices during installation of feasible engineering controls, where engineering controls are not feasible, and where it is necessary to supplement engineering controls in order to achieve full compliance: asbestos, arsenic, lead, coke ovens, cotton dust. DBCP, acrylonitrile, and ethylene oxide. Other specific allowances for respirator use can be found in standards for arsenic (maintenance and repair), lead (for employees exposed less than 30 days per year), coke ovefts (maintenance and repair), acrylonitrile (maintenance, repair, and vessel cleaning), and ethylene oxide (collection of quality assurance samples, removal of biological indicators, loading and unloading of tank cars, changing ethylene oxide tanks, vessel cleaning, and maintenance and repair activities). These examples provide a clear indication of the Agency's realistic expectations with respect to the implementation of engineering controls and of the flexibility implied with respect to the meaning of "feasible engineering controls." In addition, in an enforcement context, it may be demonstrated that for specified operations engineering controls are infeasible. OSHA seeks comment on ( whether these specific types of v allowances should be explicitly built into the general methods-of-compliance provisions. OSHA's policy has been criticized by some as too inflexible, not cost- effective, often unnecessary for health UEU-325821 23992 Federal Register / Vol. 54. No. 106 / Monday, June 5. 1989 / Proposed Rules protection and outdated based on the argument that sufficient progress has "\ been made in respirator technology and / application to permit their use on a wider scale. In order to address these criticisms OSHA published an ANPR on February 22.1983, to solicit public comment on issues such as preference for engineering controls, comparative protectiveness of respirators and engineering controls, total costs of respirators and engineering controls, and the use of engineering controls even if such controls fail to reduce levels to below the PEL OSHA was also seeking information that would help the Agency to focus on three primary policy . considerations: The first consideration was health protection. It had been postulated that there may be many instances where respirators would provide protection to employees equivalent to engineering controls, and that their routine use should be permitted. The second consideration waa that respirator technology and use practices have progressed significantly since initial adoption of OSHA's compliance requirements in 1971. As a result of many of these advances, the consensus among many occupational health professionals concerning what . constitutes a reasonable effective m respirator program has changed. This point is demonstrated by the issuance of the American National Standards Institute (ANSI) Z-88.2-1980 standard, entitled "Practices for Respiratory Protection," a revision of the 1969 ANSI standard. In addition, improved respiratory protection programs are currently being addressed in a proposed revision of OSHA's respiratory protection standard [29 CFR 1910.134). It was suggested, therefore, that, in the presence of such programs, respirators would be capable of taking a more significant role in air contaminant protection than they have had before. The third consideration was costeffectiveness. There may be instances where the costs of engineering controls would exceed the expected costs of respiratory protection, and where the routine use of respirators may provide adequate employee protection. Should such instances exist, reasonable allowances for the use of respiratory protection should be made. For the foregoing reasons, it was felt to be timely and appropriate to reexamine OSHA's policy on methods of compliance. Over 135 ANPR comments were received, with a wide range of responses from industry, labor, health organizations, and others. In addition, rulemaking records from other standards which OSHA has promulgated have been re-examined and relevant exhibits have been placed in this record. Labor unions opposed any change in the role of respirators in current programs. In addition, NIOSH. and Los Alamos and Lawerence Livermore research laboratoriei, highly respected for their expertise and experience in exposure control technology, also opposed changing the existing policy. The preponderance of data in this and other rulemaking records (ethylene oxide, cotton dust, DBCP, acrylonitrile, arsenic, lead, asbestos, cancer policy) support the industrial hygiene principle that engineering controls, where feasible, ere more effective in controlling exposure than other means. Commenters representing unions, (253.2-102,2-122,2-88), universities (2 120), research organizations (2-128,2138, 2-131,2-81), and health associations (2-89). contended that the requirement to implement feasible engineering controls should be. maintained. Industry representatives that acknowledged the superiority of feasible engineering controls include AT&T (2-59), DOW (2-71), Monsanto (288), and ALCOA (2-103). These commenters agreed that engineering controls provide reliable and consistent levels of protection to a large number of workers end are not dependent on individual human performance. Data submitted to the record support this assertion. Performance of engineering controls can be monitored continually, inexpenaively, and can be predicted at the design stage. As stated by DOW. "The primacy of engineering controls for controlling exposure is an accepted principle of occupational health" (2-71). AT&T commented that "Engineering controls should always be given primary consideration" (2-59). Los Alamos' Industrial Hygiene Group has stated. That * * * there are no analytical result* to indicate that respiraton offer equal or belter protection than engineering controla and with very few exception! * * * respirators simply cannot offer the eame degree and reliability of protection to employee!, as properly designed and operated engineering control* (2-131). The University of North Carolina commented that: All industrial hygiene practice indicate* feasible engineering controls should take precedence * * * (Ex, 3-120). ALCOA, addressing the reliability of engineering controls and respirators, provided the following; Engineering controls generally provide better and more reliable methods of protecting employee health * * * Improperly wearing respirator* can be a continual problem. While we believe this occur* less then 5% of the time in many of our plant*, we expect it occur* more frequently in some plants--possibly in the order of 30* or more of the time. (Ex. 2-103). Many industry commenters, however, called for increased flexibility