Document zomyRY06mqmKgzD2jL2KZvVgB

2aTGE: JLfj|gS: A3B: RF XF: Interoffice Communication TO: FROM: DATE: SUBJ: EOIC Executive Committee T. G. Grumbles August 8, 1989 ^ t of I /f3' /D'/'/3 OSHA PROPOSED RULE: METHODS OF CC VIS1A The subject rule has multiple questions and requests for comments and/or data regarding the use of respiratory protection for compliance with occupational exposure limits. Specifically, there are many references to the EO EL rulemaking record regarding the use of respirators to comply with the 5.0 ppm EL. I believe EOIC needs to comment on at least the EO specific issues, particularly the use of respirators for EL compliance, as well as some of the general issues raised. I've attached a copy of the proposal with the question raised by OSHA numbered in the margins. I believe we need to comment on at least the following: 1, 2, 4, 7, 8, 10, 13, 14, 15, 17, 20, 22, and 25. These questions deal with the cost/benefits of respirator use, specific jobs where respirators can be used solely, and additional data to support specific changes to the Ethylene Oxide standard. We need to review our comments in the EL rulemaking records and determine what we believe we could add to reemphasize our prior position or new information to address OSHA's questions. T. G. Grumbles dlj cc's: R. Romano S. Schotland VVV 000009503 Federal Register / Vot. 54. No. 106 / Monday. June 5. 1989 / Proposed Rules 23991 mbu m ' m . from the Superintendent of Documents. U.S. Government Printing Office. Washington. DC 20402. Stock No. 050001-00308-2. The FHWA both receives and initiates requests for amendments to the MUTCD. The MUTCD is a promulgation of uniform national traffic control devices standards and applications for use on all streets and highways open to public travel regardless of type or class or the governmental agency having jurisdiction. Issued on: May 30.1989. R. D. Morgan. Executive Director. (FR Doc 89-132B0 Filed 8-2-89: 8:45 am) aaxiNO cooc o.2mi DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. H-160] RIN 1218-AA2B Health Standards; Methods of Compliance agency; Occupational Safety and Health Administration (OSHA), Labor. action: Proposed rule. summary: By this notice the Occupational Safety and Health Administration (OSHA) proposes to modify the existing provisions for controlling employee exposures to toxic substances found in 29 CFR 1910.1000(e) and 29 CFR 1910.134(a)(1). The Agency proposes to incorporate additional flexibility in its methods of compliance requirements by more explicitly setting forth the circumstances under which respiratory protection may be used in lieu of engineering controls. While some additional approaches are not reflected in actual proposed regulatory language, comment is requested on the appropriateness of addressing all of the various areas discussed by this notice in a final methods of compliance rule.<BThis action is being taken based on data the Agency has received in response to an Advance Notice of Proposed Rulemaking (ANPR) published in February. 1983 (48 FR 7473) that solicited comment on its policy relating to the use of engineering controls and respirators and on data found in OSHA's 6(b) rulemaking records addressing the methods of compliance issue (Ex.4). Notice is also given, herein, that certain modifications to the compliance requirements with respect to short-term exposures in the recently promulgated standards for benzene (52 FR 34460). formaldehyde (52 FR 46168). and ethylene oxide (53 FR 11414) may result from this rulemaking. OATS: Comments and requests for a hearing should be submitted by October 3.1989. ADDRESSES: Comments should be submitted in quadruplicate to the Docket Officer. Docket No. H-160, Room N3870, U.S. Department of Labor. 200 Constitution Avenue. NW.. Washington. DC 20210. Requests for a hearing should be submitted in quadruplicate to Mr. Tom Hall. OSHA. Division of Consumer Affairs. Docket No. H-160. Room N3637, U.S. Department of Labor. 200 Constitution Ave.. NW,, Washington. DC. 20210. FOR FURTHER INFORMATION CONTACT Mr. lames F. Foster. Occupational Safety and Health Administration. Office of Public Affairs. Room N-3649. U.S. Department of Labor. 200 Constitution Avenue. NW.. Washington, DC 20210. Telephone: (2D2) 523-6151. SUPPLEMENTARY INFORMATION: L Background OSHA's methods of compliance policy, first adopted by OSHA from national consensus standards in 1971, and subsequently included in OSHA substance specific health standards, requires that employers rely primarily on feasible engineering controls to prevent employee exposures from exceeding permissible levels. This requirement in particular, is stated in the OSHA Respiratory Protection Standard. 29 CFR 1910.134(a)(1). which applies to all exposures to airborne toxic substances, and in the Air Contaminant Standard. 29 CFR $ 1910.1000(e), which applies to exposures to 600 substances listed in Tables Z-L Z-2. and Z-3. Thus. 29 CFR 1910.1000(e) requires employers to first implement engineering and administrative controls to comply with the permissible exposure limits for substances listed in the above Tables. Similar language appears in OSHA's generic respirator standard which set forth the conditions: of respirator use required to protect the health of employees. (29 CFR 1910.134(a)(1)). These standards were adopted without full rulemaking proceedings to allow OSHA to quickly put into place a body of workable regulations, pursuant to section 6(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655 et seq). This methods of compliance policy has also been incorporated in every health standard adopted pursuant to section 6(b) of the Act after OSHA's evaluation of the related rulemaking records. All substance specific health standards (except for the 13 carcinogen standards. 29 CFR 1910.1003-1010. which mandate specific engineering controls) and the carcinogen policy (29 CFR Part 1990) recite a generalized preference for engineering and work practice controls. However, in each such standard OSHA has identified circumstances or operations where the record shows the infeasibility or impracticably of installing engineering controls and has allowed reliance on respiratory protection as well. However, the generic standards. 29 CFR 1910.1000(e) and 134(a)(1), do not set out moat of these modifying circumstances in their regulatory texts. In certain recognized situations and conditions under OSHA's substance specific standards, engineering controls are not required and respirator use is permitted. For example, the following standards permit the use of respiratory protective devices during installation of feasible engineering controls, where engineering controls are not feasible, and where it is necessary to supplement engineering controls in order to achieve full compbance: asbestos, arsenic, lead, coke ovens, cotton dust, DBCP, acrylonitrile, and ethylene oxide. Other specific allowances for respirator use can be found in standards for arsenic (maintenance and repair), lead (for employees exposed less than 30 days per year), coke ovens (maintenance and repair), acrylonitrile (maintenance, repair, and vessel cleaning), and ethylene oxide (collection of quality assurance samples, removal of biological indicators, loading and unloading of tank cars, changing ethylene oxide tanks, vessel cleaning, and maintenance and repair activities). ' These examples provide a clear indication of the Agency's realistic expectations with respect to the implementation of engineering controls and of the flexibility implied with respect to the meaning of "feasible engineering controls." In addition, in an enforcement context it may be demonstrated that for specified operations engineering controls are _ infeasible. OSHA seeks comment on (\f) whether these specific types of '-- allowances should be explicitly built into the general methods-of-compliance provisions. OSHA's policy has been criticized by some as too inflexible, not cost- effective. often unnecessary for health vvv 000009504 ih s * y * * * c a a s '* i 2399: Federal Register / Vol. 54. No. 106 ( Monday. June 5. 