Document jBpVrZ9kZLZKogojwbQ9bDJmO

Gary Draper Page 3 February 2, 1982 DRAFT 3. Safety shower and eye-wash stations are in poor operating condition and not clearly marked in many units. Several of the stations checked had no water. These stations should be distinctly marked and their operation checked frequently. 4. It was indicated that further evaluation of welding exposures was to be done in 1982. This is recommended. 5. The "Dripolene" rack has been deregulated. This action should be documented. I would like to thank the plant personnel for their time and cooperation. This enabled the team to complete the audit in a thorough manner. Please feel free to contact me if you wish to further discuss the items above. Thomas G. Grumbles cc R. D. Gamblin R. E. Lehmkuhl Dr. Drumwright Everitt DeWhitt CCR 000002340 Friday February tZ, 1962 t; r Part H B Si ^ Department of Labor Occupational Safety and Health Administration Use of Personal Sampling Devices During inspection CCft 00000234J 653(T r' Federal Register / Vol. 47, No. 30 Friday. February 12. 1982 / Rules and Regulations b&rfARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1903 Use of Personal Sampling Devices During inspection agency: Occupational Safety and Health Administration (OSHA); Labor. action: Issuance of interpretative and procedural rule._________ __________. SUMMARY: This interpretation of 29 CFR 1903.7(b) clarifies the existing regulation concerning sampling of employee exposures during inspection and investigation of workplaces subject to the Occupational Safety and Health Act of 1970. Specifically, the interpretation makes clear that the term "employ other reasonable investigative techniques" includes the attachment of personal sampling devices to employees in order to monitor their exposures. In addition, in today's Federal Register, OSHA is proposing and inviting public comment on an amendment-to 1903.7(b) which would adopt this interpretation aa a legislative raig. See Notice of Proposed liemaking. Docket No. W-300, which appears in Part H of today's Federal Register. dates: This interpretation is effective February 12,1982. FOR-FURTHER INFORMATION CONTACT? jamas Foster. Office of Information. U.&. Department of Labor. 200 Constitution Avenue NW.. Room N--3637. Washington. D.C. 20210. (202^23-8151). SUPPLEMENTARY INFORMATION: L Introduction - - "Urn OccBpatiooal Safety aadUealtfa Administration ("OSHA" or "the agency-") has been utilizing personal sampling devices aa an aid in workplace inspections throughout its enforcement history. The most common personal sampling devices presently in use ere the noise dosimeter and air sampling pump. The dosimeter is designed to measure sound levels in the workplace to determine compliance with the criteria established in the Secretary's occupational noise exposure standard at 29 CFR 1910.95. The device is - approximately the size of a pack of cigarettes and weighs approximately 9 -ounces. It has a small wire extending from the main unit fo the microphone which is about the size of a quarter. The main unit may be attached to the employee's belt or pocket, and the microphone to the shirt lapeL The connecting wire may be attached tightly to the employee by running it across and/or pinning, taping or clipping it to his clotMng; A pewroal air sampling device is a small--about the Btze of two packs of cigarettes-^-battery operated pump which monitors the exposure to air contaminants of the individual wearing it As with the dosimeter, the main part of the unit which is a vacuum pump, is attached to the-belt and connected by a flexible hose running along the subject's clothing to a silver-doliar-size cassette, impinger or charcoal tube, depending on the substance to be monitored. The pump most commonly used by OSHA weighs approximately 31 ounaea. As discusBed below in detail questions have recently been raised regarding the-authority of the Secretary of Labor (Secretary) to use these devices. Accordingly, this interpretation is published to make clear that the authority conferred by the regulation at 29 CFR 1903.7(b) includes the attachment of personal sampling devices to employees in order to monitor their exposures. Of course, as with all regulations that confer authority, implicit in the regulation is the employer's obligadom- consistent with his Tights under Marshall v, Bmiow's, Inc., 436 U.S. 397 (1978), to peril.Bd In take wo actios to impede the Compliance Officer's exercise ctf.the granted authority,- IL Background A Promulgation of29 CFR 1303.7. The Occupational Safety and HealStActof 