in OSHA'a compliance policy: still others for abandonment of the preference for engineering controla. For example, the Chemical Manufacturers Association . stated (Ex. 2-72), in response to the question of whether OSHA ahould require the use of feasible engineering controls "in preference" to the use of ' respirators, at follows: As long as the employer meet* a permissible exposure limit (PEL), controls the skin contact or meets the appropriate biological level* that ere consistent with employee health and safety. OSHA should not require any specific control strategy (sic]. Meent for achieving such standard* will often involve engineering controls and the uae of respiraton as well as administrative and work practice controls. Method* of reducing exposure to the desired level will be different in each workpiece and the combination of engineering, adminittrative,and work practice controls and use of respirators should be left to the employer. Representing a broad cross section of industry, the National Association of ' Manufacturers (Ex. 2-81] similarly stated, arguing that OSHA's current methods policy was actually counterproductive to worker safety and health, as followa; The threshold question is whether current OSHA standards requiring employer* to implement feasible engineering controls to maintain air contaminant* in the workplace to within prescribed permissible exposure limits and permitting engineering control* ore not feasible, not yet installed, or are . inadequate is conducive to the "most effective" protection of workplace health. It is the NAM'S belief that almost exclusive reliance on engineering controls while not accounting for situational variations is neither the most effective approach nor in the best interest of overall worker protection. FAv professional* in industry would argue that engineering controls ere not the "ideal'' means for the elimination or mitigation of workplace hazards. However, ideal solutions rarely work as well as expected in practice and practical concerns must also be considered. These practical concerns include ell hazards rather than a tingle hazard end mutt ba viewed in relation to and interacting with a total workplace aefety and health program. Under this total program, the ideal solution for the control of one hazard may likely limit an employer's ability to addreat the remaining segments of the program. Thus, preference for one form of control over another, unmindful of the variables involved. i V gEM-325822 5 Federal Register / Vol. 54. No. 106 / Monday. June 5, 1989 / Proposed Rules__________ 23993 we believe. is counterproductive to the effectiveneti of a balanced and truly effective overall aafety and health program. For thli reason,`the feasibility of an engineering control should not be the aole determinant of it* use and OSHA policy should not reflect this short-sighted goal. Specific companies reflected similar concema. Thus, the DOW Chemical Company (Ex. 2-71] noted: The prime concern In any reconsideration of the methods-of-compliance provisions must be maintenance of safety and health protection for employees to prevent workrelated injuries, illness end death. Such protection cannot be achieved by mandating a hierarchy of control techniques. Dow recommend* that OSHA delete or modify any mandatory preference to allow employers greater flexibility to use their professional judgment to determine th* balance of engineering controls, work practices, operator training and personal protective equipment that is most effective for them in achieving the appropriate level of protection. Another major chemical company, Du Pont emphasized the effectiveness of respirators together with the need for greater flexibility: Much has changed since the current methods of compliance policy wea adopted. Deta obtained from research on the performance of respirator* In the workplace, much of it performed by DuPont land strong support to the conclusion that respirator* provide reliable employee protection when used in a good respirator program. Recent research on workplace protection factor* demonstrate! that respirators provide effective control for exposure to airborne chemicals when they are used correctly in a good respirator program. In many cases they provide the most cost effective mean* of control. Accordingly. DuPont believe* thst respirator*, like engineering and administrative controls, htve a proper role to play in the protection of employee's. Therefore. DuPont recommends that each employees personal work environment be maintained at a safe exposure level through Implementation of cost-effective engineering control* sugmented as necessary by personal protective equipment and/or work practice control*. The choice of methods should depend on the factors In each specific situation. ** The choice of the proper method(s) of compliance involve*, therefore, far more than the simple dichotomy of engineering control* versus respirators. For this reason, the question "Which are better, engineering controls or respiratorsT" cannot b* satisfactorily answered in the abstract. As the Information and comments offered by Du Pont in the enclosure will indicate, the choice of the proper method(s) of compliance is best made on an individualized basis by industrial hygiene professional*. So long a* the two criteria identified above have been met, an employer should not be needlessly contrained from choosing the control strategy the) make* sense for hi* particular operation. Atlantic Richfield Company JEx. 2-80], In endorsing comments submitted by the American Petroluem Institute (Ex. 2-73], noted: Employer* should have the option to select a protective control strategy rather than being mandated to adhere to the current rigid hierarchy of exposure controls. The ultimate goal of any control strategy must be the adequate protection of worker* exposed to contaminants. Varying control strategies will achieve that goal at least equally wall, and often more co*t-efleelively, as the fixed controls provided by current policy. In eupport of this recommendation we want to emphasize that the statutory language of the OSH Act does not mandate the primacy of engineering controls. Support for this conclusion is fully developed in API's comments. OSHA should recognize the significant advance* in both technology ana applicability of respirators in the last decade. New method* and procedures for fit-testing and respirator fit reliability have been developed. Other commenters expressed similar concerns. (See Cast Metals Federation (Ex. 2-49], Horston Lighting & Power (Ex. 2-21], the American Gas Association [Ex. 2-77], SCM Corporation [Ex. 2-21], and National Agricultural Chemicals Association (Ex. 2-77], National Paint and Coatings Association. Inc. (Ex. 2-78J. Motor Vehicles Manufacturers Association [Ex. 2-95], and The Health Industries ' Manufacturers Association [Ex. 2-110]. This rulemaking does not address the assessment and reduction of any absolute existing risks but rather addresses the possible change in risk abatement associated with the use of respirators instead of engineering controls. The nature of the risks involved concerns differences in degree of protection between respirators and engineering controls as applied in various types of work situations involving different air contaminants. The Proposal OSHA proposes to modify its existing requirements in 29 CFR 1910.1000(e) ana 134(a)(1) that specify primary reliance on feasible engineering and work practice controls, by further clarifying the circumstances, based on experience with OSHA's 6(b) standards and data and information submitted for the record, under which more extensive use of respirators may be appropriate. The record does identify specific situations where engineering controls generally may not be feasible, and where respirators may have to be used (Exa. 2-51, 2-72, 2-131). OSHA. therefore, is proposing to specify five seta of circumstances where there will be no need for employers to show that engineering and work practice controls are not feasible before an employer can rely on respirator* to reduce employee exposure to required levels. In large part, these circumstances reflect the current application of the two standards involved and circumstances recognized in substance-specific standards. By setting out explicit situations OSHA hopes to make future application of the methods of compliance policy more uniform and understandable. It Is noted that provisions adopted under this standard will not change the compliance provisions found in OSHA's existing substance specific standards with the possible exceptions of the STEL provisions in the ethylene oxide (29 CFR 1910.1047). benzene (29 CFR 1910.1028) and formaldehyde (29 CFR 1910.1048) standards. The preamble to those standards indicated that if evidence were to be submitted during this rulemaking, appropriate to ethylene oxide, benzene or formaldehyde on the STEL compliance issue OSHA would consider making appropriate changes to each rule. If information developed in the course of this rulemaking demonstrates that changes should be made in any of the existing substance specific standards. OSHA will amend these standards to permit employers to elect to use either respirators or engineering controls to achieve compliance with those existing short term limits. The circumstances listed define concrete situations where OSHA has or would have treated the primary reliance on engineering controls as infeasible in most cases. Within these circumstances employers wiiQie able use any---, combination of engineering or work practice controls and respiratory protection to effectively reduce employee exposures to required levels. OSHA also notes that as under the current standards. OSHA's enforcement of the hierarchy of controls provision is on a case by-case basis. Other situations where engineering controls may be infeasible can be more easily identified because of the explicit examples provided in the proposed provisions. OSHA has recognized other circumstances where respirators are essential to guarantee employee health in some substance-specific standards. Thus, OSHA has provided thst in work operations such shutdown and repair activities respirators may be used as a primary control strategy. (See 29 CFR 1910.1048(a)(l)(it), Formaldehyde; 191(n047(g)(l)(ii). Ethylene oxide (EtO): 1910.1043(f)(l)(ii). Cotton dust: 1910.1029(g)(1)(b). Coke Oven emissions: VEU-325823 23994 Fed ral Register / Vol. 54. No. 106 / Monday. June 5. 1989 / Proposed Rules b' *i ?9l0.l0i8(b)(1)(ii), Inorganic arsenic; due to the general infeasibility of appropriate for clarification purpose*. 19l0.l00l(g)(ii), Asbestos, tremolite.. engineering control implementation or Comment is requested on this issue. ^enthophyilite, and a.ctinolite). for which respirators would, In any case, OSHA points out that this exception i / OSHA has not proposed an explicit provide sufficient protection. exclusion for maintenance activities for The five sets of circumstances that does not cover the required supplemental use of respirators when * the generic standards. As OSHA have been identified by OSHA from feasible engineering controls do not observed in the preamble to the data in the record where engineering "achieve full compliance" pursuant to 29 carcinogen policy, based on its review - controls may generally be infeasible CFR 1910.1000(e). Rather, It refers to of that voluminous record, although Include; situations where engineering controls . these activities are "intermittent, often unpredictable and often undertaken when engineering controls break down * * * some maintenance activities are feasibly controlled by engineering and work practice controls" 45 FR 5228. . Moreover, the Agency believes that routine activities that are performed on a repeated or scheduled basis can be controlled through implementation of feasible engineering and work practice controls. Compliance plans can be developed and engineering controls implemented for predictable activities. Including routine maintenance. 1. During the time necessary to install feasible engineering controls; 2. Where feasible engineering controls result in only a negligible reduction in exposure; 3. During emergencies, life saving, recovery operations, repair, shutdowns, and field situations where there is a lack of utilities for implementing engineering controls; 4. Operations requiring added protection where there is a failure of normal controls: and 5. Entries into unknown atmospheres. would achieve exposure reductions only to a negligible degree. Comments in response to the ANPR identified some operations which may be covered by this proposed provision. However, further case-by-case analysis still will be required (Exs. 2-131.2-118, 2-132). Thus, for example, the American Foundiymen'e Society (AFS) asserts that "technical limitations prevent the control of dust exposures to within permissible exposure limits by engineering means at most chipping and grinding operations." (Ex. 2-44). Spray painting booths were also cited as However. OSHA raises for comment the A provision-by-provision discussion virtually impossible to engineer to question of whether it is necessary to of the proposed revisions follows: achieve substantial exposure reduction require that all feasible engineering 1. OSHA is proposing to allow (Ex. 2-38). OSHA notes however, that controls such