Document dRaQn4avJnMDbwbG0MgXX7BG

TO: EOIC Executive Committee Interoffice Communlcotion FROM: DATE: SUBJ: T. G. Grumbles August 8, 1989 OSHA PROPOSED RULE: METHODS OF COMPLIANCE The subject rule has multiple questions and requests for comments and/or data regarding the use of respiratory protection for compliance with occupational exposure limits. Specifically, there are many references to the EO EL rulemaking record regarding the use of respirators to comply with the 5.0 ppm EL. I believe EOIC needs to comment on at least the EO specific issues, particularly the use of respirators for EL compliance, as well as some of the general issues raised. I've attached a copy of the proposal with the question raised by OSHA numbered in the margins. I believe we need to comment on at least the following: 1, 2, 4, 7, 8, 10, 13, 14, 15, 17, 20, 22, and 25. These questions deal with the cost/benefits of respirator use, specific jobs where respirators can be used solely, and additional data to support specific changes to the Ethylene Oxide standard. We need to review our comments in the EL rulemaking records and determine what we believe we could add to reemphasize our prior position or new information to address OSHA's questions. CT"------------------T. G. Grumbles dlj cc's: R. Romano S. Schotland VVV 000009610 Federal Register / Vol. 54, No. 106 / Monday, June 5. 1989 / Proposed Rules 23991 From the Superintendent of Documents, U.S. Government Printing Office, Washington. DC 20402, Stock No. 050001-00308-2. The FHWA both receives and initiates requests for amendments to the MUTCD. The MUTCD is a promulgation of uniform national traffic control devices standards and applications for use on all streets and highways open to public travel regardless of type or class or the governmental agency having jurisdiction. Issued on: May 30.1989. R. D. Morgan, Executive Director. [FR Doc. 89-13280 Filed 6-2-88; &4S smj auum cooc mo-a-M DEPARTMENT OF LABOR Occupational Safety and Health Administration 29CFR Part 1910 [Docket No. H-160] RIN 1218-AA28 Health Standards; Methods of Compliance agency: Occupational Safety and Health Administration (OSHA), Labor. action; Proposed rule. summary: By this notice the Occupational Safety and Health Administration (OSHA) proposes to modify the existing provisions for controlling employee exposures to toxic substances found in 29 CFR 1910.1000(e) and 29 CFR 1910.134(a)(1). The Agency proposes to incorporate additional flexibility in its methods of compliance requirements by more explicitly setting forth the circumstances under which respiratory protection may be used in lieu of engineering controls. While some additional approaches are not reflected in actual proposed regulatory language, comment is requested on the appropriateness of addressing all of the various areas discussed by this notice in a final methods of compliance ruie.TThls action is being taken based on data the Agency has received in response to an Advance Notice of Proposed Rulemaking (ANPR) published in February, 1983 (48 FR 7473) that solicited comment on ils policy relating to the use of engineering controls and respirators and on data found in OSHA's 6(b) rulemaking records addressing the methods of compliance issue (Ex.4). Notice is also given, herein, that certain modifications to the compliance requirements with respect to short-term exposures in the recently promulgated standards for benzene (52 FR 34460). formaldehyde (52 FR 46168). and ethylene oxide (53 FR 11414) may result from this rulemaking. date Comments and requests for a hearing should be submitted by October 3,1989. ADORESSES: Comments should be submitted in quadruplicate to the Docket Officer, Docket No. H-160, Room N3670, U.S. Department of Labor. 200 Constitution Avenue, NW., Washington, DC 20210. Requests for a hearing should be submitted in quadruplicate to Mr. Tom HalL OSHA. Division of Consumer Affairs. Docket No. H-160. Room N3637, Ll.S. Department of Labor. 200 Constitution Ave., NW., Washington, DC. 20210. FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster. Occupational Safety and Health Administration. Office of Public Affairs, Room N-3649, U.S. Department of Labor. 200 Constitution Avenue. NW,, Washington. DC 20210. Telephone: (2D2) 523-8151. SUPPLEMENTARY INFORMATION: L Background OSHA's methods of compliance policy, first adopted by OSHA from national consensus standards in 1971. and subsequently included in OSHA substance specific health standards, requires that employers rely primarily on feasible engineering controls to prevent employee exposures from exceeding permissible levels. This requirement in particular, is stated in the OSHA Respiratory Protection Standard. 29 CFR 1910.134(a)(1), which applies to all exposures to airborne toxic substances, and in the Air Contaminant Standard. 29 CFR $ 1910.1000(e), which applies to exposures to 600 substances listed in Tables ZA, Z-2, and Z-3. Thus. 29 CFR 1910.1000(e) requires employers to first implement engineering and administrative controls to comply with the permissible exposure limits for substances listed in the above Tables. Similar language appears in OSHA's generic respirator standard which set forth the condition? of respirator use required to protect the health of employees. (29 CFR 1910.134(a)(1)). These standards were adopted without full rulemaking proceedings to allow OSHA to quickly put into place a body of workable regulations, pursuant to section 6(a) of the Occupational Safety and Health Act of 1970 (29 U.S.G 855 et seq). This methods of compliance policy has alio been incorporated in every health standard adopted pursuant to section 6(b) of the Act after OSHA's evaluation of the related rulemaking records. All substance specific health standards (except for the 13 carcinogen standards. 29 CFR 1910-1003-1016. which mandate specific engineering controls) and the carcinogen policy (29 CFR Part 1990) recite a generalized preference for engineering and work practice controls. However, in each such standard OSHA has Identified circumstances or operations where the record shows the infeasibiiity or impracticably of installing engineering controls and has allowed reliance on respiratory protection as well. However, the generic standards. 