Document MMbDVeeX6DBbVKb31K1r5DaE9

TO: EOIC Executive Committee Interoffice Communication FROM: DATE: SUBJ: T. G. Grumbles August 8, 1989 OSHA PROPOSED RULE: METHODS OF COMPLIANCE VISTA The subject rule has multiple questions and requests for comments and/or data regarding the use of respiratory protection for compliance with occupational exposure limits. Specifically, there are many references to the EO EL rulemaking record regarding the use of respirators to comply with the 5.0 ppm EL. 1 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 VEV 0000422&8 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. 050001-00300-2. 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. [FK Doc. 89-13280 Filed 8-2-89; 8:45 am] BILUNO COOC MtO-22-M DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. H-ISO] RIN 121S-AA2S 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 mors 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 8(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. DAT Comments and requests for a hearing should be submitted by October 3,1989. addresses: Comments should be submitted in quadruplicate to the Docket Officer. Docket No. H-160, Room N3870. U.S. Department of Labor. 200 Constitution Avenue, NW.. Washington. DC 20210. Requests for a hearing should be submitted in quadruplicate to Mr. Tom Hall, OSHA, Division of Consumer Affairs. Docket No. H-160. Room 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: L Background OSHA's methods of compliance policy, first adopted by OSHA from national consensus standards in 1971, and subsequently included in OSHA substance specific health standards, requires that employers rely primarily on feasible engineering controls to prevent employee exposures from exceeding permissible levels. This requirement, in particular, is stated in the OSHA Respiratory Protection Standard, 29 CFR 1910.134(a)(1), which applies to all exposures to airborne toxic substances, and in the Air Contaminant Standard, 29 CFR 11910.1000(e), which applies to exposures to 600 substances listed in Tables 2A, 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 conditions 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 at seq). This methods of compliance policy has also been incorporated in every health standard adopted pursuant to section 8(b) of the Act after OSHA's evaluation of the related rulemaking records. All substance specific health standards (except for the 13 carcinogen standards. 29 CFR 1910.1003-1016. which mandate specific engineering controls) and the carcinogen policy (29 CFR Part 1990) recite a generalized preference for engineering and work practice controls. However, in each such standard OSHA has identified circumstances or operations where the record shows the infeasibility or impracticably of installing engineering controls and has allowed reliance on respiratory protection as well. However, the generic standards. 29 CFR 1910.1000(e) and 134(a)(1). do not set out most of these modifying circumstances in their regulatory texts. In certain recognized situations and conditions under OSHA's substance specific standards, engineering controls are not required and respirator use is permitted. For example, the following standards permit the use of respiratory protective devices during installation of feasible engineering controls, where engineering controls are not feasible, and where it is necessary to supplement engineering controls in order to achieve full compliance: asbestos, arsenic, lead, coke ovens, cotton dust. DBCP. acrylonitrile, and ethylene oxide. Other specific allowances for respirator use can be found in standards for arsenic (maintenance and repair), lead (for employees exposed less than 30 days per year), coke ovens (maintenance and repair), acrylonitrile [maintenance, repair, and vessel cleaning), and ethylene oxide (collection of quality assurance samples, removal of biological indicators, loading and unloading of tank cars, changing ethylene oxide tanks, vessel cleaning, and maintenance and repair activities). These examples provide a clear indication of the Agency's realistic expectations with respect to the implementation of engineering controls and of the flexibility implied with respect to the meaning of "feasible engineering controls." In addition, in an enforcement contexL it may be demonstrated that for specified operations engineering controls are infeasible. OSHA seeks comment on (| <) whether these specific types of allowances should be explicitly built ' into the general methods-of-complianca provisions. OSHA's policy has been criticized by some es too inflexible, not costeffective, often unnecessary for health vev 2269 23992 Federal Register / Vol. 54. No. 106 / Monday. June 5. 1989 / Proposed Rules protection and outdated based on the argument that sufficient progress has been made in respirator technology and application to permit their use on a wider scale. In order to address these criticisms OSHA published an ANPR on February 22.1983, to solicit public comment on issues such as preference for engineering controls, comparative protectiveness of respirators and engineering controls, total costs of respirators and engineering controls, and the use of engineering controls even if such controls fail to reduce levels to below the PEL OSHA was also seeking information that would help the Agency to focus on three primary policy considerations: The first consideration was health protection. It had been postulated that there may be many instances where respirators would provide protection to employees equivalent to engineering controls, and that their routine use should be permitted. The second consideration 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 19BB 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* effectiveness. There may be instances where the costs of engineering controls would exceed the expected