Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Occupational Exposure to Asbestos|
| Title:||Section 3 - III. Summary and Explanation of Revised Standards|
III. Summary and Explanation of Revised Standards
These final standards constitute OSHA's response to the remaining issues raised for the Agency's reconsideration by the United States Court of Appeals for the D.C. Circuit. The specific issues raised by the Court are: the establishment of operation-specific permissible exposure limits; the extension of reporting and information transfer requirements; the expansion of the competent person requirement to all employers engaged in any kind of construction work; and, the clarification of the small scale, short duration operation exemption from the requirement to establish a negative-pressure enclosure. For convenience OSHA is summarizing here its response to each of these issues. They are discussed in depth below. Also discussed below are the other changes OSHA has made which are not in direct response to the remand.
Issue 7. "Establishment of Operation Specific Exposure Limits": The court remand causes OSHA to consider establishing operation-specific permissible exposure limits to the extent feasible, as needed to eliminate significant risk of illnesses caused by asbestos exposure. OSHA proposed to decrease the PEL to a uniform 0.1 f/cc. OSHA believes that this limit is feasible for most industry sectors to reach most of the time (55 FR 29720). However, OSHA explained that PELs lower than 0.1 f/cc are difficult to reliably measure. However OSHA has followed a more effective approach to lowering exposures for those sections and operations where lower exposures can be achieved. This approach is triggering protective provisions based on the kind of operation undertaken, rather than measured exposure levels. This approach is consistent with some other health standards (e.g., lead, coke ovens).
A major reason for this approach for construction and shipyards is that measured levels of exposure often fail to define risk and are often not received before the work is completed. This was partly explained in the proposal. There OSHA noted that for removal jobs, highly variable amounts of asbestos are generated, "reducing the predictability of exposure levels from one monitoring event to the next. Moreover, measured asbestos levels often cannot be used to determine the need for (specific controls) . . . because of the time required by the laboratory to complete the test and report the results." (55 FR at 29715-16). Thus, it would be unproductive to leave employees unprotected while initial monitoring results are being analyzed; and in many cases, even prompt reporting of exposure levels during the setting up of the controls would not predict exposures during the actual removal.
A significant risk remains at the PEL of 0.1 f/cc, and it is feasible to attain lower levels for some workers exposed to asbestos. OSHA has therefore considered whether to establish different PELs for different operations based on the lowest exposure limits that can feasibly be achieved in those operations and that are needed to eliminate significant risk. OSHA has decided not to do so because the operation-specific work practices mandated in the standard will be a most cost-effective means of assuring that significant risk is eliminated to the extent feasible.
Asbestos has been the subject of extensive rulemaking by OSHA and other agencies, and the operations that expose employees to asbestos are well known and thoroughly studied. Moreover, given the shift away from asbestos products wherever substitutes are available, it appears unlikely that major new uses will be found for asbestos in the future. OSHA has therefore been able to focus its rulemaking effort on evaluating the work practices that will best reduce asbestos exposures in the specific operations that expose workers to asbestos. The result is a standard that relies heavily on mandated work practices that will, in most situations, result in employee exposure well below the PEL. In effect, the mandated work practices will assure that each asbestos worker is exposed to the lowest feasible level for the operation in which that worker is engaged. This approach was taken in the 1986 construction standard. There, OSHA "tiered" its construction standard "to apply increasingly stringent requirements to those work operations associated with the highest exposures." (51 FR at 23706). Rather than two classifications as in 1986 (small-scale and abatement work), OSHA now divides construction work into four classes and has made additional limited distinctions based on measurable variables such as amount of material disturbed.
Since OSHA's approach assures that each employee is exposed to the lowest feasible level of asbestos, no additional protection would be gained by establishing a series of different PELs for different operations. Such an approach would add cost and complexity to employers' compliance duties and to OSHA's enforcement duties without benefiting worker health. PELs lower than 0.1 f/cc would be particularly unsuitable as compliance criteria because it is difficult to reliably measure lower levels. Because such measurements are unreliable, if lower PELs were established, measurements taken by employers and by OSHA would provide an uncertain basis for determining whether employers have fulfilled their compliance duties. However, both employers and OSHA can easily determine whether the work practices prescribed in the standard are being followed. The mandated work practices thus assure that employees are better protected than a series of different PELs while reducing compliance burdens on employers and easing the agency's enforcement burden. Therefore, rather than set operation-specific permissible exposure limits, OSHA proposed to further reduce risk by requiring certain additional work practices. The operations for which mandatory work practices are required would otherwise result in employee exposure that is significant. OSHA believes that these controls are feasible, reasonable, and necessary.
OSHA also proposed, in the general industry standard, to link the dates when engineering controls would be required to reach the new lower PEL with the EPA Ban and Phase-out Rule. This linkage is no longer an option since the Fifth Circuit Court of Appeals recently vacated the ban and it is not yet clear which asbestos-containing products will no longer remain in commerce, and staged phase-outs of asbestos containing products are not required.
Issue 3. "Small Scale Short Duration Definition": The Court asked that OSHA clarify the exemption for "small scale, short duration operations" from the negative-pressure enclosure (NPE) requirements of the construction standard. The negative pressure enclosure requirements are a substantial set of requirements. They include creating a system of regulated areas with a sealed work area under negative pressure, decontamination facilities and procedures, clean room facilities and procedures and shower facilities, and other practices to reduce worker exposure and spread of contamination outside the work area. In that standard, NPEs were required for all removal, demolition and renovation work except for small scale short duration operations.
The Court suggested, based on its view of the Agency's earlier intent, that OSHA limit the exemption to work operations where it is impractical to construct an enclosure because of the configuration of the work environment. In an earlier response to the remand order, published in the Federal Register (54 FR 52024, December 20, 1989), OSHA declined to amend the regulatory text on the small-scale, short duration issue, without conducting supplemental notice and comment rulemaking. The Agency explained "that explicitly limiting the exemption to situations where negative pressure enclosures are impractical might not reduce employee risk from asbestos exposure." (54 FR at 52026). OSHA stated that in the supplemental rulemaking, it intended "to discuss the effectiveness and drawbacks of negative-pressure enclosure, glove bags, and alternative control systems; and to specify more clearly under what circumstances various control systems may be used." (54 FR at 5207). OSHA also noted that the small-scale, short duration issue is related to the scope of the "competent person" requirement, which the 1986 standard lifted for operations which conformed to the exception, and thus combined consideration of both issues would be appropriate.
Accordingly, in July 1990, OSHA proposed related changes in both provisions "small scale, short duration" operations would be redefined in terms of general criteria, as well as the 1986 approach of listing specific examples. However, the underlying premise remained the same as in the 1986 standard: i.e. exemptions to the negative-pressure enclosure requirement for removal, renovation and demolition projects and limited to jobs which conformed to specified criteria. "Competent" persons, according to the 1990 proposal, were to be required as supervisors on all asbestos-related construction worksites, instead of as in the 1986 standard, that required competent persons only for non "small-scale, short term jobs." Required training for competent persons, would vary, however, depending on the kind of asbestos-related job needing supervision.
The final provisions resolving these issues, are different from the proposal. Four classes of increasingly hazardous types of construction activity are matched with increasingly stringent control requirements. Class I asbestos work means activities involving the removal of asbestos containing material (ACM) and presumed asbestos containing material (PACM) which is "high risk." Class II asbestos work means activities involving the removal of ACM and PACM which is not "high risk." Class III asbestos work means activities involving repair and maintenance where ACM and PACM is disturbed. Class IV asbestos work means maintenance and custodial activities during which employees contact ACM and PACM and activities to clean up waste and debris containing ACM and PACM. Each class includes work with similar exposure levels and with similar exposure risks. Each has a prescribed set of controls and work practices. Basically only Class I work, high-risk activities, require negative-pressure enclosures. The standard allows other designated proven control systems in limited circumstances and provides for yet-to-be-developed systems if certain backstop provisions are met. As indicated in its earlier responses to the Court, and its public notices of proposed rulemaking, OSHA has evaluated available control technologies and has concluded that the use of negative- pressure control enclosures should be regulated in terms of when they are required rather than when they are not.
In a major departure from the language of both the 1986 standard and the proposal, OSHA is deleting the term "small scale, short duration" from the regulatory text. Instead, the agency is distinguishing high- from lower-risk operations through the use of the classification system described above. Work that was exempted from the negative pressure enclosure requirements in the existing standard because it was of "small-scale, short-duration" are considered to be Class II and Class III work in this amendment. The agency finds that the term "small-scale, short term" is too limiting, is confusing, and cannot be defined with sufficient precision to serve the purpose of distinguishing high risk asbestos-disturbing activity from activity of reduced risk.
The term is limiting because it focuses on a fraction of the circumstances and criteria which define lower risk work with asbestos- containing material. For example, removing asbestos-containing products like transite panels, likely will not result in significant exposure, even if conducted for more than one day, if there is use of a few simple controls. As much as the scope and duration of the job, the materials themselves, their condition and the work-practices used define hazard potential. OSHA had tried to include these concepts under the "small-term, short-duration" exception in the current standard, by reference to examples. However, the breadth of the examples led the court to observe that "the exception as now worded seems to erase the rule." (838 F. 2d at 1279).
In the 1990 proposal OSHA tried to identify the conditions and operations which separated higher risk work with ACM from lower risk work in its small-scale, short-term definition. Still anchoring the distinction however, was OSHA's belief that the time a job took, and the amount of material involved, primarily determined risk. Based on the record of this proceeding, OSHA now finds that these are relevant, but not exclusive, factors.
OSHA finds also that use of the term is confusing. In 1986, in its list of activities considered "small-scale, short-term," OSHA listed some which are neither small-scale or short-term, but were regarded as lower risk, such as roofing work. To cure this confusion, OSHA proposed, in 1990 to limit the "small-scale, short duration" exemption to a subset of renovation, removal and demolition operations which took less time, and/or involved small areas. Even for these activities a temporal or volume cutoff was difficult to define, and the proposed definition contained numerical criteria, which varied depending on which activity was defined. In addition, it proposed to exempt other activities, such as roofing, regardless of the size of the project, from the negative-pressure enclosure requirement. EPA uses the term "small-scale, short-duration" to describe cut-offs which are much higher than those proposed by OSHA for its reporting requirements for asbestos renovation, demolition and removal work under NESHAPS. And under EPA's worker protection rule which applied to state and local government workers in OSHA non-state plan states, reporting requirements for asbestos "abatement" projects, do not apply to projects involving "less than 3 linear feet or 3 square feet of friable asbestos material." (40 CFR 763.124).
Many objections to the proposed definition were received by the Agency. After reviewing this record, and in light of the variety of interpretations of the term "small-scale, short-duration," OSHA determined that it is inappropriate to use that term as the equivalent of lower risk activities. Once OSHA decided to include other control methods in the "preferred category" for high risk asbestos work, neither a "small-scale, short-duration" definition nor an exemption from negative-pressure enclosure requirement was central to OSHA's regulatory scheme. As explained more fully below, although OSHA no longer uses the term "small -- scale, short-term" to exempt activities from universal requirements, OSHA uses the related terms "small-scale" and "reduced exposure potential" as part of a larger classification scheme.
Issue 8. "The extension of reporting and information and transfer requirements":
A. Notification to OSHA
OSHA had proposed expanded notification and reporting provisions in response to the Court's remand order concerning two issues. The first is whether OSHA should require employers to give the Agency advance notification of asbestos-related jobs. BCTD, in the 1984 rulemaking had suggested that OSHA should require all construction industry employers to file reports concerning any building demolition, renovation or removal project involving asbestos prior to beginning such a project. Two health enhancing benefits of a notice requirement were advanced by BCTD. One, is the help such information would provide the Agency in targeting inspections. The other is a claimed reduction in risk because of the consciousness-raising and self-education provided by the notice process.
The Court noted that the BCTD proposal would "arguably generate better information for "selecting targets for inspection and that it was based on "uncontradicted (and unanalyzed) evidence of non-de minimis benefits." (relating to compliance enhancement). (838 F.2d at 1278). It remanded the issue to the Agency for further explanation or rebuttal.
OSHA responded in 1990, by proposing a new provision to require employers to notify OSHA in writing prior to engaging in demolition, renovation, and removal operations which are not small-scale, short-term operations. OSHA's proposed notice requirement shared many core elements with EPA's then current and proposed notification requirements under NESHAPS. OSHA noted that "(t)he proposed notification is modeled after the notification requirement concerning asbestos abatement projects that occur in conjunction with building demolition and renovation operations. OSHA noted further that "(e)mployers can satisfy the OSHA (proposed) notification requirement simply by forwarding a copy of the EPA form to the OSHA area office when complying with EPA's asbestos NESHAP." (55 FR at 29731). Both EPA's and OSHA's proposed, notification requirements would exempt less extensive operations. In OSHA's case, the exemption would have applied to small-scale, short-duration operations as otherwise defined in the standard. EPA's cutoffs are annual amounts: 260 linear feet on pipes and 160 square feet on other facility components. OSHA noted that many asbestos jobs would meet the notification requirements of both agencies, however there would be an indeterminate, yet significant number for which EPA notification would not be called for, but OSHA's proposed requirement would apply.
Most public comment opposed the requirement. The major objection was the burden on the employer from completing and mailing the notification form. Further, some commenters questioned the overall usefulness of the notification requirement in promoting compliance (See comments of Shipbuilder's Council of America Ex. 7-2.) BCTD continued to argue for extensive reporting requirements for the reasons stated above. A few other commenters supported its position. (Ex. 7-5, 7-6, 7-34, 7-64, 7-95, 7-118, 7-132, 7-149, 141, 144).
OSHA has carefully reviewed all the comments. Based on the review and subsequent developments, the final regulation scales down OSHA's proposed notice requirements. OSHA is now requiring advance notification of Class I (mainly large-scale removals) only when the employer intends to utilize controls other than a negative pressure enclosure which meets the requirements of paragraph (g) of this standard, and in some circumstances, where modifications of glove bag systems, glove box systems and other control systems described in paragraph (g) are made.
There are a number of reasons for OSHA's decisions. OSHA believes that the potential benefits in direct risk reduction from a separate OSHA reporting requirement are unlikely. There are already extensive EPA and state reporting requirements which OSHA requirements would partly duplicate. The EPA and state requirements already create any incentive to comply that such reports could create. Similar OSHA reports would not increase this benefit. Information which may be useful to OSHA in targeting inspections can be retrieved by information-sharing with the EPA while avoiding overlapping reports. OSHA notes that the Paperwork Reduction Act requires that federal agencies avoid clearly duplicative reporting requirements. Various comments challenge the value of duplicative requirements (e.g., Ex. 7-17, 7-20, 7-22, 7-28, 7-39, 7-46, 7-47, 7-50, 7-54, 7-72, 7-74, 7-76, 7-77, 7-78, 7-79, 7-81, 7-86, 7-87, 7-88, 7-89, 7-102, 7-103, 7-108, 7-112, 7-125, 7-133, 142, 147). Thus, although OSHA's and EPA's reporting requirements are only partially duplicative, these considerations have influenced OSHA's decision not to require extensive pre-job reporting. OSHA is concerned that in reviewing the volume of reports which may be spawned by a separate OSHA requirement which exceeded the EPA requirements would strain OSHA area offices enforcement resources and drain such resources from other enforcement efforts. However, OSHA finds that advance reporting is appropriate where information is related to new or modified control methods for Class I work. In such cases, heightened attention to the data supporting their use will result from the requirement to send them to OSHA.
BCTD's contrary view that compliance would be enhanced was based in part on its contractor's report, submitted after the 1984 hearing. The report estimated that an advance reporting requirement would reduce "the number of workers with TWA exposures over 0.1 f/cc" up to 30% in drywall removal and demolition, and lesser amounts in other construction work. These estimates were based on the opinions of a seven person "focus group" which included three representatives of member unions of BCTD. No methodology was presented for deriving these quantitative estimates, and no supporting data has been submitted in either rulemaking (see brief Ex. 143 at 198). The Court referred to the report in its decision as uncontradicted, but that was because it was submitted late in the rulemaking procedures.
The Agency believes based on its experience that these estimates of specific quantifiable benefits are speculative. But more importantly, the now-existing EPA and state reporting requirements and OSHA's use of that data for targeting inspections will achieve those benefits without duplicative reporting requirements. Further, OSHA made various changes to the final standard which will also achieve some of these benefits. These include the expanded provisions on hazard communication, which will alert employees in all asbestos renovation, removal and maintenance work that presumed asbestos containing material is present; that require competent persons to evaluate the work site before work is begun, by informing employers that OSHA is setting up information sharing systems with EPA to access employer notices sent to that Agency, and that require employers who use new and modified control systems to notify OSHA.
Help for OSHA in targeting inspections from the submission of advance reports is the other claimed benefit from a reporting requirement. Some participants claimed that because pre-job reporting was helpful to EPA in targeting its inspections for compliance with NESHAP requirements, an OSHA pre-job reporting would similarly benefit this Agency. EPA did not testify at the hearing, but available information shows that its reporting system provides useful information to that Agency's enforcement program. NESHAPS reporting is made mostly to 45 state agencies, delegated by EPA to implement the asbestos NESHAP. Reporting in EPA Region II, is directly to the Regional Office. These reports are the source of two data bases: the National Asbestos Registry System (NARS), which develops a historical record of asbestos contractors, updated quarterly: and the ACTS system, which is a local data base on the compliance history of each contractor. OSHA is informed that ACTS is a tool that delegated agencies may use for day-to-day tracking of asbestos activities. EPA's evaluation of the reports submitted to it and other information used in its NESHAP enforcement effort constitute a valuable resource for OSHA.
In 1991 both agencies signed a Memorandum of Understanding (MOU) to share information which will aid their enforcement efforts. Pursuant to that MOU, OSHA is developing with EPA an information sharing system based on the reports submitted both to EPA and to various states upon delegation from EPA to access that information to help OSHA target asbestos removal jobs. OSHA also believes that at this time some EPA delegated states, and OSHA state plan states have worked out ways to share notifications. OSHA believes that utilizing the EPA data to assist in targeting inspections will be more effective than duplicative reporting requirements.
