Document jo7q5kN554MzjEN39ngLR2wk

PLAINTIFF'S EXHIBIT August 29,1989 THE DOW CHEMICAL COMPANY MIOLAND. MICHIGAN 48674 I. M. Arnold, Sarnia F. D. Axe, Pittsburg D. Bosatra, Horgen J. A. Castledine, Altona S. G. Cole, Plaquemine R. Cordellini, Brazil J. Dawson, Greenville R. D. Egedahl, Sarnia G. Fonseca, Brazil }. M. Lanham, 1803 Building J. E. LeBeau, 1803 Building W. E. Ledford, Plaquemine G. L. Meier, Strongsville S. K. Norwood, 1803 Building J. W. Oldner, 2020 WHDC L. W. Rampy, 1803 Building A. W. Schaffer, 1803 Building K. C. Wong, Fort Saskatchewan I. H. Staff, 1803 Building UPDATE OF OCCUPATIONAL HEALTH PLANT PROGRAM REVIEW, TEXAS OPERATIONS Tracy Parsons at Texas Operations has furnished me the attached copy of the updated "Occupational Health Plant Program Review" document used in Texas Operations. This document is used in Texas Operations as part of the consolidated plant audit program. All functions that perform plant audits, including the technology centers, do their auditing during a designated week; about every two years under this approach. The occupational health plant program is a part of this review process and the updated format has attempted to make the responsibilities and presentation formats more consistent. The attached document is being reviewed and compared with the safety and environmental plant program reviews to eliminate duplication. The Occupational Health Plant Program Review document may be useful as you look at opportunities to enhance the review program in your locations. G. W. Engdahl Industrial Hygiene 1803 Building (517) 636-3205 dig Attachment co CD O'! r-o ^ESTriiCTED fQa USE withi ;w C^EMiCAi. COMANY OCCUPATIONAL HEALTH PLANT PROGRAM REVIEW TEXAS OPERATIONS DOW CHEMICAL USA PLANT________________ BUILDING_____________ PLANNED REVIEW DATE OCCUPATIONAL HEALTH AUDIT TEAM: INDUSTRIAL HYGIENE SUPERVISOR. INDUSTRIAL HYGIENIST__________ SUPERINTENDENT_________________ IH PLANT CONTACT_______________ SAFETY DIRECTOR________________ PHYSICIAN_______________________ OEH NURSE_______________________ TECH CENTER 8/89 r 8 6'JLfcU0 Si TABLE OF CONTENTS STHfi 37 r>29 PAGE - INTRODUCTION.................................................................................................................. 3 FORMAT............................................................................................................................... 3 AGENDA FOR PRESENTATIONS TO AUDIT TEAM......................................................... 6 DOCUMENTS FOR REVIEW BY THE AUDIT TEAM......................................................... 7 QUESTIONNAIRE PREVIOUS PROGRAM REVIEW..................................................................................... 10 HAZARD COMMUNICATION............................................................................................ II INDUSTRIAL HYGIENE SURVEILLANCE.................................................................... 15 RESPIRATORY PROTECTION....................................................................................... 18 RADIATION SAFETY.................................................................................................... 21 HEARING CONSERVATION............................................................................................ 23 VENTILATION............................................................................................................... 26 PERSONAL PROTECTIVE EQUIPMENT........................................................................ 28 HEAT STRESS............................................................................................................... 32 ERGONOMICS................................................................................................................. 32 ASBESTOS...................................................................................................................... 36 FORMALDEHYDE............................................................................................................. 39 ACRYLONITRILE........................................................................................................... 41 ETHYLENE OXIDE......................................................................................................... 43 VINYL CHLORIDE......................................................................................................... 45 BENZENE................................................................... 47 APPENDIX A: TYPICAL QUESTIONS FOR PLANT WALK-THROUGH Page 3 INTRODUCTION Your active participation in this plant program evaluation is vitally necessary. The objective of the review is to assure that employee health is being adequately protected in your plant/area. This review will focus on the efforts by your facility to anticipate, recognize, evaluate and control occupational health hazards. This will be accomplished by evaluating all areas which are affected or impacted by occupational health considerations, Texas Operations programs and safety standards, and government regulations. FORMAT There are three phases for the plant program evaluation. 1. Preparation and Questionnaire Distribution The plant Industrial Hygiene contact and the Industrial Hygienist are responsible for reviewing the plant and Industrial Hygiene original data files and completing the attached questionnaire. The questionnaire is a worksheet to prepare for the audit and does not need to be used at the time of the audit except as reference material. The completed questionnaire should be reviewed with the Plant Superintendent. The completed questionnaire should be mailed approximately 7 working days in advance to the Occupational Health Audit Team: Industrial Hygienist Supervisor (chairperson), Superintendent, Area Safety Director, Industrial Hygienist, Industrial Hygiene Contact, Physician, Nurse, Tech Center, and Any other plant personnel involved with the audit. The questionnaire is used to identify program strengths and weaknesses for phase 2 of the review. 2. Formal Program Review At the time of the formal audit (usually the Wednesday of AuditFest), the plant Industrial Hygiene Contact and Industrial Hygienist will present a synopsis of the strengths and weaknesses from each program area e.g. respiratory protection, hazard communication, etc. The length and detail of each presentation should be based on the particular subject but generally should be no longer than 10 minutes. y itu u is Page 4 2. Formal Program Review (Cont'd) The plant industrial hygiene contact and the Industrial Hygienist are expected to lead the formal review of the program. The Agenda is presented in the following pages. At the end of each main section of the questionnaire is an example of the pertinent points to be considered for the formal presentation to the audit team. A walk-through of the facility will also be conducted. During the walk-through, several questions regarding the Industrial Hygiene program may be asked of plant personnel. Typical questions are presented in Appendix A of this document. The walk-through team will review all areas of the plant related to occupational health concerns. The following areas should be reviewed as part of the walk-through: IH Manual location employee bulletin boards control room lunch room 1aboratory process areas plant labeling unloading/loading stations drumming stations bagging/boxing stations process sample points noise areas greater than 90 dBA radioactive sources OSHA regulated areas other potential exposure locations or job tasks shop/maintenance areas welding areas solvent handling protective equipment employee change rooms protective equipment storage areas protective equipment decontamination areas respirator storage areas respirator cleaning stations breathing air sources (bottles or compressors) Page 5 3. Documentation Follow-Up Within seven working days after completion of the review, the Industrial Hygienist will summarize the evaluation findings in a letter report to the Plant Superintendent. Recommendations for program improvements will be included in the report. Within one month after receipt of the summary report, the Plant Superintendent should send an implementation plan to the Industrial Hygienist. The plan should address the recommendations identified in the summary report. Long terra implementation activities (i.e. greater than six months to complete) will be included in the Industrial Hygiene Protocol where appropriate. It is the Plant Superintendent's responsibility to ensure that all recommendations are completed. ST0281050 negative-pressure enclosure. Subsequently/ in a different case Judge Barkley came to precisely the opposite conclusion. Reviewing the express terms of the standard, the standard's purpose, and the Secretary's "graduated response" strategy. Judge Barkley concluded that the Secretary must prove that it is at least reasonable to expect overexposures. Under the facts of that case, he found that the Secretary had proven that overexposures were reasonable to expect. Expert Environmental Control. Inc. ("EEC"), 14 BNA OSHC 1666 (No. 88-1956, May 10, 1990). The Commission should endorse Judge Barkley's resolution of the issue. By its own terms, the construction industry standard for asbestos limits the application of the negative-pressure enclosure requirement, paragraph (e)(6)(i), to those asbestos removal, demolition, and renovation operations for which airborne concentrations exceed or can reasonably be expected to exceed the PEL. Paragraph (b) defines "regulated area" to include a negative-pressure enclosure and states that a regulated area, whether of a traditional nature or a negative-pressure enclosure, is an area established "to demarcate areas where airborne concentrations of asbestos . . . exceed or can reasonably be expected to exceed the [PEL]". Similarly, paragraph (e)(1), entitled "General", repeats that limitation on the scope of the "regulated area" requirement. If the Secretary believes that the negative-pressure enclosure requirement should say something it does not now say. 4 IS0I8201S she should amend the standard through rulemaking. She has just proposed to do exactly that. The Commission should not interfere in this belated effort to effect a policy change through the appropriate mechanism, rulemaking, rather than through interpretation in an enforcement proceeding. The Secretary's interpretation in this case is not entitled to deference. It is the Commission's interpretation, not that of the Secretary, to which deference is due. Even if the Secretary's interpretation of OSHA regulations were generally entitled to deference, however, deference is not appropriate in this case. Here the Secretary's interpretation is inconsistent with the text of the standard and with prior authoritative interpretations. It would require use of a negative-pressure enclosure even in the absence of significant risk. The interpretation is unsupported by reasoning, and it was not thoroughly considered. Construing the negative-pressure enclosure requirement in accordance with the language of the standard would be consistent with the purpose of the requirement, to protect employees from overexposure to asbestos. It is perfectly consistent with that purpose to limit the application of the requirement to situations where overexposure is at least reasonably likely. &B.CTPEgX 1 The Standard Expressly Limits the Negative-Pressure Enclosure Requirement to Situations in Which Airborne Concentrations .Above the PEL Are at Least Reasonably Likely. 5 ST028I052 A. Overview of the Heaative-Pressure Enclosure Requirement Like employers, the Secretary is bound by the terms of the asbestos standard for construction as it is written. Those terms are unambiguous, because in two separate places they limit the negative-pressure enclosure requirement to situations in which it is at least reasonably likely that airborne concentrations above the PEL will occur. In his decision. Judge Salyers deferred to the Secretary's interpretation as reasonable without rigorously considering whether in fact it is reasonable, The Judge noted the employer's arguments based upon the language of the standard, but relied upon the Secretary's quotations from the preamble and the compliance directive. In sharp contrast. Judge Barkley scrutinized the text of the standard, quoting key provisions at length. Then he stated: I find that the requirement of a negative-pressure enclosure is not applicable until the Secretary establishes evidence of actual overexposure, or th$t overexposure can reasonably be expected from the cited activity. EEC, slip op. at 7. In another case involving the appropriate interpretation of a regulated area provision, the Commission has stated the criteria to be applied in resolving questions of regulatory construction: In construing the standard, we are mindful of several principles. We must look first to the language of the standard. Sfifi. Bunae Corp., 86 OSAHRC __ /__ , 12 BNA OSHC 1785, 1789, 1986 CCH OSHD 1(27,565 p. 35,804 (No. 77-1622, 1986), and cases cited. Second, although legislative history and other extrinsic aids to interpretation may be 6 ST0281053 used to determine the intent of the drafter, standards should be construed in a way that does not deprive employers of fair notice of the requirements of the law. See id.. 12 BNA OSHC at 1790-91, 1986 CCH OSHD at p. 35,806, and cases cited. See also Usery v. Kennecott Cooper Corn.. 577 F.2d 1113, 1119 [6 OSHC 1197, 1200] (10th Cir. 1977); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161-62 (6 OSHC 1440, 1443-44] (3d Cir. 1978); Diamond Roofing Co. v. OSHRC. 528 F.2d 645, 650 [4 OSHC 1001, 1005] (5th Cir. 1976); Lisbon Contractors, Inc.. 84 OSAHRC 19/A2, 11 BNA OSHC 1971, 1973-74, 1984 CCH OSHD *926,924, p. 34,500 (No. 80-97, 1984). CF&l Steel Coro.. 12 BNA OSHC 2067, 2073 (No. 79-4786, 1986), affirmed, sub nom. Dole, v.. QSHRCL (CF&L.Steel Corp.), 891 F.2d 1495, 14 BNA OSHC 1388 (10th Cir. 1989), petition for cert, granted. 58 U.S.L.W. 3811 (U.S. June 25, 1990). Both criteria must be applied to resolving this issue, as Judge Barkley found. EEC. slip op. at 9-10. As amended in 1988, the construction industry asbestos standard establishes two permissible exposure limits: an 8-hour time-weighted average ("TWA") of 0.2 fibers per cubic centimeter of air ("f/cc"), and an excursion limit of 1 f/cc averaged over 30 minutes. 29 C.F.R. 1926.58(c). The action level is 0.1 f/cc (8-hour TWA). Id- 1926.58(b). Another provision requires establishment of regulated areas "where airborne concentrations of asbestos . . . exceed or can reasonably be expected to exceed the TWA and/or excursion limit prescribed by paragraph (c) of this section." Id. 1926.58(e)(1). A species of regulated area, the negative-pressure enclosure requirement appears in paragraph (e)(6)(i). It has no counterpart in the general industry standard for asbestos, 29 C.F.R. 1910.1001. 7 ST0281054 Paragraph (e)(6)(i) provides: Wherever feasible, the employer shall establish negative-pressure enclosures before commencing removal, demolition, and renovation operations. A negative-pressure enclosure is essentially a large bag built over an asbestos abatement work area. It is typically constructed of 6-mil polyethylene plastic sheet, sealing tape, air locks, and negative-pressure systems. See 29 C.F.R. 1926.58, Appendix F. OSHA provides the following explanation: The negative pressure enclosures contemplated by the 1986 standard are area enclosures in which abatement and renovation employees work. The enclosures are required to be placed under negative pressure (a partial vacuum) so that asbestos fibers remain inside even if a leak develops in the enclosure shell. OSHA believes that negative pressure enclosures reduce employee risk primarily by reducing leakage and containing the asbestos material being disturbed. Thus areas outside the work area are not contaminated and bystander employees are protected from exposure. 54 Fed. Reg. 52024, 52026 (Dec. 20, 1989). Where the negative- pressure enclosure requirement is triggered, employers must also meet special requirements for supervision by a competent person, paragraph (e)(6)(ii); monitoring, paragraph (f)(3); protective clothing, paragraph (i)(4); and use of hygiene facilities and practices, paragraph (j)(2). There is an exemption from the negative-pressure enclosure requirement for small-scale, short-duration operations. 29 C.F.R. 1926.58(e)(6)(iv) and Appendix G. OSHA has proposed to amend the negative-pressure enclosure requirement to impose an explicit provision that the requirement is triggered not by the actual or reasonably likely 8 ST028I05S exposure level, but by the nature of the work involved. The proposal would also cut the 8-hour TWA PEL in half, from 0.2 f/cc to 0.1 f/cc. 55 Fed. Reg. 29712 (July 20, 1990). B. The Text of the Standard It is undisputed that a negative-pressure enclosure is a kind of regulated area. The negative-pressure enclosure requirement appears in paragraph (e), captioned "Regulated areas". Paragraph (b) defines the term "regulated area" as follows: "Regulated area" means an area established by the employer to demarcate areas where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals exceed or can reasonably be expected to exceed the permissible exposure limit. The regulated area may take the form of (1) a temporary enclosure, as required by paragraph (e)(6) of this section, or (2) an area demarcated in any manner that minimizes the number of employees exposed to asbestos, tremolite, anthophyllite, or actinolite. (Emphasis added.) Thus, this definition explicitly couples the negative-pressure enclosure requirement to actual excursions beyond the PELs or the reasonable likelihood of such excursions. Further confirmation of this coupling appears in paragraph (e)(1), captioned "General". It provides: The employer shall establish a regulated area in work areas where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals exceed or can reasonably be expected to exceed the permissible exposure limit prescribed in paragraph (c) of this section. (Emphasis added.) Since paragraph (b) classifies a negative- pressure enclosure as a regulated area, and since the requirement for negative-pressure enclosures appears in 9 ST028I0S6 paragraph (e), captioned "Regulated areas", the negative- pressure enclosure requirement is subject to the provisions of this "general" limitation on the requirement to establish regulated areas. Where, as here, the language of a standard or statute is clear, that language controls, and no resort may be had to legislative or regulatory history or agency interpretations to construe the requirement contrary to its plain meaning. Sflfi, e.g., UAW v General Dynamics Land Systems Piv., 815 F.2d 1570, 1575, 13 BNA OSHC 1201, 1205 (D.C. Cir.), cert, denied, 484 U.S. 976 (1987); Honeywell Inc, v. United States. 661 F.2d 182, 186 (Ct. Cl. 1981) ("legislative history is, in any event, unnecessary when the language and purpose of the regulation is plain"). In his opinion below. Judge Salyers did not carefully consider the language of the provisions set forth above. He quoted a portion of the definition of "regulated area", but made no comment on it, and he made no reference to paragraph (e)(1). AACC. slip op. at 7. In contrast. Judge Barkley quoted the complete text of the paragraph (b) definition, paragraph (e)(1), and paragraph (e)(6)(i). He then concluded: It seems clear to this Judge the standard requires a regulated area only if there is a showing of actual overexposure or that overexposure can be reasonably expected. The requirement of a regulated area is not triggered simply by engaging in asbestos removal. To read the standard as the Secretary suggests would require an employer to construct a negative-pressure area any time he was engaged in asbestos removal without consideration to whether there was a reasonable expectation of a hazard. I find this interpretation to be inconsistent with the language of the standard. If the employer is to be required to establish a negative-pressure area with the 10 ST028I057 attendant requirements of respirators, hygiene facilities, employee training and medical surveillance, there must be at a minimum a reasonable expectation of overexposure. EEC, slip op. at 8-9. C. Employers Have a Right to Have the Standard Enforced as It Is Written.__ _ To depart from the terms of the standard as written, as the Secretary advocates, would be to deprive employers of notice of the conduct required of them. With penal sanctions imposed for violations of the standard, this would be an intolerable situation. Employers could reasonably determine that airborne concentrations would not be reasonably likely to exceed the PEL during particular removal, demolition, or renovation operations. In the preamble to the construction industry asbestos standard, OSHA found that in many instances employers may use glove bags, wet methods, and other techniques to keep airborne concentrations of asbestos below the action level. 