Document DDeo2V50Knq1ByX0yDpyQ6dJN

) TO: EOIC Executive Committee Interoffice Communication FROM: DATE: SUBJ: T. G. Grumbles August 8, 1989 OSHA PROPOSED RULE: METHODS OF COMPLIANCE VISTA 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 n 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 VEV-325829 Federal Register / Vol. 54. No. 106 / Monday, June 5, 1989 / Proposed Rules 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 3a 1989. R- D. Morgan, Executive Director. (FR Doc. 89-13280 Filed 8-2-89:8:45 am] aaiwo coot asta-a-n DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 IDocket No. H-160) RIN 1218-AA2S Health Standards; Methods of Compliance aoency: 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.Thls 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 (4B 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 This methods of compliance policy exposures in the recently promulgated has also been incorporated In every standards for benxene (52 FR 34460). health standard adopted pursuant to formaldehyde (52 FR 46168), end section 6(b) of the Act after OSHA's ethylene oxide (53 FR 11414) may result evaluation of the related rulemaking from this rulemaldng, records. All substance specific health 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 N3670, 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 N3637, U.S. Department of Labor, 200 Constitution Ave,, NW,, Washington. DC, 20210. standards (except for the 13 carcinogen standards. 29 CFR 1910.1003-1016. which mandate specific engineering controls) and the carcinogen policy (29 CPE 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 InfeasibiUty or impracticality 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. FOR FURTHER INFORMATION CONTACT: In certain recognized situations and Mr. James F. Foster, Occupational conditions under OSHA's substance Safety arid Health Administration. specific standards, engineering controls Office of Public Affairs, Room N-3649. are not required and respirator use is U.S. Department of Labor. 200 permitted. For example, the following Constitution Avenue. NW,, Washington, standards permit the use of respiratory DC 20210. Telephone: (2D2) 523-6151. protective devices during installation of SUPPLEMENTARY INFORMATION: feasible engineering controls, where L Background engineering controls are not feasible, and where it is necessary to supplement OSHA's methods of compliance policy, first adopted by OSHA from national consensua 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 { 1910.1000(e), which applies to exposures to 600 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 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 oveni {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 f whether these specific types of v allowances should be explicitly built into the general methods-of-compliance of workable regulations, pursuant to provisions. section 6(a) of the Occupational Safety OSHA's policy has been criticized by and Health Act of 1970 (29 U.S.C. 655 et some as too inflexible, not cost- seq\ effective, often unnecessary for health VEM-32583Q 23992 Federal Register / Vol. 54. No. 106 / Monday. June 5, 1989 / Proposed Rule* i protection and outdated based on the rulemaking records from other Engineering controls generally provide 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 criticism* OSHA published an ANPR on February stendards 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 currant programs. In addition, NIOSH, batter and more reliable methods of protecting employee health * * * Improperly wearing respirators can be a continual problem While we believe this occurs lees than 6% of the time in many of our plants, we expect it occurs more frequently In some plants--possibly in the order of 3M or more 22.1963, to solicit public comment on and Los Alamos and Lawerence of the Ume. (Ex. 2-103). 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 was 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 respirator program has changed. This point is demonstrated by the issuance of the American National Standards Institute (ANSI) Z-8&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 Livermore research laboratories, 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, are more effective in controlling exposure than other means. Commenters representing unions, (253.2- 102,2-122,2-96), 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 (2-89). DOW (2-71), Monsanto (268), and ALCOA (2-103). These commenters agreed that engineering controls provide reliable and consistent levels of protection to a large number of workers and are not dependent on individual human performance. Data submitted to the record support this assertion. Performance of engineering controls can be monitored continually, inexpensively, 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 results to indicate that respirators offer equal or belter protection than engineering controls and with very few exceptions * * * respirators simply cannot offer the same degree and reliability of protection to employees, as properly Many industry commenters, however, called for increased flexibility in OSHA's compliance policy: still others for abandonment of the preference for engineering control*. For example, the Chemical Manufacturers Association . stated (Ex. 2-72), in response to the question of whether OSHA