The Agency believes, based on its own enforcement experience that a limited notification requirement may enhance compliance in specified circumstances. Employers who choose to use new or modified control technology to reduce exposures in Class I asbestos work, must notify OSHA in advance, using EPA's NESHAP reporting form. Such information about new and/or modified asbestos control technology submitted to OSHA by employers who wish to use it will provide accessible information for the Agency to use to evaluate such technologies. OSHA believes that requiring employers to routinely submit to the Agency their data in support of claims of the effectiveness of new technology will help OSHA, employers and employees and their representatives to evaluate its effectiveness promptly.
Shipyard Employment Standard
One area of the proposed standard to which SESAC raised objection was the requirement that OSHA be notified 10 days prior to initiating work on large scale asbestos operations. In addition to reiterating many of the objections to the provision raised by others, they pointed out that often they must immediately work on ships which enter their shipyards and turn them around quickly and that the delay caused by the notification would be overly burdensome. As OSHA explained above, notification of OSHA is required only when Class I operations are undertaken and alternate methods of control, other than the negative-pressure enclosure methodology, is to be employed. This provision applies both in the construction and shipyard employment standards.
B. Notification of Other Employers and Subsequent Owners
The Court remanded the issue of whether OSHA should, as recommended by BCTD, require employers contracting asbestos-related work to establish, maintain and transfer to building owners written records of the presence and locations of asbestos or asbestos products, in order to facilitate identification and prevention of asbestos hazards. As noted in the 1990 remand proposal, the Court remanded this issue so that the Agency may reach "its own judgment on the issue" of whether it was legally empowered to adopt such a requirement (See BCTD v. Brock, supra at 1278). OSHA concludes that BCTD has made a persuasive case for the need to expand the notification provisions to other employer and building owners and from them to subsequent employers with exposed employees. This is a necessary way to inform subsequent employers that their employees are at risk of asbestos exposure and of the need to take appropriate precautions. Requiring building owners to maintain and provide this information is by far the most effective way of notifying employers of exposed employees who are doing work many years after the asbestos was identified.
OSHA has developed an information transfer scheme concerning the presence of asbestos in buildings and structures which may present a hazard to employees which is more comprehensive than the recommendation of BCTD. The approach places the primary compliance burden on the building and/or facility owner, even though the employees at risk may not be the owner's direct employees. Thus, this final standard confirms OSHA's tentative view in the proposal, that it has authority to require building owners who are statutory employers to take necessary and appropriate remedial action such as notifying other employers, to protect employees other than their own (see 55 FR at 29729).
The proposed hazard communication provision limited the building owner's communication obligations to "available" information concerning the presence and location of asbestos. Now, in the final standard, the building owner must communicate his knowledge of the presence and location of ACM, based on "available" information, and, new to the final standard, of the presence and location of certain high risk materials, which are presumed to contain asbestos (PACM), unless the building was constructed or renovated no later than 1980 or is rebutted using laboratory analysis. Further details of this provision are spelled out later in this preamble.
Issue 9. "Competent Person". The Court remanded to OSHA to determine whether employers engaged in any kind of asbestos related construction work should be required to designate "competent persons" to oversee safety measures, or whether, as in the 1986 standard, employers should only be required to designate trained "competent persons" for asbestos removal, demolition, and renovations operations that are not small-scale, short duration. The court requested that OSHA either expand the "competent person" requirement or provide a more persuasive explanation of its refusal to do so.
OSHA proposed in 1990 to expand the requirement. Under the proposal, supervision of all asbestos construction worksites by a "competent person" would be required; the training of a competent person would be keyed to the kind of asbestos operation. However, the proposal left undecided whether onsite, continuous supervision of all asbestos-related work would be required for all asbestos work. The final standard resolves these issues. A "competent" person, as defined in the general construction standards, must supervise all work under the asbestos construction standard. That person must be "capable of identifying existing asbestos * * * hazards in the workplace, and has the authority to take prompt corrective measures to eliminate them * * *" 29 CFR 1926.58[b].
OSHA reiterates its statement in the proposal that "all construction site employees would benefit from the presence of a competent person to oversee asbestos-related work" (55 FR at 29726). However, the need for on-site supervision varies with the hazard potential of the work undertaken. All workers performing Class I construction work must have continuous access to an on-site supervisor, who meets the training requirements for designation as a "competent person" under this standard. Supervision for Class II and III work does not always require a continuous on-site "competent person," therefore the standard requires inspections at "sufficient" intervals and at employee request. Supervision of installation of asbestos containing construction materials and Class IV work must also be accomplished by complying with the "generic" requirement for "frequent and regular" inspection [Paragraph (0)(2)].
Training for "competent persons" can be accomplished in a number of ways and meet the standard's performance requirements. For Class I, II and III work, the "competent person" must take a course such as a course under the EPA Model Accreditation Plan for accredited contractor/supervisor, project designer or management planner course, or their equivalent in content, duration, and criteria for success. Class IV work may be part of larger construction projects, in which case the competent person trained to supervise the project should supervise the on-site cleanup activities which constitute the Class IV work.
Explanation of Provisions of the Final Standards
The following is a provision-by-provision discussion of the revised asbestos standards. Thus all the provisions in all three standards: general industry, construction and shipyard employment, relating to a topic will be discussed under the heading for that topic. For example, under the scope heading, the scope of the general industry standard will be first discussed, then the scope of the construction standard, and finally the scope of the shipyard employment standard. Similarly, under the methods of compliance heading, the provisions in each standard relating to that topic will be discussed. Where a discussion applies to all three or to two of the separate standards it will be so noted and will not be repeated for each standard. OSHA believes that this format will help the public understand where and why the various standards contain different provisions relating to the same subject matter. Further, it will avoid repetition in explanations where a common policy rationale applies to more than one asbestos standard.
(1) Scope and Application
- Paragraph (a). General Industry Standard. 29 CFR 1910.1001.
The general industry standard covers all activities (except agriculture), covered by the Act which are not otherwise covered by the construction asbestos standard, 29 CFR 1926.1101, and the new shipyard employment standard, 29 CFR 1915.1001. Consequently, marine terminals and longshoring would be covered by the general industry standard if asbestos were being loaded, unloaded or stored. The asbestos construction standard, in existence since 1986, lists activities which it covers. This includes construction activities though they may take place at a factory or agricultural premises. The new shipyard employment standard, likewise lists its covered activities.
Formerly, the general industry standard had been considered the generic asbestos standard. However, because of dramatic changes in the market for asbestos containing products, the standard now covers only four industry segments, three of which are distinct from each other, and all are diminishing in volume and employee population. Brake and clutch repair is the activity engaged in by the largest group of asbestos exposed workers, although most of them are exposed sporadically and at low levels. Next largest is custodial workers who do not perform their duties as part of construction activities, but clean surfaces, sweep, buff and vacuum floors and wash walls and windows in manufacturing plants and a wide variety of public and commercial buildings. Although in the preamble to the proposal and throughout this proceeding OSHA and most commenters had treated these workers as part of the construction work force, OSHA concludes that pure custodial work is not a construction activity, and should be regulated under the general industry standard. However, to avoid misinterpretation or for purposes of clarity of duties to affected parties, OSHA also is including provisions protecting custodial workers who may unknowingly contact asbestos-containing material in the construction and shipyard employment standards. In this way, there will be no advantage to interpreting coverage under any one of the asbestos standards, rather than another.
The primary and secondary manufacture of asbestos containing products, completes the roster of identifiable general industry sectors. Once, along with installers of asbestos-containing products, the core of the asbestos-exposed work force, asbestos-containing product manufacturing employees are rapidly dwindling in number. OSHA expands on this theme its on economic analysis later in this document. At the time of the proposal, EPA had prohibited, at three stated intervals from August 1990 to August 1996, the future manufacture, importation, processing and distribution in commerce of asbestos in almost all products (54 FR at 29460, July 12, 1989). Subsequently the ban was overturned by the United States Court of Appeals for the Fifth Circuit. EPA has interpreted the decision as invalidating only those portions of the ban for products that were manufactured or imported at the time of the decision. Despite the remaining legitimacy of manufacture and use of asbestos-containing products, the industries which make and maintain them and the employees who are employed in those industries are declining rapidly and dramatically.
- Paragraph (a) Construction Standard. 29 CFR 1926.1101.
The construction standard covers (but is not limited to) the following activities involving asbestos: demolition, removal, alteration, repair, maintenance, installation, clean-up, transportation, disposal, and storage. It has been redesignated 29 CFR 1926.1101 to reflect the reorganization of health standards covering construction made June 30, 1993 (58 FR 35076). The scope and application remain generally unchanged from the proposal and earlier standard. However, 3 issues arose. First, new language, proposed in 1990 is retained in the final. "* * * coverage under this standard shall be based on the nature of the work operation involving asbestos exposure, not on the primary activity of the employer." This point was made clearly in the preamble to the 1986 standards; however, it was not specifically stated in the regulatory text and subsequently some confusion arose among the regulated community. Therefore, it is included as a clarification of the intended application of the standards. Asbestos work which involves removal, repair, maintenance or demolition is therefore explicitly regulated by the construction standard even if such work is performed within a facility otherwise regulated under the general industry standard.
Certain commenters stated that maintenance and custodial work should not be regulated by the construction standard, because they are not construction operations. OSHA notes that it has made a distinction between maintenance and custodial work, that maintenance work is covered in the construction and shipyard employment standards, and that custodial work is covered in all three standards, when it is incidental to work otherwise covered by a standard.
"Naturally Occurring Asbestos in Soil": Prior to the publication of the 1990 asbestos proposal, OSHA received submissions describing asbestos deposits which occur as natural formations in the U.S. and that when disturbed, for example during earthmoving projects or during mining operations, drilling, blasting or sawing operations, the asbestos in the deposit can become airborne and expose workers to significant levels of asbestos fibers (Ex. 3-10, 3-11). The Agency proposed to clarify that such activities were covered under its asbestos construction standard and that methods of control were to be employed to avoid worker exposure during disturbances of naturally occurring asbestos deposits. OSHA sought additional information regarding any additional provisions it would adopt to protect workers engaged in these activities. In the proposal, the Agency also requested any information on appropriate methods to use to determine the presence of asbestos in soils, the effectiveness of wet and/or other methods to control worker exposures and information on effective decontamination methods for exposed workers.
There were relatively few comments received on this issue. Some felt that asbestos in soil resulted in negligible exposures and that wetting to prevent fugitive emissions during earth moving would be sufficient control (e.g., Ex. 7-6). Another participant said there was a lack of control technology and called for further study to determine the extent and location of problems (Ex. 7-63). The industrial hygienists who had raised the issue of worker exposure to naturally occurring asbestos, described the occurrence of asbestos in the soil of Fairfax County, Virginia (Ex. 7-143). They reported that water misting during disturbance of asbestos-containing soils was effective in controlling exposures. They recommended the use of negative pressure air purifying respirators, protective clothing and showers to control exposures.
OSHA finds that the record indicates that certain construction sites in mostly well-defined areas contain deposits of naturally occurring asbestos. In such areas, airborne asbestos during earthmoving activities may result in significant exposures. In such cases, wetting of the excavation site, often required by local authorities, should be sufficient to suppress measurable airborne asbestos concentrations. Information regarding the presence of asbestos in the vicinity of construction sites may be available from state environmental agencies, the United States Geological Survey, and the Bureau of Mines.
In the absence of information which is readily available showing asbestos contamination of soil in the immediate vicinity of a construction site, the employer is not required to take any action under this standard.
- Paragraph (a) Shipyard Employment Asbestos Standard. 29 CFR 1915.1001.
Workers engaged in shipyard industry activities, i.e. shipbuilding, ship repair, and other work in shipyards, who are exposed to asbestos have been protected by inclusion in 1986 general industry and construction standards published in 1986. Like in other non-construction industries, OSHA intended employees working in shipyards to be protected by the general industry standard, except for those operations which were specifically listed as covered by the construction standard, i.e. renovation, removal, demolition and repair.
In 1988, OSHA convened the Shipyard Employment Standards Advisory Committee (SESAC), comprised of members from labor, private industry, state and federal government, and professional and trade associations. The Committee's charter directed it "to develop a single set of comprehensive health and safety standards for Shipyards."
In the 1990 NPRM, OSHA sought information and comment on how best to provide equivalent protection to workers engaged in shipyard activities. The Agency noted that although it had considered these operations to be regulated under the general industry standard in the 1986 rulemaking, subsequent considerations led OSHA to observe that many shipyard industry activities are construction-like in nature.
In response, SESAC drafted alternative regulatory text which it submitted to this rulemaking docket with the recommendation that it be adopted as a vertical asbestos standard for shipyards (29 CFR 1915, Ex. 7-77). The Committee stated: "Maritime is neither general industry nor construction -- it is maritime. "This committee was formed by the Secretary of Labor with the objective in its charter to "recommend * * * one comprehensive set of standards* * *for the shipbuilding, ship repair and shipbreaking industries* * *" (Advisory Committee Charter).
Additional comment and testimony on this issue was submitted during the rulemaking. For example, Charles Sledge, Jr. of the Norfolk Naval Shipyard in his testimony stated that he did not feel that shipyard industry work meets the definition of construction work defined in 29 CFR 1910.12 (Ex. 28). Although he preferred keeping shipyard industry operations under the general industry asbestos standard, he recommended that OSHA apply the SESAC-recommended standard to shipyard activities rather than the construction asbestos standard. He pointed out that most asbestos work in shipyards takes place in fixed locations and does not have the transient nature of true construction work. Mr. Sledge also felt that shipyards have developed ways to stay below the PEL and that any change would result in requiring expensive alterations of facilities, and a need for additional training.
Several commentors including F. Losey of the Shipbuilders Council of America (Ex. 7-2), D. Knecht of Litton Ingalls Shipbuilding (Ex. 7-22), and C. Klein of Newport News Shipbuilding (Ex. 7-71) encouraged OSHA to adopt the SESAC-recommended regulatory text for shipyards (Ex. 7-2).
J. Collins of Naval Operations objected to OSHA's proposal to apply the construction asbestos standard to shipyard industry because he considered some of the provisions infeasible on vessels (Ex. 7-52). In his opinion the construction standard requires showers be located at the entrance to the regulated area and that this was not reasonable on small ships like submarines. Other comments, (apparently by others) in this submission expressed the view that shipyard industry activities should be regulated under the construction standard since they are often identical to construction work. To the same effect see Ex. 7-52.
- BCTD stated in its testimony that:
* * * [It] agrees with OSHA that, because the manner in which maritime employees work with and are exposed to asbestos is similar to the experience of construction employees, the provisions of the construction standard should apply in that industry. In particular, whenever the likelihood exists that asbestos-containing materials will be disturbed in ship repair and renovation, that activity should be conducted under a negative air apparatus. [Ex. 34, p.2]
The rulemaking process revealed that there was confusion in the shipyard industry sector as to which of the standards applied to the various activities within the shipyard. In his testimony, the Chairman of the Shipyard Employment Standards Committee said: "In the case of asbestos, both 1910 and 1926 are both applied in various shipyard operations. This is confusing to the shipyard work force who are required to follow one set of rules one day and another set the next day." (Tr. 337) In the current revision of the asbestos standards, OSHA has determined that a separate vertical standard for shipyards is appropriate. OSHA understands that many spokespeople for the shipyard industry believe that compliance with OSHA's asbestos standards will be facilitated in shipyards if only one standard applies to those workplaces. Because OSHA wishes to promote compliance, and because the Agency acknowledges that some shipyard conditions are unique, OSHA is issuing a standard that will apply only to shipyard industries. It is neither less nor more rigorous than the general industry and construction standards. How it differs from the two other asbestos standards will be discussed under the topic heading for each substantive provision, in the preamble text which follows. The recommendations will be discussed more fully, following a summary of the relatively small number of comments received by the Agency.
Most provisions in the final shipyard standard include some relevant provisions similar to the revised construction standard. In addition OSHA has incorporated some of the specific recommendations made by the Shipyards Employment Standards Advisory Committee discussed below.
Relatedly, the Great Lakes Carriers Associates, representing fleets on the Great Lakes, wanted assurance that asbestos exposures of seamen aboard vessels will continue to be regulated by the Coast Guard under an existing Memorandum of Understanding between the Coast Guard and OSHA (Ex. 7-8). OSHA does not intend to alter the agreement it has with the Coast Guard. Rather, the maritime standard under discussion concerns shipbuilding, ship repair and ship-breaking activities (29 CFR part 1915, Shipyards).
- Paragraph (b) General Industry, Construction and Shipyard Employment.
OSHA has deleted some definitions which appear in the 1986 standards, and has added others. Alphabetically, the changes are as follows:
The 1986 standards contained an "action level" of 0.1 f/cc, one half the PEL of 0.2 f/cc. The action level provides a "trigger" for certain duties, such as monitoring, medical surveillance and training. The Court of Appeals for the District of Columbia Circuit instructed OSHA to consider reducing the action level to 0.05 f/cc should the PEL be reduced to 0.1 f/cc. In most single-substance air contaminant standards it has issued, OSHA has set an action level equal to half the PEL. The action level triggers duties of monitoring, medical surveillance, and training, and assures that workers who are not exposed at or above the PEL but who may nevertheless be exposed to levels that present a risk to their health receive a degree of protection. The action level thus helps to reduce residual risk that may remain at the PEL.
In these standards, OSHA has taken a different approach to protecting workers exposed to levels of asbestos below the PEL. Instead of a numerical action level, employer duties involving training and medical surveillance are triggered by exposure to ACM or PACM or by the type of work being done. Additionally, work practices also are required regardless of measured exposure levels. OSHA considers this approach to better protect employees than an action level, which triggers training and medical surveillance duties based on monitoring results. OSHA's approach is particularly appropriate for asbestos because in many cases, asbestos levels below the PEL cannot be reliably measured, and duties tied to an action level might therefore be triggered by measurements of dubious accuracy.
