Document DemOde4R5DGvoGeoqJMRgqRQ

TO: .. Brent White-LCCF TGG: JCL: MMG: AJO: RF XF: Interoffice Communication FROM: DATE: SUBJ: T. G. Grumbles August 28, 1989 VISTA INFORMATION NEEDED TO RESPOND TO OSHA PROPOSED RULEMAKING In an effort to respond to the attached rulemaking, I need you to try and obtain information regarding maintenance activities with potential exposure to ethylene oxide. This information will be used to support comments being made by the Ethylene Oxide Industry Council. Specifically, we are looking for data to respond to the questions numbered 2, 3 and 4 in the margin of the rulemaking. The data needed would be: 1. Number of maintenance jobs done where respiratory protection was required to protect from EO exposure (i.e. line breaking, pump repair). Preferably this would be for any 12 month period but, I'll take whatever is easily retrievable. 2. The type of jobs by categories, if available. Categories would be items like pump repair, line replacement etc. 3. Duration of a typical job or jobs. Due to the tight time frame for comments we need this info by September 5. Please give me a call to discuss. T. G. Grumbles dlj Attachment VVV 000009600 TO EOIC Executive Committee Interoffice Communication 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 VVV 000009601 wmnttwtw 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. 050001-60308-2. 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. 89-13230 Filed 8-2-89; MS am] aiUJMO CODE 4S 10-22*41 DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFH Part 1910 [Docket No. H-160) RIN 121B-AA28 Health Standards; Methods of Compliance agency: 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-180, 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 N3637, 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 1010.134(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 900 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 conditionc 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 alio 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 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. 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 ovens (maintenance and repair), acrylonitrile [maintenance, repair, and vessel cleaning), end 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 VVV 000009602 23992 Federal Register / Vol, 54, No. 106 / Monday, June 5, 1989 / Proposed Rules protection and outdated based on the rulemaking records from other argument that sufficient progress haa standards which OSHA has been made in respirator technology and promulgated have been re-examined application to permit their use on a and relevant exhibits have been placed wider scale. in this record. Labor unions opposed any In order to address these criticisms change in the role of respirators in OSHA published an ANPR on February current programs. In addition, NIOSH, 22.1983, to solicit public comment on and Los Alamos and Lawerence issues such as preference for Livermore research laboratories, highly engineering controls, comparative respected for their expertise and protectiveness of respirators and experience in exposure control engineering controls, total costs of respirators and engineering controls, technology, also opposed changing the existing policy. and the use of engineering controls even The preponderance of data in this and if such controls fail to reduce levels to other rulemaking records (ethylene below the PEL. OSHA was also seeking oxide, cotton dust. DBCP. acrylonitrile, information that would help the Agency arsenic, lead, asbestos, cancer policy) to focus on three primary policy support the industrial hygiene principle considerations: that engineering controls, where The first consideration was health protection. It had been postulated that there may be many instances where feasible, are more effective in controlling exposure than other means. Commenters representing unions. (2- respirators would provide protection to 53. 2-102, 2-122, 2-98), universities (2 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-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 cost- 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 (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. effectiveness. There may be instances That * * * there are no analytical results 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 to indicate that respirators offer equal or better protection than engineering controls and with very few exceptions * * respirators simply cannot offer the same degree and reliability of protection to employees, as properly designed and operated engineering controls (2-131). protection should be made. For the foregoing reasons, it was felt to be timely and appropriate to The University of North Carolina commented that: reexamine OSHA's policy on methods of compliance, Over 135 ANPR comments were All industrial hygiene practice indicates feasible engineering controls should take precedence * * (Ex. 2-120). received, with a wide range of responses ALCOA, addressing the reliability of from industry, labor, health engineering controls and respirators, organizations, and others. In addition. provided the following: Engineering controls generally provide better and more reliable methods of protecting employee health % * Improperly wearing respirators can be a continual problem. While we believe this occurs less than 5* of the time in many of our plants, we expect it occurs 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's compliance policy: still others for abandonment of the preference for engineering controls. 