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Friday November 4, 1983 Part VII Department of Labo Occupational Safety and Health Administration Occupational Exposure to Asbestos; Emergency Temporary Standard FMSI-0396 FMSI 02611 T 51086 Federal Register / Vol. 46, No, 215 / Friday, November 4, 1983 / Rules and Regulations DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 IDocket No.H-0330) Occupational Exposure to Asbestos AGENCY: Occupation Safety and Health Administration (OSHA). Labor. action: Emergency temporary standard. SUMMARY: OSHA is issuing an emergency temporary standard (ETS) to reduce the permissible exposure limit (PEL) for asbestos from 2 fibers (longer than 5 micrometers) per cubic centimeter (2 f/cc) as an eight-hour timeweighted average, lo 0.5 f/cc. During the period of the emergency standard, employers may use all practicable control methods, such as engineering controls, work practices and personal protective equipment to meet the new limit of 0.5 fibers per cubic centimeter (0.5 f/cc). Training programs ere also required to be instituted within 30 days. The basis for this ETS is OSHA's determination that continued employee exposure to asbestos under current conditions that exceed 0.5 f/cc presents a grave danger of developing asbestosinduced cancer and asbeslosis to exposed employees, and that an emergency standard is necessary to protect them. The ETS serves also as a proposal to revise the current asbestos standard pursuant to section 6(b] and 6(c) of the Act. This notice also requests comments on the appropriateness of including the provisions of the ETS as permanent revisions to the asbestos standard. In addition, OSHA will soon publish a separate notice of proposed rulemaking that further explains the issues under consideration for the permanent standard and which raises Borne additional issues regarding the application of certain provisions of the asbestos standard to the construction industry. That notice will invite public comments and will schedule a rulemaking hearing pursuant to Section 6(b) of the Act concerning the proposed permanent revision lo the asbestos standard. dates: The effective dale for this ETS is November 4,1983. Comments and evidence concerning the proposed revisions to the permanent standard made by the ETS must be received on or before January 3.1984. As noted, OSHA will publish a notice of proposed rulemaking shortly that will set due dates for submissions to the asbestos docket for the issues raised (herein. addresses: Written comments should asbeslosis) among currently exposed be submitted to the Docket Officer, workers which are attributable lo Docket No. H--033C, Room S-8212, ll.S. continued exposures under present Department of Labor, Third Street and working conditions. OSHA estimated Constitution Avenue, N.W.. Washington, the number of cancer deaths avoided D.C. 20210. through lowering of the exposure to 0.5 FOR FURTHER INFORMATION CONTACT: James F. Foster, Director, Office of Information and Consumer Affairs, OSHA, U.S. Department of Labor. Room N-3637, 200 Constitution Avenue, NW, Washington, DC 20210. Telephone (202} 523-0151. * SUPPLEMENTARY INFORMATION: Table of Contents f/cc, based on 6 months. 1-year. 20-year and 45-year periods of exposures al current levels * The predicted cancer deaths avoided that result from these periods of exposure are respectively 210. 426, 5725 and 7815. A more detailed discussion of these estimates is found in the sections. Quantitative Risk Analysis (Section V), Grave Danger (Section III A}, and Need for an ETS (Seciion JII B). I. Introduction II. Legal Authority and Background III OSHA Rationale Jor the ETS A. Grave Danger B. Need for an ETS Supporting Documentation: Risks of this magnitude al permitted and actual exposure levels defined a situation which demanded immediate regulatory action. Evaluation of the relevant scientific dala, policy considerations and exposure patterns of IV. Occupational Health Dat^ workers has convinced OSHA that V. Quantitative Risk Analysis Vt. Technical and Economic Feasibility A. Technical Feasibility B Economic Feasibility VII. Environmental Impact. Regulatory Flexibility, and Regulatory Analysis VIII. Summary and Explanation of the ETS IX Public Participation, Authority and Signature, and Part 1910 (Amended) , continued exposure at the current PEL and under actual workplace conditions constitutes a "grave danger" to employees, and that an ETS is needed to protect them. The ETS requires that employees may not be exposed to concentrations or asbestos exceeding 0.5 f/cc on an 8-hour 1. Introduction This is an emergency temporary standard (ETS) issued pursuant to time-weighed average basis, and permits the employer to choose among engineering controls, work practices and respirators to reduce exposures lo the section 6(c) of the Occupational Safely and Health Act of 1970 (the Act) (84 Stat. 1596; 29 U.S.C. 655). the Construction Safety Act (Pub. L. 91-54; 40 U.S.C 333), the Longshoremen's and Harbor Workers Compensation Act (33 U.S.C. 941), the Secretary of Labor's Order No. 9-63 (48 FR 35736). and 29 CFR Part 1911. This emergency standard consists of revisions to the existing standard covering occupational exposure to asbestos, 29 CFR 1910.1001, new PEL. However, the requirement in 1910.1001(c) to utilize feasible engineering controls and work practices to reduce exposure levels to 2 f/cc remains in effect under this temporary standard. The ETS also requires employers to institute a training program within thirty days of the effective date of this emergency standard. The training progam will include instruction on respirator filling and use, handling of asbestos, medical information, tbe in order lo protecl employees from a grave danger from continued exposure to asbestos at current exposure levels. OSHA has deteimined that workers exposed to asbestos under exposure conditions existing under the current standard face a grave danger of relationship between smoking and lung cancer, Bnd a review of the asbestos standard. The ETS applies to all industries covered by the Act, including "general industry", construction and maritime industries. developing incurable cancer and asbeslosis. Further, OSHA has found that an immediate reduction in exposure levels to 0.5 f/cc or below is necessary to prolecl such employees from this grave danger. Therefore OSHA is issuing this ETS to compel reduced exposures to respond to this emergency situation. OSHA's determination that a grave danger currently exists is predicated upon quantitative risk estimates in this record which point to a large number of excess deaths from cancer (and * OSHA U aware. of course. thst Station 6(c) of ihe Act limits the effective time of en ETS to 6 months and OSHA conclude* (hat a grave danger exists and an ETS is necessary even if OSHA focuses exclusively on (his six month period. However, the Agency believes it is appropriate to calculate benefits deriving from an ETS using lifetime risks from 20 end 45 years of exposure to tbe PEL of 0.