Document JRXg6DgNnq61Qn73ZdxvGDMv

27962 " , RULES AND REGULATIONS ; [4510-26] - " ' ', , ' ^ Till* 29--Labor , CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINIS TRATION, DEPARTMENT O^OABOR PART 1910-OCCUPATIONAL SAFETY AND HEALTH STANDARDS Occupational Expotur* to Banzana; Liquid Mlxtura* AGENCY: The Occupational Safety and Health Administration, Depart ment of Labor. _ ACTION: Pinal rule. ''' ' ' ' " ' SUMMARY: This document amends the recently issued occupational safety and health standard for exposure to benzene by: (1) Exempting from all the provisions of the permanent stand ard for benzene (29 CFR 1910.1028), for the first three years following the effective date of this amendment, liquid mixtures containing 0.5 percent or less benzene, and thereafter liquid mixtures containing 0.1 percent or less benzene: and (2) exempting from the labeling requirements liquid mixtures containing benzene which 'are already packaged and which contain 5.0 per cent or less benzene. The amendments are in response to several petitions concerning the applicability of the benzene standard to liquid mixtures. EFFECTIVE DATE: June 27. 1978. FOR FURTHER INFORMATION CONTACT; Mr. Gall Brinkerhoff, Office of Com pliance Programs, OSHA, Third Street and Constitution Avenue NW,, Room N3112, Washington, D.C. 20210, telephone 202-523-8034. SUPPLEMENTARY INFORMATION; These amendments are issued pursu ant to sections 4(b) and 6(b) of the Oc cupational Safety and Health Act of 1970 (the Act) <84 Stat. 1592, 1593; 29 U.S.C. 653, 655), the Secretary of Labor's Order No, 8-76 (41 FR 25059) and 29 CFR Fart 1911. These amend ments appear at 29'CFR 1910.1028 (a)<2Klii) and at 29 CFR 1910.1028 (k)(2)(ill). 1. Background Benzene is a 'naturally occurring constitutent of crude oil and national gas produced from underground reser voirs and surfacing through wells. There are approximately 630,000 wells in some 10,000 oil and gas fields in the U.S. (exhibit 29D1). One or more res ervoirs underlies each of these oil and gas fields (exhibit 29f, p. 2). Since crude oil and natural gas vary In com position and physical properties from reservoir to reservoir (exhibit 29f, p. 2), the benzene content of the fluid at a particular oil or gas field may vary (exhibit 29f, pp. 7-8). This petrochemi from well to welL . - ,, Y cal feedstock Is used to produce ethyl From the wellhead, the reservoir benzene, styrene monomer, cumene, fluid Is delivered by flow lines or gath phenol, cyclohexane, and nitroben ering lines to separation facilities (ex zene. - -' - hibit 29D1) or field treatment plants Processed refined petroleum prod (exhibit 29f, p. 4) where it undergoes a ucts are distributed through market number of production treatment steps ing channels, including bulk terminals necessary to produce marketable crude .and bulk plants, to consumers. Initial oil, condensates and natural gas distribution from the refinery storage streams, as well as a variety of hydro facilities may be by pipeline, barge, carbons (exhibit 29f, p. 4). -- ' marine -tankers, tank truck or tank oar The benzene content of crude oil (exhibit 29f, p. 11). These refined ranges from below detectable limits to products have numerous uses, such as greater than 1 percent (exhibit 29f, p. fuels, extractants, processing aids, and 3). Condensates -produced from natu solvents in paints, surface coatings, ad ral gas liquids present in both crude hesives and pesticides, inks, etc. The oil and natural gas- (exhibit 29f, pp. 2 benzene content of these products 3) have a higher percentage of ben varies from less than one-tenth to a zene than crude, with that percentage few percenter. 284, comment 53, 58, ranging from approximately 0.2 to 1.0 21,35). -- _- percent by volume (exhibit 29D1). The There are some substitutes for ben benzene In natural gas varies from 0 to zene; however, most of the solvent about 4 percent (exhibit 29D1). ' " substitutes themselves contain ben From the separation facilities or, ' zene. As Indicated below, the percent treatment plants, the crude oil, con age of benzene in some substitutes densates and liquid and gaseous hy may range up to 4 percent (18-45; tr. drocarbons are delivered to refineries 304). either by waterway or by pipelines (ex - Benzene,is also derived from coal. hibit 29D1; Comeaux). It is common Recovery of coal-derived benzene, pri practice for liquids from a number of marily as a by-product of the coking fields to be combined into one pipeline process ih steel mills, accounts, howev stream for transportation do refineries er, for only 6 percent of the total U.S, (exhibit 29D1; Comeaux, p. 4). production <43 FR 5918). The light oil, At the refineries, the crude oil and which is condensed from coke gases, field condensate liquids are stored in contains up to 70 percent benzene. holding tanks prior,to processing (ex This light oil is distilled to produce hibit 29f, p. 5). Typical petroleum re benzene. Most light oil plants do not fining processes are many. Not all re-. produce benzene but sell their light oil fineries have all of these processes to- petroleum refineries for further since there is specialization, such as processing. Only-10 light oil plants do fuels, lubes or petro-chemical operv produce benzene and-these sell it to atlons, within'refineries (exhibit 29f, other users. p. 5). At all refineries, however, addi tional benzene is generated during re __ IL History or Regulation fining by catalytic cracker, reformer On February 10, 1978, a permanent and coker operations (exhibit 29f, p. 2; occupational safety and health stand tr. 284). ', - ard regulating occupational exposure Petroleum refined products are- to benzene was published in the Fed many and their benzene content varies eral Register (43 FR 5918) as 29 CFR according to the content of the crude 1910.1028. (A correction document was taken into the refinery, the nature or published on March 31, 1978, at 43 FR the efficiency of the refining process, 1356,1). This standard required em and the balance of product demands ployers to take prescribed measures to on the refinery. Thus, the benzene control employee exposure to benzene. content of product streams within a The standard applied to- each place of single company may vary from refin employment' where benzene In any ery to refinery or within a single refin quantity was produced, reacted, re ery from year to year. The same prod leased, packaged, repackaged, stored, uct from different refineries or at dif transported, handled or used. The ferent times from the same refinery, standard contained no percentage ex consequently, may have a different ; elusion and applied to work operations benzene content (tr. 284-5). Motor gas involving any amount of benzene. oil.e ranges from 1 to 3 percent ben The permanent benzene standard zene by volume (Bailey). Aviation gas was developed, pursuant to sections oline, specialty naptha solvents and 6(b) and 6(c) of the act, after exhaus naptha-based, (type B) jet fuels may tive rulemaking which commenced exceed 1 percent benzene concentra with publication on May 3, 1977 of an tions. Heavier jet fuel (type A), light Emergency Temporary Standard for fuel oils and cutback asphalts may oc-. Occupational Exposure to Benzene (42 casionally exceed 0.01 percent ben FR 22516). The emergency temporary zene. Petrochemical feedstock napthas standard exempted liquid mixtures and certain aromatics, such as toluene containing 1 percent or less of benzene may contain up to ' percent benzene ' volume, or the vapors released from FEDERAL REGISTER, VOL. 43, NO. 124--TUESDAY, JUNE 27, 197# DBZ0019557 RULES AND. REGULATIONS 27963 these liquids. On May 27, 1977, OSHA published a proposed permanent standard to control occupational expo sure to benzene <42 FR 27452). This proposed standard would also have exempted work operations where the only exposure_to benzene was irpm liquid mixtures containing LO percent <0.1 percent after 1 year) or less of benzene by volume, or the vapors re leased from these liquids. On the basis of the record developed in the rule making on the permanent benzene standard (Docket H-059), OSHA con cluded that there was no consistent predictable relationship shown be tween the percentage of benzene in a liquid mixture and the resultant air borne exposure to benzene and that, consequently, the percentage proposed exclusion could not be supported (43 PR 5942). ' - After promulgation of the final standard which contained no percent age exclusion, OSHA received requests from several employers and employer groups for an administrative stay of the standard or other relief from the provisions of the standard as it applied to work operations where exposure to' benzene resulted from liquid mixtures containing small or "trace'' amounts of benzene. For reasons set forth in Its notice (43 PR 12890, March 28, 1978), OSHA proposed to amend the benzene standard to exclude from its coverage work operations where exposure to benzene Is from liquid mixtures con taining 0.1 percent or less benzene or the vapors from such liquids. Skin con tact with such mixtures would also be excluded from the standard. Pending final action on `this proposed amend ment, OSHA stayed the application of the provisions of the benzene standard to such work operations <43 PR 12891). Since this stay was Immediately effec tive, OSHA commenced an expedited rulemaking to resolve the percentage exclusion question so "that employers could know which, if any, of their op erations were excluded from the per manent benzene standard. (A correc tion document was published on April 4, 1978, at 43 FR 14071). On April 28, 1978, OSHA published