51 Fed. Reg. 22612, 22706 (June 20, 1986). It even predicted that: most employers engaged in maintenance and renovation projects in environments that do not lend themselves to the construction of negative-pressure enclosures will elect to use glove bags, wet methods, and other control measures to ensure that their employees' exposures to asbestos remain below the standard's action level. Id. at 22711. In its recent notice of proposed rulemaking on the negative-pressure enclosure requirement, OSHA published estimates of current exposure levels during various asbestos removal, demolition, and renovation operations which showed none of them more than 50% of the current PEL. Most were one 11 ST0281058 or two orders of magnitude lower than the PEL. 55 Fed. Reg. 29712, 29735 (July 20, 1990). Indeed, the facts of this case, where monitored levels were two orders of magnitude below the PEL, show that in some operations it is reasonable to conclude that exposures are not reasonably likely to exceed the PEL. AACC. slip op. at 7. Thus, employers engaged in removal, demolition, or renovation operations who use these methods so as to eliminate any reasonable likelihood of airborne concentrations above the PELS may rely on the language of the standard to conclude that the negative-pressure enclosure requirement does not apply. Under OSHA's interpretation, however, they would be in violation of the standard, notwithstanding that reliance. Such a situation deprives employers of their due process rights to notice. As Judge Barkley wrote: While this may not be the result the Secretary intended, it is well settled that "regulations cannot be construed to mean what an agency intended but did not adequately express." L.R. Wilkinson & Sons. Inc.:v. Donovan. 685 F.2d 664, 675 (D.C. Cir. 1982). To hold otherwise would be to deny the employer fair warning of the conduct required. Diamond Roofing v. Occupational Safety and Health Review Commission. 528 F.2d 645 0 649 (5th Cir. 1976). EEC, slip op. at 9-10. Dravo Coro, v. QSHRC. 613 F.2d 1227, 1231-32, 7 BNA OSHC 2089, 2092 (3d Cir. 1980) ("Because we deal with a penal sanction, we begin with a recognition that the coverage of an agency regulation should be no broader than what is encompassed within its terms."); Userv v. Kennecott Cooper Coro., 577 F.2d 1113, 1119, 6 BNA OSHC 1197, 1200 (10th Cir. 1977) (an employer is "not required to assume the burden of 12 guessing what the Secretary intended plain and unambiguous words employed in the safety regulation to mean. This is especially true when violation of a regulation subjects one to criminal or civil sanctions. A regulation cannot be construed to mean what an agency intended but did not adequately express."); Brennan v. OSHRC (Ron M. Fieaen. 513 F.2d 713, 716, 3 BNA OSHC 1001, 1003 (8th Cir. 1975) ("Where, as here, the interpretation derives little support from the language of the regulation, it would be fundamentally unfair to impose on the employer civil penalties for its violation. To do so would subject him to liability without warning that his conduct is prohibited."); Brennan v. OSHRC (Pearl Steel ST028I059 Erection Co.. 488 F.2d 337, 339, 1 BNA OSHC 1429, 1430 (5th Cir. 1973) ("The fault lies in the wording of the regulation."). The Secretary may argue that OSHA regulations are to be liberally construed in order to effectuate better the remedial purpose of the Occupational Safety and Health Act of 1970 ("Act"). But that remedial purpose "does not give the Commission license to ignore the standard's plain meaning." Lisbon Contractors. Inc.. 11 BNA OSHC 1971, 1973 (No. 80-97, 1984). See Marshall v. Anaconda Co.. 596 F.2d 370, 377 n.6, 7 BNA OSHC 1382, 1387 n.6 (9th Cir. 1979) ("Nor can mere citation to OSHA's remedial purpose . . . substitute for analysis of the problem at hand."). If in fact the asbestos standard does not say what OSHA intended it to say, then rather than attempt to amend it through interpretation, the Secretary should do so through 13 09018201S notice-and-comment rulemaking. See Fluor .Constructors,*--IHtL._Y-i OSHRC. 861 F. 2d 936, 939, 13 BNA OSHC 1956, 1957 (D.C. Cir. 1988) ("An agency is bound by the regulations it promulgates and may not attempt to circumvent the amendment process through changes in interpretation unsupported by the language of the regulation."); Bethlehem Steel Corp. v. OSHRC. 573 F.2d 157, 161-62, 6 BNA OSHC 1440, 1443 (3d Cir. 1978) ("The responsibility to promulgate clear and unambiguous standards is upon the Secretary. The test is not what he might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and the obligation to amend."). Ironically, OSHA has just proposed to amend paragraphs (e)(1) and (e)(6) of the construction industry asbestos standard to impose an explicit requirement to use negative-pressure enclosures in certain operations, regardless of the exposure levels. 55 Fed. Reg. 29712 (July 20, 1990). Although OSHA claims that the proposed amendments are simply "clarifying revisions", id. at 29715, it is clear that new requirements would be imposed. For example, whereas currently paragraph (e)(6) applies only to removal, demolition, and renovation operations, under the proposal the paragraph would also apply to maintenance activities. Inexplicably, OSHA does not propose to amend the definition of "regulated area" in paragraph (b) to delete the current linkage between negative-pressure enclosures and actual or reasonably likely airborne concentrations above the PEL. 14 ST02810 6 1 Although years late, a rulemaking is particularly appropriate since OSHA has never previously published a proposed negative-pressure enclosure requirement for public comment. The proposed rule which preceded the construction industry asbestos standard did not even propose a separate standard for construction. Instead, it proposed only a general industry standard similar to the then-existing standard but for the PEL and a few other provisions, and solicited comments on the advisability of a separate construction industry standard and what provisions such a standard should have. 49 Fed. Reg. 14116 (Apr. 10, 1984). Thus, to date OSHA has never had the benefit of public comment on the appropriate scope of a negative-pressure enclosure requirement. At a time when OSHA is engaged in rulemaking to revise the negative-pressure enclosure requirement to read as it argues here that it should be read, it would be wholly inappropriate for the Commission, in effect, to declare that action unnecessary because employers can be required to divine OSHA's current intent from the contrary words of the existing standard. II. The Secretary's Interpretation Is Wot Entitled to Deference. Judge Salyers ruled as he did below because of the deference that he believed was required to be accorded to the Secretary's interpretation. AACC. slip op. at 10. But deference to the Secretary's interpretation was not appropriate. 15 ST028I062 A. Deference Is Due to Interpretations of the Commission, Hot to interpretations of the Secretary--------------------------- - It is the Commission's interpretations of OSHA standards, not those of the Secretary, which are are entitled to deference. That position is explained in Dole v. OSHRC (CE&I Steel Com. 1 . 891 F.3d 1495, 14 BNA OSHC 1388 (10th Cir. 1989), petition for cert, granted, 58 U.S.L.W. 3811 (U.S. June 25, 1990). In that case the Tenth Circuit deferred to the Commission's interpretation of another regulated area provision and refused to defer to the Secretary's contrary interpretation, following the majority rule. The Supreme Court has agreed to resolve a split in the circuits on this issue by reviewing the Tenth Circuit's decision. Unless and until the Supreme Court reverses that decision, the Commission should follow the majority rule and decline to accord the Secretary's interpretation any deference. Under that majority rule, it was inappropriate for Judge Salyers to have accorded the Secretary's interpretation deference. B. Alternatively, the Secretary's Interpretation Is Not Entitled to Deference Because It Is Unreasonable and Inconsistently Applied. Even if the Supreme Court were to reverse the Tenth Circuit's decision in CF&I, however, deference to the Secretary's interpretation would not be appropriate here. Deference to any agency's interpretation of its regulations is appropriate only if the interpretation is reasonable and consistently applied. Sfifi northern Indiana Public Service Co. 16 ST028I063 V. Porter County Chapter of the Izaak Walton League Pf. .America, Inc.. 423 U.S. 12, 15 (1975). Deference does not mean that an agency has the authority to rewrite its regulations through interpretations; on the contrary, the degree of deference is measured by the extent that the agency's interpretation does not strain the plain meaning of the words, or imply language that does not exist. Bonessa v. U.S. Steel.Corp_.., 884 F.2d 726, 732 (3d Cir. 1989); Bethlehem Steel Corn, v. QSHRC. 573 F.2d 157, 161, 6 BNA OSHC 1440, 1443 (3d Cir. 1978). It is also measured by the consistency of the agency's interpretation over time. Ehlert v. United States, 402 U.S. 99, 105 (1971). Here the Secretary's interpretation fails on each of these grounds. 1. The Secretary's Interpretation Is Inconsistent tfi.th.tlie Standard.---------------------------------------------------- The Secretary has made no creditable attempt to reconcile her interpretation with the language of the standard, as discussed above. That alone is enough to ^rove that her interpretation is unreasonable. See. e.a.. Fluor Constructors. Inc, v. QSHRC. 861 F.2d 936, 939, 13 BNA OSHC 1956, 1957 (6th Cir. 1988) ("An agency's interpretation of a regulation is valid, however, only if that interpretation complies with the actual language of the regulation."); Union of Concerned Scientists v. NRC. 711 F.2d 370, 381 (D.C. Cir. 1983) ("When an agency's interpretation of its own rules flies in the face of the language of the rules themselves, it is owed no deference."); Miller v. Bond, 641 F.2d 997, 1002 (D.C. Cir. 1981). 17 190I8Z01S This case may be usefully contrasted with the situation in GAF Com, v. OSHRC. 561 F.2d 913, 916, 5 BNA OSHC 1555, 1556 (D.C. Cir. 1977). There the court supported the Secretary's interpretation that the medical surveillance provision of the general industry asbestos standard was not triggered by exposures above the PEL. The language of the standard contained no such quantitative trigger, and the court refused to imply one. Here, however, the situation is far different. Instead of silence about a quantitative trigger, the standard has not one but two explicit quantitative triggers for the negative-pressure enclosure requirement: paragraph (b)*s definition of the term "regulated area", and paragraph (e)(1). Both tie the scope of the requirement to airborne concentrations above the PEL, or to the reasonable likelihood of such concentrations. 2. The Secretary's Interpretation Directly Contradicts Earlier..Authoritative Interpretations. The deference due an agency's interpretation of its own regulations is dependent upon the consistency or inconsistency in its interpretations of those regulations over time. See. e.,3*/ United States v. Paddack. 825 F.2d 504, 512 (D.C. Cir. 1987) ("We do not normally defer to a vacillating agency position"); National Fuel Gas Supply Corp. v. FERC. 811 F.2d 1563, 1571 (D.C. Cir. 1987) ("If the agency's interpretation of a contract has vacillated, deference might give the agency license to act arbitrarily by making inconsistent decisions without justification."); Kent Nowlin Construction Co. v. 18 ST0281065 OSHRC. 593 F.2d 368, 371, 7 BNA OSHC 1105, 1107 (10th Cir. 1979) ("The petitioner should not be penalized for deviation from a standard the interpretation of which . . . cannot be agreed upon by those who are responsible for compelling compliance with it and with oversight of the procedures for its enforcement."). Here OSHA has repeatedly espoused the precise opposite of the interpretation now advocated by the Secretary. Thus, no deference is due to the Secretary's current interpretation. . If anything, deference is due to OSHA's contemporaneous interpretation. See United Transportation Union v. Dole. 797 F.2d 823, 829 (10th Cir. 1986) ("Interpretations published by the [agency] at the time the regulation was promulgated are entitled to greater weight than the interpretations the agency now espouses."). As recently as 1988, OSHA formally interpreted the negative-pressure enclosure requirement to mean precisely the opposite of what the Secretary now asserts that it means. In a Federal Register notice signed by Assistant Secretary Pendergrass, who also signed the 1986 asbestos standard, OSHA stated: Paragraph (e) of the construction standard now requires employers to establish regulated areas whenever the PELs are exceeded. Regulated areas required by the standard can take two forms. For most employers who perform asbestos removal, demolition, or renovation operations (other than small-scale short- duration), the regulated area must consist of a negative-pressure enclosure that will confine the asbestos fibers being generated to the area within the enclosure and will thus protect other employees and bystanders on the site from exposure to excessive levels of 19 9 9 0 18Z01S asbestos. For small-scale, short-duration removal, demolition and renovation operations and for asbestos work operations that do not involve asbestos removal, demolition, or renovation, the employer may simply demarcate the regulated area by posted signs that limit the number of employees entering the area. Regulated areas do not have to be established where engineering and work practice controls reduce employee exposures to asbestos to levels below the standard's TWA and excursion permissible limits. 53 Fed. Reg. 35610, 35622-23 (Sept. 14, 1988). Furthermore, OSHA's contemporaneous interpretations of the negative-pressure enclosure requirement, interpretations by the very individuals responsible for its promulgation, were directly contrary to the Secretary's current interpretation. Assistant Secretary of Labor Pendergrass, who signed the asbestos standard on June 12, 1986 (51 Fed. Reg. at 22733), just six months later expressly interpreted the negative-pressure enclosure requirement to be triggered by the reasonable likelihood of exposures above the PEL: The intent of 1926.58(e) is to require a negative pressure enclosure only where a regulated area is required. Regulated areas are established only where asbestos concentrations exceed the permissible exposure limit . . . . Depending on the nature and extent of exposure, the requirement for a negative pressure enclosure may not be applicable in your case. Letter of October 30, 1986 from John A. Pendergrass to Thomas R. Kupfer (Attachment 1). Similarly, Charles Adkins, then OSHA's Acting Director of Health Standards Programs, wrote about the same time: The intent of 1926.58(e) is to require a negative pressure 20 ST0281067 enclosure and "competent person" only where a regulated area is established .... Regulated areas are established only where concentrations exceed the PEL. Your second issue dealt with the type of operations that could qualify for exemption from the requirements of paragraph (e)(6). It should be noted that any operation can qualify for exemption provided airborne levels of asbestos are kept at or below 0.2 f/cc. This can best be accomplished by means of engineering controls used in conjunction with appropriate work practices since these two methods, when used either singly or in combination can be employed effectively to reduce asbestos exposures to below 0.2 f/cc. Letter of Oct. 10, 1986 from Charles A. Adkins to Daniel Hoffman, National Steel Corporation (Attachment 2). In his decision below, Judge Salyers relied heavily upon OSHA's interpretation expressed in the compliance directive for the standard, OSHA Instruction CPL 2-2.40 (Sept. 1, 1987). AACC. slip op. at 8-9. As an initial matter, that directive cannot be said to be controlling. Amici are aware of no evidence in the record that it reflects the intent of the drafters of the standard. It was issued over a year after the standard was published, June 20, 1986. There is no evidence in the record of which amici are aware that the drafters of the directive were also the drafters of the standard or that they consulted with the standard's drafters. See CFRI Steel Coro.. supra. 12 BNA OSHC at 2074. More importantly, the directive supports the precise opposite of the Secretary's interpretation. Appendix D of the directive is the only portion which explicitly classifies provisions of the standard as triggered by airborne concentrations above the PEL, triggered by airborne concentrations above the action level, or triggered regardless 21 ST0281068 of level of airborne concentrations. It classifies all of paragraph (e) among the requirements triggered by the PEL. The only requirements identified as being triggered regardless of level are paragraph (k) (labels) and (1) (housekeeping). (Paragraph (k)(3) is classified as being triggered by the action level.) Thus, the directive itself is unambiguous in limiting the negative-pressure enclosure requirement, along with almost all of the rest of the standard, to situations where the PEL is exceeded or is reasonably likely to be exceeded. The provisions of the directive quoted by Judge Salyers do not support the Secretary's interpretation either. They acknowledge that paragraph (e) requires two distinctly different types of regulated areas to be established, but it does not explicitly state that paragraph (e)(1), with its linkage to potential exposure above the PEL, is inapplicable to paragraph (e)(6). This is not to say that from time to time OSHA officials have not also expressed the Secretary's current interpretation in informal statements; they have. Among others, the current rulemaking proposal asserts that the proposed amendments to paragraphs (e)(1) and (e)(6) are simply clarifications. The Commission should give no weight to that assertion. See Collier-Kevworth Co.. 13 BNA OSHC 1208, 1222-23 (No. 80-2048, 1987). 22 ST028I069 It should be obvious that OSHA's interpretations of paragraph (e)(6)(i) shortly after issuing the standard and its formal interpretations since then have construed the standard contrary to how the Secretary now argues that it should be read. In light of this vacillation, the Secretary's interpretation is entitled to no deference. 3. The Secretary's Interpretation Would Apply the Requirement in the Absence of Significant RiaX^ The Secretary may regulate exposure to toxic materials, such as asbestos, only where a significant risk is present and can be eliminated or lessened by a change in practices. Industrial Union Dep't, AFL-CIO v. American Petroleum Institute. 448 U.S. 607, 8 BNA OSHC 1586 (1980). But the Secretary interprets paragraph (e)(6)(i) to apply even where there is no significant risk. Accordingly, her interpretation is unreasonable. Under the Secretary's interpretation, the complete absence of asbestos fibers would nevertheless trigger the full negative-pressure enclosure requirement if removal, demolition, or renovation operations were involved. Yet clearly in that situation no significant risk would exist, nor would use of an enclosure lessen any risk. This interpretation thus fails to meet the signficant risk requirement. If endorsed by the Commision, it would make paragraph (e)(6)(i) invalid. Such an interpretation is to be avoided. 23 STO28IO70 This dilemma is not averted by citing OSHA's conclusion that signficant risk continues to exist at airborne concentrations below the PEL. While significant risk may exist at some levels below the PEL, there is some concentration below which it does not exist. Yet the Secretary's interpretation would apply paragraph (e)(6)(i) even where it does not exist. OSHA effectively concedes this point in the current rulemaking, where it discusses its finding that signficant risk exists even below the PEL: Most importantly, as noted above and by the Court, significant risk exists at levels below the PEL. Therefore requiring that the spread of asbestos be contained where it is likely, even if not certain, that the PEL would be exceeded is both appropriate and necessary to reduce still significant risk to bystander employees. 