1970, 29 U.S.C. 651 et seq. (the-A*) -was enacted "to assure so far as possible every workingman and woman in the Nation safe and healthful working tumlitions send To preserve our human maim " bustier to carry out these purposes, section 6(a) of the Act. 29IT.S;C 657(a), specifically authorires-the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge: (1>To enter without demand si reasonable times any factory, plant, establishment, construction site, or ether area, workplace or environment where woefe is. performed byan employee of an and (2) To inspect and investigate during regular wanting hours ami at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, appacatua, devices, equipment and materials therein, and to question privately any such- employee owner, operator, agent or employee. Tbe-Act was passed on December 29, 1970 and became effective on April 28* 1971. One week later, the Secreiary proposed, pursuant to his rulemaking authority under section 8(g)(2) of the Act, 29 U.S.C 657(g)(2). to-add a new Pert 1903 to Title 29 of the Code of Federal Regulations whose purpose was "to provide procedures and policies for the inspection, investigation # * " provisions-crf the Act." 30 FR 8376 et seq. Included among these "procedures and policies'' was a provision (proposed 1903-5(b)) authorizing Compliance Officers "to take photographs and samples, [and] employ other reasonable hrvestigatlve techniques # *" during as inspection- 36 FR 6376. 'After the close of the comment period die "Conduct of Inspections" provision (renumbered 9 1903.7) was adopted with ansae changes and made effective immediately upon its publication in the Federal Register on September 4.1971. 36 FR 17850.17851. Specifically, | 1903.7 provided in pertinent part: 1903.7 Conduct of Inspections. 4 -* * * (b) Compliance Safety and Health Officers shall have authority to take environmental samples and to take or obtain photographs related to the purpose of the inspection, employ other reasonable investigative techniques, and question privately any employer, owner, operator, agent or.employee of an establishment (See 91903.9 on trade secrets.) ' (c) In taking photographs and samples. Compliance Safety and Health Officers shall take reasonable precaotiocs to insure that such actions with flash, spark-producing, or other equipment would not be hazardous. Compliance Safety and Health Officers shall comply with all employer safety and health rules and practices at the establishment being inspected, and they shall wear and use appropriate protective clothing and equipment (d) The conduct of inspections shall be such as to preclude unreasonable disruption of the operations of the employer's establishment r4 * * t - Thus, the promulgated regulation specifically authorized OSHA GDSKphs^zce officers "to take- environmental samples" and to employ ^seasonable investigative techniques" tiering the conduct of inspections. B. The Secretary's interpretation of29 CFR 1903.7(b). Shortly after Part 1903 was adopted, the Secretary issued hisfirst OSHA Compliance Operations Manual (COM), a manual of guidelines to assure effective and uniform implementation of the Act Chapter XH1 of the COM, entitled "Industrial Hygiene and Occupational Health.'* contained instructions regarding sampling methods r CCR 000002342 4 Federal Register / Vol. 47. No. 30 / Friday, February 12. 1982 / Rules and Regulations_______6531 to be used to determine employee are the Secretary's policy and practice -exposure to hazardous airborne in monitoring employee-exposures. In contaminants. That section provided that airsamples mustrelate directly to the preamble to his standard regulating exposure to-coke oven emissions (29 the exposure of one employee or more if CFR 1910.1029). the Secretary stated the samples are to be of use in the compliance-program, and that the most satisfactory method of meeting this - _ requirement is to use of a personal sampler with the sampling head as dose as is. conveniently-possible to the generally that "[i]t is OSHA policy to monitor exposures by taking personal sample*whenever possible. Area sample* are-generally not as direct a measure of employee exposure as are personal breathing zone samples." 