Document zo75k1544Bdm9moe0mdLR0Mp6

22648 Federal Register /,Vol. 51, No. 119 / Friday, June 20, 1986 / Rules and Regulations significant risks of asbestos-related cancer mortality and asbestosis morbidity sire not eliminated at the exposure level that is permitted under the new standard: however, the reduction in the risk of asbestos-related death and disease brought about by promulgation of the new standard,is both significant and dramatic. The observation that significant risk is not eliminated under the new. permissible exposure level of 0.2 f/cc led some rulemaking participants to urge OSHA to promulgate an even lower permissible exposure limit. For example, in its post-hearing brief, the Building and Construction Trades Department of the AFL-CIO agreed with OSHA's findings on the significance of risk: . . . OSHA's estimates point to two conclusions. First lowering the PEL from its present level will significantly reduce the risk of mortality from lung cancer, mesothelioma and gastrointestinal cancer. This la especially evident at the BCTD-rccommended PEL of 100.000 fibers per cubic meter (0.1 f/cc) where 61 fewer deaths per 1,000 workers will occur. Second, while under. . . |the Benzene decision) it is unnecessory to find Inc existence of a significant risk at intermediate levels above the sew PEL .... a significant risk exists even al this lowest ef polemic] PEL'S. (Ex. 330, p.UJ OSHA agrees with the BCTD that a signifiant risk of asbestos related disease would exist even under a standard having a permissible exposure limit of 0.1 f/cc. As OSHA explained in the April notice in the Summary and Explanation sections of the preamble to the filial standards for asbestos for General Industry and Construction, OSHA's decision to promulgate a permissible exposure limit of 0.2 f/cc is not based on a determination that significant risk is eliminated at this level. Given that a significant risk of harm persists even at very low levels of lifetime exposure to asbestos, OSHA's decision lo promulgate a PEL of 0.2 f/cc is based on a determination that this level is the lowest level that can feasibly be attained in operations in workplaces in both genera! industry and construction. Some comevoters, such as Organization Resources Counselors, Inc. (ORC) (Ex. 12:i-A) and the Asbestos Information Association of North America, (AIA/NA) (Ex. 328), argued that'OSHA overstated the risk of disease from asbestos exposure. Specifically, they objected to the following: OSHA's use of past exposure levels, or the 2 f/cc PEL coupled with the assumption of lifetime exposure duration, as benchmarks for determining risk, rather than the lower exposure levels and shorter durations typically found in Industry today. Failure to account for differential risks posed by different types of asbestos fiber. * Failure to distinguish between the cancer mortality risk for asbestos-exposed workers who smoke and those who do not Regarding the use of past exposure data or the current PEL of 2 f/cc to estimate risk levels, the ORC commented os follows: . . . ORC recommends that estimates of risk be based on exposures. . . that are relevant to 1984 workplace conditions- It Is important to know as accurately as possible what the actual risk is at today's Exposure levels, but this is not possible unless we recognize the factors in the risk equation that have changed from 1944 to 1934. (Ex. 123-A, p. 12) Similarly, the A1A/NA stated: OSHA further errs toward over-prediction of risk by assuming, without substantiatton. that workers will experience exposures et the level of the standard for up to 45 years. In fact, the record evidence indicates (that] exposures will average significantly below any standard. ... As would be predicted from accepted technological feasibility and industrial hygiene practice control, average workplace exposures to asbestos have been found to be one-fourth or less of a given standard (based on OSHA field monitoring results). . . . More detailed data from the United Kindom confirm that under its former 2 f/cc standard, average exposures in all but textile manufacturing were but one-tenth the PEL, and in textile generation--the most difficult to control--exposures averaged onefourth the standard. (Ex. 328, pp. 22-23) ORC and A1A/NA also objected to the use of a 45-year exposure duration for estimating risks. ORC commented that "(tjhe majority of 1984 exposure are intermittent, and 4-5 days per month would be on the high side for an industry-wide average" (Ex. 123^-A. p. 14). The ALA/NA argued as follows: OSHA's significant risk findings are also predicated on an assumed 45-year lifetime exposure. Although 45-year exposures are theoretically possible, the evidence in the record demonstrates that only a very small minority of workers will be exposed that long. The vast majority of asbestos-exposed workers will experience fewer then 10 years Jot) exposure. As Dr. Nicholson notes at the hearing, approximately ball of all workers leavean industry within six months, and the remaining half work in a given industry between eight and twelve years. (Ex. 328, p. 1-24) The AIA/NA concluded that the actual risk to workers exposed to asbestoB is approximately one-sixteenth that predicted by OSHA, because "... . average exposures over and average working life will be for one-fourth the time at one-fourth the level of OSHA's . lifetime exposure predictions" (Ex. 328, p. 1-25). For this reason, the AIA/NA claimed that significant risk would be eliminated at a new PEL of 0.5 f/cc. OSHA agrees that the record indicates that the actual exposure conditions and employment patterns of many workers today do not conform to the exposure and duration characteristics underlying die lifetime exposure assumption used in the Agency's risk assessment. However, when determining whether a hazardous substances poses a significant risk and that reduction of a PEL is warranted, OSHA. must consider what degree of risk would be permitted by the existing standard, even though many workers may in fact be at lesser risk because their employers have chosen to reduce their exposures to levels below those required by that standard. It is for this reason that OSHA bases its determinations of significant risk on exposure to a PEL and not on reported exposure conditions. However, it should be noted that OSHA does analyze current exposure conditions in workplaces.when assessing the potential benefits of new regulations, as required by Executive Order 12091. For example, in this rulemaking, OSHA has quantified the benefits of the new standard, taking into account current occupational exposure conditions (see Section VII). The.use of the lifetime exposure (45year) assumption has also been standard in determining significant risk in previous OSHA rulemakings. OSHA has several reasons for using a lifetime exposure assumption. First, the use of a 45-year lifetime exposure duration is based on guidance given in the OSH Act. As specified in Section 6(b)(5): "The Secretary in promulgating standards dealing with toxic materials or harmful physical agents under this subsection,-shall set the standard which most adequately assures to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health of functional capacity evenif such employee has regularexposure to the: hazard dealt with by such standardfor the period of his working life" (emphasis added). OSHA believes that it is reasonable to assume that a person begins work at age 20 and continues until the age of 65, a 45-year span of employment. Under Section 6(b)(5) of the Act OSHA is compelled to promulgate standards that ensure that employees, even those exposed to the hazardous agent for their entire working lifetime, are at the lowest risk that can' feasibly be attained. Therefore, OSHA's determinations of significant risk must take into account the fact that many GLEASON-000896