DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Parts 1910, 1915 and 1926 [Docket No. H-71] RIN: 1218-AA98 Occupational Exposure to Methylene Chloride

AGENCY:Occupational Safety and Health Administration (OSHA), Department of Labor.

ACTION:Proposed rule; notice of informal public hearing; notice of additional issues.

SUMMARY:This notice supplements the Notice of Informal Public Hearing on Occupational Exposure to Methylene Chloride (MC) in the Federal Register (57 FR 22448, June 9, 1992) by advising the public of the Occupational Safety and Health Administration's consultation with the Advisory Committee on Construction Safety and Health, reporting the recommendations of that Committee, and extending the deadlines for filing of notice of intention to appear at the informal public hearings, written testimony and comments on issues regarding the construction industry.

DATES:All informal public hearings will begin at 9:30 a.m. on the first day of the hearing and at 9:00 a.m. on each succeeding day. The two informal public hearings are scheduled to begin on the following dates:

     Washington, DC:  September 16, 1992.
     San Francisco, CA:  October 14, 1992.

Notices of intention to appear at the informal public hearings to testify regarding the construction-related issues raised in this supplemental notice must be postmarked by September 8, 1992. Notice of intention to appear at the informal public hearings to testify on all other issues must be postmarked by August 24, 1992.

Testimony and all evidence which will be introduced into the hearing record regarding the construction-related issues raised in this supplemental notice must be postmarked by September 8, 1992 for the Washington, DC hearing and by September 22, 1992 for the San Francisco, CA hearing. Testimony and all evidence to be introduced into the hearing record regarding all other issues must be postmarked by August 24, 1992 for the Washington, DC hearing and by September 22, 1992 for the San Francisco, CA hearing.

Comments on the construction-related issues raised in this supplemental notice must be postmarked by September 22, 1992. Comments on all other issues must be postmarked by August 24, 1992.

ADDRESSES: Notices of intention to appear at the hearing and testimony and documentary evidence which will be introduced into the hearing record must be submitted in quadruplicate to Mr. Tom Hall, Occupational Safety and Health Administration, Division of Consumer Affairs, room N3647, 200 Constitution Avenue NW., Washington, DC 20210; (202) 523-8615.

Comments are to be submitted in quadruplicate to: The Docket Office, Docket No. H-71, room N-2634, United States Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, telephone No. (202) 523-7894.

Comments limited to 10 pages or less in length also may be transmitted by facsimile to (202) 523-5046, provided that the original and three copies of the comment are sent to the Docket Officer thereafter.

The locations of the informal public hearings are as follows:

Washington, DC: The Auditorium of the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.

San Francisco, CA: The Coit Room, Holiday Inn, Financial District, 750 Kearny St., San Francisco, CA, 94108 (415) 433-6600

FOR FURTHER INFORMATION CONTACT: Hearings: Mr. Tom Hall, Occupational Safety and Health Administration, Division of Consumer Affairs, room N3647, 200 Constitution Avenue NW., Washington, DC 20210; (202) 523-8615.

Proposal: Mr. James F. Foster, Office of Public Affairs, U.S. Department of Labor, Occupational Safety and Health Administration, room N3647, 200 Constitution Avenue NW., Washington, DC 20210; (202) 523-8151.

SUPPLEMENTARY INFORMATION: On November 7, 1991, OSHA proposed to amend its existing regulation for employee exposure to Methylene Chloride (MC), so that the permissible exposure limits (PELs) would appropriately reflect the available animal and human data. The Agency proposed to reduce the permissible 8-hour time- weighted average (TWA) exposure from 500 parts per million (ppm) to 25 ppm. In addition, OSHA proposed to delete the existing ceiling limit concentration of 1000 ppm and to reduce the short- term exposure limit (STEL) from 2,000 ppm (measured over 5 minutes in any 2 hours as a maximum peak concentration) to 125 ppm, measured as a 15-minute TWA.