1989 f Proposed Rules protection and outdated based on the rulemaking records from other Engineering controls generally provide argument that sufficient progress has standards which OSHA has better and more reliable methods of been made in respirator technology and application to permit their use on a wider scale. In order to address these criticisms OSHA published an ANPR on February 22.1983. to solicit public comment on promulgated have been re-examined and relevant exhibits have been placed in this record. Labor unions opposed any change in the role of respirators in current programs. In addition, NIOSH. and Los Alamos and Lawerence protecting employee health Improperly wearing respirators can be a continual problem. While we believe this occur* leas than 6% of the time in many of our plants, we expect it occur* more frequently in some plants--possibly in the order of 30% or more of the time. (Ex. 2-103). issues such as preference for engineering controls, comparative protectiveness of respirators and engineering controls, total costs of respirators and engineering controls, and the use of engineering controls even if such controls fail to reduce levels to below the PEL. OSHA was also seeking information that would help the Agency to focus on three primary policy considerations: The first consideration was health Livermore research laboratories, highly respected for their expertise and experience in exposure control technology, also opposed changing the existing policy. The preponderance of data in this and other rulemaking records (ethylene oxide, cotton dust DBCP. acrylonitrile, arsenic, lead, asbestos, cancer policy) support the industrial hygiene principle that engineering controls, where feasible, are more effective in Many industry commenters. however, called for increased flexibility in OSHA's compliance policy: still others for abandonment of the preference for engineering controls. For example, the Chemical Manufacturers Association . stated (Ex. 2-72), in response to the question of whether OSHA should require the use of feasible engineering controls "in preference" to the use of respirators, as follows: i protection. It had been postulated that controlling exposure than other means. As long as the employer meets a there may be many instances where Commenters representing unions. (2- permissible exposure limit (PEL), controls the \ respirators would provide protection to employees equivalent lo engineering controls, and that their routine use should be permitted. The second consideration was that respirator technology and use practices have progressed significantly since initial adoption of OSHA's compliance requirements in 1971. As a result of many of these advances, the consensus among many occupational health professionals concerning what constitutes a reasonable effective respirator program has changed. This point is demonstrated by the issuance of the American National Standards Institute (ANSI) Z-8B.2-1980 standard, entitled "Practices for Respiratory Protection." a revision of the 1969 ANSI standard. In addition, improved respiratory protection programs are currently being addressed in a proposed revision of OSHA's respiratory protection standard (29 CFR 1910.134). It was suggested, therefore, that, in the presence of such programs, respirators would be capable of taking a more significant role in air contaminant protection than they have had before. 53.2- 102, 2-122.2-98), universities (2 120), research organizations (2-128, 2138.2- 131.2-81), and health associations (2-89). contended that the requirement to implement feasible engineering controls should be. maintained. Industry representatives that acknowledged the superiority of feasible engineering controls include AT&T (2-59). DOW (2-71). Monsanto (288). and ALCOA (2-103). Hieae commenters agreed that engineering controls provide reliable and consistent levels of protection to a large number of workers and are not dependent on individual human performance. Data submitted to the record support this assertion. Performance of engineering controls can be monitored continuaily. inexpensively, and can be predicted at the design stage. As stated by DOW. "The primacy of engineering controls for controlling exposure is an accepted principle of occupational health" (2-71). AT&T commented that "Engineering controls should always be given primary consideration" (2-59). Los Alamos' skin contact, or meets the appropriate biological levels that are consistent with employee health and safety. OSHA should not require any specific control strategy (sic). Means for achieving such standards will often involve engineering controls end the uie of respirator* ae well as administrative and work practice controls. Methods of reducing exposure to the desired level will be different in each workplace and the combination of engineering, administrative, and work practice controls and use of respirators should be left to the employer. Representing a broad cross section of industry, the National Association of Manufacturers (Ex. 2-91] similarly stated, arguing that OSHA's current methods policy was actually counterproductive to worker safety and health, as follows: The threshold question is whether current OSHA standards requiring employers to implement feasible engineering controls to maintain air contaminants in the workplace lo within prescribed permissible exposure limits and permitting engineering controls are not feasible, not yet installed, or ere inadequate ie conducive to the "most effective" protection of workplace health. It is the NAM's belief that almost exclusive ~ The third consideration was cost* Industrial Hygiene Group has stated. reliance on engineering controls while not effectiveness. There may be instances That * * * there are no analytical reauita accounting for situational variations is where the costs of engineering controls would exceed the expected costs of respiratory protection, and where the routine use of respirators may provide adequate employee protection. Should such instances exist reasonable to indicate that respirators offer equal or better protection than engineering controls and with very few exceptions * * respirators simply cannot offer the same degree and reliability of protecUon to employees, as properly designed and operated engineering controls neither the most effective approach nor in the best interest of overall worker protection. FdW professionals in industry would argue that engineering controls are not the "Ideal" means for the elimination or mitigation of workplace hazards. However, ideal solutioni rarely work as well as expected in practice i. allowances for the use of respiratory (2-131). and practical concerns must also be protection should be made. For the foregoing reasons, it was felt The University of North Carolina considered. These practical concerns include all hazards rather than a single hazard and to be timely and appropriate to commented that: must be viewed in relation lo and interacting reexamine OSHA's policy on methods of compliance. Over 135 ANPR comments were received, with a wide range of responses All industrial hygiene practice indicates feasible engineering controls should take precedence * * * (Ex. 2-120). ALCOA, addressing the reliability of with a total workplace safety and health program. Under this total program, the ideal solution for the control of one hazard may likely limit an employer's ability to address the remaining segments of the program. Thus, from industry, tabor, health engineering controls and respirators, preference for one form of control over organizations, and others, in addition. provided the following: another, unmindful of the variables involved. Iy im * . VVV 000009505 .Jfc.e Federal Register / Vol. 54. No. 106 / Monday. June 5. 