Document XOZdVEvLGdMrQ0YOXDYJ7E8Q4

ISA ASBESTOS INFORMATION ASSOCIATION' NORTH AMERICA 1660 L Street. N.W. / Washington. D C. 20036 / (202) 223-4885 19 March 1976 Memorandum For: Subject: MEMBERS OSHA Asbestos Standard - Retention of exposure monitoring records. The enclosed notice in the Federal Register this date is a change to Occupational Safety and Health Standard, Asbestos, 29 CFR, 1910.1001 (i), Recordkeeping (1). The current regulation, which became effective July 1, 1972 called for retention.of personal or environmental records for f "at least three years." The change requires that these kinds of records be kept for at least 20 years. Rationale for the change follows the remand of the U.S. Court of Appeals for the District of Columbia in the case of Industrial Union Department , AFL-CIO v. Hodgson 499F 2d 467 (C.A.D.C. 1974) directing the Secretary of Labor re-examine the asbestos standard with respect to the three year record keeping provision as to adequacy for employee protection in development of information concerning causal relationship of asbestos exposure and certain related diseases. This new requirement is effective as of this date, March 19, 1976. It is suggested holders of AIA/NA "Asbestos Federal Regulations" make the appropriate changes. . H/ Mereness Executive Director Enclosure RHM: v I 'fifd register1 NO. 35--FRIDAY, MARCH J, 1976 Title 29--Labor CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DE PARTMENT OF LABOR PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS Standard for Exposure to Asbestos Pursuant to sections 6(b) and 8(c) of the Occupational Safety and Health Act Of 1970 (84 Stat. 1593.1599; 29 U.S.C. 655, 657). Secretary of Labor's Order No. 12-71 (36 PR 3754). and 29 CFR Part 1911, 5 1910.1001(1) (1) of Part 1910 of Title 29, Code of Federal Regulations, Is hereby amended in the manner set-forth below. In order to extend the retention period for asbestos exposure monitoring records from three years to twenty years* On December 7. 1971 (36 PR 23207), OSHA Issued an emergency temporary' standard cm asbestos In response to a pe- i tltion by the Industrial Union Depart*' meet of -the AFL-CIO, pursuant to sec tion 6(c) of the Act (84 Stat. 1596, 29 U.S.C. 655). This emergency temporary standard was designed primarily to Immediately reduce and control occupa- i tlonal exposure to asbestos dust concen trations, and did not contain record keeping procedures. However, on Janu ary 12, 1972 (37 PR 466), OSHA pub lished a proposed comprehensive stand ard for asbestos exposure which did Include recordkeeping provisions. Para graph (h) (1) of the proposal (37 FR ! 463) provided that exposure monitoring ; records, and records of medical exami- I nations, be maintained for a period of I twenty years. After public hearings the j Secretary promulgated a new, perma- ! nent OSHA standard for asbestos on I June 7. 1972 (37 FR 11318), In accord- I ance with section 6(b) of the Act (84 Stat. 1593, 29 U.S.C. 655). This new reg ulation. -which appeared as 29 CFR 1910.93a prior -to recodiflcatlon, con tained a three-year requirement for re- ( tabling exposure monitoring records, 29 j CFR 1910.93a(l) (1) (now 29 CFR 1910.1001(i>(l)). On July 27, 1972, pursuant to section 6(f) of the Act, (84 Stat. 1597, 29 U.S.C. 655), a petition for judicial review of the asbestos standard was filed with the United States Court of Appeals for the District of Columbia. The principal peti tioners. the Industrial Union Depart- : ment, AFL-CIO. objected to several sub- ; stantlve portions of the standard, includ- I ing those dealing with recordkeeping. ; The Court affirmed the Secretary's judgments and the standard's validity except for two provisions, one of which was the retention period for exposure monitoring records. "Industrial Union Department. AFL-CIO v. Hodgson." 499 1 F. 2d 467 (C.AD.C. 1974). The Court directed the Secretary to re-examine the standard with respect to the three-year recordkeeping provision and to recon sider whether such time period ade- ; quately assured employee protection i from asbestos-related diseases. I - In discussing this issue, the Court noted that many of the problems facing the Secretary in developing an asbestos standard were directly attributable to the lack of Information concerning asbestos-related diseases, and particu larly to the lack of reliable data on post exposure levels. Noting the close func tional relationship between medical rec ords and exposure records, and the fact that the standard required that medical records be maintained for at least 20 years, the Court expressed surprise at the short three-year retention period for monitoring records. After reviewing the Secretary's obligation under the Act to require retention of records neces sary for the development of information concerning the causes of disease and the importance of exposure data in estab lishing this causal relationship, the Court remanded the recordkeeping require ments to the Secretary "for such modifi cation or