Document bmNJZKvoeaLD1gOqwewrzn6O

i INDUSTRIES To: H. M. Finneran A. G. Baker R. E. Sourwine INTER-OFFICE CORRESPONDENCE Date: Feburary 3, 1982 From: S. p. mes Location: 5 West Subject: Respirator Variances Attached is recent information concerning variances to the OSHA respirator regulation which may influence our thinking in this area. The memorandum from LaRoe, Winn and Moerman states that OSHA is not receptive to respirator variance applications. The most appropriate course of action for obtaining regulatory approval for use of the mouthpiece respirator for work purposes is to obtain a NIOSH approval. American Optical made an application to NIOSH in 1980, but it was returned as incomplete with NIOSH requesting the manufacturer to supply data from Chlorine Institute research. Norton also made an unsuccessful application to NIOSH in 1980. The Chlorine Institute research to which NIOSH is referring is a comparison of protection factors obtainable from the mouthpiece and the half face piece respirators and sensory perception studies. The Chlorine Institute Respirator Task Force has completed Phase I of the protection factors study and a draft report is being written. The sensory perception studies were not funded by the Chlorine Institute. Dow conducted an uncontrolled test of taste threshold, but did not complete the work. Sensory perception (taste threshold in the case of using the mouthpiece respirator for chlorine) is important to NIOSH because it determines whether a worker would have adequate warning of cartridge expiration before being overexposed. It is unlikely that NIOSH will approve an air purifying respirator without sensory perception data. Also attached is correspondence between Diamond Shamrock and OSHA concerning a variance for the 3M mercury respirator and MSA Mersorb for protection against elemental mercury vapors. The correspondence confirms the two points made in the legal opinion: t OSHA will refer respirator variance applicants to NIOSH for certification. NIOSH will not certify air purifying devices for gases or'vapors that do not have adequate sensory warning properties. The OSHA respirator standard and NIOSH certification regulations are scheduled for revision this year which may change the above positions. Dow had been negotiating with OSHA for a variance to use the mouthpiece respirator for work purposes. OSHA has not directed them to apply to NIOSH for certification, but has requested additional information and in particular the data being developed by the Chlorine Institute referenced above and sensory threshold data. Dow has compared the protection factors of the half FOAM S09-A RCV fl.1-70 SL 073879 I.A 1A >} :, \V1 V N A- Mo I--, | C M \ A in-/-.s`'-ant hjill: i5:i K 5AC;1 A W U'AVi|[\'r;|; A H r _* f) December 28, 1981 IJc ':5n-^.'9- Mr. James H. Doyle Technical Service Engineer Trie Chlorine Institute, Inc. 342 Madison Avenue New York, NY 10173 Re: The Chlorine Institute - Chlorine Escape Respirator Dear Jim: Pursuant to your instructions we have reviewed the alternatives available to the Institute vis-a-vis having the mouth-bit respirator approved for routine use. A memorandum discussing the details is attached. Contrary to what we expected to find, in our memo randum we report that OSHA is thoroughly disinclined to consider a variance in this situation. In confirming this point with our personal contacts with the Agency, thev continuously fell back on the "that's NIOSH's job" and "OSHA has never granted a respirator variance" (some thing I can confirm from previous efforts not involving chlorine). From what we have learned, therefore, the only presently acceptable course of action, that is, as far as the two agencies are concerned, is to support the manufacturer's application for expanded use of its already-certified product. If American Optical is the manufacturer of interest in this case, it would seem to us that, based on their previous efforts on behalf of industry, the Institute should have little 'difficulty in convincing American Optical to reapply for an exten sion of use. If there is anything further that you presently want us to do on this project, please do not hesitate to let us know. Cordially yours Joseph E. Hadley, Jr. cc: Mr. Robert M. Mitchell, Jr. Mr. Edmund J. Laubusch E'. McIntosh Cover, Esquire SL 073881 LaHoi:. Winn a- Wokhman l N V E E ' Z '. T 3 u I L 0 . 