costs of respiratory protection, and where the routine use of respirators may provide adequate employee protection. Should such instances exist, reasonable allowances for the use of respiratory protection should be made. For the foregoing reasons, it was felt to be timely and appropriate to reexamine OSHA's policy on methods of compliance. Over 133 ANPR comments were received, with a wide range of responses from industry, labor, health organizations, and others. In addition. rulemaking records from other standards which OSHA has promulgated have been re-examined and relevant exhibits have been placed in this record. Labor unions opposed any change in the role of respirators in current programs. In addition. NIOSH, and Los Alamos and Lawerence Livermore research laboratories, highly respected for their expertise and experience in exposure control technology, also opposed changing the existing policy. The preponderance of data in this and other rulemaking records (ethylene oxide, cotton dust DBCP, acrylonitrile, arsenic, lead, asbestos, cancer policy) support the industrial hygiene principle that engineering controls, where feasible, are more effective in controlling exposure than other means. Commenters representing unions. (253. 2-102, 2-122.2-98), universities (2 120), research organizations (2-128,2138,2-131,2-81), and health associations (2-89). contended that the requirement to implement feasible engineering controls should be. maintained. Industry representatives that acknowledged the superiority of . feasible engineering controls include AT&T (2-59). DOW (2-71), Monsanto (288). and ALCOA (2-103). These commenters agreed that engineering controls provide reliable and consistent levels of protection to a large number of workers and are not dependent on individual human performance. Data submitted to the record support this assertion. Performance of engineering controls can be monitored continually, inexpensively, and can be predicted at the design stage. As stated by DOW, "The primacy of engineering controls for controlling exposure is an accepted principle of occupational health" (2-71). AT&T commented that "Engineering controls should always be given primary consideration" (2-59). Los Alamos' Industrial Hygiene Group has stated. That * * * there are no analytical reaulta to indicate that respirator* offar equal or better protection than engineering controla and with vary few exceptiona * * * respirators simply cannot offar the aarne degree and reliability of protection to employee!, aa properly designed and operated engineering controla (2-131). The University of North Carolina commented that: All industrial hygiene practice indicataa feasible engineering controla should tske precedence * * * (Ex. 2-120). ALCOA, addressing the reliability of engineering controls and respiratora, provided the following: Engineering controls generally provide better and more reliable methods of protecting employee health * * * Improperly wearing respiratora can be a continual problem. While we believe this occurs less than 6% of the time in many of our plants, wa expect it occurs more frequently in some plants--potaibly 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 controla "in preference" to the use of respiratora, as follows: As long ss the employer meets a permissible exposure limit (PEL), controls the skin contact or meets the appropriate biological levela that are consistent with employee health end safety. OSHA should not require any specific control strategy (tic). Means for achieving such standards will often involve engineering controls and the use of respiratora aa wail aa administrative and work practice controla. Method* of reducing exposure to the desired level will be different in each workplace and the combination of engineering, administrative, and work practice control* and use of respirators should be left to the employer. Representing e 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 limits and permitting engineering control* are not feasible, not ytt installed, or are inadequate is conducive to the "moat affective" protection of workplace health. It ia the NAM's belief that almost exclusive reliance on angina*ring controls while not accounting for situational variations is neither the moat effective approach nor in tha bast interest of overall worker protaction. FdW professionals in industry would argue that engineering control* are not the "ideal" means for the elimination or mitigation of workplace hazards. However, ideal solutions rarely work aa 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 intaracting with a total workplace safety and health program. Under this total program, the ideal solution for the control of one hazard may likely limit aa amployer's ability to addnaa the remaining segments of tha program. Thu*, preference for one form of control over another, unmindful of the variable* involved. VEV 000042270 Federal Register / Vol. 54. No. 106 / Monday. June 5. 1989 / Proposed Rules 23993 * believe, it counterproductive to the effectiveness of e balanced and truly 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: The prime concern in any reconsideration of the methods-of-compliance provisions must be maintenance of safety and health protection for employees to prevent workrelated injuries, illness and death. Such protection cannot be achieved by mandating a hierarchy of control techniquaa. Dow recommends that OSHA dalete or modify any mandatory preference to allow employers greater flexibility to use thetr professional judgment to determine the belance of engineering controls, work practices, operator traming and personal protective equipment that is most effective for them in echieving the eppropriete level of protection. Another major chemical company, Du Pont emphasized the effectiveness of respirators together with the need for greater flexibility: Much