55 Fed. Reg. 29712, 29716 (July 20, 1990). That conclusion is consistent with the interpretation that paragraph (e)(6)(i) is currently triggered by the reasonable likelihood of exposure above the PEL. Significantly, OSHA did not state that to address residual significant risk below the PEL it was necessary to impose the negative-pressure requirement even where exposure above the PEL is not reasonably likely. This situation differs from the medical surveillance provision at issue in GAF Corp. v. OSHRC. 561 F.2d 913, 5 BNA OSHC 1555 (D.C. Cir. 1977). OSHA may properly adopt "backstop" provisions, such as initial monitoring or medical surveillance requirements, which are not triggered by exposures above the PEL or action level. Sfifi Industrial Union Dent.. AFL-CIO v. 24 ST0281071 American Petroleum Institute/ 448 U.S. 607, 656-58, 8 BNA OSHC 1586, 1604 (1980). But such "backstop" provisions differ sharply in nature from control provisions such as requirements for PELs and negative-pressure enclosures. Those must eliminate or lessen a significant risk. Id. Where the regulation is interpreted to apply in the absence of significant risk, the significant risk requirement is not met. 4. The Secretary's Interpretation Is Unsupported by Reasoning.---------------------------------------------------------------------- -- The Secretary's interpretation is also unreasonable because the proffered justifications for it do not withstand scrutiny. First, the Secretary suggests that her interpretation is appropriate because: The removal or encapsulation of asbestos-containing products . . . are typically associated with the highest asbestos exposures occurring in construction .... 51 Fed. Reg. at 22706. But an association with high exposures in some instances, even many instances, would not explain the necessity for a negative-pressure enclosurei where that association is demonstrably absent, i.e.. where it can be demonstrated that airborne concentrations above the PEL are not even reasonably likely. Secondly, the Secretary cites a tiering approach to the hazards of asbestos, with the strictest controls reserved for operations with the highest exposure potential. As discussed in Part III below, that tiering approach of adjusting the degree of control to the degree of risk is inconsistent with an interpretation that controls are required even where there is 25 ST0281072 no reasonable likelihood of risk. On the contrary, triggering a negative-pressure enclosure requirement with the reasonable likelihood of high exposure would appear to advance the Secretary's avowed purpose far better than would her own interpretation. 5. The Secretary's Interpretation Was Hot Thoroughly Considered-.--------------- ---------------------------------------------------- As further support for the conclusion that the Secretary's interpretation is unreasonable, it is noteworthy that she has shown little indication that her interpretation was thoroughly considered. The evidence is to the contrary, since the issue was not specifically proposed for public comment, and within the last few weeks OSHA has found it necessary to request public comments on the appropriate scope of the provision. Preceding adoption of the construction industry asbestos standard, OSHA published two proposed rules, neither of which contained a negative-pressure enclosure provision. The first was an emergency temporary standard, 48 Fe<J. Reg. 51085 (Nov. 4, 1983), which was later invalidated by a court. Asbestos Information Association/North America v. OSHA. 727 F.2d 415, 11 BNA OSHC 1817 (5th Cir. 1984). The second solicited comments on whether a separate construction industry standard should be adopted, and, if so, what its provisions should include, but it proposed only amendments to the general industry standard. 49 Fed. Reg. 14116 (Apr. 10, 1984). In response to the preamble to the proposed rule, some commentors suggested adoption of a negative-pressure enclosure requirement, but of necessity there 26 ST028I073 was no thorough discussion of what its provisions should be. 51 Fed. Reg. 22612, 22710-11 (June 20, 1986). Thus, the Secretary cannot maintain that her interpretation is solidly based upon thorough public discussion of the issue. In effect, OSHA has acknowledged its lack of thorough consideration of the appropriate scope of the negative-pressure enclosure requirement by belatedly, years after adoption, specifically requesting public comment on its appropriate scope. 55 Fed. Reg. 29712 (July 20, 1990). The recent proposal stated: In 1986, OSHA believed, based on limited reports of experience using such enclosures for asbestos work, that the full enclosure, which encloses the work and the workers and limits access, would be effective in containing asbestos .... OSHA seeks comment on applying the requirements for negative pressure enclosure for all removal, demolition and renovation jobs which involve asbestos. Id. at 29715, 29716. Whatever the outcome of the present rulemaking, it presumably will be well considered, based upon a full record. In contrast, the Secretary's interpretation of the current standard was not thoroughly considered. III. Interpreting the Negative-Pressure Enclosure Requirement as Limited to Situations in Which Overexposures Are at Least Reasonably Likely Is Consistent With the Purposes _of the Requirement. In construing the meaning of paragraph (e)(6)(i), the Commission should keep in mind the purposes of that provision. The main purpose is a limited one, preventing overexposures. Thus, it is perfectly consistent to interpret the requirement's 27 ST028I074 application as limited to situations in which overexposures are at least reasonably to be expected. A. Preventing Overexposure The preamble to the 1986 construction industry asbestos standard recognized that "employees engaged in asbestos removal, demolition, and renovation operations generally have the highest asbestos exposures of all construction workers." 51 Fed. Reg. at 22706. Accordingly, OSHA adopted several provisions applicable only to those operations, including paragraph (e)(6)(i). But to say that some removal, demolition, and renovation operations are associated with high airborne concentrations is not to say that all or even most of those operations are so associated. On the contrary, as discussed in Part I.C. above, OSHA explicitly found that many removal, demolition, or renovation operations do not involve high potential exposures when certain techniques are followed, such as use of glove bags or wet methods. In the preamble OSHA explained the purpose of the negative-pressure enclosure requirement as follows: The regulated area requirement in paragraph (e)(6) of the revised construction standard requires employers who perform asbestos removal, demolition, or renovation operations to establish regulated areas that consist of negative-pressure enclosures that will confine the asbestos fibers being generated to the area within the enclosure and will thus protect other employees and bystanders on the site from exposure to excessive levels of asbestos. 51 Fed. Reg. at 22710 (emphasis added). Thus, the purpose of the requirement is to protect employees outside the work area from overexposure. For some kinds of removal, demolition, or 28 8STO2 1075 renovation operations, the risk of overexposure of those employees may be substantial- But OSHA has recognized that for others kinds of those operations, use of certain techniques is sufficient to avoid even the reasonable likelihood of overexposures. Interpreting the requirement to be triggered by the reasonable likelihood of exposures above the PELs rationally relates the obligation to provide protective measures for bystanders to the need for such measures. b. Graduated.. Response Limiting the application of the negative-pressure enclosure requirement is also consistent with the tiering approach espoused in the preamble. There OSHA explained: Accordingly, the final standard applies to all occupational exposures to asbestos in the construction industry, but is tiered to apply increasingly stringent requirements to those work operations associated with the highest exposures .... OSHA believes that this tiering approach will simultaneously ensure maximum employee protection while scaling the burden of compliance with the standard to the degree of hazard associated with particular operations OSHA notes that the final standard has been carefully structured by the Agency to relate the stringency of the requirements to the extent and duration of employee exposures. OSHA therefore believes that no compliance burden will be placed on construction employers . . . who maintain asbestos exposures in their workplaces to levels below the action level of 0.1 fiber/cc. Id. at 22706, 22707. If the degree of risk is very low because airborne concentrations are not reasonably likely to exceed the PEL, then under this approach the lesser risk should have less stringent requirements. Conversely, where the risk of airborne concentrations above the PELs is at least reasonably likely, more stringent requirements are appropriate. 29 ST0281076 In the passages quoted above, OSHA recognized the need to correlate the "compliance burden" placed upon construction employers with the degree of risk involved. That recognition is compelled by Section 3(8) of the Act, 29 U.S.C. 652(8), which requires that OSHA standards be "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." While the Act may not require explicit balancing of costs and benefits for health standards, the provisions of Section 3(8) apply even to those standards. Sss. American Textile Mfrs. Ass'n v. Donovan. 452 U.S. 490, 514 n.32, 9 BNA OSHC 1913, 1922 n.32 (1981) (OSHA could not insist on a feasible requirement for use of five respirators if use of one respirator would achieve the same reduction in health risk). Accordingly, the Secretary must be able to establish that the negative-pressure enclosure requirement is "reasonably necessary or appropriate". That burden cannot be sustained when the requirement is interpreted to apply where airborne concentrations above the PEL are not at least reasonably likely. Judge Barkley found that linking the negative-pressure enclosure requirement to the reasonable likelihood of overexposure was consistent with this tiering approach: Reading the standard to require a reasonable expectation of overexposure does not harm the Secretary's "graduated response" mentioned in the preamble to the standard. If there is a reasonable expectation of overexposure and the employer is engaged in asbestos removal, the employer is prohibited from utilizing the less restrictive regulated area, the demarcated area, but instead must utilize a negative pressure area, which in turn without any further showing imposes such requirements as respiratory protection, hygiene facilities, employee training and medical surveillance. 30 ST0281 o n EEC, slip op. at 9. Ironically, the Secretary's interpretation departs from this tiering scheme. It ignores the reasonable likelihood of airborne concentrations above the PEL, or the lack of such a likelihood, and instead lumps together all removal, demolition, and renovation operations. The only exceptions are for small-scale, short-duration operations, and where the use of negative-pressure enclosures is infeasible. For all others, it ignores OSHA's findings that in some cases there is no reasonable likelihood of overexposures and treats them all as though they uniformly pose a high degree of risk. OSHA's own tiering scheme can only be furthered by linking the negative-pressure enclosure requirement to the reasonable likelihood of overexposure. C. Enforcement Burden Although nowhere articulated by the Secretary, a sub silentio purpose underlying her interpretation may be the perception that enforcement of the negative-pressure enclosure requirement would be hampered by a linkage to the reasonable likelihood of overexposure. Certainly, if every removal, demolition, or renovation operation were subject to the requirements of paragraph (e)(6)(i), OSHA inspectors could cite employers for failure to comply with that provision simply based upon the objective fact of whether or not a negative-pressure enclosure was used. But linking the requirement to the reasonable likelihood of overexposure is not a significant obstacle to OSHA's enforcement of the provision. 31 Significantly, OSHA has no need to prove actual exposures above the PELs. If that were the case, OSHA would have a difficult burden of proof where the employer has not conducted monitoring. But OSHA needs only to prove a reasonable likelihood of airborne concentrations above the PELS. That can be established after the fact, even without monitoring results. Judge Barkley's decision in EEC, which the employer chose not to appeal to the Commission, illustrates this point. COHCLUSIOH The Commission should endorse the views of Judge Barkley in EEC rather than the views of Judge Salyers in this case on the issue of what triggers the provisions of 29 C.F.R. 1926.58(e)(6)(i). Judge Barkley carefully considered both the language of the construction industry asbestos standard and the purposes of the negative-pressure enclosure requirement in concluding that the Secretary's interpretation was unreasonable and not entitled to deference. In addition, the Commission should consider OSHA's history of interpreting the requirement as Judge Barkley concluded that it should be interpreted, rather than how the Secretary now argues that it should be interpreted. The Secretary's position is contrary to the language of the standard, and it works against the tiering approach endorsed in the preamble. The Secretary has an immediate opportunity to revise the standard to read as she feels it should read. Yet 32 ST0281078 sound policy reasons, as well as the current text of the standard, support retaining the standard's linkage of the negative-pressure enclosure requirement to the reasonable likelihood of airborne concentrations above the PEL. For the foregoing reasons. Judge Salyers' decision on the issue of what triggers 29 C.F.R. 1926.58(e)(6)(i) should be REVERSED. Respectfully submitted Of Counsel: Toby Alaska Threet The Dow Chemical Company Legal Department 2030 Willard H. Dow Center Midland, MI 48674 Mark N. Duvall Health and Safety Counsel Attorney Union Carbide Plastics Plastics Company Inc. Danbury, CT 06817-0001 Date: August 9, 1990 ST028I079 33 ST0281080 ATTACHMENT 1 t)ii rvttirtttn test in tti art* of #450 to I50pncf. If 1 "frmifli a"dt enpoosciot"sttcto inthseuree*>thpeloYreetsM poirnaetournsit*ret*u> rnI,'^!T?heade*e* csit would to returnee if and when tht eweleye* finds oihor mrlovnert. An official irtoreretatior cn this issue would bo orcatlr appreciated 'Thank arou very wuch ftr arcur hols in this wetter. Very trulr arotrs* NATIONAL ASBESTOS RAINING INSTITUTE girSnir"*"* VSK/mm . woEND OF DOCUMENT REACHED** ITEM 4bSTANDARli NUMBER* INFORMATION date tGORGE DESCRIPT. TATUS Letter to Mr. Thoaas R. Kuoforor Ctrrer t OCT SO 19BI Mr. Thosios R. Kupferer 2231 Roninsiofi Drive Naperville* Illinois 60565 Door Mr. Kuefereri tThis i in rouision* rotioiiiot resX rToVoKtTs* . cor ttuori.eH t' r>__n r1oVi1tJt.-rI an theehyllite ard n-l-oo--wt---tMof rtnabdodtfrarOricf'tofoorbreorex2xf_p_co_cs_un_rc_eertn-om.atsbroesstvolsa*torv actsnolito in tho ceoonnsstrtruucct titron industry. Tour fift art* of ccncorn w--as tho provision that roaeiros .daily wonitorina employers wwililtheinMstatibnrlfiaenul iraecriMavrleiiio. tj,Toair*east*fotordevthearyt corscitnisous astostos rtooual iobt retirdless o~ *f e---v--r-e---t-i-e--n* and that this would rosilt in a iifrfu.ollotiYtOudoes wofills'hamerw]cosartihTaat reessspeinratitaolrlys. wruld bo aoanirsloss because Tho intent of 1926.56(f) <J> is to resuire daily wonitorme only where airborne levels exceed G.Z fiber/cd, Wien it is necessary to establish a rftulaied area* as required by the standarc* daily eionitorins rot only verifies tho adequacy of the respiratory protective cevicvs work* tut servos as a check to ensure that ensineerins controls are furclionina orcoerlY and the specified work practices are beint carried out. It should be notfd ttat where daily ihen>torins reveals that oihrloYoe exeosvres <ts indicetfd bY statistical 1y rellatle noastremonts) arc below tht action level* the employer way discontiruc moritonnt for those.employtfs whose, exposure* are reoresorffd by those samples. In addition* dally womtorins is not retuirtc in a resulated area where all emploYcre are etuieptc with sceeliec air reseiraters operated in the positive pressure woce. Tour -second isaue dealt witt Hha-estab lishoent of * nosatiue erofsure enclosure for #)>los removal* denoli iian and renovation operations. Tht intent <f lT*5.5(?(t) is to rtauirt a rotative pressure enclosure only where a reuiMed area is raauire d. -Aeeuiated >artas are , establish** oilywhe`Ts asbestos conceti trations exctec the remissible exposure limit. - St028l08I.A nt o c/> r-- eerimeter ef removal operation* conducted at.rour company are not in excess of He actior level. However* Here it no mertion of Air copcenlraticn* fount) in tl- breithint *cnt of ,,r*wjIIY eerformins asbestos removal work. Derrrdins on the rjlurj i!?,i extent of exposure* the rsvirement for a nesative pressure enclosure way not be applicable ir votr case. > T'tVJHJM ftSShti."Effort* Are currentlyythousredehr iswwhaayjisthotecdorirnecvtouthre contradictory letter* which appear in notice will be published in the Federal hesister i.. the near future. 1 here this Information will be helpful tc you. Sincerely* John A. Pencersrats Assistant Secretory QHtUainl sister HO/16/061 sec* 10/17/86 Poor N?67l x?7111 ControltC 38861 Due Dote 10/2:4/86 cc CCU Filer OH Filer C.Adkint* Pendersrasj* F.Whiter UAinlessr Williams* Ctrctters* WPC File*e6-324r Documtrt#0059e / 0 ST028I082. October 2* 1986 John A. Pencrrsrass Assistant Secretary of Lator , For Occurational Safety ard Health ss?h?s;ui5ii!? Sear Hr. f'er dertrass I am writins to you today* as a fellow erofestiontl incustrial hrejeristr to express my.cotcsrn.for damn.e beins dors to.oyr eroftssien bv the recently eromulsated OCHA standard resulatins Asbestos in constructior Activities. 1 retard this standard to be so poorly conceived and execited At to be a. mejor embArrfssment to tnose 0. us in the profession pto now hAve been h^nced tne j$b df tryins to ii. ltment. it. Maty of the provisions caj for mere activity which will coniritute notMrs tc worker ercteciion Others willt in some cues i actually create more serious htzarcs than the standard intends to correct, tom# are actt a 11 y contradicted within tte retylation itself. Ail of thesr ccvld have been prevented if OSHA hid timely submitted tie constructior standard to eeer review ir the *me manner as thev did tie fir superior Asbestos stardirc for scncral industry. As an example of the previsions which aed nothirs to the worker's protection* 1 call your attention to the section which,requires dailY momtorins rs* res r nt t t i v e of each worker when a resulated area exists. 8i-ce conscienticv* employer* will establish.a reiulated area for every ast>r*tos removil aobt whether it will last 5 minutss or 5 months* this will result in a multiti.de of samples. These samples will t<e essentially metninsless* however* sires* bv the standard* all these.wcrktrs wi11 be.wear ins.reseirat<rs. It is unnecessary tc do tt i s much momtorins to simply verify the adequacy of bvr respiratory protection choices. Nevertheless* industrial hvfieniets row must insist that our employers and clierts perform tamplins which we know is net justified* which certainly does nothins o enhance tht imase of otr profession as a professicn. Instead we just parrot resulatiers* tans rvmrs* anc file away reams of expensive* meaninslsss data. An example cf the p^seitly canserovs activities prescribed by the standard is its insistrrcs on buildins enclosures arcurd removal operations. Hr compary has fresuenlly rertermed area samples at tne perimeter of removal errraiions of various sorts* anc we have never found levels in fxccst cf tie new actior level. In fact* we usually don't find anythins above background levels. The new standard would appear to now respire ys ir post cases* to create what amounts to a confinrd iface*.wi11 a 11 it* hazards* ard require our people to work w; Mn it. this will result in treater heal stress* arc the ei iibiiitr of trarpins danserous concer[rations of toxic or flammable sates if their work environment. We *wi 11 thus increase the risk to the health and safety of these perrons in ercer to eliminate a non-existent exposure hazard to what is senerally mcccuried surroundinsr. lt will also require a let of work just to construct the enclosures* with all the well documented risks of seneral construe tion work. > A* an example of cortreci ctcrr statements withir tht etandard* notice that the.eareararh cn fit testin' rut'irft that* "The iiifiortri shall thy respirator isiiued, to the fm*l*X*e exfiti'ts the least fouiMt facepiece leakatr..." Tht note that Arrandix C on fit testins procedures resvirta thit tht employee be allcwcd to chooit tht most cetiH'crle.H respirator rmini a fit testi rot the one providin' tht beat seal. Alto note that Appendix C states that whhen pffeMrfioJriminiTn' fi i*t* test* if'Tv htitr irrmitatnnvt smeke nprovitivovcvo*l tmhti ,irei sirp*rira*jtvor wearer should bt instructed ty keep his.eyes closed curint the test, shortly afterwards it has u instruct ham to rtid tht `rainbow tatst< Tht above art only a very few examples cf tht major problems in this striousiY flawed stancard. 