The proposal also set requirements for exposure control, personal protective equipment, employee exposure monitoring, training, medical surveillance, hazard communication, regulated areas, emergency procedures and recordkeeping. In order to minimize the compliance burdens of employers whose employees have consistently low exposures to MC, the Agency has proposed an "action level" of 12.5 ppm, measured as an 8-hour TWA. The Notice of Proposed Rulemaking (NPRM) presented 48 issues, including one issue specifically addressing methylene chloride use and exposure in the construction industry, through which the Agency sought to elicit information and comments.

At the time the NPRM was published, the Agency had not yet consulted with the Advisory Committee on Construction Safety and Health (ACCSH) regarding the application of the proposed rule to the construction industry, because the Committee's members, whose terms expired in June 1990, had not yet been reappointed or replaced. OSHA stated (56 FR 57115-16) that the NPRM for MC provides the necessary rationale for regulatory action and sets out the requirements needed to protect employees in all industries, including construction, from the health hazards associated with occupational exposure to MC.

On May 4, 1992, the ACCSH was reconstituted (57 FR 19139). On May 19, 1992, the Advisory Committee convened and established a work group to gather information for consideration by the full Committee at its next meeting, scheduled for July 28, 1992. In preparing its report, the methylene chloride work group addressed questions regarding MC use and exposure in the construction industry which OSHA had presented to the Committee. In addition, the work group generated issues and information that went beyond the scope of OSHA's questions.

On June 9, 1992, OSHA published a Notice of Informal Public Hearing (57 FR 22448) which scheduled hearings and raised 16 issues (including Issue 10, which focused on the construction industry, repeating the questions presented to the ACCSH) regarding which the Agency sought testimony, with supporting information. The hearing notice also reopened the comment period for the NPRM. In addition, the hearing notice stated that OSHA would publish a supplemental hearing notice once the Agency had completed its consultation with the Advisory Committee, so that the Committee's recommendations could be addressed in testimony at the hearings or in comments.

On July 28, 1992, the Advisory Committee received the report of the methylene chloride work group. The Committee approved the work group report and formally presented the report to OSHA as the compilation of its recommendations regarding OSHA's proposal to regulate occupational exposure to MC in the construction industry. OSHA has placed the work group report in the Docket for this rulemaking (Ex. 21-69), so it is available for public inspection and copying.

This notice summarizes the Committee's recommendations and extends the deadlines for filing notice of intention to appear at the informal public hearings, written testimony and comments on issues regarding MC in the construction industry. The limited extension of deadlines for input regarding construction issues provides additional time for interested members of the public to review the recommendations set forth by the Advisory Committee on Construction Safety and Health and to prepare comments or testimony on these issues.

The Agency has reviewed the Committee's recommendations and has determined that those recommendations call for no revisions to the proposed regulatory text as regards the construction industry. The Committee's recommendations, and any public input regarding those recommendations, will be further considered in drafting the final rule for occupational exposure to MC. The responses to the eight questions presented to the Advisory Committee (repeated in Issue 10 of the hearing notice) are presented in Item 1 through Item 8, below. In addition, recommendations that addressed matters not raised by the eight questions are presented in Item 9, below.

The Agency solicits testimony and comments, with supporting information, regarding the issues raised by the recommendations of the Advisory Committee, as discussed below.

1. Exposed employee population. Regarding the inquiry about construction worker exposures to MC and specific trades where exposure is significant, the Committee suggested several populations of construction workers which OSHA should investigate in order to identify potentially exposed workers. In particular, the ACCSH discussed MC exposure among lead paint abatement workers, painters, hazardous waste workers, workers in confined spaces, workers in trades where adhesives are used, mechanics, electricians, plumbers, carpenters and employees of small independent contractors. Data was submitted on the total number of workers for several of these populations, although data describing the number of workers exposed to methylene chloride in these situations was not available.

2. Duration of employee exposure. Regarding the inquiry about the amount of time employees are exposed to MC, the Committee noted that there are only limited data available. It was suggested that OSHA review the National Occupational Exposure Survey data and a study of solvent exposures among painters in Alaska.

3. Control of employee exposure. Regarding the inquiry about the engineering controls, work practices and personal protective equipment used to protect employees from MC exposure, the Advisory Committee stated that there are few engineering controls currently in use to protect against exposure to MC in the construction industry. The Committee suggested that OSHA review the asbestos rulemaking record for information on engineering control issues. Also, the report stated that work practices should be reviewed on a trade-by-trade basis to determine where changes should be made. In addition, the ACCSH noted there is a widely held view that it is impractical to use supplied-air respirators to control MC exposure at construction sites.