3 15i' ^ r: \\ VA! :\' : ' \ !) f _ ", N E C R A N D U .. FROM: Stanley E. Hilton TO: Joseph E. Hadley, Jr. R.E: Respirator Standards and Exposure to Chlorine SUM-1AR-Y O'JESTIOn: Wat course of action should The Chlorine Institute pursue to extend the approved uses of the chlorine "escape" respiracor to routine, everyday workplace situations? SUMMAR.Y AHSVIER.: An application for an extension of approved uses for a chlorine "escape" respirator should be filed with the NIOSH Division of Safety Research in Morgantown, West Virginia by the respirator manufacturer. DISCUSSION I have reviewed the applicable statutory and regulatory requirements and talked with various individuals at OSHA and NIOSH concerning the possibility of utilizing the chlorine "escape" respirator for routine, everyday use. The relevant statutes and regulations indicate that, in general, a person interested in changing or deviating from an occupational safety and health standard can seek a certification from NIOSH or a variance from OSHA. Nevertheless, the individuals with whom I spoke have unanimously agreed that the proper procedure for SL 073882 M E M0 RA Page Two D UM L.\lioi; Vv'inn' & Moerman a parrv wishing no obtain an extension or approved respirator uses is tc a certificat : n. f r c n. H10 S H . I _ t n i s certi fication is granted, 03HA will recognize this HIOSH approval, and such an extension can be irtol even tec immediately. OS HA, Section 6(d) of the Occupational Safety and Health Act of 1-970--/ (hereinafter the Act) empowers OSHA, acting upon an employer's application,-- to grant a permanent variance from an occupational safety and health standard. The employer's application will be approved if he ... has demonstrated by a preponderance of the evidence that the conditions, prac tices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. 29 U.S.C. 655(d). A permanent variance is effective indefinitely unless it is revoked upon application by an employer or employee, or by 1/ 29 U.S.C. 655(d). Temporary variances can also be granted under 29 U.S.C. 655(b)(6)(A). The basis for the granting of a temporary variance is tnat the employer cannot comply with the standard by the date on which the standard is to become effective. 2/ A typical application is set forth in Appendix A to this memorandum. Also, dur ng the interval between the time an application is filed a id OSHA's decision, the employer can apply for an inte in variance. SL 073883 ME 0HA" DU Pago Three I_\V?OK WlN'NT ; Moehman OSHA acting on its ov;n initiative.--' The variance procedure is nott cent vt.vtilized \"'en an cnnlover is unable to r ^t.o 1 v n occ a 1 safe ealth standard due to rart icular ci tive to s uvslances existing at the vorknlace but an alterna- /J cific con. liance nuill achieve the cane result.--' A typical situation involving the use of the variance process occurred in 1977 when the Inmont Corporation of Chicago, Illinois applied for a variance. Section 1910.106 (h)(4)(i)(c) of OSHA's Health and Safety Standards requires that storage tanks inside of buildings be located at or above grade level with adequate drainage and that they be separated from the processing area by construction having a fire resis tance rating of at least two hours. The purpose of the standard is to prevent fire and/or explosion by preventing vapors which are heavier than air from accumulating in spaces below grade level or pits. Due to insufficient storage space, Inmont was unable to comply with the standard and applied for a variance 3/ 29 U.S.C. 655(d). The variance cannot be revoked by OSHA prior to the seventh month after the date of its issuance. k_t In some situations, the employer is a ble to comply with a standard but desires a variance on the grounds that the existing safety precautions are at least equal to those found within the standard and that to conform to the standard v.Tould be unnecessary or even detrimental to w orker safety, For example, the Stanley Works Corporation a' plied for and received a variance from the color coding rec uirevents of 29 C.F.R. 1910.149. OSHA agreed chat.the col or coding system at the Stanley Works locations, accomplished the same safety precautions as desired in the standard and th at to require compliance was unnecessary and could possibly lead to employee confusion. SL 073884 0' R A M D u ': Page Four L-'IAjh <Sc Moerman on the basis that an exhaus erti 1 aticn syston which it ercd she . OS'id mrantcd the variance, rind: th a t the vca'A i I a t i on svst en provided fire and explosion pro:ection at least equal to that provided by the standard.