41 FR employee's head. COM at XHI-lZ-The 46758 (October 22.1976). Several health section also provided that areasamples / standard*require employers to. measure are- useful as an index of general employee exposure by taking personal contamination but cautioned that they usually are only remotely related to the samples; See 29 CFR 1910029(e)(l)fiii) (coke oven emissions); 29CFR - actual exposure of the employee. Id - - 1910.1025(d)(l)(iii) (lead); 29 CFR On July 1* 1974. OSHA replaced the 19I0.1018(e)(l)(iii) (arserric^The COM with the Field Operations Manual asbestos standard requires samples to (FOM). Department of Labor. OSHA be-collected from within the breathing Field Operations Manual (July 1974). zone of employee*. 29 CFR: Section N-of Chapter XIQ of.the FOM 1910.1001(f)(2)(i). Other standards state was identical to its predecessor section that breathing zone samples should be in the COM and. despite other change* taken. See 29 CFR 1910.1045 Appendix B to tiie FOM; baa been essentially (IV)(A)(T) (acrylonitrile); 29 CFR retainedin every subsequent version of 1910.1044 Appendix B (TV)(A)(1) (1.2- the manual.- including the current dibromo-3-chloropropanej. These version. Federal Register statements and On August 15.1976. the Secretary's- standard* demonstrate that the first industrial Hygiene Field Operations Secretary has always considered the use Manual (IHFOM) became effective. In of personal samplingdevices to be addition to detailing,various standard authorized andappropriate, in addition, methods which utilizepersonal mmpHng the Setxetary's longstanding practice of equipment that manual provided-that, using personal sampling device* and the before dtations-for vioiatingairquality - acknowledgement of that practice in stand&rdrf29 CFR 191011000 andr-' - various -administrative and court 1010.1001) and thenoise standard(2S decisions, confirms hisinterpretatiorr CFR 1910.95) issue. "(a]n exposure to-an that using those devices i*ineluded employee must occur. This require* the within the authorization-of $ 1903.7 to use of personal sampling techniques.'*' ' employ "reasonable investigative IHFOM at DC--1. The version, of the. techniques."' IHFOM effective June 4,1979 also D. Judicial decisions concerning- specified that personal sampling is the 1903:7 and the Secretary's authority to standard method for measuring-air' ~ use personal sampling devices. 1. The contaminants. IHFOM at X-I, and that Plum Creek decisions. The first case to breathing zone samples are required to address issues concerning the determine compliance with air quality Secretary's authority to require the use standards. Ibid at D-l.-Tbe current of personal sampling devices during version provide* that compliance with OSHA inspections was Plum Creek airqnaiity standards shall be Lumber Co. v. Hutton, 452 F. Supp. 575 determined by measuring exposures (D. Mont 1978), affd. 606 F. 2d 1283 (9th within the breathing zone and state* Clr. 1979). In that case, OSHA attempted that "OSHA defines the breathing zone on January 17,1978; to conduct an to be a sphere approximately 2 feet in inspection of Plum Creek's fiber board diameter surrounding,the-beed." IHFOM plant sawmill and plywood plant in atB-Z. Columbia Falls. Montana. The agency -Thus, there can be no doubt that since informed the. company that employees thtitidoptionof 29 CFR 1903.7. which authorized the taking of environmental sample* andthe use of reasonable investigative techniques, the agency has consistently and unambiguously interpreted that provision to allow and wouldbe requested to-wear personal sampling device* during the inspection. When the company responded that its employees would-be forbidden to wear the testing devices. OSHA left the workplace and obtained an inspection In fact encourage the use-of personal warrant from a United States sampling devices daring OSHA . Magistrate. A second inspection was inspections. ._ . . attempted on February 6,1978. but the C. The Secretary'spolicy and practice company refused to comply with the in monitoring employee-exposures- . warrant. OSHA then obtained a second Consistent wrtb the above interpretation warrant which specifically authorized "air sampling and noise level testing in a reasonable manner and to a reasonable extent." On February 13.1978. following a series of court proceedings. OSHA began the inspection of Plum Creek's facilities. At that time, the agency observed a February 10.1976 notice to employees which stated that the wearing of noise and air sampling devicas was against company policy. When OSHA requested twenty-two employees to wear the devices^sixteen refusecL Of the six who agreed, three changed-work shifts and only three actually wore the samplers. A* a result, the inspection produced inconclusive results. OSHA then asked the district courtto enjoin Plum Creek from impeding the inspection through its policy prohibiting employee cooperation in