a notice of hearing on the proposed amendment (43 FR 18215). The public hearing on this proposal was held on May 23 and May 24 at Washington, D.C. Approxi mately 40 individuals participated at this hearing. Furthermore, more than 100 comments, arguments, and views were received from Interested parties. The verbatim transcript of this hear ing, as well as the numerous com ments, exhibits, and briefs submitted to OSHA before, during and after the hearing, are part of this rulemaking record, along with portions of the record in the earlier benzene proceed ing which were relevant to the issues herein. The rulemaking record was originally scheduled to close on June 8, 1978. but, at the request of partici IV. Principal Issues Involved pants, was kept open until June 12, 1978. - ,,, These amendments are based on a careful . consideration of the entire The following is a discussion of the major issues- involved in the rulemak ing on the proposed percentage exclu sion and an analysis of the evidence - record of the Informal rulemaking submitted into the record. The exhibit hearing, including the transcript, ex numbers refer to the certified exhibit hibits, and prehearing and post-hear list of docket H-059A. The first ing written comments. Copies oi the number designates the particular ex- _ official list of hearing_exhlbits, com hibit on that list. Where the exhibit ments, and notices of Intent to appear contains more than one item, the at the hearing can be obtained from second number references the particu the Docket Office, Docket H-059A, lar item of the exhibit. The designa-- Room S6212, U.S. Department of tlon "tr." refers to the transcript of . Labor, 3rd Street and Constitution the hearing on percentage exclusion Avenue NWi, Washington, D.C. 20210. and Indicates the pages of that tran script which are referenced. Further HL Regulatory Analysis and more, the designation "PC" refers to Environmental Impact , . post hearing comments submitted by Since an economic Impact statement for the permanent standard (43 FR 5918) was prepared by OSHA pursuant to Executive Orders 11821 and. 11949, interested parties. All references are intended to provide examples of record support for the information stated. .. OSHA has not performed _a separate (1) WHETHER WORK OPERATIONS SHOULD regulatory analysis pursuant to Execu BE EXEMPT FROM 1910.1028 WHERE tive Order 12044 (43 FR 1266L March THE SOLE OCCUPATIONAL EXPOSURE TO 24, 1978). The economic analysis for BENZENE IS FROM LIQUID MIXTURES the permanent standard considered CONTAINING LESS THAN A SPECIFIED the economic impact of compliance on PERCENTAGE OF BENZENE . employers with operations utilizing liquid mixtures containing any amount of benzene (43 FR 5934-5941). This amendment exempts from the permanent standard operations utiliz ing 0.5 percent or less benzene (0.1 percent or less after 3 years) and, therefore, reduces the cost of compli ance with the standard. In view of the fact that the amended standard does not require that em ployers reduce the amount of benzene in their products, costs involved in re ducing the percentage of benzene In liquid mixtures in order to avoid cover age by this standard have not been at The majority of those responding recommended that the benzene stand ard be amended to exclude from its coverage liquid mixtures containing less than a specified percentage of benzene. Reasons in support of this form "of exemption varied. Some par ticipants argued that exposure to low levels of benzene does not result in any health hazard, particularly leuke mia (tr. 225, 391, 313, and exhibits 18 34, 63, 7T, 84, 91). Other participants pointed out that they do not add ben zene to their products but that ben zene Is an unavoidable contaminant in all. petroleum based products (tr. 68, tributed to the amended standard." 78, 88, 106, 107, 120, 129, 132, 163, 168, The final environmental impact statement published January 1978,. prior to the issuance of the permanent 187, 215, and exhibits 18-4L 93, FC-58). Oil and gas producers stressed that benzene is a natural contaminant of benzene standard concluded that the1 standard -would have a beneficial crude oil and gas 2nd. that it is techno logically infeasible to remove benzene impact on the workplace environment at the wells (exhibits 18-77, 85, 1, 19). and also that beneficial effects on the Refiners contended that it is economi environment external to the work cally prohibitive to remove benzene place may also be anticipated. This from their process streams, particular amendment to the permanent benzene ly within a short timeframe (exhibit standard may result in employers 18-48). Most industry participants pre switching to other solvents (containing sented data indicating that the low lower benzene contamination levels). levels of benzene in. the liquid mix However, the atmospheric impact of tures present in their workplaces pro such action is. not expected to be sig duced airborne concentrations below nificant. Where reformulation Is ac the standard's permissible exposure complished to reduce organic solvent limit of 1 ppm. (This data is discussed usage, the atmosphere will realize a re below under issue 6.) duction In total hydrocarbon load. As Objections to any percentage exclu these types of actions were addressed sion for airborne exposure were raised in the final environmental Impact by the Oil, Chemical & Atomic Work statement, this amendment is not ex ers (tr. 400), OCAW argued that, even pected to alter the basic conclusions where low percentages of benzene contained in that document. Accord were present in liquid streams, 'refin-' ingly, it was concluded that no new en ery process units were subject .to fre vironmental impact statement was quent leaks resulting in employee ex necessary for this amendment. ' posures above 1 ppm. OCAW contend- FEDERAL REGISTER, VOL 42, NO. 124--TUESDAY, JUNE 27, 1978 DBZ0019558 27964 RULES AND REGULATIONS ' ed that only where process units are well maintained, can exposures be re duced to the permissible exposure limit, but that such high quality main tenance cannot be guaranteed (tr. 402). " The United Rubber, Cork, linoleum Sc Plastic Workers of America (DRW) contended by way of comment that while reduction of the amount of ben zene in a liquid can result in reduction of airborne concentrations to conform with a PEL of 1 ppm, reduced levels cannot be attained in certain processes unless ventilation control Is provided. URW also objected to permuting dermal contact with benzene mixtures where there has been no documenta tion of a "no-risk" health factor to benzene on skin contact, and recom mended that temporary variances be sought by industry In situations where the use of protective clothing is a problem (exhibit 18-33). _ The Public Citizen Health Research Group opposes the proposed amend ment on the grounds that there is no safe level for exposure to a carcinogen and that liquid mixtures containing 0.1 percent benzene have been shown to give rise to exposure levels in excess of the PEL of 1 ppm (exhibit 18-94). For different reasons, the American Petroleum Institute also urged that a percentage exclusion not be adopted, other than possibly for dermal expo sure. API's objections to a percentage exclusion were based on the view that the medium or matrix in which ben zene is found, the environmental con ditions of temperature, humidity, air movement, and physical volume of space, the physical nature of the system in which benzene is found-- namely whether in a closed or open system, and work practices are all critical to reduction of benzene expo sure. In lieu of a percentage exclusion, API proposed that OSHA limit the scope of the- benzene standard by adopting appropriate triggering mech anisms for activation of individual pro visions of the standard. Thus, initial monitoring of airborne . exposures should occur, in API's view, only when professionals, acting for the employer, have reason to believe that employee exposure is above the level which trig gers the monitoring requirement (tr. 353). Dr, Hervey B. Elkins testified on- behalf of AISI that a percentage ex emption would be appropriate inas much as naturally occurring benzene Is found as a contaminant in many liq uids employed in industry, formula tion of many products will involve in gredients which often contain benzene in small quantities, and many products are made by chemical reactions em ploying benzene as a raw material. Dr. Elkins indicated that to completely eliminate the last traces of benzene from these materials may be very dif ficult (PC 82). '' (2) WHETHER 0.1 PERCENT BENZENE IS THE APPROPRIATE PERCENTAGE FOR EX EMPTION, OR WHETHER THE PERCENT AGE FIGURE SHOULD BE HIGHER OR LOWER ' Some participants supporting a per centage exemption indicated that 0.1 percent would be of no significant, benefit to them since the benzene con taminated mixtures they used con tained benzene in excess of that figure. They also argued that a higher percentage exemption would be appro priate since the airborne concentra tions arising from the higher benzene content mixtures did not generally exceed 1 ppm. _ Purther,. industry participants pro vided evidence that, at present,'many suppliers cannot furnish the various benzene-contaminated materials used in their processes with a benzene con tent as low as 0.1 percent. (This evi dence is discussed in detail in issue 5.) For example, tire manufacturers testi fied that the rubber solvents used in tire building could not be obtained with any confidence that the benzene content would not be up to at least 0.7 percent. They maintained, therefore, that