as ventilation systems be primary reliance on respiratory engineering controls may be feasible to installed solely for maintenance protection during the time necessary to implement, and the issue may be the activities. Specifically, OSHA would install or implement feasible engineering degree to which they are effective. The . like to receive examples of instances controls. This circumstance was proposed provision would allow which would demonstrate that an engineering control requirement exclusively for maintenance exposures specifically identified in submissions to the ANPR (Exs. 2-91.2-50). and in all substance specific standards (see e.g. 29 reliance on respirators when feasible engineering controls only achieve negligible exposure reduction. If in the would or would not be appropriate. (For CFR 1910.104(g)(l)(i). EtO: case of foundries, the installation of ' Jf activities such as shutdown and repair, 1910.1045(h)(l)(i), cotton dust). local exhaust hoods and increased which are necessary due to unexpected or unpredicted occurrences, respirators would be permitted as they would be the only available source of protection against exposure.) 2. OSHA is proposing to allow primary reliance on respiratory protection where engineering control implentation would result in only a negligible reduction in exposures. OSHA housekeeping make little difference in the employee's exposure because of unalterable difficulties in hood placement, then the provision may apply. If however, engineering controls The Agency does agree, however, that requests comment on whether setting /Pi can reduce exposures, although not there may be some activities that are forth this additional explicit regulatory(2^ down to the PEL's, the unrevised considered to be maintenance that may language is necessary in light of existing supplemental respirator use provision of have to be performed with respirator* provisions requiring that only feasible S 1910.1000(e) would, as now, come into due to the absence of other controls. engineering means be implemented to play and require a combined control Nevertheless, as discussed above, the reduce exposures. Current OSHA strategy, and not total reliance on. Agency believes many maintenance enforcement policy and practice respirator protection. activities lend themselves to control by recognize that the degree of expected OSHA also notes that confining engineering means. OSHA does not exposure reduction is part of the discussion about the effectiveness of have sufficient information to list determination of feasibility. Therefore. feasible engineering controls to specific maintenance jobs commonly OSHA feels that it may be unnecessary "conventional" controls may dictate performed in general industry that may to supplement the current compliance unwarranted conclusion of infeasibility, require widespread use of respirators. requirements with specific language as loss of productivity or ineffectiveness. Therefore, the Agency is interested in suggested above. Further, to define in NIOSH has pointed out that, for f receiving comment on the practicality of regulatory terms on a broad basis what example, in the plastics and resins listing specific maintenance jobs for a "negligible" reduction in exposure industry, implementing controls for which engineering controls are generally level is in general industry as a result of cotton dust, and in silica flour milling, infeasible or maintenance activities engineering control Implementation, as engineering control modifications and where respirator use is otherwise opposed to defining it on a case-by-case innovation increased production and appropriate based on consideration of enforcement basis, may prove to be control effectiveness over duration, frequency and whether routine confusing to employers and impractical . "conventional" technology- (Ex. 2-81). or not to OSHA. Nevertheless, since the \ Innovative controls which are available Thus, data are solicited regarding potential success of exposure reduction I will have to be assessed before this circumstances, conditions, frequency, is considered in determining feasibility, | exception may be relied on. and duration of the types of industry* proposing specific language to that 3. The third provision proposed by wide maintenance activities that effect would not change current OSHA OSHA to permit-reliance on respiratory I* typically require the use of respirators policy and therefore, may be equipment encompasses several 1 OEM-t325824 I Federal Register / Vol. 54, No. 106 / Monday. June 5. 1989 / Proposed Rulea 1 2399S circumstance* where total reliance on essential for these activities, and that engineering controls would be engineering controls were, in the main, ineffective or inappropriate. These are Infeasible (Ex. 2-112). emergencies, recovery operations, OSHA believes that employees will unscheduled repairs shutdown, and in be effectively protected in the situations field situations where there is a lack of evisioned in provisions 4 and 5, by the utilities for implementing engineering proper selection and use of respiratory controls. protection. OSHA believes that in these circumstances, respiratory protection has proven itself generally as the most , The Agency requests comments on all spects of these proposed provisions. In particular, the clarity of the "exception and often the only practical means to minimize employee exposure. Respirators may be the only means of Erevisions" is of concern to the Agency, ecause one reason for these provisions is to provide certainty and uniformity of protection in situations where application to employers and OSHA engineering controls cannot be enforcement personnel. implemented due to the remoteness of In addition to requesting comment on the locale, other configuration of the the appropriateness of allowing the use ' site, or the characteristic of the work of respirators during the activities operation. Further, some of the defects discussed above, OSHA requests data, of respirators,. i.e_._,_la__c_k_o__f _e_m>p*l-oyyrfeeewa, and comment on other situations. acceptance and degradation of fit over (/Jas discussed below, where it may be time are greatly reduced by the short '--'acceptable to use respirators in lieu of time they may be worn during engineering controls, and which should emergencies, recovery operations, . be allowed fori as part of this unscheduled repairs and shutdown. rulemaking, in a final methods of Most submissions supported respirator compliance rule. use in circumstances similar to Specifically, comment is sought on the exception three. For example, MonsanUyC^ppropriateness of permitting the use of noted that during emergencies (liquid yr^respirators for work situations in which aspniilll1s, ffiirue ffilg/ihKtliinngfi, etc.I) respirators aarue. ttnhae khnazAaUrdiMou,,as eauxKpaoastuaarea lias of avaearBy, Ubraileaff used in operations where routine duration. OSHA permits the use of protection is achieved by engineering respirators in specific activities in a controls (Ex. 2-88). API noted that number of its existing section 6(b) respirators are the only means to standards based, in part on the short provide emergency protection in the duration of the activity. For example, event of an equipment failure (Ex. 2-93). respirator use is permitted under the Most substance specific standards ethylene oxide standard (29 CFR permit primary respirator use in these' 1910.1047) during the collection of situations (See e.g. || 1910.1018(h)(l)[ii). quality assurance samples, removal of arsenic: { 1910.1029(g)(1)(d). coke oven biological indicators,-and changing of emissions); and ! 