Document Rjboz8Onav8aroQEK2LdNnnvv

Federal Register / Vol. 51. No. 119 /^Friday, June 20, 1986 / Rules and Regulations 22653 second reason gjven by AIA is that OSHA also disagrees with AIA's because the measurement and contention that the appropriate legal test analytical method for assessing., for technological feasibility would asbestos exposures is uncertain at lower assure that all employers may be 95 levels, imposing a 0.2 f/cc PEL will not percent confident that an OSHA allow employers to ascertain whether inspector will not measure an over n-they are in compliance [Exhibit 328, p. exposure based on one day's sampling. There is nothing in the Act that would Day-to-Day Variability of Exposure Levels support such a. test. No court that has reviewed OSHA's feasibility determinations has suggested such a . To demonstrate day-to-day test. In fact, the District of Columbia variability, AIA submitted evidence of Court of Appeals has stated in pre recent exposure levels at plants enforcement review that the court would identified as well controlled in various not expect OSHA to prove the standard industry sectors. AIA stated that these certainly feasible for all firms at all . data showed that the airborne asbestos times in all jobs. [United Steel workers exposures varied significantly from day supra, 647 F. 2d 1270]. However, to day at the same work station due to applying AIA's definition of feasibility factors beyond the employer's control would require a feasibility level that [Exhibit 312, Table H). would give employers virtually that OSHA believes that AIA's data in fact level of assurance (i.e., 95 percent versus supports the Agency's conclusion that 100 percent). The Agency's experience 0.2 f/cc is feasible. AIA's data from in promulgating and enforcing the three asbestos-cement pipe plants show former asbestos standard and other that all operations in these plants would health standards provides additional be able to meet a 0.2 f/cc PEL more than policy reasons to reject ALA's test for 50 percent of the time. These data also determining industrywide feasibility. show that most operations in the AIA's test for feasibility depends asbestos-cement pipe industry could be upon a static picture of exposure levels expected to do significantly better. and patterns. But as stated above, all Approximately 80 percent of the feasibility determinations are measurements in the fiber introduction projections of future control results. area and approximately 90 percent of OSHA appropriately has decided that the measurements in the pipe formation higher levels will fall as experience in and lathe finishing area could be applying controls increases. OSHA also expected to read under 0.2 f/cc.[Exhibit has projected that the mix of 312A, Table III] based on AIA's own circumstances under which those calculations. In addition, OSHA measurements were derived will change disagrees with'AIA's contention that under the new standard. The mere since little can be done.about the lowering of the-PEL creates its own sources of variability and a incentive effect of decreased exposures conscientious employer must keep his and will reduce exposure variability. average exposures far below the PEL, so Other policy reasons argue against that he will not inadvertently be cited AIA's statistical formulation of on a "high day" (Exhibit 312A, Tab H, p. feasibility. Most importantly, to give a 4], AIA listed the factors that influence 95-percent level of assurance to variability, including changes in internal airflows such as fans being turned off or blocked! inoperative or blocked ventilation systems, or changes in employers that an-OSHA inspector will not find a measurement above the PEL would require OSHA to deny to employees the assurance that they will individual work practices. be protected by exposure levels that are OSHA has observed in its achievable. For example, it can be enforcement experience that proper ' . calculated that a plant that exceeds the inspection and maintenance of PEL 70 percent of the time has a 35 ventilation systems can greatly increase percent chance that OSHA will not their effectiveness and reduce the sample above the PEL during a visit in variability resulting from inefficient which a single 8-hour TWA sample was operation of such control systems [see taken. AIA's data showed that all also Exhibit No. 335]. OSHA also operations in the asbestos.cement'pipe believes that variation in work practices industry can.achieve 0.2 f/cc more than may be minimized by supervision and 50 percent of the time. Setting a level training programs. While OSHA agrees above 0.2 f/cc would mean that with AIA that there is a day-to-day employees would unnecessarily be variability hi exposure, OSHA believes allowed to be exposed to higher levels that many of the major sources of day to than are now being achieved, simply to day variability can be moderated by increase the level of assurance that an diligent employer control. OSHA inspector will not obtain a high sample on a one day inspection. Such a result would undermine employee protection and would be inconsistent with the policies of the OSH Act. OSHA believes that employers can increase their assurance of not being unreasonably cited by implementing, measures that would not expose employees to such increased risk. The employer can reduce the chances of citation by exercising diligence in applying available controls, by. supervising the work habits, and practices of employees, and by inspecting and maintaining systems in optimum condition. All of these measures will not only reduce employees' average exposures, but also will reduce their high exposures, and thus lower the probability of OSHA issuing a citation. Based on OSHA's experience in regulating other substances with notable day-to-day variability, such as coke oven emissions, OSHA is confident that employers can control a significant portion of such exposure changes. Due to the nature of asbestos fibers, in some workplace operations. OSHA may measure on a day when exposures are above the PEL due to random exposure variations, even though the employers have installed and maintained engineering controls, instituted available work practices and conscientiously applied housekeeping measures that maintain exposures below the PEL most of the time. Therefore, where an employer can show, based on a series of measurements made pursuant to the sampling and analytic protocols set out in this standard, that the OSHAone-daymeasurement may be unrepresentatively high, OSHA may reinspect the . workplace and measure the employees' exposure or.may decide not to issue a citation, unless OSHA has reason to believe that there are circumstances within the employer's control to account . for the high exposure measurement. OSHA is not setting out specific "rebuttal" criteria in the standard'that would bind OSHA always to reipspect and that would deny an employer the opportunity to contest citation only when certain specified criteria are met. One reason is that OSHA believes the informed judgment of the OSHA inspector is superior to a rule that would be based only on the number and result of the employer's measurements. Such a . rule would not accommodate the OSHA inspector's observations about the quality of the employer's sampling and analytic program and the asbestos control, housekeeping, and training programs which OSHA believes are GLEASON-000901