a percentage exemption of at least 0,7 percent would be appropriate, especially to provide relief from the requirement for protective clothing which is infeasible in these operations (tr. 68, 87, 108, 170, 188, 212, 215). The Adhesives Sc Sealant Council (tr. 224), Wilhold Glues (tr. 224), St. Clair Rubber Co. (tr. 260), Miracle Ad hesive Corp. (tr. 268), DuPont (tr. 313), the American Iron & Steel Insti tute (tr. 396), and others (exhibits 18 16, 21, 61, 53, 55, 56, 45, 108) suggested that, because of the unavailability of low benzene solvents and the-lack of potential for exposure above 1 ppm, that a 1.0 percent exemption would be appropriate. The B. F. Goodrich Co. indicated that while they would be willing to comply with a 0.1 percent exemption as it would apply to genera tion of airborne concentrations, a spe cial action level of 0.5 percent for acti vation of dermal protection require ments would be necessary for them to be able to comply with the standard. Other participants argued that 0.1 percent la inappropriate since expo sures below 1 ppm occur in such oper ations as oil and gas production with crude oil and gas liquids containing up to 4 percent benzene (exhibit 18-71, PC 81). Industry participants endorsing a 0.1 percent exclusion did so primarily be cause the benzene containing materi als used in their operations generally contained less than 0.1 percent ben-, zene and they would thus be exempt from the standard (exhibits 18-29, 37, 46, 70, 89, 106, 107). . Dr. Hervey Elkins testified that, while it may not be possible to estab lish liquid percentage limits that will guarantee, with complete certainty in every possible situation, airborne con centrations that will not exceed a specified level, it would be logical and appropriate to accept a particular per centage exemption which would most likely, based on calculations of availa ble data, be consistent With a permissi ble exposure limit of 1 ppm. The cal culations provided by Dr. Elkins were based on theoretical considerations, and1 on extrapolation from data in papers written by him. The mean of all values of benzene percentage limits' in liquid mixtures consistent with a permissible exposure level of 1 ppm was calculated by Dr. Elkins to be 0.5 percent (PC 82). ' (3) WHAT IS THE CURRENT PERCENTAGE (OR RANGE OF PERCENTAGES) OF BEN ZENE IN LIQUID PRODUCTS, SUCH AS PRINTING INKS, PETROLEUM SOLVENTS . SUITABLE FOR TIRE BUILDING, ATHE' SIVES, SEALANTS, PAINTS, COATINGS, DE TERGENTS, INSECTICIDES, DISLNFEC- TANTS, WAXES, FLOOR FINISHES, CRUDE OIL, PETROLEUM SOLVENTS OF VARYING. GRADES, GAS LIQUIDS, LUBRICATING OILS, PETROCHEMICALS, GASOLINE IN REFINERY STREAMS, AND SIMILAR PROD UCTS -' - Participants who furnished informa tion on this, issue generally indicated that, since benzene is primarily a con taminant rather than an intended final ingredient, the benzene content of liquid products would vary not only from supplier to supplier but also from the same supplier. The American Pe troleum Institute has indicated that production factors, which cause vary ing benzene content in their products, include differences in crude runs, the nature and efficiency of individual re finery process and the specific balance of final products produced at any point in time (PC 104). Tire manufacturers reported rubber solvents used in tire building as con taining up to 1.0 percent benzene, with only one supplier claiming capability of supplying solvents with 0.1 percent benzene or less. However, industry analysis of that company's shipments indicated benzene content from 0.097 to 0.137 percent (tr. 88, 95, exhibits 18 45). Petroleum based solvents used in the formulation of adhesives and glues was reported to vary from 0.3 percent to 3 percent (exhibits 18-26), while the finished products and other products such as paints, waxes, floor coatings, and printing inks, normally contain benzene well below 0.1 percent. The benzene content of gasoline was re ported as covering a range from 0.5 to 3.5 percent with most samples contain ing less than 2.0 percent benzene (tr. 344). The American Petroleum Insti tute submitted results of analyses for benzene on 1,007 samples of crude oil, liquid condensate, natural gas liquids, and gas plant streams. A summary of FEDERAL REGISTER, VOL 43, NO. 124--TUESDAY, JUNE 27, 1978 ( RULES AND REGULATIONS - 27965 this data reveals 40 percent of the samples containing less than 0.1 per cent benzene, 34 percent containing between 0.1 and 0.5 percent benzene, 10 percent containing between 0.5 and 1.0 percent benzene, 5 percent contain ing between 1.0 and 2.0 percent ben zene, and 2 percent of the samples containing greater than 2.0 percent benzene (PC 81). Rohm Ss Haas Co. re ported that none of their 2,768 prod ucts,' primarily synthesized organic chemicals, contained greater than 0.1 percent benzene and that benzene was an unintended contaminant ip all but 2 of those products (exhibits 18-31). (4) WHAT IS THE CURRENT PERCENTAGE (OR RANGE OP PERCENTAGES) OP BEN ZENE IN OTHER SOLVENTS COMMONLY USED AS SUBSTITUTES POR BENZENE SUCH AS TOLUENE, XYLENE, HEXANE, AND SOLVENT NAPTHAS - Data provided on this issue came pri marily from companies not using ben zene as a raw material but using mate rials such as toluene and xylene and other solvents contaminated with ben zene. It was indicated, however, by the rubber manufacturers and adhesives and sealant manufacturers, that refor mulation or substitution of materials containing no benzene would be infea sible and could possibly diminish the integrity of the final product (tr. 101, 213, 254, 315). The benzene levels reported in other solvents were somewhat varied, again due to different suppliers, process con ditions and equipment used In their manufacture. As a result, it is difficultto Identify specific percentages of ben zene content In substitute substances with any degree of accuracy, For ex ample, the Adhesives is Sealant Coun cil, Inc., reported that members whose hexane suppliers are located on the west coast show benzene levels of 0.3 percent or higher, while members In other parts of the country purchase hexane with benzene content typically below 0.1 percent. Ranges of benzene Impurity reported by the Council in clude hexane 0,001-2,3 percent; to-, luene 0,005-0.24 percent; rubber sol vent up to 1,0 percent; naptha 0.1-1.0 percent; and Daineral spirits up to 1.0 percent (exhibits 18-45). The National Association of Printing Ink Manufac turers, Inc,, Indicated the following range of benzene content; heptane 0.1 percent-0.75 percent; heptane ("aro matic free") 0,01'-0.02 percent; toluene 0.02-0,1 percent; lactol spirits 0.02-0.1 percent; xylene 0.15-percent; and ali phatic hydrocarbon blend 0.01 percent to 0.02 percent (exhibits 18-83). Other participants reported benzene at or below the 0.1 percent level In toluene, xylene, hexane and solvent napthas (exhibits 18-15, 28, 35, 38, 39, 46, 47, 58, 69r 88) while others reported levels in excess of 0,1 percent (exhibits 18 35, 39, 61, 70, 84, 90) with one report of the benzene content of toluene to be1 15 percent (exhibits 18-61). (5) TO WHAT LEVELS CAN THE PERCENTAGE Or BENZENE BE FEASIBILY REDUCED Those participants, such as the rubber manufacturers and the adhe sives and sealant manufacturers, who obtain their solvents from other sources, could not provide any detailed feasibility assessment since they did hot have knowledge of the technologi cal potential of their suppliers to reduce the- percentages further than present levels. Further complications involved the refusal of solvent suppli ers to guarantee a. specific benzene level and the fluctuating benzene con tent found in a given solvent from sup plier to supplier. Some suppliers appear reluctant to certify particular solvents since they have not designed their processes with benzene content specification as a consideration. The Manufacturing is. Chemists Associ ation testified that a feasibility assess ment can be made only after their de termination of the benzene content of streams and products is complete (tr. 286). Solvent purchasers generally in dicated that, if the solvent Industry is capable of reducing the percentage of benzene over some period of time, they would support a graduated ex emption setting lower acceptable levels in the future to coincide with the technological ability of the solvent industry to deliver those percentages in dependable volume shipments suffi cient to maintain production and em ployment (exhibit 18-41, 80). The only specific projection relative to benzene content reduction was in terms of costs. Texaco estimated that benzene reduction in their refinery streams from present levels to 1.0 per cent would cost $85 million, a reduc tion to 0.5 percent would cost $508 mil lion, and a reduction to 0.2 percent would cost $1,381 million. Detailed analysis of how these figures were ar rived at however, was not made availa ble (exh jit 18-48). Another study, which addressed the economic impact of reducing benzene content, is the Arthur D. Little study on gasoline, prepared for EPA in February of 1978 (exhibit 12b). (6) WHAT AIRBORNE CONCENTRATIONS OP BENZENE RESULT PROM THE PERCENTAGE OP BENZENE IN EACH PRODUCT Comments and testimony presented on this issue generally revealed that in the industrial setting the benzene con tent of the liquid mixture plays only a part in the resultant airborne concen tration to which employees may be ex posed. The evidence regarding the other factors affecting airborne con centration are discussed under issue 7. Monitoring data submitted to the record has provided a reasonable de scription of expected exposure