In the 1990 proposal, OSHA did not propose an action level based on its tentative conclusion that workplace asbestos concentrations below the PEL could not be reliably and reproducibily measured (55 FR 29722). The Agency asked for comment on the advisability of setting an action level of 0.05 f/cc, and specifically asked whether the methodology for measuring airborne asbestos levels had advanced sufficiently to allow reliable and reproducible measurements at that level. Evidence subsequently submitted to the rulemaking record indicated that levels as low as 0.05 f/cc could not be consistently measured reliably. The rulemaking reinforces OSHA's tentative conclusion that workplace asbestos levels of 0.05 f/cc cannot be measured reliably (see NIOSH Tr. 215, SESAC Tr. 345). Because employers cannot obtain reliable and reproducible measurements of airborne asbestos levels at concentrations of 0.05 f/cc, it would be infeasible to base training and medical surveillance requirements on worker exposure to asbestos at such a level. OSHA therefore declines to establish an action level of 0.05 f/cc. OSHA recognizes in some circumstances the general advantages of an action level, and if future monitoring technology is developed which would allow reliable, consistent determinations at lower fiber levels, OSHA will reconsider whether an action level would be appropriate for the asbestos standard and whether action under section (6)(b)(7) of the Occupational Safety and Health Act which directs OSHA to "make appropriate modification in the * * * requirements relating to * * * monitoring or measuring * * * as may be warranted by experience, information, or medical or technological developments acquired subsequent to the promulgation of the relevant standard" is appropriate.
The agency has, however, included provisions that require training and medical surveillance of employees exposed below the PEL. Thus, like standards that contain an action level, these standards use training and medical surveillance to reduce the residual significant risk that remains at the PEL. The general industry standard requires that all employees who perform housekeeping work in areas where ACM or PACM is present be given a prescribed level of awareness training. The construction and shipyard standards require training of all workers who install asbestos-containing products and all workers who perform Class I, Class II, Class III, and Class IV work. These training requirements assure that all employees who are potentially exposed to more than de minimis concentrations of asbestos can recognize conditions and activities that can lead to asbestos exposure, know of the hazards associated with asbestos exposure, and are trained to utilize the means prescribed by the standard to minimize their exposure.
With respect to medical surveillance, the construction and shipyard standards require medical surveillance of all workers who, for a combined total of 30 days per year or more, engage in Class I, II, or III work, or who are exposed above the PEL or excursion limit. Additionally employees who wear negative pressure respirators are provided with medical surveillance. The general industry standard requires medical surveillance of all workers exposed above the PEL or excursion level, with no 30-day per year limitation. In crafting these provisions, OSHA has attempted to assure that those workers for whom medical surveillance will provide relevant information and benefit are entitled to it. In construction and shipyard work, employees who do not engage in Class I, II, or III work are unlikely to be exposed above 0.05 f/cc (the potential "action level") because the work practices mandated in the standard should result in negligible asbestos exposure to workers who do not specifically engage in asbestos-related work. Employees who engage in only Class IV work also should not be exposed above 0.05 f/cc because of the lower asbestos exposures associated with such work. OSHA therefore believes that the construction and shipyard provisions target medical surveillance where it is needed.
In general industry, the vast majority of workers who are exposed below the PEL will also be exposed below 0.05 f/cc. The work practices mandated for brake and clutch repair, by far the largest general industry segment subject to the standard, should result in virtually all such workers being exposed below 0.05 f/cc. Another large general industry segment, custodial workers, will also be generally exposed below 0.05 f/cc. While some small number of workers in both categories as well as in the manufacturing of asbestos products may be exposed between 0.05 f/cc and 0.10 f/cc on some days, the difficulty of obtaining reliable and reproducible measurements at those levels makes it difficult to identify those workers accurately. Therefore, if medical surveillance were triggered by exposure above 0.05 f/cc, the employees subject to such surveillance would likely be chosen on the basis of the vagaries of the monitoring process rather than on any realistic assessment of the risk that they face. OSHA therefore concludes that it would be infeasible, and would not reduce significant risk, to require medical surveillance for workers in general industry exposed below the PEL or excursion limit.
- David Kirby of the Oak Ridge National Laboratory stated his belief that:
I'm not sure if the analytical methodology will be able to support this due to the level of accuracy that's normally associated with trying to take samples under the normal procedures at that level." (Tr. 105)
NIOSH too testified that "[i]n NIOSH's judgment, the establishment of a PEL or an action level below 0.1 fiber per cc for most industrial or construction work sites would be difficult at this period of time" (Tr. 215). Additional doubt was voiced by the chairman of the Shipyard Employment Standards Advisory Committee, "* * * an action level, that is 0.05 fibers per cc, is not appropriate or reasonable due to inconsistencies and non-reproducibility with the sampling and analytical methodology" and noted concern that shipyard environments were especially likely to have high levels of background dust which could overload sampling devices, making determinations at that level more difficult (Tr. 345). Other commenters supported the proposed deletion of an action level (Ex. 7-2, 7-39, 7-99,7-104, 7-120, 7-146).
In 1992 OSHA amended the definition of "asbestos" from the 1986 standards. The non-asbestiform varieties of the minerals actinolite, tremolite and anthophyllite are no longer included in the definition of asbestos. In 1986 OSHA determined that although tremolite, actinolite and anthophyllite exist in different forms, all forms of these minerals would continue to be regulated. Following promulgation of the rule, several parties requested an administrative stay of the standard claiming that OSHA improperly included non-asbestiform minerals. A temporary stay insofar as the standards apply to the non-asbestos forms of tremolite, actinolite and anthophyllite was granted and the Agency initiated rulemaking, proposing to remove these forms from the scope of the asbestos standards. Following a public comment period and public hearing, OSHA issued its final decision to delete non-asbestiform tremolite, anthophyllite and actinolite from the scope of the asbestos standards (57 FR 24310, June 8, 1992). The Agency, in evaluating the record, found that "evidence is lacking to conclude that non-asbestiform tremolite, anthophyllite and actinolite present the same type or magnitude of health effect as asbestos," and that the failure to regulate them as asbestos does not present a significant risk to employees.
Classification of Asbestos Work (Classes I-IV)
In the Construction and Shipyard Employment Standards, OSHA is adding definitions for four classes of activities which trigger different provisions in the standard. Those activities presenting the greatest risk are designated Class I work, with decreasing risk potential attaching to each successive class. The Construction and Shipyard Employment Standards regulate Class I, II and III work; all three standards regulate Class IV work.
"Class I" work is defined as activities involving the removal of thermal system insulation and sprayed-on or troweled-on or otherwise applied surfacing ACM (asbestos-containing material) and PACM (presumed asbestos-containing material); "Class II asbestos work" is defined as removal of ACM or PACM which is not TSI or surfacing ACM or PACM; "Class III asbestos work" is defined as repair and maintenance operations which are likely to disturb ACM, or PACM; Class IV operations are custodial and housekeeping operations where minimal contact with ACM and/or PACM may occur.
Class I asbestos work involves removal of surfacing materials sprayed or troweled or otherwise applied to surfaces, and removal of thermal system insulation. Surfacing materials include, for example, decorative plaster on ceilings or acoustical ACM on decking or fireproofing on structural members. Thermal system insulation includes, for example, ACM applied to pipes, boilers, tanks and ducts. Based on the record, OSHA has determined that the prevalence of these materials and their likelihood of significant fiber release when disturbed, requires rigorous control methods which OSHA has set out in the standards.
- Class II asbestos work involves removal of any other asbestos-
containing material -- which is not TSI or surfacing ACM. Examples of Class II work are removal of floor or ceiling tiles, siding, roofing, transite panels. EPA refers to these materials as "miscellaneous ACM" in the "Green Book." (Ex. 1-183) Work practices and other control measures to be employed in removing these materials are discussed later in this preamble under the methods of compliance section.
Class III asbestos work are defined as repair and maintenance activities involving intentional disturbance of ACM/PACM. Class III is limited to incidental cutting away of small amounts (less than a single standard waste bag) of ACM/PACM, for example, to access an electrical box for repair.
The first three classes of asbestos work are intended to cover the kinds of asbestos work which under the 1986 construction standard were designated "asbestos removal, demolition, and renovation operations," including "small-scale, short-duration operations, such as pipe repair, valve replacement, installing electrical conduits, installing or removing drywall, roofing, and other general building maintenance or renovation."
The classes are exclusive. For example, the stripping of 50 linear feet of thermal system insulation, which has not been positively identified as non-asbestos containing material is Class I, for it is the removal of PACM. Repair of a valve covered by ACM is Class III, since "removal" is not taking place. Removal of roofing material containing ACM is Class II, since roofing material is not high-risk ACM. OSHA believes dividing activities by "Classes" will be clearer than the prior system in the 1986 standard which prescribed different precautions for "small scale, short duration work," which it then defined by example. As noted in several places in this document this was confusing to employers, to the Court and to OSHA itself. A more extensive discussion of the "Class" system of designating work with asbestos-containing materials is contained in the discussion on "Methods of Compliance" provisions later in this preamble.
Class IV work is defined as maintenance and custodial activities during which employees contact ACM and PACM and activities to clean up waste and debris containing ACM and PACM. This includes dusting surfaces, vacuuming carpets, mopping floors, cleaning up ACM or PACM materials from thermal system insulation or surfacing ACM/PACM. Workers may contact ACM or PACM when performing a wide variety of routine jobs that result in incidental disturbance, such as changing a battery in a smoke detector attached to a ceiling containing ACM or PACM, polishing floors containing asbestos, and changing a light bulb in a fixture attached to an asbestos containing ceiling.
For custodial work, the Class IV characterization applies to situations where there is an indication that surfaces are contaminated with ACM or PACM. One indication would be identification of the ACM or PACM sources of the debris or dust; such as visibly damaged, or degraded, ACM or PACM in the vicinity. Visibly damaged, degraded, or friable ACM or PACM are indications that surface dust could contain asbestos, and Class IV protection applies. OSHA requires in (g)(9) that such dust or debris be assumed to be ACM or PACM. Another indication could be an analytical test to determine whether the surface dust itself contains asbestos. Since dust of carpets may not be visible, visible dust on other surfaces along with the presence of ACM/PACM nearby would indicate that cleaning the carpet is Class IV work.
The general industry standard also includes requirements for maintenance and custodial operations which mirror Class IV requirements in the construction standard. These would apply to activities which are not traditionally viewed as construction activities, and which, as contended by certain participants in this proceeding, may not be covered by the Construction Safety Act (40 U.S.C. 333). As further discussed in the preamble discussion relating to paragraph (a), Scope and Application, examples of these activities are clean-up in areas where asbestos-containing dust or debris is present and removing light fixtures located near "high risk" surfacing material.
Some Class IV work was covered by the earlier standards, yet the coverage was incomplete. The general industry standard regulated housekeeping activities, and housekeeping activities were also included in the construction standard to be covered if they were part of a construction job. Precautionary maintenance guidelines to avoid disturbing ACM were addressed in Appendix G of the construction standard. OSHA believes that the switch from the regulated "housekeeping" activities to the Class IV definition is clearer and reduces loopholes. The custodial activities covered in either event can clearly create asbestos dust and expose custodial employees to that dust. Data in the record show that custodial activities can produce not insignificant asbestos exposure levels. Therefore, the work practices required to reduce that dust are clearly necessary to reduce significant risk to custodial workers.
By establishing a Class IV, OSHA is rejecting various recommendations that some activities, potentially involving asbestos disturbance, would result in de minimis risk, and as such should not be regulated (See further discussion concerning Methods of Compliance). The new definition of Class IV work, the removal of the non-mandatory appendix, and coverage of these activities both under general industry standard and the construction standard and shipyard employment standards clarify the standards' application to such work.
OSHA requested comments on setting a cut-off for asbestos-containing material with minimal asbestos content. There was overwhelming support for a 1% cutoff for ACM which would be consistent with EPA rules. The Hazard Communication Standard labeling and training provisions require labeling of materials which contain more than 0.1% asbestos. EPA defines asbestos containing material as: "Any material containing more than one percent asbestos." (NESHAP and Green Book p. 30). OSHA has no information to indicate what proportion of building materials fall into the category of containing more than 0.1% and less than 1.0% asbestos. EPA has listed building materials by their asbestos content and among those included on the list, only surfacing ACM ranged down to 1% (and up to 95%) (EPA "Purple Book," Ex. 1-282). Some participants, including NIOSH have expressed concern that even 1% may be below the accuracy level for optical microscopic methods. (Ex. 7-145, 162-39). Among those who dealt with the issue, most supported the 1.0% cutoff, most citing its consistency with EPA (Ex. 7-5, 7-6, 7-21, 7-43, 7-51, 7-74, 7-76, 7-99, 7-106, 7-111, 7-120, 7-137, 151, 162-59, 162-29). OSHA agrees that a cutoff of 1.0% asbestos is appropriate for asbestos containing building materials and has included this value in its definitions of ACM.
Included in the construction and shipyard employment standards is a definition for the term "closely resemble," which is the term used in the regulatory text to limit the use of historic exposure data to predict exposures. It is defined as circumstances where "the major workplace conditions which have contributed to the levels of historic asbestos exposure are no more protective than in the current workplace." OSHA's intent is to allow data reflecting past exposures to be used to predict current exposures only when the conditions of the earlier job were not more protective, i.e., employees were not better trained, work practices were not used more consistently, and no more supervision was present.
OSHA has amended the definition of "competent person" in the construction standard and included it in the Shipyard Employment Standard as a "qualified person." The definition is based on the definition of "competent person" in the general construction standard, 29 CFR 1926.32(f), i.e. "one who is capable of identifying existing asbestos hazards in the workplace and who has the authority to take prompt corrective measures to eliminate them," but adds a specific training qualification. The training provisions require a competent person take a course which meets the requirements of EPA's Model Accreditation Plan (40 CFR 763, Subpart E). OSHA believes that specific training is needed so a "competent person" will have adequate knowledge to perform the competent person's responsibilities for Class I and II work. A Class III and Class IV "competent person" must undergo "Operations and Maintenance" (O&M) training as developed by EPA. Further discussion of these issues is found later in this document.
The revised definition deletes from the definition a list of duties to be performed by the competent person. Duties are more appropriately set out in other regulatory paragraphs which are prescriptive, rather than in the "definition" section. In response to the court's remand, OSHA has also expanded the scope of the competent persons's duties so that a competent person must supervise all asbestos activities under the construction standard. As noted, these requirements are set forth in other regulatory paragraphs which govern conditions of work in covered activities.
The shipyard employment standard does not use the term "competent person," because that term has a unique definition under Part 1915. OSHA has accepted SECSAC's recommendation that the term "qualified person" should be used to designate a person with the same duties under the shipyard employment standard.
OSHA is adding a definition for the term "critical barriers" whose use is required in certain asbestos operations. These are defined as plastic sheeting or equivalent material placed over openings to the work area. These barriers are effective when they seal all openings into a work area. Critical barriers can be other physical barriers sufficient to prevent airborne asbestos in a work area from migrating to an adjacent area.
OSHA has added a definition for "disturbance" to all three standards to distinguish it from removal. In this definition, disturbance means activities that disrupt the matrix of ACM or PACM, crumble or pulverize ACM or PACM, or generate visible debris from ACM or PACM. It also includes operations which disrupt the matrix or render it friable or which generate visible debris from it. A quantitative cutoff of disturbance is given -- the amount of ACM/PACM so disturbed may not exceed the amount that can be contained within one standard sized glove bag or waste bag. OSHA believes that certain jobs, e.g., repairing leaking valves, often require asbestos to be cut away to gain access to a component. If the amount of asbestos so "disturbed" is contained in one bag, Class I precautions are not necessary.
The term "glove bag" is also defined in the standards as a plastic bag-like enclosure affixed around ACM with glove-like appendages through which material and tools may be handled.
The presumption that a material contains asbestos may be rebutted by sampling a "homogeneous" area of the presumed ACM to determine its asbestos content. OSHA has defined "homogeneous area" in much the same way it is defined by EPA as an area of surfacing material or thermal system insulation that is uniform in color and texture.
A definition for "Industrial Hygienist" is included in the standards as a professional person qualified by education, training, and experience to anticipate, recognize, evaluate and develop controls for occupational health hazards.
Initial Exposure Assessment
"Initial Exposure Assessment," including "Negative Initial Exposure Assessment" are terms used in the construction and in the shipyard standards. It means a required assessment by a "competent person" concerning the exposure potential of a specific asbestos job, or series of similar asbestos jobs. A "Negative Initial Exposure Assessment" is such an assessment in which it is concluded that employee exposures during the job are likely to be consistently below the PELs. Assessments must be based on information and data which are allowed pursuant to criteria in paragraph (f). The results of "Initial monitoring," no longer required for each job, should be considered, but do not necessarily constitute an adequate "assessment" if they would not represent all worst-case employee exposures during the entire job.
Alternatives or modifications to listed control methods are allowed when the employer demonstrates that such a "modification" still provides equivalent worker protection. OSHA does not intend that changes in a control method which decrease the safety margin of a material or omitting a procedure be permitted by calling it a "modification." A "modification" means a changed or altered procedure, material which replaces a procedure, material or component of a required system. For example, a new test proven successful in detecting leaks might be substituted for required "smoke tests." Omission of a procedure or component, or a reduction in the stringency or strength of a material or component is not considered a "modification" under this section.