hai changed since the current method* of compliance policy wee 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 whan used in e good respirator program. Recent research on workplace protection factor* demonstrates that respirators provide effective control for exposure to airborne chemical* when they are used correctly in a good respirator program. In many case* they provide the most cost effective means of control. Accordingly. DuPont believe* that respirators, like engineering and administrative controls, have a proper role to play in the protection of employee's. Therefore. DuPont recommends that each employee* personal work environment be maintained at a safe exposure level through implementation of coet-effecttv* engineering control* augmented as necessary by personal protective equipment and/or work practice controls. The choice of method* should depend on the factors in each specific situation. *4 The choice of the proper method!*) of compliance involve*, therefore, for more then the simple dichotomy of engineering controls versus respirators. For this reason, the question "Which era better, engineering controls or respirators?" cannot be satisfactorily answered in the abstract. A* the information and comments offend by Du Pont in the enclosure will indicate, the choice of the proper mediod(e) of compliance Is bast made on an individualized basis by industrial hygiene professionals. So long ae the two criteria identified above have been met en employer should not be needlessly contrained from choosing the control strategy that make* sense for hit particular operation. Atlantic Richfield Company (Ex. 2-80). in endorsing comments submitted by the 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 contaminant*. Varying control strategies will achieve that goal at least equally well, and often more cost-effectively, as the fixed controls provided by currant 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 ia fully developed in API's comments. OSHA should recognize the significant advances m both technology and applicability of respirator* in the last decade. New method* and procedure* 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. 2-7B]. Motor Vehicles Manufacturers Association [Ex. 2-95], and The Health Industries Manufacturers Association [Ex. Z-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 control*. The nature of the risks involved concerns differences in degree of protection between respirators and engineering controls as applied in various types of work situations involving different air contaminants. The Propotal 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'* 6(b) standards and data and information submitted for the record, under which more extensive use of respirators may be appropriate. The record does identify specific situations where engineering controls generally may not be feasible, and where respirators may have to be used (Exs. 2-51,2-72.2-131). OSHA. therefore, ia proposing to specify five sets of circumstances where there will be no need for employers to show that engineering and work practice controls are not feasible before an employer can rely on respirators to reduce employee exposure to required levels. In large part these circumstances reflect the current application of the two standards involved and circumstances recognized in substance-specific standards. By setting out explicit situations OSHA hopes to make future application of the methods of compliance policy more uniform and understandable. It is noted that provisions adopted under this standard will not change the compliance provisions found in OSHA's existing substance specific standards with the possible exceptions of the STEL provisions in the ethylene oxide (29 CFR 1910.1047). benzene (29 CFR 1910.1026) and formaldehyde (29 CFR 1910.1048) standards. The preamble to those standards indicated that if evidence I were to be submitted during this rulemaking, appropriate to ethylene oxide, benzene or formaldehyde on the STEL compliance issue OSHA would consider making appropriate changes to each rule. If information developed in the course of this rulemaking demonstrates that changes should be made in any of the existing substance specific standards. OSHA will amend these standards to permit employers to elect to use either respirators or engineering controls to achieve compliance with those existing short term limits. The circumstances listed define concrete situations where OSHA has or would have treated the primary reliance on engineering controls as infeasible in most cases. Wlthln thTM etnaimatencee employers witf heebie use *ny- combination of engineering or work practice control* and respiratory protection to effectively reduce employee exposures to required levels. OSHA also notes that as under the current standards. OSHA's enforcement of the hierarchy of controls provision is on a case by-case basis. Other situations where engineering controls may be infeesible can be more easily identified because of the explicit examples provided in the proposed provisions. OSHA has recognized other circumstances where respirators are essential to guarantee employee health in aome substance-specific standards. Thus. OSHA has provided that in work operations such shutdown and repair activities respirators may be used as a primary control strategy. (See 29 CFR 19iai048(a)(l)(ti). Formaldehyde; 191fU047(g)(l)(ii), Ethylene oxide (EtO); 1910.1043(f)(1)(H), Cotton dust 1910.1029(g)(1)(b), Coke Oven emissions; VEV 000042271 23994 Federal Register / Vol. 54. No. 106 / Monday. June 5, 1989 / Proposed Rules :9i0.icn8(h)(i)(ii), Inorganic arsenic; I9l0.l00l(g)(ii), Asbestos, tremolite, anthophyllite. and actinolite). OSHA has not proposed an explicit exclusion for maintenance activities for the generic standards. As OSHA observed in the preamble to the carcinogen policy, based on its review of that