--^ This case is typical of the many variances which have been granted by OSHA, that is, the employer mas unable to comply with a particular stan dard but provided a level of safety at least equivalent to that provided in the standard. Even though the chlorine "escape" respirator does not obviously fit the variance requirements of the statute, I spoke extensively with Mr. Jamies Concannon, Director of OSHA's Office of Variance Determination, regarding the possi bility of obtaining a variance to permit the chlorine "escape" respirator to be used in routine, everyday workplace situations. Mr. Concannon was very straight-forward and firm in his opinion: the proper procedure for a party desiring an extension of approved uses for a respirator is to apply to NIOSH for a certification. Mr. Concannon indicated that OSHA's Office of Variance Determination would not act on an application for a variance concerning a respirator used to protect workers 5/ For a listing of the numerous variances which have been-granted by OSHA, including the Inmont variance, see Eh1A OSH RE?. , Reference File, Section 35. SL 073885 M t M 0 R A N D l! M Page Five L. \ n o i. WlN'N 6< Moerman against chlorine exposu re. If 0S1 LA were to such a v a r 1 a ~ c e , the Agency fe els it would be inrri ^ '-v -- '? n a Is e NIOSH tunc tion as OSHA.' s research branch in this area and on NIOSH's role as the g o v e r nmens agen c y by which new respirator uses are to oe approved, .--6/ OSHA ' s position is that a variance is to be u sed to accomodate an employer' s.inability to comply with a safety and health standard while preserving employee safety concerns inherent in a safety and health standard and is not designed to extend a respirator's approved uses. In fact, OSHA's Office of Variance Determination has never granted a variance for a respirator. According to Mr. Concannon, any respirator- related application to the Office of Variance Determination would either be returned to the applicant or forwarded to the NIOSH Research Center in Morgantown, Uest Virginia. My conversation with Mr. Concannon confirms an earlier discussion with Mr. Frank Tipton of OSHA's Health Standards Division.--7 / Mr. Tipton indicated that the appropriate course of action in the present situation would be to apply * to NIOSH for certification of the new use. If NIOSH approved the respirator for a new use, OSHA would then recognize the NIOSH action under 29 C.F.R. Part 1910.134 (b) (11) , which 6/ Conversation with Mr. James Concaimo", November 17, 1981. 7/ Conversation v;ith Mr. .Frank Tipton, November 9, 1981. SL 073886 ME M0RA N DUM Page Si LsNoi; Wi(Pc Moermas Drovide s : Ad~r oved or aocanted r e = oir a t c r s shall be uscd when f_V:v are available. The r^'Sei'^citio'^ aale>^b c^ 1 * ^*t 1.de ade-- quate respirator-.' tro tec tier. azainst a particular hazw:d for which i_ is designed in accordance v' t'n standards established by competent authorities . . . . 8_/ Ar. Tipton in effect agreed with Mr. Concannon's conclu sion that an application cc OSHA for a variance would be inaporopriate in this particular situation. Both gentlemen stressed that NIOSH is the proper government agency for deter mining the effectiveness and adequacy of workplace respirators. NIOSH The NIOSH Division of Safety Research is located in Morgantown, West Virginia. Within this division is a Testing, 8/ Since NIOSH is only a research agency and has no enforcement powers of its own, OSHA is not required to permit an exoanded respirator use simply on the basis of a NIOSH certification. However, OSHA will recognize the NIOSH certifi cation unless information is received after the- NIOSH testing process has been completed which indicates that the certification was inappropriate. According to Mr. Sheldon Wiener of OSHA's Health Standards Division, this latter situation will arise only if information dealing with the equipment's "fit" on an employee indicates that a health and safety problem could occur. The NIOSH testing does not take the "fit factor" ini:o account. Conversation with Mr. Sheldon Wiener, December 3, 1981 073887 SI- me o ra p a a e 5 e' e i i d u xr:* L\I?or: Winn' <S: Moiirmas- and Certification Fr ~nch vh ^ n j_ c: v* n ^ n o V: s ole for a o n r o v i n c wo r h n I a c e reinirs tor s, ir 'ay of 191 j , t, s t in ~ an o Cer tif loot ion Franco nr.r f or respirator appro ,dT ,, a. iJL a,, . cod a ncv a op 1ioation procedure t'nder this procedure, a. respirator manufacture-r is to submit to NIOSH a detailed application for either approval of a newly manufactured respirator or for 9/ an extension of approval -for an already-certified respirator.