$ f/cc established by the ETS. Although the ETS expires within 6 months. Section 6(c) require* that rulemaking on a permanent standard also be completed within ft months, so that there wit) be no gap in protection for exposed employee*. In OSHA's experience and judgment, complying with this statutory directive and completing rulemaking for a permanent standard within 0 months of an ETS has and can be done. FMS102612 Federal Register / Vol. 48, No. 215 / Friday, November 4, 1983 / Rules and Regulations 5101 As provided in 29 CFR 1953.22, the 24 Stales with their own OSHA-approved occupational safety and health plans are expected to adopt a comparable slumlord within 30 days of this publication date. These States are: Alaska, Arizona, California,'Connecticut (for State and local government employees only). Hawaii, Indiana, Iowa, Kentucky. Maryland. Michigan. Minnesota, Nevada, New Mexico, Norlh Carolina. Oregon, Puerto Rico. South Carolina. Tennessee. Utah. Vermont, Virginia, Virgin Islands. Washington, and Wyoming. Also, in response to the emeigcncy conditions faced by exposed workers, OSHA is stepping up its enforcement activitie.s in targeting workplaces where asbestos is handled. The temporary provisions that are being added to the existing asbestos standard prescribes the major components of an occupational safety and health standard. In general, most of the current requirements remain unaffected by the emergency temporary standard. However, compliance with some requirements will be triggered by the new exposure limit of 0.5 f/cc instead of the former PEI. of 2 f/cc. For example, requiiements such as chunge rooms remain unaffected by the ETS and the trigger level for change rooms remains the former PEL of 2 f/cc (5 19UU001|d)|4)). However, the ETS requires that where concentrations may exceed the new PEL, the employer must post signs indicating such locations ( 1910.1001|k)(6)]. OSHA based its decisions concerning appropriate provisions for the ETS on its determinations of the kind and degree of protective action needed to protect against a grave danger and the feasibility of instituting these provisions during the period of the El'S. Under section 6(b| of the Act. OSHA will shortly schedule an informal rulemaking hearing on the proposed permanent changes to the standard. OSHA will also propose other revisions to the asbestos standard that will be explained in the separate notice of proposed rulemaking. Application of certain provisions of Ihc asbestos standard to the construction industry will be raised al that lime. OSHA anlicipstes that this notice will be published shortly. OSHA is now accepting written comments on those issues raised in the ETS which are relevant to revising the permanent rule. The Secretary must promulgate a section 6(b) standard no later than six months after publication of the emergency standard. II. Legal Authority and Background A. Legal Authority Section 6(c) of the Act provides for immediately effective emergency temporary standards in certain circumstances. The Secretary has the authority to issue such a standard, without rulemaking, "if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physics fly harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger." 29 U.S.C. 655(c)(1). Thus, the danger must be `'from" worker exposure .and it must be "grave," not merely significant and the. regulation must be "necessary" to address "such danger," not merely reasonably necessary or appropriate to provide safe employment. In addition. a6 in section 6(b) permanent standards, OSHA may impose requirements in the emergency standard only to the extent that they are "feasible" within the meaning of section 6(b)(5) of the Act. The Fifth Circuit has emphasized the importance of the severity of health effects in OSHA's consideration of whether an ETS is appropriate: ..........the danger of incurable, permanent, or fatal consequences To workers, as opposed to easily curable and fleeting effects on their health, becomes important in the ' consideration of the necessity for emergency measures to meet a grave danger." Florida Pooch Growers Association, Inc. v. United Stales Deportment of Labor, 4898 F.Zd, 13Z (CAS). ' OSHA also has interpreted relevant judicial decisions to require that its evaluation of the gravity of the danger and the necessity for emergency action must be made in the context of actual workplace conditions. B. Background 1. Events Leading to the ETS. In June, 1983, OSHA received a petition for an ETS from the international Association of Machinists and Aerospace Workers (Exs. 84-244). Subsequently letters supporting this petition were received from 16 other unions (Ex. 84-284 to 84 294, 84-367 to 84-391). The petition requested an ETS to reduce the PEL to 0.1 f/cc. to modify some existing work practice requirements, and to require other protective provisions regardless of exposure level. The main reasons set forth in the petition and supporting . letters are that continued exposure under current workplace conditions constitutes a grave danger and that delaying remedial action until a permBnent standard is promulgated would cost large numbers of currently- exposed workers iheir lives. OSHA shares Ihc genuine concern expressed by the petition and letters from unions representing thousands of employees who are directly faced with the threat < asbestos-related disease from continue exposure. And OSHA concludes that failure to issue this ETS may cost a number of exposed workers their lives. In August 1983, OSHA completed a comprehensive risk assessment based on numerous human studies which estimated the number of excess dealhs from the three major asbestos-related cancers, i.e., lung cancer, mesolbeliom; and gastrointestinal cancer. 8t the current permissible exposure level of 2 f/cc and el various reduced exposure levels. OSHA placed this document, "Quantitative Risk Assessment for Asbestos-Related Cancers", in the Asbestos docket in August 1983 (Ex. 84 349). OSHA subsequently revised this document (Sec Ex. 84-392). 