levels In the various industrial segments af fected by the proposed amendment. As previously discussed, Dr. Hervey Elkins submitted calculations indicat ing that a 0.5 percent benzene content in liquid mixtures would appropriately be consistent with a 1 ppm permissible exposure limit. The monitoring data submitted tends, for most all cases, to support Dr. Elkins' calculations. For example. General Tire is Rubber Co. submitted data for tire building oper ations which indicated resultant ben zene exposures from rubber solvents containing greafer than 0.5 percent benzene did exceed 1 ppm, while sol vents with benzene content below 0.5 percent did not (exhibit 18-41). Expo sures reported by B. F. Goodrich re sulting from up to 0.3 percent benzene content indicate that the companion air levels of benzene were below 0.5 ppm in 95 percent of the cases and only one out of 255 samples was as high as 1.1 ppm (exhibit 18-75). While the Goodyear data tended to support the^proposition that exposure levels, in practice, will generally not exceed 1 ppm with low benzene content liquid mixtures, Goodyear's data from one tire manufacturing plant using from 0.263 to 0.280 percent benzene content rubber solvents indicated exposures between 1.11 and 1.98 ppm. Goodyear attributed these exposure levels to in adequate ventilation since other moni toring data they submitted from other tire building plants using up to 0.4 per cent benzene rubber solvents showed exposure levels not in excess of 0.4 ppm. The adhesive and sealant manu facturers reported that, with liquid mixtures containing up to 1.0 percent benzene, exposure levels never exceed ed 1 ppm (exhibit 18-45). Printing ink manufacturers submitted data indicat ing that, while solvents used contained in some cases in excess of 0.1 percent benzene, exposure levels never exceed ed 0.3 ppm (exhibit 18-83). DuPont provided results of tests from paint spraying operations showing that the use of liquid mixtures of 1 percent benzene will not result in airborne concentrations of benzene greater than 5 ppm, in most cases less than 0.5 ppm. Tests were performed with DuPont topcoat paints with 0.05 per cent, 0.1 percent, and 1.0 percent ben zene added. Benzene was intentionally added to the paints In an attempt to correlate benzene levels in the liquids With airborne benzene concentrations. The highest benzene level obtained was 4,3 ppm with a 1.0 percent ben zene spike. Averaged over an 8-hour day, DuPont estimates that normal spraying operations with nonspiked paint will result in employee expo sures below 1 ppm. Other DuPont data involving handling of 0.2 to 4.3 percent benzene in gasoline and 0.19 to 0.45 percent benzene in a p-xylene process stream resulted in time-weighted aver- FEDERAL REGISTER, VOL 43, NO. 124--TUESDAY, JUNE ', 1978 DBZ0019560 27966 .- RULES AND REGULATIONS ages up to 0.38 ppm and 0.15 ppm re companled by an analysis of the solvent in spectively (exhibit 18-39). Edison Electric Institute reported that exposures resulting; from han dling fuel oils containing 0.003 to 0.005 percent benzene resulted In exposures less than 0.2 ppm (exhibit 18-56). Husky OH Co. reported refinery use at the time of such monitoring. In addition, the sample period did not cover the full 8-hour period for computation of the time weighted average (TWA). The TWA, In fact, was estimated from a sam pling time of approximately 2 to 3 hours. _ NIOSH in Its Occupational Exposure Sampling Strategy Manual, DHEW streams with 0.71 percent benzene and (NIOSH) Publication No. 77-173 (January finished gasoline, with 0.35 percent 1977) Is critical of partial period sampling. benzene as producing exposures of less The Manual states, at page 40, 'that the than 0.11 ppm and 0.042 ppm respec tively (exhibit 18-64). Earlier data sub mitted by NIOSH indicated that fuel oil containing less than 0.1 percent benzene gave rise to benzene concen "sampled portion of the period should cover at least 70 percent to 80 percent of the full period." Indeed, In discussing the validity of a 8-hour TWA exposure average as com pared with an 8-hour TWA standard, the " Manual states, at page 41, that "Ctlhis type trations of 60 ppm under conditions of of measurement should be avoided if posa elevated temperature, confined space ble." It therefore follows that a significantly and possibly inadequate ventilation. shorter period is even less valid (PC-91). NIOSH indicated, however, that the sampling was done with detector tubes which are relatively inaccurate and subject to numerous interferences, (tr. 753-755, July 25,1977, hearing) While other participants (exhibits 18-24, 35, 49, 84, 87) supported the proposition that benzene levels in liquid mixtures greater than 0.1 per cent would still not generally produce exposures to benzene above 1 ppm, some participants provided date to the contrary. The United Rubber, Cork Li noleum it Plastic Workers of America (URW) (exhibit 18-33) referenced tes Other participants, sharing- reserva tions relative to a particular percent exemption, did so on the grounds that exposure measurements from liquid mixtures containing 0.1 percent or less benzene did or could theoretically pro duce airborne concentrations of ben zene in excess of 1 ppm or that varia bles such as ventilation, liquid tem perature, work practices, etc. affected resultant benzene airborne concentra tions to too great an extent to confi dently rely on only benzene content for limitation of employee exposures (exhibits 18-32, 61, 72, 79, 92, 94, PC- timony presented by Dr. Robert T. S-8). Harris, of the University of North -. Carolina at the public hearing on the (7) TO WHAT EXTENT DO VAMOUS FAC proposed benzene standard (docket H- TORS, SUCH AS TEMPERATURE, DILUTION 059), in which Dr. Harris stated that WITH AMBIENT AIR* WORK FACTORS,' bulk solvent percentages of. benzene NATURE OF OPERATIONS, ETC., AFFECT from 0.5 to 1.07 percent can produce THE RELATIONSHIP BETWEEN THE PER exposure levels below and above 1 CENTAGES OF BENZENE IN THE VARIOUS ppm, some as high as 12 ppm. The reli PRODUCTS AND RESULTING AIRBORNE ability of the results of this study were CONCENTRATIONS, AND SHOULD ANY EX questioned by Dr. Curtis Smith of the EMPTION BE LnflTKP TO THE USE OF Manufacturing Chemists Association THESE PRODUCTS UNDER PARTICULAR who indicated that the findings as to CIRCUMSTANCES . the presence of benzene In the ambi ent air could have been artificially high because of Interference of ke tones which are present in the ambi ent air around rubber plants (tr. 299). URW submitted other exposure data from an Armstrong tire manufactur ing facility (the "Harvard study") also indicating exposure levels above 1 ppm with solvents containing low levels of benzene. A number of participants, in cluding Armstrong, questioned the re liability of the Harvard study (PC 89. 90, 91, 92, 105). Armstrong commented on the study as follows: As previously indicated, most partici pants agreed that factors other than benzene content can play a significant role in resultant airborne concentra tions of benzene. Goodyear stated that ventilation, climate, work habits, etc., would definitely affect the airborne concentration of benzene, and submit ted monitoring data from an oldertire manufacturing facility and two newer plants for comparison. The two newer facilities using rubber solvent contain ing 0.4 percent and 0.2 to 0.3 percent benzene experienced airborne concen trations of benzene at 0.45 and 0.25 The report Itself makes It clear that no ppm respectively. The older tire plant analyses were made by the Harvard study using rubber solvent with 0.263-0.280 during the week of January 9. 1973, with re percent benzene experienced airborne spect to the bulk samples. Reference Is concentrations of 1.11 to 1.98 ppm. made to the analysts by the Armstrong labo ratory In June 1977 that benzene in Texol at that time was less than 0.1 volume per cent. More than 8 months elapsed between such sampling of the solvent and the air sampling. It Is to be regretted that In the only monitoring done to date with respect to an Armstrong facility, and a very limited sampling at that, the monitoring was not ac- Goodyear attributed this discrepancy to inadequate ventilation in the older tire manufacturing facility. Goodyear further indicated that, while they could not determine an exact correla tion from their data, variables other than benzene content could cause up to an 80 percent variance in resulting airborne concentrations. (PCS-8). Other participants provided eithertheoretical or actual data indicating exposures greater than 1 ppm from low benzene content mixtures used under conditions of confined space, in adequate ventilation, elevated tem peratures etc. (exhibit 18-32, 92). URW submitted previous testimony of Dr. Robert T. Harris presented at the public hearing on the proposed ben zene standard (docket H^059) in which' Dr. Harris stated that "* * * the lower the benzene content of the" solvent, the lower the potential for exposure, but a low benzene content of solvent alone does not assure that a particular air concentration will not be exceed ed" (exhibit 18-33). As mentioned previously. Dr. Hervey Elkins submitted calculations estimat ing that a 0.5 percent benzene content would not normally be expected' to produce airborne concentrations of benzene greater than 1 ppm. Dr. Elkins addressed the affect of other factors on his calculations: . It is self-evident that the factors men tioned (temperature, ventilation, work prac tices, nature of operations) will affect the relationship between the percentage of ben- zene in a liquid product and the resulting