29 CFR 1910.1000(e) and 134(a)(1), do not set out most of these modifying circumstances in their regulatory texts. In certain recognized situations and conditions under OSHA's substance specific standards, engineering controls are not required and respirator use is permitted. For example, the following standards permit the use of respiratory protective devices during installation of feasible engineering controls, where engineering controls are not feasible, and where it is necessary to supplement engineering controls in order to achieve full compliance: asbestos, arsenic, lead, coke ovens, cotton dust. DBCP. acrylonitrile, and ethylene oxide. Other specific allowances for respirator use can be found in standards for arsenic (maintenance and repair), lead (for employees exposed less than 30 days per year), coke ovens (maintenance and repair), acrylonitrile (maintenance, repair, and vessel cleaning), and ethylene oxide (collection of quality assurance samples, removal of ' biological indicators, loading and unloading of tank cars, changing ethylene oxide tanks, vessel cleaning, and maintenance and repair activities). These examples provide a clear indication of the Agency's realistic expectations with respect to the implementation of engineering controls and of the flexibility implied with respect to the meaning of "feasible engineering controls." In addition, in an enforcement context it may be demonstrated that for specified operations engineering controls are infeasible. OSHA seeks comment on m whether these specific types of '--^ allowances should be explicitly built into the general methods-of-compliance provisions. OSHA's policy has been criticized by some as too inflexible, not cost* effective, often unnecessary for health Wv 000009611 23992 Federal Register / Vol. 54, No. 106 / Monday, June 5, 1989 / Proposed Rules protection and outdated based on the rulemaking records from other Engineering controls generally provide argument that sufficient progress has standards which OSHA has belter and more reliable methods of been made in respirator technology and application to permit their use on a wider scale. In order to address these criticisms OSHA published an ANPR on February promulgated have been re-examined and relevant exhibits have been placed in this record. Labor unions opposed any change in the role of respirators in current programs. In addition, NIOSH, protecting employee health Improperly wearing respirators can be a continual problem. While we believe this occurs less than 6% of the time in many of our plants, we expect U occurs more frequently in some plants--possibly in the order of 30% or more 22,1983. to solicit public comment on and Los Alamos and Lawerence of the time. (Ex. 2-103). issues such as preference for engineering controls, comparative protectiveness of respirators and engineering controls, total costs of respirators and engineering controls, and the use of engineering controls even if such controls fail to reduce levels to below the PEL. OSHA was also seeking information that would help the Agency to focus on three primary policy considerations: The first consideration was health Livermore research laboratories, highly respected for their expertise and experience in exposure control technology, also opposed changing the existing policy. The preponderance of data in this and other rulemaking records (ethylene oxide, cotton dust DBCP. acrylonitrile, arsenic, lead, asbestos, cancer policy) support the industrial hygiene principle that engineering controls, where feasible, are more effective in Many industry commenters. however, called for increased flexibility in OSHA's compliance policy; still others for abandonment of the preference for engineering controls. For example, the Chemical Manufacturers Association . stated (Ex. 2-72], in response to the question of whether OSHA should require the use of feasible engineering controls "In preference" to the use of respirators, as follows: protection, it had been postulated that controlling exposure than other means. As long as the employer meets s there may be many instances where Commenters representing unions, (2- permissible exposure limit (PEL), controls the respirators would provide protection to employees equivalent to engineering controls, and that their routine use should be permitted. The second consideration was that respirator technology and use practices have progressed significantly since 53.2-102,2-122, 2-98), universities (2 120), research organizations (2-128,2138, 2-131, 2-81), and health associations (2-89), contended that the requirement to implement feasible engineering controls should be. maintained. Industry representatives skin contact, or meets the appropriate biological levels that are consistent with employee health and safety, OSHA should not require any specific control strategy (sic). Means for achieving such standards will often involve engineering controls and the use of respirators as well as administrative and work practice controls. Methods of initial adoption of OSHA's compliance that acknowledged the superiority of . reducing exposure to the desired level will be requirements in 1971. As a result of many of these advances, the consensus among many occupational health professionals concerning what constitutes a reasonable effective feasible engineering controls include AT&T (2-59), DOW (2-71), Monsanto [2- 88). and ALCOA (2-103). These commenters agreed that engineering controls provide reliable different in each workplace and the combination of engineering, administrative,and work practice controls and use of respirators should be left to the employer. Representing a broad cross section of respirator program has changed. This point is demonstrated by the issuance of the American National Standards Institute (ANSI) Z-88.2-1980 standard, entitled "Practices for Respiratory Protection." a revision of the 19G9 ANSI standard. In addition, improved respiratory protection programs are currently being addressed in a proposed revision of OSHA's respiratory protection standard (29 CFR 1910.134). It was suggested, therefore, that, in the presence of such programs, respirators would be capable of taking a more significant role in air contaminant protection than they have had before. The third consideration was cost* and consistent levels of protection to a large number of workers and are not dependent on individual human performance. Data submitted to the record support this assertion. Performance of engineering controls can be monitored continually, inexpensively, and can be predicted at the design stage. As stated by DOW, "The primacy of engineering controls for controlling exposure is an accepted principle of occupational health" (2-71). AT&T commented that "Engineering controls should always be given primary consideration" (2-59). Los Alamos' Industrial Hygiene Group has stated. industry, the National Association of Manufacturers [Ex. 2-91j similarly stated, arguing that OSHA's current methods policy was actually counterproductive to worker safety and health, as follows: The