2. History of the Asbestos Standard OSHA bus regulated asbestos since 1971. A12 f/cc limit for asbestos was included in the initial promulgation of OSHA standards pursuant to section 6(a) of thfrAct, on May 29,1971 (36 FR 10466). In response to a petition by the Industrial Union Department of the AFL-CIO, OSHA issued an ETS on asbestos on December 7,1971, which established a PEL of 5 f/cc on a timeweighted average basis and peak exposures of 10 f/cc. The current standard, promulgated in June 1972, first established an 8-hour time-weighted average PEL of 5 f/cc am a ceiling limit of 10 f/cc. The limits wen intended primarily to protect employees agBinst asbeslosis, and it was hoped that they would provide some incidents degree of protection against cancer. Effective July 1976, the TWA limit was reduced by,the standard to 2 f/cc. This limit has remained in effect since that time. The standard also includes provisions covering methods of compliance, monitoring, medical surveillance and housekeeping. Court review of this standard upheld all major provisions, but remanded two issues for OSHA's reconsideration, HJD v. Hodgson, 499 F. 2d 467 (CADC1974). These issues were whether the July 197f date for the 2 f/cc standard should b'e accelerated for some industries and the adequacy of the 3 year retention period for exposure monitoring records. Subsequently, OSHA increased this retention period to 20 years (41 FR 11504) and the acceleration issue became moot. After reviewing the then available scientific data, in October 1975 OSHA published a notice of proposed pMSl 02613 51088 Federal Register / Vol. 48. No. 215 ,-/ Friday. Novnmhor 4, 1983 / Rules and Regulations rulemaking.to.revise l-'O ashegtOg standard because OSHA believed that "sufficient .medical and scientific (.vitiencT had.been accumulaled lo warrant thedesignution.uf asbestos asa human carcinogen" .andilhatiadvances in monitoring.and protective technology made reexamination of.the standard "desirable/* This .proposal would have reduced (he lime-weighted average to OttT/ccnti imposed a ceiling limit of.5 f/cc'fot IS minutes (40KR 47652). The hasis for the 1975 proposal's reduced permissible level ot 0.5 f/cc was OSHA's.then current policy Tor carcinogens (hat no safe threshold level was demonstrable and. therefore, the Adi required 'OSHA to sel thc .PKLas low as technologically and economically fi asibte. This policy was rejected by the Supreme Court in the .benzene decision \IUD vs. API. 446 U5. H (19801). OSHA limited The proposed revisions in the 1975 notice to all industries except construction. No hearing was-scbeflu'led onlhe "1975-proposal. Also, although OSHA annouccedlts intention lo develop a separate proposed revision applicable to the construction industry, no such .proposal has been published In date. * OSHA is basing its present decision to issue an ETS, and to propose revisions to thcpemiHnent standard covering all employees.'On-information and analyses whiiih postdate the 1975-proposal. Therefore.'fhis KTS marks a-new regulalbry initiative, related lo/butnol jiort of the 1975 proceeding On May 24. 1983, OSHA nonsuited the Construction Advisory Committee TorOocupafionaT Safety and Health (OACOSH) cmnoerning applicability-of -a -new asbestos standard Tor the-construtflion industry. CACOSH endorsedOSHA's position That Changes in the-PEL made . fongenerat-industry should also apply In theiconstruction industry. OSHA-is also including rthe comments and data renei ved lin response lo tbe 1B75 nolioe in the record-of this -proceeding, with the understanding That some-commenlers may have-changed their positions.based on -intervening scientific dev.elopmp.nts and ipolicy shifts. In 11he decision te-issue an ETS. tthe Agency hasireviewedatiiSTegulatory biBtory of asbestos. However, .the Agency tbases the decision to issue.an KTS-on the actual-emergency conditions which now -confront exposed workers, or. epidemiolqgic-studies -that provide data to make -numerical estimates .of risks and ominterpretatians of-these studies using quantitative risk analysis. 3. The Rulemaking to Revise the Permanent Standard. The 6(b) rulemaking initiated by this proposal is intended to.be limited to the .revisions marie by The KTS and the additional proposed amendments raised in.the notice of proposed rulemaking to be published soon. The anajor subjects of the 6(b)-rulemakmg wfll be: reducing Ibe permissible-exposure.limit, .revising the definitions of-asbestos and asbestos fibers, reassessingtthemethods -of complianceto achieve BuchJimtts, revising (he provisions-regarding respirator selection, Revising-the sampling-and analytical-method .'lo improve reliability, and adding a training requirement.-OSHA will also raise issues regarding the application of the permanent .slHiidarfl -to (he construction .industry. .As .previously stated, OSHA willtsoonrpublish a separate notice of proposed -rulemaking to further explnin-these-issues. The medical, epidemiological and statistical studies cited by OSHA to support their issuing this ETS are not included in this copy. The sections not in this copy are: III OSHA Rationale for the. ETS 51088 A Grave Danger 51088-51091 B Need for an ETS 51091-51099 IV Occupational Health Data 51099-51122 V Quantitative Risk Analysis 51122-51132 This copy starts again at Page 51132: VI. Technical and Economic Feasibility Based on an evaluation of evidence contained in the record, OSHA finds that the provisions required by the ETS are technically and economically feasible. OSHA has examined the various industries and work operations impacted by the standard and their ability to comply with the provisions of the ETS. Because the ETS requires prompt reduction of risk, OSHA FMSI02614 Federal Register / Vol. 48, No 215 / Friday, November 4, 3983 / Rules and Regulations 5)133 assessed the industry's ability to implement the required controls immediately. The ETS allows considerable flexibility in achieving the PEL. As n result, three options are available to lower the asbestos filter concentrations to which workers are exposed: (1) Engineering controls such as automatic bag opening devices, specialized vacuum equipment and increased ventilation: (2) work practices, such as wet treatment of the asbestos material and increased clean-up of the work place, and (3) use of approved respirators. Due to the emergency nature of this action which requires immediate response to reduce worker exposure, OSHA assumes that respirators will he the initial method used to comply with the ETS. A full discussion of the technological