concentration of benzene vapor In the air. Important factors not mentioned include the quantity of substance consumed or pro cessed, the area of the liquid surface which Is exposed to the air, and the vicosity of the liquid. - - The exemption percentages proposed (i.e., 0.5 percent to meet 1 ppm) were based on rather severe conditions: complete or free evaporation of the benzene and other vola tile Ingredients, limited only by the provi sion that, the permissible limits of the vapors of the other components of the liquid must not be exceeded. With some high boiling liquids, such as heavy oils and tars, there Is little evapora tion of the base material, even when heated to temperatures well above the boiling point of benzene. In theory, processes employing such materials at elevated temperatures and with large surface areas exposed (as might occur in certain coating or impregnating processes) could produce concentrations of benzene vapor in the surrounding air in excess of the postulated permissible expo sure levels, even when the concentration of benzene In the liquid Is less than the limits recommended above. , On the other hand, handling and process ing such liquids in enclosed or partially en closed spaces,- with limited exposure of liquid surfaces to air, and at temperature such that the material is not highly fluid, would result in benzene concentrations well below the postulated permissible exposure levels, even when the percentage of benzene in the liquid is to excess of the limits recom mended above. ' For the sake of simplicity, it is recom mended that * the 0.5-percent exemp tion percentage be applied if the airborne permissible exposure limit is 1 ppm--with the proviso that If operations involving heating of the liquids and exposure of large surface areas are carried out, at least a one time monitoring of the area of benzene in air be done, if the benzene content of the liquid exceeds 0.1 percent. (PC-82; FEDERAL REGISTER, VOL 43, NO. 124--TUESDAY, JUNE 27, 1978 DBZ0019561 RULES AND REGULATIONS . ' 27967 API argued In Its post-hearing brief that the record evidence does not iden tify a specific percentage of benzene which will guarantee that a given PEL will not be exceeded under all Work en vironments and that, therefore, any percentage exemption must also take account of the roles of many other controlling factors. API further stated that, regardless of the benzene con tent In their streams, the nature of their oil and gas operations is the most important factor In considering poten tial exposures and need for regulation of their segment of the Industry. API witness Dr, William G. Domask testi fied that: It U evident from the data and informs-' tlon presented here that well-maintained, closed-system operations In general repre sent a low risk lor exposure to benzene. ' Specifically, petroleum production, pipe line, and marketing personnel air monitor ing data reflect a very low risk of exposure to benzene vapor at ail concentration levels of benzene in the liquids handled by these segments of the Industry. Similarly, data tor the closed-system por tions of refining operations indicate a very low level of exposure to benzene (PC-81). While many other participants ad dressed this Issue and acknowledged the significance of factors other than benzene content relative to resultant airborne concentrations of benzene, there were no recommendations rela tive to a practical translation of re quirements for a homogeneous regula tory conclusion which would give full weight to those factors. (8) TO WHAT EXTENT, AWT) FOR WHICH LIQUID MIXTURES, ARE BENZENE-FREE SUBSTITUTES AVAILABLE . Most industry participants- argued that benzene-free substitutes' are not commercially available, are not suit able for their process due to incom patibility with other materials and ex isting air pollution control systems and methods, are economically prohib itive, or would reduce product per formance (exhibit 13-15, 21, 39, 41, 54, 80, 90, 109). The Public Citizen Health Research Group argued that benzene substitutes are available (exhibit 18 94). However, the record indicates that "benzene-free" substitutes are not gen erally available for the majority of in dustrial uses. , (9) IF LIQUID MIXTURES OF* SPECHTED PERCENTAGES ARE EXEMPT FROM THE OTHER PROVISIONS OF THE BENZENE STANDARD, SHOULD THEY NEVERTHELESS BE SUBJECT TO THE LABELLING REQUIRE MENTS OF THE STANDARD. CONVERSELY, IF SUCH MIXTURES ARE NOT EXEMPT FROM THIS STANDARD, SHOULD THEY BE . EXEMPT FROM THE LABELLING REQUIRE MENTS Industry participants indicated that some relief from the labeling require ments was necessary. They argued materials in the analysis for benzene. that, without some labeling exemp NIOSH, also noted that the price of tion, liquids which contain trace mass spectrometer systems has de amounts of benzene would require clined steadily over the last five years. cancer hazard labels. They objected to It is NIOSH's position, therefore, that such labeling on the following benzene can be identified with confi grounds: lack of associated health dence using the NIOSH recommended hazard requiring warning; economic method, that interferences can be burdens: uncontrolled use of warning handled by simple extraction tech labels dilutes effectiveness of warning niques prior to . gas chromatography, messages; and, the ubiquitous nature that detectors or columns are readily of benzene 'in petroleum distillates. available and within the normal finan The recommendation of industry par cial limitations of most commercial ticipants was that any liquid mixture laboratories, and that recourse to mass exemption of a specified percentage .spectrometry is unnecessary. should include an exemption from the (b) Miscellaneous comments. Due to labeling requirements ((exhibit 18-21, the unique nature of the motor carrier 29, 31, 37, 41. 42, 69, 71, 72, 79, 83), . industry whose employee exposure to DuPont testified that, without a la benzene is occasional and then only beling exemption to allow additional minimal, the National Tank Truck time to clear existing inventories car Carriers, Inc.- recommended that if rying levels of 0.1 to 1.0 percent ben OSHA has any concern over motor zene, the cost of locating already pack carrier's employee exposure to ben aged containers and labeling them zene, OSHA should petition the De would run to about $31 .million (tr. partment of Transportation to develop 317). DeSoto, a manufacturer of regulations, thus avoiding regulatory paints, industrial coatings, detergents, imposition by another agency over an furniture and fireplace accessories, es already regulated sector (tr. 414). timated their cost of labeling present The National Agricultural Chemi inventory at $700,000 (exhibit 18-43). cals Association argued that OSBLA Another paint and coatings manufac has no authority to require labeling of turer, Pratt & Lambert, Inc., estimat pesticide products and no need to du ed a current inventory of 1.4 million plicate or interfere with the labeling containers, which without an exemp controls imposed by the -Environmen tion, would cost $700,000 to label (18-- tal Protection Agency (exhibit 18-53). 44). . The National Retail Merchants As (10) OTHER RELATED ISSUES sociation urged an exemption from the standard for retail stores since em (a) Monitoring feasibility. A number of industry participants provided data indicating potential difficulties in ob taining Industrial hygiene and analyt ical services. The cost burden and re ported lack of monitoring service capa-bilities In some locations which would result if some exemption were not pro vided to part of the industry, would render compliance with parts of ben zene standard impossible (exhibit 18-1, 3, 9, 12, 20, 37, 39, 65, 68, 82, 87). The Manufacturing Chemists Associ ployee exposure in those stores is from consumer goods which are in closed containers. They also argued that, While paint cans are opened for mixing and coloring, the brief and intermit tent nature of the operation would not result in sufficient benzene exposures to merit regulation. NRMA further stated that the standard should not apply to existing inventories since re tailers would then be unable to sell products they already'owned (exhibit 18-37). ation stated that analysis for benzene requires equipment which is expensive V. Analysis and Feasibility and which must be operated by spe OSHA has concluded that it is ap cialists. They maintained that, due to propriate to amend the permanent interference from other substances, benzene standard to provide for a per multiple gas chromatography analyses centage exclusion. Specifically the on a single product or use of mass agency has exempted from all the pro spectrometric equipment together visions of the standard for the first 3 with gas chromatography, available years following the effective date of only In large laboratories, are required this amendment, liquid mixtures con to produce good analytical results taining 0.5 percent or less benzene, (PC-103). NIOSH addressed the prob- and thereafter liquid mixtures con ' ;m of int irferences in a post-hearing taining 0.1 percent or less benzene. submission (PC-88) in which they- Further. OSHA has exempted from report that work by Levadie and Mac- the labelling requirements liquid mix Askill, "Analytical Chemistry," 48, 76, tures containing less than 5.0 percent 1976, and by Esposito and Jacobs, benzene which are already packaged. "American Industrial Hygiene Jour OSHA recognizes that the scope of nal," 38, No. 8, 401, 1977, describes the the permanent benzene standard (29 modifications to the NIOSH sampling CFR 