Document dQv4VvDYBLmXZMb3X94e6dgm5

ST0069959 803 BUILDING 'fovember 12,1990 The Dow Chemicai Company Mioiana. Micmaan -i657d RESTRICTED FOR USE WITHIN DOW D. L Albert. Laporte r. D. Axe. 349, Pittsburg 3. D. Bamard. 219, Indianapoiis M. A. Blue, 3-101, Freeport K. J. Chicoine. Kansas Gty T. S. Cox. Clifton D. E. Cragar, B-101, Freeport R. L. Daniel, B-101, Freeport G. W. Engdahl. 1S03 Building T. H. Lingafelter, 3939, Doweianco, Indianapoiis R. W. Lutz, 1020, Samia G. L. Meier, 35Q2E. Plaquemine S. K. Norwood, B-101, Freeport T. Parsons, 471, Pittsburg A. F. Pollock. 258 Building B. S. Powers, 1803 Building L W. Rampy, 1803 Building F. L. SabeL 258 Building A. W. Schaffer, 1803 Building B. W. Smith, Plymouth T. A. Threet. 2030 Building R- W. Warila, 210, Indianapoiis 1304 P. R. Williams, Strongsville cc J. R. Keith, 1803 Building D. A. Rausch, 1803 Building Asbestos File HALLELUJAH!!!!!! Once in a while the good guys win one. The enclosed document is an OSHA memorandum which deals with the enforcement policy on asbestos. OSHA was taken to court because they tried to cite a company for not using a negative pressure enclosure on an asbestos job even though there were no exposures above the PEI- OSHA lost! The memorandum is a bit confusing as to whether OSHA wiil continue to rite if reguiated areas, (read as negative pressure enclosures and decontamination areas) are not used on a job and there is data to prove exposures are not above the action levei. This is also true if a job is going to be done and there is historical data to show that exposures on similar jobs has not been above the action level. The compliance officer will attempt to document that exposures are or wiil be above the pemussible leveis and will probably not rite if the documentation can not be achieved. The memorandum also says however, that OSHA is going to attempt to correct this issue in its upcoming regulation. Therefore, whether you want to make some changes in your program until the finai standard comes out should be evaluated. I don't expect that we will see the final standard until at least the middle of next year, more realistically the end of the year and then there will probably be some legal action. Richard D. Olson Regulatory Compliance Health and Environmental Sciences 517/636-8295 Enclosure 377566 ST00G9960 j ' Organization Resources 1_ Counselors. Inc "910 Sunaeriana Place, .n W. '.Vasninaton. D.C. 12036 Tel: 202-293-2980 Fax: 202-293-2915 Memorandum October 1990 To: Sub} ect: ORC Asbestos To.sk Force Darrell K. Mattheis OSHA Field Memo on: " Enforcement Policy Regardi Neaative Pressure Enclosures and Related Issues II On October 15, 1990 OSHA issued a memorandum do all Regional Directorate of Compliance Programs, on the subjeer of negative pressure enclosures and citations for their non-use. Recently, OSHA lost a significant court case. Secretary of Labor v. Nincc. Tnc. In that case die Court found dbat die necessity to establish a regulated area or to use a negative pressure enclosure depended upon whether the airborne concentration of asbestos actually exceeded, or could "...reasonably be expected to exceed the permissible exposure limits." Responding do the Courts decision, OSHA has instructed its Regional Administrators not to issue citations for non-use of negative pressure enclosures unless they had solid proof that the PEL was exceeded. The same court also found that Mimco's use of the glove bag method met the definition of a small-scale, short-duration operation under 1926.53(e)(6)(iv) and therefore decontamination facilities were not required in that operation. A copy cf CSHA's October 15, 1990 Memorandum is attached for your interest. 377567 I 9669001 MEMORANDUM FOR: ALL REGIONAL ADMINISTRATORS THROUGH: LEO CAREY, DIRECTOR OFFICE OF FIELD PROGRAMS FROM: SUBJECT: PATRICIA K. CLARK DIRECTOR DESIGNATE DIRECTORATE OF COMPLIANCE PROGRAMS Enfcrcenenc Policy Regarding Negative Pressure Enclosures and Related Issues Pursuant tc 29 CFR 1926.53(e)(6), wherever feasible, ode employer shall establish negative pressure enclosures before commencing asbestos removal, demolition, and renovation operations. The purpose of the negative-pressure enclosures is to restrict the spread of asbestos dust that may be generated when large amounts of asbestos-containing material are handled during asbestos removal, renovation, and demolition operations. In a recent case in Region V, Secretary of Labor v. Nincc, Inc. (OSKEC Docicet No.39-126 and 89-1703), the occupational Safety and Health Review Commission administrative law judge (ALT) found that "a reasonable person reading the standard would assume that paragraph (e) addresses regulated areas, and subparagraphs (e)(1) - (6) address specific aspects of the general subject." In other words, paragraphs (e)(1)- (e)(6) must be regarded as a whole and the establishment of the regulated area or a negative-pressure enclosure is dependent upon whether or not the airborne concentration of asbestos would exceed or reasonably be expected to exceed the permissible exposure limits. In the Nimco case, the judge found that fiber levels monitored by the employer were shown to be below the permissible exposure levels; therefore, the judge ruled that a negative-pressure enclosure and decontamination facilities were not required. The judge also found that Nimco`s removal of asbestos-containing materials from pipes using the glove bag method qualified for the small-scale, short-duration operation exemption under 1926.53(e)(6)(iv), and therefore, neither negative-pressure