and economic feasibility of the alternative methods for each industry and For the various PEi.s under consideration for revising the permanent standard will accompany the proposal which will be published separately. OSHA believes that, consistent with the estimates of current exposure levels, engineering controls are currently in place and work practices, in operation which, if applied conscientiously, would immediately result in concentrations at least as low as 0.5 in many industries (Ex. 04-262; Ex. 84-263: Ex. 84-9 and Ex. 84-295). For purposes of assessing the technological and economic feasibility, however, OSHA assumed a worst-case scenario in which each industry segment would have to implement a respirator program in order to achieve immediate reduction in worker exposure levels below the estimated current uonccntialiens. Furthermore, lor purposes o' worst-case analysis, OSHA assumed lhat none of these industries has any respirator program except for the shipbuilding and construclion segments. OSHA makes this assumption because OSHA estimates that most workers in industries other than shipbuilding and construction are exposed to eight-hour time-weighted averages less than Z ffec. end the OSHA standard issued in 1972 only requires a respirator program when engineering controls and work practices cannot bring exposures to 2 f/cc. To the extent that some firms do have an existing respirator programt the costs are overestimated. A. Technical Feasibility The following table presents the assumptions OSHA made regarding the respirator program felements required by each industry io obtain a PEL of 0.5 f/cc. The types of respirators needed for each industry sector were determined using the respiraior selection table in the ETS with reference to the estimated current exposure conditions. OSHA assumed that the least costly approved respirator would be selected. For example, where industries have exposures less than ten times the PEL. OSHA anticipated that disposable respirators would be purchased, because of their lower short term costs. When exposures exceeded ten times the PEL, OSHA assumed that some plants would either use air line respirators, or full facepiece respirators, depending upon the operation. To the -extent that firms choose a higher-cost respirator to increase the protection factor or durability, respirator costs may be understated. Furthermore. OSHA has not included in the cost analysis a consideration for lost worker productivity due to wearing respirators. Costs may be understand by whatever amount productivity is reduced. Other anticipated respirator program elements required to determine costs for the ETS are listed below. These elements are derived from the existing provisions found in the Asbestos Standard. 29 CFR 1910.1001 and the standards for respirators, 29 CFR 1910.134. All of the required respirators and filters arc readily available and can be purchased through local distributors. Since the program relies mostly on disposable respirators. OSHA considers that there will be no supply constraints. As the worst-case (or high) estimate, OSHA assumes that approximately 50,000 workers will wear respirators because of the ETS who did not previously wear respirators. OSHA has concluded that the use d( respirators will be effective in providing improved worker protection during the period of the ETS. In addition to encouraging generally more widespread use of respiratory protective measures, the ETS will stimulate a heightened understanding of the health hazards from asbestos exposure and will result in more effective use programs and strategies. Issues involving the appropriateness of respirator usd as a long-term solution to controlling - asbestos exposures are raised in the section 8(b) rulemaking proceeding (see Ex. 84-345, 84-346. 84-347, 84-348). BILLING COM 4SW-M-M FMSI 02615 T 51134 Federal Register / Voi. 4ft, No. 215 / Friday, November 4. 19(13 / Rules and Regulations TABLE 16 Anticipated Respirator Program Elements Required to Meet PEL Industry Segment Primary Manufacturinq A/C Pipe 4 Sheet Friction Materials Asbestos Paper Gaskets Floor Tile Paints, Coatings and Sealants Textiles Wet Process Dry Process Secondary Fabricators Cement Sheets, Paper Products, Packing and Gaskets Anticipated Type of Respirators Used to Meet the PEL Other Program Eiements ______________________ :______________________________________________________ L-----i-- 1 disposable/workday/worker full' admin, costs 2 `air- Iine/plant (for high Fit test*- concentration situations/3 - Training0 1 disposabI e/worker/day 50% admin, costs for portions exposed at 0.75 Fit Test ' Training - (Nothing for PEL of 0.5) i oisposable/worker/day for 75% of workers . 75% admin, costs Fit Test . . . Training 1 disposable/worker/day 1 disposable/worker/day 1 disposable/worker/day 2 air-line/plant for high concentration situations Full admin, costs Fit Test Training Full aamin. costs Fit Test Training 1% admin, costs Fit Test Training Textiles 1 disposable/worker/day Automotive Aftermarket 1 disposable/worker/day Rebuilding and fteiacing 1 air-line/plant 1% admin, costs Fit Test Training ' 1% admm. costs Fit Test Training ; FMSI 02616 Federal Register / Vo!. 40, No. 215 / Friday, November 4, 1903 / Rules and Regulations Respirator Program Requirements (Cont .) 51135 Industry Segment Anticipated Type of Respirators Used to Meet the PEL Other Program Elements drake Repair Gasoline Stations Shipbuilding/Repair Shipbuilding Ship Repair Nothing Nothing Nothing l disposable/wor^cer/day for 20Jli of total workforce 20* of admin, costs Fit Test ' Training . Construction Installation A/C Pipe A/C Sheet l disposable/worker/day )0k admin, costs Fit Test Training hoofing Pelts Demo1ition/Renovation Nothing 1 HEPA full face for 25X of the workforce Repair & Maintenance Nothing ' 25k admin, costs Fit Test Training ^OSHA assumes that certain jobs such as cleaning of vacuum equipment will produce exposure levels greater than 10 times the PEL. Consequently, OSMA assumes 2 air line respirators will be required per plant except for small operations which will require only one air-line respirator per plant. "Administrative costs represent the salary of one full time professional at $30,000 per annum and one full time clerk at $15,000 per annum. OSHA has adjusted administrative costs to represent expected reasonable time spent administering a respirator program in each industry. In the secondary fabrication and automotive aftermarket sectors, for example, OSHA anticipates that supervisors will spend 15 minutes a day distributing and monito, ing the use of disposable respirators. Ihese sectors have far Jess of a management burden than large firms, and thus, administrative costs are calculated at i percent of the fuii administrative amount. OSHA believes that administrative costs have been overstated in most segments in order to present a worst case scenerio. c0SHA assumes that every employee must be fit tested for respirator use at a cost of $21 per employee. "uSHA has allowed 3 hours for respirator and asbestos training. OSHA considers that this is very liberal, especially in industry segments characterizeo by small plants and by the use of disposable respirators. Costs for this element are therefore overstateo to present the worst-case scenario. BILLING COOE 4510-36-C . r. FMSI 02617 51136 Federal Register / Voi. 48, No. 215 ! Friday. November 4. 