voluminous record, although these activities are "intermittent, often unpredictable and often undertaken when engineering controls break down * * * some maintenance activities are feasibly controlled by engineering and work practice controls" 45 FR 5228, Moreover, the Agency believes that routine activities that are performed on ' a repeated or scheduled basis can be | controlled through implementation of feasible engineering and work practice controls. Compliance plans can be i developed and engineering controls implemented for predictable activities. | including routine maintenance. However, OSHA raises for comment the question of whether it is necessary to require that all feasible engineering controls such as ventilation systems be installed solely for maintenance activities. Specifically. OSHA would like to receive examples of instances which would demonstrate that an # engineering control requirement exclusively for maintenance exposures would or would not be appropriate. (For activities such as shutdown and repair, which are necessary due to unexpected or unpredicted occurrences, respirators would be permitted as they would be the only available source of protection against exposure.) The Agency does agree, however, that there may be some activities that are considered to be maintenance that may have to be performed with respirators due to the absence of other controls. Nevertheless, as discussed above, the Agency believes many maintenance activities lend themselves to control by engineering means. OSHA does not have sufficient information to list specific maintenance fobs commonly performed in general industry that may require widespread use of respirators. Therefore, the Agency is interested in receiving comment on the practicality of listing specific maintenance jobs for V) which engineering controls are generally v infeasible or maintenance activities where respirator use is otherwise appropriate based on consideration of duration, frequency and whether routine or not. Thus, data are solicited regarding A\ circumstances, conditions, frequency, and duration of the types of industry wide maintenance activities that typically require the use of respirators due to the general infeasibility of appropriate for clarification purposes. engineering control implementation or Comment ia requested on this issue. for which respirator* would, in any case, OSHA points out that this exception provide sufficient protection. does not cover the required The five sets of circumstances that supplemental use of respirators when - have been identified by OSHA from feasible engineering controls do not data in the record where engineering "achieve full compliance" pursuant to 29 controls may generally be infeasible CFR 1910.1000(e). Rather, it refers to include; situations where engineering controls 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 e 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 as A provision-by-provision discussion of the proposed revisions follows: virtually impossible to engineer to achieve substantial exposure reduction 1. OSHA is proposing to allow (Ex. 2-38). OSHA notes however, that primary reliance on respiratory engineering controls may be feasible to protection during the time necessary to implement, and the issue may be the install or implement feasible engineering degree to which they are effective. The controls. This circumstance was proposed provision would allow specifically identified in submissions to reliance on respirators when feasible the ANPR (Exs. 2-91,2-50). and in all engineering controls only achieve substance specific standards (see e.g. 29 negligible exposure reduction. If in the CFR 1910.104(g)(l)(l). EtO: case of foundries, the installation of 19iai045(h)(l)(i), cotton duat). local exhaust hoods and increased ' 2. OSHA is proposing to allow primary reliance on respiratory housekeeping make little difference in the employee's exposure because of protection where engineering control implentation would result in only a negligible reduction in exposures. OSHA unalterable difficulties in hood placement then the provision may a.p.pl.y. If however, engineering controls requests comment on whether setting can reduce exposures, although not forth this additional explicit regulatory(p7 down to the PEL'i, the unrevised language is necessary in light of existing provisions requiring that only feasible engineering means be implemented to reduce exposures. Current OSHA supplemental respirator use provision of i 1910.1000(e) would, as now. come into play and require a combined control strategy, and not total reliance on. enforcement policy and practice recognize that the degree of expected exposure reduction is part of the respirator protaction. OSHA also notes that confining discussion about the effectiveness of determination of feasibility. Therefore. OSHA feels that it may be unnecessary to supplement the current compliance requirements with specific language as feasible engineering controls to "conventional" controls may dictate unwarranted conclusion of infeasibility, loss of productivity or ineffectiveness. suggested above. Further, to define in regulatory terma 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 NIOSH has pointed out that, for example, in the plastics and resins industry, implementing controls for cotton dust and in silica Hour milling, engineering control modifications and innovation increased production and enforcement basis, may prove to be confusing to employers and impractical to OSHA. Nevertheless, since the potential success of exposure reduction is considered in determining feasibility, control effectiveness over "conventional" technology. (Ex. 2-81). Innovative controls which are available will have to be assessed before this exception may be relied on. proposing specific language to that effect would not change current OSHA 3. The third provision proposed by OSHA to permit reliance on respiratory policy and therefore, may be equipment encompasses several 000042272 Federal Register / Vol. 54, No. 106 / Monday. June 5. 