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: As tong aa the employer meets a permieeible exposure limit (PEL), controls the akin contact or meets the appropriate biological levels that are consistent with employee health and safely, OSHA should not require any specific control strategy [sic]. Means for achieving such standards will often involve engineering controls and 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 workplace and the combination of engineering, administrative, and work practice controls end 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 current methods policy was actually counterproductive to worker safety and health, as follows: The threshold question is whether current OSHA standards requiring employers to implement feasible engineering controls to maintain air contaminants in the workplace to within prescribed permissible exposure limils 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 situational variations is neither the most effective approach nor in the best interest of overall worker protection. FgW professionals In industry would argue that engineering controls are 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 all hazards rather than a single hazard and must be viewed in relation to and interacting with a total workplace safety and health program. Under this total program, tbs ideal solution for the control of one hazard may likely limit en employer's ability to address the remaining segments of the program. Thus, preference for one form of control over another, unmindful of the variables involved. S Federal Register / Vol. 54, No. 100 f Monday, June 5, 1989 / Proposed Rules_________ 23993 we believe, is counterproductive to the Atlantic Richfield Company [Ex. 2-80], are not feasible before an employer can effectiveness of a balanced and truly in endorsing comments submitted by the rely on respirators to reduce employee effective overall safety and health program. For this reason,-the feasibility of an engineering control should not be the sole determinant of its use and OSHA policy should not reflect this short-sighted goal. Specific companies reflected similar concerns. Thus, the DOW Chemical Company [Ex. 2-71] noted: American Petroluem Institute [Ex. 2-73], noted: Employers 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 workers exposed to contaminants. Varying control strategies will 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 The prime concern in any reconsideration achieve that goal at least equally well, and compliance policy more uniform and of the meihods-of-compliance provisions often more cost-effectively, as the fixed understandable. must be maintenance of safety and health protection for employees to prevent workrelated injuries, illness and death. Such protection cannot be achieved by mandating 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 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 was adopted. Data obtained from research on the performance of respirators in the workplace, much of it 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 are used correctly in a good respirator program. In many cases they provide the most cost effective means of control Accordingly. DuPont believes that respirator*, like engineering and administrative controls, have 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 controls provided by current policy. In support 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 advances in both technology and applicability of respirators in the last decade. New methods 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, 2-76], 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. 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 DlOSt cases. Within IKphp rirrumatances employers wilTha 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 controls augmented as necessary by personal The Proposal current standards. OSHA's enforcement protective equipment and/or work practice controls. The choice of methods should depend on the factors in each specific situation. The choice of the proper method(s) of compliance involves, therefore, far more than the simple dichotomy of engineering controls versus respirators. For this reason, the question "Which are better, engineering controls or respirators?*' cannot ba 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 6(b) standards and data and information submitted for the record, under which more extensive use of respirators may be appropriate. 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 satisfactorily answered in the abstract. As The record does identify specific in some substance-specific standards. 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 professionals. So long at the two criteria identified above have been met, an employer should not be needlessly contrained from choosing the control strategy situations where engineering controls generally may not be feasible, and 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 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 1810.1048(a)(l)(ii), Formaldehyde; 19llX1047(g)(l)(n}. Ethylene oxide (EtO); 1910.1043(0(l)(ii), Cotton dust; that makes sense for his particular operation. engineering and work practice controls 1910.1029(g)(1)(b). Coke Oven emissions: VVV 000009604 23994 Federal Register / Vol. 54, No. 106 / Monday, June 5, 1989 / Proposed Rules 3910.1018(h)(1)(ii). Inorganic arsenic; due to the general infeasibility of appropriate for clarification purposes. 1910.1001(g)(iij. Asbestos, tremolite, engineering control implementation or Comment is requested on this issue. anthophylhte. and actinoiite). for which respirators would, in any case, OSHA points out that this exception OSHA has not proposed an explicit provide sufficient protection. does not cover the required exclusion for maintenance activities for The five sets of circumstances that supplemental use of respirators when * the generic standards. As OSHA observed in the preamble to the carcinogen policy, based on its review of that voluminous record, although have been identified by OSHA from data in the record where engineering controls may generally be infeasible include: feasible engineering controls do not "achieve full compliance" pursuant to 29 CFR 1910.1000(e). Rather, it refers to 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 5226. 