1983 / Rules and Regulations OSHA also examined the feasibility 95% confidence limits on a measured h- of analytical methods for measuring hour TWA can be relatively constant asbestos air conuoatialions al the 0-5 Ij with a wide,but usable, range down to cc limit established by the ETS. OSHA's concentrations approaching 0.5 fibers/cc existing standard requires that all (less than] 5M." measurements of airborne , The AIA report shows e higher error concentrations of asbestos fibers be . than does the Leidel et al. report. One made by the membrane filter method at - possible reason for this difference may 400-450 X (magnification) (4 millimeter be that the AIA report assessed the objective) with phase contrast variability in measurements as they are illumination (29 CFR 1910.1001(e)). After reviewing the relevant evidence made available since the 1975proposal, OSHA being made today by the many laboratories who are making the finds that phase contrast microscopy is measurements. For example, only 27 of a feasible and effective method for the 46 laboratories participated in the measuring airborne asbestos fibers to PAT program and no counting guidelines determine compliance with the were given, whereas, thq Leidel et al. permissible exposure levels set by the report included only a small number of Emergency Temporary Standard. laboratories operated by Johns The most important issue raised by Mansvjlle Company, that probably used comments to the 1975 notice is whether very similar procedures and conducted phase contrast microscopy analysis is similar training. capable of reliably measuring airborne In late 1982, Chatfield prepared a concentrations of 0.5 fibcrs/cc and less. report entitled "Measurement of OSHA acknowledges that asbestos Asbestos Fibre Concentrations in airborne measurement procedures using Workplace Atmospheres" for the Royal phase contrast microscopy, as with any Commission on Matters of Health and industrial hygiene analytical procedure, Safety Arising from the Use of Asbestos inherently contains several error in Ontario (Ex. 84-319). Chatfield sources. Theite errors have been analyzed inlra-and inter-laboratory statistically evaluated by Leidel et al. variability and arrived at conclusions (Ex. 84-62). and, in 1979, by the Air somewhat similar to those of AIA and Monitoring Committee of the Asbestos Leidel. Chatfield also recommended Information Association/North America, methods by which the accuracy and referred to herein as AIA (Ex. 86-002) precision of phase contrast microscopic both using round-robin sample exchange analytical techniques could be data. Chalfield also examined this question (Ex. 84-319). Inthe Leidel et a).' and the AIA evaluations, the error, ' - -improved. Significantly, View of the number and he noted "m frequency of - measured at a coefficient of variation measurements required, there is (CV), was found to be related to the currently no fully developed alternative number of particles counted from the method (to phase contrast microscopy) filter. For 100 fibers counted Leidel, el al. which could be immediately found a CV of 0.12, whereas the AIA implemented." report found a CV of 0.351 or errors OSHA notes that the authorities cited associated with interlaboratory- above believe that it may be possible to intrafilter variability. reduce phase contrast microscopy errors Based upon these studies, taken at 'heir face value, it appears that the if improved and standardized procedures are followed, perhaps by phase contrast microscope analysis is adding requirements to the standard, ft capable of reasonably reliable does not appear, however, that measurements at 0.5 fibers/ce. As slated improvements of this nature can be in the AIA report (Ex. 86-002, p. AB-Z), 'The calculated results indicate that the quickly made in the immediate formal of this ETS. Therefore, based on the ' Thn AIA report also report* separate CV for t-vt-rall voriaUOItv in the luimpW* evaiunlion tttep (tin* 'random xariefciKty lathenampUi cofleclioo siitp," ThU "nmrtom variability of sample evidence before it at the time of issuance of this emergency standard, OSHA believe* that it is generally aot possible to measure asbestos roMrclioiV* as described fnThi* ffudy may he a measure of (V true difference in air concentrations from one location to ike next end may nof beg measure of random variability. A more ctmtfitlly tii^sijined sampling strategy with pree>*<> control of mstronieniatton placemen), nir currents, and dust nerutinn is necessary lo e/imrnate differences in ivisorne dost conointNiiinn* from one hic.ifinn to iruither concentrations below 0.51/cc reliably and reprortudbly using phase contrast microscopy under current laboratory practices. OSHA finds that the phase contrast microscopy method can be feasibly used to measure asbestos air concentrations down to 0.5 f/cc. F. tic-onomic Feasibility The industry costs based on the program elements descrttied in Table 16 are presented in Table 17. For the ETS. the costs of asbestos training are included with respirator training. Costs for warning signs are not included, since, for the purposes of the ETS, these signs could be hand-made at very low costs. OSHA did nol analyze costs associated with the alternate benefits scenario (See Table 4) since that scenario was constructed to show a lower range of benefits hot does not represent an estimate of current industry practice. The costs are overstated to the extent that some firms already have a current respirator program and to the extent that careful application of existing engineering controls and work practices would reduce concentration* to the PEL in some firms and thereby make respirator use unnecessary. Furthermore, the costs assume that dust masks and filters will have to be replaced every 8-hour day. Some of this cost (i.e.. the disposable respirators, filters and administrative overhead) can be in fact spread over the period during which the ETS is in effect. Finally, the costs assigned to the Shipbuilding/Repair and Conslruction- Dcmnlition/Renovation segments represent cost which reflect increased compliance with current obligations (e.g. increased respirator use to meet the ' current standard as a result of the ETS training requirements) and are not, . directly attributable lo the ETS. Note.