1989 / Proposed Rules 23995 circumstance* where total reliance on essential for these activities, and that engineering controls would be engineering controls were, in the main, ineffective or inappropriate. These are infeasible (Ex. 2-112). emergencies, recovery operations, OSHA believes that employees will unscheduled repairs shutdown, and in be effectively protected in the situations Held situations where there is a lack of evisioned in provisions 4 and 5, by the utilities for implementing engineering controls. proper selection and use of respiratory protection. OSHA believes that in these The Agency requests comments on all circumstances, respiratory protection &aspects of these proposed provisions. In has proven itself generally as the most 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 respirators, i.e.. lack of emrpl.oy,ee_ ^vviews. and comment on other situations, acceptance and degradation of fit over // Ws discussed below, where it may be time are greatly reduced by the short ^--' acceptable to use respirators in lieu of time they may be worn during engineering controls, and which should emergencies, recovery operations, be allowed 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, MonsanttvS^ppropriateness of permitting the use of noted that during emergencies (liquid (HJtespirators 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 8(b) respirators are the only means to standards based, in part on the short provide emergency protection in the duration of the activity. For example, event of an equipment failure (Ex. 2-93). respirator use is permitted under the Most substance specific standards ethylene oxide standard (29 CFR permit primary respirator use in these 1910.1047) during the collection of situations (See e.g. || 1910.1018(h)[1)(ii). quality assurance samples, removal of arsenic: ) 1910.1028(g)(1)(d). coke oven emissions); and S l910.1044(h)(l)(iv), biological indicators, and changing of ethylene oxide tanka or cylinders. These DBCP). activities are typically brief in nature. 4. OSHA is also proposing to allow The concept of according acceptability reliance on the use of respirators in of reapirators for intermittent use i> also operations involving materials which found in the benzene (52 FR 34460) and are primarily controlled by engineering lead (28 CFR 1810.1025) standards devices to protect employees in the case which, in general, permit their use .where of control breakdown. oSHA's intent is the regulated substance ia used in the to allow respiratory protection to 1m workplace lest than a total of 30 days used as a redundant control system par year. These exceptions to where redundancy is considered implementation of engineering controls necessary either because of the toxicity were adopted in etch specific standard of the substance or the possibility of based on data that demonstrated the engineering breakdown. For example, acceptability of the use of respirators for Conoco, Inc. stated that "standby or those particular circumstance* in those back-up respiratory protaction ia particular substance using industries. normally maintained in all locations Thus, it is not presently clear to OSHA where hydrogen suifide (H*S) gas is whether such exclusions can be produced in case of accidents" (Ex. 2- appropriately applied generally. Another 60). regulatory agency, the Mine Safety and 5. The fifth circumstance proposed to Health Administration (MSHA), is also allow reliance on respiratoiy protection exploring the iasue of way* to permit is for entries into unknown atmospheres. more flexibility in required exposure Preliminarily. OSHA intends to cover control methods for unusual situations. confined spaces or vessel entry end tank For example, MSHA is considering cleaning and vessel cleaning. Most permitting the use of respirators in commenters who addressed this issue "tasks such a> maintenance or agreed that respiratory protection was investigative activities (which) require occasional entry into hazardous atmospheres." Comments submitted to the Methods of Compliance record also argued for incorporation of flexibility in respirator use under certain condition*. 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 ia sought that demonstrate that "budgeted" respirator use will result in reliable end 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. 2-81), 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 la not convinced based on available data that it is appropriate for the Agency to adopt broadly applicable generic exposure control provisions incorporating intermittency or ahort duration of operation as a basis for permitting the use of respirators in lieu of engineering controls, as found in the specific standards discussed sbovs. Therefor*, comment and data at* solicited that demonstrate or refute the approprietaoeM of adopting this approach Into a final rule on OSHA's methods of compliance requirements, fllj# based on the frequency end duration oi^ the activity, that could be applied to general industry. Comment ia 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 i> suggested, the Agency requests data and information as to the appropriate time period and why adequate protection would be VV 0000*2273 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, aa discussed above, is the issue of specifically permitting respirators to be used to achieve compliance with short-term exposure limits (STELa). The preambles to the recently promulgated benzene (52 FR 34460) and formaldehyde (52 FR 46168) standards, for which STELa were adopted, and the preamble to the ethylene oxide standard (53 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 u used to achieve compliance with the