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Law Offices Keller and Heckman llp iooi G Street. N.W. Suite 500 West Washinoton. D C. 20001 Telephone (202) 434-4100 Facsimile (202) 404-4646 BdULeVAiD Louts ScrtMIDT 97 B 1040 Brussels Telipromi 02(2) 732 52 90 Facsjkilis 32(2) 73a 33 22 August 19, 1996 Q4A*L(* V DREDER. pn a robc*t a mathew* Pm o.dajt JOHN P MODDERMAN Pm. 0 HOLLY MUTmiRC FOLEY fiuw&iwinwi** jut,hc mu.n PMa.l M AtBltWI*4 JAANUEfTTTTEf MHOAUKR. PPMH. O LESTER BOR001NSKY, Ph 0 THOMA# C. MOWN4 MICHAEL T n.000 Pm 0. ANDREW P JOVAMOVICH Ph D NOT ADMITTED IN DC5PCSI0CNT BRUSSELS TELECOMMUNICATIONS CN0INEEP PANDALL D TOUNO WRfTfW* DIRECT DIAL NUMBER (202) 434-4141 Mr. Frank Borrelli The Vinyl Institute 30 The Horseshoe Newark, Delaware 19711 Re: osha clarification of Medical Surveillance Provision of Vinyl chloride standard Dear Frank: We are enclosing a copy of an August 6, 1996 letter from Ruth McCully, director of the Occupational Safety and Health Administration's (OSHA) Office of Health Compliance Assistance, which clarifies certain medical surveillance provisions of the vinyl chloride standard. 29 C.F.R. S 1910.1027. This was an issue raised by members, of the Vi's Health Safety and Environment committee. The letter confirms the position taken by OSHA in a 1987 letter from Mr. Leo Carey, Director of OSHA's Directorate of Field Coordination. Mr. Carey's letter indicates that the twiceyearly medical examination described at 29 C.F.R. 1910.1017(k)(2)(i) is required only for those employees who began working in vinyl chloride or polyvinyl chloride (PVC) manufacturing facilities before January 1, 1965. We are also enclosing the 1987 Carey letter, a letter from CONDEA-Vista requesting OSHA confirmation, and the relevant portion of the vinyl chloride standard. * CMA 119706 Mr. Frank Borrelli August 19, 1996 Page 2 Kelx.es and Heckman LLP We trust that you find this letter and enclosures useful. Should you have any questions concerning this or any other matter, or if we can be of assistance in any way, please do not hesitate to contact us. Enclosures cc: Larry Thomas (w/o end.) John Maguire (w/o end.) Hugh Patrick Toner Lewis R. Freeman, Jr. Susan Howe Robert H. Burnett Thomas G. Grumbles, CONDEA-Vista CMA 119707 U.S. Department of Labor Occupational Safety and Health Administration Washington, D C. 20210 Reply to the Attention of: AUG 6 1995 Mr. Peter L. de la Cruz 1001 G Street, NW Suite 500 West Washington, D.C. 20001 Dear Mr. de la Cruz: This is in response to your correspondence dated May 24, concerning the medical surveillance requirement in the Occupational Safety and Health Administration's (OSKA) Vinyl Chloride Standard, 29 CFR 1910.1017, The interpretation of the vinyl chloride standard provided in Mr. Leo Carey's correspondence dated June 30, 1987, represents current OSHA policy. Paragraph (k)(2)(i) addresses a situation that was found in vinyl chloride and polyvinyl chloride manufacturing plants prior to January 2, 1975, the effective date of the vinyl chloride standard. At that time employee overexposure to vinyl chloride was common, and extensive employee exposure monitoring and recordkeeping were not performed, with this paragraph, OSHA recognized that exposure monitoring for vinyl chloride and recordkeeping were not common practices. Therefore, OSHA required more strigent medical surveillance requirements for employees who worked in the vinyl chloride industry for 10 years or more as of January 2, 1975. For these individuals medical surveillance must be made available every six months. In contrast, since January 2, 1975, medical surveillance is required annually only when employees are exposed to vinyl chloride in excess of the action level. The provision detailed in (k)(2)(i) is not applicable to the current situation because since 1975, workplace exposure to vinyl chloride has been regulated, and employee exposure has been monitored. We appreciate your interest in occupational safety and health. If you have further concerns, please feel free to contact this office for additional information. Sincerely, j-; i Ruth McCully, Director Office of Health Compliance Assistance CMA 119708 vljto Chiriical Cawpai'y 900 TKceadn%*dl* Houito*. Tai 77079-1990 (713) 588-3000 P.0. Set 1 9029 Houston, Teiei 7722-4-9029 Fa* (713) 588-3234 May 25, 1995 VISTA Mr. John B. Miles Director of the Directorate of Compliance Programs USDOL-OSHA 200 Constitution Avenue, N.W. Room 3468 Washington, D. C. 20210 Dear Mr, Miles: Vista