--OSHA anticipates that the T"S will spur many employe* who previously were not in compliance to expend the necessary resources in order to come into compliance with the El'S. # ' - The total cost is estimated at $35,565,402 for 6 months. This translates into an average cost par employee of $708. Average 6 month costs per worker presented on an industry basis in Table 17 range from $251 in the automotive aftermarket segment to $973 in the construction segment. These costs are not a large portion of industry shipments as presented in Table 18. Moreover, firms in these industries will be able to pass the costs forward because asbestos substitutes in most industries are not immediately available. For all these reasons, OSHA finds that the ETS is economically feasible. billing coot tito-n-o FMSI 02618 T Federal Register / Vol. 48. Nu. 215 / Friday, November 4, 1983 / Rules and Regulations Table 17 Estimated Costs of Respirator Program for ETS with PEL of 0.5 Industry Segment Total Costs ($) 1 - year . 6 - months 6-mo. average Cost/employee Primary Manufacturing * Secondary Fabricators Automotive Aftermarket b,404.965 13,547,224 1, 620,) 97 4,143,242 9.435,532 1,027,864 . 481 54b ' 251 Shipbui1ding/repair Construction Total 626,288 36,329.740 58,528^412 324,526 19.634,236 34.565,402 533 973 708 51137 Table 18 ETS Compliance Costs Compared to Sales by Industry Segment Industry Segment Cost/Sales Primary Manufacturing A/C Pipe 4 Sheet Frictin Materials Asoestas paper ' Paints, Coatings ano Sealants Gaskets, Seats and Packings Textiles Secondary Fabricators Cement Sheets ' Paper Products Packings and Gaskets Textiles Automotive Aftermarket Rebuilding and Refacing Shipbuiloing/Repair Construction .003 .002 -008 -003 .005 . .001 >014 . -01J .072 -OH .010 -014 ' .0004 .0001 .0004 bote: Sales values are for 1977 and 1978. -Values for Primary Manufacturing and Secondary Fabricators were taken from 84-003; values for the Automotive Aftermarket were taken from U.S. Industrial Outlook. 1983; ano values for Sliipbuilding/Repair and Construction were taken from the 19B2/B3 Statistical Abstract. The value for Construction was adjusted by substracting the value for Highway t Streets and Residential and adding tne value for Oemolition/Wrecking. . BIILIMQ code 4M0-JS-C FMSl 02619 51138 Federal Register / Vol. 48, Nn 215 / Friday. November 4, 1983 / Rules and Regulations VII. Environmental Impact, Requirements of Executive Order 12291, and the Regulatory Flexibility Act The National Environmental Policy Act (NF.PA) of 1969 (U.S.C. 4321 et seq.), as implemented by the guidelines {40 CFR Part 1500) of the Council on Environmental Quality (CEQ). requires that federal agencies assess their regulatory actions to determine if there is a potential for a significant impact on the quality of the human environment and. if necessary, to prepare an environmental impact statement. In accordance with these requirements and DOl. NEPA regulations (29 CFR Port 11 fSubpart B, 11.30 (a) (4)1) OSHA had determined that because of the emergency nature of this standard, no environmental impact statement will be perpared for the ETS. The courts have held that NEPA does not require advance preparation of an environmental impact statement for an OSHA ETS {Dry Color Manufacturing Assocation v. U S. Department of Labor 486 F.2d 96.107 (3rd Cir. 1973)), OSHA will assess, however, the environmental effects of the proposed permanent regulation of asbestos. The results of this study will be available for review and comment prior to the hearings on the proposed permanent standard and wilt be an appropriate issue for discussion at the public hearing. In the interim. OSHA welcomes any comments on any environmental effects (hat might occur as a result of promulgation of h rule on ashetos. Pursuant to the authority of Section 6(a)(1) of Executive Order 12291 OSHA has not prepared a Regulatory Impact Analysis of this ETS. Preparation of such an analysis was not practicable for OSHA to perform in time to issue this ETS to respond to the grave dangers faced by asbestos exposed workers. OSHA. however, is completing a Preliminary Regulatory Impact Analysis of the proposal to revise the permanent standard which will be made public al lire lime the proposal is published. The Regulatory Flexibility Act requires an agency to prepare a Regulatory Flexibility Analysis only for those rules for which a notice of proposed rulemaking is published. OSHA's issuance of an ETS therefore is not covered by the Regulatory Flexibility Act because the OSHA Act provides that ETS's be issued without regard to notice, public comment and other requirements in the. Administrative Procedure Act. The proposal to revise the permanent asbestos standard, however is subject to the requirements of the Regulatory Flexibility Act and OSHA will evaluate the proposal lo ascertain whether analysis under the Regulatory Flexibility Act is required. VIII. Summary Bnd Explanation of the ETS The requirements of this-emergency temporary standard are set out in a gew paragraph, $ 1910.1001(k). They are limited to additional provisions to the existing asbestos standard which OSHA considers essential and feasible to protect employees from fhe grave danger resulting from asbestos exposure until OSHA can promulgate more comprehensive revisions in accordance with section 6(b) of the <^ct. The major changes in the standard made by the FI'S are: (1) The new permissible exposure level; (2) methods of compliance permilted to achieve the new ievel; and (3) a requirement for the est ablishment. of training programs within 30 days. The following section discusses the major provisions of the ETS. the necessity for including these provisions in the ETS, and some additional provisions lo trigger certain requirements at the reduced permissible level of 0.5 f/cc. 1. Paragraph (k)(tj Scope. As part of the ETS, OSHA is adding a paragraph on the scope of the standard. The paragraph is intended lo make dear that the emergency standard applies lo all workplaces where employees may be exposed to asbestos in all industries covered by the current asbestos standard ic. general industry, construction and maritime. 