1910.1028), unamended, is so and analytical methods for benzene, broad as to encompass work place op S311, necessary to solve the problem erations utilizing liquid mixtures with of interferences arising from ketone any amount of benzene however small FEDERAL REGISTER, VOL 43, NO. 124--TUESDAY", JUNE 27, 1978 DBZ0019562 27968 . RULES AND REGULATIONS (tr. 30). OSHA's view that there Is no sections. A third option was that relief ers to undue risk, OSHA recognizes level of benzene exposure that ft with from the standard by. based not on a that factors other than the benzepe out some attendant health ri3k re percentage exclusion (with perhaps the content of liquid mixtures can act to mains unchanged. However, because of exception of the dermal provision) but significantly modify the resulting the ubiquitous nature of benzene, Le., rather be based upon actual employee levels of airborne exposure. Variables its presence in a myriad number and exposue levels. This recommendation such as the nature of work operations type of worksites (benzene Is a con was made by API, NFRA and member and work practices, and quantifiable taminant in most, if not all petroleum- companies and also supported by parameters such as temperature, size based liquid mixtures), OSHA believes OCAW (Ech. 104, Tr. 400). A final op of evaporative area, . and especially that it is proper to focus Industrial hy tion would include a general percent ventilation all have been shown to giene and medical resources on those age exclusion with the additional play an important role. This data thus operations with higher exposures and proviso that, in the case of severe or supports Dr. Harris's earlier conclu which present the greatest potential unusual work situations, the permissi sions that there is no necessary corre risk to worker health. This decision is ble airborne limits should not be ex lation between the amount of benzene in accord with the evidence developed ceeded as determined by monitoring. in liquid mixtures and resulting air during the recent rulemaking which (Exh 27-C.l, FC-82) borne levels. However, defining the pa revealed the need to and appropriate ness of limiting the scope of the stand ard. , The mechanism chosen to effectuate this relief must in OSHA's view be consistent with the intent of the per manent standard, which is to minimize the risk to worker health to the great est extent feasible. The framework within which the agency has exam ined this issue was articulated by the Director of OSHA's health standards programs, Grover C. Wrenn, at the outset of the informal hearing; Since the standard Itself establishes a per missible exposure limit for benzene, we would certainly endeavor to set an exemp OSHA has carefully evaluated these rameters and determining the exact and other possible approaches and, combination of factors which signifi based upon a review of the evidence and views contained in the rulemaking proceedings, has concluded that a per cantly increase exposure, a necessary accomplishment for regulation on this basis, is not possible and no witness centage exclusion amendment applica ble to all provisions of the standard most adequately satisfies, for regula tory purposes, the dual intention of appropriately limiting the scope of the could suggest means of doing so. More over, the preponderance of evidence submitted to this rulemaking (most of which was not available at the earlier rulemaking) manifestly establishes, permanent benzene standard while not exposing exempted employees to greater exposures than employees cov based _0n objective sampling data de rived from current industrial settings, that for the vast majority of work ered by the standard. The record evidence of percentage exclusion rulemaking establishes, as. sites, small amounts of benzene in liquid mixtures do not result in worker exposures above 1 ppm. shown in the preceding discussion of An additional reason for not adopt tion which assured that employees exposed issues, that a "variety of liquid mix ing alternative strategies to amend the to materials exempt from coverage under tures with small or "trace" amounts of permanent standard is that the record the regulation are subject to no greater ex posure than employees who are subiect to the provisions and protection of the stand ard <tr. 16). And one of the questions that was raised In the earlier rulemaking and one of the benzene generally result in exposure levels below the permissible exposure limit of the permanent benzene stand ard in a wide variety of industries. OSHA has determined, by examining did not provide evidence for the need to provide different exemption levels for different provisions. Manufactur ers of rubber goods argued that an "action-level" concept be applied to questions that Is raised here Is the question the relationship of the percentages of the dermal section of the standard be of the likelihood that exempting any partic benzene to resultant exposure levels, cause of the infeasibility of perform ular category of materials from regulation, under the benzene standard--the likelihood that that exemption would provide a basis for being confident that workers Involved with those exempt materials would not be exposed In a manner that was Intended to be avoided by the benzene regulation (tr. 16), - The agency has considered and re that generally an appropriate percent -- ing certain manual operations in their age exclusion can assure that employ industry, without some skin contact ees who would be exempt from the with benzene-containing solvents. coverage of the benzene standard are However, as was explained in the pre not exposed above the level set in the amble to the permanent standard, standard (tr, 16). Furthermore, it is from the point of view of choosing a OSHA's view that a percentage exclu "safe" level, the permissible exposure sion will encourage employers to act to limit should be zero (exhibit 3A). In reduce the amount of benzene present the case of airborne exposure, clearly viewed several approaches for limiting in liquid mixtures utilized in their this was not attainable and their air the scope of the permanent benzene workplaces or present in their prod borne permissible exposure limits es standard suggested by participants to ucts and, therefore, reduce the poten tablished were not "no-effect" levels, the rulemaking. These options includ tial health hazard to employees. The rather were based on feasibility con ed a single percentage exclusion appli record clearly establishes that, since - siderations. However, with respect to cable to all provisions of the standard, publication of the permanent'benzene dermal contact, avoidance of skin ex as was set forth in OSHA's proposed standard, paint manufacturers and posure is feasible for workers in most amendment in the Federal Register other solvent users have already ex industrial sectors simply by the use of notices of March 28,1978 (43 FR12899) amined the need for benzene in their suitable protective clothing, such as and April 28, 1978 (43 FR 18215). Such liquid mixtures, and have made exten impermeable gloves. OSHA recognizes an approach was recommended by sive efforts to obtain solvents with that in tire-building, the record evi many participants as cited under the lower percentages of benzene. OSHA dence shows that at present there are discussion of issue 1. Another option believes that an appropriate percent no suitable methods available to pre called for a general percentage exclu age exclusion will be an incentive to vent skin contact with solvents con sion, but with different levels for cer many other employers to reduce ben taining a small amount of benzene. tain provisions of the permanent zene levels and thus minimize the leu However, the record evidence estab standard. This type of amendment, kemia and other health risks to their lishes that rubber solvents with 0.5 which was suggested by the Rubber employees. percent benzene, which are suitable Manufacturers Association and mem In arriving at the conclusion that an for use in tire operations, are already ber companies (Exh. 92), specifically "across-the-board" percentage exclu available in sufficient quantities. Ac called for a higher percentage exclu sion is the appropriate means to cordingly, the exemption of 0.5 per sion for the dermal and labelling provi afford an opportunity for relief from cent liquid mixtures from all the pro sions of the standard relative to other the standard without subjecting work- visions of the benzene standard, will FEDERAL REGISTER, VOL 43, NO. 124--TUESDAY, JUNE 27, 1978 .