1 ask.you to artfully review tht ontrout provisions cf this stancard* drawlnt en.rour ftn consicerable practical experience* are direct reconsideration to cevelor a more fltxibltr performance oriented documrnt. 1 ask this as ont individual professional tc another* pot as a reeresertatiye of any employer or associeticn. Tht rryvision* cf,the construction standard* as written* stow a serious lack of appreciation for the true score of the werk it is written to.cover* and fer tht nature of the hazards it tries to ccntrol. It will result in a tremendous amount of activity* but little* if any* increase in worker , . rrolection. In fact* what it will serve to do more than anythin? elte'vill be to divert this country*? already strained industrial hvsiene resources away frem more productive activity wtere far sreater contributions tc worker health would be made. Jhave erent a tremendois amount of my time over the last.three to our years tryins where ever I coyld to ccntribute scmethins to the development of a meaninefvl end effective ar-bestes star card. Ueon readme the constructor mcuctry ssbestos standard* 1 feel the effort was totally wasted. Sincerely* Thomas E. Kuefertr* C1H END CF DOCUMENT REACHED*# ITEM *7 STANDARD NUMBER Information date SOURCE RESCRIPT. COmrAny STATUS 1910.1001(r> (1) (vii) l1926.56(f) (2X111) orosU l.cttyerr toy Mnrr..,RRooboert Ju*. Bettacchi Construction Products Division t'urrer t AUC 14 1966 Mr. Robert J. Bettacchi 1! ice President construction Prodicts Division W, R. Grace fc Company 62 Whittemorp Avenue Cambridte* Massachusetts 02140 Dear Mr. Bettacchit This is fn response to your letter of wh.ne 23 seekirs interpretation of certain resulatory provisions contained in the standards for occupational exposure to astfstes*.trim?1ite* ynthopkyllite and actmoliie Issued Ume 20 (Si FR 226)2). specifically* your concern is thyt certain provisions of (he new stardards may apply to many activitii* that rrse re asbestos risk tc worker health and that were not intendec ty the Occi rational Cafttv Ht.alth Administration (GShA) to be covered by the new standards. Tyur letter raised iniereretive issues about three provisions. The Tir*t provision states that* tffterjals containin' asbestos*, tremolite* anthorhvl)l<p or actinolifr shall not be arpl bv spray* methods" < 1 910. 1001 (r) (1) (vi i) and 1926.5H(s> (2) (iiD). you Pointed out* ether er nwer t, a je nc its which have restric application of ssbestos materials by erchibitins ferarins that;]t since the OEHA previsions dc rot cehtain an exclusion* the 06HA rrenfutLation. will inarpreeriatejy apply to a wide variety of sprayec products that contain trirs anoints of raturally ccurrins levels cf asbestos which you term "de-minimls." 1* cO sfS </> --i O ro 09 o 00 GJ ST028108U attachment 2 ^irectbralt of Health Stardards Presram *!lhfSs!H!#4!E? "S&ti *'" Dear Mr. Wainlets* iderstandins nd correct. ts; tiitMins&itttiti&'Sf'i&.tt fc.nrue h Src. <h) (ii) ' A. Fit tests art only requiri tor eressvrt respirators,. Either qua quaintittiatatitvivct methods may if used. ivc *or ***w* B. Fit te_stJirrs. f.o..r full facr nesative pressure respirators aISt. ilnoodt i required* viil te howeeyv.er*. accepted. if desired* tnlv quantitative C. Fit tcatir for half and full fact eositiue.pressure* powered* powered air rurifyins respirators is not . requires, 2 Aaaendix A. to 1926.56 (O.R.M.)* flat aaraeraah) The aresent verbiase as t meant to imply that all samrlins foorr*' asbestos fibbesrr)s/fibers be conducted by an analyticail laboratory* m*errely that those laboratories i such samples usa thr G.fi.M. My thanks asain frr your invaluable assistance. 1926.58 will* I'm sura* be sreat a born tr the abatement industry. Respeciful1y Jamas T. Hewn Health and Safety Director df Lt Sicharc *END OF DOCUMENT REACHED** ITEM 49 KmglTK?E 1926*5e",<2)' psjl PCBCAiw; Lai ter to Mr. Daniel E. Hoffman National Steel Corporation STATUS Current OCT 10 1986 Mr. Daniel E. Hoffman Granite City Division National Steel Corporation 20th i State streets Granite City* Illinois 62040 Dear Mr.1 Hoffmani Ttehtihs inis* the new siin*taterrderpasprrdeotnafsoteiro.tneexYtpfoosucur erelratattotinerarseobsfevsAtlaoisstu. sytt-.re2pm8rootv_olTiisieiI--ornaasrHthcaoomnrtlhaeyitnslelitd,e i.n and actinolite in the construction industry. Your first ana of concerr was whether 1926.58(e) (6) which imposes requirements for nesatiue ernsyrs enclosures and the cesisnation of a competent, person**' ard 1 V26.bf.O) (2) * which requires the e* \blishmert of a decontamination area* apply to all asbestos ri..oval* demolition* anr rerovation operations* or rly those where }`tr: tft'ifjiiMsi'SK ki.sp:wi.ii. i. requires thr establishment cf a decontamination area wten a resulated area is required. Reylatec areas are established orly wher# concentrations txceid its PEL. S80I8Z01S oo that It *arari*h .. tak* tO COI'M*t* t**tSe^5*th#d lOYBd jff*CtfroV**lr. lcrtih tin* it Your inl*r*ti in occu*alicnal h**Hh i* *Mrciat*d.. Sinc*r*lv Chari** E. Adkin* Health Mancards Proram* QHJWainl** * ac *9/5*0/06 ik c Roost N.*:671 x711i MA tt, OH Flit. Hti.l.tt. Atkint. MAC. Fil.Ffct-Z'te. DocM.rvUOOiOt ST0281086 <n Mr. In WaYineleee Health standards Branch s* lashlntton* ar Hr. VaYineloee* Tphi^.nnltLi Y-rOU.tf\rr.TT?O"Urr .f!trv;wi!f*v.rtJ:*5!I oJTSAUhXa1*.*..?*. surS.rd* "eu5b1l?ith*ed I am writtnv in reaKS^itauii^t'Suev***^j08Y0(#??f*?* That..f.\-U..i.s.C*..*.C..*.Y.eti.e.f^rtstiiefel'lurineufwe5ra"tliiofr'etiaiueirrte'iir*e**iheborxedrxoioenouerre*jftahacelirliotorieUebt>sheolodW,<wwsde0ac.ro1crtauf/m?ticliinzaetitdohni StJSSirS" afi*>??#.f.l thi. i. .h i.f.rt.nt ..iht and it in need cf ciariticaticn. }E. ?hieh. .rt r.ijtU.lvIy stort \ht ****eticn would seelLy. iy *Vw dur.Uior i. e. * nhl ti eperations Seceti--on. ... that for fours or lata* Pita** respond at Ycur earliest possible convenience. Verv trulY YOtrs* MDaannineel r*EEHncvfitreoianneiental uHeailttKh DEH/01,44tsc eeEND OF DOCUMENT REACHED** ITEM 50 STANDARD NUMBER HHjSmWf 1910.1001(i)(4)<ii) (j)(2) and pLV Vei.?v.},.f S.O. -nr. P.t.r T . Barnes Earmii Inc. ctrrent (i)<3> Mr. Peter T. Barnee garftiri Inc, Waterdown* Ontario LOR 2H0 Canada ST028I087 4 l CERTIFICATE OF SERVICE I hereby certify that on this 9th day of August, 1990, I mailed one copy of Motion for Leave to File Brief as Amici Curiae and Brief of Amici Curiae Union Carbide Chemicals and Plastics Company Inc. and The Dow Chemical Company to the following by first class, postage-paid mail: Tony Gil, Esq. Office of the Solicitor U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 Robert W. Thomson, Esq. Meyer, Darragh, Buckler, Bebenek,;Eck & Hall 2000 Frick Building Pittsburgh, PA 15219 ST028I088 Date: August 9, 1990 Mark N. Duvall Health and Safety Counsel Union Carbide Chemicals and Plastics Company Inc. UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION RECEIVED AUG ' 11990 LEGAL DEPT. No. 88-2268 ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, AMERICAN ASBESTOS CONTROL CO., Respondent. BRIEF OF AMICI CURIAE UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC. AND THE DOW CHEMICAL COMPANY ST0281089 * Mark N. Duvaix HBAtrn Aim S.rrrY Covmn. Union Carbide Chemicals ajtd Plastics Comramy Inc. as Old Rmoraumr Road Dajtbuky. CT. oca noooi aoo-ra .tan bos Mtwioif Avmtn New York. N.Y. iooie aiMTMau Date: August 9, 1990 Mark N. Duvall Health and Safety Counsel UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC. 39 Old Ridgebury Road, E3 Danbury, CT 06817-0001 Toby Alaska Threet Attorney THE DOW CHEMICAL COMPANY Legal Department 2030 Willard H. Dow Center Midland, MI 48674 UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION ELIZABETH DOLE, SECRETARY OF LABOR, ) ) Complainant, ) ) v. ) ) AMERICAN ASBESTOS CONTROL CO., ) Respondent. ) ) OSHRC Docket No.88-2268 AMICUS CURIAE UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC'S DECLARATION OF PARENT, SUBSIDIARIES, AND AFFILIATES REQUIRED BY COMMISSION RULE 36lc) Amicus curiae Union Carbide Chemicals and Plastics Company Inc. is a wholly-owned subsidiary of Union Carbide Corporation. The following is a list of its affiliates and subsidiaries: [insert] This declaration is made in order that the Commissioners with the information they need to determine whether they have a financial interest in a party to this proceeding. ST0281 090 MARK N. DUVALL Attorney for Amicus Curiae Union Carbide Chemicals and Plastics Company Inc. ST02810 9 1 TABLE OF CONTENTS PAGE RULE 36(c) STATEMENTS ........................................................................ i Statement of Union Carbide Chemicals and Plastics Company Inc. .......................................................... ii Statement of The Dow Chemical Company................. TABLE OF AUTHORITIES ................................................................. STATEMENT OF INTEREST ............................................................... PROCEEDINGS BELOW ........................................................................ SUMMARY OF ARGUMENT ................................................................... ARGUMENT ............................................................................................. I. THE STANDARD EXPRESSLY LIMITS THE NEGATIVE-PRESSURE ENCLOSURE REQUIREMENT TO SITUATIONS IN WHICH AIRBORNE CONCENTRATIONS ABOVE THE PEL ARE AT LEAST REASONABLY LIKELY .................................................................................... A. Overview of the Negative-Pressure Enclosure Requirement ......................................... B. The Text of the Standard .................................. C. Employers Have a Right to Have the Standard Enforced as It Is Written .......... II. THE SECRETARY'S INTERPRETATION IS NOT ENTITLED TO DEFERENCE UNDER THE CIRCUMSTANCES PRESENTED HERE .................................... . A. The Secretary's Interpretation is Plainly Erroneous and Inconsistent With the Standard .................................................. . B. The Secretary's Interpretation Was Not Thoroughly Considered .................................... C. OSHA Has Interpreted the NegativePressure Enclosure Requirement Inconsistently ..................................................... III. INTERPRETING THE NEGATIVE-PRESSURE ENCLOSURE REQUIREMENT AS LIMITED TO SITUATIONS IN WHICH OVEREXPOSURES ARE AT LEAST REASONABLY LIKELY IS CONSISTENT WITH THE PURPOSE OF THE REQUIREMENT .......................................................................... CONCLUSION TABLE OF AUTHORITIES CASES: STATUTES: Occupational Safety and Health Act of 1970 Section 3(8), 29 U.S.C. 652(8) ............ REGULATIONS 29 C.F.R. 1910.1001 ................... 29 C.F.R. 1926.58 ........................ 29 C.F.R. 1926.58(b) ................. 29 C.F.R. 1926.58(c) ................. 29 C.F.R. 1926.58(e)(1) .......... 29 C.F.R. 1926.58(e)(6) .......... 29 C.F.R. 1926.58(e)(6)(i) .. 29 C.F.R. 1926.58 (e)(6)(ii) 29 C.F.R. 1926.58(e)(6)(iv) . 29 C.F.R. 1926.58(f)(3) .......... 29 C.F.R. 1926.58(i) (4) .......... 29 C.F.R. 1926.58(j)(2) .......... 29 C.F.R. 1926.58, Appendix F 29 C.F.R. 1926.58, Appendix G Ease ST0281093 FEDERAL REGISTER: 48 Fed. Reg. 51085 (Nov. 4, 1983) . 49 Fed. Reg. 14116 (Apr. 10, 1984) 51 Fed. Reg. 22612 (June 20, 1986) 53 Fed. Reg. 35610 (Sept., 14 , 1988) 54 Fed. Reg. 52024 (Dec. 20, 1989) 55 Fed. Reg. 29712 (July 20, 1990) MISCELLANEOUS: ST028I094 DRAFT 7/31/90 WP+ 53 UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION ELIZABETH DOLE, SECRETARY OF LABOR, ) ) Complsinant, > ) v. ) ) AMERICAN ASBESTOS CONTROL CO., ) Respondent. ) > ) OSHRC Docket No.88-2268 BRIEF OF AMICI CURIAE UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC. AND THE DOW CHEMICAL COMPANY S T 0 2 8 l095 STATEMENT OF INTEREST Amici Curiae Union Carbide Chemicals and Plastics Company Inc. ("Union Carbide") and The Dow Chemical Company ("Dow") are major chemical manufacturers with facilities throughout much of the United States. Many of those facilities contain asbestos. From time to time Union Carbide, Dow, and/or contractors engage in asbestos removal, demolition, or renovation operations. As determined by industrial hygiene monitoring, many of those operations are conducted with airborne concentrations of asbestos well below the permissible exposure limits ("PEL") of OSHA's construction industry asbestos standard, due to the use of wet methods and other techniques. The interest of Union Carbide and Dow in this case concerns a single issue raised, argued, and decided in the proceedings below: whether 29 C.F.R. 1926.58(e)(6)(i) limits the use of negative-pressure enclosures to where airborne concentrations of asbestos exceed or reasonably can be expected to exceed the PEL prescribed in 29 C.F.R. 1926.58(c). Amici believe that the requirement is so limited. The Secretary argued, and Judge Salyers held, that that requirement applies regardless of the potential for overexposure. Amici urge the Commission to reverse the Administrative Law Judge's decision on this point. PROCEEDINGS BELOW Respondent American Asbestos Control Company ("AACC") was issued several citations. The item of interest here is the ST028I096 citation for an alleged willful violation of 29 C.F.R. 1926.58(e)(6)(i) stating: 29 CFR 1926.58(e)(6)(i): The employer did not establish negative pressure enclosures where feasible, before commencing removal, demolition and renovation operations: (a) On August 11, 1988, employeyees [sic] removed asbestos containing material from the interior of pot A at door 661 at Armco, Inc.'s Middletown Works and a negative pressure enclosure was not constructed around the removal operation. AACC timely contested the citation. On September 18, 1989 Judge Salyers issued a decision and order affirming this item as a serious violation and assessed a penalty of $1,000. The decision noted that: The Secretary does not challenge the results obtained in the air sampling performed by respondent during the removal procedures at "pot A" which reflect a range (.003 to .004 fibers per cubic centimeter) well below the PEL. American Asbestos Control Co. ("AACC"), 1989 CCH OSHD If 28,704 (No. 88-2268, 1989), slip op. at 7. But the Judge deferred to the Secretary's interpretation that 29 C.F.R. 1926.58(e)(6)(i) requires use of negative-pressure enclosures where feasible in asbestos removal, demolition, and renovation operations, regardless of the level of airborne concentration of asbestos. Respondent timely filed a petition for discretionary review with the Commission. Acting Chairman Arey granted the petition on October 25, 1989 with respect to four issues. The second issue stated: Did the Judge err in concluding that the Secretary did not have the burden of proving that the Respondent's employees were working in "an area . . . where airborne concentrations of asbestos . . . exceed or can reasonably be expected to exceed the permissible exposure limit"? SUMMARY OF ARGUMENT The Commission has the opportunity to resolve a conflict between Administrative Law Judges concerning an important issue arising under the asbestos standard for construction: whether the Secretary must prove that it is at least reasonable to expect that airborne concentrations of asbestos will exceed the PEL before requiring employers engaging in asbestos removal, demolition, and renovation operations to implement negative- 2 ST028I097 pressure enclosures and related procedures. Judge Salyers decided below that the Secretary has no obligation to prove reasonable likelihood of overexposure before requiring a negative--pressure enclosure. Subsequently, in a different case Judge Barkley came to precisely the opposite conclusion. Reviewing the express terms of the standard, the standard's purpose, and the Secretary's "graduated response" strategy. Judge Barkley concluded that the Secretary must prove that it is at least reasonable to expect overexposures. Under the facts of that case, he found that the Secretary had proven that overexposures were reasonable to expect. Expert Environmental Control. Inc. ("EEC"). 14 BNA OSHC 1666 (No. 8B-1956, May 10, 1990). The Commission should endorse Judge Barkley's resolution of the issue. By its own terms, the construction industry standard for asbestos limits the application of the negative-pressure enclosure requirement, paragraph (e)(6)(i), to those asbestos removal, demolition, and renovation operations for which airborne concentrations exceed or can reasonably be expected to exceed the PEL. Paragraph (b) defines "regulated area" to include a negative-pressure enclosure and states that a regulated area, whether of a traditional nature or a negative-pressure enclosure, is an area established "to demarcate areas where airborne concentrations of asbestos . . . exceed or can reasonably be expected to exceed the [PEL]". Similarly, paragraph (e)(1), entitled "General", repeats that limitation on the scope of the "regulated area" requirement. If the Secretary believes that the negative-pressure enclosure requirement should say something it does not now say, she should amend the standard through rulemaking. She has just proposed to do exactly that. The Commission should not interfere in this belated effort to effect a policy change through the appropriate mechanism, rulemaking, rather than through interpretation in an enforcement proceeding. The Secretary's interpretation in this case is not entitled to deference. It was not thoroughly considered; it is unreasonable; and it is directly contrary to previous OSHA interpretations of the provision in the compliance directive for the standard, in interpretations by top officials of OSHA contemporaneous with issuance of the standard, and a Federal Register notice which explicitly discusses the issue. The Secretary has provided no basis for departing from these interpretations so directly contrary to the interpretation she now advocates. Construing the negative-pressure enclosure requirement in accordance with the language of the standard would be consistent with the purpose of the requirement. That purpose is to protect employees from overexposure to asbestos. It is 3 perfectly consistent with that purpose to limit the application of the requirement to situations where overexposure is at least reasonably likely. ARGUMENT 1. The Standard Expressly Limits the Negative-Pressure Enclosure Requirement to Situations in Which Airborne Concentrations Above the PEL Are at Least Reasonably. Likely. A. Overview of the Negative-Pressure Enclosure Requirement Like employers, the Secretary is bound by the terms of the asbestos standard for construction as it is written. Those terms are unambiguous, because in two separate places they limit the negative-pressure enclosure requirement to situations in which it is at least reasonably likely that airborne concentrations above the PEL will occur. Those provisions are consistent with other important provisions of the standard which are also triggered by potential exposure levels above the PEL. In his decision, Judge Salyers deferred to the Secretary's interpretation as reasonable without rigorously considering whether in fact it is reasonable. The Judge noted the employer's arguments based on the language of the standard, but relied upon the Secretary's quotations from the preamble and the compliance directive. In sharp contrast. Judge Barkley scrutinized the terms of the standard, quoting key provisions at length. Then, referring to the Secretary's interpretation, he stated: I find that the requirement of a negative-pressure enclosure is not applicable until the Secretary establishes evidence of actual overexposure, or that overexposure can reasonably be expected from the cited activity. EE> slip op. at 7. In another case involving the appropriate interpretation of a regulated area provision, the Commission has stated the criteria to be applied in resolving questions of regulatory construction: In construing the standard, we are mindful of several principles. We must look first to the language of the standard. Sfia Bunge Coro., 86 OSAHRC __ /__ , 12 BNA OSHC 1785, 1789, 1986 CCH OSHD ^27,565 p. 35,804 (No. 77-1622, 1986), and cases cited. Second, although legislative history and other extrinsic aids to interpretation may be used to determine the intent of 4 ST028I098 the drafter, standards should be construed in a way that does not deprive employers of fair notice of the requirements of the law. See dj_, 12 BNA OSHC at 1790-91, 1986 CCH OSHD at p. 35,806, and cases cited. See also Usery v. Kennecott Copper Coxb^, 577 F.2d 1113, 1119 [6 OSHC 1197, 1200] (10th Cir. 1977); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161-62 [6 oshc 1440, 1443-44] (3d cir. 1978); Diamond Roofing Co. V. OSHRC. 