-- In either situation, NIOSH will correspond only with the respir ator manufacturer.--^ After receipt of the application, NIOSH will conduct tests and either grant or deny the certification. Accordingly, I have had several discussions with Hr. Chris Coffi of the NIOSH Division of Safety Research. Hr. Coffi has been directly involved with the attempts to have the chlorine "escape" respirator approved for everyday, routine use. Mr. Coffi stated that in February of 1980, American Opti cal Corporation, the manufacturer of the "escape" respirator, applied to NIOSH for an extension of approved uses. In September of 1980, NIOSH rejected American Optical's request, stating 9/ The various applications are reproduced in Appendix B hereto and are, for the most part, more detailed versions of the apolications for respirator use set forth in 30 C.F.R. Part 11. The aDplication procedure under the regulations is set forth in Apnendix C. The NIOSH Testing and Certification Branch is following the procedures set forth in the Hay 1930 format. 10/ This practice departs somewhat from the regulations which specify that an apolicant can be "an i dividual, partnership, company, corpor ation, association or other organization that designs, manufac cures, assembles-, or controls the assembly of a respirator and w'ho seeks -to obtain a certificate of apprev for such respirator. 30 C.F.R. Part 11.3(b) . 1 SL 073888 e o r a Page Eight d u :: La Roe Winx ; Moeuman* that the data submitted were i nsuf f ic tea t . The m.an.uf ac turer was directed to resubmit the ap p 1 Ic = t i.; n oh so t'.oe data were available, with NIOSH rah.ing direct reference to the research being undertaken by The Chlorine Institute. Mr. Coifi strongly recommends that, if The Chlorine Institute's data are complete, this information should be forwarded to American Optical. The manufacturer should then submit a letter to NIOSK which in essence states that it is reapplying for the extension of approved uses on the basis of The Chlorine Institute's new information. If this course of action were to be pursued, Mr. Coffi estimates that NIOSH would arrive at a decision within six to eight weeks of receiv ing American Optical's letter.--^ I also discussed with Mr. Coffi the possibility of The Chlorine Institute or a member company applying to NIOSH for an extension of approved uses. Mr. Coffi said that if the "escape" respirators being used by Institute members are manu factured by American Optical (as he believes to be the case), any application by the Institute or its members would be rejected by NIOSH. As mentioned, the new NIOSH application format specifically states that NIOSH will only correspond l? / with the respirator manuracturer.-- 11/ Conversations with Mr. Chris Coffi, November 8, 9, and 10, 1981. 12/ As discussed in footnote S supra, this practice departs somewhat from the regulations in 30 C.F.R. Part 11.3. However, Mr. Coffi emphasized that NIOSH will deal only with the manufacturer. SL 073889 I MEN0R Page Nine N DU'! L,\I?oi: 'Win's.' Moi;ri>jA>r Hr. Coffi indicated the a if The Chio s a i t' 1t e cr a aporovoc uses cor.c:rnin~ "escaDe" respirators '/rich are not manufactured by American. Optical, the manufacturer's name must not ap-Doar on the respirator. In essence, the Institute or member company mould be regarded as the manufacturer. If this course of action -were pursued, a detailed application would have' to be submitted, and Mr. Coffi estimates that a decision would not be reached by NIOSH for several months. Thus, the most advisable course of action seems to be for The Chlorine Institute to relay its test data to the American Optical Corporation (perhaps with a copy to NIOSH) and for the manufacturer to then write an appropriate letter to NIOSH. --/ 1_3/ NIOSH approval is essential in this matter as 29 C.F.R. Part 1910.134 states than "[ajpproved cr accept ed restirstors snail oe usee wnsn they are availaoie. In igh t of the fact that aporoved chlorine respirators are avails D i for routine workplace situations, it is highly unlikely c OSHA would permit the "escaoe" respirator to be used in e verycay workplace situations "without NIOSH approval. SL 073890 APPENDIX A MODEL OF AN APPLICATION FOR VARIANCE FROM STANDARDS ADOPTED BY THE OCCUPATIONAL SAFES Y AND HEALTH ADMINISTRATION The fobowing is 2 "noSc!" of ?" apphection for a variance from 2 stendi'd or standards im'md by (he Occupations! Safety and Health A drr. i rH s *. r a 110 n. Trie `'model,'' prepared by OSHA, contains all of tbs required information for a