Chemical is a producer ofVinyl Chlorine Monomer. In a recent review of the medical surveillance requirements of 29 CFR 1910.1017, the attached letter was found. It is an interpretive letter signed by Leo Carey in 1987. This letter states a rather unique interpretation of I910.1017(k)(2)(i) regarding the criteria for which employees are required to receive 6-month medical surveillance exams. Can you please provide Vista with an opinion on the validity of the interpretations found in this letter or provide an alternate opinion on the applicability criteria. Please send the response to the undersigned at Vista Chemical Company, 900 Threadneedte, Houston, TX 77079. I can be reached at 713-588*3445. Sincerely, Thomas G. Grumbles, C.I.H. Manager, Product Safety and Occupational Health /dlj TGG Disk #8: a:\Ietter\miles.wpd CMA119709 1 19870630 Medical surveillance requirements in the vinyl chloride standard. Document No. 1910.1017 Date: 06/30/1987 Cited CFR: 29 CFR 1910.101729cfr1910.1017 Commonwealth of Kentucky Labor Cabinet June 30, 1987 Mr. Michael Salyers: This is in response to your letter of May 1, 1987, to Mr. David Smith, concerning medical surveillance requirements in the vinyl chloride standard, 29 CFR 1910,1017. There is no indication in the vinyl chloride standard or its preamble that an employee must be exposed above the action level for at least some certain minimum number of days per year before the employer becomes obligated to afford the employee medical surveillance. Accordingly, employers must offer medical surveillance to any employee who is exposed at least one day per year above the action level for vinyl chloride. As to the question of whether employers must afford medical surveillance to employees who once were but are not now exposed above the action level for vinyl chloride, the only insight is contained in the preamble to the vinyl chloride standard, which appeared in the 39 FR 35890, Federal Register, Volume 39, Number 194, October 4, 1974, pages 35890-35896. On page 39 FR 35895, 35895 the the following statement is made, "In these instances, medical surveillance of affected employees will provide baseline data for future evaluation of their health, even if both monitoring and medical surveillance are discounted because improved controls reduce concentrations below the action level." We deduce from the statement that employers need not offer medical surveillance to employees who once were but are not now exposed above the action level for vinyl chloride. Provision 29 CFR 1910.1017(k)(2)(i) requires scheduling of medical surveillance examinations at least every 6 months for each employee who has been employed in vinyl chloride or polyvinyl chloride manufacturing for 10 years or longer. The provision is directed at employees who started working in vinyl chloride or polyvinyl chloride manufacturing plants 10 or more years prior to January 1, 1975, which is the effective date of the permanent vinyl chloride standard. Prior to 1975 vinyl chloride contaminated much of the air in many vinyl chloride and polyvinyl chloride manufacturing plants and many of these plants did not do extensive employee exposure monitoring and recordkeeping. Hence the applicability of 29 CFR 1910.10l7(k)(2)(i)hinges on whether or not the employee's first date of employment in vinyl chloride or polyvinyl chloride plants preceded January 2, 1965, and not on an accounting of whether or not the employee's number of days of actual exposure totaled 10 or more years. Presently, 29 CFR 1910.1017(k)(2)(i) applies when the following conditions exist: (1) An employee is currently exposed above the action level for vinyl chloride and (2) the employee's first employment in vinyl chloride and/or polyvinyl chloride manufacturing plants preceded January 2, 1965. We appreciate the opportunity to clarify this matter for you. If you have further CMA 119710 questions please do not hesitate to contact us. Sincerely, Leo Carey, Director Directorate of Field Coordination CMA 119712 $1910.1017 29 CFR Ch. XVII (7-1-95 Edition) (2) Access to regulated areas shall be limited to authorized persons. (0 Method! of compliance. Employee exposures to vinyl chloride shall be controlled to at or below the permis sible exposure limit provided in para graph (c) of this section by engineer ing, work practice, and personal pro tective controls as follows: (1) Feasible engineering and work practice controls shall immediately be used to reduce exposures to at or below the