short-term limit in lieu of feasible u engineering controls because data in 1 their specific respective records did not n justify such an allowance. It is noted in f each standard's preamble that if evidence is submitted in the Methods of Compliance rulemaking, appropriate to 1)ethylene oxide, benzene or formaldehyde on the short-term limit compliance issue OSHA will consider making appropriate changes to each rule. OSHA therefore requests, additional data beyond those received during the specific 6(b) rulemakings, addressing the question of whether the compliance requirements in these standards should be modified with respect to control of short-term exposures. Data and views are solicited on circumstances under which it would or would not be appropriate to permit employers to elect to use either engineering controls or respirators aa 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 ail substances to exposure; ability to measure and ensure be achieved solely through the use of /'~^the adequacy of exposure control; work respirators. Since OSHA has received (\^)Jrate; temperature and humidity of the no documentation that convinces the V^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 employees may be expected to wear comment. respirators for any required period. The Agency is raising this issue for comment in conformance with statements to that effect in the ethylene Comment received on these factors as set forth in the ANPR revealed that an important role is played by each in oxide, benzene and formaldehyde determining the suitability of standards. OSHA therefore requests substantive technical data concerning compliance methodology. Engineering controls were suggested as being conditions and situations under whicly--^particularly preferred where health respi's'ors can be employed (\ [a Teffects are more severe, where there are successfully in lieu of other controls tO'i.ix'more lengthy and frequent periods of achieve STEL or excursion limit exposure: where respirator failure compliance, and concerning how and why the use of respirators for protection against short-term exposures can be differentiated from protection against warning properties do not exist; where the work rate exertion level is greater, where significant respirator fit problems 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 acceptable is also being requested by OSHA. As discussed earlier, the should be viewed in deciding whether engineering controls or respirators are most appropriate and, further, how these x--s question arises whether there are circumstances in the workplace where factors could be reflected in a final rule to define those circumstances where the protection afforded by respirators respirator use would provide would be equal to the protection /Ot appropriate protection and would, thus, provided through implementation of t * J be permitted under the rule. How would engineering controls. In particular, the it be determined that employees would (p | \ question arises whether there era be provided with the desired degree of circumstances where the costs of the protection? It is noted here that OSHA is respirator program would be less than in the process of revising its standard on those of engineering controls and yet respiratory protection (29 CFR 1910.134) equal protection would be afforded by and that consideration should be given either. Are there circumstances in which as to whether an increased degree of cost effectiveness factors are e r--.protection may r,esult where..res.pirators legitimate consideration in determining! (Sr1* u*e^ ^ comformance with the new the acceptability of one exposure ---respirator program provisions, control method over another. Also, what It is not clear to OSHA at this time, workplace factors would have to be however, how it can be determined that considered to evaluate the effectiveness--.respirator use i* equally protective aa of a control method before costs couldfiwyengineering controls, costs be taken into account? A number of notwithstanding. Nevertheless, OSHA factors that may be appropriate to seeks comment that would show the consider in determining whether engineering controls or respirators will appropriateness of allowing cost effectiveness to be incorporated as a provide adequate protection in a control method selection factor. % particular situation were raised for In the proceeding discussion. OSHA comment in the ANPR. OSHA seeks has maintained its support for a further comment on how factors such 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 respirators. Workplace factors which may affect the performance and degree appropriate to allow respirator use in lieu of feasible engineering controls, 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 VEV 000042274 1. Federal Register / Vol. 54. No. 106 / Monday. June 5, 1989 / Proposed Rules 23997 respirator compliance program to the Agency. This compliance plan would be subject to OSHA approval and would be required to demonstrate to the Agency that the use of respirators under the circumstances described would provide protection to the employee equivalent to that afforded if feasible engineering controls were implemented. OSHA believes, however, that this flexibility l ; may not be appropriate where the i substance involved is a carcinogen, has i , no identified dose-response threshold, j continues to pose a significant risk at the PEL has no respirator breakthrough i 1 warning properties, or if there are no j means of determining the specific in-use i | effectiveness of the respirator. On the 1 other hand, if the effectiveness of respirators can be monitored readily in some manner, such as by biological monitoring, it may be appropriate to permit their limited use. The Agency solicits comment on the issue of OSHA approved respirator use. Views are sought on criteria which should be / -''n. considered and met for respirator l '22) Compliance program approval and on V__ ^circumstances, as suggested above, under which respirator use should not be permitted in lieu of feasible engineering controls. An alternative which would provide even more flexibility with regard to respirator use is to allow employers under any circumstances to comply with exposure limits by any method the employer deems advisable. Some commenters have suggested that establishment and enforcement of a good respirator program will result in effective exposure control where respirators are used in place of engineering controls, and that employers should be allowed to implement such respirator programs under the standard in circumstances deemed appropriate by the employer (Exs. 2-61.2-88,2-93,2-94. 