528 F.2d 645, 650 [4 OSHC 1001, 1005] (5th Cir. 1976); Lisbon Contractors. Inc.. 84 OSAHRC 19/A2, 11 BHA OSHC 1971, 1973-74, 1984 CCH OSHD *26,924, p. 34,500 (No. 80-97, 1984). CF&I Steel Corp.. 12 BNA OSHC 2067, 2073 (No. 79-4786, 1986), affirmed sub nom. Dole v. OSHRC (CF&I Steel Cqip,). 891 F.2d 1495, 14 BNA OSHC 1388 (10th Cir. 1989), petition for cert, granted. 58 U.S.L.W. 3811 (U.S. June 25, 1990). Both criteria must be applied to resolving this issue, as Judge Barkley found. at 9-10. As amended in 1988, the construction industry asbestos standard establishes two permissible exposure limits: an 8-hour time-weighted average ("TWA") of 0.2 fibers per cubic centimeter of air ("f/cc"), and an excursion limit ("EL") of 1 f/cc averaged over 30 minutes. 29 C.F.R. 1926.58(c). The action level is 0.1 f/cc (8-hour TWA). Id. 1926.58(b). A subsidiary provision requires establishment of regulated areas "where airborne concentrations of asbestos . . . exceed or can reasonably be expected to exceed the TWA and/or excursion limit prescribed by paragraph (c) of this section." Id* 1926.58(e)(1). A species of regulated area, the negative-pressure enclosure requirement appears in paragraph (e)(6)(i). It has no counterpart in the general industry standard for asbestos, 29 C.F.R. 1910.1001. Paragraph (e)(6)(i) provides: Wherever feasible, the employer shall establish negative-pressure enclosures before commencing removal, demolition, and renovation operations. A negative-pressure enclosure is essentially a large bag built over an asbestos abatement work area'. It is typically constructed of 6-mil polyethylene plastic sheet, sealing tape, air locks, and negative-pressure systems. See 29 C.F.R. 1926.58, Appendix F. OSHA provides the following explanation: The negative pressure enclosures contemplated by the 1986 standard are area enclosures in which abatement and renovation employees work. The enclosures are required to be placed under negative pressure (a partial vacuum) so that asbestos fibers remain inside 5 ST028I099 S T 0 2 8 I100 even if a leak develops in the enclosure shell. OSHA believes that negative pressure enclosures reduce employee risk primarily by reducing leakage and containing the asbestos material being disturbed. Thus areas outside the work area are not contaminated and bystander employees are protected from exposure. 54 Fed. Reg. 52024, 52026 (Dec. 20, 1989). Where the negativepressure enclosure requirement is triggered, employers must also meet special requirements for supervision by a competent person, paragraph (e)(6)(ii); monitoring, paragraph (f)(3); protective clothing, paragraph (i)(4); and use of hygiene facilities and practices, paragraph (j)(2). There is an exemption from the negative-pressure enclosure requirement for small-scale, short-duration operations. 29 C.F.R. 1926.58(e)(6)(iv) and Appendix G. OSHA has proposed to amend the negative-pressure enclosure requirement to impose an explicit provision that the requirement is triggered not by the actual or reasonably likely exposure level, but by the nature of the work involved. The proposal would also cut the 8-hour TWA PEL in half, from 0.2 f/cc to 0.1 f/cc. 55 Fed. Reg. 29712 (July 20, 1990). B. The Text of the Standard It is undisputed that a negative-pressure enclosure is a kind of regulated area. The negative-pressure enclosure requirement appears in paragraph (e), captioned "Regulated areas". Paragraph (b) defines the term "regulated area" as follows: "Regulated area" means an area established by the employer to demarcate areas where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals exceed or can reasonably be expected to exceed the permissible exposure limit. The regulated area may take the form of (1) a temporary enclosure, as required by paragraph (e)(6) of this section, or (2) an area demarcated in any manner that minimizes the number of employees exposed to asbestos, tremolite, anthophyllite, or actinolite. (Emphasis added.) Thus, this definition explicitly couples the negative-pressure enclosure requirement to actual excursions beyond the PELs or the reasonable likelihood of such excursions. Further confirmation of this coupling appears in paragraph (e)(1), captioned "General". It provides: The employer shall establish a regulated area in work 6 areas where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals exceed or can reasonably be expected to exceed the permissible exposure -limit prescribed in paragraph (c) of this section. (Emphasis added.) Since paragraph (b) classifies a negativepressure enclosure as a regulated area, and since the. requirement for negative-pressure enclosures appears in paragraph (e), captioned "Regulated areas", the negativepressure enclosure requirement is subject to the provisions of this "general" limitation on the requirement to establish regulated areas. Where, as here, the language of a standard or statute is clear, that language controls, and no resort may be had to legislative or regulatory history or agency interpretations to construe the requirement contrary to its plain meaning. See. UAW v General Dynamics Land Systems Div.. 815 F.2d 1570, 13 BNA OSHC 1201 (D.C. Cir.), cert, denied. 484 U.S. 976 (1987); Honeywell Inc, v. United States. 661 F.2d 182, 186 (Ct. Cl. 1981) ("legislative history is, in any event, unnecessary when the language and purpose of the regulation is plain"). In his opinion below. Judge Salyers did not carefully consider the language of the provisions quoted above. He quoted a portion of the definition of "regulated area", but made no comment on it, and he made no reference to paragraph (e)(1). AACC. slip op. at 7. In contrast, Judge Barkley quoted the complete text of the paragraph (b) definition, paragraph (e)(1), and paragraph (e)(6)(i). He then concluded: It seems clear to this Judge thestandard requires a regulated area only if there is ashowing of actual overexposure or that overexposure can be reasonably expected. The requirement of a regulated area is not triggered simply by engaging in asbestos removal. To read the standard as the Secretary suggests would require an employer to construct a negative-pressure area any time he was engaged in asbestos removal without consideration to whether there was a reasonable expectation of a hazard. I find this interpretation to be inconsistent with the language of the standard. If the employer is to be required to establish a negative-pressure area with the attendant requirements of respirators, hygiene facilities, employee training and medical surveillance, there must be at a minimum a reasonable expectation of overexposure. EEC, slip op. at 8-9. 7 S T 0 2 8 I101 S T 0 2 8 I102 c. Employers Have a Right to Have the Standard Enforced as It Is Written,------- -------------------------------------------------------------- To depart from the terms of the standard as written, as the Secretary advocates, would be to deprive employers of notice of the conduct required of them. With penal sanctions imposed for violations of the standard, this would be an intolerable situation. Employers could reasonably determine that airborne concentrations would not be reasonably likely to exceed the PEL during particular removal, demolition, or renovation operations. In the preamble to the construction industry asbestos standard, OSHA found that in many instances employers may use glove bags, wet methods, and other techniques to keep airborne concentrations of asbestos below the action level. 51 Fed. Reg. 22612, 22706 (June 20, 1986). It even predicted that: most employers engaged in maintenance and renovation projects in environments that do not lend themselves to the construction of negative-pressure enclosures will elect to use glove bags, wet methods, and other control measures to ensure that their employees' exposures to asbestos remain below the standard's action level. Id. at 22711. In its recent notice of proposed rulemaking on the negative-pressure enclosure requirement, OSHA published estimates of current exposure levels during various asbestos removal, demolition, and renovation operations which showed none of them more than 50% of the current PEL. Most were one or two orders of magnitude lower than the PEL. 55 Fed. Reg. 29712, 29735 (July 20, 1990). Indeed, the facts of this case, where monitored levels were two orders of magnitude below the PEL, show that in some operations it is reasonable to conclude that exposures are not reasonably likely to exceed the PEL. Decision at 7. Thus, employers engaged in removal, demolition, or renovation operations who use these methods so as to eliminate any reasonable likelihood of airborne concentrations above the PELs may rely on the language of the standard to conclude that the negative-pressure enclosure requirement does not apply. Under OSHA's interpretation, however, they would be in violation of the standard, notwithstanding that reliance. Such a situation deprives employers of their due process rights to notice. As Judge Barkley wrote: While this may not be the result the Secretary intended, it is well settled that "regulations cannot be construed to mean what an agency intended but did not adequately express." L.R. Wilkinson & Sons. Inc, v. Donovan. 685 F.2d 664, 675 (D.C. Cir. 1982). To 8 S T 0 2 8 I103 hold otherwise would be to deny the employer fair warning of the conduct required. Diamond Roofing v. Occupational Safety and Health Review Commission, 528 F.2d 645 0 649 (5th Cir. 1976). EEC, slip op. at 9-10. See Brennan v. OSHRC. (Pearl Steel Erection Co.. 488 F.2d 337, 339, 1 BNA OSHC 1429, ____ (5th Cir. 1973) ("The fault lies in the wording of the regulation."); Dravo Corp. v. OSHRC. 613 F.2d 1227, 1231-32, 7 BNA OSHC 2089, ____ (3d Cir. 1980) ("Because we deal with a penal sanction, we begin with a recognition that the coverage of an agency regulation should be no broader than its terms."); Usexy v. Kennecott Cooper Corp., 577 F.2d 1113, ------, 6 BNA OSHC 1197, ____ (10th Cir. 1977) (an employer is "not required to assume the burden of guessing what the Secretary intended plain and unambiguous words employed in the safety regulation to be. This is especially true when violation of a regulation subjects one to criminal or civil sanctions. A regulation cannot be construed to mean what an agency intended but did not adequately express."); Brennan v. OSHRC (Ron M. Fieqen.__Inc.), 513 F.2d 713, 716, 3 BNA OSHC 1001, ___ (8th Cir. 1975) ("Where, as here, the interpretation derives little support from the language of the regulation, it would be fundamentally unfair to impose on the employer civil penalties for its violation. To do so would subject him to liability without warning that his conduct is prohibited."). If in fact the asbestos standard does not say what OSHA intended it to say, then rather than attempt to amend it through interpretation, the Secretary should do so through notice-and-comment rulemaking. Sfifi Fluor Constructors. Inc, v. OSHRC. 861 F.2d 936, 939, 13 BNA OSHC 1956 (D.C. Cir. 1988) ("An agency is bound by the regulations it promulgates and may not attempt to circumvent the amendment process through changes in interpretation unsupported by the language of the regulation."); Bethlahsm Steel Corp-. Y. OSHRC, 573 F.2d 157, 161-62, 6 BNA OSHC 1440, ____ (3d Cir. 1978) ("The responsibility to promulgate clear and unambiguous standards is upon the Secretary. The test is not what he might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and the obligation to amend."). Ironically, OSHA has just proposed to amend paragraphs (e)(1) and (e)(6) of the asbestos standard for construction to impose an explicit requirement to use negative-pressure enclosures in certain operations, regardless of the exposure levels. 55 Fed. Reg. 29712 (July 20, 1990). Although OSHA claims that the proposed amendments are simply "clarifying revisions", id. at 29715, it is clear that new requirements would be imposed. For example, whereas currently paragraph (e)(6) applies only to removal, demolition, and renovation operations, under the proposal the paragraph would also apply 9 S T 0 2 8 I104 to maintenance activities. Inexplicably/ OSHA does not propose to amend the definition of "regulated area" in paragraph (b) to delete the current linkage between negative-pressure enclosures and actual or reasonably likely airborne concentrations above the PEL. OSHA also conveys its misunderstanding of the effect of its own proposals on negative-pressure enclosures by stating in the preamble: Therefore requiring that the spread of asbestos be contained where it is likely, even if not certain, that the PEL would be exceeded is both appropriate and necessary to reduce still significant risk to bystander employees. Id. at 29716. All parties agree that the current standard triggers the negative-pressure enclosure requirement "where it it is likely, even if not certain, that the PEL would be exceeded"; the proposal would make that requirement apply even where it is not likely that the PEL would be exceeded. Although years late, a rulemaking is particularly appropriate since OSHA has never previously published a proposed negative-pressure enclosure requirement for public comment. The proposed rule which preceded the construction industry asbestos standard did not even propose a separate standard for construction. Instead, it proposed only a general industry standard similar to the then-existing standard but for the PEL and a few other provisions, and solicited comments on the advisability of a separate construction industry standard and what provisions such a standard should have. 49 Fed. Reg. 14116 (Apr. 10, 1984). Thus, to date OSHA has never had the benefit of public comment on the appropriate scope of a negative-pressure enclosure requirement. At a time when OSHA is engaged in rulemaking to revise the negative-pressure enclosure requirement to read as it argues here that it should be read, it would be wholly inappropriate for the Commission, in effect, to declare that action unnecessary because employers can be required to divine OSHA's intent from the contrary words of the current standard. II. The Secretary's Interpretation Is Not Entitled to Deference Under the Circumstances Presented Here. Normally, the Secretary's interpretation of OSHA standards are entitled to deference. Judge Salyers ruled as he did below because of the deference to be extended to the Secretary's interpretation. AACC, slip op. at 10. But deference is not appropriate in this case. The general rule is that the administrative interpretation of a regulation becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. See. 10 S T 0 2 8 I185 e.q.. United States v- Larionoff. 431 U.S. 864, 872 (1977); Bowles v. Seminole Rock Co.. 325 U.S. 410, 414 (1945). In the context of the Commission's review of OSHA enforcement cases, there is substantial precedent for the assertion that it is the regulatory interpretation of the Commission, instead of that of the Secretary, which is entitled to this deference. Sbjb Dolfi V. OSHRC (CF&I Steel Corp.), 891 F.2d 1495, 14 BNA OSHC 1388 (10th Cir. 1989), petition for cert, granted, 58 U.S.L.W. 3811 (U.S. June 25, 1990). The Supreme Court has agreed to decide this very issue in the CF&I case. Under the CF&I case and the cases it cites, it was inappropriate for Judge Salyers to defer to the Secretary's interpretation. Even if it is the Secretary's interpretation which is generally entitled to deference, however, deference is not appropriate here. Deference does not mean that an agency has the authority to rewrite its regulations through interpretations; on the contrary, the degree of deference is measured by the extent that the agency's interpretation does not strain the plain meaning of the words, or imply language that does not exist. Bonessa v. U.S. Steel Corp^. 884 F.2d 726, 732 (3d Cir. 1989); Bethlehem Steel Coro, v^ OSHRC, 573 F.2d 157, 161 (3d Cir. 1978). It is also measured by the consistency of the agency's interpretation over time. (citation) Here the Secretary's interpretation fails on each of these grounds. A. The Secretary's Interpretation Is Plainly Erroneous and Inconsistent With the.Standard. The Secretary has made no creditable attempt to reconcile her interpretation with the language of the standard, as discussed above. That alone is enough to prove that her interpretation is unreasonable. Sfift, e.g. Fluor Constructors, Inc. V. OSHRC. 861 F.2d 936, 939, 13 BNA OSHC 1956, ____ (6th Cir. 1988) ("An agency's interpretation of a regulation is valid, however, only if that interpretation complies with the actual language of the regulation."); Union of Concerned Scientists v. NRC. 711 F.2d 370, 381 (D.C. Cir. 1983) ("When an agency's interpretation of its own rules flies in the face of the language of the rules themselves, it is owed no deference."); Miller v. Bond, 641 F.2d 997, 1002 (D.C. Cir. 1981) (deference to an agency interpretation "is due only when the interpretation is 'reasonable and consistent with the regulation.'") This case may be usefully contrasted with the situation in GAF Corp. v. OSHRC, 561 F.2d 913, 916, 5 BNA OSHC 1555, ___ (D.C. Cir. 1977). There the court supported the Secretary's interpretation that the medical surveillance provision of the general industry asbestos standard was not triggered by exposures above the PEL. The language of the standard 11 contained no such quantitative trigger, and the court refused to imply one. Here, however, the situation is far different. Instead of silence about a quantitative trigger, the standard has not one but two explicit quantitative triggers for the negative-pressure enclosure requirement: paragraph (b)'s definition of the term "regulated area", and paragraph (e)(1). Both tie the scope of the requirement to airborne concentrations above the PEL, or to the reasonable likelihood of such concentrations. In addition to its conflict with the language of the standard, the Secretary's interpretation is unreasonable because the proffered justifications for it do not withstand scrutiny. First, the Secretary suggests that her interpretation is appropriate because: The removal or encapsulation of asbestoscontaining products . . . are typically associated with the highest asbestos exposures occurring in construction .... 51 Fed. Reg. at 22706. But an association with high exposures in some instances, even many instances, would not explain the necessity for a negative-pressure enclosure where that association is demonstrably absent, i.e.. where it can be demonstrated that airborne concentrations above the PEL are not even reasonably likely. Secondly, the Secretary cites a tiering approach to the hazards of asbestos, with the strictest controls reserved for operations with the highest exposure potential. As discussed below, that tiering approach of adjusting the degree of control to the degree of risk is inconsistent with an interpretation that controls are required even where there is no reasonable likelihood of risk. On the contrary, triggering a negative-pressure enclosure requirement with the reasonable likelihood of high exposure would appear to advance the Secretary's avowed purpose far better than would her own interpretation. Sometimes OSHA properly adopts "backstop" provisions, such as initial monitoring or medical surveillance requirements, which are not triggered by exposures above the PEL or action level. Industrial Union Dept., AFL-CIO v. American Petroleum Institute. 448 U.S. 607, 656-58, 8 BNA OSHC 1586, ___ (1980). But such "backstop" provisions differ sharply in nature from control provisions such as requirements for PELs and negative-pressure enclosures. Those must tend to reduce a significant risk. id. Where there is no reasonable likelihood of exposure above the PEL, there is no reduction of a significant risk. S T 0 2 8 I106 12 ST028M07 OSHA effectively concedes this point in the current rulemaking, where it discusses its finding that signficant risk exists even below the PEL: Most importantly, as noted above and by the Court, significant risk exists at levels below the PEL. Therefore reguiring that the spread of asbestos be contained where it is likely, even if not certain, that the PEL would be exceeded is both appropriate and necessary to reduce still significant risk to bystander employees. 