1989 / Proposed Rules 23993 we believe, is counterproductive to the effectiveness of balanced and truly effective overall safety and health program. For this reason.the feasibility of an engineering control should not be the sole determinant of its use and OSHA policy should not reflect this short-sighted goal. Specific companies reflected similar concerns. Thus, the DOW Chemical Company [Ex. 2-71) noted: Atlantic Richfield Company (Ex. 2-80). in endorsing comments submitted by the American Petroluem institute (Ex. 2-73). noted: Employers should have the option to select a protective control strategy rather than being mandated to adhere to the current rigid hierarchy of exposure controls. The ultimate goal of any control strategy must be the adequate protection of workers exposed to contaminants. Varying control strategies will are not feasible before an employer can rely on respirators to reduce employee exposure to required levels. In large part these circumstances reflect the current application of the two standards involved and circumstances recognized in substance-specific standards. By setting out explicit situations OSHA hopes to make future application of the methods of The prime concern in any reconsideration achieve that goal at least equally well, and compliance policy more uniform and of the methods-of-compiiance provisions often more cost-effectively, as the fixed understandable. must be maintenance of safety and health protection for employees to prevent work- related injuries, illness end death. Such protection cannot be achieved by mpnri^iing a hierarchy of control technique*. Dow recommends that OSHA delete or modify any mandatory preference to allow employers controls provided by current policy. In support of this recommendation we want to emphasize that the statutory language of the OSH Act doee not mandate the primacy of engineering controls. Support for this conclusion is fully developed in API's comments. It Is noted that provisions adopted under this standard will not change the compliance provisions found in OSHA's existing substance specific standards with the possible exceptions of the STEL provisions in the ethylene oxide (29 CFR greater flexibility to use their professional judgment to determine the balance of engineenng controls, work practices, operator training and personal protective equipment that is most effective for them in achieving the appropriate level of protection. Another major chemical company. Du Pont emphasized the effectiveness of respirators together with the need for greeter flexibility: Much has changed sinca the current methods of compliance policy wes adopted. Data obtained from research on the performance of respirators in the workplace, much of it performed by DuPont lend strong support to the conclusion that respirators provide reliable employee protection when used in e good respirator program. Recent research on workplace protection factors demonstrates that respirators provide effective control for exposure to airborne chemicals when they are used correctly in a good respirator program. In many cases they provide the most cost effective wumn of control. Accordingly, DuPont believes that respirators, like engineenng and administrative controls, have a proper role to play in the protection of employee's. Therefore. DuPont recommends that each employees personal work environment be maintained at a safe exposure level through implementation of cost-effective engineering OSHA should recognize the significant advances in both technology and applicability of respirators in the last decade. New methods and procedures for fit-testing and respirator fit reliability have been developed. Other commenters expressed similar concerns. (See Cast Metals Federation [Ex. 2-49). Horston Lighting & Power [Ex. 2-21), the American Gas Association (Ex. 2-77). SCM Corporation [Ex. 2-21), and National Agricultural Chemicals Association [Ex. 2-77). National Paint and Coatings Association, Inc. (Ex. 2-78). Motor Vehicles Manufacturers Association [Ex. 2-95). and The Health Industries Manufacturers Association [Ex. 2-110). This rulemaking does not address the assessment and reduction of any absolute existing risks but rather addresses the possible change in risk abatement associated with the use of respirators instead of engineering controls. The nature of the risks involved concerns differences in degree of protection between respirators and engineering controls as applied in various types of work situations involving different air contaminants. 1910.1047), benzene (29 CFR 1910.1028) and formaldehyde (29 CFR 1910.1048) standards. The preamble to those standards indicated that if evidence : were to be submitted during this rulemaking, appropriate to ethylene ' oxide, benzene or formaldehyde on the STEL compliance issue OSHA would consider making appropriate changes to 1 each rule. If information developed in die course of this rulemaking demonstrates that changes should be made in any of the existing substance specific standards. OSHA will amend these standards to permit employers to elect to use either respirators or engineering controls to achieve compliance with those existing short term limits. The circumstances listed define concrete situations where OSHA has or would have treated the primary reliance on engineering controls as infeasible in most cases. Within these circumstances employers will he Tble use atiy y combination of engineering or work practice controls and respiratory protection to effectively reduce employee exposures to required levels. OSHA also notes that as under the controls augmented as necessary by personal The Proposal current standards. OSHA's enforcement protective equipment and/or work practice controls. The choice of methods should depend on the factors in each specific situation. The choice of the proper method(s) of compliance involves, therefore, far more than the simple dichotomy of engineenng controls versus respirators. For this reason, the OSHA proposes to modify its existing requirements in 29 CFR 1910.1000(e) and 134(a)(1) that specify primary reliance on feasible engineering and work practice controls, by further clarifying the circumstances, based on experience with OSHA's 8(b) standards and data and information submitted for the of the hierarchy of controls provision is on a case by-case basis. Other situations where engineering controls may be infeasible can be more easily identified because of the explicit examples provided in the proposed provisions. OSHA has recognized other question "Which are better, engineering record, under which more extensive use circumstances where respirators are controls or respirators?