1910.1044(h)(l)(iv), ethylene oxide tanks or cylinders. These DBCP). activities are typically brief in nature. 4. OSHA is also proposing to allow The concept of according acceptability reliance on the use of respirators in of respirators for intermittent use is also operations involving materials which found in the benzene [52 FR 34460} and are primarily controlled by engineering lead (29 CFR 1910.1025) standards devices to protect employees in the case which, in general, permit their use .where of control breakdown. OSHA'a intent is the regulated substance is used in the to allow respiratory protection to be workplace less than a total of 30 days used as a redundant control system per year. These exceptions to where redundancy is considered implementation of engineering controls necessary either because of the toxicity were adopted in each specific standard of the substance or the possibility of based on data that demonstrated the engineering breakdown. For example, acceptability of the use of respirators for Conoco, Inc. stated that "standby or those particular circumstances In those back-up respiratory protection is particular substance using industries. normally maintained in all locations Thus, it is not presently clear to OSHA where hydrogen sulfide (HiS) gas is whether such exclusions can be produced in case of accidents" (Ex. 2- appropriately applied generally. Another 60). regulatory agency, the Mine Safety and 5. The fifth circumstance proposed to Health Administration (MSHA). is also allow reliance on respiratory protection exploring the issue of ways to permit is for entries into unknown atmospheres. more flexibility in required exposure Preliminarily. OSHA intends to cover control methods for unusual situations. confined spaces or vessel entry and tank For example. MSHA is considering cleaning and vessel cleaning. Most permitting the use of respirators in commenters who addressed this issue "tasks such as maintenance or agreed that respiratory protection was investigative activities [which] require occasional entry into hazardous atmospheres." Comments submitted to the Methods of Compliance record also argued for incorporation of flexibility in respirator use under certain conditions. One commentor stated that respirator use should be permitted in lieu of feasible engineering controls for a certain percentage of time per individual, per work station (Ex. 2-43). This suggests, perhaps, that employers should be allowed to establish a "respirator budget" to allocate a certain number of days per year or hours per day for employees to wear respirators in . lieu of feasible engineering controls. Comment and data is sought that demonstrate that "budgeted" respirator (Hx use will result in reliable and predictable control equivalent to that afforded by engineering controls. Others supported allowing employers to rely on respirators to control exposures for ' short term tasks (Ex. 2-61), and for high exposure variability, infrequent and small exposed population job tasks (Exs. 2-88,2-93). None of these comments, however, provided substantial data to the record demonstrating that employee protection would not be compromised fi Q j by permitting the use of respirators in V--' these Instances in lieu of feasible engineering controls. Receipt of such data is requested by OSHA. As indicated above, however, OSHA is not convinced based on available data that it is appropriate for the Agency to adopt broadly applicable generic exposure control provisions incorporating intermittency or short duration of operation as a basis for - permitting the use of respirators in lieu of engineering controls, as found in the specific standards discussed above. Therefore, comment and data are solicited that demonstrare or refute the appropriateness of adopting this approach into a final rule on OSHA's ^rs. methods of compliance requirements, (' 7 based on the frequency and duration of the activity, that could be applied to general industry. Comment is also specifically requested on whether actual final regulatory language which would _ reflect this approach should incorporate /VV specific time limitations as to the V* duration and frequency of use per work shift and what these specific time limitations should be, or should, rather, such language be phrased in general, flexible terms auch as "brief duration," "short duration," or "brief intermittent use" without specific time limitations. If a time limitation is suggested, the Agency requests data and information as to the appropriate time period and why adequate protection would be VEV-325825 23996 Federal Register / Vol. 54, No; 106 / Monday. June S, 1989 / Proposed Rules provided by respirators during that period. Related to the issue of the ./ e ppropriateness of permitting short duration use of respirators, as discussed above, is the issue of specifically permitting respirators to be used to achieve compliance with short-term exposure limits (STELs). The preambles to the recently promulgated benzene (52 FR M480) and formaldehyde (52 FR 48168) standards, for which STELs were adopted, and the preamble to the ethylene oxide standard (S3 FR 11414], for which an excursion limit was adopted, indicated that OSHA would consider in its Methods of Compliance rulemaking whether different principles . should apply as to means of compliance for the STEL or excursion limit, such as using respirators to meet the short-term limit, but not the TWA. Neither the ethylene oxide, benzene nor the formaldehyde standard adopted a provision allowing respirators to be used to achieve compliance with the short-term limit in lieu of feasible engineering controls because data in their specific respective records did not justify such an allowance. It is noted in each