55 Fed. Reg. 29712, 29716 (July 20, 1990). That conclusion is consistent with the interpretation that paragraph (e)(6)(i) is currently triggered by the reasonable likelihood of exposure above the PEL. Significantly, OSHA did not state that to address residual significant risk below the PEL that it was necessary to impose the negative-pressure requirement even where exposure above the PEL is not reasonably likely. B. The Secretary's Interpretation Was Not Thoroughly Ca.nsid.er.ed ------------------------------------------------------------------------- As support for the conclusion that the Secretary's interpretation is plainly erroneous, it is noteworthy that she has shown little indication that her interpretation was thoroughly considered. The evidence is to the contrary, since the issue was not specifically proposed for public comment, and within the last few weeks OSHA has found it necessary to request public comments on the appropriate scope of the provision. Preceding adoption of the construction industry asbestos standard, OSHA published two proposed rules, neither of which contained a negative-pressure enclosure provision. The first was a temporary emergency standard, 48 Fed. Reg. 51085 (Nov. 4, 1983), which was later invalidated by a court. Asbestos Information Association/North America__v. QSHA. 727 F.2d 415, 11 BNA OSHC 1817 (5th Cir. 1984). The second solicited comments on whether a separate construction industry standard should be adopted, and, if so, what its provisions should include, but it proposed only amendments to the general industry standard. 49 Fed. Reg. 14116 (Apr. 10, 1984). In response to the preamble to the proposed rule, some commentors suggested adoption of a negative-pressure enclosure requirement, but of necessity there was no thorough discussion of what its provisions should be. 51 Fed. Reg. 22612, 22710-11 (June 20, 1986). Thus, the Secretary cannot maintain that her interpretation is solidly based upon thorough public discussion of the issue. In effect, OSHA has acknowledged its lack of thorough consideration of the appropriate scope of the negative-pressure enclosure requirement by belatedly, years after adoption, 13 ' S T 0281108 specifically requesting public comment on its appropriate scope. 55 Fed. Reg. 29712 (July 20, 1990). The recent proposal stated: In 1986, OSHA believed, based on limited reports of experience using such enclosures for asbestos work, that the full enclosure, which enclosed the work and the workers and limits access, would be effective in containing asbestos .... OSHA seeks comment on applying the requirements for negative pressure enclosure for all removal, demolition and renovation jobs which involve asbestos. Id. at 29715, 29716. Whatever the outcome of the present rulemaking, it presumably will be well considered, based upon a full record. In contrast, the Secretary's interpretation of the current standard is not thoroughly considered. C. OSHA Has Interpreted the Negative-Pressure Enclosure Requirement Inconsistently.,----------------------------------------------- The deference due an agency's interpretation of its own regulations is dependent upon the consistency or inconsistency in its interpretations of those regulations over time. Sfifi, e.g.. United States v. Paddack. 825 F.2d 504, 512 (D.C. Cir. 1987) ("We do not normally defer to a vacillating agency position"); National Fuel Gas Supply Corp. v. FERC. 811 F.2d 1563, 1571 (D.C. Cir. 1987) ("If the agency's interpretation of a contract has vacillated, deference might give the agency license to act arbitrarily by making inconsistent decisions without justification."); Kent Nowlin Construction Co. v. OSHRC. 593 F.2d 368, 371, 7 BNA OSHC 1105, ___ (10th Cir. 1979) ("The petitioner should not be penalized fpr deviation from a standard the interpretation of which . . . cannot be agreed upon by those who are responsible for compelling compliance with it and with oversight of the procedures for its enforcement."). Here OSHA has repeatedly espoused the precise opposite of the interpretation now advocated by the Secretary. Thus, no deference is due to the Secretary's interpretation. In his decision below, Judge Salyers relied heavily on OSHA's interpretation expressed in the compliance directive for the standard, OSHA Instruction CPL 2-2.40 (Sept. 1, 1987). Decision at 8-9. As an initial matter, that directive cannot be said to be controlling. Union Carbide is aware of no evidence in the record that it reflects the intent of the drafters of the standard. It was issued over a year after the standard was published (June 20, 1986). There is no evidence in the record of which Union Carbide is aware that the drafters of the directive were also the drafters of the standard or that they consulted with the standard's drafters. See CF&I Steel Corn, supra. 12 BNA OSHC at 2074. 14 ST0281109 More importantly, the directive supports the precise opposite of the Secretary's interpretation. Appendix D of the directive is the only portion which explicitly classifies provisions of the standard as triggered by airborne concentrations above the PEL, triggered by airborne concentrations above the action level, or triggered regardless of level of airborne concentrations. It classifies all of paragraph (e) among the requirements triggered by the PEL. The only requirements identified as being triggered regardless of level are paragraph (k) (labels) and (1) (housekeeping). (Paragraph (k)(3) is classified as being triggered by the action level.) Thus, the directive itself is unambiguous in limiting the negative-pressure enclosure requirement, along with almost all of the rest of the standard, to situations where the PEL is exceeded or is reasonably likely to be exceeded. The provisions of the directive quoted by Judge Salyers do not support the Secretary's interpretation either. They acknowledge that paragraph (e) requires two distinctly different types of regulated areas to be established, but it does not explicitly state that paragraph (e)(1), with its linkage to potential exposure above the PEL, is inapplicable to paragraph (e)(6). In contrast. Assistant Secretary of Labor Pendergrass, who signed the asbestos standard on June 12, 1986 (51 Fed. Reg. at 22733), just six months later expressly interpreted the negative-pressure enclosure requirement to be triggered by the reasonable likelihood of exposures above the PEL: The intent of 1926.58(e) is to require a negative pressure enclosure only where a regulated area is required. Regulated areas are established only where asbestos concentrations exceed the permissible exposure limit .... Depending on the nature and extent of exposure, the requirement for a negative pressure enclosure may not be applicable in your case. Letter of October 30, 1986 from John A. Pendergrass to Thomas R. Rupfer (Attachment 1). Similarly, Charles Adkins, then OSHA's Acting Director of Health Standards Programs, wrote about the same time: The intent of 1926.58(e) is to require a negative pressure enclosure and "competent person" only where a regulated area is established .... Regulated areas are established only where concentrations exceed the PEL. 15 S T 0281110 Your second issue dealt with the type of operations that could qualify for exemption from the requirements of paragraph (e)(6). It should be noted that any operation can qualify for exemption provided airborne levels of asbestos are kept at or below 0.2 f/cc. This can best be accomplished by means of engineering controls used in conjunction with appropriate work practices since these two methods, when used either singly or in combination can be employed effectively to reduce asbestos exposures to below 0.2 f/cc. Letter of Oct. 10, 1986 from Charles A. Adkins to Daniel Hoffman, National Steel Corporation (Attachment 2). In addition to these informal interpretations (albeit by senior OSHA officials charged with responsibility for promulgating the asbestos standard), OSHA formally made the same interpretation in a 1988 Federal Register notice also signed by Assistant Secretary Pendergrass: Paragraph (e) of the construction standard now requires employers to establish regulated areas whenever the PELs are exceeded. Regulated areas required by the standard can take two forms. For most employers who perform asbestos removal, demolition, or renovation operations (other than small-scale shortduration), the regulated area must consist of a negative-pressure enclosure that will confine the asbestos fibers being generated to the area within the enclosure and will thus protect other employees and bystanders on the site from exposure to excessive levels of asbestos. For small-scale, short-duration removal, demolition and renovation operations and for asbestos work operations that do not involve asbestos removal, demolition, or renovation, the employer may simply demarcate the regulated area by posted signs that limit the number of employees entering the area. Regulated areas do not have to be established where engineering and work practice controls reduce employee exposures to asbestos to levels below the standard's TWA and excursion permissible limits. 53 Fed. Reg. 35610, 35622-23 (Sept. 14, 1988). This is not to say that from time to time OSHA officials have not also expressed the Secretary's current interpretation in informal statements; they have. The current rulemaking proposal asserts that the proposed amendments to paragraphs (e)(1) and (e)(6) are simply clarifications. But it should be clear that OSHA's interpretations of paragraph (e)(6)(i) 16 ST028IIII shortly after issuing the standard and its formal interpretations since then have interpreted the standard contrary to how the Secretary now argues that it should be interpreted. In light of this vacillation, the Secretary's interpretation is entitled to no deference. III. interpreting the Negative-Pressure Enclosure Requirement as Limited to Situations in Which Overexposures Are at Least Reasonably Likely Is Consistent With the Purpose of the Requirement-.----------------------------------- -------- :----------------------- In construing the meaning of paragraph (e)(6)(i), the Commission should keep in mind the purpose of that provision. That purpose is a limited one, preventing overexposures. Thus, it is perfectly consistent to interpret the requirement's application as limited to situations in which overexposures are at least reasonably to be expected. The preamble to the construction industry asbestos standard recognizes that "employees engaged in asbestos removal, demolition, and renovation operations generally have the highest asbestos exposures of all construction workers." 51 Fed. Reg. at 22706. Accordingly, OSHA adopted several provisions applicable only to those operations, including paragraph (e)(6)(i). But to say that some removal, demolition, and renovation operations are associated with high airborne concentrations is not to say that all or even most of those operations are so associated. On the contrary, as noted above, OSHA explicitly found that many removal, demolition, or renovation operations do not involve high potential exposures when certain techniques are followed, such as use of glove bags or wet methods. In the preamble OSHA explained the purpose of the negative-pressure enclosure requirement as follows: The regulated area requirement in paragraph (e)(6) of the revised construction standard requires employers who perform asbestos removal, demolition, or renovation operations to establish regulated areas that consist of negative-pressure enclosures that will confine the asbestos fibers being generated to the area within the enclosure and will thus protect other employees and bystanders on the site from exposure to excessive levels of asbestos. 51 Fed. Reg. at 22710 (emphasis added). Thus, the purpose of the requirement is to protect employees outside the work area from overexposure. For some kinds of removal, demolition, or renovation operations, the risk of overexposure of those employees may be substantial. But OSHA has recognized that for 17 III18Z01S others kinds of those operations/ use of certain techniques is sufficient to avoid even the reasonable likelihood of overexposures. Interpreting the requirement to be triggered by the reasonable likelihood of exposures above the PELS rationally related the obligation to provide protective measures for bystanders to the need for such measures. Limiting the application of the negative-pressure enclosure requirement is also consistent with the tiering approach espoused in the preamble. There OSHA explained: Accordingly, the final standard applies to all occupational exposures to asbestos in the construction industry, but is tiered to apply increasingly stringent requirements to those work operations associated with the highest exposures .... OSHA believes that this tiering approach will simultaneously ensure maximum employee protection while scaling the burden of compliance with the standard to the degree of hazard associated with particular operations OSHA notes that the final standard has been carefully structured by the Agency to relate the stringency of the requirements to the extent and duration of employee exposures. OSHA therefore believes that no compliance burden will be placed on construction employers . . . who maintain asbestos exposures in their workplaces to levels below the action level of 0.1 fiber/cc. Id. at 22706, 22707. If the degree of hazard is very low because airborne concentrations are not reasonably likely to exceed the PELs, then under this approach the lesser risk should have less stringent requirements. Conversely, where the risk of airborne concentrations above the PELs is at least reasonably likely, more stringent requirements are appropriate. In the passages quoted above, OSHA recognized the need to correlate the "compliance burden" placed upon construction employers with the degree of risk involved. That recognition is compelled by Section 3(8) of the Occupational Safety and Health Act of 1970 ("OSH Act"), 29 U.S.C. 652(8), which requires that OSHA standards be: reasonably necessary or appropriate to provide safe or healthful employment and places of employment. While the OSH Act may not require explicit balancing of costs and benefits for health standards, the provisions of Section 3(8) apply even to those standards. Sfifi. American Textile Mfrs. Ass^ v. Donovan. 452 U.S. 490, 514 n.32, 9 BNA OSHC 1913, ___ 18 ST0281113 (1981) (OSHA could not insist on a feasible requirement for use of five respirators if use of one respirator would achieve the same reduction in health risk). Accordingly, the Secretary must be able to establish that the negative-pressure enclosure requirement is "reasonably necessary or appropriate". That burden cannot be sustained when the requirement is interpreted to apply even when airborne concentrations above the PEL are not at least reasonably likely. Judge Barkley found that linking the negative-pressure enclosure requirement to the reasonable likelihood of overexposure was consistent with this tiering approach: Reading the standard to require a reasonable expectation of overexposure does not harm the Secretary's "graduated response" mentioned in the preamble to the standard. If there is a reasonable expectation of overexposure and the employer is engaged in asbestos removal, the employer is prohibited from utilizing the less restrictive regulated area, the demarcated area, but instead must utilize a negative pressure area, which in turn without any further showing imposes such requirements as respiratory protection, hygiene facilities, employee training and medical surveillance. EEC, slip op. at 9. Ironically, the Secretary's interpretation departs from this tiering scheme. It ignores the reasonable likelihood of airborne concentrations above the PELs, or the lack of such a likelihood, and instead lumps together all removal, demolition, and renovation operations together. The only exceptions are for small-scale, short-duration operations, and where the use of negative-pressure enclosures is infeasible. For all others, it ignores OSHA's findings that with the use of wet methods and/or other techniques there is no reasonable likelihood of overexposures and treats them all as though they uniformly pose a high degree of hazard. OSHA's own tiering scheme can only be furthered by linking the negative-pressure enclosure requirement to the reasonable likelihood of overexposure. Although nowhere articulated by the Secretary, a sub silentio purpose underlying her interpretation may be the perception that enforcement of the negative-pressure enclosure requirement would be hampered by a linkage to the reasonable likelihood of overexposure. Certainly, if every removal, demolition, or renovation operation were subject to the requirements of paragraph (e)(6)(i), OSHA inspectors could cite employers for failure to comply with that provision simply based upon the objective fact of whether or not a negative-pressure enclosure was used. But linking the requirement to the reasonable likelihood of overexposure is not a significant obstacle to OSHA's enforcement of the provision. 19 Significantly, OSHA has no need to prove actual exposures above the pels. If that were the case, OSHA would have a difficult burden of proof where the employer has not conducted monitoring. But OSHA needs only to prove a reasonable likelihood of airborne concentrations above the PELS. That can be established after the fact, even without monitoring results, as illustrated by Judge Barkley's decision in EE, which the employer chose not to appeal to the Commission. COHCLUSIQH The Commission should endorse the views of Judge Barkley in EEC rather than the views of Judge Salyers in this case on the issue of what triggers the provisions of 29 C.F.R. 1926.58(e)(6)(i). Judge Barkley carefully considered both the language of the construction industry asbestos standard and the purpose of the negative-pressure enclosure requirement in concluding that the Secretary's interpretation was unreasonable and not entitled to deference. In addition, the Commission should consider OSHA's history of interpreting the requirement as Judge Barkley concluded that it should be interpreted, rather than how the Secretary now argues that it should be interpreted. The Secretary's position is contrary to the language of the standard, and it works against the tiering approach endorsed in the preamble. The Secretary has an immediate opportunity to revise the standard to read as she feels it should read. Yet sound policy reasons as well as the current text of the standard support retaining the standard's linkage of the negative-pressure enclosure requirement to the reasonable likelihood of airborne concentrations above the PEL. For the foregoing reasons, Judge Salyers' decision on the issue of what triggers 29 C.F.R. 1926.58(e)(6)(i) should be REVERSED. Mark N. Duvall Health and Safety Counsel Union Carbide Chemicals and Plastics Company Inc. 39 Old Ridgebury Road, E3 Danbury, CT 06817-0001 Toby Alaska Threet Attorney The Dow Chemical Company Legal Department 2030 Willard H. Dow Center Midland, MI 48674 Date: August 9, 1990 ST028III4 20 &H I8201S CERTIFICATE OF SERVICE I hereby certify that on this 9th day of August, 1990, I mailed one copy of Brief of Amici Curiae Union Carbide Chemicals and Plastics Company Inc. and The Dow Chemical Company to the following by first class, postage-paid mail: Tony Gil, Esq. U.S. Department of Labor 881 Federal Office Building 1240 East Ninth Street Cleveland, OH 44199 Robert W. Thomson, Esq. Meyer, Darragh, Buckler, Bebenek, Eck & Hall 2000 Frick Building Pittsburgh, PA 15219 Date: August 9, 1990 Mark N. Duvall Counsel for Amicus Curiae Union Carbide Chemicals and Plastics Company Inc. 21 Page 6 corns AGENDA FOR FORMAL PROGRAM REVIEW I. INTRODUCTION AUDIT CHAIRMAN 5 MIN. II. REPORT OF WALK-THROUGH AUDIT CHAIRMAN 5 MIN. III. REVIEW OF MEDICAL PROGRAMS PLANT PHYSICIAN 10 MIN. IV. REVIEW OF PLANT PROGRAMS PLANT INDUSTRIAL HYGIENE CONTACT INDUSTRIAL HYGIENIST A. STATUS OF PREVIOUS AUDIT B. HAZARD COMMUNICATION C. INDUSTRIAL HYGIENE SURVEILLANCE D. RESPIRATORY PROTECTION E. RADIATION SAFETY F. HEARING CONSERVATION G. VENTILATION H. PERSONAL PROTECTIVE EQUIPMENT I. HEAT STRESS J. ERGONOMICS K. SPECIAL REGULATED MATERIALS 1. ASBESTOS 2. FORMALDEHYDE 3. ACRYLONITRILE 4. ETHYLENE OXIDE 5. VINYL CHLORIDE 6. BENZENE V. TOP INDUSTRIAL HYGIENE PRIORITIES FOR NEXT 2 YEARS PLANT SUPERINTENDENT VI. SUMMARY AUDIT CHAIRMAN 5 MIN. 5-10 MIN. 5-10 MIN. 5*10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 5-10 MIN. 10 MIN. 5 MIN. CT CO Page 8 5. Other Training a. Protective equipment b. Hearing conservation c. Heat stress d. Radiation e. Formaldehyde f. Benzene g. Acrylonitrile h. Vinyl chloride i. Ethylene oxide 6. Plant Postings on Employee Bulletin Boards a. "Access to Occupational Health Information" (2/88) b. Radiation sign: TRCR Form 21-1 :.n c ^ C7> CO cn Page 9 PREVIOUS PROGRAM REVIEW 1. When was the industrial hygiene program previously evaluated? 