- . , DBZ0019563 RULES AND REGULATIONS 27969 substantially relieve the feasibility ments of the-permanent standard may same underlying, assumption Is used problems In tire bonding operations. be satisfied. (rather than utilizing NIOSH's recom Furthermore, the 3 year stepdown OSHA recognizes that conditions, mended 350 milligrams per cubic provision of the amendment from 0.5 such as elevated temperatures, inad meterwhich is not presently in effect) to 0.1 percent exclusion levels trill equate ventilation, confined space, -to calculate the percentage of benzene allow time for increased production of quantity of material used etc, could in in a liquid mixture consistent with the solvents containing lowei^amounts of some cases act to produce exposures 1 ppm PEL of the permanent stand benzene and for development and eval above the PEL even if the same ben ard, the mean value would decline ap uation of alternative methods of com zene percentages would in other oper proximately 10-fold or to a level of pliance with the standard's dermal' ations result in exposures less than about 0.1 percent benzene in liquid provision. the PEL. However, as already stated, mixtures (tr. 393-94X Elkins' data Some participants suggested that a the record does not provide a suffi takes,, into account abnormal worst higher exemption level apply to label cient basis'upon which to identify and case work situations. Therefore, a 0.1 ing (Tr. 68, 188). OSHA does not agree. define these variables for regulatory percent exclusion level should main The labeling requirement of the-per purposes. tain workplace levels at below the per manent standard serves to Inform the The results of monitoring of employ missible exposure limit even in the ab worker of the hazard associated with ee exposure submitted by numerous normal work situations cited by Dr. working with benzene containing participants demonstrates that, by and Elkins. '. , liquid mixtures. Use of a higher per large, the use or presence of liquid In adopting an across the board ex centage exemption for this provision ' mixtures containing benzene with clusion level, two problems arise: (1) In could result In the employee not being maximum concentrations of 0.5 per some cases, where the benzene stream apprised of the danger h} situations cent benzene results in airborne con content is in excess of the prescribed where exposure might be excessive. centrations of less than 1 ppm and fre percentage and the standard there ap API has argued that an "acroes the quently less than the action level of plies, exposures may well be below the board" percentage exclusion is not an 0.5 ppm.. However, the low airborne PEL or action level; and (2) in certain effective method by which to amend "concentrations reported are not neces cases, the exemption of work oper the standard, and that. In general, an sarily due to the inherent nature of ations where the benzene content of exemption predicated on exposure the liquid mixtures utilized (exhibit liquids are below the prescribed exclu levels is a better way of dealing with 18-32), but rather are in part the sion level may produce exposures in the problem presented by liquid mix result of the maintenance and effec excess of the PEL. . tures containing small quantities of tiveness of engineering controls to In the first case, although exposures benzene (PC 104). While acknowledg limit exposures. Therefore, mainte may be low, the potential exists for ex ing that there are other factors in, ad nance of these low exposure levels can cessive exposures, such as in the case dition to benzene concentration which be dependent upon the continued use of leaks, spills and process upsets from may significantly affect airborne expo of engineering controls. This is illus enclosed systems. The agency believes, sure levels, OSHA believes that there trated by the testimony of Goodyear that because of this potential, the re Is sufficient record evidence which" which shows that, in contrast to the quirements of the permanent standard demonstrates that with low levels of majority of their operations, which in are necessary for the protection of em benzene contamination airborne expo dicated that use of solvents containing ployees working in such areas. In the sures are generally below the PEL and up to 0.4 percent did not result in ex second situation, this agency recog frequently below the action level. posure levels greater than 0.4 ppm. In nizes that adoption of a 0.1 percent ex Many participants in the rulemaking one plant with inadequate ventilation, clusion level does not, in all cases, also supported this conclusion. Fur exposures greater than 1 ppm were ob assure that resulting airborne expo thermore, API's recommendation that served when the solvent utilized con sures will necessarily not exceed the various provisions of the permanent tained only 0126 to 0.28 percent ben action level of 0.5 ppm or even the per- standard be triggered by workers' ex zene. GPC-S-8). In the case of refiner 'missible exposure limit of 1 ppm. posure levels is, to a great degree, al ies, although the benzene content of OSHA further recognize that 0.5 per ready incorporated into the standard liquid streams may range up to 3.5 cent factors other than the percentage by OSHA's use of the action level con percent by volume or higher, the great of benzene may become more signifi cept The objective of the benzene majority of worker exposures are less cant in determining exposure levels. standard Is to provide necessary pro than 0.5 ppm (tr. 339-345J It is evi However, the record does not indicate tection to employees from the hazards dent that such low exposures in the that expostures greater than 1- ppm of benzene exposure, and to this end, petroleum industry are due to the out have been demonstrated to be com the standard imposes upon employers door setting and, importantly, to the monly found In existing Industrial sit different compliance requirements de use of closed systems. Although not uations where benzene levels in liquid pending on the level of employee ex always explicitly stated, the low expo mixtures are less then 0.1 percent. posure, with minimal requirements Im sures measured in some situations, Ideally, the percentage exclusion posed where employee exposure Is such as the use of benzene-containing level chosen should be so low as to below the action level. solvents by rubber manufacturers, ap assure that in all instances, the PEL The primary difference between pears to be the result of engineering will not be exceeded. Participants rep API's suggested use of an "exposure controls as well as effective work prac resenting users of benzene-containing determination" and OSHA's decision tices. solvent mixtures who recommended reflected In the standard Is that API Close examination of Dr. Elkins' cal exemption levels of 0.5 to 1 percent, would not require Initial monitoring In culations also indicates that a percent conceded that they would readily iti- , all cases but rather would rely upon age exclusion level of 0.5 percent may lize solvents containing.even less ben professional judgment to determine not be sufficiently conservative. His zene if they were available. While whether various provisions of the calculated average of all values of ben some participants from industry testi standard apply. However, lt` should be zene percentage limits, which was con fied that they were able to obtain sol noted that API's judgment as to which sistent with exposures of 10 ppm (the vents with less than 0.1 percent on a operations In the petroleum Industry time-weighted average PEL of the pre regular basis, the record evidence dem have low exposures Is based upon ob vious standard) was approximately 1 onstrates that for most industrial jective sampling data submitted to this percent when utilizing a total upper processes liquid mixtures containing record; to the extent that such data limit concentration of 500 ppm for pe 0.1 percent or less benzene are not exists the Initial monitoring require troleum distillates (PC-82). If the commercially available at this time. FEDERAL REGISTER, VOL 43, NO. 124--TUESDAY, JUNE 27, 1978 DBZ0019564 27970 RUUES AND REGULATIONS Thus, the percentage exemption level duction of benzene content, it is decreasing the exclusion level to 0.1 chosen by OSHA for amendment pur OSHA's view that costs involved in re percent after 3 years, many of the fa poses must take into account the feasi ducing the percentage of benzene in a cilities and employees in the petro bility of supplying large volumes of liquid are not a consideration in this leum production sector will then be liquids containing less than a specific amendment. covered by the standard. It is also rec amount of benzene to a multitude of Other than indicating that consider ognized that since benzene is a natu industrial users, ' able time would be required to com rally-occurring constituent of crude oil Testimony from the producers of plete analysis of benzene content of and natural gas, its level is not under liquid mixtures which contain varying their products, (exhibit 18-87) indus the control of the employer. However, amounts of benzene indicate that the try did not provide estimates nor spe 'since compliance requirements of the benzene which is present is there only cific recommendations as to the time permanent standard are directly relat as a contaminant and generally is not frames required to effect production ed to the exposure level of the employ intentionally added to produce a par- changes in order to produce liquid ees, and since it has been demonstrat-. ticulp property in the formulations or mixtures containing 0.1 percent of less ed that exposure levels of personnel in products. Furthermore, while it ap of benzene in sufficient quantity to oil and gas production are generally pears to be impossible to exclude very meet the anticipated needs of down below the action level of 0.5 ppm, the small amounts of benzene in many of stream users. Because of the above requirements of the permanent stand- these products, MCA witnesses ob considerations, industry participants sird are minimal beyond the taking of served that the technology currently felt tht OSHA should not at this time an initial representative exposure exists to produce liquid mixtures con adopt a percentage exclusion at the measurement. The 3-year delay prior taining 0.1 percent or less of benzene level of 0.1 percent as proposed by the to the step-down to the 0.1 percent (tr. 278). However, their testimony agency. However, it should be noted level also provides additional time for also demonstrated that reduction of that the proposed permanent regula employers to