wr.rmee appAeetion hated in the regula tions tb.at appear on the preceding pages. Tne "mode!" letter is intended only to serve a; an example of what a correct variance application should look like. Assistant Secretary Tor Occupational Safety and Health U.S. Department of Labor Washington, D.C. 20210 water. Tnc close proximity to these agents creates s currmire condition hi:h would make the wind nbicrior inoperative soon a ft c r installation. We feci our men:! on eg and early warning sy cm is more effective end safe than is the use of an infrequently used and difficult to maintain wind velocity instrument on the crane. (4) Due to the corrosive conditions present a round the Gantry Crane, feels that our estab lished procedures would give more reliable information than an indicator on the crane. Therefore, we feel that this would insure the safety of the crane and operator better by following our procedures. Respectfully submitted. Dear Sir: Pursuant to Section 6 (d) of the WUlizms-Sleiger Occu* pationa! Safety and Health Act of 1970 (S4 Stat. 1596: 29 USC .655), respectfully' requests a permanent variance from the requirements of 29 C.F.R. 1910.179 (b) (4),' concerning wind indicator on the outdoor bridge of a Gantry Crane. (1) Applicant (2) Piace of employment -- Same as (1) (3) has a Gantry Crane which oper ates beside a slip for unloading shallow draft barges. It currently is used only for unloading salt barges, usually about twice a year. Because of the location of our operation and the experience we have had with high wind conditions, recognizes the importance for monitoring wind conditions. As a result, our plant has two wind indicating devices with visual and automatic recording devices. We have a well established plan for monitoring Federal Weather Bureau reports and emergen cy plans of action for pending high winds. The key wind indicating device is located in the Shift Superintendent's office. A Shift Superintendent is on duty around the clock, seven days a week and is responsible for the plant. He keeps a close watch on the wind conditions and also monitors weather forecasts at least three times during each eight-hour period. A written record is kept of the weather conditions. If there are any changes in wind conditions or anticipated changes due to approaching bad weather, the wind indicators and weather forecast are monitored continuously. Because of these web established policies and the limited use of the Gar.tr>', we feel that our plan would offer a safer operation. In addition, v,e fed that the installation of 2 wind indicating dev ice on the Gantry Crane would not be feasible because of conditions which turd to cause malfunction. Our past experience has verified this consistently. The Gantry' Crane is very close to the molten sulfur pits and salt Manager (5) This is to certify that a copy of the variance from Standard 1910.179 (b) 4 requested by has been posted in an appropriate place for employees to examine. Also, an explanation of their right to send comments 0: petition for a hearing are explained on an attached sheet. A copy of the variance appb'cation was also given to the authorized employee representative. Posted on_________________ , 19 Manager (&) TO ALL EMPLOYEES Trie attached form is a copy of the variance application submitted by for a variance from Standard 1910.179 (b) 4. This is to inform you that you may request a hearing with the Assistant Secretary for Occupational Safety and^ Health, U.S. Department of Labor, according to Standard 1905.15, Request for Hear ing, if you object to the variance requested. This request must be filed in writing. Manager, (7) also respectfully requests that an interim order be granted to allow operation of the Car,try Crer.e without the indicator until action is tat en on tine variance application. We feel that the safety of the employees w .11 be gucrcnlccd because we do have wind indicator; bring monitored at cu: plant and the Gantry operator would be promptly' informed before wind veloci ties rose or approached a dangerous level. Manager, r Cepj-ii5tnr C 197Z by The 8 utecy of NcIio.dc! Affcl/si Inc* SL 073891 A ,P!J 0 J 920 kvi a r.at tier of rilruary 27, I960, and the NIOSH/Eespirator actjrcrs Rc-e.ing held April 24, 1930 To Respirator Certification Applicants: On April 24, 1930, a meeting was held at the 'lorgantown NIOSK facility to discuss -the new application format. At this meeting, NIQSH announced several changes. The ensuing discussion with the manufacturer's representatives revealed several ether