August 16, 1988

Dr. Richard F. Boggs
Vice President
Organization Resources Counselors, Inc.
National Place, Suite 911
1331 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Dear Dr. Boggs:

This is in response to your letter to me of February 26, which was recently re-submitted to the [Office of Health Enforcement] for response, requesting interpretation of several provisions of the Occupational Safety and Health Administration (OSHA) final standard for occupational exposure to benzene. Please accept my apology for the apparent mishandling and delay in this response to you. I hope this letter will be beneficial to your member companies and their concerns regarding compliance with OSHA's benzene standard.

For the sake of clarity, I will enumerate and respond to your questions in the order you raised them:

Scope of Coverage

[Question] 1.

In paragraphs (a)(2)(i) through (a)(2)(vii), OSHA identifies exemptions to the Standard. Can OSHA clarify whether the exemptions are operation-dependent, or employee-dependent? In other words, must an employer in a non-exempt operation monitor employee exposures, whether or not the employee is executing a job task identical to one in an exempt operation?

Answer:

Exemptions to the benzene standard are based on whether benzene is present in the workplace and exposures are expected to be or are likely to be consistently under the action level. Exemptions are therefore neither "operation-dependent" nor "employee-dependent," but are dependent on benzene exposure levels. An employer executing an operation that is covered by the benzene standard must initially monitor his or her employees' exposure to determine whether or not those employees are experiencing exposures at or above the action level. However, for non-exempt work operations where the only exposure to benzene is from liquid mixtures containing less than the amounts of benzene specified at 1910.1028[(a)(2)(v)], the provisions of the benzene standard do not apply.

[Question] 2.

Is it correct to assume that employees loading and unloading marine vessels whose cargo contains 0.1% or more benzene are covered by the OSHA benzene standard if they are shore-based personnel, while ship-based personnel are covered by the U.S. Coast Guard?

Answer:

Yes.

ADDITIONAL MONITORING

[Question] 3.

In paragraph (e)(5)(i), OSHA states that additional monitoring must be performed "when there has been a change in the production, process, control equipment, personnel or work practices..." There has been some question as to the precise meaning of the term "personnel" in this case. Is it correct to assume that OSHA intended this term to refer to a change of a job task, rather than an individual?

Answer:

The language at 1910.1028(e)(5)(i) is consistent with the wording of the additional monitoring requirements found in, for example, OSHA's lead, arsenic and acrylonitrile standards. As explained in the benzene standard preamble, additional monitoring is required when a change has occurred in the workplace that would make the employer suspect that new or additional exposures are occurring to his or her employees. The use of the word "personnel" does refer to an individual worker when the employer may suspect that [the] individual's work practices or ways of performing his assigned duties would lead to or are creating new or additional exposures. The employer is also responsible for conducting initial monitoring for any newly-assigned employee to that work operation, as required under (e)(2), in situations where the employer suspects that new or additional exposures are occurring to his employees at that workplace or work operation. The redetermination procedure is necessary to ensure that the most recent monitoring results accurately reflect the existing exposure conditions. This data enables the employer to take appropriate actions to help lower the new employee's exposures, such as changing his work practices or providing appropriate respiratory protection.

Employees also have the right, under the standard at 1910.1028(e)(7), to be informed of their monitoring results. Therefore, any employee who was assigned to a new job task, and who through this "personnel change" would be working in a new or different level of benzene exposure, has the right to be informed of the new or different exposure levels they would be experiencing.

However, as also pointed out in the preamble: "Except for initial monitoring requirements, where an employer can document which shift at a location has the highest exposure, the employer needs to monitor only representative employees on the shift with the highest exposures." Representative air sample monitoring does not require that each individual employee's exposure level be measured. The employer has the responsibility of showing that his measurements are truly representative of each employee's exposure to benzene. Again, where the employer suspects that new or additional exposures are occurring due to a personnel change, it is the responsibility of that employer to monitor the resultant new exposures to ensure that none of his employees is being exposed to higher benzene levels.