permissible exposure limit. (2) Wherever feasible engineering and work practice controls which can be In stituted Immediately are not sufficient to reduce exposures to at or below the permissible exposure limit, they shall nonetheless be used to reduce expo sures to the lowest practicable level, and shall be supplemented by res piratory protection in accordance with paragraph (g) of this section. A pro gram shall be established and Imple mented to reduce exposures to at or below the permissible exposure limit, or to the greatest extent feasible, sole ly by means of engineering and work practice controls, as soon as feasible. (3) Written plans for such a program shall be developed and furnished upon request for examination and copying to authorised representatives of the As sistant Secretary and the Director. Such plans shall be updated at least every ui> months. (g) /i.Ujoratory prolection. Where res pirator/ protection Is required under this seen m: (1) The employer shall provide a res pirator which meets the requirements of this paragraph and shall assure that the employee uses such respirator, ex cept that until April 1, 1916, wearing of respirators shall be at the discretion of each employee for exposures not in ex cess of 25 ppm, measured over any 15minute period. Until April 1,1916, each employee who chooses not to wear an appropriate respirator shall be in formed at least quarterly of the haz ards of vinyl chloride and the purpose, proper use, and limitations of res piratory devices. (2) Respirators shall be selected from among those jointly approved by the Mine Safety and Health Administra tion, Department of the Interior, and the National Institute for Occupational Safety and Health under the provisions of 30 CFR Part 11. ' (3) A respiratory protection program meeting the requirements of {1910.134 shall be established and maintained. (4) Selection of respirators for vinyl chloride shall be as follows: (5X1) Entry Into unknown concentra- 36,000 ppm (lower explosive limit) may tlons or concentrations greater than 142 Occupational Safety and Health Admin., Labor 1910.1017 be made only for purposes of life res (2) Other employees not so equipped cue; and shall evacuate the area and not return (It) Entry Into concentratlona of less until conditions are controlled by the than 36,000 ppm, but greater than 3,600 methods required In paragraph (0 of ppm may be made only for purposes of this section and the emergency la life rescue, firefighting, or securing abated. equipment so as to prevent a greater (J) Training. Bach employee engaged hazard from release of vinyl chloride. In vinyl chloride or polyvinyl chloride (6) Where alr-purlfytng respirators operations shall be provided training In are used: a program relating to the hazards of (I) Alr-purlfylng cannlsters or car vinyl chloride and precautions for Its tridges shall be replaced prior to the safe use. expiration of their service life or the (I) The program shall include: end of the shift In which they are first (1) The nature of the health hazard used, whichever occurs first, and from chronic exposure to vinyl chloride (II) A continuous monitoring and Including specifically the carclnogenla alarm system shall be provided where hazard; concentrations of vinyl chloride could (II) The specific nature of operations reasonably exceed the allowable con which could result In exposure to vinyl centrations for the devices In use. Such chloride In excess of the permissible system shall he used to alert employees limit and necessary protective steps; when vinyl chloride concentrations ex (III) The purpose for, proper use, and ceed the allowable concentrations for limitations of respiratory protective the devices In use. devices; (1) Apparatus prescribed for higher (lv) The fire hazard and acute tox concentrations may be used for any icity of vinyl chloride, and the nec lower concentration. essary protective stepe; (h) Hazardous operations. (1) Employ (v) The purpose for and a description ees engaged In hazardous operations. of the monitoring program; Including entry of vessels to clean pol (vl) The purpose for, and a descrip yvinyl chloride residue from vessel tion of, the medical surveillance pro walls, shall be provided and required to gram; wear and use; (vll) Emergency procedures; (1) Respiratory protection In accord (vill) Specific Information to aid the ance with paragraphs (c) and (g) of this employee In recognition of conditions section; and which may result In the release