Presumed Asbestos-Containing Material (PACM)
In all three standards, "presumed asbestos containing material," "PACM"
means thermal system insulation and sprayed on and/or troweled on, or otherwise applied surfacing material in buildings constructed no later than 1980. In many places in the Preamble, OSHA refers to "high risk" ACM and PACM. These terms are not used in the regulatory text. The term "high risk" refers to the possibility or potential for injury and does not mean injury will necessarily occur. OSHA uses these terms in the Preamble in a relative sence to describe its findings that TSI and surfacing material are more prevalent and can be more friable than many other asbestos-containing materials in buildings. As discussed elsewhere in the Preamble, OSHA finds that the OSHA-required provisions involving all types of ACM should result in low exposure levels that would protect employees from significant risk. Although these materials may have been installed in small quantities after 1980, OSHA finds that their installation is unlikely after that date.
- OSHA has adopted a definition like that of EPA for a "Project Designer"
-- a person who has successfully completed the training requirements for an abatement project designer established by 40 USC 763.90(g).
"Removal" means all operations where ACM and/or PACM is removed from a building component, regardless of the reason for the removal. It includes those maintenance, repair, renovation and demolition activities where ACM and/or PACM removal is incidental to the primary reason for the project, as well as where removal of ACM and/or PACM is the primary reason for the project. Removal should be distinguished from "disturbance" which includes "cutting away" a small amount of ACM or PACM.
"Regulated area" is included in all three standards. All three, like the 1986 standards, require the establishment of such an area where the employer believes that the PEL will be exceeded. Now, the construction and shipyard employment standards add that such area must be established also where Class I, II and III activities will take place, regardless of exposure levels. Also, the specific actions required of the employer to demarcate a regulated area are deleted from the definition, and are placed in the appropriate prescriptive paragraph, in this case paragraph (e)(6).
(3) Permissible Exposure Limits
- Paragraph (c) General Industry, Construction and Shipyard Standards.
In all three standards, the eight hour time-weighted average permissible exposure limit is changed from an eight hour time weighted average (TWA) of 0.2 f/cc to a TWA of 0.1 f/cc in the revised final rules. As noted in the 1990 proposal and in the preamble discussion above, OSHA's decision to reduce the PEL across the board responds to the Court's directive to consider whether to establish operation-specific exposure limits, since the Court noted that on the record of the 1986 standards, it appeared feasible to reduce the PEL to 0.1 f/cc limit in many industry sectors. OSHA has rejected "operation-specific" PELs for the wide variety of operations that expose employees to asbestos. OSHA proposed and these final standards adopt required operation-specific work practices, in addition to an across-the-board PEL reduction to 0.1 f/cc. OSHA expects that the risk reduction accomplished by this two-pronged approach will be at least as great as would operation-specific PELs. First, the required controls are found to be capable of achieving maximum exposure reduction on an operation-by-operation basis. Second, since OSHA has found that specific work practices are feasible, the Agency expects a higher compliance rate and thus, greater risk reduction than if practices were not specified. Third, in operations where particular controls are specified, the PEL is a backstop; alerting employers where additional controls are needed or closer surveillance is required; in all operations the PEL is a measurable and comparable value, which cannot be exceeded without further action by the employer to reduce exposures.
At the time of the proposal in 1990, the question of whether the proposed PEL reduction would reduce a still significant risk had already been given a tentative answer by the Court. The D.C. Circuit Court of Appeals, in remanding the issue of lowering the PEL to the Agency, noted that based on the 1984 risk assessment, the excess risk stemming from average exposures of 0.1 f/cc "could well be found significant." BCTD v. Brock, 838 F.2nd at 1266." (55 FR at 29714).
In the proposal, OSHA stated that it believes "that compliance with proposed amendments to reduce the PEL to 0.1 f/cc as a time-weighted average measured over 8 hours would further reduce a significant health risk which exists after imposing a 0.2 f/cc PEL" (55 FR 29714, July 20, 1990). OSHA's 1984 risk assessment showed that lowering the TWA PEL from 2 f/cc to 0.2 f/cc reduced the asbestos cancer mortality risk from lifetime exposure from 64 to 6.7 deaths per 1,000 workers. OSHA estimated that the incidence of asbestosis would be 5 cases per 1,000 workers exposed for a working lifetime under the TWA PEL of 0.2 f/cc. Counterpart risk figures for 20 years of exposure are excess cancer risks of 4.5 per 1,000 workers and an estimated asbestosis incidence of 2 cases per 1,000 workers.
OSHA's risk assessment also showed that reducing exposure to 0.1 f/cc would further reduce, but not eliminate, significant risk. The excess cancer risk at that level would be reduced to a lifetime risk of 3.4 per 1,000 workers and a 20 year exposure risk of 2.3 per 1,000 workers. Consequently significant risk would be reduced substantially. However, OSHA concluded therefore that continued exposure to asbestos at the TWA permitted level and action level would still present residual risks to employees which are significant.
The Court did not ask and OSHA did not undertake to review its earlier risk assessment in the proposal. At the hearing in January, 1991, Mr. Martonik, spokesperson for OSHA was asked by Mr. Hardy, representing the Safe Building Alliance (SBA), if OSHA was planning to update the earlier risk assessment as part of this proceeding. Mr. Hardy stated that "a number of parties have suggested to OSHA that its risk assessment from 1984, as relied on in the 1986 final rule, is outdated" (Tr. 30). Mr. Martonik responded that "we will have to consider all information we receive and determine relevance in this rulemaking after the record is closed. (Ibid).
Other parties questioned OSHA's continuing reliance on the 1984 risk assessment. The Asbestos Information Association (AIANA) testified that "OSHA's 1984 risk assessment fails to take into account the scientific community's consensus that chrysotile exposures hold lower risk than the Agency estimates * * * we do not believe that the risk assessment that is six years old relies on the best available evidence." AIANA requested OSHA to convene experts, as part of this hearing process "to revise its asbestos risk assessment." (Tr. 530), this was the major objection to OSHA's earlier risk assessment. Some participants voiced similar objections. (Ex. 7-88, 7-110, 7-104, 7-120, Ex. 145, 151), while others were of the opinion that chrysotile had the same potency as other forms of asbestos (see Ex. 119 C, 1-136, 125, Att. 6, 143 Att C, 143 Att. D.).
Although as noted above, the issue of the continuing validity of OSHA's earlier risk assessment was not remanded to the Agency for reconsideration, implicit in OSHA's proposal to lower the PEL to 0.1 f/cc is OSHA's determination based on the 1984 risk assessment, that the lower exposure limit is necessary to reduce a still significant occupational risk.
After a comprehensive review of the evidence submitted concerning the validity of the 1984 risk assessment, OSHA has determined that it will continue to rely on the earlier analysis. The Agency believes that the studies used to derive risk estimates remain valid and reliable, and that OSHA's decision to not separate fiber types for purposes of risk analysis is neither scientifically nor regulatorily incorrect.
There are at least three reasons for OSHA's decision not to separate fiber types. First, OSHA believes that the evidence in the record supports similar potency for chrysotile and amphiboles with regard to lung cancer and asbestosis. The evidence submitted in support of the claim that chrysotile asbestos is less toxic than other asbestos fiber types is related primarily to mesothelioma. This evidence is unpersuasive, and it provides an insufficient basis upon which to regulate that fiber type less stringently.
- As OSHA explained in the preamble to the 1986 standards,
* * * to summarize the data on risk differential by asbestos fiber type, human epidemiological studies have suggested that occupational exposure to amphiboles is associated with a greater risk of mesothelioma than is exposure to chrysotile * * * No clear risk differential for lung cancer or other asbestos-related disease has been demonstrated by epidemiological studies. Animal experiments, however, have indicated that chrysotile is a more potent carcinogen than amphiboles when administered by inhalation or intrapleural injection * * * (51 FR at 22628).
OSHA agreed with the testimony of Dr. Davis, who stated that "the evidence cannot answer * * * with certainty * * * if "one fiber * * * of amphibole (is) more dangerous than one fiber * * * of chrysotile." (Ibid).
Second, as stated in the 1986 asbestos standard, even if OSHA were to accept the premise (which it does not), that chrysotile may present a lower cancer risk than other asbestos fiber types, occupational exposure to chrysotile asbestos still presents a significant risk of disease at the revised PEL (See 51 FR 22649, 22652). In particular, asbestosis, the disabling and often fatal fibrosis of the deep portions of the lung, is caused by exposure to all types of asbestos. The evidence on this is strong and no new information has been presented to contradict this. As stated above, OSHA estimated asbestosis risks at 0.2 f/cc exposures as an unacceptably high 5 cases per 1000 workers. Thus, asbestosis risks alone justify the regulation for chrysotile.
Lung cancer risks associated with chrysotile exposures are also high -- 6.7 lung cancer deaths per 1000 workers exposed to 0.2 f/cc for a full working lifetime. OSHA notes that SBA's witness, Dr. K. Crump acknowledged that "(t)here's not a clear difference, * * * even in humans, for lung cancer * * * in terms of distinguishing the potency of amphiboles vs. chrysotile." (Tr. 4220).
Third, the record shows that employees are likely to be exposed to mixed fiber types at most construction and shipyard industry worksites most of the time. Assigning a higher PEL to chrysotile would present the Agency and employers with analytical difficulties in separately monitoring exposures to different fiber types. Thus, regulating different fiber types at differing levels, would require more monitoring all the time and would produce limited benefits (51 FR 22682).
Consequently, OSHA believes that its conclusion to treat all asbestos fibers as having a similar potency in the occupational setting remains valid. Most of the evidence submitted to the remand rulemaking duplicated evidence submitted to the 1986 standards' record, or was cumulative to the earlier body of evidence. For example AIANA appended its 1988 submission to the EPA, consisting of numerous studies and reports. Some of these documents were considered by OSHA in the prior rulemaking. There, OSHA had stated that the 1983 Berry and Newhouse study of friction materials manufacturing workers which found nonsignificant increases in lung cancer mortality, was inconsistent with other studies showing that low level asbestos exposure resulted in excess lung cancer mortality, because of the relatively short follow up period used (51 FR 22618).
Other studies involved lung burden analyses of mesothelioma victims, apparently showing that the pulmonary content of chrysotile was within the range of the general population, whereas amphibole content was significantly elevated compared to the general population (see e.g. Churg, Malignant Mesothelioma in British Columbia in 1982, Cancer, 2/85, 672). OSHA noted in the preamble to the 1986 rule, that there is a difference in tissue retention which would account for the autopsy results and cited a study by Glyseth et al. (Doc. 33-C, Ex. 312) which supported that explanation. OSHA also noted that "the differential lung retention of various fiber types has been demonstrated in animals," citing a study by Wagner which found that animals exposed to chrysotile fibers developed lung cancer even though a smaller amount of chrysotile was retained in the lung compared to similar tests with amphiboles.
Dr. Weill believed that "these differences in tissue persistence may wholly or partially explain the observations [that exposure to amphiboles are associated with a higher prevalence of mesothelioma] in human * * * population * * *. Non-confirmation of fiber type differences in animal experiments may be related to the much shorter life span * * * [of experimental animals, which would not allow] the effects of varying tissue-persistence to be expressed" (Doc. 33-C, Ex. 99, p.18; 51 FR 22628). Therefore OSHA had reviewed and evaluated in the earlier rulemaking a portion of the evidence submitted by proponents of differential regulation of fiber types, and had rejected the claim that chrysotile should be regulated less stringently.
Some new evidence on the issue of differential risks of asbestos fiber types was submitted by both supporters and detractors of that theory.
In support of the position that chrysotile asbestos exposure is equivalent in risk to amphibole asbestos exposure, BCTD submitted studies which indicated excess mesothelioma cases in workers exposed solely to chrysotile asbestos (see Ex. 119 C, 1-136, 125, Att.6, 143 Att C, 143 Att. D). In support of the opposing claim that chrysotile has reduced carcinogenic potential, AIANA and SBA submitted additional evidence. For example, AIANA submitted the World Health Organization's 1989 working report which recommended that the exposure limit for chrysotile should be reduced to 1 f/cc or below (8 hour TWA), where it was recommended that exposure to crocidolite and amosite asbestos be prohibited (Ex. 21 A, p. 9). In particular, two papers by Mossman, et. al, are cited as the basis for the claim that a scientific "consensus" believes that chrysotile carries a reduced carcinogenic risk (Ex. 1-153, 151). Thus AIANA states that "since OSHA issued its 1984 asbestos risk assessment, the scientific consensus that chrysotile asbestos poses lesser risks has solidified" (Ex. 142 at 3).
However, OSHA notes that various participants in this rulemaking, including NIOSH and Dr. Nicholson, disputed the existence of such a consensus. Dr. Nicholson and others including Dr. Landrigan, in a letter to Science, (Ex. 1-155), dispute various interpretations of data in Mossman et al.'s paper, and challenge the conclusion that chrysotile asbestos carries little cancer risk. Nicholson et al, point out that human studies show excess lung cancer risk that is proportionate to exposure across all fiber types, and that animal tests confirm these relationships. OSHA believes that the scientific community has not achieved "consensus" on these issues.
Among the studies submitted in support of the lowered risk of chrysotile asbestos, are those of Churg, and others showing that the lung burden of mesothelioma victims is predominantly amphibole, even though high chrysotile exposure levels were reported. As noted above, this line of argument was presented in the earlier asbestos rulemaking, and OSHA had concluded that lung burden studies are inconclusive. Additional response to this argument is provided by Dement who notes that "(t)he biological significance of post-mortem lung fiber burden data has yet to be established. These data are not useful as a predictor of disease for several reasons. Chrysotile is known to split longitudinally and partially dissolve in the lung whereas amphiboles remain in the lungs for years without significant dissolution * * *. Measurements of tissue fiber burdens many years after first exposure may bear no relationship to the carcinogenic events which likely have taken place many years before clinical manifestation of cancer." (Ex. 1-273) BCTD pointed out in its post-hearing brief, that "Dr. Landrigan testified, while the observation that chrysotile does not last as long in the lungs as other forms of asbestos is not new knowledge (Tr. 1074), there is recent evidence that chrysotile is "the most effective of the three major fiber types at migrating to the pleura, that it is present in substantial amounts in pleural plaques and mesotheliomas, even in circumstances where it is not present or minimally present in the lungs themselves" (Tr. 1074).
The Agency also notes that the HEI report, in summing up its discussion of its literature search of studies examining the issue of the relative potency of chrysotile in inducing mesothelioma, stated: "(t)he evidence that chrysotile rarely causes pleural mesothelioma is not conclusive "* * * and concluded that the absence of mesothelioma in one of the "two cohorts of heavily exposed asbestos workers who worked only with chrysotile * * * seems likely to be due at least in part to chance" (Ex. 1-344 p. 6-23).
HEI concluded that "the mesothelioma risk for chrysotile was an issue of disagreement; some members of the Literature Review Panel held the view that a lower estimate should be recommended, as it would be more consistent with available data. The crucial issues, neither of which can be resolved unequivocally, are (1) what proportion of the mesotheliomas observed in groups such as the U.K. textile workers and the U.S. insulation workers were caused by their exposure to crocidolite or amosite; and (2) whether the best general estimate of the ratio of mesothelioma to excess lung cancer caused by chrysotile is provided by the Quebec miners and millers (about 1:4 or 1:5), or by the South Carolina textile workers handling Quebec fiber (zero)" (Ex. 1-344 p. 6-32).
Thus, although there is some evidence linking chrysotile to a lower mesothelioma rate than some amphibole fiber types, OSHA believes that there is insufficient evidence to show that chrysotile does not present a significant mesothelioma risk to exposed employees. Furthermore, the major disease linked to asbestos exposure, lung cancer, occurs at the same frequency among employees exposed to equivalent doses of chrysotile or to amphibole asbestos fiber types. Indeed, evaluation of all of the evidence indicates that chrysotile asbestos presents a similar significant risk of lung cancer and asbestosis as other forms of asbestos. Since these adverse health effects constitute the majority of diseases related to asbestos exposure, OSHA is still of the opinion that chrysotile exposure should be treated the same as other forms of asbestos.
In addition to contentions that OSHA's risk assessment had overstated asbestos risks because it treated the risks from all asbestos fiber types equally, other contentions were made that the earlier risk assessment may have understated the risks from asbestos, because it ignored evidence of the incidence of pleural plaques, and other asbestos disease which occurred in workers exposed at low levels, primarily as building custodians. The earlier risk assessment in 1984 focused on whether there was a significant risk of cancer and asbestosis at various levels of cumulative exposure. During this hearing, various labor groups stated their position that the presence of pleural plaques in asbestos exposed employees is not only a marker of asbestos exposure, but also an independent "material impairment" because they are associated with a greater risk of lung function impairment and pleuritic pain. Pleural plaques are focal areas of fibrous thickening of the pleura, the membrane lining the lung. Further, suggestions were made that OSHA should reduce its PELS to correspond to these increased risks of "material impairment" which occurred at lower exposure levels (see e.g., Ex. 143 at 35-37).
Evidence submitted during the rulemaking consisted of testimony and studies which in the view of some participants showed lung function decrement and resulting excess disease among workers exposed at low levels. For example BCTD witness Dr. Christine Oliver described various studies and concluded:
Pleural plaques * * * were a predictor for increased mortality from lung cancer and malignant mesothelioma in subsequent years * * * pleural plaques have also been shown to be associated with decrement in lung function * * * At the very least, pleural plaques are a marker for exposure, sufficient to increase risk for lung cancer and for malignant mesothelioma, and they have also been associated with loss of lung function (Tr. 1035-6).
Dr. Oliver recommended medical surveillance of those exposed to asbestos in their capacity as custodians in buildings.
