Document b5arNnVKxoG1ZqN33qMxGZVG1

jOSCn C. KELLER VC*dMC H. MCCRMAN W'LLIAM M. eOAGHCSANI, . MALCOWW D- MAeARTMU* WA'MCV LACK Tt*CMCC 0. JOHCS MAlTlN W. ftCRCOVlCI ^P^N ft. ELDRED GADLC C. MAfiBIJ M*r haATHA mcnamaba M.-HACL ft. HOABONC mabk fdx cvcns JOHN ft, NlCHAA&S JO-N ft. OUftEC* MCTER u C* CRUZ CMftjftTiNC a. mCAOhCB SxiBlCT S. fU*lHOtO LAWBCNCC ft. HACBBlN AAL#" a. $immoms CTCfl A. SU&SCA C. DOUGLAS JAABCTT NOT ACMtTTCO m O C. ShClLA A. NILLAII MCLVlN 5. DROICN ocobgc a mis* FREDERICK j. OAT, gq. MAftCr c. GftCtNSTCiNMARCIA K. COWAN RATB.C* U. HU AD S. CRA<C TAUtrCST MAR* A. SlCVCRft "CMAfit BCNNCT O rRANAL IN HOONTZ CATHERINE N. BOChCR RICHARD A. jAfTC* JtrPBCY ft. ACRR + KRIft ANNC MONTCItH CLLlOT CutLOS Shannon l. OCnman* SUSAN C. PO*# MARK L_ fTZKORr CDWIN c. HOURC* LAW OFFICES JKeller and Heckman c 1150 17'" STREET. N.W. SUITE lOOO WASHINGTON. D.C. 2003 (202) 950*5000 August 16, 1989 SCICMTrr.C STAFF daw I CL S. orxLcn. ft-, o. CHRHLtS V. BflCDCR. P. . ROBERT A. MATHEWS, ft*. D. JONH ft. mODOCRMAN. Rh, o. HOLLY HUTMIRC FOLEY JUSTIN C. ROWELL. ft* O. TELECOMMUNICATIONS ENGINEER CHARLES F. TURNER TELEX Aft ftftftftl TCLECDftrfR <2021 2`7eS2 CABLE ADDRESS *' K ELMAN" WRITER S DIRECT DIAL NUMBER (202) 956-5682 To: SPI Vinyl Institute Legal Committee Health, Safety and Environment Committee EDC OSHA Working Group Re: Agreement With OSHA on Use of Air-Purifying Respirators Ladies and Gentlemen: Enclosed is a copy of an interim "settlement agreement" between the Occupational Safety and Health Administration (OSHA) and The Society of the Plastics Industry, Inc. (SPI) regarding the use of air-purifying respirators to meet the permissible exposure limit (PEL) for ethylene dichloride (EDC). The agreement provides that OSHA will permit the use of half mask and full-mask air-purifying respirators under certain conditions to achieve the PEL for EDC in exchange for SPI1s agreement to withdraw its Motion for stay filed with the Court of Appeals on July 31, 1989. As you know, in its final rule, OSHA had established a September 1, 1989 deadline for complying with the new PELs using only engineering controls and modified work practices. The compliance policy agreed to by OSHA means that air-purifying respirators may be used to meet the PEL after September--!. 1989 for certain interroitt_ent_operations where engineering_ controls and_chanaes. in._work. practices, are not sufficient. This agreement does not, in any way, affect SPI*s Petition for Review of the final rule now pending before the Court. Paragraph 1.on page 3 of the agreement sets out OSHA's policy for use of air-purifylng_jre_sp_irato'rs''to.'re~ducejED_C' exposures. In effect, OSHA has agreed to grant an exception to its policy prohibiting use of air-purifying respirators in situations where the PEL for a substance is below the odor threshold for the substance. Since these respirators are being permitted for use in concentrations below the odor threshold, a 0oooolB9 SPI Vinyl Institute August 16, 1989 Page 2 Keller and Heckman breakthrough could occur at a concentration in excess of the PEL without providing an adequate warning signal. Therefore, the agreement includes a schedule for regularly changing respirator cartridges. The current schedule provides that cartridges be replaced "at the end of any day in which the cumulative service life of the filter totals one hour or more." Thus, for example, a cartridge used for twenty minutes on one day and thirty minutes the next could still be used a third day for several hours but would be'discarded at the end of that day. While the schedule is very conservative, it is only temporary; it is subject to modification upon submission of test data showing that a schedule of less frequent cartridge replacements is justified. We understand that tests on the service life of cartridges used in various EDC concentrations are being conducted by cartridge manufacturers. Once these