threshold question is whether current OSHA standards requiring employers to implement feasible engineering controls to maintain air contaminants in the workplace to within prescribed permissible exposure limits and permitting engineering controls era not feasible, not yet installed, or are inadequate is conducive to the "most effective*' protection of workpiece health. It Is the NAM's belief that almost exclusive reliance on engineering controls while not effectiveness. There may be instances where the costs of engineering controls would exceed the expected costs of respiratory protection, and where the routine use of respirators may provide adequate employee protection. Should That* * there am no analytical results to indicate that respirators offer equal or belter protection than engineering controls and with very few exceptions * * * respirators simply cannot offer the same degree and reliability of protection to employees, as properly accounting for situational variations ia neither the most effective approach nor in the best interest of overall worker protection. F#W professionals in industry would argue that engineering controls are not the "ideal** means for the elimination or mitigation of workplace hazards. However, ideal solutions such instances exist reasonable designed and operated engineering controls rarely work as well as expected in practice allowances for the use of respiratory (2-131). and practical concerns must also be protection should be made. For the foregoing reasons, it was felt to be timely and appropriate to The University of North Carolina commented that: considered. These practical concerns include ell hazards rather than a single hazard and muet be viewed in relation to and interacting reexamine OSHA's policy on methods of compliance. Over 135 ANPR comments were All industrial hygiene practice indicates feasible engineering controls should take precedence * * * (Ex. 2-120). with a total workpiece safely and health program. Under this total program, the ideal solution for the control of one hazard may likely limit an employer's ability to address received, with a wide range of responses ALCOA, addressing the reliability of the remaining segments of the program. Thus, from industry, labor, health engineering controls and respirators, preference for one form of control over organizations, and others. In addition. provided the following: another, unmindful of the variables involved. VVV 000009612 Federal Register / Vol. 54. No. 10Q f Monday. June 5. 1989 / Proposed Rules 23993 we believe, is counterproductive lo the Atlantic Richfield Company {Ex. 2-30]. are not feasible before an employer can effectiveness of balanced and truly in endorsing comments submitted by the rely on respirators to reduce employee effective overall safety and health program. For this reasorvthe feasibility of an engineering control should not be the sole determinant of its use and OSHA policy should not reflect this short-sighted goat Specific companiea reflected similar concerns. Thus, the DOW Chemical Company [Ex. 2-71] noted: American Petroluem Institute [Ex. 2-73], noted: Employers should have the option to select a protective control strategy rather than being mandated to adhere to the current rigid hierarchy of exposure controls. The ultimate goal of any control strategy must be the adequate protection of workers exposed to contaminants. Varying control strategies will exposure to required levels. In large part these circumstances reflect the current application of the two standards involved and circumstances recognized in substance-specific standards. By setting out explicit situations OSHA hopes to make future application of the methods of The prime concern In Bny reconsideration achieve that goal et leaat equally welL and compliance policy more uniform and of the methods-of-compUanca provisions often more cost-effectively, as the fixed understandable. must be maintenance of safety and health controls provided by current policy. It is noted that provisions adopted protection for employees to prevent workrelated injuries, illness and death. Such protection cannot be achieved by mandating a hierarchy of control techniques. Dow recommends that OSHA delete or modify any mandatory preference to allow employers greater flexibility to use their professional judgment to determine the balance of engineering controls, work practices, operator training and personal protective equipment th8t is most effective for them in achieving the appropriate level of protection. Another major chemical company, Du Pont emphasized the effectiveness of respirators together with the need for greater flexibility: Much has changed since the current methods of compliance policy was adopted. Data obtained from research on the performance of respirators in the workplace, much of it performed by DuPont lend strong support to the conclusion that respirators provide reliable employee protection when used in a good respirator program. Recent research on workplace protection factors demonstrates that respirators provide effective control for exposure to airborne chemicals when they are used correctly in a good respirator program. In many eases they provide the most cost effective means of control. Accordingly. DuPont believes that respirators, like engineering and administrative controls, have a proper role to play in the protection of employee's. Therefore. DuPont recommends that each employees personal work environment be maintained at a safe exposure level through Implementation of cost-effective engineering In support of this recommendation we want to emphasize that the statutory language of the OSH Act does not mandate the primacy of engineering controls. Support for this conclusion is fully developed in API's comments. OSHA should recognize the significant advances in both technology and applicability of respirators in the last decade. New methods and procedures for fit-testing and respirator fit reliability have been developed. Other commenters expressed similar concerns. (See Cast Metals Federation [Ex. 2-49), Horaton Lighting & Power [Ex. 2-21), the American Gas Association [Ex. 2-77], SCM Corporation [Ex. 2-21], and National Agricultural Chemicals Association [Ex. 2-77], National Paint and Coatings Association. Inc. [Ex. 2-78]. Motor Vehicles Manufacturers Association [Ex. 2-95], and The Health Industries Manufacturers Association [Ex 2-110]. This rulemaking does not address the assessment and reduction of any absolute existing risks but rather addresses the possible change in risk abatement associated with the use of respirators instead of engineering controls. The nature of the risks involved