The studies considered by Dr. Oliver consisted of one involving 120 Boston public school custodians (Tr. 1026) which she conducted and found pleural plaques in 33% (N = 40) of the group. Further she noted that in 21% (of the 40, or 12 individuals) there was no known exposure to asbestos outside work as school custodian. In 18% of the group and 17 % of those with no outside exposure to asbestos, she observed a restrictive pulmonary defect, significantly associated with duration of employment as school custodian. Other studies described by Dr. Oliver, in the docket include: a study of 666 New York school custodians, reporting only x-ray data (Ex. 47). For all groups of workers, the lung abnormality seen on x-ray was associated with duration of work as custodian: a study of 1,117 insulation workers (likely to have had extensive asbestos exposure) by Dr. Irving Selikoff, in which workers were followed for up to 27 years prospectively, in which pleural plaques were found and which were concluded to be predictive of lung cancer mortality (Tr. 1036 and Ex. 124A): a study, by Balmes (Ex. 124 DD, Tr. 1036, Ex. 1-374) of approximately 900 school district employees in California were determined as likely to have been exposed to asbestos. The authors concluded, "More than 11 percent of workers known to have sustained exposure to ACM in school building, without history of exposure to asbestos prior to school district employment, and with at least 10 years of employment with the district had radiographic evidence of parenchymal asbestosis and/or asbestos-related pleural thickening" (Ex. 1-374, p. 547). After adjusting for smoking and age, the relative risk was 1.3 times greater for those with 10 years or more employment compared with those who had just begun working for the school district.
In addition to the occurrence of pleural plaques which are viewed as presenting an independent material impairment of health due to low level asbestos exposures, Dr. Oliver cited other studies which correlated low level asbestos exposure with mesothelioma. Thus, a study by Dr. H. Anderson (Tr. 1032 and Ex. 124 EE, Ex. 1-374 using information on mesothelioma cases from a Wisconsin Cancer Registry, analyzed 359 deaths from 1959 to 1989. Using death certificate occupational information, the researchers hypothesized 41 as likely to have been exposed to asbestos in buildings. For 10 (34%), no other likely source of asbestos exposure was identified. The paper concluded that "individuals occupationally exposed to in-place ACBM are at risk for the subsequent development of mesothelioma" (Ex. 1-374, p. 570).
SBA submitted a critique of these studies which they commissioned by Drs. H. Weill and J. Hughes (Ex. 122). They suggested potential biases in these studies, that Dr. Oliver's study subjects were volunteers, the study had a low participation rate, they had used a non-standard classification system, and did not adequately account for age in relating restriction to lung function. These reviewers concluded that spirometric functional measurements were not related to the presence of plaques and that reduced lung volume could result from other factors. Drs. Weill and Hughes also examined the other studies, and argued that Dr. Selikoff's were "fatally flawed" due to the potential for development of unmeasured changes during the 27 year period of follow-up, and that both the Anderson and Balmes studies failed to adequately adjust for age, smoking and other direct asbestos exposures. Other reports cited by BCTD were dismissed because of potential sources of bias.
Dr. Oliver rebutted these arguments (Ex 143, Attachment F). She argued that she had adequate controls, adequately accounted for age and demonstrated that pleural plaques were significantly associated with both latency and duration of work as custodian in the total group and in the group with no known other exposure, that lung restriction was significantly associated with duration of work as a custodian, and that pleural plaques mark increased risk for lung cancer mortality.
Dr. Levin also responded to the reviewer's criticism of his studies with Dr. Selikoff (Ex. 143, Attachment G). He pointed out that all x-rays had been read by a single reader, Dr. Selikoff, and that there is no evidence that smoking without asbestos exposure increases appearance of the small irregular opacities in the lung seen on the x-rays in their study. He further noted that in his study only actively working custodians were included and were therefore a "survivor" group and would therefore not be expected to report pulmonary dysfunction frequently. He claimed that relatively unexposed subject groups would not be expected to have more than an upper limit of 3% pleural plaques.
Dr. Anderson also responded to the Weill/Hughes comments (Ex. 143, Attachment H). He asserted that the review fails to explain how biases would significantly increase odds ratios in the study, that misclassification often is random and biases toward not detecting a difference between the study and control groups. He also questioned existence of evidence that smoking without asbestos exposure causes pleural thickening or irregular opacities.
The review of available literature, including the studies mentioned above by the Health Effects Institute, resulted in its the estimation that the prevalence of pleural plaques in the general population to be about 5% (Ex. 1-344, p. A2-9). Although HEI advised caution in interpreting the existing studies due to lack of specificity and sensitivity of methods used and couched its conclusions in cautious terms, they concluded: "* * * there is now persuasive evidence implicating asbestos-related pleural disease as an independent cause or indicator of functional impairment and possibly even disability * * * On the individual level, pleural disease may be the only indication of asbestos exposure, may explain symptoms and function impairment, and may predict future deterioration in lung function" (Ex. 1-344 p. A2-12).
OSHA agrees that health effects such as lung function impairment and pleuritic pain would be considered "material impairment," if substantial evidence supports the link to pleural plaques. OSHA concludes that the scientific data indicate that pleural plaques are primarily associated with asbestos exposure, and that they have occurred and still may at relatively low exposure levels.
However, OSHA does not believe that the data are available to permit OSHA to do a separate risk assessment for these effects which would in a major way add to the present assessment. The risk assessment on which OSHA has based its significant risk determinations for the 1986 and newly revised standards, calculated the incidence of mesothelioma, lung and other cancers and asbestosis, diseases based on a substantial amount of both mortality and exposure data. The data concerning lung function decrement and pleural plaques lack exposure information and would make quantitative risk estimates for these health effects less precise than the data for other forms of asbestos-related disease upon which OSHA is relying.
A separate risk assessment is also unnecessary. OSHA believes that the revised regulations are already regulating at the margin of what is feasible, in terms of levels to be achieved, and controls which are required. OSHA has imposed necessary, feasible and well supported work practices for custodial work, which should reduce custodial exposures well below the historic levels (indeterminate) which may have been experienced by the workers studied in the above reports.
More generally, there would be remaining significant risk at this new 0.1 f/cc exposure limit if there were not other provisions to these standards. However, the exposure limit is accompanied by mandated work practice controls and requirements for hazard communication, training and other provisions. Together these will very substantially reduce that remaining significant risk, although the exact amount of that reduction cannot be quantified. In addition, it would be difficult to measure accurately in the industrial setting levels lower than those in these standards. OSHA believes its approach of setting a PEL which is reliably measurable, yet, imposing work practices and ancillary provisions for operations regardless of measured fiber levels will result in risk reduction well below that expected from just enforcing the 0.1 f/cc PEL. Thus, a lower PEL would not produce significant worker benefit.
(4) Multi-Employer Worksites
- Paragraph (d) Construction and Shipyard Employment Standards.
OSHA is retitling paragraph (d) "multi-employer worksites." The first provision, the same regulatory text as in the 1986 construction standard, requires that an employer whose work requires the establishment of a regulated area must inform other on-site employers of the asbestos work, and how other employees will be protected from hazards stemming from that work. In addition, new provisions follow which set out the compliance responsibilities of employers on multi-employer worksites. In 1990, OSHA had proposed more comprehensive provisions governing communication of asbestos hazards among all employers, building and facility owners and employees, in a revised paragraph (d). These final standards expand communication provisions but repositions them in paragraph (k), "communication of hazards." A discussion of those provisions is found below in this preamble under that heading.
Paragraphs (d)(2) and (3) set out the compliance responsibilities of employers on multi-employer worksites. They acknowledge that on asbestos work sites, like other construction sites, employees exposed to a hazard are not always the employees of the employer who created the hazard.
Paragraph (d)(2) incorporates the rules now applied in enforcement actions governing multi-employer construction sites generally, to assure that all employees on such a site receive the protection intended by the standards.(See Gelco Builders, Inc. 6 BNA 1104). The standard explicitly requires asbestos hazards to be abated "by the contractor who created or controls the source of asbestos contamination."
In addition, paragraph (d)(3) sets forth the duties of the employer of employees who are exposed to asbestos hazards, but who did not create the source of contamination. One, such employer may request the contractor with control of the hazard to take corrective action. For example, if there is a breach of an enclosure within which asbestos work is being performed, the employer of employees working outside that enclosure should request the asbestos contractor who erected the enclosure to repair the breach immediately, as required by paragraph (d)(2). If the repair is not made, and if employees working outside the enclosure are exposed to asbestos in more than de minimis amounts, the employer of those employees should either remove them from the worksite pending repairs, or consider his employees to be working within a regulated area and comply with the provisions of paragraph (e) governing exposure assessments and monitoring of employees who work within such areas. If the employer of employees exposed to asbestos because of the failure of controls installed by another contractor, is the general contractor of the construction project, as such he has supervisory control over the entire worksite including the regulated area, and is responsible for violations which could be abated or prevented by the exercise of such supervisory capacity.
Paragraph (d)(3) of the construction standard states the enforcement rule that regardless of who created a hazard, the employer of exposed employees is required to comply with applicable protective provisions to protect his employees. An example recited in the regulatory text presents the situation of employees working immediately adjacent to a Class I regulated area. If there is a breach of the enclosure or the critical barriers surrounding the asbestos work, employees working immediately adjacent to the work may be exposed to asbestos. The employer responsible for erecting the enclosure is required to insure its integrity. However, in the event that such repair is delayed or not made, the employer of the exposed "bystander employees" must designate a "competent person" to evaluate the exposure potential, conduct initial monitoring or an "exposure assessment," and supervise other required protective actions. The evaluation may include the amount of time and frequency adjacent workers are exposed. For example, although passing through a contaminated area on the way to perform non-asbestos related activities is technically work which exposes employees to asbestos, the competent person's evaluation properly may conclude that no appreciable exposure is possible because of the brevity of the "work" in the area.
(5) Regulated Areas
Paragraph (e) General Industry, Construction and Shipyard Employment Standards.
Regulated areas are a traditional component of OSHA health standards. They segregate both the work and the worker so as to better regulate the work, and to protect uninvolved employees from exposure. The 1986 standards required regulated areas for work above the PELs and in construction, for demolition, renovation and removal activities. The final standards require that regulated areas be established where the PELS are likely to be exceeded, and under the construction and shipyard employment standards, where Class I, II and III asbestos work is performed. These requirements are substantively similar to those proposed in 1990.
The basic requirements of the regulated areas are the same for all three standards, They are changed from the current standard to more coherently reflect the rest of the standard's provisions. For example, paragraph (e)(2) which requires the regulated area to be "demarcated to minimize the number of persons within the area, and to protect persons outside the area from exposure to airborne concentrations of asbestos" has been changed in two ways. The phrase "in any manner," has been deleted. Since, paragraph (g) requires critical barriers for Class I and II work, and paragraph (k) requires warning signs outside regulated areas, demarcation must incorporate barriers and signs where otherwise required.
OSHA has also deleted the phrase "in excess of the TWA and/or excursion limit" in the construction and shipyard employment standards to describe the level of protection intended to be offered persons outside the regulated area. Since OSHA has determined that a still significant risk remains below the PELS, intended protection should not be limited to protecting down to these levels. OSHA noted in its 1990 proposal that in the construction standard, "the regulated area controls are proposed to apply even when exposures may be less than the newly proposed PEL of 0.1 f/cc" (55 FR at 29716), however, no change was proposed for the "demarcation" provision. Paragraph (e)(3) is unchanged and continues to limit access to regulated areas to "authorized persons."
The final regulated area requirements for construction and shipyard industry delete former and proposed (e)(6), which dictated when negative pressure enclosures (NPEs) must be erected, and various duties required of the "competent persons" to ensure integrity of the regulated area and enclosure. Under OSHA's former approach, negative pressure enclosures were, in many cases, how construction employers should have demarcated their regulated areas. OSHA focused on the role of such enclosures in providing "bystander protection." In these final standards, OSHA is repositioning the NPE provisions to paragraph (g), "methods of compliance." There, these systems are required to reduce exposures of the employees who are disturbing the asbestos who are inside the enclosures, as well as employees outside the enclosure.
(6) Exposure Assessment and Monitoring
Paragraph (d) General Industry. There are no changes to the exposure monitoring provisions of the General Industry Standard.
- Paragraph (f) Construction and Shipyard Employment Standard.
To conform with the newly revised approach to categorization of asbestos work, and to reflect the difficulties of reliably estimating asbestos exposures based on limited past or current exposure monitoring, the requirements for exposure monitoring in the 1986 standard have been changed. First, there is a general requirement that all employers who have a workplace covered by this standard conduct an "initial exposure assessment" at the beginning of each asbestos job [(paragraph (f)(2)]. Exceptions to this requirement exist only for most Class IV work. The "assessment" must be conducted by the "competent person." The purposes of these "assessments" are to predict whether exposure levels during the planned asbestos work can be expected to exceed the PELs, and thus whether additional monitoring, and other precautions are required. "Initial assessments" are different from "initial monitoring" required in the 1986 standards. "Initial monitoring" as used for processes in general industry, was rationally relied on to estimate future exposures for that purpose. Historic monitoring data were considered second-best data. The new requirement for "initial exposure assessments" acknowledges that initial exposure monitoring in many cases cannot adequately predict all future exposures on construction jobs. Even if monitoring results were instantaneously available, the value of early exposure monitoring in predicting later exposures over a multi-day asbestos job is limited. First-day exposures are likely to be lower than later exposures, because they reflect early set-up rather than removal activities, conducted in relatively clean areas before disturbance may contaminate the regulated area.
One purpose of the initial exposure assessment is to identify which asbestos jobs are likely to exceed the PEL in time for employers to install and implement the extra controls required to reduce such exposures. Such additional controls may consist of ventilation which redirects the air away from the over-exposed employees, and mandatory protective clothing and hygiene facilities associated with donning and removing such gear. Even employers who are planning to install full negative pressure enclosures with air flushing technology must conduct initial exposure assessments. This will insure that the "competent person" has reviewed the success of controls in past projects, in order to evaluate the planned controls for the current project. Testimony and comment to the record emphasized that the evaluation of industrial hygienists or other properly trained personnel was essential to decision making on how best to protect workers. For example, David Kirby of Oak Ridge National Laboratory, agreed with the statement that before there is any operation involving asbestos containing material, the industrial hygiene staff makes a determination as to whether that's likely to be a high risk, relatively high risk or a low risk operation (Tr. 197). Other participants endorsed requiring advance assessment of asbestos-disturbing jobs (see e.g., ORC, Ex. 145, p. 6).
The former "initial monitoring" provisions allowed use of historic data. OSHA now requires the evaluation of data from earlier asbestos jobs to estimate exposures on new jobs. However, the "data" reviewed are more than air monitoring results. This record has convinced the Agency that consideration of factors in successfully controlling asbestos exposures needs to be a part of the assessment. In addition to measurement results, the assessment must review relevant controls and conditions, factors that influence the degree of exposure. These include, but are not limited to, the degree and quality of supervision and of employee training, techniques used for wetting the ACM in the various circumstances encountered, placing and repositioning the ventilation equipment, and impacts due to weather conditions. The assessment therefore must be based on the competent person's review of all aspects of the employer's performance doing similar jobs. Only if similar controls are used and the work supervised by the same or similarly trained personnel, may past data be relied on. In addition, the results of initial monitoring required if feasible, must inform the competent person's assessment. Judgment of the "competent person" is required when reviewing records of past work. For example, even where an employer's earlier glove bag removals produced some exposures above the PEL, if more recent glove bag removals by the same crew show no exceedances, the "competent person" may be warranted in predicting that the current job performed by the same crew will be well controlled and exposures will not exceed the PELs.
The other basis allowed for an initial exposure assessment is "objective data" to show that it is, in effect, impossible for a job to result in excessive exposures. The 1986 standard, 1926.58, paragraph (f)(2)(ii), allowed such data to demonstrate that the "product or material containing asbestos cannot release * * * (excessive) concentrations * * *." Since the record of this proceeding shows that almost all asbestos products may in time become hazardous, if for example, their matrix becomes disturbed, the activity, as well as the material, is the exposure-limiting factor. OSHA therefore now allows a showing that a specific activity involving a product is incapable of producing exceedances. The "objective data" must demonstrate that under "the work conditions having the greatest potential for releasing asbestos," an activity coupled with a specific material, simply cannot result in excessive concentrations.
OSHA cannot predict all the combinations of activity and product which will meet this test. OSHA believes instead that construction employers should be given the responsibility for making these determinations for their particular work. However, on the record of this proceeding, they would appear to be limited to Class IV activities, or certain Class III activities such as limited removal of intact asbestos containing gaskets using wet methods and containment methods. OSHA notes that under no conditions can a Class I removal qualify for this exemption; based on the record of this rulemaking, every removal activity involving TSI and surfacing ACM is capable of releasing fibers above the PEL.
There are separate provisions regarding a "negative initial exposure assessment" which is a demonstration that the activity involving the asbestos material is unlikely under all foreseeable conditions to result in concentrations above the PELs.
The competent person must exercise judgment in performing these exposure assessments. For example, if initial monitoring is evaluated the first day's measurements which reflect set-up activities may not adequately predict later exposures on a removal job. The competent person should examine both the first day's exposures and comparable full job exposure data from other comparable jobs, before a conclusion is reached that exposures on that job will not exceed the PELs.
In large measure, the required bases for making a "negative exposure assessment" in the revised construction standard are the same criteria which would, under the 1986 standard, have allowed an employer to claim an exemption from initial monitoring based on "historic data." The standard makes it more difficult to base an initial exposure assessment on historic data than did the previous provision for initial determination. Now, the assessment must consider, the experience and training of the crews. Therefore, the standard now requires that a negative exposure assessment must compare crews with comparable experience and training, an employer cannot compare untrained and inexperienced crews. And no "negative exposure assessment" can be made if the crews which disturb asbestos in the current job are untrained. OSHA believes that a major factor in the effectiveness of all control systems for removing asbestos-containing materials is the experience and training of the contractor and employees. Evidence in the record shows dramatic reductions in exposure levels as untrained employees learned proper glove bag techniques (see e.g., the NIOSH study, Ex. 125).
The lack of a "negative exposure determination" usually indicates that workers are not experienced/trained or that a job is complex. In such situations, additional protections, less dependent on experience of the workers, or the complexity of the job, should be required. Thus, critical barriers are required in all Class I and II work, and for Class III work, plastic barriers are required, where negative exposure assessments are not produced. If the employer cannot assure that levels will be minimized, protection against migration of asbestos dust must be provided. Similarly, if excessive levels are possible, employees in all classes must be protected by respirator use and the standard so requires.