obtain the required sam benzene content to the 0.1 percent tion, which did indicate that the pling-information. level is not a simple undertaking. Be agency was considering a 0.1 percent This amendment also exempts from cause benzene is a widespread con exclusion level, was published over a the labelling requirement, liquid mix taminant in most petroleum-based year prior to the most recent rulemak tures containing 5.0 percent or less liquid products, some time will be re ing. Review of the evidence submitted benzene if the liquid mixture is al quired to complete testing to deter indicates that while not commercially ready packaged on the effective date mine the current levels of benzene in available on a sufficiently large basis, of this amendment. Record evidence their products. Once this process is, mixtures with 0.1 percent or less ben indicates that there may be a large complete, industry will require an ad zene content have been produced and number of containers already in the ditional period of time to implement are available on a limited basis and are channels of commerce, particularly appropriate process- changes which compatible with most processes requir consumer products, that would be sub would assure low level benzene con ing such mixtures. ject to the labelling requirement if tent. This latter phase is in some In The record evidence further demon such an exemption were not provided. stances complex, as the percent of strates that, mixtures with a benzene While the labelling of existing con benzene Is dependent upon existing content of up to 0.5 percent are pres-' tainers may be possible, it is also clear production factors, such as differences ently available in sufficient quantity that it would require a substantial in crude runs, the nature and efficien to satisfy the needs of affected indus effort. Thus, imposition of the label cy of individual refinery processes and trial segments and that suppliers of ling requirement for liquid mixtures the specific balance of final products these liquid mixtures are attempting already packaged might well result in produced at a given point in time. In to reduce the benzene content still fur an excessive disruption of the commer addition, it appears that market condi ther. OSHA has, therefore, concluded cial framework. For liquid mixtures tions may also be a significant factor^ that 0.1 percent benzene content can packaged after the effective date of determining the degree to which ben-* be feasibly attained on a commercial these amendments, the 0.5 percent ex zene has been extracted from petro basis at 3ome point in the future." emption applies. Those employers who leum-based streams. The record also It is the judgment of the Agency utilize or manufacture liquids contain indicates that only In the recent past that a period of 3 years is a sufficient ing 0.5 percent or less benzene will have producers of benzene-containing and reasonable allowance for develop have 3 years to meet the labelling re liquids given significant consideration ment and implementation of means quirements, and may be exempt en to the benzene content of their prod and methods necessary for production tirely if in that period of time they ucts (tr. 288). of adequate supplies of 0.1 percent can reduce benzene concentrations Two studies addressed the economic benzene content mixtures. Along with below 0.1 percent. feasibility of reducing benzene content the consideration of feasibility, the OSHA has chosen a level of 5 per in certain liquid mixtures (exhibit 18 record evidence indicating a relative cent or less benzene (by volume) con 48: exhibit 12B). However, it is lack of suitable "benzene-free" substi tamination as the boundary for OSHA's view that the cost of reducing tutes, dictates the need for providing a exempting liquid mixtures already benzene content are not attributable period for implementation which packaged. Evidence developed during to this percentage exclusion amend would meet the. anticipated demand the rulemaking Indicated that there ment Reducing the benzene content for solvents containing low percent-, may be some products already in the in liquid mixtures in order- to avoid ages of benzene. In addition, the 3- channels of commerce which may con coverage by the benzene standard Is year period before the stepdown to the tain benzene well in excess of 1 per an option which the employer may ex O.i percent level, will allow those users cent and which may not have been ercise: it is not a requirement of the of benzene-containing liquid mixtures analyzed and which would be difficult benzene standard that he do so. Em to test for product integrity before to track down. In addition, the 5 per ployers may prefer to comply with the commencing reformulation on a large- cent level chosen,is similar to the re permanent standard, particularly scale basis. quirement of the Consumer Product where their employees - are exposed By adoption of the 0.5 percent exclu Safety Commission which, under the below the action level, in which case sion level initially, many employers Federal Hazardous Substance Act Reg the employer would need only to con engaged In crude oil and gas produc ulations (16 CFR 1500.14(a)(3)), man duct Initial measurement, record that tion activities will be provided relief dates that products with 5 percent or measurement and train his employees. from all provisions of the permanent more benzene receive a special label. Since the standard does not compel re standard. The .; ei.. / is aware that, by In products with an average molecular FEDERAL REGISTER,. VOL 43, NO. 124--TUESDAY, JUNE 27, 1978 DBZ0019565 RULES AND REGULATIONS 27971 weight similar to that of benzene, 5 percent by volume is similar to 5.0 per cent by weight. It is the agency's Judgment that much of the National Tank Truck. Car rier's Association's concerns regarding the imposition of the provisions of the permanent standard on their members will be substantially relieved as users of various liquid mixtures demand products- containing less than the pre scribed percentage levels of benzene. In the absence of the exercise of au thority by the Department of Trans portation. in this matter, 1910.1028, as amended, applies to this industry (sec. 4(b)(1)). Emrnvi Date This amendment is effective immedi ately on June 27, 1978. Since this amendment is a rule "granting an ex emption. the Administrative Proce dure Act (5 U.S.C. 553) does not re quire a 30-day period before the amendment becomes effective. Section 533(d)(1) of the APA exempts rules which grant an exemption or relieve, a restriction from the requirement that publication of a substantive rule be made not less than 30 days before its effective date. This amendment exempts from the permanent benzene standard operations utilizing liquid mixtures of 0.5 percent or less (0.1 per cent or less after 3 years). Without this amendment, all employers with such operations would be required to implement the various protective re quirements of the permanent stand ard, such as initial monitoring, train ing and recordkeeping. The amend ment relieves them of this burden. In addition the amendment exempts- from the labelling requirements liquid mixtures which are already packaged in containers and which contain 5 per cent or less benzene. Such containers would otherwise be subject to the la belling requirements of the standard. The amendment, therefore, relieves employers of the requirements to label these containers. - Accordingly, these amendments are effective June 27, 1978. As with the other operations exempted from 1910.1028, the benzene standard con tained in Table Z-2 of 1910.1000 will continue to apply to the operations exempted by the amendments. Upon the publication of this amend ment. the limited administrative stay adopted by OSHA in conjunction-with this rulemaking (43 FR, 12891) is no longer in effect. VII. Authority This document was prepared under the direction of Eula Bingham, Assist ant Secretary of Labor for Occupa tional Safety and Health, U.S. Depart ment of Labor, 200 Constitution Avenue NW,, Washington, D.C. 20210. Accordingly, pursuant to section 4(b)(2) and 6(b) of the Occupational Safety and Health Act of 1970 (84 Stat. 1592, 1593, 29 U.S.C. 653, 655), the specific statutes referred to in sec tion 4(b)(2), Secretary of Labor's Order No. 8-76 (41 FR 25059), and 29 CFR Part 1911, Part 1910 of Title 29, Code of Federal Regulations, is hereby amended by adding new paragraphs (a)(2)Uii> and (k)(2)(in) to 29 CFR 1910.1028. Signed at Washington, D.C., this 21st day of June 1978. - Eula Bingham, Assistant Secretary ofLabor. Part 1910 of Title 29 of the Code of Federal Regulations is hereby amend ed by adding a new paragraph (a)(2)(iii) and a new paragraph (k)(2)(iii) to 1910.1028 to read as fol lows: 5 1910.1028 Benzene. (a) Scope and application. * * * ' (2) This section does not apply to: **** (iii) Work operations where the only exposure to benzene is from liquid mixtures containing 0.5 percent (0.1 percent after June 27, 1981) or less of benzene by volume, or the vapors re leased from such liquids. ' ***** (k) Signs and labels. * * * (2) The employer shall assure that caution labels are affixed to all con tainers of benzene and of products containing any amount of benzene, except: ****f (iii) Liquid mixtures containing 5.0 percent or less benzene by volume which were packaged before June 27, 1978. y (Secs. 4, 6, 84 Stat. 1593 (29 U.S.C; 653, 655): Secretary of Labor's Order 8-76 (41 FR 25059); 29 CFR Part 19tl.) CFR Doc. 78-17633 Filed 6-21-78; 3:16 pm] FEDERAL REGISTER, VOL 43, NO. 124--TUESDAY, JUNE 27, 1978 DBZ0019566