standard's preamble that if evidence is submitted in the Methods of Compliance rulemaking, appropriate to ethylene oxide, benzene or formaldehyde on the short-term limit compliance issue OSHA will consider making appropriate changes to each rule. OSHA therefore requests, additional data beyond those received during the specific 6(b) rulemakings, addressing the question of whether the compliance requirements in these standards should be modified with respect to control of short-term exposures. Data and views are solicited on circumstances under which it would or would not be appropriate to permit employers to elect to use either engineering controls or respirators as the primary means of limiting exposure to within the benzene STEL, the formaldehyde STEL, or the ethylene oxide excursion limit Based on information received during this rulemaking, that is pertinent to these substances with respect to compliance requirements for control of short-term exposures. OSHA will either amend these standards to permit employers broader discretionary use of respirators regarding STEL compliance in thia rulemaking, or will reaffirm the conclusiona reached during the previous rulemakings for each of the three substances. OSHA presently does not have ) sufficient data to justify proposing to include regulatory language allowing STEL compliance for all substances to exposure; ability to measure and ensure be achieved solely through the use of /"'^the adequacy of exposure control; work respirators. Since OSHA has received (\5yrate; temperature and humidity of the . no documentation that convinces the workplace; ability to assess the Agency that respirators can be used as a probability of protection failure; ; . consistently effective means of routinely detectability f control failure before meeting STEL's on a widespread basis, harm; and the extent to which the Agency is raising this issue for employees may be expected to wear comment. respirators for any required period. The Agency is raising this issue for comment in conformance with statements to that effect-in the ethylene Comment received on these factors as _ set forth to the ANPR revealed that an' important role is played by each in o)Qde, benzene and formaldehyde standards. OSHA therefore requests determining the suitability of compliance methodology. Engineering substantive technical data concerning controls were suggested as being conditions end situations under whidy--^ particularly preferred where health respirators can be employed (1JAieffects are more severe, where there are successfully in lieu of other controls tos!>'more lengthy and frequent periods of ,. achieve STEL or excursion limit exposure; wher'e respirator failure compliance, and concerning how and warning properties do not exist: where why the use of respirators for protection the wont rate exertion level is greater, against short-term exposures can be where significant respirator fit problems differentiated from protection against exist, and where extreme temperature. TWA exposures with respect to and humidity conditions exist. OSHA effectiveness. again raises for comment the question Comment on another area where as to how or if these workplace factors broader use of respirators may be should be viewed in deciding whether acceptable is also being requested by engineering controls or respirators are OSHA. As discussed earlier, the most appropriate and, further, how these question arises whether there are factors could be reflected in a final rule circumstances in the workplace where to define those circumstances where the protection afforded by respirators __ res-pirator use would .provide .... would be equal tb thB protection fy-\ appropriate protection and would, thus, provided through implementation of b^permitted under the rule. How would engineering controls. In particular, the it be determined that employees would -fn > \ question arises whether there are be provided with the desired degree of circumstances where the costs of the protection? It is noted here that OSHA is respirator program would be less than in the process of revising its standard on those of engineering controls and yet - respiratory protection (29 CFR 1910.134) equal protection would be afforded by and that consideration should be given either. Are there circumstances in which as to whether an increased degree of cost euffeuctiveinieessBs fluacituorxs are a .--p-r-o---t-e--c--ti-on m--ajy re--s--u--l-t--w--h--e--r-e-. respirators legitimate consideration in determining(twyre "se<J comformance with the new the acceptability of one exposure ^--/respirator program provisions. control method over another. Also, what It is not clear to OSHA at this time, workplace factors would have to be however, how it can be determined that considered to evaluate the effectiveness^ respirator use is equally protective as of a control method before costs couldf(O') engineering controls, costs be taken into account? A number of factors that may be appropriate to consider in determining whether engineering controls or respirators will provide adequate protection in a notwithstanding. Nevertheless. OSHA seeks comment that would show the appropriateness of allowing cost effectiveness to be incorporated as a control method selection factor. % particular situation were raised for In the proceeding discussion, OSHA comment in the ANPR. OSHA seeks has maintained its support for a further comment on how factors such rs continuance of its existing compliance described below should be taken into method hierarchy, but has also account by OSHA or the employer in suggested that, under certain specific determining the acceptability of using sets of circumstances, it may be either engineering controls or appropriate to allow respirator use in respirators. Workplace factors which lieu of feasible engineering controls, may affect the performance and degree thus providing flexibility in determining of protection provided by exposure the appropriate method of compliance. control means may include: number of For example, OSHA seeks comment on exposed employees and number of a requirement to permit respirator use in employees with respirator fitting lieu of feasible engineering controls in problems; severity of acute and chronic certain instances where the employer health efleets; length and frequency of has submitted a comprehensive written VEV-325824 Federal Register / Vol. 54. No. 106 / Monday. June 5. 