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 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 aa 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 ail feasible engineering 1. OSHA is proposing to allow (Ex. 2-36). 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 specifically identified in submissions to reliance on respirators when feasible engineering control requirement the ANPR (Exs. 2-91,2-50), and in all engineering controls only achieve exclusively for maintenance exposures substance specific standards (see e.g. 29 negligible exposure reduction. If in the would or would not be appropriate. (For CFR 1910.104(g)(1)(i), EtO; case of foundries, the installation of activities such as shutdown and repair, 1910.1045(h)(l)(i), cotton dust). local exhaust hood9 and increased which are necessary due to unexpected 2. OSHA is proposing to allow or unpredicted occurrences, respirators primary reliance on respiratory housekeeping make little difference in die employee's exposure because of would be permitted as they would be the only available source of protection against exposure.) 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 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 requests comment on whether setting forth this additional explicit regulatory language is necessary in light of existing provisions requiring that only feasible engineering means be implemented to reduce exposures. Current OSHA enforcement policy and practice recognize that the degree of expected exposure reduction is part of the can reduce exposures, although not down to the PEL'S, the unrevised supplemental respirator use provision of $ 1910.1000(e) would, as now, come into play and require a combined control strategy, and not total reliance on. respirator protection. OSHA also notes that confining 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 require widespread use of respirators. Therefore, the Agency is interested in receiving comment on the practicality of listing specific maintenance jobs for which engineering controls are generally infeasible or maintenance activities where respirator use is otherwise to supplement the current compliance requirements with specific language as suggested above. Further, to define in regulatory terms on a broad basis what a "negligible" reduction in exposure level is in general industry as a result of engineering control implementation, as opposed to defining it on a case-by-case unwarranted conclusion of infeasibility, loss of productivity or ineffectiveness. NIOSH has pointed out that, for example, in the plastics and resins industry, implementing controls for cotton dust and in silica flour milling, engineering control modifications and innovation increased production and appropriate based on consideration of enforcement basis, may prove to be control effectiveness over duration, frequency and whether routine or not. Thus, data are solicited regarding circumstances, conditions, frequency, \confusing to employers and impractical to OSHA. Nevertheless, since the potential success of exposure reduction "conventional" technology. (Ex. 2-81). Innovative controls which are available will have to be assessed before this is considered in determining feasibility, exception may be relied on. and duration of the types of industry wide maintenance activities that typically require the use of respirators proposing specific language to that effect would not change current OSHA policy and therefore, may be 3. The third provision proposed by OSHA to permit reliance on respiratory equipment encompasses several VVV 000009605 Federal Register / Vol. 54. No. 106 / Monday, June 5, 1989 / Proposed Rules 1 23995 circumstances where total reliance on engineering controls would be essential for these activities, and that engineering controls were, in the main, ineffective or inappropriate. These are infeasible (Ex. 2-112). emergencies, recovery operations, unscheduled repairs shutdown, and In OSHA believes that employees will be effectively protected in the situations field situations where there is a lack of utilities for implementing engineering controls. evisioned in provisions 4 and 5. by the proper selection and use of respiratory protection. OSHA believes that in these circumstances, respiratory protection has proven itself generally as the most The Agency requests comments on all specta of these proposed provisions. In particular, the clarity of the "exception and often the only practical means to provisions'* is 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 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 res.pirators, i.e., lack of em.ploy.ee ^sviewa, 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 wom during engineering controls, and which should emergencies, recovery operations, be allowed for, 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, Monsantcy^yappropriateness of permitting the use of noted that during emergencies (liquid (Hvrespirators for work situations in which spills, fire fighting, etc.) respirators are the hazardous exposure is of very brief 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. $51910.1Q18(h)(l)(ii), quality assurance samples, removal of arsenic: 4 1910.1029(g)(1)(d), coke oven biological indicators, and changing of emissions); and 6 1910.1044(b)(l)(iv), DBCP). 4. OSHA is also proposing to allow reliance on the use of respirators in ethylene oxide tanks or cylinders. These activities are typically brief in nature. The concept of according acceptability 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'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 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 back-up respiratory protection is normally maintained in all locations particular substance using Industries. Thus, it is not presently clear to OSHA where hydrogen sulfide (HaS) gas is whether such exclusions can be produced in case of accidents'* (Ex. 2- appropriately applied generally. Another 60). 