2. What is the status of the recommendations made in the previous audit summary report? . 3. Have there been any major changes or additions to the plant since the last evaluation? V5 --s ~3 ^ cr 4. Are there any specific concerns that you feel should be addressed in this audit? PREVIOUS PROGRAM REVIEW (for presentation to audit team) - Status of recommendations from previous audit. Last major changes since last audit. List any other previously unrecognized health hazards. HAZARD COMMUNICATION Ji oo 1. Is there a plant specific Industrial Hygiene orientation program for: a. employees new to the plant orDow? b. long term contractors? c. short term contractors? d. short term Dow employees? e. visitors or transport personnel? YN YN YN YN YN 2. Are the following elements included in the orientation program? a. location and contents of the Industrial HygieneManual. b. major chemical and physical stresses for the plant/area. c. resource sheets (MSDS, TIME, etc). d. protective equipment policies. YN YN YN YN 3. How is the orientation documented? Was documentation forwarded to Industrial Hygiene? a. new employees to the plant. b. long term contractors. c. short term contractors. d. short term Dow employees. e. visitors or transport personnel. YN YN YN YN YN 4. Is the Hazard Communication Program written, in the Industrial Hygiene Manual and made available to all employees throughout each work shift? YN 5. Regarding the Chemical and Physical Agent Inventory (CPAI) a. does a CPAI exist for each job classification YN b. have all CPAIs been updated within the previous 12months YN c. does the CPAI include intermediates (isolated and non-isolated), lab chemicals, shop/maintenance materials which are not "consumer- type" products YN 6. Are resource sheets (MSDS, TIME, etc.) available for each material listed on the CPAI? YN Have all CPAIs and resource sheets available in the Industrial Hygiene Manual for inspection during the walk-through. Page 12 co 7. Have all employees received Hazard Communication training which included the following elements: overview of the standard, hazards of routine and non-routine jobs, use and location of MSDS, explanation of labels, health hazard information and protective equipment requirements? CD CD __ , -p, co vxp YN 8. Have all long term contractors received the required Hazard Communication training which included the following elements: overview of the standard, hazards of routine and non-routine jobs, use and location of MSDSs, explanation of labels, health hazard information and protective equipment requirements? Y N NA 9. When was this training (6 4 7) last completed? 10. Are exposure monitoring results and control strategies (if applicable) communicated to employees both individually and in group meetings? Y N NA Provide training records generated since the last audit. 11. Are exposure monitoring results and control strategies (if applicable) communicated to contractors? Y N NA Provide training records generated since the last audit. 12. Was the documentation in questions 10 & 11 forwarded to Industrial Hygiene? YN 13. If an employee misses an Industrial Hygiene meeting (e.g. Hazcom, exposure monitoring, etc.), what methods are used to do follow-up training? 14. a. Have any new or replacement chemicals been added to the plant CPA1 since the last audit? YN b. If yes, were employees trained on potential health effects? YN Provide training records generated since the last audit. 15. How many materials on the CPAI do not have an exposure guideline? Are any of these materials handled in large quantities? Li st___________________________________________________ _ Is there a toxicity concern for these materials? List Are there real or potential personal exposures to these materials List ____________________________________________________ 16. Do you have any PMN chemicals regulated by a 5(e) order? Describe _______________________________________________ Was monitoring, methods development, or protective equipment testing required? IS O IO L HAZARD COMMUNICATION PROGRAM (For presentation to audit team) Describe the orientation program Training documentation Page 14 j ' 'i I Describe "new chemicals" training program Describe plans to develop an IHG Program strength Areas for improvement INDUSTRIAL HYGIENE SURVEILLANCE Page 15 -I. Is the Occupational Health Protocol current i.e. less than 2 years old? 2. Have all chemical and physical stresses with a Priority Rating of 1, 2 or 3 been evaluated? Approximately how many industrial hygiene samples were taken within the past year?____ three years? 3. List past chemical monitoring data: ChemicalTWA or Job TaskRangeAvo. n LO ro 4. Has all monitoring been documented in an Industrial Hygiene report? YN 5. Were report recommendations implemented? Has this been adequately documented in the Industrial Hygiene original data files? YN 6. Are exposure monitoring samples analyzed 'in-plant' using the plant lab? YN Does the plant lab participate in the analytical round robins? YN 7. What chemical or physical agents of concern cannot be monitored due to inadequate monitoring methods? Are there any method development plans? Page 16 8. Is the quality assurance program adequate i.e. spikes, blanks, records, chain of custody, storage, etc.? 9. What are the future industrial hygiene monitoring plans for this facility?_ YN cfi9/.euois 10. Are continuous air monitors in use? What kind of analysis system is used? Chemical/conditions monitored What is the purpose? ___ Leak detection ___ Area ___ Fence Line Other ___ How are the monitors calibrated? YN INDUSTRIAL HYGIENE MONITORING (For presentation to audit team) Review past monitoring data - 8 hour TVA - Job Task - Wipe Testing Review future monitoring plans Review need for methods development Program strengths_________________________________ Page 17 Areas for improvement Page 18 RESPIRATORY PROTECTION 1. Is there a written respiratory program which has been updated within the past 12 months? 2. What types of respirators are issued for the following uses? Escape only: _ Routine use:_________________ Emergency use: YN co --( o CO --J CO cr. 3. Has training been conducted for all users? (Annual for routine users and biennial for escape-only users?) Y Describe the training program (who conducts, methods, tests, etc.) N 4. Has fit testing been conducted within the past 2 years for all routine users? 5. Have any employees been medically restricted for use of certain types of respirators? 6. If air line systems are used, what is the source of the breathing air? __ If an air compressor is used for breathing air, describe the maintenance program for filters, CO alarms, etc. Is the compressor located in a clean area? Is the compressor used during plant emergencies? 7. Describe the plant programs for: cleaning, storage, and maintenance. YN YN YN YN 8. What routine jobs require the use of respirators? Page 19 C/3 O CD CO CT* CT> Have exposure levels been assessed during these jobs? 9. Are air purifying respirators being used with materials having poor warning properties? Describe YN YN If yes, have cartridges been tested for breakthrough? Y 10. Who has plant responsibility for implementing the respirator program? N 11. What special provisions are made for those employees wearing eyeglasses? 12. How are breathing air line tap-ins identified? Are only Hansen BK and HK series fittings used? 13. What is the respiratory protection program for visitors and non-Dow employees? YN jLVJUOOJLS RESPIRATORY PROTECTION (for presentation to audit team) Describe types of respirators used in plant Training Program Practice, for cleaning, storage, maintenance Fit Testing Program Cartridge breakthrough testing program Program strengths________________________________ Page 20 Areas for improvement Page 21 ^ RADIATION SAFETY 1. How many sources are in the plant? CO --! GO co IF NONE, SKIP THE REMAINDER OF THIS SECTION. 2. Are all radiation devices registered with Radiation Safety, B-101? 3. Who is responsible for the radiation program? Has this person beentrained? 4. Has radiation safety training been conducted for the plant personnel? 5. Are there any radiationdevices which are no longer needed? 6. Have all plant radiation meters been calibrated within the past year? YN YN YN YN YN radiation program (for presentation to audit team) Describe radiation program. Training and Documentation. Page 22 <n ---i o ~5 '.o -I cr> tO Calibration program of sources, detectors and meters Program strengths Areas for improvement Page 23 HEARING CONSERVATION O I. a. Is any job classification exposed to noise levels greater than 85 dBA as an 8 hour time-weighted average (TWA) or 82 dBA as a 12 hour TWA? Y List these job classifications. N b. Are there any plant areas with sound levels in excess of 90 dBA? List these areas of the plant. YN If the answer to la and lb is NO, skip the remainder of this section. 2. If employees are exposed to greater than 85 dBA as an 8 hour TWA or 82 dBA as a 12 hour TWA, are they provided the following. a. annual training b. annual audiograms c. hearing protectors NA or YN YN YN 3. If employees are exposed to area noise levels in excess of 90 dBA, have they been trained in the proper use of hearing protectors? YN 4. Has a personal and area monitoring survey been conducted within the past three years? YN 5. Are there guidelines which outline where hearing protectors are stored and the brand (type) to be used for specific job tasks or areas? Y N 6. Does the Industrial Hygiene noise report: I) identify the types of hearing protectors used by the plant personnel, and 2) verify that the attenuation is adequate? YN NA Page 24 7. a. Are there any employees who have experienced a Standard Threshold Shift (STS)? b. If yes, have these employees been fitted and trained in hearing protectors by Occupational Medicine? c. Have these employees been rechecked by Occupational Medicine within 30 days of the original audiogram? 8. Have all plant areas in excess of 90 dBA been posted with the 'caution noise' sign? 9. Have all plant areas in excess of 105 dBA been posted with the 'danger noise' sign? 10. Are there any other areas that should be evaluatedfor noise levels or engineering controls toreduce the levels? If yes (list) What engineering controls have you instituted to reduce noise levels throughout the plant? YN YN YN Y N NA Y N NA YN What future plans do you have to reduce noise levels throughout the plant? Timetable? cn CJl HEARING CONSERVATION (for presentation to audit team) Review past noise monitoring data. Review types of hearing protection Issued. Review high noise areas. Review plans to control noise. Review STS history. Program Strengths____________________________________ Areas for Improvement VENTILATION 1. a. Are there any laboratory type exhaust hoods in use? YN b. Are there any other local exhaust ventilation systems in use for operations such as drumming, bagging, welding, spray painting, solvent/degreasing tanks, etc.? YN c. Are there any laboratory exhaust hoods which do not meet the requirements established In Safety Reference No. 7? YN If the answer to la and lb are both NO, skip the remainder of this section. 2. a. Are the fume hoods equipped with manometers? YN b. If Yes, has an airflow survey been conducted within the past 3 years? YN c. Is there a quarterly check program for the manometer reading? Y N d. If 2a is No, has an airflow survey been conducted within the past 1 year? YN 3. Are all laboratory and local exhaust ventilation systems included in the Industrial Hygiene Preventative Maintenance Program? YN a. Are all scrubbers, filters, and other cleaning devices associated with the ventilation systems included in the preventative maintenance program? YN b. Are there written job procedures for the cleaning and maintenance of ventilation systems? YN 4. Are the air intakes for the building located near any of the exhaust points for the fume hoods or local exhaust ventilation devices? YN 5. Is there alternate clean air intake for the control room and major offices in case of a gas release? YN 6. What type of ventilation is provided for operations such as drumming, bagging, welding, spray painting, solvent/degreasing tanks, etc? Please list each operation and the type of ventilation currently being used. YN 7. Are there any specific operations that need to be evaluated to determine if ventilation is needed or required?_________ VENTILATION (for presentation to audit tean) Review hood survey programs describe local exhaust systems Review bag filter (etc.) maintenance procedures Program strengths________________________________ Page 27 Areas for Improvement Page 28 PERSONAL PROTECTIVE EQUIPMENT 1. Is there a written protective equipment policy addressing selection, use and limitations, decontamination, maintenance and storage? SELECTION 2. What types of chemical protective clothing (CPC) on work clothing is provided? G1oves Boots Suits Clothing Other 3. Have all job tasks that pose significant exposure potential to physical and/or chemical agents been identified in your plant? Is this information specified in a table, job procedures or other (describe)? Y N NA in --i o OJ 1 cn CTi YN YN 4. Are the industrial hygienist and safety director contacted when new PPE is considered for use in your plant? 5. Is all the PPE used in this plant approved by the Protective Equipment Team (PET)? 6. Is there adequate documentation of breakthrough time and permeation rate on the chemical protective clothing (CPC) used in this plant? (especially CPC that is reused) USE k MAINTENANCE 7. Are all PPE items (e.g. chemical protective coveralls, gloves, boots, goggles, etc.) inspected for defects prior to use? 8. Do personnel that are required to wear PPE properly don and doff their equipment? 9. Is repair of PPE done by a fully competent person that can certify that the condition of the PPE is equal to or superior to the manufacturer's original specification? YN YN YN YN YN Y N NA GO --1 "5 Page 29 DECONTAMINATION. REUSE AND STORAGE 10. Is contaminated chemical protective clothing (CPC) decontaminated before removal? 11. After removal, is further decontamination required? 12. If the CPC is decontaminated, how is it done? (describe below) - water based? - aeration? - other?______________________________________ 13. If the CPC is not decontaminated, is it discarded? 14. Are clean room/shower room/dirty room areas designated? 15. Do personnel have to cross through control rooms or hallways to attain access to these facilities? 16. Are street clothes stored separate from work uniformsand PPE? 17. Is there a disposal frequency for reused items? LAUNDERING 18. Is CPC (e.g. chemical protective gloves, coveralls, boots, etc.) laundered off-site? 19. Is general purpose clothing (e.g. cotton gloves, coveralls, uniforms, etc.) cleaned off-site? 20. Is there a potential for the general purpose clothing to contain contaminants with high molecular weight, low volatility, low water solubility and with skin absorption or tracking potential (e.g. hexachlorobenzene, 4,4-methylene dianaline, toluene diamine, etc.)? 21. For off-site cleaning, has the laundry been notified of the potential contaminants via a MSDS or equivalent data sheet? L; * CJ1 cr* YN YN YN Y N NA Y N NA Y N NA Y N NA YN YN YN Y N NA Page 30 TRAINING 22. Have all employees required to wear PPE been trained upon initial assignment, biennially and after major job or process changes? 23. When was training last conducted? VN oo cn PERSONAL PROTECTIVE EQUIPMENT (for presentation to audit team) Oescribe the types of CPC issued Describe training program Practices for cleaning, storage, maintenance CPC testing program Laundry practices Program Strength________________________________ Areas for Improvement go HEAT STRESS Page 32 -.j O'! o~j LO 1. Are there any heat stress areas (hot equipment or work conditions) within the plant/area? If yes, 2. Are employees trained annually in heat stress recognition, treatment and procedures? If no, when was training last conducted? 3. Do written job procedures or safe work permits address how to avoid heat stress on jobs where heat stress may be a concern? ERGONOMICS 1. Have you ever had an ergonomic evaluation in your workplace for: Lifting practices Office Machinery Tool s 2. List and describe any manual lifting jobs in your plant. YN YN YN YN YN YN YN Page 33 3. Describe the types of injuries experienced by employees during the past 2 years. co co --! cn CTi CD A. Have your employees experienced any type of musculoskeletal problems in the past 2 years? If yes, could these be caused by or related to the work environment? 4. Are there jobs present that require employees to perform repetitive motion movements? 5. Are the tools correctly designed to fit the job? 6. Have hand and power tools been selected which A. Encourage correct hand position 8. Minimize vibration C. Are well-balanced and easy to hold 0. Give support to the guiding hand E. Are designed to eliminate sharp edges or ridges which might impair circulation of exert pressure on the nerves F. Decrease the excessive grip force to maintain the tool in a stable position YN YN YN YN YN YN YN YN YN YN Page 34 HEAT STRESS (for presentation to audit team) List hot areas within the plant. List jobs Tasting >30 minutes requiring chemical protective suits. CO CO * cn GO Describe plant programs to prevent heat stress. Page 35 ERGONOMICS (for presentation to audit team) Describe manual lifting jobs Review back or other injuries which could be work related Program strengths Areas for improvement Page 36 cn ASBESTOS 1. Is there any asbestos (insulation, gaskets, transite, etc.) in the plant? --i _7'i CT> CO YN IF THE ANSWER IS NO, SKIP THE REMAINDER OF THIS SECTION. 2. Has all asbestos material been identified and labeled? YN 3. Are permanent records (inventory) available showing the location of asbestos materials? YN 4. Are asbestos containing materials inspected every 6 months for signs of deterioration? YN 5. Are plant specific job procedures available for work involving asbestos materials? YN 6. Has initial health hazard training been completed for all employees who work with asbestos? YN 7. Has monitoring of personal exposures to asbestosbeen conducted? YN 8. a. Were any job classifications potentially exposed to greater than 0.1 f/cc as an 8-hour TWA? YN b. If yes, is health hazard training conducted annually for these affected job classifications? YN c. Were the potential exposures grater than 0.1f/cc for more than 30 days per year? YN d. Were potential exposures greater than 0.2 f/cc as an 8-hour TWA? YN e. Were there potential exposures greater than 1.0 f/cc for 30 minute excursions? YN f. If 8c, 8d or 8c were answered yes, were employees in these job classifications placed on the annual Medical Surveillance Requirements (MSR) for asbestos? Y N 9. Has a respiratory protection program been implemented? Y N NA a. Have all affected employees received initial fittesting? YN b. If 8d was answered yes, are employees fit tested every 6 months? YN Page 37 10. Is there a current copy of the OSHA asbestos regulation or the Texas Operations Asbestos Handbook In the Industrial Hygiene Manual? 11. Is there a current program to remove and/or replace asbestos materials by 1991 or 1992? YN YN :.o .T) Page 38 REGULATED MATERIALS (asbestos, benzene, etc.) (for presentation to audit team) Review usage inplant Review employee training Review monitoring data Review control methods - resp. CPC, engineering, etc. Program strengths_______________________________________ go cn G~> cn Areas for improvement <y> FORMALDEHYDE Page 39 L.'* C^> cr 1. Is formaldehyde (liquid or gas) used in the plant/area In concentrations greater than 0.1ft? YN IF THE ANSWER IS NO, SKIP THE REMAINDER OF THIS SECTION. 2. Has initial exposure monitoring been completed to identify formaldehyde exposures for all affected job classifications? YN 3. a. Were any job classifications potentially exposed to greater than 0.5 ppm as an 8 hour TWA (the action level)? YN b. If yes, was repeat followup monitoring conducted each 6 months? YN 4. Were any job classifications potentially exposed to greater than 1 ppm as an 8 hour TWA (the PEL)? YN 5. a. Were any job classifications potentially exposed to greater than 2 ppm as a 15 minute TWA (the STEL) during job tasks? YN b. If yes, was repeat followup monitoring conducted each 12 months? YN 6. Were employees notified within 15 days after the exposure monitoring results became available? YN 7. a. Are any employees exposed to concentrations greater than the action level or STEL? YN b. If yes, have these employees been placed on the annual formaldehyde MSR (Medical Surveillance Requirement) program? Y N IF 4A OR 5A WERE ANSWERED YES, ANSWER THE FOLLOWING QUESTIONS; OTHERWISE SKIP TO QUESTION 13. 