o( (11) Protective garments to prevent vinyl chloride; and skin contact with liquid vinyl chloride or with polyvinyl chloride residue from vessel walls. The protective garments shall be selected for the operation and (lx) A review of this standard at the employee's first training and Indoc trination program, and annually there after. Its possible exposure conditions. (2) All materials relating to the pro (2) Protective garments shall be pro gram shall be provided upon request to vided clean and dry for each use. the Assistant Secretary and the Direc (1) Emergency situations. A written tor. operational plan for emergency situa (k) Medical surveillance. A program of tions shall be developed for each facil medical surveillance shall be Instituted ity storing, handling, or otherwise for each employee exposed, without re using vinyl chloride as a liquid or com gard to the use of respirators, to vinyl pressed gas. Appropriate portions of chloride In excess of the action level the plan shall he Implemented In the The program shall provide each such event of an emergency. The plan shall employee with an opportunity for ex specifically provide that: aminatlons and tests In accordance (1) Employees engaged In hazardous with this paragraph. All medical ex operations or correcting situations of aminations and procedures shall be existing hazardous releases shall be performed by or under the supervision equipped as required In paragraph (h) of a licensed physician, and shall be of this section; provided without cost to the employee. 143 CMA 119713 1910.1017 29 CFR Ch. XVII (7-1-95 EdWon) (1) At the time of Initial assignment, laboratories licensed under 42 CFR or upon institution of medical surveil Part 14. lance; (1) If the examining physician deter (1) A general physical examination mines that alternative medical exami shall be performed, with specific atten nations to those required by paragraph tion to detecting enlargement of liver, (kXD of this section will provide at spleen or kidneys, or dysfunction in least b'tual assurance of detecting med these organs, and for abnormalities in skin, connective tissues and the pul monary system (See Appendix A). (li) A medical history shall he taken, including the following topics; (A) Alcohol Intake; (B) Past history of hepatitis; (C) Work history and past exposure to potential hepatotoxic agents, in cluding drugs and chemicals; (D) Past history of blood trans fusions; and (E) Past history of hospitalizations. (ill) A serum specimen shall be ob tained and determinations made of: (A) Total bilirubin; (B) Alkaline phosphatAse; ical conditions pertinent to the expo sure to vinyl chloride, the employer may accept such alternative examina tions as meeting the requirements of paragraph (kXl) of this section, if the employer obtains a statement from the examining physician setting forth the alternative examinations and the ra tionale for substitution. This state ment shall be available upon request for examination and copying to author ised representatives of the Assistant Secretary and the Director. (1) Signs and label*. (1) Entrances to regulated areas shall be posted with legible signs bearing the legend: (C) Serum glutamic oxalacetic trans aminase (SGOT); (D) Serum glutamic pyruvic trans Cancer-Suspect Agent Area AUTHORIZED PERSONNEL ONLY aminase (SGPT); and (2) Areas containing hazardous oper (E) Gamma glustamyl ations or where an emergency cur transpeptidase. rently exists shall be posted with leg (2) Examinations provided In accord ible signs bearing the legend: ance with this paragraph shall be per- formed at least: __________ _ Cancer-Suspect Agent in This Area (1) Every 6 months for each employee Protective Equipment required who has been employed In vinyl chlo AUTHORIZED PERSONNEL ONLY ride or polyvinyl chloride manufactur ing for 10 years or longer; and (ID Annually for all other employees. (3) Each employee exposed to an (3) Containers of polyvinyl chloride resin waste from reactors or other waste contaminated with vinyl chlo emergency shall be afforded appro ride shall be legibly labeled: priate medical surveillance. (4) A statement of each employee's Contaminated With Vinyl Chloride suitability for continued exposure to vinyl chloride including use of protec Cancer-Suspect Agent tive equipment and respirators, shall (4) Containers of polyvinyl chloride be obtained from the examining physi shall be legibly labeled: cian promptly after any examination. A copy of the physician's statement polyvinyl