tests are completed and an alternative cartridge replacement schedule is developed, we will request that OSHA modify the schedule contained in the settlement agreement. We also requested a modification of OSHA's policy on the "protective factors" employed when using air-purifying respirators. This policy allows half-mask respirators to be used only in concentrations up to 10 times the PEL and fullmask respirators to be used only in concentrations up to 50 times the PEL. OSHA, however, refused to modify this policy in the context of a settlement agreement. The Agency indicated that it has held firmly to this policy in the past and has been successful in defending challenges to this policy in court. Because the Agency intends to adhere firmly to this policy in other industries, it was unwilling to modify the policy as part of the negotiations in this case. OSHA did express a willingness, however, to give due consideration to a request for a variance from the policy upon submission of evidence demonstrating that a higher protection factor for half-mask respirators was justified. We trust you will find this information useful. If you should have any questions, or if we can be of assistance in any other way, please give us a call. Cordially yours, Enclosures (2) cc: Larry Thomas Robert w. Sherman Meredith Scheck Mark'a. Sievers VVV 000000190 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT THE SOCIETY OF THE PLASTICS INDUSTRY, INC., Petitioner v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, Respondent ) ) ) ) ) ) ) ) ) ) ) ) No. 89-7249 SETTLEMENT AGREEMENT The Society of the Plastics Industry, Inc., (SPI) and the Occupational Safety and Health Administration, United States Department of Labor (OSHA), are the parties to this agreement. WHEREAS, OSHA promulgated an air contaminants standard (the Standard) establishing, inter alia, amended permissible exposure limits (PELs) for ethylene dichloride (EDC) of 1 part per million (ppm) as an 8-hour time weighted average (TWA) and 2 ppm as a short-term exposure limit (STEL), 54 Fed. Reg. 2937 (Jan. 19, 1989)? WHEREAS, on March 10, 1989, SPI filed a petition for review of the Standard challenging the amended EDC PELs on behalf of SPI' s members engaged in the commercial production of EDC; WHEREAS, on May 22, 1989, SPI filed with OSHA a petition for an administrative stay and for reconsideration of the EDC provisions of the Standard, arguing, inter alia. that compliance vvv 000000191 with the amended PELs was technologically and economically infeasible, for certain intermittent maintenance and repair operations for which respirators are typically permitted, because (1) NIOSH odor threshold and maximum contaminant concentration guidelines ruled out use of feasible air-purifying respirators and (2) air-supplied respirators are infeasible for these operations; WHEREAS, on July 17, 1989, OSHA responded to SPI's petition, denying a stay and finding no basis for reconsideration, on grounds that NIOSH respirator selection criteria provide general guidance but are not controlling in all circumstances? that the agency remains willing to consider special circumstances applicable to EDC producers; and that SPI should submit a written request for authorization to use air-purifying respirators if it believed these devices were feasible and efficacious? WHEREAS, on July 29, 1989, SPI filed a motion and accompanying memorandum in the court of appeals seeking a judicial stay of the EDC provisions of the standard; WHEREAS, on August 1, 1989, SPI submitted a letter to OSHA proposing to withdraw its request for a judicial stay if the agency would authorize the use of air-purifying respirators for certain intermittent operations such as cleaning, maintenance and sampling; WHEREAS, OSHA has considered SPI's request and believes that the use of air-purifying respirators by EDC producers is appropriate under certain circumstances, and? 2 VVV 