1989 / Proposed Rules 23997 respirator compliance program to the convinced that, as suggested by these Regulatory Impact ') Agency. This compliance plan would be subject to OSHA approval and would be required to demqnstrate to the Agency that the use of respirators under the circumstances described would provide protection to the employee equivalent to that afforded if feasible engineering. controls were implemented. OSHA believes, however, that this flexibility may not be appropriate where the substance involved is a carcinogen, has commehtors, implementation of even a strong respirator programs will result in equivalency of protection afforded by respirators as compared to engineering controls. The inherent limitations of respirators preclude their providing equivalent protection to engineering controls for use as the primary means of exposure control in most all circumstances where implementation of engineering controls are feasible. A OSHA has not performed a preliminary Regulatory impact Analysis, Regulatory Flexibility Analysis, or paperwork clearance package for this action since adoption of the proposed requirements would add no new regulatory burdens on employers with respect to either costs or information collection. II. Pertinent Legal Authority n < o no identified dose-response threshold, control method which limits Authority for this action is found continues to pose a significant risk at contaminant entrance into the primarily in sections 6(bl. 8(c). and the PEL, has no respirator breakthrough workplace (e.g. engineering controls) 8(g)(2) of the Occupational Safety and warning properties, or if there are no has been clearly shown to be a more Health Act of 1970 (the Act), 29 U.S.C. means of determining the specific in-use effectiveness of the respirator. On the other hand, if the effectiveness of effective application of industrial hygiene principles than one that does not. Nevertheless. OSHA seeks 655(b), 657(c). and 657(g)(2). HI. Public Participation respirators can be monitored readily in comment on whether continuance of the Interested persons are invited to some menner. such as by biological control hierarchy is still necessary in submit written data, views, and monitoring, it may be appropriate to any form, and whether adoption of a arguments on this proposed amendment. permit their limited use. The Agency purely performance oriented compliance These comments must be postmarked on solicits comment on the issue of OSHA provision into a final methods of /fauNor before October 3.1989. and submitted approved respirator use. Views are compliance rule is a viable option. VViniiquadruplicate to the Docket Officer. sought on criteria which should be Comments in support of discontinuance Docket No. H-160, U.S. Department of considered and met for respirator of the control hierarchy should describe Labor, Occupational Safety and Health lompliance program approval and on the specific circumstances under which Administration. 200 Constitution - circumstances, as suggested above, such a change would be appropriate and Avenue, NW.. Room N-3670, under which respirator use should not how it would result in continued Washington. DC 20210, (202)523-7894. be permitted in lieu of feasible equivalent employee protection. Data Written submissions must clearly engineering controls. and information are also sought that can identify the provisions of the proposal An alternative which would provide demonstrate that adoption of a which are addressed, and the position even more flexibility with regard to performance oriented compliance taken.on each issue. respirator use is to allow employers requirement will maintain the protectlogT^N The data, views, and arguments that under any circumstances to comply with afforded employees under current [cDjpe submitted will be available for exposure limits by any method the methods of compliance provisions. If the--public inspection and copying at the employer deems advisable. Some employer is permitted to choose any mix above address. All timely submissions commenters have suggested that of control methods to achieve will be part of the record of the establishment and enforcement of a compliance, should choice of the method proceeding, good respirator program will result in effective exposure control where be at the discretion of the employer or _ . .. should the method chosen be required to Requests for Hearing respirators are used in place of be approved by a professional in the/^T7\ Under section 6(b)(3)'of the OSH Act engineering controls, and that employers field of safety and health or other \V.U>^nd 29 CFR 191l.ll. interested persons should be allowed to implement such technically qualified person7 who desire that OSHA hold an oral respirator programs under the standard Commenters supporting continuance of hearing on the proposal may file in circumstances deemed appropriate by the employer (Exs. 2-61,2-88.2-93, 2-94, 2-109). For example, the Ethyl Corporations states that `The ?ovemment should not regulate the need or engineering controls but should regulate the use of personal protective OSHA's current policy should provide pertinent data that demonstrate the necessity of maintaining primary reliance on feasible engineering and work practice means of exposure control. Based on the proceeding discussion, objections to the proposal and request an informal hearing. The objections and hearing requests should be submitted in quadruplicate and must comply with the following conditions: 1. The objection must include the name and address of the objector; equipment, requiring the employer to OSHA proposes to add a new paragraph 2. The objections must specify with show that protection is being provided" 1910.1000(1) that explicitly sets forth particularly the provisions of the (Ex. 2-109). The American Petroleum circumstances in the workplace where proposed rule to which objection is Institute asserts that `The burden employers may choose to use respirators taken and must state the grounds should rest on the employer to in lieu of engineering means as a therefor; demonstrate that its employees are permissible method of controlling 3. Each objection must be separately protected by whatever (control] strategy employee exposures to toxic substances stated and numbered; and is chosen" (Ex. 2-93). Finally, 3M states listed in the Z-tables of section 4. The objections must be that "A well written performance 1910.1000. OSHA also proposes to accompanied by a detailed summary of standard should satisfy the requirement modify section 1910.134(a)(1) by the evidence proposed to be introduced that OSHA ensure that exposures are incorporating a statement of reference at the requested hearing. within permissible exposure limits while that Indicates that respirators may be. Interested persons who have allowing the employer to be concerned used in lieu of control in the objections to various provisions or have with the `how* of meeting a specific