concerns differences in degree of protection between respirators and engineering controls as applied in various types of work situations involving different air contaminants. under this standard will not change the compliance provisions found in OSHA's . existing substance specific standards j with the possible exceptions of the STEL provisions in the ethylene oxide (29 CFR 1910.1047). benzene (29 CFR 1910.1026) and formaldehyde (29 CFR 1910.1048) standards. The preamble to those standards indicated that if evidence were to be submitted during this rulemaking, appropriate to ethylene oxide, benzene or formaldehyde on the | STEL compliance issue OSHA would consider making appropriate changes to I each rule. If information developed in the course of this rulemaking demonstrates that changes should be made in any of the existing substance specific standards, OSHA will amend these standards to permit employers to elect to use either respirators or engineering controls to achieve compliance with those existing short term limits. The circumstances listed define concrete situations where OSHA has or would have treated the primary reliance on engineering controls as infeasible in moat cases. Withtq th*am circumstances employers wiffhe able use any-> combination of engineering or work practice controls and respiratory protection to effectively reduce employee exposures to required levels. OSHA also notes that as under the controls augmented as necessary by personal The Proposal current standards. OSHA's enforcement protective equipment and/or work practice controls. The choice of methods should depend on the factors in each specific situation. *# * The choice of the proper method(s) of compliance involves, therefore, far more than the simple dichotomy of engineering controls versus respirators. For this reason, the question "Which are better, engineering OSHA proposes to modify its existing requirements in 29 CFR 1910.1000(e) and 134(a)(1) that specify primary reliance on feasible engineering and work practice controls, by further clarifying the circumstances, based on experience with OSHA'a 6(b) standards and data and information submitted for the record, under which more extensive use of the hierarchy of controls provision is on a case by-case basis. Other situations where engineering controls may be infeasible can be more easily identified because of the explicit examples provided in the proposed provisions. OSHA has recognized other circumstances where respirators are controls or respirators?" cannot be of respirators may be appropriate. essential to guarantee employee health satisfactorily answered in the abstract. As The record does identify specific in some substance-specific standards. the information and comments offered by Du Pool in the enclosure will indicate, the choice of the proper method(s) of compliance is best made on an individualized basis by industrial hygiene professionals. So long as the two criteria identified above have been met. an employer should not be needlessly situations where engineering controls generally may not be feasible, end where respirators may have to be used (Exs. 2-51. 2-72,2-131). OSHA. therefore, is proposing to specify five sets of circumstances where there will Thus, OSHA has provided that in work operations such shutdown and repair activities respirators may be used as a primary control strategy. (See 29 CFR 1910.1046(a)(l)(ii), Formaldehyde: 1910^047(gj(lj(lij. Ethylene oxide (EtO]; controined from choosing the control strategy be no need for employers to show that 1910.1043(f)(l)(ii). Cotton dust: that makes sense for his particular operation. engineering and work practice controls 1910.1029(g)(1)(b), Coke Oven emissions: VVV 000009613 23994 Federal Register / Vol. 54. No. 106 / Monday, June 5. 1909 / Proposed Rules 1910.1018fb)fl)(ii). Inorganic arsenic; I910.100l(g)(ii), Asbestos, tremolite, due to the general infeasibility of engineering control implementation or appropriate for clarification purposes. Comment is requested on this issue. anthophyilite, and ectinolite). for which respirators would, in any case, OSHA points out that this exception OSHA has nol proposed an explicit provide sufficient protection. does not cover the required exclusion for maintenance activities for The five sets of circumstances that the generic standards. As OSHA have been identified by OSHA from supplemental use of respirators when * feasible engineering controls do not observed in the preamble to the data in the record where engineering "achieve full compliance" pursuant to 29 carcinogen policy, based on its review of that voluminous record, although these activities are '`intermittent, often unpredictable and often undertaken when engineering controls break down * * * some maintenance activities are feasibly controlled by engineering and work practice controls'* 45 FR 5226. Moreover, the Agency believes that (routine activities that are performed on a repeated or scheduled basis can be controlled through implementation of feasible engineering and work practice controls. Compliance plana can be , developed and engineering controls 1 implemented for predictable activities, including routine maintenance. controls may generally be infeasible include: 1. During the time necessary to install feasible engineering controls: 2. Where feasible engineering controls result in only a negligible reduction in exposure: 3. During emergencies, life saving, recovery operations, repair, shutdowns, and field situations where there is a lack of utilities for implementing engineering controls: 4. Operations requiring added protection where there is a failure of normal controls: and 5. Entries into unknown atmospheres. CFR 1910.1000(e). Rather, it refers to situations where engineering controls would achieve exposure reductions only to a negligible degree. Comments in response to the ANPR identified some operations which may be covered by this proposed provision. However, further case-by-case analysis still will be required (Exs. 2-131.2-118, 2-132). Thus, for example, the American Foundrymen's Society (AFS) asserts that "technical limitations prevent the control of dust exposures to within permissible exposure limits by engineering means at most chipping and grinding operations." (Ex. 2-44). Spray painting booths were also cited as However. OSHA raises for comment the A provision-by-provision discussion virtually impossible to engineer to question of whether it is necessary to of the proposed revisions follows: achieve substantial exposure reduction require that all feasible engineering 1. OSHA is proposing to allow (Ex. 2-38). OSHA notes however, that controls such as ventilation systems be primary reliance on respiratory engineering controls mey be feasible to installed solely for maintenance protection during the time necessary to implement, and the issue may be the activities. Specifically, OSHA would install or implement feasible engineering degree to which they are effective. The like to receive examples of instances controls. This circumstance was proposed provision would allow which would demonstrate that an specifically identified in submissions to reliance on respirators when feasible engineering control requirement the ANPR (Ex*. 