necessary notifications and im.pr overrents. These changes have been incorporated in this revised format. NIOSH requests that effective June 2, 1980, all applications contain all of the information listed in the attached format using the exact order and labelling specified by the format. This will enable us to evaluate submissions in a more expedious runner. Sincerely yours, * s'/ Nancy Bollinger Chemist, Respirator Section Testing and Certification Eranch Division of Safety Research Enclosure SL 073892 Introduction This format has been prepared to specify the NIGSH rccuircnents for applications for aporoval and extension cf approval. All nr pi tent:one ohculd contain the j n i" r re : a _ on listed in trie applet a lop. 'trrti , A11 in:::" ati^n -'; a- ta j d i-e itccized exactly as it is in these is stf ' ti . re , Tor carple, i:r,e lern-ths of supplied air respire tor.-, `An c_ilri be listed :s item il(Dj. Aitc-rial submitted as a part of the ami i or. t ir n should be labelled "ith a cover sheet as follows: Presubnission Data - Appendix A Label Drafts - Appcnnix B Lser Instructions - Appendix C Parts Lists; - Appendix D Drawings - Appendix E Quality Control Plans - Appendix F Incomplete applications will not be accepted. Applications complying with this format will receive priority attention. SL 073893 U.S. Dip'; iiiieni oi Labor Oucjc3,io,-'a! Safety end Heal'h Admin!strat:on V/3eNnctor., C.C. S0210 Reply to tbs Atterl-'on of: alee? Diamond Si. o ch L o ruo r a t i on 1149 Hllssvvorth DrJ Pasauana, Texas 775C1 Dear Mr. Talpas; As vre stated in our letter of July 28, 1981 concerning your request for variance fret. Section 1910.134 (b) (11) of the Occupational Safety and Health Standards, we would be in contact with you after our technical testing might be necessary in order to obtain approval of one or both of the respirators. However, the National Institute for Occupational Safety and Health (f.'ICSH) does not have test schedules for, and therefore cannot approve, either of the type respirators you suggest using since a criterecn for approval of chemical cartridge type air-purifying respirators for protection against a specified substance is that the substance have odor warning properties, and mercury vapor cannot, be detected by sensory perception. Although the Office of Variance Determination cannot take any further action on your request for variance for reasons previously explained, please be advised that the Directorate of Health Standards Development has under ccnsiceration the entire issue of respiratory protection. They are, in fact preparing an advance notice of proposed rulemaking, which will appear in the Federal Register when completed and approved. This notice will list a series of issues pertaining to 29 CFR 1910,134 and solicit comments on them and on any other relevant issues. For further details, please contact the Office of Physical Agents at this address, or by telephone at (202) 523-7131, Sincerely, /.James J. uoncannon Director Office of Variance Determination SL ?3894 Diamond Shamrock July 16, 1981 James J. Ccncannon Director Office of Variance Determination Occupational Safety and Health Administration Washington, D. C. 20210 Dear Mr. Concannon: Pursuant to our telephone conversation and after careful consideration. Diamond. Shamrock wishes to resubmit our request for a permanent variance from the requirements of 29 CFR 1510.134(b)(11). Attached, for ycur convenience is a copy of our original variance request. This request is being filed pursuant to Section 1905.11 of the OSHA regulations. Diamond Shamrock Corporation has always taken the position of providing the best possible health and safety work environment for their employees. This request is consistent with that philosophy. Diamond Shamrock has over 80 years of cumulative experience in the operation of 4 mercury cell chlor-alkali plants. Our position is that worker safety is severely compromised by strict adherence to the OSHA respirator regulations. The use of the respirators, as applied for in our variance request, is adequate to protect worker health, while not compromising worker safety. I would be happy to djscuss this matter further, if necessary, otherwise I await your favorable response to our request. Sincerely yours, uonn ts. la ipas Operations Manager Electro Chemicals Division Diamond Shamrock Corporation (214) 659-7204 /ch Attachment cc: T. Auchter - U.S. Dept, of Labor SL 073895 Diamond Shamioek Corporation 251 Phelps Court. P.0, Bo* 2200 Irvng, Texas 75061 Pl'O-.e 214 65S-7OC0