4. Construction industry-specific concerns. In response to OSHA's request for information and recommendations regarding any special problems which might be encountered by the construction industry in complying with the proposed requirements for medical surveillance and exposure monitoring, the Committee recommended that OSHA consider requiring that the originators of proposals specify that provisions for exposure monitoring and medical surveillance be included in all bids received, so that all contractors would be required to address and cost these items in their submitted bids.

5. Medical surveillance and exposure monitoring. Regarding the inquiry about potential problems in complying with the proposed medical surveillance and exposure monitoring requirements, the Committee discussed different approaches for medical surveillance programs, including surveillance administered at the national level, either by trade unions or by a governmental body (e.g. OSHA or NIOSH).

The ACCSH noted that exposure monitoring may be difficult because exposure levels vary so widely in the construction industry, adding that air monitoring should not be tied to medical surveillance. The Committee also observed that, while virtually all exposure monitoring at construction worksites is performed under contract by outside personnel, there is a shortage of industrial hygienists to monitor construction industry exposures. In addition, concern was expressed regarding the cost of the industrial hygiene resources needed to perform the exposure monitoring required by the proposed rule.

The Committee suggested that OSHA consider triggering specific requirements of the rule (such as exposure monitoring and medical surveillance) by frequency of use in addition to, or in place of, the exposure level triggers currently proposed. In addition, the ACCSH suggested increased emphasis on product labeling, establishment of regulated areas as a partial replacement of some of the monitoring requirements, and the feasibility of using real-time monitoring instead of periodic monitoring to detect exposures to MC.

6. Substitute products and processes. With regard to the feasibility of substitutes for methylene chloride in construction industry applications, the Committee submitted the proceedings from the International Conference on Reducing Risk in Paint Stripping, sponsored by the Environmental Protection Agency and held in Washington, DC on February 12-13, 1991. It was suggested that manufacturers issue alerts to let employers know of suitable substitutes for MC. OSHA notes that this document is already available for inspection and copying in the Docket for this rulemaking (Ex. 21-76).

7. Use of respiratory protection. Regarding the inquiry about respirator usage in the construction industry, the Committee replied "Currently, construction workers do not wear respirators to control for exposure to MC." The NIOSH recommendations concerning respirators (Ex. 19-46) were discussed. Because NIOSH considers MC to be a carcinogen, that Agency does not recommend respirators to control exposure to MC. The Committee stated that, if a respirator were to be used, the most effective type would be a pressure demand, supplied-air respirators with an auxiliary self-contained breathing apparatus. Air-purifying respirators were not recommended for reducing exposure to MC because of poor breakthrough qualities and lack of end-of- service-life-indicators.

8. Impact of proposed 25 ppm PEL. Regarding the inquiry about any anticipated changes in construction worksites resulting from efforts to comply with a 25 ppm 8-hour TWA PEL, the Advisory Committee stated that there would not be a great deal of difference between the compliance strategy used for 25 ppm and that used for 50 ppm. The ACCSH also stated that OSHA should consider how employers would monitor compliance with the short- term exposure limits. In addition, the Committee suggested that OSHA also consider the frequency of MC use in triggering specific provisions of the proposed rule.

9. Additional recommendations.

A. Availability of training and MSDSs. The Advisory Committee suggested that OSHA add a discussion to the preamble of the final rule and a non-mandatory appendix concerning lead abatement and MC issues. The Committee suggested that the non-mandatory appendix include information about training, such as non- mandatory "minimum" curriculum recommendations. The ACCSH noted that training employers/employees through the use of videos is considered to be superior to on-the-job training with safety coordinators because of the amount of knowlege required, and because safety supervisors may not have sufficient time or information to provide thorough training. The Committee also noted that videos are more effective than written materials, as they are accessible to employees who are illiterate, and that bilingual videos or other training material should be available for non-English speaking workers. The ACCSH also noted that safety information videos may be borrowed from the NIOSH library, for the cost of postage, that the Laborers Union has videos and safety cards for dissemination, and that an EPA pilot program on disk is also available.