*' cannot be of respirators may be appropriate. essential to guarantee employee health satisfactorily anawared in the abstract. As the information end comments offered by Du Pont in the enclosure will indicate, the choice of the proper method(s) of compliance is best made on an individualized baaia by industnai hygiene professionals. So long as the two critena identified above have been met an The record does identify specific situations where engineering controls generally may not be feasible, and where respirators may have to be used (Exs. 2-51. 2-72.2-131). OSHA, therefore, is proposing to specify five in some substance-specific standards. Thus. OSHA has provided that in work operations such shutdown and repair activities respirators may be used as a primary control strategy. (See 29 CFR 191Q.104B(a)(l)(ii). Formaldehyde; employer should not be needlessly sets of circumstances where there will 1910J047(g)(l)(ii). Ethylene oxide (EtO); contrained from choosing the control strategy be no need for employers to show that 1910.1043(f)(1)(d). Cotton dust: s that makes sense for his particular operation. engineering and work practice controls 1910.1029(g)(1)(b). Coke Oven emissions: WV 000009506 23994 Federal Register / VoL 54. No. 106 / Monday. June 5. 1989 / Proposed Rules '9l0.10l8(hHl)(ii). Inorganic arsenic; i9io.iooi(g){ii), Asbestos, tremolite. anthophyilite. and actinolite). OSHA has not proposed an explicit exclusion for maintenance activities for the generic standards. As OSHA observed in the preamble to the carcinogen policy, based on its review of that voluminous record, although these activities are "intermittent, often unpredictable and often undertaken when engineering controls break down * * * some maintenance activities are feasibly controlled by engineering and work practice controls" 45 FR 5226. Moreover, the Agency believes that routine activities that are performed on a repeated or scheduled basis can be | controlled through implementation of feasible engineering and work practice < controls. Compliance plans can be developed and engineering controls implemented for predictable activities, j including routine maintenance. However. OSHA raises for comment the question of whether it is necessary to require that ail feasible engineering controls such as ventilation systems be installed solely for maintenance activities. Specifically, OSHA would like to receive examples of instances which would demonstrate that an engineering control requirement exclusively for maintenance exposures would or would not be appropriate. (For activities such as shutdown and repair, which are necessary due to unexpected or unpredicted occurrences, respirators would be permitted as they would be the only available source of protection against exposure.) The Agency does agree, however, that there may be some activities that are considered to be maintenance that may have to be performed with respirators due to the absence of other controls. Nevertheless, as discussed above, the Agency believes many maintenance activities lend themselves to control by engineering means. OSHA does not have sufficient information to list specific maintenance jobs commonly performed in general industry that may require widespread use of respirators. Therefore, the Agency is interested in receiving comment on the practicality of ,.-w listing specific maintenance jobs for which engineering controls are generally infeasible or maintenance activities where respirator use is otherwise appropriate based on consideration of duration, frequency and whether routine or not. Thus, data are solicited regarding -'s circumstances, conditions, frequency, " nd duration of the types of industry* wide maintenance activities that typically require the use of respirators due to the general infeasibility of appropriate for clarification purposes. engineering control implementation or Comment is requested on this issue. for which respirator* would, in any case, OSHA points out that this exception provide sufficient protection. does not cover the required The five seta of circumstances that supplemental use of respirators when - have been identified by OSHA from feasible engineering controls do not data in the record where engineering "`achieve full compliance'' pursuant to 29 controls may generally be infeasible CFR 1910.1000(e). Rather, it refers to include: situations where engineering controls 1. During the time necessary to install feasible engineering controls; 2. Where feasible engineering controls result in only a negligible reduction in exposure; 3. During emergencies, life saving, recovery operations, repair, shutdowns, and field situations where there is a lack of utilities for implementing engineering controls; 4. Operations requiring added protection where there ia a failure of normal controls; and 5. Entries into unknown atmospheres. would achieve exposure reductions only to a negligible degree. Comments in response to the ANPR identified some operations which may be covered by this proposed provision. However, further case-by-case analysis still will be required (Exs. 2-131.2-118. 2-132). Thus, for example, the American Foundrymen's Society (AFS) asserts that "technical limitations prevent the control of dust exposures to within permissible exposure limits by engineering means at most chipping and grinding operations." (Ex. 2-44). Spray painting booths were also cited as A provision-by*provision discussion virtually impossible to engineer to of the proposed revisions follows: achieve substantial exposure reduction 1. OSHA is proposing to allow (Ex. 2-36). OSHA notes however, that primary reliance on respiratory engineering controls may be feasible to protection during the time necessary to implement and the issue may be the install or implement feasible engineering degree to which they are effective. The controls. This circumstance was proposed provision wouid allow specifically identified in submissions to reliance on respirators when feasible the ANPR (Exs. 2-91, 2-50), and in all engineering controls only achieve substance specific standards {see e.g. 29 negligible exposure reduction. If in the CFR 1910.104(g){l)(l), EtO: case of foundries, the installation of 19l0.1045(h)(l)(i), cotton dust). local exhaust hoods and increased 2. OSHA is proposing to allow primary reliance on respiratory' housekeeping make little difference in the employee's exposure because of protection where engineering control unalterable difficulties in hood implentation would result in only a placement then the provision may negligible reduction in exposures. OSHA apply. If however, engineering controls requests comment on whether setting ft v can reduce exposures, although not forth this additional explicit regulatory^ ) down to the PEL'S, the unrevised language ia necessary in light of existing supplemental respirator use provision of provisions requiring that only feasible 1910.1000(e) wouid. as now. come into engineering means be implemented to play 8nd require a combined control reduce exposures. Current OSHA enforcement policy and practice strategy, and not total reliance on. respirator protection. recognize that the degree of expected OSHA also notes that confining exposure reduction is part of the discussion