should require the use of feasible engineering controls "In preference" to the use of ' respirators, as follows: Ai long as the employer meet* s permissible exposure limit (PEL), controls the skin contact or meets the appropriate biological levels lhat are consistent with employee health and safety. OSHA should not require any specific control strategy (sic). Means for achieving such standards will often involve engineering controls snd the use of respirators as well as administrative and work practice controls. Methods of reducing exposure to the desired level will be different in each workpiece end the combination of engineering, administrative,' and work practice controls snd use of respirators should be left to the employer. Representing a broad cross section of industry, the National Association of Manufacturers (Ex. 2-91] similarly stated, arguing that OSHA's currant methods policy was actually counterproductive to worker safety and health, as follows: The threshold question is whether current OSHA itandards requiring employers to implement feasible engineering controls to maintain air contaminants in the workplace to within prescribed permissible exposure limits and permitting engineering controls are 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 aituaUonal variations is neither the most effectiva approach nor in the best intsrest of overall worker protection. F<W profesaionala in industry would argue that engineering controls are not the "Ideal" means for the elimination or mitigation of workplace hazards. However, ideal solutions *&l 4 j i such instances exist, reasonable designed end operated engineering controls rarely work as well ss expected In practice 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 (2-131). The University of North Carolina commented that: All industrial hygiene practice indicates feasible engineering controls should take precedence * * * (Ex. 2-120). and practical concerns must also be considered. Theae practical concerns Include all hazards rather titan a single hazard and must be viewed in reletion to end interacting with a total workplace sefety end heelth program. Under this total program, tha ideal aolulion for the control of one hazard may likaly limit an employer's ability to address received, with a wide range of responses ALCOA, addressing the reliability of the remaining segments of the program. Thus, from industry, labor, health engineering controls and respirators, preference for one form of control over organizations, and others. In addition. provided the following: another, unmindful of the variables involved. UEO-325831 Federal Register / Vol, 54. No. 106 / Monday, June 5, 1989 / Proposed Rules 23993 we believe, it counterproductive to the effectiveness of a balanced and truly effective overall aafety and health program. For thli reaion/the feasibility of an engineering control ehould not be the aola determinant of its uie and OSHA policy hould not reflect thle short-sighted goaL Specific companlea reflected aimilar concerns. Thus, the DOW rhmfeal C mpany (Ex. 2-71] noted: The prime concern In sny raconaideration of the methods-of-complisnce provisions must be maintenance of safety and health protection for employees to prevent workrelated Injuries, illness and death. Such protection cannot be achieved by mmUiiAg a hierarchy of control techniques. Dow recommends that OSHA delete or modify any mandatory preference to allow employers greater flexibility to use their professional judgment to determine the balance of engineering controls, work practices, operator training and personal protective equipment that is moil 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 methode of compliance policy wee adopted. Data obtained from research on die performance of respirators In the workplace, much of U performed by DuPont lend strong support to the conclusion that respirators provide reliable employee protection when used in a good respirator program. Recent research on workplace protection factors demonstrates that respirators provide effective control for exposure to airborne chemicals when they era used correctly In a good reepiiutor program. In many cases they provide the most coat effective means of control. Accordingly, DuPont belisves that respirators, like engineering and administrative controls, have a proper role to play in the protection of employee's. Therefore. DuPont recommends that tach employees personal work environment be maintained et a safe exposure level through implementation of cost-effective engineering controls augmented sis neeeasary by personal protective equipment and/or work practice controls. The choice of methods should depend on the factors in tsch specific situation. * * The choice of the proper method!