The Advisory Committee also stated that, in addition to training, workers need material safety data sheets (MSDS) that are understandable. The Committee noted that a non-mandatory appendix in the final rule could be the appropriate place to provide an example of how to simplify the information in material safety data sheets.

B. Emergency procedures. The ACCSH noted that it may also be useful to discuss in the non-mandatory appendix information about emergency procedures for spills and related occurrences.

C. Responsibility for compliance. The ACCSH recommended that OSHA consider assigning responsibility for safety and health responsibility at multi-employer worksites. In particular, the Committee suggested that the Agency consider designating the worksite owner, or "host" employer as being responsible for overall worksite safety.

D. Information in non-mandatory appendix. The Advisory Committee suggested that the Agency add information in a non- mandatory appendix to address how employers should handle MC in construction. In particular, the Committee suggested that OSHA provide 1) examples of specification language for contracts which require specific compliance with OSHA standards on jobs which require use of MC; 2) examples of air monitoring programs; and 3) examples of medical surveillance or preventative medicine programs. The ACCSH noted that surveillance and preventative medicine issues may be of interest because of heightened awareness in public health toward prevention.

E. Significance of risk. The Advisory Committee stated that it was inappropriate for OSHA to set one excess death for each thousand workers as the threshold for finding that a substance addressed in a section 6(b)(5) proceeding presented a significant risk of material harm to exposed workers. The Committee stated that the risk of premature death among workers exposed to MC at the levels that would be allowed based on the "1 in a 1000" approach is unacceptable.

OSHA is interested in receiving comments and testimony concerning the recommendations of the ACCSH. Persons interested in submitting comments or in participating in the hearing should refer to the notice of proposed rulemaking on Occupational Exposure to Methylene Chloride (56 FR 57036) and the Notice of Hearing (57 FR 24488) for the text of the proposed standard and a more thorough discussion of issues.

PUBLIC PARTICIPATION-NOTICE OF HEARING

Pursuant to section 6(b)(3) of the Act, an opportunity to submit oral testimony concerning the issues raised by this notice will be provided at an informal public hearing scheduled to begin at 9:30 a.m. on September 16, 1992 in the Auditorium, Frances Perkins Department of Labor Building, 200 Constitution Avenue, NW., Washington, DC 20210 and at 9:30 a.m. on October 14, 1992 in the Coit Room, Holiday Inn, Financial District, 750 Kearny St., San Francisco, CA 94108.

NOTICE OF INTENTION TO APPEAR

All persons desiring to participate at the hearing regarding the construction-related issues raised in this supplemental notice must file a notice of intention to appear postmarked on or before September 8, 1992. All persons desiring to participate at the hearing regarding any other issues must file a notice of intention to appear postmarked on or before August 24, 1992. All notices of intention to appear must be submitted in quadruplicate, addressed to Mr. Tom Hall, OSHA Division of Consumer Affairs, Docket H-71, room N-3647, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 523-8615. The notice of intention to appear also may be transmitted by facsimile to (202) 523-5046, provided the original and 3 copies of the notice are sent to the above address thereafter.

The notices of intention to appear, which will be available for inspection and copying at the OSHA Technical Data Center Docket Office, room N-2625, 200 Constitution Avenue NW., Washington, DC 20210, telephone (202) 523-7894, must contain the following information:

(1) The name, address, and telephone number of each person to appear;

(2) The capacity in which the person will appear; (3) The approximate amount of time requested for the presentation;

(4) The specific issues that will be addressed; (5) A statement of the position that will be taken with respect to each issue addressed; and

(6) Whether the party intends to submit documentary evidence, and if so, a brief summary of that evidence.