about the effectiveness of determination of feasibility. Therefore. feasible engineering controls to OSHA feels that it may be unnecessary to supplement the current compliance "conventional" controls may dictate unwarranted conclusion of infeasibility, requirements with specific language as suggested above. Further, to define in loss of productivity or ineffectiveness. NIOSH has pointed out that, for regulatory terms on a broad basis what example, in the plastics and resins a "negligible" reduction in exposure industry, implementing controls for level is in general industry as a result of cotton dust, and in silica flour milling, engineering control implementation, as engineering control modifications and opposed to defining it on a case-by-case innovation increased production and enforcement basis, may prove to be control effectiveness over confusing to employers and impractical "conventional" technology. (Ex. 2-81). to OSHA. Nevertheless, since the \ Innovative controls which are available potential success of exposure reduction 1 will have to be assessed before this is considered in determining feasibility, 1 exception may be relied on. proposing specific language to that 3. The third provision proposed by effect would not change current OSHA OSHA to permit reliance on respiratory policy and therefore, may be equipment encompasses several VVV 000009507 Federal Register / Vol. 54. No. 106 / Monday. June 5. 1969 / Proposed Rulea 23995 circumstances where total reliance on essential for these activities, and that occasional entry into hazardous engineering controls would be engineering controls were, in the main, atmospheres." Comments submitted to ineffective or inappropriate. These are infeasible (Ex. 2-112). the Methods of Compliance record also emergencies, recovery operations, OSHA believes that employees will argued for incorporation of flexibility In unscheduled repairs shutdown, and in be effectively protected in the situations respirator use under certain conditions. field situations where there is a lack of evisioned in provisions 4 and S. by the One commentor stated that respirator utilities for implementing engineering proper selection and use of respiratory controls. protection. QSHA believes that in these Tke Agency requests comments on all circumstances, respiratory protection V^aspects of these proposed provisions. In has proven itself generally as the most particular, the clarity of the "exception and often the only practical means to provisions" la of concern to the Agency, minimize employee exposure. because one reason for these provisions Respirators may be the only means of is to provide certainty and uniformity of protection in situations where application to employers and OSHA engineering controls cannot be enforcement personnel. implemented due to the remoteness of In addition to requesting comment on the locale, other configuration of the the appropriateness of allowing the use site, or the characteristic of the work of respirators during the activities operation. Further, some of the defects discussed above, OSHA requests data, of respirators. i.e., lack of employee ^-vviews. and comment on other situations. acceptance and degradation of At over ( / discussed below, where it may be time are greatly reduced by the short " acceptable to use respirators in lieu of time they may be worn during engineering controls, and which should emergencies, recovery operations, be allowed for. as part of this unscheduled repairs and shutdown. rulemaking, in a final methods of Most submissions supported respirator compliance rule. use in circumstances similar to Specifically, comment is sought on the exception three. For example. MonsantcySNappropriateness of permitting the use of use should be permitted in lieu of feasible engineering controls for a certain percentage of time per individual, per work station (Ex. 2-43). This suggests, perhaps, that employers should be allowed to establish a "respirator budget" to allocate a certain number of days per year or hours per day for employees to wear respirators in lieu of feasible engineering controls. Comment and data is sought that demonstrate that "budgeted" respirator use will result in reliable and predictable control equivalent to that afforded by engineering controls. Others supported allowing employers to rely on respirators to control exposures for short term tasks (Ex. 2-61), and for high exposure variability, infrequent and small exposed population job tasks (Exs. 2-88, 2-93). None of these comments, however, provided substantial data to noted that during emergencies (liquid 1 tekeapiratora for work situations in which the record demonstrating that employee spills, fire fighting, etc.) respirators are the hazardous exposure is of very brief protection would not be compromised used in operations where routine duration. OSHA permits the use of by permitting the use of respirators in protection is achieved by engineering respirators in specific activities in a these instances in lieu of feasible controls (Ex. 2-86). API noted that number of its existing section 6(b) engineering controls. Receipt of such respirators are the only means to standards based, in part, on the short data is requested by OSHA. provide emergency protection in the event of an equipment failure (Ex. 2-93). Most substance specific standards permit primary respirator use in these situations (See e.g. $ I910.1016(h)(l](ii), arsenic: $ 1910.1029(g)(1)(d). coke oven emissions): and 9 1910.1044(h)(l)(iv), DBCP). 4. OSHA is also proposing to allow reliance on the use of respirators in operations involving materials which are primarily controlled by engineering devices to protect employees in the case of control breakdown. OSHA's intent is to allow respiratory protection to be used as a redundant control system where redundancy is considered necessary either because of the toxicity of the substance or the possibility of engineering breakdown. For example, Conoco. Inc. stated that "standby or back-up respiratory protection is normally maintained in ail locations where hydrogen sulfide (H*S) gas is produced in case of accidents" (Ex. 2- duration of the activity. For example, respirator use is permitted under the ethylene oxide standard (29 CFR 1910.1047) during the collection of quality assurance samples, removal of biological indicators, and changing of ethylene oxide tanka or cylinders. These activities are typically brief in nature. The concept of according acceptability of respirators for intermittent use is also found in the benzene (52 FR 34460) and lead (29 CFR 1910.1025) standards which, in general, permit their use .where the regulated substance is used in the workplace less than a total of 30 days per year. These exceptions to implementation of engineering controls were adopted in each specific standard based on data that demonstrated the acceptability of the use of respirators for those particular circumstances in those particular substance using industries. Thus, it is not presently clear to OSHA whether such exclusions can be appropriately applied generally. Another As indicated above, however. OSHA is not convinced based on available data that it is appropriate for the Agency to adopt broadly applicable generic exposure control provisions incorporating intermittency or short duration of operation as a basis for permitting the use of respirators in lieu of engineering controls, as found in the specific standards discussed above. Therefore, comment and data are solicited that demons(rare or refute the appropriateness of adopting this approach into a final rule on OSHA's ,rr methods of compliance requirements. (!