2-91,2-50), and In all engineering controls only achieve exclusively for maintenance exposures substance specific standards (see e.g. 23 negligible exposure reduction. If in the would or would not be appropriate. (For CFR 1910.104(g)(1 )(i). Eta case of foundries, the installation of activities such as shutdown and repair, 1910.1045(h)0)(i), cotton dust). local exhaust hoods and increased which are necessary due to unexpected or unpredicted occurrences, respirators would be permitted as they would be the only available source of protection against exposure.) 2. OSHA is proposing to allow primary reliance on respiratory protection where engineering control implentation would result in only a negligible reduction in exposures. OSHA housekeeping make tittle difference in the employee's exposure because of unalterable difficulties in hood placement then the provision may apply. If however, engineering controls The Agency does agree, however, that there may be some activities that are considered to be maintenance that may have to be performed with respirators due to the absence of other controls. Nevertheless, as discussed above, tire requests comment on whether setting / \ can reduce exposures, although not forth this additional explicit regulatory^ ) down to the PEL'S, the unrevised language is necessary in tight of existing supplemental respirator use provision of provisions requiring that only feasible S 1910.1000(e) would, as now, come into engineering means be implemented to play and require a combined control reduce exposures. Current OSHA strategy, and not total reliance on. Agency believes many maintenance activities lend themselves to control by engineering means. OSHA does not enforcement policy and practice recognize that the degree of expected exposure reduction is part of the respirator protection. OSHA also notes that confining discussion about the effectiveness of have sufficient information to list specific maintenance jobs commonly performed in general industry that may determination of feasibility. Therefore, OSHA feels that it may be unnecessary to supplement the current compliance feasible engineering controls to "conventional" controls may dictate unwarranted conclusion of infeasibility, require widespread use of respirators. requirements with specific language as loss of productivity or ineffectiveness. Therefore, the Agency is interested in receiving comment on the practicality of listing specific maintenance jobs for suggested above. Further, to define in regulatory terms on a broad basis what a "negligible" reduction in exposure NIOSH has pointed out that, for example, in the plastics and resins industry, implementing controls for which engineering controls are generally level is in general industry as a result of cotton dust, and in silica flour milling, infeasible or maintenance activities where respirator use is otherwise appropriate based on consideration of engineering control implementation, as opposed to defining it on a case-by-case enforcement basis, may prove to be engineering control modifications and innovation increased production and control effectiveness over duration, frequency and whether routine or not. Thus, data are solicited regarding confusing to employers and impractical . "conventional" technology- (Ex. 2-81). to OSHA. Nevertheless, since the \ Innovative controls which are available potential success of exposure reduction l will have to be assessed before this circumstances, conditions, frequency, is considered in determining feasibility, \ exception may be retied on. ) and duration of the types of industry proposing specific language to that 3. The third provision proposed by wide maintenance activities that effect would not change current OSHA OSHA (o permit reliance on respiratory typically require the use of respirators policy and therefore, may be equipment encompasses several VVV 000009614 Federal Register / Vol. 54, No. 106 / Monday. June 5. 1989 / Proposed Rules 23995 circumstances where total reliance on essential for these activities, and that occasional entry into hazardous engineering controls would be engineering controls were, in the main, atmospheres." Comments submitted to ineffective or inappropriate. These are infeasible (Ex. 2-112). the Methods of Compliance record also emergencies, recovery operations, OSHA believes that employees will argued for incorporation of flexibility in unscheduled repairs shutdown, and in be effectively protected in the situations respirator use under certain conditions. field situations where there is a lack of evisioned in provisions 4 and 5. by the One commentor slated that respirator utilities for implementing engineering proper selection and use of respiratory controls. protection. OSHA believes that in these The Agency requests comments on all circumstances, respiratory protection spects of these proposed provisions. In has proven itaelf generally as the most particular, the clarity of the "exception and often the only practical means to provisions" is of concern to the Agency, minimize employee exposure. because one reason for these provisions Respirators may be the only means of is to provide certainty and uniformity of protection in situations where ' application to employers and OSHA engineering controls cannot be enforcement personnel. implemented due to the remoteness of In addition to requesting comment on the locale, other configuration of die the appropriateness of allowing the use site, or the characteristic of the work of respirators during the activitiea operation. Further, some of the defects discussed above. OSHA requests data, of respirators, i.e.. lack of employee ^-sviewa, and comment on other situations. acceptance and degradation of fit over [J Jas discussed below, where it may be use should be permitted in lieu of feasible engineering controls for a certain percentage of time per individual, per work station (Ex. 2-43). This suggests, perhaps, that employers should be allowed to establish a "respirator budget" to allocate a certain number of days per year or hours per day for employees