clarification as may be neces sary to ensure that the statutory objec tives will be fulfilled*' 499 F. 2d at 488. Pursuant to the Court's direction, OSHA has completed its review, and has concluded that the opinion expressed by the Court is an accurate reflection of the record, and that the agency's initial judgment warrants correction. OSHA believes that extension of the recordkeeping requirement for exposure monitoring from three years to twenty years as originally proposed would be In harmony with the twenty-year retention period now required for employee medi cal records, 29 CFR 1910.1001(j) (6) (l). As the court noted (499 F. 2d at 483), the two sets of records when read to gether would provide a more complete record of an employee's history of ex posure. a factor vitally Important with respect to asbestos-related diseases. The extended period for retention, with re sultant data accumulation, will be crit ical to medical and scientific Investiga tions studying such questions as dose- response relationships in diseases caused by occupational exposure to asbestos. This decision would also be responsive to the agency's declared concern that the past inadequacy of health and monitor ing records have hindered research into the consequences of asbestos exposure at the workplace. 37 FR 11318, June 7,1972. The long latency periods associated with asbestos-related diseases, and the consequent need for a standard to take such latency periods into account, were recognized by both the OSHA Advisory Committee on Asbestos Dust (proceed ings at pp. 103-105. February 17, 1972) and the NIOSH Criteria Document for a Recommended Standard on Asbestos ' (generally chapters I and II). In addl- : tion. testimony by two witnesses at the OSHA hearings also supported longer re- tentlon periods for exposure monitoring records (Tr. at 527, 533, March 17, 1972). A consensus of the evidence in the record indicates that exposure monitoring rec ords should be held for at least 20 years in order to make such a requirement meaningful in view of what is generally recognized as the minimum latency pe riod for many asbestos-related diseases. OSHA is of the view that the Interests of worker health would be best served by , requiring the retention of exposure mon itoring records for a period which re flects on appreciation of this recognized latency factor. Accordingly, pursuant to the Court's remand for further consideration of the retention period for monitoring records, we have concluded, based on the exist-ing record and for the reasons stated above, that a 20-year retention period is supported by the evidence and neces sary for the protection of employees. It Is noted that In a new proposal on ex posure to asbestos (40 FR 47652, October 9, 1975), which reflects the most recent scientific and medical developments In the field, a 40-year retention period (or the duration of employment plus twenty years) for both exposure measurement and medical records has been proposed. For the reasons stated above, the ex posure records provision of the asbestos standard will be corrected to require re tention of exposure monitoring records for at least 20 years, effective March 19, 1976. OSHA believes that a delay in the effective date of this requirement Is not warranted since this rule only requires that affected employers retain records which they have already compiled and therefore does not Impose a new burden of action, and since the initial three-year retention period for such records has now lapsed and these records might be destroyed. Loss of such records would be irreparable. Continued access to such records by all concerned Is- essential In the public Interest, and Is an appropriate means of effectuating tha goals of im proved worker safety and'health under the Act. Good cause Is found, therefore, pursuant to section 4(d) (3) of the Ad ministrative Procedure Act (5 U.S.C. 553 (d) (3)), for making this rule effective. Accordingly, pursuant to the direc tion of the United States Court of Ap peals ("Industrial Union Department. AFL-CIO v. Hodgson, supra"), and the above referenced authority, paragraph (1X1) of 29 CFR 1910.1001 is hereby amended to read as follows: 1910.1001 Asbestos. * (l) Recordkeeping--(1) Exposure rec ords. Every employer shall maintain rec ords of any personal or environmental monitoring required by this section. Rec ords shall be maintained for a period of at least 20 years and shall be made avail able upon request to the Assistant Sec retary of Labor for Occupational Safety and Health, the Director of the National Institute for Occupational Safety and Health, and to authorized representa tives of either. (Secs. 6. 8. Pub. X,. 91-596, 84 Stat. 1393. 1593 (29 U.S.C. 655. 637); Secretary of Labor's Order No. 12-71 (36 TS. 3734); 23 C7?. Pars 1911). Signed at Washington, D.C. this 12th day of March 1976. Morton Corn. Assistant Secretary of Labor, {FR Doc.76--7791 Filed 3-18-76;8:+5 am] A i 96R O * i *Of.'ti*l v.*.-*...p!,-**e* i- t *.., y v? lOW i- - '.t? 3-V- p. i*