_! based on the frequency and duration of the activity, that could be applied to general industry. Comment is also specifically requested on whether actual final regulatory language which would reflect this approach should incorporate , specific time limitations as to the duration and frequency of use per work shift and what these specific time 60). 5. The fifth circumstance proposed to allow reliance on respiratory protection is for entries into unknown atmospheres. regulatory agency, the Mine Safety and Health Administration (MSHA). is also exploring the issue of ways to permit more flexibility in required exposure limitations should be. or should, rather, such language be phrased in general, flexible terms such as "brief duration," "short duration," or "brief intermittent Preliminarily, OSHA intenda to cover control methods for unusual situations. use" without specific time iimitatioaa. If 'tonfined spaces or vessel entry and tank For example, MSHA is considering a time limitation is suggested, the .leaning and vessel cleaning. Most permitting the use of respirators in Agency requests data and information coxnmenters who addressed this issue "tasks such as maintenance or as to the appropriate time period and agreed that respiratory protection was investigative activities [which] require why adequate protection would be VVV 000009508 23996 Federal Register f Vol. 54. No. 106 / Monday, june 5. 1989 / Proposed Rulea provided by respirators during that period. STEL compliance for all substance* to exposure; ability to measure and ensure be achieved solely through the use of /"`Alhe adequacy of exposure control: work Related to the issue of the appropriateness of permitting short duration use of respirators, as discussed above, is the issue of specifically permitting respirators to be used to achieve compliance with short-term exposure limits (STELs). The preambles to the recently promulgated benzene (52 FR 34460} and formaldehyde (52 FR 48168) standards, for which STEL* were adopted, and the preamble to the ethylene oxide standard (53 FR 11414). for which an excursion limit was adopted, indicated that OSHA would consider in its Methods of Compliance rulemaking whether different principles should apply as to means of compliance for the STEL. or excursion limit such as using respirators to meet the short-term limit, but not the TWA. Neither the ethylene oxide, benzene nor the formaldehyde standard adopted a provision allowing respirators to be used to achieve compliance with the short-term limit in lieu of feasible engineering controls because data in their specific respective records did not justify such an allowance. It is noted in each standard s preamble that if evidence is submitted in the Methods of Compliance rulemaking, appropriate to ethylene oxide, benzene or f formaldehyde on the short-term limit / l\ compliance issue OSHA will consider 0 /making appropriate changes to each ^---*/ rule. OSHA therefore requests, additional data beyond those received during the specific 6(b) rulemakings, addressing the question of whether the compliance requirements in these standards should be modified with respirators. Since OSHA has received (\uhate: temperature and humidify of the no documentation that convinces the- '--`"'workplace: ability to assess the Agency that respirators can be used as a probability of protection failure; consistently effective means of routinely detectability of control failure before meeting STEL's on a widespread basis, harm; and the extent to which the Agency is raising this issue for employees may be expected to wear comment. respirators for any required period. The Agency is raising this issue for comment in conformance with Comment received on these factors as set forth in the ANPR revealed that an statements to that effect-in the ethylene important role is played by each in oxide, benzene and formaldehyde standards. OSHA therefore requests subosittaannutive tecnhinuicail daasmta councvernnmintg determining the suitability of compliance methodology. Engineering c--o-n--t-r-o--l-s---w--e---r-e---s--uwgg-ested as being conditions and situations under which/--particularly preferred where health respirators can be employed (\ [ q leffecta are more severe, where there are successfully in lieu of other controls tJ_Vmore lengthy and frequent periods of achieve STEL or excursion limit compliance, and concerning how and why the use of respirators for protection against short-term exposures can be differentiated from protection against TWA exposures with respect to effectiveness. Comment on another area where broader use of respirators may be acceptable is also being requested by OSHA. As discussed earlier, the question arises whether there are circumstances in the workplace where wthoeupldrobteecetiqounaal ftfoortdheedprboyterecstipoinratora exposure; where respirator failure warning properties do not exist; where the work Tate exertion level is greater, where significant respirator fit problems exist, and where extreme temperature and humidity conditions exist OSHA again raises for comment the question as to how or if these workplace factors should be viewed in deciding whether engineering controls or respirators are moat appropriate and. further, how these factors could be reflected in a final rule to define those circumstances where respirator use would provide approbate protection end would, lhu. provided through ^pl^nla.ion of >11) it be determined that employees would [q A eqcrectelheenuioqirotgsgecshuspiuitseatneiiemtmrrlei.aooftpesftAatnefrtortoaeicreanretntnergipcvcigcstroeechiotennonsiegosesenrwrneeiwastdrrhsmwociehneilftreorgsrawacet.uchtcuoIilttoonmedohunnrresblpdstttiehracanoabeornaltredrssicfeectfeesloaueaet,srnelsordaisdernferm,ttydhhwteihneabtheinynicgh--iQ-v >bpiraapneersnrroseotd-pthtp-toeu-ereti-ochrscw-atp-evatihiotrdi7otodoen:cnrec-?tyo-ehdm-n-spIec-twssaor-roii-ymdsiaotteehnrffnoercr-oiate-rsnthmtituveoceioiirdanstednniwhan(ec2seshgse9heriereiowdCtersuetdFdihltsdRreh.adetgabet1strnh;geO9epderXeigeSra0anieoHvr.t1edfoeoA3wnrof4si)ns ' respect to control of short-term the acceptability of one exposure -L^espirator program provisions, exposures. Data and views are solicited control method over another. Also, what It is not clear to OSHA at inis time, on circumstances under which it would workplace factors would have to be however, how it can be determined that or would not be appropriate to permit considered to evaluate the effectiveness^, respirator use is equally protective as employers to elect to use either of a control method before costa could( )engineering controls, costs engineering controls or respirators as Ihe primary means of limiting exposure -to within the benzene STEL. the formaldehyde STEL or the ethylene oxide excursion limit Based on information received during this ruiemaking. that is pertinent to these substances with respect to compliance requirements for control of short-term exposures. OSHA will either be taken into account? A number of factors that may be appropriate to consider in determining whether engineering controls or respirators wiil provide adequate protection in a particular situation were raised for comment in the ANPR. OSHA seeks further comment on how factors such as described below