OSHA believes its approach balances the concern that asbestos exposure levels vary from job to job and may be non-predictive of future levels with the Agency's knowledge gained from long-term enforcement of the asbestos standard, that different employers have different "track records." The negative initial exposure assessment provisions require consideration of factors which have been identified as influencing the variability of results. In fact, one commenter stated that "* * * it is invalid to predict that any particular operation is always below the PEL," identified critical contributing variables as "the materials, work practices and experience of the crew" (Ex. 7-52). OSHA is requiring the "negative exposure assessment" to be based on these, among other, factors. OSHA emphasizes that a "negative exposure assessment" does not predict exposure levels beyond a particular job. A new assessment must be produced each time another job is undertaken. Employers may evaluate repetitive operations with highly similar characteristics, as one job, such as cable pulling in the same building, so long as the historic data used also reflect repetitive operations of the same duration and frequency.
In sum, OSHA believes data specific to the building, contractor and employees is helpful in predicting exposures when the same variables apply. The lack of such data should require additional precautions. Additionally, unless there is a "negative exposure assessment," the employer must continue to conduct periodic monitoring. Periodic monitoring, in a change from the 1986 construction standard, now is required within the regulated areas of Class I and Class II asbestos jobs and for Class III asbestos work where the initial assessment projects that the PEL is reasonably likely to be exceeded. In these operations the employer is to perform daily monitoring representative of the exposure of each workers performing these tasks. The provisions allowing discontinuance of monitoring, additional monitoring, observation of monitoring are unchanged.
Although not a remanded issue, several participants discussed the subject of a clearance fiber level to determine when a regulated area could be reoccupied following asbestos operations. Some supported use of a clearance level with aggressive sampling and analysis in accredited laboratories (Ex. 141, 143). Most who supported a clearance level stated support for the AHERA level of 0.01 f/cc or background fiber level (40 CFR 736.90). A representative of the US Navy felt that measurement of the quality of abatement -- a clearance level -- was needed, but that it should not be considered to be a "health standard" (Ex. 7-52). In a similar vein, the Resilient Floor Covering Institute (Ex. 147, Tr. 279) and a representative of the American Paper Institute pointed out that a permissible exposure limit and a clearance level are not the same and should not be confused; the former is health-based and the latter a measure of cleanliness (Ex. 7-74). Mr. Churchill an asbestos consultant, supported a clearance requirement and felt that the person performing this measurement should be an independent entity (Ex. 7-95). As mentioned earlier, the Shipyard Employment Standards Advisory Committee recommended adoption of a clearance level of 0.04 f/cc measured non-aggressively (Ex. 7-77). The submission of the Monsanto Company expressed their desire that OSHA not adopt a clearance requirement (Ex. 7-125).
OSHA has not included a provision for a specific "clearance level" in these revised standards. In reviewing the record, there is no clear evidence of a linkage between such a requirement and subsequent lessening of worker exposure. Clearly, regulated areas must be cleaned following asbestos work. However, designation of a specific fiber level which must be attained before an area can be reoccupied does not appear to be necessary for worker health when all other provisions of the standard are complied with. Meeting the requirements of the standards will protect workers and bystander employees and will prevent the migration of fibers from the work area. The docket contains some data indicating that attainment of a clearance level (either background or 0.01 f/cc) does not conclusively predict fiber levels which will occur in formerly regulated areas (Ex. 1-23, 162-19). Therefore, OSHA has not included a quantitative cutoff to determine whether a work area has been adequately cleaned to allow re-entry, rather the standards now require that the information regarding the final monitoring of the prior work be provided to those reoccupying the area. However, OSHA recognizes the need for adequate cleaning of the worksite following disturbance/removal of asbestos.
(7) Methods of Compliance
- Paragraph (f) General Industry.
OSHA proposed several changes to the methods of compliance provisions. One was to require specific work practice and engineering controls for brake and clutch repair; another was to regulate the maintenance of asbestos-containing flooring by prohibiting certain kinds of work practices and requiring others; the third was to require that engineering and work practice controls to achieve the newly reduced PEL of 0.1 f/cc be phased-in to coincide with the imposition of the EPA ban for various industrial sectors which manufacture asbestos containing material (see 55 FR 29721-29726). The final general industry standard retains the conceptual outline of these proposed changes; however the details differ.
Brake and Clutch Repair
OSHA is adding a mandatory appendix to its asbestos standard for general industry and to the shipyard employment standard. This appendix specifies the engineering controls and work practices to be followed during brake and clutch work. Two methods of control are "preferred," the enclosure/HEPA vacuum method and the low pressure/recycle method. In operations in which such work is infrequent (i.e., establishments performing fewer than 5 brake jobs per week), simple wet methods are included among the "preferred" controls. Also, use of "equivalent" methods of control is permitted.
In the July 20, 1990 proposed revision of the general industry asbestos standard, OSHA proposed that the employer comply with the standard by implementing one of three specified methods of engineering controls and work practices to control asbestos exposure during automotive brake and clutch repair and assembly operations. These methods were the enclosed cylinder/HEPA vacuum system, the spray can/solvent system, and the wet brush-recycle method. Detailed requirements for these three methods were set out in proposed Appendix F. Once having properly used one of these methods, the employer would have been exempt from other requirements of the standard. OSHA preliminarily found that the use of these methods would routinely result in exposure levels below the PEL. The proposal also would have allowed the employer to comply with the standard by using an "equivalent" method, which follows written procedures, which the employer demonstrates can achieve results equivalent to Method A, [the enclosed cylinder/HEPA vacuum system, Proposed 1910.1001 (f)(x)]. This proposed revision differed from the 1986 standard in two ways. The earlier standard set out two methods of reducing exposure in a non-mandatory appendix. Secondly, the controls themselves are somewhat different; one method, the wet brush-recycle method, was added; the enclosed cylinder/HEPA vacuum system was revised, and the spray can/solvent system is retained. OSHA endorsed these three methods based primarily on the results of a NIOSH study completed after the 1986 standard which found that all three methods effectively reduced exposure levels during brake drum servicing operations to below the proposed PEL of 0.1 f/cc (Ex. 1-112).
In the final standard OSHA lists two "preferred methods," the wet-brush recycle methods and the enclosure/HEPA vacuum system. OSHA is deleting the solvent/spray method from the list of preferred methods. OSHA still is listing the above two methods as "preferred," but the description of these methods is more generic than in the proposal, so as not to preclude use of methods which differ from those described in the proposal in minor ways which are unlikely to affect their efficiency. In addition, specific training provisions are added to ensure that work practices are effectively followed.
Like the proposal, "equivalent" methods are allowed so long as required training is held. The employer must show that the "equivalent" method can reliably achieve exposures below the PEL in the workplace conditions where the method is sought to be used. In addition employers using such "equivalent" methods must demonstrate by exposure data from their workplaces using the equivalent method, or by reference to exposure data representing conditions similar to their workplace that the anticipated exposure reduction in fact, has been achieved. OSHA believes that these changes will allow employers to choose among various proven approaches and encourage the development of new devices and practices which effectively reduce exposures in brake and clutch repair facilities.
Considerable comment and testimony were submitted to the record by the public concerning OSHA's proposed revisions on protection for automotive repair workers. Information concerning additional methods to achieve asbestos control during brake repair was submitted. These additional methods include HEPA vacuum systems without an enclosed cylinder (Ex. 7-104), using water spray instead of solvent spray (Ex. 7-104, 7-04), enclosures shaped other than cylindrically (Ex. 7-127), and collecting the drips of sprays from the solvent spray method (Ex. 1-84).
Some commenters claimed that OSHA should not require any specific method of reducing airborne asbestos exposure to brake and clutch repair workers, but merely require that the PEL be achieved (Ex. 7-31, 7-43, 7-79, 7-104, 7-146). Other commenters pointed out that most brake service operations are performed by small businesses that lack resources to evaluate control devices (Ex. 1-112). Evidence submitted concerning the airborne asbestos fiber levels produced by the use of most of the suggested methods showed exposures consistently below the proposed PEL of 0.1 f/cc.
Various comments concerned the "wet brush-recycle method." A developer of an enclosure method for brake/clutch repair asbestos control, recommended that the term be broadened to allow "more latitude in design preference for the manufacturer" (Ex. 162-41). He suggested that the name be changed to "low pressure/wet cleaning" method. He also asked that OSHA use a more general term to describe the preferred enclosure method, objecting to specification of its shape as cylindrical. OSHA agrees that the shape of the enclosure need not be specified and that the term suggested, "negative pressure enclosure/HEPA vacuum system," was appropriate.
Similarly, R. Wagner of BP of America felt that it was not necessary that the wet brush/recycle method actually include a brush and presented monitoring results indicating effective fiber control when spraying on the solution without brushing (Ex. 7-24). OSHA agrees that, although a brush is useful in cleaning the components, the preferred method will be designated low pressure/wet cleaning and will not specify the use of a brush.
A manufacturer of a low pressure/wet cleaning apparatus, objected to OSHA requiring use of an aqueous solution in the machine (Ex. 162-1). OSHA understands that the organic solution in the apparatus is a degreaser used as a parts cleaner. Mr. Swartz in testimony explained that solvents are used as degreasers, but that most brake work does not require degreasing -- he estimated that only once per 200 to 300 brake jobs would such a solvent be needed (Tr. 1843). OSHA has determined that it will maintain the requirement that aqueous solutions be used in this procedure to control asbestos fiber levels. OSHA further warns of the potential danger of solvent use in these operations and that use of solvents, which are often flammable and may be carcinogenic, must be undertaken with great care. OSHA also stresses the need for low pressure application of the solution to the surfaces during this operation to avoid asbestos fiber release and the necessity that the asbestos-contaminated solution not be allowed to dry on surfaces.
A manufacturer of a wet brush-recycle type brake cleaner, Hilgren of Kleer Flo, offered the following advice to users of this method regarding disposal of waste: "Our recommended method of disposal is to simply add adsorbent material such as "floor-dry" to the waste bag. Then direct the flow through brush into the bag containing the absorbent material. Allow the machine to pump the solution from the reservoir" (Ex. 7-117).
Most relevant comments supported the effectiveness of two of the three proposed "preferred" methods: the enclosure/HEPA vacuum method and the wet wash/recycle system. However, substantial opposition was directed at OSHA's preference for the solvent spray system. For example, George Swartz, Director of Safety for Midas International Corporation testified that "the utilization of an aerosol system is ludicrous" (Tr. 1840). One, some of the solvents used in commercial preparations are suspect carcinogens. Two, use of a spray can does not reliably control exposures due to asbestos dust in the brake assembly, because of the difficulties of removing the drum, and that after removal asbestos containing dust in the assembly cannot easily be reached by an aerosolized spray. Three, certain solvent sprays, according to Mr. Swartz, can damage friction material and the rubber parts of the cups which force the brake shoe out to the drum (Tr.1840-46). Another witness, James E. Clayton, testified that "you can't take a can of compressed solution like this (Gunk brake cleaner) and just spray it on dry dust without it getting into the air." (id at 1914-15).
The National Automobile Dealers Association (NADA) agreed in its post-hearing comment that the use of spray can with certain solvents is potentially dangerous, and suggested that nonhazardous sprays or aerosols be allowed (Ex. 150). Another participant described an occasion in which the spray can was accidentally dropped, punctured, and released solvent into the work area (Ex. 7-24). The safety director at Fruehauf Trailer Operations, asked "why is it necessary to use a solvent as opposed to water? * * * why couldn't it be used in place of a solvent in the performance of brake and clutch work?" (Ex. 7-4). Mr. Swartz agreed that "simple water and detergent can be as effective" (Ex. 1-176) However, he insisted that it be a gentle mist of water and that resulting drips be caught and proper disposal carried out (Tr. 1852).
OSHA agrees with these comments and witnesses. The Agency notes that some of the solvents contained in the spray cans used to spray brake assemblies present significant health risks. As a matter of public health policy, it is better not to list as preferred, a compliance method which introduces another hazardous substance into the breathing zone of the worker.
Further, the effectiveness of the solvent/spray method is compromised by the reported need to use additional force to remove asbestos deposited in the brake assembly, which the spray cannot reach. Additionally, comment and testimony indicate that the force of the aerosol spray by itself can make airborne the asbestos-containing dust. OSHA noted in the proposal, that the spray/solvent can method produced the highest airborne concentrations of the methods tested by NIOSH (55 FR at 29724). OSHA notes that although it based its endorsement of the solvent/spray method on the NIOSH study, as Mr. Swartz pointed out, "the issue of the residual dust left in a drum, I don't think, was properly addressed in that study * * * (In) the real world, * * * the mechanic will either dump it on the ground or he'll dump it in a garbage can. At the end of the day he's going to sweep the floor, and he's sweeping the dust up" (Id at 1845).
Thus, in this final standard the spray/solvent can method is no longer a "preferred method," the use of which will exempt employers from other provisions of the standard. Although the standard does not prohibit the use of solvent sprays in brake and clutch repair to control asbestos exposure, employers will have to comply with other provisions in the asbestos and other standards when using the method. Initial monitoring must be undertaken to assure that exposures are likely to remain under the PEL, provisions of the hazard communication standard relating to communicating the hazard potential of the solvent used, and training employees in avoiding exposure to such solvent must be complied with. Employees must be specifically informed that the solvent/spray method is not preferred, and OSHA's reasons for that decision must be explained to them, as part of that training. Employers must provide for the prompt cleanup of all asbestos containing liquid or debris which is produced by any brake cleaning method, including a solvent/spray. Thus, solvent-wetted asbestos containing material must be HEPA vacuumed when it reaches the ground, because waiting will result in dried and airborne dust.
Among the methods tested by NIOSH was the use of a HEPA vacuum alone, without enclosure. The National Automobile Dealers Association representative, D. Greenhaus, encouraged OSHA to include this in its list of preferred methods of asbestos control in brake work stating that this was the method already in use in many places (Ex. 7-104). The Sheehy (NIOSH) study noted that" * * * the drums must be removed before the vacuum cleaner can be used, thus there is a potential for asbestos release during drum removal" (Ex. 1-112), and P. Carpenter of Nilfisk stated "[t]he greatest potential for exposure occurs when the brake drum is first removed" (Ex. 7-140). OSHA agrees that the potential for exposure during drum removal before the HEPA vacuum can be used precludes including this as a preferred method. Moreover, NIOSH found that HEPA systems alone do not clean the brake components as effectively as the other methods (Ex. 1-112). Mr. Greenhaus also recommended that OSHA prohibit three activities during brake operations: dry brushing, air hose cleaning and use of non-HEPA vacuums. NIOSH agreed that such prohibitions are necessary and OSHA concurs.
One related issue is whether to require respirator use for employees when changing filters or bags from vacuums. OSHA proposed that they not be required when changing HEPA filters, noting that filter changes occurred infrequently, recorded fiber levels during changes were not excessive, and other requirements triggered by respirator use, such as medical examinations and fit testing procedures, did not appear to confer any significant benefit to employees. One participant, Mr. Clayton, who initially disagreed with OSHA's proposal not to require respirators for filter changes, clarified that the ancillary requirements for a respirator program, "would scare everybody away from wanting to do it * * * and would be a rather heavy burden for most employers" (Tr. 1931). Mr. Clayton pointed out that exposure potential existed not only during filter changes, but during vacuum bag changes as well. He further pointed out that although HEPA filter changes were infrequent, bags "could be changed as often as every three to five weeks by a shop" (Id at 1929). Mr. Clayton described two systems of ensuring that bag changing does not expose employees to asbestos containing dust. Under one system the bag is collected under negative pressure; under the other the bag is made from non-woven material and is "virtually undestructible." OSHA has concluded that so long as filters and vacuum bags are changed using work practices to minimize rupture and spillage, exposure from that activity will be de minimis, and respirator use is not required to protect employees. Accordingly, additional work practices relating to filter changes, when a vacuum is used, are included in the standard.
OSHA is allowing another method to be used in shops in which brake work comprises only a minor portion of the workload, and thus where employee exposure is infrequent and minimal. For those shops in which brake work is infrequent, OSHA has determined to allow the use of a wet method of control as a "preferred" method. Therefore, in facilities in which no more than 5 pairs of brakes or 5 clutches, or some combination totaling 5, are repaired each week, the mechanic/technician may control potential asbestos exposure through the use of a pump sprayer (bottle) containing water or amended water to wet down the drum or clutch housing before it is removed and to control fiber release during subsequent activities. The mechanic may use other implements to deliver the water such as a garden hose; however, the resulting waste water generated must be caught and properly disposed of without allowing it to dry on any surfaces. OSHA anticipates that the use of a spray bottle will be adequate to control the dust without generating a large volume of waste water, however any waste water generated must be disposed of properly. OSHA applied a qualitative analysis using its risk management expertise in making the decision that allows less effective controls for facilities that do 5 or fewer brake and 5 or fewer clutch repair jobs per week. Relevant factors were the magnitude of the risk of asbestos caused disease estimated in the 1986 risk assessment at levels of exposure in vehicle repair facilities, the duration of exposure, and the practicality of using controls in the industry.
In describing the usual work practices of mechanics performing brake jobs, Mr. Swartz of Midas Corporation reported that it was occasionally necessary for the mechanic/technician to dislodge a "frozen" brake drum; this was usually performed by striking it with a hammer (Ex. 1-176). When performed within an enclosure under negative pressure, this operation would be unlikely to expose the worker to asbestos fibers; however, when using the other methods it is essential that the exterior of the drum, especially around the seams, be thoroughly wetted to minimize fiber release. OSHA concurs and thus will require that before attempts are made to dislodge a "frozen" brake drum, the drum must be thoroughly wetted.