2. Paragraph (k)(2j Permissible level of exposure. As part of the ETS. OSHA is adding paragraph (k)(2) which sets a new PEL, effective immediately, of 0.5 f/ cc on an 8 hour time weighted average basis. This reduced level may be achieved by any feasible combination of engineering controls, work practices and respiratory protection in order to allow employers to institute effective measures !o reduce employee exposures immediately. OSHA chose 0.5 f/cc as the permissible exposure level primarily because it believes that reducing employee exposures to 0.5 f/cc in all industries will greatly reduce the risk of developing asbestos induced cancers, primarily lung cancer, mesothelioma and gastrointestinal cancer. As set out In the discussion on "grave danger" and "benefits", the number of lives OSHA believes may be saved through an immediate reduction of exposure to 0.5 f/cc is substantial. OSHA also believes that the 0.5 f/cc level is appropriate for several other reasons. First, because an emergency standard must be feasible, and employers must be able to comply with the standard in a short period ol time. OS! 1A has set a level which (S likely to be achieved immediately, using equipment and control techniques that are currently available. Second. OSHA believes, based on the d8la generated by OSHA's contractor. Research Triangle Institute, that some workplaces, especially in the manufacturing sector, may be close lo achieving a 0.5 f/cc level through the more rigorous use of engineering controls, work practices and housekeeping methods which are now in place. OSHA encourages employers lo continue their efforts to implement these methods in order to assure that, for the long term, the most comprehensive and effective program of protection from asbestos exposure will be provided. Third, OSHA believes that reliability of the currently required asbestos measurement methods (o measure asbestos exposures less than 0.5 f/cc should be open for discussion during a rulemaking hearing, rather than imposed through an ETS. OSHA has therefore not adopted the 0.1 f/cc level petitioned by the unions but instead i9 considering adding provisions to the asbestos standard that may improve the reliability of both sampling and analysis in the 6(b) rulemaking for the permanent standard and thus allow lower levels to be reliably measured. 3. Paragraph (k)(3) Methods of compliance. The ETS adds a new paragraph (k)|3). which permits employers to reduce the permissible exposure limit from the current 2 f/cc limit lo the 0.5 f/cc limit by any feasible combination of engineering controls, work practices and respiratory protection. The current requirement in paragraphs (c)(1) and (c)(2) to first utilize engineering controls and work practices to reduce exposure levels to 2.0 f/cc remains unaffected by this ETS. Flexibility in choosing compliance strategies for the period of an ETS has been incorporated in most other previously issued emergency standards. The policy reflects OSHA's determination to craft emergency standards that are truly responsive to emergency conditions and which afford immediately available protection to affected workers. 4. Paragraph fk){4) Employee information and training. The ETS adds a paragraph to the asbestos standard requiring the employer to provide a training program within 30 days of publication of (he emergency standard for all employees whose exposures are reasonably expected to exceed the PEL of 0.5 f/cc. without regard to the use of FMSI02620 Federal Register / Vo). 4fi. No. 235 / Friday. November 4. 19B3 / Rules and Regulations 51139 respirators, and to assure that all.such multiples nf the reduced PF,t. of 0.5 f/cc. employees participate in the program rather than multiples of the previous 2 f/ and are informed of specified categories cc. permissible limit. For example, of information. OSHA considers this approved air purifying respirators .may provision to be ''necessary" within the be used only.where asbestos meaning of section 6t<:) of the Act. to concentrations are oat expected to reduce the grave danger faced by exceed 5 f/cc (10 x the PEL). Before the asbestos exposed employees. The ETS, because the PEL was 2 f/cc. such absence of a training program respirators could be used where . requirement in the asbestos stundurd asbestos concentrations would not have has been pointed out as one of the exceeded 20 f/cc (10 x the PEI, of Z f/cc). serious deficiencies of the current Similarly, powered air purifying standard OS) IA believes that respirators may be used where asbestos participation in an adequate training concentrations do not exceed 100 times program is essential for the protection of the PEL, which at the new level of 0.5 f/ employees because most protective cc is 50 f/cc. Previously, employers provisions enlist the employee as an could have used suqh respirators at active participant. For example, many concentrations up to 200 f/cc.. employees handling asbestos depend on It is likely that the main impact of the effective work practices. Without reduced PEL on respirator choice will be training in applying these work in operations and industries where practices, employee protection would be exposure levels are between 5 f/cc and inadequate Whore the employee plays a 20 f/cc. Formerly, employees exposed in more passive role in his protection such this range could use half-mask air as where engineering controls are retied purifying respirators: now they must be on. training is also essential, because protected by a powered air purifying the employee must know the sources of respirator or a full facepiece respirator, workplace asbestos contamination, and or they may use a supplied air the health hazards of asbestos exposure, respirator. in order to assess his own exposure 6. Paragraph (h)(6). Warning signs situation and lo help recognize when engineering controls are not operating properly. Certainly where housekeeping plays an important role in control, during the ETS. The ETS requires that legible signs warning of the health hazards of asbestos be displayed at locations where airborne concentrations instruction about housekeeping methods, for example, frequent vacuuming, is essential. Perhaps most imporlanly, where employee protection depends upon respirator use, OSl lA's experience shows that