*) of compliance involves, therefore, far more than the simple dichotomy of engineering controls versus respirators. For this reason, tbs question "Which are better, engineering controls or respirators?" cannot be satisfactorily answered in the abstract. As the information and comments offered by Du Pont in the enclosure wifi indicate, the choice of the proper method(t) of compliance is best made on an individualized bests by industrial hygiene professionals. So long as the two criteria identified above have been met. an employer should not be mediately contrained from choosing the control strategy that makes sente for his particular operation. Atlantic Richfield Company (Ex. 2-80). in endorsing comments submitted by the American Petroluem Institute (Ex. 2-73). noted: Employer* should have the option to select e protective control strategy rather than being mandated to adhere to the current rigid hierarchy of exposure controls. The ultimata goal of any control strategy must be the adequate protection of workers exposed to contaminants. Varying control strategist will achieve that goal et least equally well and often more cost-effectively, as the fixed controls provided by current policy. In support of this recommendation we want to emphasise 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 advances in both technology ana applicability of respirators to the last decade. New methode 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 k Power [Ex. 2-21], the American Cas Association (Ex. 2-77], SCM Corporation [Ex. 2-21], and National Agricultural Chemicals Association [Ex. 2-77]. National Paint and Coatings Association. Inc. [Ex. 2-78]. Motor Vehicles Manufacturer* Association [Ex. 2-95], and The Health Induatriea Manufacturer* Association [Ex. 2-110]. This rulemaking does not address the assessment and reduction of any absolute existing risks but rather addresses the posaible change in risk 1 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) and 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 8(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, end where respirators may have to be used (Exs. 2-51.2-72.2-131). OSHA. therefore, is proposing to specify five sets 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 respirators to reduce employee exposure to required levels. In large part these circumstances reflect Uie current application of the two standards involved and circumstances recognized In substance-specific standards. By setUng out explicit situations OSHA hopes to make future applicaUon of the methods of compliance policy more uniform and understandable. It ie noted that provision! 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 control* 81 infeasible in moat cases, within theta circumstances employers will!_8_?_f_T_V__)_!T_T__T_I_i_i>__ _ combination of engineering or work practice control* and reipiratory protection to effectively reduce employee exposures to required level*. 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 that in work operations such shutdown and repair activities respirators may be used as a primary control strategy. (See 29 CFR l9l0.lM8(a)(l)(U)l Formaldehyde; 191(U047(gHl)(ii). Ethylene oxide (EtO); 1910.1043(f)(1)(a). Cotton dust; 1910.1029(g)(1)(b), Coke Oven emissions: VEV-325832 23994 Federal Register / Vol. 54. No. 106 / Monday. June 5, 1989 / Proposed Rules I910.1(n8(h)(l)(if), Inorganic arsenic: 1910.1001jg)(ii). Asbestos, tremolite, ) anthophyllite, and actinolite). ' OSHA has not proposed an explicit exclusion for maintenance activities for the generic standards. As OSHA observed in the preamble to the carcinogen policy, based on its review of that voluminous record, although 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 plana can be developed and engineering controls implemented for predictable activities, including routine maintenance. However. OSHA raises for comment the question of whether it is necessary to require that all feasible engineering controls such as ventilation systems be installed solely for maintenance activities. Specifically. OSHA would like to receive examples of instances which would demonstrate that an engineering control requirement exclusively for maintenance exposures would or would not be appropriate. (For activities such as shutdown and repair, 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.) The Agency does agree, however, that there may be some activities that are considered to be maintenance that may have to be performed with respirators due to the absence of other controls. Nevertheless, as discussed above, the Agency believes many maintenance activities lend themselves to control by engineering means. OSHA does not have sufficient information to list specific maintenance fobs commonly performed in general industry that may require widespread use of respirators. Therefore, the Agency is interested in receiving comment on the practicality oi listing specific maintenance jobs for which engineering controls are generallj infeasible or maintenance activities where respirator use is otherwise appropriate based on consideration of duration, frequency and whether routini or not. Thus, data are solicited regarding i circumstances, conditions, frequency, and duration of the types of industry wide maintenance activities that typically require the use of respirators due to the general infeasibility of appropriate for clarification purposes. engineering control implementation or Comment is requested n this issue. for which respirators would, in any case, OSHA points out that this exception provide sufficient protection. does not cover the required The five sets of circumstances that have been identified by OSHA from data in the record where engineering supplemental use of respirators when * feasible engineering controls do not "achieve full compliance" pursuant to 29 controls may generally be infeasible include: 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. CFR 1810.1000(e). Rather, it refers to situations where engineering