000000192 whereas, OSHA (whose response to SPI's judicial stay motion is not due to be served until August 21, 1989) has not yet responded to that motion, and the matter is pending before the court ? NOW THEREFORE, the parties agree as follows: 1. OSHA interprets the EDC exposure limits, as they apply to employers engaged in the production of EDC, as follows: For those intermittent industry operations for which engineering and work practice controls alone are inadequate to reduce exposure below the PEL, OSHA authorizes, as a supplement to engineering and work practice controls, the use of half-mask air-purifying respirators at EDC concentration levels up to 10 ppm, and full-mask air-purifying respirators at levels up to 50 ppm, provided the filter in each such device is changed at the end of any day in which the cumulative service life of the filter totals l hour or more. 2. This interpretation does not affect or modify the hierarchy of controls set forth in Part 1910.1000(e) of the Standard. 54 Fed. Reg. 2921. Further, the use of air-purifying respirators shall comply, to the extent applicable, with the provisions of 29 C.F.R. 1910.134. 3. OSHA recognizes that SPI's member producers may request a variance from the Secretary pursuant to Section 6(d) of the Occupational Safety and Health Act, 29 U.S.C. 655(d), permitting use of half-mask air-purifying respirators at EDC concentration levels above 10 ppm. Pursuant to Section 6(d), the Secretary 3 VVV 000000193 shall consider any such request and will issue a variance if she determine? that the statutory criteria are satisfied. 4. OSHA also recognizes that some of SPI's member producers may, on the basis of ongoing or future tests, propose that filters be replaced at less frequent intervals than agreed to herein. OSHA will consider any additional data, if submitted, and will amend this interpretation to provide for less frequent filter replacement should circumstances warrant. 5. Within three working days after execution of this Settlement Agreement, SPI will move to withdraw its pending motion for a judicial stay. OSHA agrees to enforce the EDO PELs in accordance with this Settlement Agreement. 6. The parties agree to bear their own attorney's fees, costs and other expenses that have been incurred in connection with SPI's requests for administrative and judicial stays, the agency's response thereto and the instant Settlement Agreement. 7. This Settlement Agreement shall take effect when signed on behalf of both parties. 1989. PETER L. DE LA CRUZ Keller & Heckman 1150 17th Street, N.W. Washington, D.c. 20036 Attorney for the Society of the Plastics Industry, Inc. of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210 Attorney for the Occupational Safety and Health Administration 4 VVV 000000194 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT THE SOCIETY OF THE PLASTICS INDUSTRY, INC., Petitioner, V. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, Respondent. ) ) ) ) ) ) ) No. 89-7249 ) ) ) ) ) ) ) MOTION TO WITHDRAW MOTION FOR STAY OF THE SOCIETY __________OF THE PLASTICS INDUSTRY, INC. Petitioner The Society of the Plastics Industry, Inc. (SPI) respectfully moves to withdraw its Motion for Stay dated July 29, 1989 and filed with the Court on July 31, 1989. SPI's motion had requested that the Court stay enforcement of the ethylene dichloride (EDC) provisions of the final air contaminants rule promulgated by the Occupational Safety and Health Administration (OSHA) pending the Court's decision on SPI's Petition for Review. See 54 Fed. Rea. 2332, 2937 (Jan. 19, 1989). SPI's Petition for Review of these provisions is not affected by this motion and remains for the Court's consideration. Respectfully submitted, Dated: August 16, 1989 Cruz Mark A. Sievers Keller and Heckman 1150 17th Street, N.W. Suite 1000 Washington, D.C. 202/956-5600 20036 Counsel for The Society of the Plastics Industry, Inc. VVV 000000195