should be taken into account by OSHA or the employer in notwithstandmg^Nevenheless. OSHA seeks comment that would, show the appropriateness of allowing cost effectiveness to be incorporated as a control method selection factor. In the proceeding discussion, OSHA has maintained its support for a continuance of its exisiing compliance method hierarchy, but has also suggested that, under certain specific amend these standards to permit employers broader discretionary use of respirators regarding STEL compliance determining the acceptability of using either engineering controls or respirators. Workplace factors which sets of circumstances, it may be appropriate to allow respirator use in lieu of feasible engineering controls, in this rulemaking, or will reaffirm the conclusions reached during the previous rulemakings for each of the three substances. OSHA presently does not have sufficient data to justify proposing to include regulatory language allowing may affect the performance and degree of protection provided by exposure control means may include; number of exposed employees and number of employees with respirator fitting problems: seventy of acute and chronic health effects: length and frequency of thus providing flexibility in determining the appropriate method of compliance. For example. OSHA seeks comment on a requirement to permit respirator use in lieu of feasible engineering controls in certain instances where the employer has submitted a comprehensive written VVV 000009509 Federal Register / Vol. 54. No. 100 / Monday, fune 5. 1989 / Proposed Rules 23997 respirator compliance program to the convinced that, as suggested by these Regulatory Impact Agency. This compliance plan would be subject to OSHA approval and would be required to demonstrate to the Agency that the use of respirators under the circumstances described would provide protection to the employee equivalent to that afforded if feasible engineering. controls were implemented. OSHA believes, however, that this flexibility | may not be appropriate where the substance involved is a carcinogen, has t commentors. implementation of even a strong respirator programs will result in equivalency of protection afforded by respirators as compared to engineering controls. The inherent limitations of respirators preclude their providing equivalent protection to engineering controls for use as the primary means of exposure control in most all circumstances where implementation of engineering controls are feasible. A OSHA has not performed a preliminary Regulatory impact Analysis, Regulatory Flexibility Analysis, or paperwork clearance package for this action since adoption of the proposed requirements would add no new j regulatory burdens on employers with respect to either costs or information collection. IL Pertinent Legal Authority no identified dose-response threshold, continues to pose a significant risk at the PEL has no respirator breakthrough i warning properties, or if there are no means of determining the specific in-use i effectiveness of the respirator. On the other hand, if the effectiveness of control method which limits contaminant entrance into the workplace (e.g. engineering controls) has been dearly shown to be a more effective application of industrial hygiene principles than one that does not. Nevertheless. OSHA seeks Authority for this action is found primarily in sections 6!b|. 8(c). and 8(g)(2) of the Occupational Safety and Health Act of 1970 (the Act). 29 U-S-C. 655(b), 657(c). and 657(g)(2). IIL Public Participation respirators can be monitored readily in some manner, such as by biological monitoring, it may be appropriate to comment on whether continuance of the control hierarchy is still necessary in any form, and whether adoption of a Interested persons are invited to submit written data, views, and arguments on this proposed amendment. permit their limited use. The Agency purely performance oriented compliant These comments must be postmarked on solicits comment on the issue of OSHA provision into a final methods of I before October 3.1989, and submitted approved respirator use. View9 are sought on criteria which should be compliance rule is a viable option. in quadruplicate to the Oocket Officer. Comments in support of discontinuance Docket No. H-160. U.S. Department of considered and met for respirator ompliance program approval and on circumstances, as suggested above, under which respirator use should not of the control hierarchy should describe the specific circumstances under which such a change would be appropriate and how it would result in continued Labor. Occupational Safety and Health Administration. 200 Constitution Avenue. NW.. Room N-3670. Washington. DC 20210. (202)523-7894. be permitted in lieu of feasible engineering controls. equivalent employee protection. Data Written submissions must clearly and information are also sought that can identify the provisions of the proposal An alternative which would provide demonstrate that adoption of a which are addressed, and the position even more flexibility with regard to performance oriented compliance taken on each issue. respirator use is to allow employers requirement will maintain the protectioar^y The data, views, and arguments that under any circumstances to comply with afforded employees under current submitted will be available for exposure limits by any method the methods of compliance provisions. If th&~"public inspection and copying at the employer deems advisable. Some employer is permitted to choose any mix above address. All timely submissions commenters have suggested that of control methods to achieve Wj(l be part of the record of the establishment and enforcement of a compliance, should choice of the method proceeding, good respirator program will result in be at the discretion of the employer or _ , effective exposure control where should the method chosen be required to Requests for Hearing respirators are used in place of be approved by a professional in the^T N. Under section 6(b)(3) of the OSH Act engineering controls, and that employers field of safety and health or other V '^G^nd 29 CFR 1911.lt. interested persona should be allowed to implement such tecbnicially qualified person? ^--'who desire that OSHA hold an ora) respirator programs under the standard Commenters supporting continuance of hearing on the proposal may file in circumstances deemed appropriate by OSHA'a current policy should provide objections to the proposal and request the employer (Exs. 2-61. 2-68. 2-93, 2-94, pertinent data that demonstrate the an informal hearing. The objections and 2-109). For example, the Ethyl necessity of maintaining primary hearing requests should be submitted in -Corporations states that "The reliance on feasible engineering and quadruplicate and must comply with the government should not regulate the need work practice means of exposure following conditions: for engineering controls but should control. 1. The objection must include the regulate the use of personal protective Based on the preceeding discussion. name and address of the objector equipment, requiring the employer to OSHA proposes to add a new paragraph 2. The objections must specify with show that protection is being provided" 1910.1000(1) that explicitly sets forth particularly the provisions of the (Ex. 2-109). The American Petroleum circumstances in the workplace where proposed rule to which objection is Institute asserts that "The burden employers may choose to use respirators taken and must state the grounds should rest on the employer to in lieu of engineering means as a therefor demonstrate that its employees are permissible method of controlling 3. Each objection must be separately protected by whatever (control] strategy employee exposures to toxic substances stated and numbered: and is chosen" (Ex. 2-93). Finally. 