controls would achieve exposure reductions only to a negligible degree. Comments in response to the ANPR identified some operations which nay 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 Foundrymen's 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 A provision-by-provision discussion virtually impossible to engineer to of the proposed revisions follows: achieve substantial exposure reduction 1. OSHA is proposing to allow (Ex. 2-36). OSHA notes however, that primary reliance on respiratory engineering controls may be feasible to protection during the time necessary to implement and the issue may be the install or implement feasible engineering degree to which they are effective. The . controls. This circumstance was proposed provision would allow specifically identified in submissions to reliance on respirators when feasible the ANPR (Ex*. 2-91,2-60), and in all engineering controls only achieve substance specific standards (see e.g. 29 negligible exposure reduction. If in the CFR 1910.104(g)(l)(i), EtO*. case of foundries, the installstion of I9i0.1045(h)(l)(i). cotton dust). local exhaust hoods and increased 2. OSHA is proposing to allow housekeeping make little difference in primary reliance on respiratory the employee's exposure because of protection where engineering control unalterable difficulties in hood implentation would result in only a placement then the provision may negligible reduction in exposures. OSHA apply. If however, engineering controls requests comment on whether setting /PV can reduce exposures, although not forth this additional explicit regulatory(2/ down to the PEL'S, the uftrevised language is necessary in light of existing supplemental respirator use provision of provisions requiring that only feasible { 1910.1000(e) would, as now, come into engineering means be implemented to play and require a combined control reduce exposures. Current OSHA strategy,'and not total reliance on. enforcement policy and practice respirator protection. recognize that the degree of expected OSHA also notes that confining exposure reduction is part of the discussion about the effectiveness of determination of feasibility. Therefore, feasible engineering controls to OSHA feels that it may be unnecessary "conventional" controls mey dictate to supplement the current compliance unwarranted conclusion of infeasibility, requirements with specific language as loss of productivity or ineffectiveness. suggested above. Further, to define in NIOSH has pointed out that for regulatory terms on a broad basis what example, in the plastics and resins a "negligible" reduction in exposure industry, implementing controls for level is in general industry as a result of cotton dust and in silica flour milling, engineering control implementation, as engineering control modifications and opposed to defining it on a case-by-case innovation increased production and enforcement basis, may prove to be control effectiveness over confusing to employers and impractical . "conventional" technology. (Ex. 2-81). . to OSHA. Nevertheless, since the \ Innovative controls which are available I potential success of exposure reduction \ will have to be assessed before this I is considered in determining feasibility, \ exception may be relied on. ] proposing specific language to that 3. The third provision proposed by effect would not change current OSHA OSHA to permit-reliance on respiratory policy and therefore, may be equipment encompasses several UEO-325833 Federal Register / VoL 54, No. 106 / Monday, June 5. 1989 / Pr posed Rules 23995 circumstances where total reliance on engineering controls would be essential for these activities, and that engineering controls were, in the main. occasional entry into hazardous atmospheres." Comments submitted to ineffective or inappropriate. These are Infeasible (Ex. 2-112). the Methods f Compliance record also emergencies, recovery operations, OSHA believes that employees will argued for incorporation of flexibility in unscheduled repairs shutdown, and in be effectively protected in the situations respirator use under certain conditions. field situations where there is a lack of evtsioned in provisions 4 and S, by the utilities for implementing engineering proper selection end use of respiratory controls. protection. OSHA believes that in these /P'tj The Agency requests comments on all circumstances, respiratory protection V^aspects of these proposed provisions, fn has proven itself generally as the most particular, the clarity of the "exception and often the only practical means to provisiona" (s of concern to the Agency, minimize employee exposure. because one reason for these provisions Respirators may be the only means of is to provide certainty end uniformity of protection in situations where ' application to employers end 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, r the characteristic of the work of respirators during ths activities operation. Further, some of the defects discussed above, OSHA requests data, or respirators, i.e,, lack of employee /'-\viewa. and comment on other situations. acceptance and degradation of fit over (7jss discussed below, where it may be One commentor stated that respirator use should be permitted in lieu of feasible engineering controls for a certain percentage of time par individual, per work station (Ex. 2-43). This suggests, perhaps, that