5. The fifth circumstance proposed to regulatory agency, the Mine Safety and Health Administration (MSHA), is also allow reliance on respiratory protection is for entries into unknown atmospheres. Preliminarily. OSHA intends to cover confined spaces or vessel entry and tank exploring the issue of ways to permit more flexibility in required exposure control methods for unusual situations. For example, MSHA is considering cleaning and vessel cleaning. Most permitting the use of respirators in commenters who addressed this issue agreed that respiratory protection was "tasks such as maintenance or 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 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 by permitting the use of respirators in 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 intermitlency 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 methods of compliance requirements. Cjj? 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 specific time limitations as to the 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 such 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 VVV 000009606 23996 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 (STELs). The preambles to the recently promulgated benzene (52 FR 34460) and formaldehyde (52 FR 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 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 1' 'J/making appropriate changes to each v*--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 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 S ithe adequacy of exposure control: work respirators. Since OSHA has received(\) .rate; 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 of control failure before meeting STEL's on a widespread basis, harm; and the extent to which the Agency is raising this issue for comment. employees may be expected to wear respirators for any required period. The Agency is raising this issue for comment in conformance with statements to that effect in the ethylene oxide, benzene and formaldehyde standards. OSHA therefore requests substantive technical data concerning Comment received on these factors as set forth in the ANPR revealed that an' important role is played by each in determining the suitability of compliance methodology. Engineering controls were suggested as being conditions and situations under which,--^ particularly preferred where health respirators can be employed (lUTeffects are more severe, where there are successfully in lieu of other controls tos!_ii/more lengthy and 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 respirators for protection the work 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 respirator use would provide would be equal to the protection (\-\ appropriate protection and would, thus, Uprovided through implementation of (J J b\ e permitted under thee rule. How would engineering controls. In particular, the it be determined that employees would 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 givea either. Are there circumstances in which as to whether an increased degree of cost effectiveness factors are a /_protection may result where respirators legitimate consideration in determining(iHyre in comformance with the new the acceptability of one exposure vL^Tespirator 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 effecUvenesa*_respirator use is equally protective as of a control method before costs couldU^f y 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 particular situation were raised for comment in the ANPR. OSHA seeks notwithstanding. Nevertheless, OSHA seeks comment that would show the appropriateness of allowing cost effectiveness to be incorporated as a control method selection factor. In the preceeding discussion, OSHA 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 and chronic certain instances where the employer health effects: length and frequency of has submitted a comprehensive written VVV 000009607 Federal Register / Vol. 54. No. 100 / 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 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 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 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 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 control method which limits contaminant entrance into the workplace (e.g. engineering controls) has been clearly shown to be a more 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), 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). IIL Public Participation respirators can be monitored readily in comment on whether continuance of the Interested persons are invited to some manner, such as by biological control hierarchy is still necessary in submit written dala. 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 (^H^or befre October 3.1989, and submitted approved respirator use. Views are compliance rule is a viable option. in quadruplicate 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 Compliance 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 even more flexibility with regard to demonstrate that adoption of a performance oriented compliance which are addressed, and the position taken .on each issue. respirator use is to allow employers requirement will maintain the protectiq The data, views, and arguments that under any circumstances to comply with exposure limits by any method the employer deems advisable. Some afforded employees under current methods of compliance provisions. If th employer is permitted to choose any mix ^ e submitted will be available for public inspection and copying at the above address. All timely submissions commenters have suggested that establishment and enforcement of a good respirator program will result in effective exposure control where of control methods to achieve compliance, should