sampling. Asa result a hearing was held on the two separate questions involved: (1) The Secretary's authority to conduct sampling by attaching personal sampling devices to workers and (2) the district court's authority to order the rescission of the company's policy prohibiting employee cooperation with such sampling. The district court upheld the Secretary's authority to conduct personal sampling if the employees agreed to cooperate, 452-F. Supp. at 578. and the United'States Court of Appeals for the Ninth Circuit on appeal affirmed the district court's order and judgment 608 F. 2ri~at 1290. The district court also held that.it had no power to order rescission of the company policy. 452 F. Supp. at 577; the Ninth Circuit specifically addressed this issue on appeal and agreed with the lower court 608 F. 2d at 1289-00. Thus, the Plum Creek courts held that although a court could not order rescission of a company policy prohibiting employees from .wearing personal sampling devices absent a regulation or law specifying their use. the Secretary is authorized to conduct such personal sampling and that the use of those devices is a "reasonable" investigative technique. Z. Subsequent court decisions. One court of appeals ha* refused to follow the Ninth Circuit's holding in Plum Creek that the court is without authority to order an employer to permit its employees to wear personal sampling devices contrary to the employer's written policy, in re Establishment Inspection ofKeokuk Steel Castings. Division ofKast Metals, 638 F. 2d .42, 46 (8th Cir. 1961). affg 493 F. Supp. 842 (S.D. Iowa 1980). Several district courts also have declined to follow the Ninth Circuit's decision and have concluded that personal sampling is a reasonable CCR -> 6532 Federal Register / VoL 47, No. 30 / Friday, February 12. 1982 / Rales and Regulations techmqae which theecretary cab restored by 5LL5LC. 853. Specifically, employ. Eg- La re EttahJiehnten/ the rule iaierpreutbe term "employ Inspection of Cleveland Electric other reesonnhie investigative___ Illumination Co.. No. M80-2118 (NJD. techniques" as it is used in 29 CFR Ohio), appeal docketed. No. 81-3159 (6tfr 1903^(6) in-order to clarify a provision Cir. March 20,1981); Marshall v. believed-by the Seventh Circuit Court of RochesterShoe Tree Co., Inc.. Mis. No- Appeals to beaeshtguoua. The rule also 309 (fLIL N.Y. 1981); Marshall v. Miller makes explicit m longstanding and Tube Carp.,, 1978 CCH DSHD 5 2X212-at consistently applied agency practice and 28,059 (ELD. N.Y. 1978). proeednre wtech is used in the oourse of Howevec, onAuguat X1981. a divided rai bispecxini or sneestigatuKk Thus, this panel of the United States Court of - interprerwiao does not effect a change ,, Appeals for the Seventh r&ached- grthr--miei a diflareol result. In leMstabteehstieat right*of any. person. raJaiaftlfing Inspection ofMetro-East Mfg. Co. and fain i urn MBBigwryance this. - Lm r*> PctnhJichmon/ [pfno^nn of rule doesnot have a Century Casting Chip^ ess F- 2d 80S I'/ch on the peraora regalstedundralfae Act. Cic. 1981). The Court, ageeed that the use - For f-TTMwptn -nam-thr Secretary has of personal sampling devices is ___ ranannahlp bill Concluded tfafit 29-CFK ' 190X7 did not give employers "fair warning" of what is required or always racri personal samplers as an aadisOSHA xtspeefions. there can be - no justifiable reliance on a contrary prior practice. Furthermore, there is no prohibited because it failed to specify the use of personal sampler* a* a "reasonable investigative tedmjqne.'* 655 F. 2d at 810-12. The Court therefore affirmed two district court oudan. . limiting the terns of inspection warrants so as to preclude the use of personal prior interpretation of 1903.7(b) which wonkl preclude the use of personal samplers, and the Seventh Circuit did not adopt a contrary interpretation. Additionally, this rule does not alter the criteria used is TMbr>g the ultimate decision ra OSHA enforcement actions - sampling devices on employees, evenif the employees agreed to wear the Le. whether a company has violated the Act Acomfeagiy. notice and public devices- The Courtsuggested,thatAe~ Seuetary amcoritfae regulationto- fimiukiiniir finm i isiiij in this fiksttaafcFarthesMBere&eofls. under darifyitr meaning uni give employe*, th&"jjODdxaae'' exceptions to the fairwanting oftire type of\^vratigutiow~ fli mifJ T nir 1 ilriTTQ: rnt]nirnmnni 5- ds rassid reasonable;.Seg.icft at812. > _ H.S.C. and {d), the apenry is not OLJteasons for Ireuancft-otfas lateeputiative Rule n psirnri in this Initnnnr to provide