to wear respirators in lieu of feasible engineering controls. Comment and data is sought that demonstrate that "budgeted" respirator use will result in reliable and predictable control equivalent to that afforded by engineering controls. Others time are greatly reduced by the short '--''acceptable to use respirators in Ueu of supported allowing employers to rely on time they may be worn during engineering controls, and which should respirators to control exposures for emergencies, recovery operations, be allowed for, as part of this short term tasks (Ex. 2-61), and for high unscheduled repairs and shutdown. rulemaking, in a final methods of exposure variability, infrequent and Most submissions supported respirator compliance rule. small exposed population job tasks (Exs. use in circumstances similar to Specifically, comment is sought on the 2-88,2-93). None of these comments, exception three. For example. Monsantc^vNappropriateness of permitting the use of however, provided substantial data to noted that during emergencies (liquid (rfyespirators for work situations in which spills, fire fighting, etc.) respirators are V-the hazardous exposure Is of very brief used in operations where routine duration. OSHA permits the use of gthe record demonstrating that employee protection would not be compromised by permitting the use of respirators in ^ protection is achieved by engineering respirators in specific activities in a these instances in lieu of feasible controls (Ex. 2-88). API noted that number of its existing section 6(b) engineering controls. Receipt of such respirators are the only means to standards based, in part on the short data is requested by OSHA. provide emergency protection in the event of an equipment failure (Ex. 2-93). Most substance specific standards permit primary respirator use in these situations (See e.g. 9 9 1910.101B(h}(t)(ii), arsenic; 9 1910.1029(g)(1)(d), coke oven emissions]; and 9 19l0.1044(h)(l)(iv), DBCP). 4. OSHA is also proposing to allow reliance on the use of respirators in operations involving materials which are primarily controlled by engineering devices to protect employees in the case of control breakdown. QSHA's intent is to allow respiratory protection to be used as a redundant control system where redundancy is considered necessary either because of the toxicity of the substance or the possibility of engineering breakdown. For example, Conoco, Inc. stated that "standby or back-up respiratory protection is normally maintained in all locations duration of the activity. For example, respirator use is permitted under the ethylene oxide standard (29 CFR 1910.1047) during the collection of quality assurance samples, removal of biological Indicators, and changing of ethylene oxide tanks or cylinders. These activities are typically brief in nature. The concept of according acceptability of respirators for intermittent use is also found in the benzene (52 FR 34480) and lead (29 CFR 1910.1025) standards which, in general, permit their use .where the regulated substance is used in the workplace less than a total of 30 days per year. These exceptions to implementation of engineering controls were adopted in each specific standard based on data that demonstrated the acceptability of the use of respirators for those particular circumstances in those particular substance using Industries. Thus, it is not presently clear to OSHA As indicated above, however, OSHA is not convinced based on available data that it is appropriate for the Agency to adopt broadly applicable generic exposure control provisions incorporating intennittency or short duration of operation as a basis for permitting the use of respirators in lieu of engineering controls, as found in the specific standards discussed above. Therefore, comment and data are solicited that demonstrare or refute the appropriateness of adopting this approach into a final rule on OSHA's sCT\ methods of compliance requirements, (IHJ based on the frequency and duration of the activity, that could be applied to general industry. Comment is also specifically requested on whether actual final regulatory language which would reflect thia approach should incorporate specific time limitations as to the where hydrogen sulfide (HsS) gas is whether such exclusions can be duration and frequency of use per work produced in case of accidents" (Ex. 2- appropriately applied generally. Another shift and what these specific time 60). regulatory agency, the Mine Safety and limitations should be, or should, rather, 5. The fifth circumstance proposed to Health Administration (MSHA), is also such language be phrased in general, allow reliance on respiratory protection exploring the issue of ways to permit flexible terms such as "brief duration." is for entries into unknown atmospheres. more flexibility in required exposure "short duration," or "brief intermittent Preliminarily, OSHA intends to cover control methods for unusual situations. use" without specific time limitations. If confined spaces or vessel entry and tank For example, MSHA Is considering a time limitation is suggested, the cleaning and vessel cleaning. Most permitting the use of respirators in Agency requests data and information commenters who addressed this issue "tasks such as maintenance or aa to the appropriate time period and agreed that respiratory protection was investigative activities (which] require why adequate protection would be VVV 000009615 23998 Federal Register / Vol. 54, No. 106 / Monday. June 5. 1989 / Proposed Rules provided by respirators during that STEL compliance for all substances to exposure; ability to measure and ensure period. be achieved solely through the use of /'''T^the adequacy of exposure control; work Related to the issue of the respirators. Since OSHA has received {Xujratei temperature and humidity of the appropriateness of permitting short no documentation that convinces the X>--^ workplace: ability to assess the duration use of respirators, as discussed Agency that respirators can be used as a probability of protection failure; above, is the issue of specifically consistently effective means of routinely detectability of control failure before permitting respirators to be used to meeting STEL's on a widespread basis, harm; and die extent to which achieve compliance with short-term the Agency is raising this issue for employees may be expected to wear exposure limits (STELs). The preambles comment. respirators for any required period- to the recently promulgated benzene (52 The Agency is raising this issue for FR 34460) and formaldehyde (52 FR comment in conformance with Comment received on these factors as set forth