May 31, 2007

Kathryn M. McMahon-Lohrer, Esquire
Kelley Drye Collier Shannon
Washington Harbour, Suite 400
3050 K Street, NW
Washington, DC 20007-5108

Dear Ms. McMahon-Lohrer:

Thank you for your inquiry to the Occupational Safety and Health Administration (OSHA) on behalf of the National Association of Manufacturers and the Specialty Steel Industry of North America. You have asked about OSHA's Final Rule for Occupational Exposure to Hexavalent Chromium (Federal Register, Vol. 71, No. 39, February 28, 2006). Your inquiry specifically concerns the general industry Chromium (VI) Standard, 29 CFR 1910.1026. This letter constitutes OSHA's interpretations only of the requirements discussed and may not be applicable to any questions not raised in your original inquiry, however, OSHA's interpretations in this case also apply to the construction Chromium (VI) Standard, 29 CFR 1926.1126, and the shipyard Chromium (VI) Standard, 29 CFR 1915.1026. Your paraphrased questions and our replies are below.

Question 1: You expressed concern about the ability of employers to find feasible engineering and/or work practice controls that will reduce hexavalent chromium (Cr(VI)) exposures below the Chromium (VI) Standard's permissible exposure limit (PEL) of 5 µg/m³ (see 29 CFR 1910.1026(c)) for employees who perform welding on stainless steel in confined or enclosed spaces.

Reply 1: As you know, the Chromium (VI) Standard requires employers to use engineering and work practice controls as the primary means to reduce and maintain employee exposures to Cr(VI) below the PEL. If such controls are not feasible, however, the employer may institute engineering and work practice controls to reduce exposures to the lowest feasible level and then supplement those controls with respiratory protection to achieve the PEL. (See 29 CFR 1910.1026(f)(1).) OSHA's preference for engineering controls and work practices is consistent with good industrial hygiene practice, with OSHA's experience in assuring that workers have a healthy workplace, and with the agency's traditional adherence to a hierarchy of controls. Respirators are less reliable than engineering and work practice controls and can burden employees with their own safety and health hazards.

Evidence developed during the Cr(VI) rulemaking suggests that feasible engineering and work practice controls will often be inadequate or impracticable for reducing Cr(VI) exposures below the PEL for employees welding or performing other hot work on stainless steel in confined or similarly enclosed spaces.¹ Stainless steel welding generally results in higher Cr(VI) exposures than carbon steel welding because of the higher chromium content in the stainless steel alloy. Moreover, employees welding in confined and enclosed spaces are often exposed to higher concentrations of total welding fumes, and, therefore, their overall Cr(VI) exposures tend to be higher than they would be in open spaces. And, finally, the use of engineering controls (such as local exhaust ventilation) and the welder's ability to minimize exposures by adjusting the position of his or her body are often limited by the space constraints of confined and enclosed locations. Therefore, for welders working on stainless steel in confined and enclosed spaces, OSHA will deem employers to be in compliance with the "methods of compliance" section of the Chromium (VI) Standard if they use engineering and work practice controls to the extent feasible and supplement those controls with respirators to comply with the PEL. Note that this does not relieve employers of any obligations under OSHA's Permit-required Confined Spaces Standard at 29 CFR 1910.146.

Question 2: You asked whether an employer needs to comply with the housekeeping and disposal provisions at 29 CFR 1910.1026(j) where hexavalent chromium at the facility would not result under any expected conditions of use in employee exposures at or above 0.5 µg/m³.

Reply 2: The scope section of the Chromium (VI) Standard provides that the standard applies to occupational exposures to Cr(VI) in all forms and compounds, but excepts from coverage any situation "[w]here the employer has objective data demonstrating that a material containing chromium or a specific process, operation, or activity involving chromium cannot release dusts, fumes, or mists of chromium (VI) in concentrations at or above 0.5 µg/m³as an 8-hour time-weighted average (TWA) under any expected conditions of use." 29 CFR 1910.1026(a)(4). When this provision applies, the material, process, operation, or activity shown not to result in Cr(VI) exposures above the 0.5 µg/m³ threshold falls outside the scope of the Chromium (VI) Standard, and, therefore, neither the housekeeping nor the waste disposal requirements apply.²

Question 3: You asked about the means by which OSHA expects employers to comply with the Chromium (VI) Standard's waste disposal requirements for waste materials that are very large in size, bulky, and/or cumbersome to handle.

Reply 3: The waste disposal provision at 29 CFR 1910.1026(j)(3)(i) requires the employer to "ensure that [w]aste, scrap, debris, and any other materials contaminated with chromium (VI) and consigned for disposal are collected and disposed of in sealed, impermeable bags or other closed, impermeable containers." OSHA explained in the preamble to the final rule that it intends for this provision to be performance-oriented. The standard permits "the use of any container so long as that container prevents release of or contact with Cr(VI). Sealed barrels could be used to serve this purpose. Other methods, such as palletizing items and wrapping the pallet in plastic so as to create an impermeable barrier between workers and the Cr(VI)-contaminated waste, scrap or debris would also be acceptable." 71 Federal Register at 10358. If, because of the size, bulkiness, or cumbersome nature of the waste, it is infeasible to dispose of the waste in impermeable containers, an employer would not be required to dispose of the waste in this manner. However, an employer's determination in this regard would be subject to OSHA's agreement that containing the waste in such a manner is in fact infeasible. If OSHA did not agree that it was infeasible to contain the waste in impermeable containers, the employer could be subject to a citation for failure to comply with 29 CFR 1910.1026(j).

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,



Richard E. Fairfax, Director
Directorate of Enforcement Programs

[Reviewed; consistent with current policy 2/19/2008]

¹ For purposes of this letter, a "confined" or "enclosed" space means a relatively small or restricted space such as a tank, boiler, pressure vessel, or small compartment of a ship. [ back to text ]

² Please note that the Chromium (VI) Standard defines "objective data" as follows: "[I]nformation such as air monitoring data from industry-wide surveys or calculations based on the composition or chemical and physical properties of a substance demonstrating the employee exposure to chromium (VI) associated with a particular product or material or a specific process, operation, or activity. The data must reflect workplace conditions closely resembling the processes, types of material, control methods, work practices, and environmental conditions in the employer's current operations." 29 CFR 1910.1026(b). [ back to text ]