METHODS OF COMPLIANCE

[Question] 4.

There is some question about the requirement in paragraph [(f)](2)(i) for the employer to develop a written compliance program for engineering and work practice controls in those cases where there are no available engineering or work practice controls to reduce exposures. Would it be correct to assume that the employer must document why engineering controls and work practices will not reduce exposure, and that such documentation would be sufficient to meet this provision of the standard?

Answer:

Yes. The requirement to establish and implement a written compliance program for the utilization of engineering and work practice controls to reduce employee exposure to benzene is considered, as noted in the preamble to the standard, to be "standard industrial hygiene practice." These plans are to be "revised as appropriate," since engineering and/or work practice controls that may not exist or be feasible at the time that the written compliance program is developed, may subsequently be devised. In addition, paragraph (f)(1)(ii) requires that "Wherever the feasible engineering and work practice controls that can be instituted are not sufficient to reduce employee exposure to or below the PELs, the employer shall use them to reduce employee exposure to the lowest levels achievable by these controls[...."] The employer would therefore have to document why no types of controls are feasible to reduce employee exposures at his workplace. The documentation should include an explanation of why the utilization of even some types of engineering and/or work practice controls would help reduce employee exposure to benzene even partially, which implies that the employee(s) would need to be protected from the balance of the exposure through the use of personal respiratory equipment.

MEDICAL SURVEILLANCE

[Question] 5.

There is nothing in the standard to provide guidance as to when an employer may terminate medical surveillance. In a letter of interpretation issued by John Miles on December 31, 1986, responding to a similar inquiry regarding medical surveillance under the Asbestos Standard, he states the following:

"Where exposure is discontinued a periodic exam must be performed approximately 1 year after the last exposure above the action level; and

These employees must be provided with a termination exam when employment ends." ¹

Would the same criteria apply for discontinuing medical exams under the Benzene Standard?

Answer:

It is true that the benzene standard does not specifically require medical examinations upon the termination of employment or termination of exposure. However, it may be in the best interest of the employer and his company's recordkeeping efforts, to provide a medical exam upon termination of employment or termination of exposure, especially if the previously exposed employee had displayed abnormal blood counts. Exams are required if the employee is exposed to benzene at or above the action level 30 or more days per year or at or above the PEL 10 or more days per year, and for employees who have been exposed to more than 10 ppm of benzene for 30 or more days in a year prior to the effective date of the standard when employed by their current employer. For this last category of employees, the medical surveillance exam requirements would continue as long as that previously exposed employee was employed by that same employer. With regard to employees in the other two categories of medical surveillance coverage, those exposed to benzene at or above the action level for 30 or more days per year or those exposed above the PELs for 10 or more days per year, the employer should take into consideration that it may be difficult for him to predict over a year of work tasks what exact levels of benzene exposure that person will experience, i.e., whether or not, especially for borderline cases, that employee will be above the exposure limits which would trigger a medical exam. In other words, the employer may not know ahead of time whether or not an individual employee will experience these levels of exposure until after the year will have passed. It would therefore be prudent for an employer to provide a medical surveillance examination to all employees who may be exposed to these levels of benzene.

I hope these responses sufficiently address the concerns you raised, and I again apologize for the delay in this response to you. If I can be of further assistance, please feel free to contact me again or Ms. Melody Sands of the [Office of Health Enforcement] at (202) [693-2190].

Sincerely,



Thomas J. Shepich, Director
[Directorate of Enforcement Programs]

¹ This letter was amended with this note on February 12, 2007 to clarify OSHA's current policy: The reference in Question 5, above, to an OSHA letter of interpretation by John Miles, December 31, 1986, regarding medical surveillance under the Asbestos standard was superseded by a subsequent OSHA letter of interpretation by Thomas J. Shepich to Mr. Aaron Gershonowitz, March 2, 1989. Accordingly, the John Miles letter of December 31, 1986, is hereby rescinded. [ back to text ]