Other comments were received which dealt with minor alterations in wording which would render the requirements clearer and more specific and some of these have been incorporated into the language of Appendix F (Appendix L in the shipyard employment standard). Several participants noted that additional activities, such as inspection and disassembly of brakes could also result in exposure and should be included. Mr. Swartz explained that brakes are frequently checked to determine whether they are defective and this involves removal of the drums and results in potential exposure to asbestos-containing dust (Tr. 1843). OSHA agrees that these activities should be covered by the rule and has included them in the language of the final rule. Therefore the following activities will be listed and will require implementation of the provisions of the mandatory appendix F (appendix L in the shipyard employment standard): clutch and brake inspection, disassembly, repair and assembly.
Mr. Swartz also testified that brake shoes are recycled and new friction material is placed on re-used metal frames (Tr. 1871). A letter forwarded to OSHA by EPA Brian Putnam, whose work experience included 4 years of delivering auto parts to garages and service stations, stated:
* * * it is my observation that auto parts employees face significant exposure to asbestos from brake shoe cores, brake drums, and clutches. Not only do they store cores for exchange with the manufacturers, most also turn brake drums which come in with a * * * coating of dust on them (Ex. 1-133).
The asbestos standard 1910.1001(k)(1) states that "all surfaces shall be maintained as free as practicable of accumulations of dusts and waste containing asbestos," and subsequently in (k)(6) specifically states that items consigned for disposal which are contaminated shall be sealed in impermeable bags or other closed impermeable containers. In order to include materials which are contaminated and scheduled for recycling, not disposal, the phrase "or recycling" is added to this provision (k)(6), which now is as follows: Waste, scrap, debris, bags, containers, equipment and clothing contaminating with asbestos consigned for disposal or recycling, shall be collected and disposed of in sealed impermeable bags, or other closed, impermeable containers.
Engineering controls and good work practices should be implemented at all times during brake servicing. Because of the health hazards associated with asbestos exposure, these actions must be considered even when the worker believes that the brake shoes do not contain asbestos.
OSHA received several comments pointing out a need for training requirements for brake and clutch mechanics. For example J. Clayton of Clayton Associates, Inc supported a training requirement for brake and clutch repair workers citing as examples that New Jersey required one day training for mechanics and that Maryland requires training for those covered under its asbestos program. He estimated the cost of training at $150 and noted that certified instructors were required in both these states (Ex. 7-127). OSHA agrees that workers exposed to asbestos must be trained in appropriate ways to avoid exposure to airborne asbestos fibers. Therefore, OSHA has provided a mandatory appendix outlining the work practices to be used in performing these operations, and has included a requirement that brake and clutch repair workers receive training in the appropriate use of these work practices.
Paragraph (k)(7) General Industry Standard. The 1986 standard contained no provisions specifically covering work practices on asbestos containing flooring materials. In 1990, OSHA proposed in paragraph (f)(xi) several limitations on buffing and sanding asbestos containing flooring. In the housekeeping section of the final OSHA is prohibiting or limiting three work practices relating to floor maintenance for asbestos-containing flooring materials and those assumed to contain asbestos. They are: (i) sanding of asbestos-containing floor material is prohibited; (ii) stripping of finishes shall be conducted using low abrasion pads at speeds lower than 300 rpm and wet methods; and, (iii) burnishing or dry buffing may be performed only on asbestos-containing flooring which has sufficient finish so that the pad cannot contact the asbestos-containing material.
OSHA had proposed to allow asbestos containing floor tile to be buffed only with "low abrasion pads at speeds of 190 rpm or less" (See 55 FR at 22752). However, after a review of the record OSHA believes that restricting sanding of floor materials, limiting the speed and abrasiveness of the pads and specifying use of wet methods for stripping floors, and allowing buffing only on finished floors will protect floor care workers from exposure to airborne asbestos fibers while performing the maintenance and will minimize future exposures due to deteriorating flooring caused by inadequate maintenance.
- Paragraph (g) Construction and Shipyard Employment Standards:
The "methods of compliance" provisions are the core of the revised standards. They set generic, operation-specific and exposure triggered requirements for conducting asbestos work. In the 1986 construction standard, provisions dictating engineering controls and work practices for most construction jobs were contained in paragraph (e), governing the "regulated area." OSHA believes that paragraph (g), the methods of compliance section, is a more logical home for these provisions.
Most of the requirements in paragraph (g) are instructions to use specified work practices. The work practice approach to controlling asbestos exposure in construction activities is widely endorsed. It is the model for NESHAP regulation under EPA (see 40 CFR 60.143), most state regulations and voluntary consensus guidelines. OSHA has tried to formulate work practice requirements as simple, flexible instructions, embodying the basic control strategies for asbestos dust suppression. These are to wet it down, contain the disturbance, and isolate the operation. The work practice-engineering controls which are listed and described in the regulation are the ones which the rulemaking record confirms are used, understood, and effective.
OSHA expects that modifications and innovations in asbestos control technology will be developed. The standards provide for this by setting up general criteria for alternative controls, and an easily met procedure to allow the use of effective alternatives. Paragraph (g)(6) governs alternatives for Class I control methods, and paragraph (g)(7)(vi) for Class II methods. For both classes, detailed written demonstrations of the effectiveness of the alternative/modification are required and evaluations by designated persons are required. Alternatives for Class I work require a more rigorous demonstration of effectiveness, and advance notice to OSHA of their use. OSHA intends these requirements to be capable of being met by well-designed and tested alternative control methods. They are meant to exclude short-cut methods which hope to evade the other provisions in the standard. By their inclusion, OSHA is stating its policy view that industry has demonstrated its responsible innovative capability in the past, and will continue to do so.
The first provision in the construction methods of compliance paragraph, (g)(1)(i), requires that three basic and simple controls be utilized in all operations covered by the construction standard, regardless of exposure levels in those operations. These provisions apply to, for example, employers who install asbestos-containing material (no Class designation), clean up asbestos-containing debris at a construction site (Class IV), repair a boiler covered with asbestos-containing TSI (Class I or III), and remove asbestos-containing surfacing material (Class I).
The controls required are: use of HEPA filtered vacuums to collect debris and visible dust; use of wet methods to control asbestos fiber dispersion; and prompt disposal of asbestos contaminated waste materials.
OSHA has imposed these controls to reduce airborne contamination by asbestos fibers disturbed during construction activities. However fibers are released, contamination can be reduced by suppressing asbestos containing dusts, and/or collecting them before they dry and are able to migrate.
OSHA believes that most employers will be able to use wet methods, in handling asbestos-containing materials to reduce the airborne migration of fibers. The use of wet methods to control airborne asbestos was not explicitly required in the 1986 construction standard. It was mentioned among the control measures which could be used to keep down fiber levels during "maintenance and renovation projects in environments that do not lend themselves to the construction of negative-pressure enclosures" (51 FR 22711). In the Methods of Compliance section, OSHA presented use of wet methods among a list of engineering and work practice controls from which an employer could choose when seeking to comply with the PEL. The 1972 asbestos standard had required the use of wet methods to the extent practicable to reduce the release of asbestos fibers unless the usefulness of the product would be diminished by the use of such methods. On reconsideration, OSHA now finds the use of wet methods to be an inexpensive, generally feasible, and highly effective way to control release of asbestos fibers and returns to the earlier requirement for its use in all feasible situations.
There is overwhelming record support for the use of wet methods (e.g., Exs. 7-1, 7-34, 7-37, 7-51, 7-52, 7-74, 7-86, 7-89, 7-99, 7-132, 119P, 143, Tr. 223, 722 and 756). Representatives of most sectors, expressed support for a requirement for wet methods.(e.g., transite panel removal, Ex.7-74; removal of asbestos packing, Ex. 7-99; floor tile maintenance, Ex 7-132; custodial or maintenance work, Ex. 162-4, 162-25; floor tile and sheet removal, Ex 7-132; sheet gasket removal, Ex 119; cutting of transite pipe, Ex.117, Tab 6 at 5, Tab 7 at 1). B. Kynock of the AIR Coalition endorsed the use of wet methods, stating: "wetting of material is still considered a state of the art engineering control -- using wet methods -- because it is the one definitive way we can keep fiber levels to a minimum" (Tr. 3574). Evidence submitted into the record concerning a variety of asbestos jobs showed significant decreases in exposure levels when wet methods were used, compared to when the work was done dry [see e.g., re: sheet gasket removal (Ex.119-P)]. In the study by Paik et al, 1982 (Ex. 84-204) sprayed-on asbestos containing material was removed from eleven buildings, in one dry methods were employed due to electrical considerations while wet methods were employed in the other buildings. The dry method resulted in a geometric mean fiber level of 16.4 f/cc, while during the use of wet methods the geometric mean was 0.5 f/cc. OSHA notes that the OSHA PEL at the time the samples were taken was 2.0 f/cc.
Exxon (EUSA) submitted extensive sampling data indicating low fiber counts during outdoor removals in which wet methods were used (Ex. 38). Exxon also submitted sampling data from the outdoor removal of pipeline wrap from underground lines in which wetting was the primary means of control and in which 30 personal samples had an average fiber level less than 0.03 f/cc (Ex. 127). It is noted that Exxon also submitted specific additional work practices used in conjunction with wet methods to control fiber levels.
Requiring wet methods is consistent with EPA's regulatory scheme. Wet methods are required by EPA for removal and demolition jobs falling within the jurisdictional limits of NESHAP, and are recommended by that Agency as part of a basic "O & M" program for building custodians and maintenance workers. (EPA, Managing Asbestos In Place, Ex. 1-183, p. 18-19).
EPA/NESHAP, which requires facility owners and/or operators to control asbestos fiber emissions by wetting prior to during, and after demolition/removal, has provided guidance in a pamphlet entitled "Asbestos/NESHAP Adequately Wet Guidance" (EPA 340/1-90-019, December 1990, Ex. 1-300). In this booklet two exceptions to wetting are described: when temperature at the point of wetting is below freezing, and, when use of water would unavoidably damage equipment or present a safety hazard. In the latter case, local exhaust ventilation and collection systems to capture fibers must be used.
Others voiced reservation regarding a universal requirement for use of wet methods. E. Downey of US West, Inc. felt that in the case of the telecommunications industry and computer systems, use of wet methods would not be practical, particularly in roofing operations (Ex. 7-79). J. Collins of the US Navy Office of Operations and others recommended ground fault circuit use for avoiding the electrical hazards presented by use of wet methods (Ex. 7-52).
OSHA will allow employers to claim infeasibility if they cannot use wet methods due to conditions such as electrical hazards, hot surfaces, and the presence of technical equipment which cannot tolerate moisture.
The use of wet methods for roofing was a major issue in this proceeding. Steven Phillips, counsel to the National Roofing Contractors Association testified:
We have submitted for the record a report performed by SRI * * * their recommendation was that there is no improvement on asbestos emissions and there are safety hazards involved in putting workers on roofs when wet methods are utilized * * * (Tr. 2456).
The National Roofing Contractor's Association (NRCA) cited four reasons not to require wetting on roofs: "the introduction of water on the roof creates safety hazards, such as slipping; water on the roof can enter the building and cause damage and electrical hazards; the introduction of water on the roof can damage the roof system (e.g., by soaking insulation boards); the SRI International study reveals that roofing work involving wetting does not appear to produce either higher or lower concentrations than work performed dry. We believe this is because of the nature of roof systems. They are applied and in place to repel water. Thus, water (amended or unamended) does not penetrate the material -- it just rolls off of it" (Ex. 7-112, p. 21).
Some participants suggested that using wet methods on roofs should be recommended, but not required, because of safety concerns. For instance, the asbestos administrator for Florida, noted that using wet methods on a sloped roof may be more of a hazard to the workers, than the benefits gained (Ex. 7-6).
In contrast, NIOSH recommended that before an operation (tear-off of asbestos-containing roofing material), the roof should be wetted with water or other wetting agent (Ex. 44). BCTD noted in its post-hearing brief that "the majority of the jobs reported in the SRI Study, submitted by NRCA, employed wet methods" (Ex. 143, citing Ex. 9-31A). Various submissions noted that power cutting of built-up roofing is the standard method used to remove roofing material. Use of this method generates dust which may contain asbestos (Ex. 1-357, 7-95, 7-96, 7-115). The Paik study and other evidence demonstrate that wetting does substantially reduce exposure. OSHA believes that continuous misting of the cutting blade during the cutting operation, whether performed by hand or by machine will help to control dust. Field observations of such procedures have shown that little water is pooled as a result of the misting process (Ex. 1-313), and that in most circumstances, evaporation will quickly occur. Therefore, OSHA does not believe that the requirement to mist the cutting blade will create a slipping hazard on roofs under most circumstances. If, however, a competent person determines that the specific conditions of a roofing job (e.g. a steeply sloping roof, or below freezing temperatures) combined with the water resulting from any misting, would create a slipping hazard, misting may be omitted, if other precautions are followed, such as equipping the power tool with a HEPA vacuum system, or using hand methods.
The National Roofing Contractors Association said that currently there is no HEPA vacuum attached roofing cutter (Ex. 146). However, a wide variety of power tools have been fitted with local exhaust systems that work very well, including those used on tools for asbestos work. The 1972 asbestos standard required the use of local exhaust ventilation on all hand-operated or powered tools which may produce or release asbestos fibers in excess of the permissible exposure limit (37 FR 11320). The 1986 standard affirmed the requirement for ventilation for tools (51 FR 22715). We again reaffirm it here. To the extent feasible, tools used for working with ACM must be equipped with local exhaust ventilation. Some development work may be needed, but HEPA vacuum systems have been designed for many similar uses.
Other Basic Controls
The other basic controls in (g)(1), required for all operations under the standard are intended to reduce exposure caused by resuspension of asbestos fibers which have settled. The first is the requirement in (g)(1)(i) to use vacuum cleaners equipped with HEPA filters or other methods to collect debris and visible dust containing ACM or PACM before the material dries, which prevents the resuspension of fibers. This requirement complements the prohibition in (g)(3)(iii), which prohibits dry clean-up, including sweeping and shoveling, of dust and debris containing ACM or PACM. Although "wet" sweeping is not prohibited, it is not preferred, and may not be used to "collect" visible dust and debris. Nor may dry ACM or PACM-containing dust or debris be collected by means other than vacuuming with a HEPA filtered vacuum.
There was substantial record support for these requirements. As noted above these procedures apply to all asbestos operations. In removal operations, the requirement to use wet methods in the removal [(g)(1)(ii)] will help assure that resulting debris and dust can be collected before they dry out or are vacuumed up using vacuums equipped with HEPA filters (g)(1)(i). Even if operations are conducted within negative pressure enclosures, debris and dust should not remain uncollected for the entire work shift, because the resuspension of asbestos fibers from these sources creates additional new exposures for employees. If the work is performed within glove bags, leaks in the bags may create dust and debris. Fallen debris can be spread to parts of the building and thereby create widespread contamination. If the collection bags or devices required by other provisions fail or fall short, prompt collection of the dust and debris will limit the exposure to workers from such failure. If the negative pressure within the enclosure lapses, prompt collection of dust and debris will protect employees outside the enclosure from resuspended fibers. For these reasons, OSHA believes that careful treatment of asbestos waste and visible dust must be followed in all construction and shipyard industry operations which expose employees to asbestos.
OSHA notes that for demolition and renovation work which is covered under NESHAP (40 CFR 61 Subpart M), all ACM must be kept wet until sealed in a leak-tight container which includes an appropriate label. OSHA is extending this requirement to all jobs under the standard, and now requires that all asbestos-contaminated waste be promptly disposed of in leak tight containers [(g)(1)(iii)].
Requirements for Operations Which May Exceed the PELs
Paragraph (g)(2) applies to situations where it is expected that exposures may exceed the PEL, and thus additional controls are required to keep exposures at or below the PEL. Paragraph (g)(2) requires that local exhaust ventilation equipped with HEPA filter dust collection systems be installed for fixed processes involving asbestos handling and for power tools used in installing, or otherwise handling asbestos containing materials. In addition, enclosure or isolation of the asbestos releasing process must take place. These controls were listed as optional in the 1986 standard. They are now required, because of their proven ability to reduce dust levels in virtually all occupational environments. These controls, in particular, apply to construction activities involving the installation of new asbestos-containing construction materials, and in some cases the removal of previously installed material.
R.J. Pigg, President of the Asbestos Information Assn. of North America, testified that "the tools that we use, (for cutting asbestos-cement pipe as recommended work practices) are those that can be fitted with vacuum attachments. We have studies that relate to those recommended work practices that * * * support, when they're being followed, that you're well below the PEL" (Tr. 558-9).
In addition, paragraph (g)(2) requires that where the exposures are expected to be above the PEL, ventilation to move contaminated air away from exposed employees in the regulated areas toward a HEPA filtration or collection device is required. This requirement is adapted from the current standard which lists "general ventilation systems" as one of the control methods to be used to achieve the PEL. However, OSHA believes that the term "air sweeping away from exposed employees toward a HEPA filtered exhaust device" is more appropriate and effective. Further, it removes the interpretative possibility that using a general building ventilation system to vent asbestos-contaminated air, would be acceptable under the standard. A similar requirement is also aimed at Class I jobs which cannot produce a negative initial exposure assessment [see paragraph (g)(4)(vi)].
Paragraph (g)(3) sets out four prohibitions for all work under the standard. One prohibition, relating to high-speed abrasive disc saws, is made more specific; one, prohibiting dry sweeping and dry clean-up of ACM and PACM is added; and, one prohibiting employee rotation is expanded to apply to all attempts to reduce exposure, not, as in the 1986 standard, to reach the PEL. OSHA finds these changes will help reduce employee exposures and are consistent with the revisions to the standards.
Controls for Asbestos Jobs According to Their Classification
The next set of requirements in the "Methods of Compliance" beginning at paragraph-(g)(4), are keyed to the four classes of construction activities, Class I through IV, relating to previously installed ACM and PACM, defined in paragraph (b). The scheme is risk-based with Class I as the most hazardous, and Class IV the least so.