noticeofrulemaking, public paafiespatian therein and delay in A* discussed above, the Secretary has effective date. always interpreted 1903.7 to permit " Moreover, notice and comment attachmenttif personal sampling rulenakiag in this in^anro would create devices to employees as an aid is e deity that would be contrary to the workplace inspections. Indeed, the public mtoreaL Tire use oi personal Secretary1*practice has been to-tree smnpbngdevices is necessary to the- such devices whenever possible. conduct ofeffective and efficient OSHA Howeret since a question has been health ixapediesze. Th AoHniftn in raised about the meaning of liie ten - Metro-East, soptn. renders the agency used-in the regulation and to remove ' unable- to conduct any nro-consensuai any doubt on this matter, tins -p< p.Kfiwd gmnpHngi hi tkc Seventh raterpi rtatioii is being published to Graac-under Pint* Creek, supra the make -dear that the term '`employ other geney1! ability to conduct personal reasonsWe-nrrestTgatrre iei.igUQut-3 sampling in the-Ninth Circuit ha* bees indodes attachmuai of personal severelyrestricted. Thus, is there samplers to employees to monitor their circsita. and perhaps eisravhoe. the exposures. effective ccntdacl af virtually all OSHA Since this rale is es interpretative-rale - health inspection* has been impeded gnet-a rede of ageacypiwjpiiure.and The coneeqwonl health detriment to practice, general notice of proponed waployare-that results from OSHA's rulemaking, public participation therein inability to affectively monitor their and delay in effective date are not exposure to-oraae and air contaminants justifies the immediate affective date of thiB rule. IV. Regulatory Impact Analysis In accordance with Executive Order 12291 (46 FR 13193. February 17,1981). OSHA has carefully assessed the potential impact of the interpretation of 29 CFR 1903.7(b). Based on the guidelines of the Executive Order. OSHA has concluded that the interpretation is not a "major" action which would necessitate further economic impact evaluation and the preparation a regulatory inspect annljiis Ttasnrasrinainn j* predicated on several factors, first as noted above-, it has always been-the Secretary's practice to use personal sampling devices on employees whenever possible. The Secretary's experience indicates that these devices are compact, take minimal time to attach to tne employee, and neither hinder nor obstruct the employee's performance of h-3 job. Thus, there are no substantive adverse labor productivity effects. Second, since OSHA is required to" provide the personal samplers foruae by its compliance officers, employers are not required to pay for these devices. Third, the Secretory is unaware of any twjrwi* or accidents caused by the u*u ofpersonal samplers. Therefore, these factors-strongly indicate that this amendment wcrald not increase costs toempkryrrs and would have little effect on the-economy. Finally; OSHA finds that the provisions of the Regulatory' Flexibility Act of 1980, 5 U.S.C. 601 ef seq., which require an assessment of the impact of certain regulatory actions upon small entities, are inapplicable to this interpretative and procedural rule. V. Authority This-document was prepared under the direction sf Thome G. Auchter. Assistant-Secretary ofLabor for Occupational Safety and Health. 200 Constitution Avenue NW.. Washington, D.C. 20210. This interpretation is issued pursuant to racfirui 8(gj{2] of theOccupational Safety and Health Act of 197a 29 U.S2L. 657(g)(2) and Secretary of. Labor* Order Na 8->-7& (41 FR 25059) in implementation of the general inspection and investigation authority conferred by section 8(a) of the Act, 29 U.S.C. 657(a). CCR 000002344 Federal Register / VoL 47^ No. 30 / Friday, February 12. 198Z / Rules, and Regulations PART 1903--INSPECTIONS; * CITATIONS AND PROPOSED PENALTIES in acoordnce with above. .29 CER 1903-7 is hereby emended by adding the following interpreiativeoete al the aid of J 190327(b): . TB0X7 Conduct of ioapeedoee. + * ,e (br -- . tnterpntartive Note: As used herein, the term "empioy etherreasonable investigative lednnpnT sniuilui, but is nut faritcd to. the use ofdppvces to bmrA employee expuauies end the attachment of personal sampling.equipment such as doswneturs. puaiya. berigea and othereiwtiar deneet *e employees in eiderVo nwanre their ^ eepoames. (29 U.S.C. 657(a). 657(g): STTS.CL553) Signed at YrTsinutnu February 1962. 'Hiin* C.'AuchJac. ths-4Jhday af. 'Z-' ' 'K AamstataSmaebuy ofitdtor- , inoKju*rui-n4ce*>a mluwc cme. --s as h ir ' 6533 t CCR 0000023^5