March 15, 1995

[Name Withheld]

Dear [Name Withheld]:

This is in response to your letter of December 23, 1994, concerning Occupational Safety and Health Administration (OSHA) regulations pertaining to respirator use and your access to your employer's records of your exposures to air contaminants.

You inquired whether a company must comply with more requirements when it provides its employees permanent type respirators than it must comply with when it provides its employees single use respirators. If single use respirators are discarded each day after use, there are some requirements that are not germane. For example, in such a circumstance, the requirement to regularly clean and disinfect respirators would not be germane. However, aside from requirements that are not germane, the same requirements apply to single use respirators as apply to permanent type respirators. Consequently, any requirement for an employer to make available for its employees an evaluation of their physical fitness to wear a respirator applies equally well for both single-use and permanent-type respirators.

With respect to your right to access to exposure test results, in accordance with 29 CFR 1910.1020(e)(2)(i) in the standard, Access To Employee Exposure and Medical Records, if you are an employee and you request exposure records relevant to yourself, then your employer must assure you access to the records. An exposure record relevant to you consists of:

{1} A record which measures or monitors the amount of a toxic substance or harmful physical agent to which you are or have been exposed;

{2} In the absence of such directly relevant records, such records of other employees with past or present job duties or working conditions related to or similar to yours to the extent necessary to reasonably indicate the amount and nature of the toxic substances or harmful physical agents to which you are or have been subjected, and {3} Exposure records to the extent necessary to reasonably indicate the amount and nature of the toxic substances or harmful physical agents at workplaces or under working conditions to which you are being assigned or transferred.

We appreciate the opportunity to clarify these matters. Should you require additional information, please contact the Office of Health Compliance Assistance at (202) 219-8036.

Sincerely,



Ruth McCully, Director
Office of Health Compliance Assistance




12/23/94

Directorate of Compliance Programs
Occupational Safety and Health
Administration U.S. Department of Labor
200 Constitutional Avenue, NW,
Room N-3468
Washington, DC 20210

Dear Sir,

I am writing to you as a safety and health representative of a labor union. I am employed by the Fairfield Southern Company, an industrial railroad.

In our work we handle cars for USX in the steel making process. One of our major duties is dumping ore and coke and other raw materials to make steel. As you are aware, many of these materials have hazardous materials contained within them. We are subjected to the dust of these materials when dumping.

A few months back, after receiving several complaints from my fellow union members, I wrote a letter to OSHA and asked them to investigate the problem of dust that we dump from these materials we handle. An inspector came out and the company provided her with independent testing results that they had done in the past and agreed to do some more independent testing in the future. They were well under the PELS and had not provided us with any respirators prior to the inspection.

The problem that we had revolved around the fact that when we dump these cars there is any excessive amount of dust at the time. We then leave the area and get more cars, dump them, and repeat the process. Since the TWA is considered over an 8 hour period (and not short term exposure), OSHA could not enforce any rules. However, the company did agree to give us paper dust respirators (single use type) to use for comfort sake as a voluntary measure.

When the men were told of this new procedure, some were disappointed that the company wasn't providing them with the more permanent type of respirator that USX provides their employees with (MSHA Dustfoe 66). Of course I explained to them that the company is not required to do anything since they are not exceeding the PELS. Also the company choice of the paper single use dust respirator that they plan to use is OSHA and MSHA approved and rated at a TWA of not less than .05 milligrams per cubic meter or 2 million particles per cubic foot. However, they see advantages in the other permanent type such as the seal, etc.

This brings me to a couple of questions. I have contacted 3 different OSHA offices and received different answers.

1. If the company is not exceeding the PELS and chooses to provide a dust respirator for comfort only, is the company under more restrictions by using a more permanent type of respirator than they are with a paper single use respirator? I understand that they would be required to make sure the men are keeping them sanitized, etc. Would they be required to give physicals with the more permanent type? We were given medical questionnaires and training prior to the receipt of a paper respirator, is this different from a permanent one?

2. The company paid to have an independent testing outfit come and put equipment on certain men and make tests around the areas we dump cars and create dust. They only tested for certain hazardous materials, though the MSDS stated others, however my question has to do with the availability of these results. I requested in writing a copy of the testing results. The company refused to give them to me personally, but said he would provide them at a meeting that we scheduled. When I arrived at the meeting, they handed one copy over to the union unit chairman, and refused to give me a copy (the union chairman later gave me his copy, but company never provided us another). He stated that they only have to give the results to one union rep. Is this true? I thought that any employee can have access to testing data when tests are made of hazardous materials. Am I wrong? Are employees that were not tested entitled to receive test results?

Thank you very much.

Sincerely,

[Name Withheld]