enclosure nor decontamination facilibies was required. Oh 377568 ST0069962 Although we disagree with tde judge's ruling, there is little dasis upon which a successful appeal cf tde decision could be sustained. As interpreted by ode judge, ode plain meaning cf tde standard requires tde shewing cf an cverexpcsurs cr a reascnaole expectation of an overexposure as a precondition to establishing a regulated area. Altdougn tde preamole scares tdat tde standard das a two-tiered approach in recognition of tde wide diversity of construction projects, the standard itself does not contain such explicit language. The preamble states tdat paragraphs re)(l) through (e)(5) contain OSHA's requirements for regulated areas on construction projects ether than removal, demolition and renovation operations, while paragraph (e)(6) specifies tde more extensive and stringent requirements for tde enclosed negativepressure regulated areas required for removal, demolition, and renovation operations. The standard's lack cf distinction of tde different requirements for two types cf regulated areas das been a recurring problem in other legal cases involving asbestos abatement. Tde Agency is presently proposing to clarify tde negativepressure enclosure requirement and tde definition cf smallscale, snort-duration operations through amended rulemaking procedures. OSHA is proposing to apply the requirement for employers to establish negative-pressure enclosures before commencing any asbestos removal, demolition, and renovation operation, regardless of tde exposure level, unless specifically exempted. The proposed revisions to the current asbestos regulations were published in the July 20, 1990, Federal P.ecister (55FR29712). In tde interim, our policy is to enforce tde negative-pressure enclosure requirement in all cases involving asbestos removal, demolition, renovation projects where tde erecticn of an enclosure is feasible, except fer small-scale, short duration operations., in which case the requirements of Appendix G of the standard must be met. Employers claiming tde exemption for small-scale, snort-duration operations while performing asoestos removal via glove bags must- follow proper glove bagging procedures prescribed in Appendix G. Before issuing a citation for not establishing a regulated area or a negative-pressure enclosure, a compliance officer must document the likelihood cr potential of an operation exceeding tde permissible exposure levels (3-hour TWA or 20-minute excursion limit). The standard as written compels tde Agency to carry tde burden cf proving tdat the employer exposed employees or potentially could have exposed employees to airborne concentrations of asbestos above tde permissible exposure limits (?ELs) before any cf tde provisions of 1926.53 (e)(1) through (e)(5) may be cited. In absence of any exposure cr initial monitoring by tde employer, or monitoring data collected by the CSHO, the CSHO shall cite 1925.53(f)(1)(i) cr (f)(2)(i), where 377569 ST0069963 the Agency has no wav of proving that workplace airborne ascestcs 1 avals ware in excess ci tine =ELs. w*ithcut such a snowing, CSHA cannot: sustain the burden ci proving worksite conditions wnicn would tnocer one emDlcver's buoy no establish a regulated area pursuant: so 1925.53(e)(L) thrcugr. (e)(6). In cases wnere me employer rsiies on exposure data compiled iron previous tons m lieu ci cerfcrmir.q initial monitoring, the employer rust demonstrate that the previous data was obtained during work operations conducted under workplace conditions closely resending the processes, type oi material, control retnoos, work practices, and environmental conditions used and prevailing in the employer's current cperaticr.s. (See 1926.53(f)(2)(iii;). The CSKO snail also verify the validity of the employer's air sampling retncd and document any unpredictable variability ci levels tc reout the employer's claim that the establishment ci a recuiataa area was net warranted. The r.scative--cressurs enclosure rscuirement also applies tc reeling operations, unless the construction oi the enclosure is infeasible due to physical obstruction or that the enclosure -ouid create a more immediate neaith cr safety hazard tc employees, i.e. heat stress or confined toxic gasses. Where th.e employer has instituted engineering and work practice controls that restrict the spread of asbestes and protect bystanders during the entire work process, the intent of requiring the negative-pressure enclosure under 1926,58 (e)(6) would be met. The effectiveness cf the controls must be supported by employer's exposure data. Regarding the definition of small-scale, short-duration operations, CSKA's proposed standard's language differs from our current interpretation. For example, cur current interpretation considers three linear feet cr cne clove bag as small-scale, shert-duration: the proposed standard is considering 21 linear feet. However, the proposed standard also requires a specifioaily trained competent person to oversee the eperetiens. Therefore, our interim policy is to classify as de minimis, per FCH instruction, potential violations involving operations wnicn are not in accord with OSKA's current interpretation of smallscale snort-duration but meet all the requirements for smallscale snort-duration projects as outlined in the proposed standard. This policy, of course, will change pending the complecicn of amended rulemaking proceedings. If you need furtner assistance, please contact t.he Office cf Health Compliance Assistance at FTS 522-5036. 377570