in the ANPR revealed that an ' 46166) standards, for which STELs were statements to that effect in the ethylene important role is played by each in adopted, and the preamble to the ethylene oxide standard (53 FR 11414). for which an excursion limit was oxide, benzene and formaldehyde standards. OSHA therefore requests substantive technical data concerning determining the suitability of compliance methodology. Engineering controls were suggested as being adopted, indicated that OSHA would conditions and situations under which/---v particularly preferred where health consider in its Methods of Compliance respirators can be employed f\[0^effects are mote severe, where there are rulemaking whether different principles successfully in lieu of other controls ttK^more lengthy and frequent periods of should apply as to means of compliance for the STEL or excursion limit, such as using respirators to meet the short-term achieve STEL or excursion limit compliance, and concerning how and why the use of respirators for protection exposure; where respirator failure warning properties do not exist; where the work rate exertion level is greater, limit, but not the TWA. Neither the ethylene oxide, benzene nor the formaldehyde standard adopted a provision allowing respirators to be used to achieve compliance with the short-term limit in lieu of feasible engineering controls because data in their specific respective records did not justify such an allowance. It is noted in each standard's preamble that if evidence is submitted in the Methods of Compliance rulemaking, appropriate to against short-term exposures can be where significant respirator fit problems differentiated from protection against exist, and where extreme temperature TWA exposures with respect to and humidity conditions exist OSHA effectiveness. again raises for comment the question Comment on another area where as to how or if these workplace factors broader use of respirators may be acceptable is also being requested by should be viewed in deciding whether engineering controls or respirators are OSHA. As discussed earlier, the most appropriate and. further, how these question arises whether there are circumstances in the workplace where factors could be reflected in a final rule to define those circumstances where the protection afforded by respirators respirator use would provide would be equal to the protection /Ok appropriate protection and would, thus. ethylene oxide, benzene or formaldehyde on the short-term limit t V compliance issue OSHA will consider 0 nJj making appropriate changes to each ^ rule. OSHA therefore requests, additional data beyond those received during the specific 6(b) rulemakings, addressing the question of whether the compliance requirements in these standards should be modified with provided throug;hh implementation of engineering controls. In particular, the question arises whether there are be permitted under the rule. How would it be determined that employees would be provided with the desired degree of circumstances where the costs of the respirator program would be less than those of engineering controls and yet - protection? It is noted here that OSHA is in the process of revising its standard on respiratory protection (29 CFR 1910.134) equal protection would be afforded by and that consideration should be given either. Are there circumstances in which as to whether an increased degree of cost effectiveness factors are e --^protection may result where respirators legitimate consideration in determining^jvFr use^ comformance with the new ' respect to control of short-term the acceptability of one exposure v^^tespirator program provisions, exposures. Data and views are solicited control method over another. Also, what It is not clear to OSHA at this time, on circumstances under which it would workplace factors would have to be however, how it can be determined that or would not be appropriate to permit employers to elect to use either engineering controls or respirators as considered to evaluate the effectiveness^respirator use is equally protective as of a control method before costs couldUWVengineering controls, costs be taken into account? A number of notwithstanding. Nevertheless, OSHA the primary means of limiting exposure to within the benzene STEL. the formaldehyde STEL, or the ethylene oxide excursion limit factors that may be appropriate to consider in determining whether engineering controls or respirators will provide adequate protection in a seeks comment that would show the appropriateness of allowing cost effectiveness to be incorporated as a control method selection factor. Based on information received during particular situation were raised for In the proceeding discussion. OSHA (his rulemaking, that is pertinent to comment in the ANPR. OSHA seeks has maintained its support for a these substances with respect to further comment on how factors such as continuance of its existing compliance compliance requirements for control of described below should be taken into method hierarchy, but has also short-term exposures, OSHA will either account by OSHA or the employer in suggested that, under certain specific amend these standards to permit determining the acceptability of using sets of circumstances, it may be employers broader discretionary use of respirators regarding STEL compliance in this rulemaking, or will reaffirm the either engineering controls or respirators. Workplace factors which may affect the performance and degree appropriate to allow respirator use in lieu of feasible engineering controls, thus providing flexibility in determining conclusions reached during the previous rulemakings for each of the three substances. of protection provided by exposure control means may include: number of exposed employees and number of the appropriate method of compliance. For example. OSHA seeks comment on a requirement to permit respirator use in OSHA presently does not have employees with respirator fitting lieu of feasible engineering controls in sufficient data to justify proposing to problems; severity of acute and chronic certain instances where the employer include regulatory language allowing health effects; length and frequency of has submitted a comprehensive written VVV 000009616 Federal Register / Vol. 54, No. 100 / Monday. )une 5. 