2-109). For example, the Ethyl Corporations states that "The government should not regulate the need for engineering controls but should regulate the use of personal protective equipment, requiring the employer to show that protection is being provided" (Ex. 2-109). The American Petroleum Institute asserts that "The burden should rest on the employer to demonstrate that its employees are protected by whatever [control) strategy is chosen" (Ex. 2-93). Finally, 3M states that "A well written performance standard should satisfy the requirement that OSHA ensure that exposures are within permissible exposure limits while allowing the employer to be concerned with the `how' of meeting a specific standard" (Ex. 2-88). OSHA ia not convinced that, as suggested by these Regulatory Impact commenters. implementation of even a strong respirator programs will result in equivalency of protection afforded by respirators ss 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. IL Pertinent Legal Authority control method which limits contaminant entrance into the workplace (e.g. engineering controls) has been clearly shown to be a more effective application of industrial hygiene principles than one that does not. Nevertheless. OSHA seeks Authority for this action is found primarily in sections 6fb|, Sic), and 8(g)(2) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. 655(b). 657(c). and 657(g)(2). IU. Public Participation comment on whether continuance of the Interested persons are invited to control hierarchy is still necessary in submit written data, views, and any form, and whether adoption of a arguments on this proposed amendment. purely performance oriented compliance These comments must be postmarked on provision into a final methods of Oy o'W before October 3.1989. and submitted compliance rule is a viable option. in quadruplicate to the Docket Officer. Comments in support of discontinuance Docket No. H-160. U.S. Department of of the control hierarchy should describe Labor. Occupational Safety and Health the specific circumstances under which Administration. 200 Constitution such a change would be appropriate and Avenue. NW,, Room N-3670, how it would result in continued Washington. DC 20210, (202)523-7894. equivalent employee protection. Data Written submissions must clearly and information are also sought that can identify the provisions of the proposal demonstrate that adoption of a which ere addressed, and the position performance oriented compliance taken.on each issue. requirement will maintain the protectiotr^y The data, views, and arguments that afforded employees under current \cDAt submitted will be available for methods of compliance provisions. If th-public inspection and copying at the employer is permitted to choose any mix above address. All timely submissions of control methods to achieve will be part of the record of the compliance, should choice of the method proceeding, be at the discretion of the employer or _ ,,, should the method chosen be required to Hoquesta for Hearing be approved by a professional in the/^T~X Under section 6(b)(3) of the OSH Act field of safety and health or other \7.(>nd 29 CFR 1911.11. interested persons technicially qualified person? ^--who desire that OSHA hold an oral Commentars supporting continuance of OSHA's current policy should provide pertinent data that demonstrate the necessity of maintaining primary reliance on feasible engineering and work practice means of exposure control. Based on the proceeding discussion. OSHA proposes to add a new paragraph 1910.1000(f) that explicitly sets forth circumstances in the workplace where employers may choosa to use respirators in lieu of engineering means as a permissible method of controlling employee exposures to toxic substances listed in the Z-tables of section 1910.1000. OSHA also proposes to modify section 1910.134(a)(1) by incorporating a statement of reference that indicates that respirators may be used in lieu of control in the circumstances listed under proposed paragraph 1910.1000(0. hearing on the proposal may file objections to the proposal and request an informal hearing- The objections and hearing requests should be submitted in quadruplicate and must comply with the following conditions: 1. The objection must include the name end address of the objector 2. The objections must specify with particularly the provisions of the proposed rule to which objection is taken and must state the grounds therefor 3. Each objection must be separately stated end numbered: and > 4. The objections must be accompanied by a detailed summary of the evidence proposed to be introduced at the requested nearing. Interested persons who have objections to various provisions or have changes to recommend may. of course, make those objections or VEV 000042275 23998__________ Federal Register / VoL 54, No. 106 / Monday. June 5, 1989 / Proposed Rulea recommendations in their comments and 2. The last sentence of paragraph full compliance, protective equipment or OSHA will fully consider them. There is (a)(1) of 11910.134 is proposed to be any other protective measures shell be only need to file formal "objections" if revised to read as follows: used to keep the exposure of employees the interested persons desire to request an oral hearing. Requests for a hearing should be {1910.134 Respiratory protection. (a) Permissible practice to air contaminant* within tht limits prescribed in this section. Any equipment and/or technical measures submitted in quadruplicate, postmarked on or before October 3,1989, addressed to Mr. Tom Hall, OSHA Division of Consumer Affairs. Docket No. H-160, Room N-3637. U.S. Department of Labor. 