3M states listed in the Z-tables of section 4. The objections must be that "A well written performance 1910.1000. OSHA also proposes to accompanied by a detailed summary of standard should satisfy the requirement modify section 1910.134(a)(1) by the evidence proposed to be introduced that OSHA ensure that exposures are incorporating a statement of reference at the requested hearing. within permissible exposure limits while that indicates that respirators may be Interested persons who have allowing the employer to be concerned used in lieu of control in the objections to various provisions or have with the 'how' of meeting a specific circumstances listed under proposed changes to recommend may, of course, standard" (Ex. 2-68). OSHA is not paragraph 1910.100G(Q. make those objections or VVV 000009510 23998 Federal Register / VoL 54, No. 100 / Monday. June 5. 1989 / Proposed Rules recommendations in their comments and OSHA will fully consider them. There is only need to file formal "objections" if 2. The last sentence of paragraph (a)(1) of { 1810.134 is proposed to be revised to read as follows: full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees the interested persons desire to request an oral hearing. Requests for a hearing should be $1910.134 Respiratory protection. (a) Permissible practice to air contaminants within the limits prescribed in this section. Any equipment end/or technical measures submitted in quadruplicate, postmarked on or before October 3.1989, addressed to Mr. Tom Hall. OSHA Division of Consumer Affairs. Docket No. H-160, Room N-3637. U.S. Department of Labor. 200 Constitution Avenue. NW Washington. DC 20210, (202) 523-8815. When effective engineering controls are not feasible, while they are being instituted, or in circumstances meeting the requirements of 29 CFR 1910.1000(f), appropriate respirators may be used pursuant to the following requirements. used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shell comply with $ 1910.134. (f) Respiratory protection may be used IV. References Subpart Z--[Amended] in lieu of administrative or engineering controls to achieve compliance with A complete set of the references in 3. The authority citation for Subpart Z paragraphs (a) through (d) of this section Docket H-160 upon which this proposed of Part 1910 continues to read as under the following circumstances: action is based is available for follows: (1) During the time necessary to install examination and copying at the OSHA Docket Office. Room N-2625. U.S. Department of Labor. 200 Constitution Authority: Secs. 6.8. Occupational Safety and Health Act 29 U.5.C. 655.557: Secretary of Labor s Orders 12-71 (36 FR 8754), 6-76 (41 feasible engineering controls; (2) Where feasible engineering controls result in only a negligible Avenue, NW., Washington. DC 20210, FR 25059). or 9-83 (46 FR 35738) as applicable: reduction in exposure. between &3G am. and 4:30 pm.. Monday through Friday, legal holidays excepted. V. Authority This document was prepared under the direction of Alan C. McMillan. Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor. 200 Constitution Avenue. NW., Washington, DC 20210. Pursuant to sections 4,6(b), 8(c) and 8(g)(2) of the Occupational Safety and Health Act (29 U-S.C. 653.655. 657), 29 CFR Part 1911 and Secretary of Labor's Order No. 9-83 (48 FR 35736). 29 CFR Part 1910 is proposed to be amended as and 29 CFR Pari 1911. All of Subpart Z issued under Sec 6(b) of the Occupational Safety and Health Act 29 U.S.C. 655(b) except those substances listed in the Final Rule Limits columns of Table Z-- l-A. which have identical limits listed in the Transitional Limits columns of Tabls Z-l-A. Table Z-2 or Table 2-3. The latter were issued under Sec. 6(a) (5 U.&C. 655 (a)). Section 1910.1000. the Transitionsi Limits columns of Table Z-l-A, Table Z-2 and Tabls Z-3 also issued under 5 U-S.C. 533. Section 1910.100a Tables Z-l-A. Z-2 and Z3 not issued under 29 CSFR 1911 except for the arsenic, benzene, cotton dust, and formaldehyde listings. Section 1910.1001 also issued under Sec. 107 of Contract Work Hours and Safety (3) During emergencies, life saving, recovery operations, repair, shutdowns, and field situations where there is a lack of utilities for implementing engineeringcontrols. (4) Operations requiring added protection where there is a failure of normal controls: and (5) Entries into unknown atmospheres. ** (FR Doc. 89-13157 Filed 6-2-89; 8:45 am) HUM COOK UW-M-H ENVIRONMENTAL PROTECTION set forth below. Standards Act 40 U.S.C. 333. AGENCY List of Subjects in 29 CFR Part 1910 Section 1810.1002 not issued under 29 U-S.C. 655 or 29 CFR Part 1911; also issued 40 CFR Pert 52 Chemicals. Diving, Electric power. Electronic products. Fire prevention. Cases. Hazardous materials. Health records. Noise control. Occupational safety and health. Radiation protection. Reporting and recordkeeping requirements. Signs and symbols. Signed at Washington. DC. this 2Sth day of May. -Alan C. McMillan. under 5 U.S.C. 553. Section* 1910.1003 through 1910.1018 also issued tinder 29 U.S.C. 853. Section 1910.1025 also issued under 29 U.S.C. 653 and 5 U.S.C 553. Section 1910.101028 also issued under 29 U-S.C 653. Section 1910.1043 also issued under S U.S.C 551 et seq. Sections 1910.1045 end 1910.1047 also issued under 29 U.S.C. 653. Section I9iai048 also issued under 29 (FRL-3596-1) Approval and Promulgation of Implementation Plans; Harris County, TX; Disapproval of Alternative Reasonably Available Control Technology Determination AOENCY: Environmental Protection Agency (EPA). Acting Assistant Secretary ofLabor. U.SC653. action: Proposed rule. PART 1910--(AMENDED) Sections 19iai200.1910.1469 end 1910.1500 also issued under S U.S.C. 553. summary: This notice proposes Part 1910 of Title 29 of the Code of Federal Regulations is proposed to be amended as follows: Subpart I--[Amended! 1. The authority citation for Subpart 1 4. Section 1910.1000 is proposed to be amended by revising paragraph (e) and adding a new paragraph (f) to read as follows: S 1910.1000 Air contaminants. t disapproval of a State implementation Plan (SIP) revision submitted by the State of Texas on january 12.1987. This revision is to the Ozone Control Strategy For Harris County (Houston) to allow alternative reasonably available control technology (RACT) for metal surface of Part 1910 is revised as follows: Authority: Secs. 4. 6. 8. Occupational Safety and Health Act of 1970 (29 U.S.C. 653. 855. 657|: Secretary of Labor's Order No. 12-71 (36 FR 6754). 8-76 (41 FR 25059) or 9-63 (48 FR 35738). as applicable. Section 1910.134 also issued under 29 CFR Part 1911. (e) Except as provided by paragraph (f) of this section, to achieve compliance with paragraphs (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve coating processes at Richmond Tank Car Company's railroad tank car repair and coating facility (In Sheldon. Harris County, Texas.) This action proposes disapproval of the SIP revision for Richmond Tank Car Company under Section 110 of the Clean Air Act (CAA). VVV 000009511