employers should oe 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 date to sought that ` /T\ demonstrate that "budgeted" respirator use will result in reliable and - predictable control equivalent to that afforded by engineering control*. Others time are greatly reduced by the short ^--''acceptable to use respirators in Ueu of supported allowing employers to rely on time they may be worn during emergencies, recovery operations, . unscheduled repairs and shutdown. Moat submissions supported respirator engineering controls, and which should be allowed for, as part of this rulemaking, in a final methods of compliance rule. respirators to control exposures for * short term tasks (Ex. 2-81). and for high exposure variability, infrequent and mall exposed population job tasks (Exa. use in circumstances similar to Specifically, comment is sought on the 2-88,2-93). None of these comments, exception three. For example, MonsantcyJ^vappropriateness of permitting the use of however, provided substantial data to noted that during emergencies (liquid (^respirators for work situations in which the record demonstrating that employee srpxiillllsa, ffliNrek fFiginhktiilnAgn, eatioc.)1 raensapnilraastUoars* are the khaaazaaMrdolitutias exposure lias moIf very UbsrIikeIf protection would not be compromised fi ) j used in operations where routine duration. OSHA permits the use of by permitting the use of respirators in \L-' protection is achieved by engineering respirators in specific activities in a these instances in Ueu of feasible controls (Ex. 2-88). API noted that number of its existing section 8(b) engineering controls. Receipt of such respirators are the only means to standards based, in part on the short i date to requested by OSHA. provide emergency protection in the event f an equipment failure (Ex. 2-93). Most substance specific standards permit primary respirator use in these situations (See e.g. f I l910.10l8(h)(l)(U). arsenic; S 1910.1029(g)(1)(d). coke oven emissions); and { 19l0.1044(h)(l)(iv). DBCP). 4. OSHA is also proposing to allow reliance on the use of respirators in operations involving materials which are primarily controlled by engineering devices to protect employees in the case of control breakdown. OSHA's intent is to allow respiratory protection to be used as a redundant control system where redundancy is considered necessary either because of the toxicity of the substance or the possibility of engineering breakdown. For example, Conoco, Inc. stated that "standby or back-up respiratory protection to normally maintained in all locations where hydrogen sulfide (HtS) gas is produced in case of accidents" (Ex. Z~ 60). 5. The fifth circumstance proposed to allow reliance on respiratory protection duration of the activity. For example, respirator use ia permitted under the ethylene oxide standard (29 CFR 1910.1047) during the collection of quality assurance aamples. removal of biological indicators.-and changing of ethylene oxide tanks or cylinders. These activities are typically brief in nature. The concept of according acceptability of respirators for intermittent use is also found in the benzene (52 FR 34480) end lead (29 CFR 1910.1025) standards which, in general, permit their use .where the regulated substance is used in the workplace less than a total of 30 days per year. These exceptions to implementation of engineering controls were adopted in each specific standard based on data that demonstrated the acceptability of the use of respirators for those particular circumstances in those particular aubatance using industries. Thus, it is not presently clear to OSHA whether such exclusions can be appropriately applied generally. Another regulatory agency, the Mine Safety and Health Administration (MSHA), is also exploring the issue of ways to permit As indicated above, however, OSHA to not convinced baaed on available date that it to appropriate for the Agency to adopt broadly applicable generic exposure control provisions incorporating intennittency 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 demon*trare or refute the appropriateness of adopting this approach into a final rule on OSHA's v-r-v methods of compliance requirements. based on the frequency and duration oi the activity, that could be appUed to general industry. Comment to also specifically requested on whether actual final regulatory language which would reflect this approach should incorporate specific time limitations as to the y* ^ J duration end 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 such as "brief duration," is for entries into unknown atmospheres. more flexibility in required exposure "short duration." or "brief intermittent Preliminarily. OSHA intends to cover control methods for unusual situations. use" without specific time limited ns. if confined spaces or vessel entry and tank For example. MSHA is considering a time limitation is suggested, the cleaning and vessel cleaning. Moat permitting the use of respirators in Agency requests data and information commenters who addressed this issue "tasks such as maintenance or as to the appropriate time period and agreed that respiratory protection was investigative activities (which) require why adequate protection would be MEM-325834 23998 Federal Register / Vol. 54, No. 106 / Monday. June 5, 1989 / Proposed Rules provided by respirators during that period. \ Related to the issue of the / appropriateness 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 ISTELs). The preambles to the recently promulgated benzene (52 FR 34460) and formaldehyde (52 PR 46166) 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 abort-term limit, but not the TWA. Neither the ethylene oxide, benzene nor the formaldehyde standard adopted a provision allowing respirators to be li used to achieve compliance with the U short-term limit in lieu of feasible v engineering controls because data in 1 their specific respective records did not | I 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 this rulemaking, or will reaffirm the conclusions reached during the previous rulemakings for each of the three substances. OSHA presently does not have Jsufficient 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 /''T^the adequacy of exposure control: wonc respirators. Since OSHA has received(\Cyrate: temperature and humidity of the no documentation that convinces the '--^workplace: ability to assessThe Agency that respirators can be used as a probability of protection failure; consistently effective means of routinely detectability of control failure before meeting STEL's on a widespread basis, harm; and die extent to which the Agency is raising this issue for employee* may be expected to wear comment respirators for any required period. The Agency is raising this issue for Comment received on these factors as comment In conformance with set fotwln the ANPR revealed dial an statements to that effect-in the ethylene important role is played by each In oxide, benzene and formaldehyde determining the suitability of standards. OSHA therefore requests compliance methodology. Engineering substantive technical data concerning controls were suggestedas being conditions and situations under whlcL---. particularly preferred where health respirators can be employed fl(A>ffects ere more severe, where there ere successfully in lieu of other controls tdsCxmore lengthy end frequent periods of achieve STEL or excursion limit exposure; where respirator failure compliance, and concerning how and warning properties do not exist; where why the use of respirator* for protection the wore 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. Comment on another area where broader use of respirators rosy be acceptable la also being requested by OSHA. As discussed earlier, the question arises whether there are circumstancea in the workplace where the protection afforded by reapiratora would be equal to the protection again raises for comment the question as to how or if these workplace factors should be viewed in deciding whether engineering controls or respirators are moat appropriate and, further, how these'' factors could be reflected in a final rule.. to define those circumstances where respirator use would provide appropriate protection and would, thus, provided through implementation of ILL/ permitted under the rule. How would engineering controls. In particular, the question arises whether there are it lie determined that employees would -/n > \ be provided with the desired degree of 'LL/ 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 1010.134) 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 cuowsiti ecuffeccbtiiiviceiniceases fipavcttovrios ararsee aa protection may result where respirators /^\r -- ,. ; legitimate consideration fin determining^ in comformance with the new the acceptability of one exposure '--respirator program provisions, control method over another. Also, what It is not dear 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 costa couldftQ) engineering controls, costs be taken into account? A number of ^' notwithstanding. Nevertheless, OSHA factors that may be appropriate to consider in determining whether engineering controls or respirators will provide adequate protection in a geeks comment that would show the appropriateness of allowing cost effectiveness to be incorporated aa 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 as 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 end chronic certain instances where the employer health effects; length and frequency of has submitted a comprehensive written VV>-325835 Federal Register / Vol. 54, No. 106 / Monday. June 5. 1988 / Proposed Rulea 23997 f J respirator compliance program to the Agency. This compliance plan would be subject to OSHA approval and would be required to demonstrate 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 no identified dose-response threshold, continues to pose a significant risk at the PEL, has no respirator breakthrough warning properties, or if there are no means of determining the speciflc in-use effectiveness of the respirator. On the other hand, if the effectiveness of respirators can be monitored readily in some manner, such as by biological monitoring, it may be appropriate to permit their limited use. Hie Agency solicits comment on the issue of OSHA approved respirator use. Views are sought on criteria which should be considered and met for respirator jpompliance program approval and on 'circumstances, as suggested above, under which respirator use should not be permitted in lieu of feasible engineering controls. An alternative which would provide even more flexibility with regard to respirator use is to allow employers under any circumstances to comply with exposure limits by any