circumstances listed under proposed changes to recommend may, of course, standard" (Ex. 2-88). OSHA is not paragraph 1910.1000(f). make those objections or VEV-325827 23938 recommendations in their comments and 2. The laat sentence of paragraph full compliance, protective equipment or OSHA will fully consider them. There is (a)(1) of { 1910.134 is proposed to be any other protective measures shall be only need to file formal "objections" if revised to reed as follows: used to keep the exposure of employees the interested persons desire to request an oral bearing. Requests for a hearing should be submitted in quadruplicate, postmarked on or before October 3.1989, addressed to Mr. Tom Hall. OSHA Division of Consumer Affairs, Docket No. H-160, Room N-3637, U.S. Department of Labor, 200 Constitution Avenue, NW,, Washington, DC 20210, (202) 523-8815. $ 1810.134 Respiratory protection. (a) Permissible practice (1) * * * When effective engineering controls are not feasible, while they ore being instituted, or in circumstances meeting the requirements of 29 CFR 1910.1000(f), appropriate respirators may be used pursuant to the following requirements. to air contaminants within the limits prescribed in this section. Any equipment and/or technical measure# used for this purpose must be approved for each particular use by e competent industrial hygienist or other technically qualified person. Whenever reapirat re are used, their use shall comply with { 1910.134. (f) Respiratory protection maybe used IV. References Subpart Z--(Amended] in lieu of administrative or engineering controls to achieve compliance with A complete set of the references in 3. The authority citation for Subpart Z paragraphs (a) through (d) of this section Docket H-160 upon which this proposed of Part 1910 continues to read as under the following circumstances: action is based is available for follows: (1) During the time necessary to install examination and copying at the OSHA Docket Office, Room N-2825, U.S. Department of Labor. 200 Constitution Authority: Secs. 6.6. Occupational Safety and Health Act, 28 U.B.C. 655.657; Secretary of Labor'a Orders 12-71 (30 FR 8754), 6-76 (41 feasible engineering control*; (2) Where feasible engineering controls result in only e negligible Avenue, NW., Washington, DC 20210, between 830 am. and 4:30 pm,- Monday through Friday, legal holidays excepted. V. Authority This document was prepared under the direction of Alan C. McMillan. Acting Assistant Secretary of Labor for Occupational Safety and Health. U.S. Department of Labor. 200 Constitution Avenue, NW,, Washington, DC 20210. Pursuant to sectiona 4,6(b), 8(c) and 8(g)(2) of the Occupational Safety and Health Act (29 U.S.C. 653,655,657). 29 CFR Part 1911 and Secretary of Labor's . Order No. 9-83 (46 FR 35736), 29 CFR Part 1910 is proposed to be amended as FR 25058). or 8-63 (48 FR 35736) sa applicable; and 28 CFR Part 1811. All of Subpart Z Issued under Sec 6(b) of the Occupetione! Safety and Health Act. 28 U.S.C 655(b) except those substance* listed in the Final Rule Limit* column* of Table Z1-A which have Identical limits listed in the Transitional limits columns ofTable Z-l-A Table Z-2 or Table Z-3. The latter wet* issued under Sec. 6(e) (5 U.S.C. 655 (a)). Section 1910.100a the Transitional Limite columns of Tsble Z-l-A Tsble Z-2 and Table Z-3 also issued under 5 U.S.G. 533. Section 1810.100a Tables Z-l-A Z-2 and Z3 not Issued under 29 CFR 1911 except for the arsenic, benzene, cotton dust end formaldehyde listings. Section 19104001 also Issued under Sec. 107 of Contract Work Hours and Safety reduction in exposure. (3) During emergencies, life saving. recovery operations, repair, shutdowns.' and field situations where there is a lack of utilities for implementing engineering controls. (4) Operations requiring added protection where there is a failure of normal controls; and (5) Entries into unknown atmospheres. * * * * (FR Doc. 89-13157 Filed 6-2-89; 8:45 sm) SILUMO COOC UUI-SS-M ENVIRONMENTAL PROTECTION set forth below. Standard* Act. 40 U.S.C. 333. AGENCY list of Subjects in 29 CFR Part 1910 Chemicals, Diving. Electric power, Electronic products. Fire prevention. Cases, Hazardous materials. Health records. Noise control. Occupational safety and health. Radiation protection. Reporting and recordkeeping requirements. Signs and symbols. Signed st Washington, DC this 25th day of May. Alan C McMillan. Section 1910.1002 not iaeued under 29 U.S.C. 655 or 29 CFR Part 1911; also issued under 5 U.S.C. 553. Sections 1910.1003 through 1910.1018 also issued under 29 U.S.C 653. Section 19104025 also issued under 29 U.S.C. 653 end 5 U.S.C 553. Section 1910401028 also Issued under 29 U.S.C. 653. Section 19104043 also issued under 5 U.S.C 551 et seq. Section* 1910.1045 end 1910.1047 also issued under 29 U.S.C. 653. Section 1910.1048 also issued under 29 40 CFR Part 52 (FRU3586-1) Approval and Promulgation of Implementation Plans; Harris County, TX; Disapproval of Alternatlva Reasonably Available Control Technology Determination aoency: Environmental Protection Agency (EPA). Acting Astistanl Secretary ofLabor. U.S.C 653. action: Proposed rule. Sections 19104200.19104499 and 19104500 FART 1910--{AMENDED] also issued under 5 U3.C 553. summary: This notice proposes H i! Part 1910 of Title 29 of the Code of Federal Regulations is proposed to be amended as follows: 4. Section 1910.1000 is proposed to be amended by revising paragraph (e) and adding a new paragraph (I) to read as follows: disapproval of a State Implementation Plan (SIP) revision submitted by the State of Texas on January 12,1987. This revision is to the Ozone Control Strategy Subpart I--{Amended] 1910.1000 Air contaminants. For Harris County (Houston) to allow alternative reasonably available control 1. The authority citation for Subpart 1 6*868 . technology (RACT) for metal surface of Part 1910 is revised as follows: (e) Except as provided by paragraph coating processes at Richmond Tank Authority: Secs. 4.6.6, Occupational Safety and Health Act of 1970 (29 U.S.C. 053.655, 657): Secretary of Labor'a Order No. 12-71 (36 (f) of this section, to achieve compliance with paragraphs (a) through (d) of this section, administrative or engineering Car Company's railroad tank car repair and coating facility (In Sheldon, Harris County, Texas.) This action proposes I iJi FR 8754), 8-76 (41 FR 25059) or 9-63 (46 FR controls must first be determined and disapproval of the SIP revision for 35736), as applicable. Section 1910.134 also implemented whenever feasible. When Richmond Tank Car Company under issued under 29 CFR Part 1911. such controls are not feasible to achieve Section 110 of the Clean Air Act (CAA). VEV-325828