FILING OF TESTIMONY AND EVIDENCE BEFORE HEARING

Any party requesting more than 10 minutes for a presentation at the hearing, or who will submit documentary evidence, must provide in quadruplicate the complete text of his testimony, including any documentary evidence to be presented at the hearing, to the OSHA Division of Consumer Affairs. For the Washington, DC hearing, materials dealing with the construction- related issues raised in this supplemental notice must be postmarked by September 8, 1992 and materials relating to all other issues must be postmarked by August 24, 1992. For the San Francisco hearing, materials relating to all issues must be postmarked by September 22, 1992. These materials will be available for inspection and copying at the Technical Data Center Docket Office. Each such submission will be reviewed in light of the amount of time requested in the Notice of Intention to Appear. In those instances where the information contained in the submission does not justify the amount of time requested, a more appropriate amount of time will be allocated and the participant will be notified of that fact.

Any party who has not substantially complied with this requirement may be limited to a 10-minute presentation. Any party who has not filed a notice of intention to appear may be allowed to testify, as time permits, at the discretion of the Administrative Law Judge.

OSHA emphasizes that the hearing is open to the public, and that interested persons are welcome to attend. However, only persons who have filed proper Notices of Intention to Appear at the hearing will be entitled to ask questions and otherwise participate fully in the proceeding.

Any participant who requires audiovisual equipment during the oral testimony, must submit a request for such equipment in the Notice of Intent to Appear, specifying the type of equipment needed.

CONDUCT AND NATURE OF HEARING

The hearing will commence at 9:30 a.m., on September 16, 1992 in Washington, DC. An additional hearing will convene at 9:30 a.m., on October 14, 1992 in San Francisco. At those times, any procedural matters relating to the proceeding will be resolved. The informal nature of the rulemaking hearings to be held is established in the legislative history of section 6 of the Act and is reflected by the OSHA hearing regulations (see 29 CFR 1911.15 (a)). Although the presiding officer is an Administrative Law Judge and questioning by interested persons is allowed on crucial issues, it is clear that the proceeding shall remain informal and legislative in type. The intent, in essence, is to provide an opportunity for effective oral presentation by interested persons which can be carried out expeditiously and in the absence of rigid procedures which might unduly impede or protract the rulemaking process.

The hearings will be conducted in accordance with 29 CFR Part 1911. The hearing will be presided over by an Administrative Law Judge who will have all the powers necessary and appropriate to conduct a full and fair informal hearing as provided in 29 CFR Part 1911 including the powers:

(1) To regulate the course of the proceedings; (2) To dispose of procedural requests, objections and comparable matters;

(3) To confine the presentation to the matters pertinent to the issues raised;

(4) To regulate the conduct of those present at the hearing by appropriate means;

(5) In the Judge's discretion, to question and permit the questioning of any witness and to limit the time for questioning; and

(6) In the Judge's discretion, to keep the record open for a reasonable, stated time to receive written information and additional data, views, and arguments from any person who participated in the oral proceedings.

Following the close of the hearing, the presiding Administrative Law Judge will certify the record of the hearing to the Assistant Secretary of Labor for Occupational Safety and Health. The Administrative Law Judge does not make or recommend any decisions as to the content of the final standard.

The proposed standard will be reviewed in light of all testimony and written submissions received as part of the record and a standard will be issued based on the entire record of the proceeding, including the written comments and data received from the public.

WRITTEN COMMENTS

Interested persons are invited to submit written data, views, and arguments with respect to this proposed standard. Any comments regarding the construction-related issues raised in this supplemental notice must be postmarked on or before September 22, 1992. Comments on all other issues must be postmarked on or before August 24, 1992. All comments must be submitted in quadruplicate to the Docket Officer, Docket No. H-71, room N- 2625, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Comments limited to 10 pages or less also may be transmitted by facsimile to (202) 523-5046, provided the original and three copies are sent to the Docket Office thereafter. Written submissions must clearly identify the proposed provisions or the hearing notice issues which are addressed and the position taken with respect to those provisions or issues.

The data, views, and arguments that are submitted will be available for public inspection and copying at the above address. All timely written submissions will be made a part of the record of the proceeding.

AUTHORITY AND SIGNATURE

This document was prepared under the direction of Dorothy L. Strunk, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.

It is issued under section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), Secretary of Labor's Order No. 1-90 (55 FR 9033) and 29 CFR part 1911.

Signed at Washington, DC on this 12th day of August, 1992.

Dorothy L. Strunk Acting Assistant Secretary of Labor