method the employer deems advisable. Some commenters have suggested that establishment and enforcement of a good respirator program will result in effective exposure control where respirators are used in place of engineering controls, and that employers should be allowed to implement such respirator programs under the standard in circumstances deemed appropriate by the employer (Exs. 2-61.2-68.2-93.2-94, 2-109). For example, the Ethyl Corporations states that "The government should not regulate the need for engineering controls but should regulate the use of personal protective equipment, requiring the employer to show that protection is being provided" (Ex. 2-109). The American Petroleum Institute asserts that "The burden should rest on the employer to demonstrate that its employees are protected by whatever [control) strategy is chosen" (Ex. 2-93). Finally. 3M states that "A well written performance standard should satisfy the requirement that OSHA ensure that exposures are within permissible exposure limits while allowing the employer to be concerned with the 'how' of meeting a specific stand.ird" (Ex. 2-88). OSHA is not convinced that as suggested by these Regulatory Impact commentors, 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 edoption of the proposed requirements would add no pew regulatory burdens on employers with respect to either costs or information collection. 1L Pertinent Legal Authority control method which limits contaminant entrance into the workplace (e.g. engineering controls) has been clearly shown to be a more effective application of industrial hygiene principles than one that does not. Nevertheless. OSHA seeks Authority for this action is found primarily in sections 6(b|. 8(c). and 8(g)(2) of the Occupational Safety and Health Act of 1970 (the Act), 20 U.S.C. 695(b), 657(c). and 657(g)(2). DL Public Participation comment on whether continuance of the Interested persons are Invited to control hierarchy is still necessary in submit written data, views, and any form, and whether adoption of a arguments on this proposed amendment purely performance oriented compliance These comments must be postmarked on provision into a final methods of or before October 3,1989, and submitted compliance rule is a viable option. \r-V in quadruplicate to the Docket Officer. Comments in support of discontinuance Docket No. H-160, U.S. Department of of the control hierarchy should describe Labor, Occupational Safety and Health the speciflc circumstances under which Administration, 200 Constitution- such a change would be appropriate and how it would result in continued equivalent employee protection. Data Avenue, NW., Room N-3670, Washington. DC 20210. (202)523-7894. Written submissions must clearly and information are also sought that can identify the provisions of the proposal demonstrate that adoption of a which are addressed, and the position performance oriented compliance taken,on each issue. requirement will maintain the protection The data, views, and arguments that afforded employees under current ^ submitted will be available for methods of compliance provisions. If th' public inspection and copying at the employer is permitted to choose any mix above address. All timely submissions of control methods to achieve will be part of the record of the compliance, should choice of the method proceeding. be at the discretion of the employer or should the method chosen be required to Requests for Hearing be approved by a professional in the, Under section 6(b)(3) of the OSH Act field of safety and health or other nd 29 CFR 1911.11. interested persons technicially qualified person? who desire that OSHA hold an oral Commenters supporting continuance of hearing on the proposal may file OSHA's current policy should provide objections to the proposal and request pertinent data that demonstrate the an informal hearing. The objections and necessity of maintaining primary hearing requests should be submitted in reliance on feasibte engineering and quadruplicate and must comply with the work practice means of exposure following conditions: control. 1. The objection must include the Based on the proceeding discussion, name and address of the objector: OSHA proposes to add a new paragraph 2. The objections must specify with 1910.1000(0 that explicitly sets forth particularly the provisions of the circumstances in the workplace where proposed rule to which objection is employers may choose to use respirators taken and must state the grounds in Ueu of engineering means as a therefor permissible method of controlling 3. Each objection must be separately employee exposures to toxic substances stated and numbered: and listed in the Z-tables of section 4. The objections must be 1910.1000. OSHA also proposes to accompanied by a detailed summary of modify section 1910.134(a)(1) by the evidence proposed to be introduced incorporating a statement of reference at the requested hearing. that indicates that respirators may be. Interested persons who have used in lieu of control in the objections to various provisions or have circumstances listed under proposed changes to recommend may. of course, paragraph 1910.1000(f). make those objections or n r VEV-325836 23998 Federal Register / Vol 54, No. 106 / Monday. June S. 1989 / Proposed Rules recommendations in their comments and QSHA will fully consider them. There it only need to file formal "objections" if 2. The last sentence of paragraph (aMD of 11910.134 is proposed to be revised td read as follows; full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees the interested persons desire to request an oral hearing. 