200 Constitution Avenue, NW., Washington, DC 20210, (202) 523-8615. When effective engineering controls are not feasible, while they are being instituted, or in circumstances meeting the requirements of 29 CFR 1910.1000(f), appropriate respirators may be used pursuant to the following requirements. used for this purpose must be approved for each particular use by e competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with {1910.134. (f) Respiratory protection may be used IV. References Subpart Z--{Amended] in lieu of administrative or engineering controls to achieve compliance with A complete set of the references in 3. The authority citation for Subpart Z paragraphs (a) through (d) of this section Docket H-160 upon which this proposed of Part 1910 continues to read as under the following circumstances; action is based is available for follows: (1) During the time necessary to install examination and copying at the OSHA Docket Office. Room N-2625, UJS. Authority: Sees. 0.8. Occupational Safety and Heolth Act 29 U.S.C. OSS, 057: Secretory feasible engineering controls: (2) Where feasible engineering Department of Labor. 200 Constitution of Labor's Orders 12-71 (30 FR 0754). 0-70 (41 controls result in only a negligible Avenue. NW., Washington, DC 20210. FR 25059). or 9-03 (48 FR 30730) ** applicable: reduction in exposure, between 830 am. and 4:30 pm,. Monday through Friday, legal holidays excepted. V. Authority This document was prepared under the direction of Alan C. McMillan. Acting Assistant Secretary of Labor for and 29 CFR Pert 1911. All of Subpart Z issued under Sec 0(b) of the Occupational Safety and Health Act 29 U.S.C. 055(b) except those substance* listed in the Final Rule Limits columns of Table Z- l-A which have identical limit* listed in the Transitional Limits columns of Table Z-l-A Table Z-2 or Table Z-3. The latter warn (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 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. 853.655.857). 29 CFR Part 1911 and Secretary of Labor's issued under Sec. 0(a) (8 U.S.C. 053 (a)). Section 1910.1000, the Transitional Limits columns of Table Z-l-A Table Z-2 and Table Z-3 also issued under 3 U.S.C. 333. Section 1910.1000. Tables Z-l-A Z-2 and Z~ 3 not issued under 29 CFR 1911 except for the arsenic, benzene, cotton dust and formaldehyde liftings. normal controls; and (5) Entries into unknown atmospheres. 49999 (FR Doc. 09-13137 Filed 0-2-89; 5:45 am) Order No. 9-83 (48 FR 35730). 29 CFR Part 1910 is proposed to be amended as Section 1910.1001 also issued under Sec. 107 of Contract Work Hour* and Safety - ENVIRONMENTAL PROTECTION set forth below. Standards Act 40 U.S.C. 333. AGENCY List of Subjects in 29 CFR Part 1910 Section 1910.1002 not issued under 29 U.S.C 055 or 29 CFR Part 1911; aiao issued 40 CFR Part 52 Chemicals. Diving. Electric power. Electronic products. Fire prevention. Gases, Hazardous materials. Health records. Noise control. Occupational safely and health. Radiation protection. Reporting and recordkeeping requirements. Signs and symbols. Signed at Washington. DC this 23th dsy of May. Alan C McMillan, under 5 U.S.C. 553. Sections 1910.1003 through 1910.1018 also issued under 29 U.S.C. 083. Section 1910.1025 also issued under 29 U.S.C 053 and 5 U.S.C. 533. Section 1910.101028 also issued under 29 U.S.C. 333. Section 1910.1043 also issued under 3 U.S.C 351 at seq. Sections 19iai04S and 1910.1047 also issued under 29 U.S.C 033. Section 1910.1043 also issued under 29 [FRL-3095-1] Approval and Promulgation of Implementation Plana; Harris County, TX; Disapproval of Alternative Reasonably Available Control Technology Determination aosncv: Environmental Protection Agency (EPA). Ading A**i*tant Secretary ofLabor. U.S.C033. Acnoto Proposed rule. Sections 19101200.19101499 and 19101300 PART 1910--(AMENDED] also issued under 3 U.S.C. 353. summary: This notice propose* it I1 IiF. H Part 1910 of Title 29 of the Code of Federal Regulations is proposed to he amended aa follows: Subpart I--[Amended] 4. Section 1910.1000 ie proposed to be amended by revising paragraph (e) and adding a new paragraph (f) to read aa follows: {19101000 Air contaminants. disepprovel of * State Implementation Plan (SIP) revision submitted by the State of Texas on January 12,1987. This revision is to the Ozone Control Strategy For Harris County (Houston) to allow alternative reasonably available control H 1. The authority citation for Subpart 1 of Part 1910 is revised as follows: 1999 9 (e) Except as provided by paragraph technology (RACT) for metal surface coating processes at Richmond Tank t i :: Authority: Sec*. 4,6. a. Occupational Safety and Health Act of 1970 (29 U.S.C. 033.533. 657); Secretary of Labor's Ordar No. 12-71 (30 FR 0734). 8-78 (41 FR 23059) or 9-03 (40 FR (f) of thia taction, to achieve compliance with paragraphs (a) through (d) of this section, administrative or engineering controls must first be determined and Car Company's railroad tank car repair and coating facility (In Sheldon. Harris County, Texas.) This action proposes disapproval of the SIP revision for 35730). as applicable. Section 1910.134 also implemented whenever feasible. When Richmond Tank Car Company under issued under 29 CFR Pert 1911. such controls are not feasible to achieve Section 110 of the Clean Air Act (CAA). 1 i I ( VEV 000042276