8. Is there a written plan to reduce employee exposures to below the PEL? YN Have available the plan for inspection by the audit team. 9. Are regulated areas (>PEL or STEL) identified with the correct sign which states "Danger-Formaldehyde Irritant and Potential Cancer Hazard-Authorized Personnel Only"? YN 10. Has a respiratory protection program been implemented? YN CJO Page 40 11. Are employees who use negative pressure respirators fit tested annually? 12. Have the cartridge/canister replacement frequencies been specified in the area's written respirator program? 13. Has initial health hazard training been completed for all employees who work with formaldehyde? 14. Is health hazard training conducted annually? 15. Is a change room available for those who must remove street clothes and change into formaldehyde protective clothing? 16. Is the chemical protective clothing impervious to formaldehyde liquids? 17. Is full body protection used in areas where airborne concentrations exceed 100 ppm. Including emergency reentry operations? 18. Is the CPC decontaminated before it is placed back in storage? 19. Is there a formaldehyde spill and leak detection program? briefly describe cn YN YN YN YN YN YN YN YN YN 20. Is there a current copy of the OSHA formaldehyde standard in the Industrial Hygiene Manual? Y 21. Are all formaldehyde containers (temporary and permanent storage) labeled with the proper Hazard Communication sign which includes the information "Potential Cancer Hazard"? Y N N ACRYLONITRILE 1. Is acrylonitrile used in the plant/area in concentrations greater than 0.1X? IF THE ANSWER IS NO, SKIP THE REMAINDER OF THIS SECTION. 2. Has monitoring been done? 3. a. Were any job classifications potentially exposed to 1-2 ppm as an 8-hour TWA (the action level)? b. If yes, was repeat followup monitoring conducted each 3 months? c. Have these employees been placed on the annual Acrylonitrile HSR (Medical Surveillance Requirement) program? 4. a. Were any job classifications potentially exposed to greater than 2 ppm as an 8 hour TWA (the PEL)? b. If yes, was repeat followup monitoring conducted each month? c. Have these employees been placed on the annual Acrylonitrile HSR (Medical Surveillance Requirement) program? 5. Were any job classifications potentially exposed to greater than 10 ppm as a 15 minute TWA (the STEL) during job tasks? 6. Were employees notified within 5 days of the exposure monitoring results? 7. Are there any other job tasks or job classifications which should be monitored? When was monitoring last conducted? If 3a, 4a or 5 were answered Yes, answer the following questions; otherwise, skip to question 12. 8. Is there a written plan to reduce employee exposures to below the PEL or STEL? 9. Are regulated areas (>PEL or STEL) identified with signs which state "Danger-Acrylonitrile (AN)-Cancer Hazard-Authorized Personnel Only-Respirators May Be Required'? 0*3 Page 42 C' CP> v_D 10. Has a respiratory protection program been implemented? YN 11. Are employees who use respirators fit tested semi-annually? YN 12. Have the cartridge/canister replacement frequencies been specified in the area's written respirator program? YN 13. Has initial health hazard training been completed for all employees who work with acrylonitrile? YN 14. Is health hazard training conducted annually? YN 15. Is a change room available for those who must remove street clothes and change into acrylonitirile protective clothing? YN 16. Is the chemical protective clothing impermeable to acrylonitrile? Y N 17. Is the CPC decontaminated before it is placed back in storage? YN 18. Do employees shower at the end of the shift (or before) after using CPC for protection from liquid acrylonitrile? YN 19. Is there an acrylonitrile spill and leak detection program? YN briefly describe NA NA 20. Is there a current copy of the OSHA acrylonitrile standard in the Industrial Hygiene Manual? YN 21. Are all acrylonitrile containers (temporary and permanent storage) labeled wit sign stating "Danger-Contains Acrylonitrile-Cancer Hazard"? YN CO ----i zo ETHYLENE OXIDE Page 43 C7 --I CD 1. Is ethylene oxide (EO) used in the plant/area in concentrations greater than 0.1*? YN IF THE ANSWER IS W>, SKIP THE REMAINDER OF THIS SECTION. 2. Has initial exposure monitoring been completed to identify EO exposures for all affected job classifications? YN 3. a. Were any job classifications potentially exposed to 0.5-1 ppm as an 8 hour TV/A (the action level)? YN b. If yes, was repeat followup monitoring conducted each 6 months? YN 4. a. Were any job classifications potentially exposed to greater than 1 ppm as an 8 hour TWA (the PEL)? YN b. If yes, was repeat followup monitoring conducted each 3 months? YN 5. Were employees notified within 15 days after the exposure monitoring results became available? YN 6. a. Are any employees exposed to concentrations greater than the action level for more than 30 days per year? YN b. If yes, have these employees been placed on the annual EO MSR (Medical Surveillance Requirement) program? YN IF 3a OR 4a WERE ANSWERED YES, ANSWER THE FOLLOWING QUESTIONS; OTHERWISE, SKIP TO QUESTION 10. 7. Is there a written plan to reduce employee exposures to below the PEL? YN 8. Are regulated areas (>1 ppm) identified with the correct signs which state "Danger-Ethylene Oxide-Cancer and Reproductive Hazard-Authorized Personnel Only-Respirator and Protective Equipment may be required to be worn in this area"? YN 9. Has a respiratory protection programbeen implemented? YN 10. Has initial health hazard training been completed for all employees who work with EO? YN 11. Is health hazard training conducted annually? YN $ T (! 0 3 757 I Page 44 12. Is Chemical Protective Clothing (CPC) provided to employees? YN a. If yes, is this done to prevent skin contact with liquid EO? Y N b. Is a change room available for those who must remove street clothes and change into EO protective clothing? YN c. Is the CPC decontaminated before it is placed back instorage? Y N d. Are storage containers of contaminated CPC labeled? YN 13. Is there an EO spill and leak detection program? YN briefly describe 14. Is there a current copy of the OSHA EO standard in the Industrial Hygiene Manual? YN 15. Are all EO containers (temporary and permanent storage) labeled with a sign stating "Danger-Contains Ethylene Oxide-Cancer and Reproductive Hazard"? YN 16. Is there a written Emergency Plan? Have available this document for inspection. YN Page 45 --i VINYL CHLORIDE 1. Is vinyl chloride used in the plant/area in concentrations greater than 0.IS? YN IF THE ANSWER IS NO, SKIP THE REMAINDER OF THIS SECTION. 2. Has initial exposure monitoring been completed to identify vinyl chloride exposures for all affected job classifications? YN 3. a. Were any job classifications potentially exposed to 0.5-1 ppm as an 8-hour TWA (the action level)? YN b. If yes, was repeat followup monitoring conducted each 3 months? YN c. Have these employees been placed on the annual vinyl chloride HSR (Medical Surveillance Requirement) program? YN 4. a. Were any job classifications potentially exposed to greater than 1 ppm as an 8 hour TWA (the PEL)? YN b. If yes, was repeat followup monitoring conducted each month? Y N c. Have these employees been placed on the annual vinyl chloride MSR (Medical Surveillance Requirement) program? YN 5. Were any job classifications potentially exposed to greater than 5 ppm as a 15 minute TWA (the STEL) during job tasks? YN If 3a, 4a or 5 were answered YES, answer the following questions; otherwise, skip to question 12. 6. Is there a written plan to reduce employee exposures to below the PEL or STEL? Have available the plan for inspection by the audit team. 7. Are regulated areas (>PEL or STEL) Identified with signs which state "Cancer Suspect Area-Authorized Personnel Only"? 8. Has a respiratory protection program been implemented? YN YN YN Page 46 co 9. If air purifying respirators are used, is there a continuous monitor and alarm system to warn of excessive concentrations? 10. Have the cartridge/canister replacement frequencies been specified in the area's written respirator program? Have available the records for Inspection by the audit team. 11. Has initial health hazard training been completed for all employees who work with vinyl chloride? Have available the records for inspection by the audit team. 12. Is health hazard training conducted annually? Have available the records for inspection by the audit team. 13. Is a change room available for those who must remove street clothes and change into vinyl chloride protective clothing? 14. Is a change room available for those who must remove street clothes and change into vinyl chloride protective equipment? 15. Is there a current copy of the OSHA vinyl chloride standard in the Industrial Hygiene Manual? 16. Are all vinyl chloride containers (temporary and permanent storage) labeled with a sign stating "Cancer Suspect Agent"? Y ftvj NA Y N NA YN YN YN YN YN YN Page 47 c.o --! BENZENE 1. Is benzene used In the plant/area in concentrations greater than 0.1X? YN IF THE ANSWER IS NO. SKIP THE REMINDER OF THIS SECTION. 2. Has initial exposure monitoring been completed to identify benzene exposures for all affected job classifications? YN 3. a. Were any job classifications potentially exposed to 0.5-1 ppm as an 8 hour TWA (the action level)? YN b. If yes, was repeat followup monitoring conducted each 12 months? YN 4. a. Were any job classifications potentially exposed to greater than 1 ppm as an 8 hour TWA (the PEL)? YN b. If yes, was repeat followup monitoring conducted each 6 months? YN 5. Were any job classifications potentially exposed to greater than 5 ppm as a 15 minute TWA (the STEL} during job tasks? YN 6. Were employees notified within 15 days after the exposure monitoring results became available? YN 7. a. Are any employees exposed to concentrations greater than the action level for more than 30 days per year of greater than the PEL or STEL for more than 10 days per year? YN b. If yes, have these employees been placed on the annual Benzene MSR (Medical Surveillance Requirement program? YN IF 4a OR 5 WERE ANSWERED YES, ANSWER THE FOLLOWING QUESTIONS; OTHERWISE, SKIP TO QUESTION 13. 8. Is there a written plan to reduce employee exposures to below the PEL? YN Have available the plan for inspection by the audit team. Page 48 9. Are regulated areas (>1 ppm) identified with the correct signs which state "Danger-Benzene-Authorized Personnel Only-Respirator Required"? 10. Has a respiratory protection program been implemented? 11. Are employees who use negative pressure respirators fit tested annually? 12. Have the cartridge/canister replacement frequencies been specified in the area's written respirator program? Have available the records for inspection by the audit team. 13. Has initial health hazard training been completed for all employees who work with benzene? Have available the records for inspection by the audit team. 14. Is health hazard training conducted annually? Have available the records for inspection by the audit team. 15. Is a change room available for those who must remove street clothes and change intobenzene protective clothing? 16. Is the chemical protective clothing impervious to benzene? 17. Is the CPC decontaminated before it is placed back instorage? 18. Is there a benzene spill and leak detection program? briefly describe YN YN Y N NA Y N NA YN YN YN YN YN YN 20. Is there a current copy of the OSHA benzene standard in the Industrial Hygiene Manual? 21. Are all benzene containers (temporary and permanent storage) labeled with a sign stating "Danger-Contains Benzene-Cancer Hazard"? APPENDIX A Typical questions which may be asked of plant personnel at the time of the plant visit. 1. Where is your industrial hygiene manual located? 2. What is in your industrial hygiene manual? 3. What is an HSDS? 4. What are the main chemicals you work with and their hazards? 5. Are you required to wear a respirator? 6. What jobs require the use of this respirator? 7. When were you last trained on the use and maintenance of your respirator? 8. Do you have to wear hearing protection? 9. What jobs require the use of hearing protection? 10. What other P.P.E. is required for your job? 11. Have you been trained on this equipment? When? 12. Do you have any health concerns by working in this plant? 13. How effective is your plant's Industrial Hygiene program? 14. What do you think we can do to help improve your work area? / INDUSTRIAL HYGIENE SERVICES s//r/rr ycr^t ----- ^ FROM: STAN GORGACZ Michigan Division Industrial Hygiene Services 258 Building (517) 636-0609 CO O"V 23 APPENDIX D - PLANT SPECIFIC ASSESSMENT QUESTIONNAIRE INDUSTRIAL HYGIENE ASSESSMENT CHECK LIST This questionnaire should be distributed to the specific plants selected for participation as part of the site assessment of the Industrial Hygiene program. This questionnaire should be completed by the plant industrial hygiene contact and site hygienist for that plant and copies available the week before the site assessment. The emphasis of the assessment is to review Industrial Hygiene programs but also to ensure that documentation is complete. Please have written programs, documentation of training meetings, etc. readily available for the assessment team. This will help to speed the assessment along. SECTION I. EDUCATION AND TRAINING CRef. OSHA HAZCOM 29CFR1910.1200) 1. Current date of written HAZCOM program . Show assessment team written HAZCOM program. ^ ^ -^ --i Z a. New and transferred employee orientation program. b. How effective is training when employee transfers from one department to another? Show assessors examples of records. 3. Current date of Chemical and Physical Agent Inventory. 4. Are all the Data Sheets (MSDS and/or TIME) current? (Current dates are on the CPAI Index.) Has a list of chemicals without the most current date been prepared for the purpose of getting updates? Rev. 2-89 24 5. Where is the location of chemical hazard data sheets? 6. Show assessors documentation records (sign-up sheets) of the employee annual hazard communication program. Explain the techniques used to communicate this information to employees. 7. How are health bulletins (bulletins transmitting recently discovered health effects) handled, and the information disseminated to employees? 8. ' Inspect work areas for proper labeling on containers. ^3 9. What is the orientation and education program for "short term" contractors and "long term" contractors? SECTION n. RESPIRATORS (Ref. Safety Std. and OSHA Std. 29CF 1910.134) 1. Attach copy of the written Respirator Program. Where is it kept? 2. Explain how users are instructed and trained in the proper use of respirators and their limitations for the chemicals handled. How often repeated? Show documentation records to assessors. 3. Is qualitative (or quantitative) fit testing provided? How often repeated? Show documentation records to assessors. Rev. 2-89 25 4. How is documentation of medical approval done for those who must wear respiratory protection? 5. Inspect respirator storage area for compliance with cartridge change frequency, cleaning, storage, and monthly inspection records. 6. Are respirators used by non-Dow employees? If yes, how does the Respirator Program for non-Dow employees differ from Dow employees? SECTION m VENTILATION --i -to Jv-y `-J CTi CO CD 1. What operations have local exhaust ventilation provided to capture air contaminants? 2. What is the regular inspection and maintenance schedule for ventilation systems? 3. What ventilation is provided for welding operations? Does it appear to be adequate or are improved methods of controlling exposure indicated? SECTION IV. HEARING CONSERVATION (Ref. Dow Safety Std., IHG and OSHA Std. 29CFR1910.95) 1. Attach copy of the written Hearing Conservation Program. Rev. 2-89 uois 26 2. Are there any areas that exceed 90 dBA? If so, are they posted and demarcated as high noise areas? Is there an area floor plan or an area diagram with noise levels documented? 3. Are employees who are exposed to peak exposures above 90 dBA or to a TWA of 85 dBA or greater furnished properly fitted hearing protection, and trained in its proper use? a. Yes b. No l! 4. Are employees informed of the hazards of excessive exposure to noise annually? a. Show documentation records? b. No 5. What noisy areas should be evaluated for possible noise level reduction engineering controls? 6. Are employees exposed to a TWA of 85 dBA (or greater) given base line and subsequent annual audiograms? a. Yes b. No 7. Where and by whom are audiograms done? Rev. 2-89 27 8. How many employees have experienced a "standard threshold shift" in hearing acuity? a. Retested to verify the change? 1) Yes 2) No b. Referred to a qualified physician for a medical evaluation of the change? 1) Yes 2) No c Retrained and required to wear hearing protection? 1) Yes 2) No cL Identified to unit supervision? 1) Yes 2) No oo --I di CO __ I cc CO r\o (d 43 rd Xi SECTION V. PROTECTIVE EQUIPMENT/WORK CLOTHING 1. Is there a written Protective Equipment Policy? Yes No company-furnished work clothing provided? Yes No 3. Is company-furnished work clothing worn off site? a. Yes. If so, are there potential contaminants that could be transported in the clothing? 1. Yes. If so, what is the contaminant? 2. No. b. No Rev. 2-89 28 4. Where is company furnished clothing laundered? a. On site b. Off site - commercial laundry c. Off site - employee's home 5. Are there proper storage areas or cabinets for dean gloves, "rubber" suites, etc.? a. Yes. Are they used? 1) Yes 2) No b. No 6. Who makes the derisions concerning the type of protective equipment supplied? Is Industrial Hygiene involved with these derisions? 7. Are exposure data available to support the protective equipment practices? a. Yes b. No SECTION VI. DATA GENERATION AND MONITORING 1. Is monitoring done according to a protocol? a. Yes b. No 2. How often are standards, filed spikes, blanks, and knowns prepared and used? Where are they prepared? By whom? <n o -N 1------ CO oo 3. If the out analytical work is done at this location (plant): (If not, go to question 4.) a. What analytical methods are used? Rev. 2-89 29 b. Are sampling efficiency and recovery data recorded? c. Have results been corrected for sampling recovery and efficiency? ' d. Does the laboratory participate in round robins? e. What is the frequency of calibration of analytical equipment? f. What is the concentration range over which the method is validated? g. What is done with analytical reports? co oo 4. Show assessors monitoring survey report documentation (original data) (before/after instrument calibrations, sample description, etc.). 5. What is done with original data? How and where is it stored? 6 a. Is a CAM (continuous area monitor) in use? b. Is the maintenance and calibration (Quality Assurance Program) of the CAM done according to a written procedure? Show documentation to assessors. What is being done with data generated by the CAM? Rev. 2-89 30 SECTION vn. ASBESTOS (Ref. OSHA 29CFR1926.38) 1. Is asbestos (insulation, etc) present in this operation? a. Yes b. No (Go to next Section) 2. Do you have a "map" of the location of asbestos containing materials? Show assessor the documentation, 3. Is there asbestos "Danger" sign(s) posted in areas to alert employees of hazards? 4. Is the site "Competent Person" involved with all asbestos removal jobs? 5. Do Dow employees remove asbestos containing materials? If so, show assessor written operating procedures. n --! CO 0-1 SECTION Vm. GENERAL Dow Employees 1. Where do employees store their lunch? 2. Where do employees eat or drink? 3. Is food tobacco carried into process areas, laboratories, or other areas where chemicals are present? a. Yes b. No Rev. 2-89 31 4. Are toilet, showers, and change rooms adequate and clean? a. Yes. For women employed also? b. No 5. How is the housekeeping? 6. Are there any specific problems which could be eliminated by additional engineering control? If so, what are they? to --! G~> CO c~> 7. Which work practices or procedures should be changed in order to reduce or eliminate exposures to stresses? 8. Is dermatitis a problem at this location? 9. Are solvents used for degreasing and cleaning being used with proper precaution? a. Yes b. No SECTION IX. MEDICAL 1. What percentage of employees participate in the Medical Surveillance Program? Rev. 2-89 . J&rtc. i4 j^.. .,,60TJULSU<# t.H--. /M&jpO^-.OriidctJ^ .rfy^MkJi.. _ _________ i:_:. i<L..L^rtiuJ7b........ ..._._:._................ __-: ; -.............. - --------- ---------------------------- -------------------- -- ------------- . 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