Chloride (or trade Name) shall be provided each employee. (5) If any employee's health would be Contain* materially Impaired by continued ex posure, such employee shall be with vinyl chloride drawn from possible contact with vinyl Vinyl Chloride is a Cancer-Suspect agent chloride. (5) Containers of vinyl chloride shall (6) Laboratory analyses for all bio logical specimens Included In medical be legibly labeled either: examinations shall be performed In (D 144 Occupational Safely and Health Admin., Labor 1910.1017 VwrL Chloride Extremely FlammaslxOas Under Pressure Cancer Suspect agent or (11) In accordance with 49 CFR Parts 110 through 189, with the additional legend: Cancer-Suspect Agent applied near the label or placard. (6) No statement shall appear on or near any required sign, label or in struction wblcb contradicts or detracts from the effect of, any required warn ing, Information or Instruction. (m) Record*. (1> All records main tained In accordance with this section shall Include the name and social secu rity number of each employee where relevant. (2) Records of required monitoring and measuring and medical records shall be provided upon request to em ployees, designated representatives, and the Assistant Secretary in accord ance with 29 CFR 1910.20 (a) through (e) and (g> through (i). These records shall be provided upon request to the Direc tor. Authorized personnel rosters shall also be provided upon request to the Assistant Secretary and the Director. (D Monitoring and measuring records shall: (A) State the date of such monitoring and measuring and the concentrations determined and identify the instru ments and methods used; (B) Include any additional Informa tion necessary to determine individual employee exposures where such expo sures are determined by means other than individual monitoring of employ ees; and (C) Be maintained for not less than 30 years. (II) [Reserved) (III) Medical records shall be main tained for the duration of the employ ment of each employee plus 20 years, or 30 years, whichever Is longer. (3) In the event that the employer ceases to do business and there Is no successor to receive and relain hie records for the prescribed period, these records shall be transmitted by reg istered mall to the Director, and each employee Individually notified In writ ing of this transfer. The employer shall also comply with any additional re quirements set forth in 29 CFR 1910.20(h). (n) Reports. (1) Not later than I month after the establishment of s reg ulated area, the following information shall be reported to the OSHA Area Di rector. Any changes to such informa tion shall be reported within 16 days. (D The address and location of each establishment which hee one or more regulated areas; and (11) The number of employees Id each regulated ares during normal oper ations. Including maintenance. (2) Emergencies, and the facts obtain able at that time, shall be reported within 24 hours to the OSHA Area Di rector. Upon request of the Area Direc tor, the employer shall submit addi tional Information In writing relevant to the nature and extent of employee exposures and measures taken to pre vent future emergencies of similar na ture. (3) Within 10 working days following any monitoring and measuring which discloses that any employee has been exposed, without regard to the use o( respirators. In excess of the permissible exposure limit, each such employee shall be notified in writing of the re sults of the exposure measurement and the steps being taken to reduce the ex posure to within the permissible expo sure limit. (o) Effective dates. (1) Until April I. 1915, the provisions currently set forth in J1910.93q of this part shall apply. (2) Effective April 1, 1976, the provi sions set forth In 11910.93q of this part shall apply. (Approved by the Office of Management end Budget under control number 1218-0010) Appendix a to 4 IMO.ion--Supplementary Medical Information When required teat* under paragraph (END of this section show abnormalities, the uau should be repeated aa soon as practicable, preferably within 1 to 4 weeks. If testa re main abnormal, consideration should be given to withdrawal of the employee from contact with vinyl chloride, while a mure comprehensive examination la made. Additional testa which may be uaelul A. For kidney dyjfhuctlon: urine examina tion for albumin, rad blood cells, and exfoliativa abnormal cells. B. Pulmonary system: Forced vital capac ity, Forced expiratory volume at 1 second. 145