choice of the method be at the discretion of the employer or should the method chosen be required to will be part of the record of the proceeding. Requests for Hearing respirators are used in place of be approved by a professional in ttaf'CTN. Under section 6(b)(3) of the OSH Act engineering controls, and that employers field of safety and health or other 29 CFR 1911.11, interested persons should be allowed to implement such technicially qualified person? v'----'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 OSHA's current policy should provide the employer (Exs. 2-61, 2-68, 2-93, 2-94, pertinent data that demonstrate the objections to the proposal and request an informal hearing. The objections and 2-109). For example, the Ethyl Corporations states that "The necessity of maintaining primary reliance on feasible engineering and hearing requests should be submitted in quadruplicate and must comply with the government should not regulate the need work practice means of exposure for engineering controls but should control. following conditions: 1. The objection must include the regulate the use of personal protective equipment, requiring the employer to Based on the preceeding discussion, name and address of the objector: OSHA proposes to add a new paragraph 2. The objections must specify with show that protection is being provided" 1910.1000(0 that explicitly sets forth particularly the provisions of the (Ex. 2-109). The American Petroleum circumstances in the workplace where proposed nile 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 lo 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 VVV 00000960a 23998 Federal Register / VoL 54, No. 108 / Monday, June 5, 1989 / Proposed Rules recommendations in their comments and 2. The last sentence of paragraph full compliance, protective equipment or OSHA will fully consider them. There is only need to Hie formal "objectiona" if 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-16Q, Room N-3637, U S. Department of Labor. 200 Constitution Avenue. NW., Washington. DC 20210, (202) 523-8615. (a)(1) of 1910.134 is proposed to be revised to reed aa follows; 5 1910.134 Respiratory protection. (a) Permissible practice (!)* When effective engineering controls ere 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. any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must 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 $ 1910.134. (0 Respiratory protection may be used IV. Reference* 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 circumstance*: action is based is available for follows: (1) During the time necessary to install examination and copying at the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Authority: Sees. 6,8. Occupational Safety and Health Act. 29 U.S.C. 655.657; Secretary of Labor's Order* 32-71 (36 FR 8754), 6-76 (41 feasible engineering controls: (2) Where feasible engineering controls result in only a negligible Avenue, NW., Washington, DC 20210, between &30 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 sections 4,6(b), 8(c) and 8(g)(2) of the Occupational Safety and Health Act (29 U.S.C. 853, 655.657), 29 CFR Fait 1911 and Secretary of Labor's Order No. 9-83 (48 FR 35736), 29 CFR Part 1910 is proposed to be amended as FR 25056). or 9-83 (48 FR 35736) as applicable; and 29 CFR Part 1911. Ail of Subpart Z Issued under Sec 6(b) of the Occupational Safety and Health Act. 29 U.S.C. 655(b) except those substances listed in the Final Rule Limits columns of Table Zt-A which have identical limits listed in the Transitional Limits columns of Table Z-l-A Table Z-2 or Table Z-3. The latter were issued under Sec. 6(a) (5 U.S.C 655 (a)). Section 1910.1000, the Transitional Limits columns of Table Z-l-A Table Z-2 and Table Z-3 also issued under 5 U.S.C. 533. Section 1910.1000, Tables Z-l-A Z-2 and Z3 not issued under 29 CFR 1911 except for the arsenic, benzene, cotton duet, end formaldehyde listings. Section 1910.1001 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. |99 (FR Doc. 89-13157 Filed 6-2-89; 8:45 am) BIU4NO CODE 4*10-3*41 ENVIRONMENTAL PROTECTION set forth below. 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 at Washington. DC, this 25th day of Msy. Alan C. McMillan, Standards Act. 40 U.S.C 333. Section 1910.1002 not issued under 29 U.S.C. 655 or 29 CFR part 1911: also issued under 5 US.C. 553. Sections 1910.1003 through 1910.1018 also issued under 29 U.S.C 653. Section 1910,1025 also issued under 29 U.S.C. 653 and 5 U.S.C 553. Section 1910.101028 also issued under 29 U.S.C 653. Section 1910.1043 also issued under 5 U-S.C. 551 et seq. Sections 1910.1045 and 1910.1047 also issued under 29 U.S.C. 653. Section 1910.1046 also issued under 29 AGENCY 40 CFR Part 52 [FRL-3596-1] Approval and Promulgation of Implementation Plans; Harris County, TX; Disapproval of Alternative Reasonably Available Control Technology Determination agency: Environmental Protection Agency (EPA). Acting Assistant Secretary ofLabor. U.S.C 653. action: Proposed rule. Sections 1910.1200.1910.1490 and 1910.1500 PART 1910--(AMENDED] also issued under 5 U.S.C 553. summary: This notice proposes Part 1910 of Title 29 of the Code of Federal Regulations is proposed to be amended as follows: Subpart!--[Amended] 4. Section 1910.1000 is proposed to be amended by revising paragraph (e) and adding a new paragraph (f) to read as follows: 1910.1000 Air contaminants. disapproval of a State Implementation Plan (SIP) revision submitted by the Stale 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 Part 1910 is revised as follows; Authority: Secs. 4, 6.8. Occupational Safety and Health Act of 1970 (29 U.S.C. 653. 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 6754). 6-76 (41 FR 25059) or 9-63 (46 FR 35736), as applicable. Section 1930.134 also issued under 29 CFR Pari 1911. ** (e) Except as provided by paragraph (f) 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). vvv 0009609