1989 / Proposed Rules 23997 respirator compliance program to the convinced that as suggested by these Regulatory Impact Agency. This compliance plan would be subject to OSHA approval and would be required to demonstrate to the Agency that the use of respirators under the circumstances described would provide protection to the employee equivalent to that afforded if feasible engineering. controls were implemented OSHA believes, however, that this flexibility may not be appropriate where the substance involved is a carcinogen, has commentors, implementation of even a strong respirator programs will result in equivalency of protection afforded by respirators as compared to engineering controls. The inherent limitations of respirators preclude their providing equivalent protection to engineering controls for use as the primary means of exposure control in most all circumstances where implementation of engineering controls are feasible. A OSHA has not performed a preliminary Regulatory Impact Analysis. Regulatory Flexibility Analysis, or paperwork clearance package for this action since adoption of the proposed requirements would add no new regulatory burdens on employers with | respect to either costs or information collection. < IL Pertinent legal Authority no identified dose-response threshold, continues to pose a significant risk at the PEL. has no respirator breakthrough warning properties, or if there are no means of determining the specific in-use effectiveness of the respirator. On the other hand, if the effectiveness of control method which limits contaminant entrance into the workplace (e.g. engineering controls) has been clearly shown to be a more effective application of industrial hygiene principles than one that does not. Nevertheless. OSHA seeks Authority for this action is found primarily in sections 6(b|. 6(c). and 8(g)(2) of the Occupational Safety and Health Act of 1970 (the Act). 29 U.S.C. 655(b), 657(c), and 657(g)(2). m. Public Participation respirators can be monitored readily in comment on whether continuance of the Interested persons are invited to some manner, such as by biological monitoring, it may be appropriate to control hierarchy is still necessary in any form, and whether adoption of a submit written data, views, and arguments on this proposed amendment. permit their limited use. The Agency solicits comment on the issue of OSHA approved respirator use. Views are purely performance oriented compliance These comments must be postmarked on provision into a final methods of (Oil Ior before October 3.1989. and submitted compliance rule is a viable option. \~2 in quadruplicate to the Docket Officer. sought on criteria which should be Comments in support of discontinuance Docket No. H-160. U.S. Department of of the control hierarchy should describe Labor. Occupational Safety and Health the specific circumstances under which Administration. 200 Constitution- under which respirator use should not be permitted in lieu of feasible engineering controls. An alternative which would provide such a change would be appropriate and how it would result in continued equivelent employee protection. Data and information are also sought that can demonstrate that adoption of a Avenue. NW.. Room N-3670, Washington. DC 20210, (202)523-7694. Written submissions must clearly Identify the provisions of the proposal which are addressed, and the position even more flexibility with regard to respirator use is to allow employers performance oriented compliance taken .on each issue. requirement will maintain the protectioar X The data, views, and arguments that under any circumstances to comply with afforded employees under current <2. |jre submitted will be available for exposure limits by any method the methods of compliance provisions. If the- public inspection and copying at the employer deems advisable. Some commenters have suggested that employer is permitted to choose any mix above address. All timely submissions of control methods to achieve will be part of the record of the establishment and enforcement of a good respirator program will result in effective exposure control where compliance, should choice of the method proceeding. be at the discretion of the employer or should the method chosen be required to Requests for Hearing respirators are used in place of be approved by a professional in the, \ Under section 6(b)(3) of the OSH Act engineering controls, and that employers Held of safety and health or other j^nd 29 CFR 1911.11. interested persons should be allowed to implement such technicially qualified person? who desire that OSHA hold an oral respirator programs under the standard Commenters supporting continuance of hearing on the proposal may file in circumstances deemed appropriate by OSHA'a current policy should provide objections to the proposal and request the employer (Exs. 2-61.2-86, 2-93. 2-94. pertinent data that demonstrate the an informal hearing. The objections and 2-109). For example, the Ethyl necessity of maintaining primary hearing requests should be submitted in Corporations states that 'The reliance on feasible engineering and quadruplicate end must comply with the government should not regulate the need work practice means of exposure following conditions: for engineering controls but should control. 1. The objection must include the regulate the use of personal protective Based on the proceeding discussion, name and address of the objector; equipment, requiring the employer to OSHA proposes to add a new paragraph 2. The objections must specify with show that protection is being provided" 1910.1000(f) that explicitly sets forth particularly the provisions of the (Ex. 2-109). The American Petroleum circumstances in the workplace where proposed rule to which objection is Institute asserts that "The burden employers may choose to use respirators taken and must state the grounds should rest on the employer to in lieu of engineering means as a therefor demonstrate that its employees are permissible method of controlling 3. Each objection must be separately protected by whatever [control] strategy employee exposures to toxic substances stated and numbered; and is chosen" (Ex. 2-93). Finally. 3M states listed in the Z-tables of section 4. The objections must be that "A well written performance 1910.1000. OSHA also proposes to accompanied by a detailed summary of standard should satisfy the requirement modify section 1910.134(a)(1) by the evidence proposed to be introduced that OSHA ensure that exposures are incorporating a statement of reference at the requested hearing. within permissible exposure limits while that indicates that respirators may be Interested persons who have allowing the employer to be concerned used in lieu of control in the objections to various provisions or have with the `how' of meeting a specific circumstances listed under proposed changes to recommend may, of course, standard" (Ex. 2-68). OSHA is not paragraph 1910.1000(f). make those objections or VVV 000009617