training employees in the use, fitting and limitations of respirators is critical to the effectiveness of respirator protection. Accordingly this requirement applies where airborne concentrations are reasonably expected to exceed 0.5 f/ of asbestos fibers exceed the reduced ' exposure limit of 0.5 f/cc. Nu specific legend is required signs for newly posted during the ETS. OSHA wishes to make as practicable as possible the rapid posting of signs, especially in workplaces where there has been previous non-compliance and in areas where asbestos concentrations were formerly below the 2.0 f/cc !JF,t. XL Public Participation cc, even if employees use respirators to reduce breathing zone concentrations and thereby comply with the ETS. Interested persons are invited to ' submit written data, views and arguments with respect to the revisions As set forth in paragraph (k)(4J the to the asbestos standard made by the employer must inform (he employee of ETS. These comments must be the health effects of asbestos exposure; the relationship between asbestos and smoking in producing lung cancer; the operalions exposing employees to postmarked on or before January 3,1984 and sent to the Docket Officer. Docket No. H-033C, Occupational Safety & Health Administration. U.S. Department asbestos fibers and necessary protective or Labor, 200 Constitution Avenue. NW., steps lo minimize exposure; the purpose, proper use, fitting instructions and limilalions of respirators, and the Room S-021-2. Washington. D C. 20210. The data, views and arguments that tire submitted wilt be available for contents of all the provisions of the Asbestos Standard at 1910.KXH. public inspection and copying at the above address. All timely written 5. Paragraph (h)(5) Respiratory protection during the ETS. The ETS submissions will be made a part of the record of the proceeding. adds a new paragraph fk)(5) which includes a table which ties respirator List of Subjects in 29 CFR Part 1910 selection tn the 0.5 f/cc PEI.. Under the ETS. the concentration cut offs fur Occupational safety and health. Asbestos. Health. Emergency temporary various kinds of respirators are standard. Cancer. Authority and Signature This document was prepared under the direction of Thome G. Auchter. Assistant Secretary of Labor for Occupational Safety and Health. U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20230. Pursuant to Sections 6(b), 6(c). 8(c) and 8(g) of the Act. 29 CFR 1910.1001 is amended by adding a new paragraph (k) as set forth below. (Sect. 8(b). 6(c), B(c) and 8(g| Pub. L 91-590. 34 Slat. 1593, ISSfi. 1599.1800; 28 U.S.C. 855. 057; Sec. 107. Pub. L. 91-54.83 Slat. 96 (40 D S C. 333); 20 CFR Part 1911; Secretary of Labor's Order No. 9-83 (48 FR 35736)) Signed at Washington. D C., this 2nd day of November 1983. Thorne C. Auchter. Assistant SecretoryofLabor. PART 1910--(AMENDED) Section 1910.1001 of Part 1910 of Title 29 of the Code of Federal Regulations is hereby amended by adding a new paragraph (k) reading as follows: 1910.1001 Asbeeto*. * * , (k) Emergency temporary standard effective November 4, J983.--(1) Scope. This emergency temporary standard is issued pursuant to section 6(c) of the Act and applies to all workplaces where employees may be exposed to asbestos in all industries covered by the Act. including, general industry, construction and maritime. Except to the extent modified by this emergency temporary standard all provisions of 11910.1001 remain in effect. (2) Permissible levels of exposure. The 8-hour time-weighted average airborne concentration of asbestos fibers lo which Bny employee may be exposed shall not exceed one-half (0.5) filter, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section. (3) Methods of compliance with the emergency temporary standard. Notwithstanding any other requirements of this section, compliance with the reduced exposure limit of 0.5 f/cc shall be achieved by any feasible . combination of engineering controls, work practices, and personal protective equipment and devices. (4) Employee information and training.--(i) As soon aB possible, but not later than thirty (30) days from the effective date of this emergency temporary standard, the employer shall institute a training program for all employees exposed to airborne concentrations of asbestos in excess of FMSI02621 51140 Federal Register / Vol. 48. No. 215 / Friday, November 4, 1983 / Rules and Regulations 0.5 f/cc, without regard to the use of respirators and shall assure their participation in the program during the effective' period of this emergency temporary standard. (ii) The employer shall assure that each such employee is informed of the following: ' (A) The health effects associated with asbestos exposure; (B) The relationship between asbestos and smoking in producing lung cancer (C) The nature of operations which could result in exposure to asbestos and necessary protective steps to minimize exposure including, as applicable, engineering controls, work practices, respirators, housekeeping and protective clothing: (D) The purpose, proper use, fitting instructions and limitations of respirators permitted by the standard; and (E) A review of all the provisions contained in 19101001. (5) Respiratory protection during the E'ts. Notwithstanding any other requirement of this section, where respirators are used to achieve the permissible exposure limit of 0.5 f/cc they shall be selected according to Table 1. (B) Warning signs during the ETS. In addition to the requirements of paragraph (g)(1) of this section, legible signs warning of the health hazards of asbestos shall be provided and displayed at each location where airborne concentrations of asbestos fibers may exceed 0.5 f/cc. ; . ' TABU X :. . .Respiratory Protection - . _ For Airborne Concentrations of Asbestos Airborne Concentration of Asbestos (THAI Not in excess of 5 f/cc (10 X PEL) Not in excess of 50 f/cc l100 X PEL) Greater than 50 f/cc Required Respirator1 Reusable or single use air purifying respirator " Full facepiece air purifying respirator, or a powered air purifying res pirator A type "C" continuous flow or pressure demand, supplied air respirator. ' ^ Respirators specified for high concentrations may be used at lower concentrations of asbestos. .. (Secs. 6(b), 6(c). 8(c) and 8(g). Pub. I- 91-596. 84 Slat. 1593,1596.1599,1600. 29 U.S.C. 635, 657; Sec. 107, Pub. L. 91r54.83 Stal. 96 (40 U.S.C 333): 29 CFR Pari 1911. Secretary of Labor's Order No. 9-83 (48 FR 35738)) |FR One saloon FUraiw az 145 pm| BIU.INQ COOC XSW-3S-M FMSI 02622 T