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. IV. References {1610.134 Respiratory protection. (a) Permissible practice (1) * * * When effective engineering controls are not feasible, while they are being Instituted, or in circumstances meeting the requirements of 29 CFR 1910.1000(f), appropriate respirators may be used pursuant to the following requirements. Subpart Z--{Amenried] to tir confiift^nin^ within th> limits prescribed in tide section. Any equipment and/or technical measures used for this purpose most be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with 11910.134. (I) Respiratory protection may be used in Ueu of administrative or engineering controls to achieve compliance with A complete set of the references in Docket H-160 upon which this proposed action is based is available for 3. The authority citation for Subpart Z of Part 1910 continues to read as Follows: paragraphs (a) through (d) of this section nniUr the following circumstances: (1) During the time necessary to install examination and copying at the OSHA Docket Office, Room N-2825, US. Department of Labor, 200 Constitution Authority: Secs. A A Occupational Safety end Health Act 29 U-S.C. 655.6S7; Secretary ofLabor's Order* 12-71 (36 FR 8754), 6-70 (41 feasible engineering controls; (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. FR 25OS0L or 9-63 (48 PR 35736) tt applicable: and 29 CFR Part 1911. All of Subpart Z Ittuad under Sec 8(b) of the Occupational Safety and Health Act 29 U.S.C. 055(b) except those substances lilted in the Final Rule limits columns of Table Z1-A. which have identical limits listed in the Transitional limit* columns of Table Z-l-A. reduction in exposure. (3) During emergendeA life saving, recovery operations, repair, shutdowns,' and field situations where there ia a lade of utilities for implementing engineering, controls. (4) Operations requiring added Acting Assistant Secretary of tabor for Table Z-2 or Table Z-A The latter were protection where there ia a failure of Occupational Safety and Health, US. Department of Labor, 200 Constitution Avenue, NW* Washington, DC 20210. Pursuant to sections 4.6(b), 8(c) and 8(g)(2) of the Occupational Safety and Health Act (29 U.S.C. 853.855,857), 20 CFR Part 1911 and Secretary of tabor's Issued under Sec. 6(a) (5 UJLC.85S (*)). Section 1910.1000. the TransitionsI limits columns of Table Z-l-A. Table Z-2 and Table Z-3 also issuad undar 5 U.S.C. 533. Section 1910.1000, Tables Z-l-A. Z-2 and Z- 3 not issuad undar 29 CFR 1911 except for the arsenic, beitxane. cotton dust and formaldehyde listings. normal controls; and (5) Entries into unknown atmospheres. * * [FR Doc. 89-13157 Filed 6-2-89; A45*mJ SXJLMa COOS MW-IS-U Order No. 9-83 (48 FR 35738), 29 CFR Part 1910 is proposed to be amended as set forth below. List of Subjects in 29 CFR Part 1910 Section 1910.1001 slto Issued under Sec. 107 of Contract Work Hours and Safety Standards Act 40 U.S.C. 333. Section 1910.1002 not issued under 29 UJ5.C. 655 or 29 CFR Part 1911: also issued ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 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 at Washington. DC, thia 25th day of May. Alan C McMillan, underB US.C553. Section* 1910.1003 through 1910.1018 also issued under 29 U.S.C. 653. Section 1910.1025 also issuad under 29 U.S.C. 653 and 5 U.S.C. 553. Section 191A101028 alto issued under 29 U.S.C. 653. Section 1910.1043 slto issued under 5 U.S.C SSI et teq. Section* 1910.1045 and 191A1047 also issued under 29 U.S.C 853. Section 1910.1048 also issued under 29 (FRL-3598-11 Approval and Promulgation of Implsmentatlon Plana; Harris County, TX; Disapproval of Alternative Reasonably Available Control Technology Determination agency: Environmental protection Agency (EPA). Acting Anistant Secretary ofLabor, U.S.C 653. action; Proposed rule. Section* 1910.1200,191A1499 and 1910.1500 PART 1910--[AMENDED) Part 1910 of Title 29 of the Code of Federal Regulations ia proposed to be amended as follows: Subpart I--(Amended] also issued under 5 U.S.C. 553. * 4. Section 1910.1000 i> proposed to be amended by revising paragraph (e) and adding a new paragraph (1) to read as follows: {191A100Q Air contaminants. summary: This notice proposes 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 For Harris County (Houston) to allow alternative reasonably available control 1. The authority citation for Subpart 1 of Pari 1910 is revised as follows: Authority: Sect. 4.8.8. Occupational Safety and Health Act of 1970 (29 U.S.C, 053.655. 657): Secretary of Labor'* Order No. 12-71 (38 FR 8754). 6-76 (41 FR 25059) or 9-63 (48 FR 35736), at applicable. Section 1910.134 alto issued under 29 CFR Part 1911. **+ (e) Except as provided by paragraph (i) of this section, to achieve compliance with paragraphs (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve technology (RACT) for metal surface coating processes at Richmond Tank Car Company's railroad tank car repair and coating facility (In Sheldon, Harris County, Texas.) This action proposes disapproval of the SIP revision for Richmond Tank Car Company under Section 110 of the'Clean Air Act (CAA). UEV-325837