Class I asbestos work consists of the "removal" of asbestos-containing TSI and surfacing material and of PACM, including demolition operations involving these materials. Class II work consists of the "removal" of all other asbestos-containing materials, including resilient flooring presumed to contain asbestos. Class III work consists of the "disturbance" of all previously installed asbestos-containing building materials and PACM. Class IV work consists of housekeeping and custodial work in contact with previously installed ACM and PACM, and the clean-up of debris on construction sites.
All asbestos work under the construction and shipbuilding standards is not in the "class system." The installation of new asbestos-containing products does not carry a class designation, and thus the class-specific requirements do not apply to that activity. Work covered by the general industry standard is not included in the "class system" as well.
OSHA also notes that the differences in controls required among classes is not great. Further, the Agency believes that the risk overlap between adjoining classes is neither frequent nor large, and that the standard allows the employer flexibility in most such cases. The regulation requires job-by-job evaluation of regulated projects, and gives the competent person some leeway in easing some requirements when it appears that the project can be done especially safely.
The following examples illustrate how operations involving potential asbestos disturbance are to be classified. If an insulated pipe is leaking, and less than one standard glove bag's worth of TSI is "disturbed" (see definition in paragraph (b) in order to repair the leak, it is a Category III job. If the TSI is stripped from a section of piping to inspect all the piping in an area for leaks, it is a Class I job. If the section of piping required to be stripped is less than 25 feet, it is still a Class I job, but critical barriers may not be required if the initial exposure assessment is "negative" [see (g)(4)(i)(B)]. If it is not clear which category the work belongs, the employer should assume the higher, more restrictive, category applies, and should comply with the listed work practices and controls for that category. OSHA believes that most asbestos work will fit easily into the categories which are defined.
OSHA found that the term "small-scale, short-duration," insufficient to distinguish lower risk asbestos operations which allow exemptions from generally required controls.
A historical perspective is useful to clarify this issue. In 1986, OSHA required that all removal, renovation, and demolition operations, except for "small-scale, short duration" operations, be conducted within negative pressure enclosures [29 CFR 1926.58(e)(6)(1986)]. The scope of both the requirement and the exemption was unclear. The requirement did not explicitly apply to "maintenance or repair" operations, though most of the examples given were in that category. The examples cited in the exemption included pipe repair, valve replacement, installing electrical conduits, installing or removing drywall, roofing, and other general building maintenance operations. In addition, OSHA maintained that it was not possible to specify with precision the exact size of a "small-scale" maintenance job or to pinpoint the time involved in a "short-duration" task.
The Court of Appeals stated that OSHA had not drawn the parameters of the exemption with enough specificity and that "the exception as now worded seems to erase the rule." As noted above the Court remanded the issue to OSHA to "clarify the exemption for "small scale, short duration operations" from the negative-pressure enclosure requirements. Further the Court suggested that OSHA limit the exemption to "work operations where it is impractical to construct an enclosure because of the configuration of the work environment," stated by OSHA in the preamble to the 1986 rule, as the intended scope of the exemption (51 FR at 22,711,2).
However, the consequences of qualifying for the exemption were less clear when the regulatory text was consulted. Section (e)(6) of the 1986 standard allowed "small-scale, short-duration operations" to be exempt from the negative pressure enclosure requirement for removal, demolition, and renovations operations. However, some contractors successfully argued in enforcement actions, that a NPE was a particularized kind of a "regulated area" which the overriding general provision required only in "work areas where airborne concentrations of asbestos exceed or can reasonably be expected to exceed the TWA and/or excursion limit" (Section (e)(1)). To impart certainty to the requirement OSHA issued a compliance directive which triggered the requirement at the PEL, and attempted to clarify the kind of operations which would qualify for the exemption, in a job where exceedances of the PEL were expected.
In its July 20, 1990 proposal, OSHA would have required NPEs based on the type of work to be done; and sought to clarify the definition of small-scale, short duration operations by proposing specific cutoffs for "small" and "short." In addition, general criteria were proposed which were intended to amplify the exemptive criteria: operations must be "non-repetitive, affect small surfaces or volumes of material containing asbestos * * * not expected to expose bystanders to significant amounts of asbestos * * * completed within one work day." Cutoffs for specific operations were: repair or removal of asbestos on pipes: 21 linear feet; repair or removal of asbestos panel: 9 square feet; pipe valves containing asbestos gaskets or electrical work that disturbs asbestos: one worker, four hours, removal of drywall: one workday, endcapping of pipes and tile removal: four hours, and installation of conduits: eight-hour work shift.
Many participants agreed that using only the duration, and size of a job did not adequately characterize risk. Some argued that all asbestos jobs were risky, indeed there should be little regulatory distinction made. For example, NIOSH spokesperson, Richard Lemen, expressed the view that "even with short duration, small-term jobs we still feel that there is a risk to the worker, not only from the one time exposures, but from the potential of that worker doing multiple jobs over periods of time * * * which increase the exposure each time and the lung burden of asbestos to each of those exposures * * * we still feel that * * * [these jobs] should be treated as protectively as the other type of jobs." (Tr. 244), [See to the same effect the testimony of Mr. Cook, an abatement contractor who testified for the BCTD and Lynn McDonald, representing the Sheet-Metal Workers Union, (Tr. 829ff)].
The proposed definition of small-scale, short duration operations included specification of the number of square and linear feet of asbestos-containing material. There were numerous objections raised to the proposed values.
Several participants suggested that the NESHAP cutoff of 260 square or 160 linear feet, used by EPA for notification, be used as the cutoff for small-scale work (Ex. 7-9, 7-21, 7-39, 7-52, 7-113, 103, 1-53, 1-55). Others such as Edward Palagyi, a Florida State Asbestos Coordinator, felt that this cutoff was too high for OSHA to use in its definition (Ex. 7-6).
Several alternate amounts of material were suggested. Christopher Corrado of the Long Island Lighting Company (Ex. 7-29), James Foley of the New York Power Authority (Ex. 7-31) and Robert Brothers of Eastman Kodak (Ex. 7-81) recommended that OSHA adopt the amounts used by New York in its small-scale definition -- 25 linear and 10 square feet. William Dundulis of the Rhode Island Department of Health felt that to avoid confusion, OSHA should adopt the same cutoff that EPA used in its Worker Protection Rule -- 3 linear and 3 square feet (7-124). Others suggested that the amount of material be defined by the amount of asbestos-containing waste generated by the activity. For example, Preston Quirk of Gobbell Hays suggested cutoff maximum of 55 gallon drum or 1 cubic yard of ACM waste material (Ex. 7-34), while OSHA witness David Kirby suggested 3 glove bags worth of waste material or 10 linear feet as the cutoff of a small-scale job (Ex. 7-111). BCTD suggested "the lesser of (a) a yield of no more than 1-1/3 cubic feet (10 gallons) of asbestos-containing waste material, or (b) a maximum length of 2 feet or a maximum area of no more than 8 square feet of material containing asbestos." Noting that the amount of material covering a pipe varies with its diameter, (and the thickness of the material) BCTD calculated that removal of 1 inch of insulation from common pipe dimensions can vary from 1.37 to 5.04 cubic feet of waste. (Ex 143 at 131).
Although OSHA believes that the amount of waste material generated by a job may be a valid index of its exposure potential, the Agency agrees with participants who pointed out the difficulties of estimating the amount of waste material in advance of the job. [e.g., testimony of Chip D'Angelo, an asbestos consultant, (Tr. 3086), Paul Fiduccia, representing a number of real estate and building owner interests, (Tr. 791); Paul Heffernan of Kaselaan and D'Angelo Associates, (Ex. 7-36)].
Various other quantitative limits were suggested which were tied to specific materials; (e.g. transite panels, 32 square feet (Ex. 7-94), 48 square feet (7-96). Mr. Churchill, representing the California Association of Asbestos Professionals, suggested 9 square and 9 linear feet as cutoffs for small-scale jobs (Ex. 7-95 and Tr. 3468).
Charles Kelly of Edison Electric Institute asked whether complete removal of a pipe which might exceed 21 feet in length, but which involved removal of less than 2 feet of insulation at either end to enable cutting the pipe length for removal would be considered a small-scale job (Ex. 156).
Many additional commentators and hearing participants discussed these issues during this rulemaking proceeding. Some commented that the duration cutoffs were not realistic or protective. Other participants asked for clarification on whether duration of the job included preparation and cleanup. Also, Captain John Collins of the US Navy felt that employers would abuse the exemption by assigning many employees to a job in order to complete it in a short time period (Ex. 7-52), and suggested that instead of specifying the number of persons and the number of hours, OSHA should set the limit in terms of man-hours [see also Churchill at Tr. 3468, ORC at Tr. 3181, Kynock of AIR Coalition (Tr. 3539)].
Daniel Bart of GTE Service Corporation expressed concern that by having a time limitation for small-scale, short duration operations in the definition, the installation of telephone cables in buildings might no longer be considered short duration (Ex. 7-87). Dr. Michael Crane of Consolidated Edison, New York objected to the requirement that an operation be non-repetitive in order to qualify as small-scale, short duration (Ex. 7-76). He said, "(t)here are jobs * * * not part of an overall asbestos removal but are performed many times in the course of day during routine maintenance that must be done in generation stations and other utility facilities" [see also the suggestion of Paul Heffernan of Kaselaan & D'Angelo to adopt the concept of "functional space" as designated under AHERA, and defining a non-repetitive operation as occurring once within such a functional space (Ex. 7-36)]. Some also asked if OSHA intended preparation time and clean-up time be included in the duration limits for SSSD (Ex. 7-108).
Several participants noted that most asbestos work would not be assigned to a single worker, and SSSD should include only jobs completed by 2 employees in one work shift (Ex. 7-31): Preston Quirk of Gobbell Hays Partners, Inc. suggested that a maximum of 3 workers be allowed (Ex. 7-34). Organization Resources Counselors, Inc. (ORC) maintained that the specification of the number of workers was not necessary, as long as the employer had a comprehensive safety and health plan. (Ex. 7-99).
The views on these defining variables has influenced the Agency's decision to broaden and realign its job classification system based on relative risk. Based on this record and the agency's experience in enforcing the 1986 standard's provisions on small-scale, short duration work, OSHA is dropping the term "small-scale, short term" work from the regulatory text. The agency finds that the term "small-scale, short term" is too limiting, has been shown to be confusing, and cannot be defined with sufficient precision to serve the purpose of distinguishing high risk asbestos-disturbing activity from activity of reduced risk.
The term is limiting because it focuses on a fraction of the circumstances and criteria which define lower risk work with asbestos- containing material. OSHA has found that thermal system insulation (TSI) and surfacing material are the asbestos-containing building materials likely to produce significant employee exposure. On the other hand, removing asbestos-containing products like transite panels, likely will not result in significant exposure, even if conducted for more than one day, under minimum controls. As much as the scope and duration of the job, the materials themselves, their condition and the work-practices used define hazard potential.
OSHA's organization of asbestos jobs into categories is based on the more objective criteria, such as the type of material to be disturbed and the type of activity. Factors which are more subjective, such as condition, and crew experience are part of the required pre-job assessment by a "competent person." Not concentrating on the amount of asbestos material or the time the job takes, avoids serious objections raised by rulemaking participants to the time- or volume-based definition in the proposal. For example, a frequent complaint was that the duration of the operation should not be specified in the definition of small-scale activities because this might create incentives to perform the work more hurriedly and in a more hazardous manner when the worker must meet defined time schedules (Ex. 7-18, 7-35, 7-37, 7-43, 7-50, 7-52, 7-54, 7-63, 7-74, 7-76, 7-81, 7-87, 7-89, 7-95, 7-99, 7-106, 7-112, 7-124, 7-128, 7-135, 7-139, 7-146, 7-151, 143, Tr. 417). (In a few regulatory provisions, however, OSHA still relies on the amount of material to be removed to indicate risk, and thus, the protections required. These are the exemption from critical barriers from low-exposure Class I jobs [see paragraph (g)(4) and in defining "disturbance"]).
This classification system is OSHA's response to the Court's remand issue of how to clarify the term "small-scale, short duration." (see also preceding discussion of classes of asbestos work under "Definitions.")
Class I Work
Class I work, i.e., the "removal" of TSI or surfacing ACM or PACM, must be performed using procedures in paragraph (g)(4) and using a control method which is listed in paragraph (g)(5) of the standard. If another control method is used, or if a listed control method is "modified," the standard in paragraph (g)(6) requires that a certified industrial hygienist (CIH), or licensed professional engineer who is a "project designer," certify the control method using the criteria set out in the regulatory text. The requirements of (g)(4) are: for Class I jobs, preparation must be supervised by a competent person, dropcloths must be used and HVAC systems must be isolated. The area must be set up using "critical barriers' either as part of a negative pressure enclosure system, or as a supplemental barrier to another listed system which isolates the asbestos disturbance in a different way. Other barriers or isolation methods may be used to prevent asbestos migration. The effectiveness of such methods must be proven by visual inspection and clearance or perimeter monitoring (see e.g., Ex. 9-34 cc). As noted below, OSHA believes that the size of the removal job alone does not predict the risk to workers. However, if a job is smaller, the chances are reduced that isolation barriers provided by glove bags or boxes will fail.
OSHA was reluctant to limit glove bag removals without critical barriers only to maintenance projects, where as NIOSH noted, it is more likely that crews will be untrained (Ex. 125). Rather, OSHA has followed the lead of some states, which allow removals involving less than 25 linear feet of TSI, and 10 square feet of other material to be handled without critical barriers, unless the glove bags or enclosure loses its integrity (see e.g., 12 NYCRR 56) or where a negative exposure assessment has not been produced. Such projects are class I removals, and workers required to perform them must be trained in an EPA-accredited training course or equivalent; OSHA believes that the work force performing these relatively minor removals is the same work force performing major removals, thus the jobs will be well-conducted and critical barriers will be unnecessary.
In addition, where the employer cannot demonstrate that a Class I job is likely not to overexpose employees, the employer must ventilate the regulated area to move contaminated air away from employee breathing zones.
Paragraph (g)(5) sets out five listed control methods which OSHA has evaluated during this rulemaking. The Agency finds that using these methods pursuant to the limitations and specifications in the paragraph is likely to effectively control employee exposures when performing Class I work. The first control system listed for Class I work is the Negative Pressure Enclosure System (or NPE). The extent to which OSHA should require these systems for major asbestos work was a remanded issue. As discussed in detail below, OSHA has found that NPEs, when constructed and used according to the criteria in this standard, can be effective in protecting employees within and outside the enclosure.
Other listed systems also may be used for Class I work under stated limitations. Paragraph (g)(5) sets out these limitations. These systems are: glove bag systems, negative-pressure glove bag systems, negative pressure glove box systems, the water spray process system, and a mini- enclosure system. OSHA emphasizes the use of the term "system." Each method consists of tangible materials and devices; and of procedures and practices. All the listed elements must be complied with before OSHA's finding of effectiveness are relevant. Other, unspecified control methods, "alternative control methods," may be used if additional notification is given OSHA, and if a specially trained "project designer" or a certified industrial hygienist certifies that the controls will be protective.
Participants in this rulemaking requested that OSHA's revisions allow alternative systems. OSHA agrees that asbestos removal technology is evolving. If another control method is used, or if a listed control method is "modified," the standard requires that a certified industrial hygienist or licensed professional engineer who is also qualified as a project designer certify the control method using the criteria set out in the regulatory text. Additional discussion of these issues is found later in this document.
Specific Issues Relating to Methods of Compliance
1. A major issue in this proceeding is when NPEs should be required. In the 1990 proposal OSHA would have required the erection of negative pressure enclosures for all asbestos removal jobs, except for "small scale short duration work." This proposal responded to the Court's order for OSHA to clarify the conditions under which negative pressure enclosures were required in the 1986 standard (see discussion on Issue #3).
The major rationale in the 1986 standard for requiring negative pressure enclosures was to ensure that contamination from large-scale asbestos projects did not spread beyond the work area. OSHA there stated that "general contamination of the workplace has resulted from failure to confine asbestos using strict regulated area procedures, and asbestos-related diseases have been found in workers of a different trade exposed to asbestos contamination from the activities of asbestos workers." (55 FR at 29716). The effectiveness of NPEs in protecting employees working within the enclosure was not the explicit basis for their adoption in the 1986 rule.
In the 1990 proposal, OSHA primarily based the requirement for universal NPEs for major asbestos work on limited data relating to contamination of workspaces adjacent to asbestos work, and reports of historic disease experienced by employers in trades other than asbestos work who worked alongside asbestos workers. OSHA stated however, that the Agency "has not been able to estimate the risk to bystander employees * * *" and asked for comment and data on their exposure (55 FR 29716). OSHA also asked for information about alternatives to work in full containment, such as glove bag and box systems and "new technologies" (55 FR 29717). Although OSHA proposed more tightly drawn exemptions to the required use of negative pressure enclosures, the Agency also raised the possibility that data to be submitted about alternative control systems might result in a limitation, rather than an expansion of the walk-in enclosure requirements (55 FR 29720).
Further the 1990 proposal specifically focused on whether work within walk-in enclosures was the optimum method to protect asbestos workers. It is widely accepted that employees who disturb asbestos, and who contact deteriorated asbestos during their work are most at risk (see e.g., Ex. 1-344, p. 1-12). In its earlier response to the Court's remand, OSHA noted that the "record of the 1986 standard contains no data concerning whether employees working within the negative pressure enclosures also benefit from reduced exposure, whether working inside enclosures may introduce other potential work hazards such as heat stress. Further rulemaking is necessary to develop this information." (54 FR 52026, Dec. 20, 1989). In the proposal, OSHA reiterated this statement and again raised this issue (55 FR 29715).
The rulemaking record reflected this two-part inquiry. Data and comment were submitted concerning the effectiveness of NPEs in protecting employees within the enclosure, and their effectiveness in protecting "bystander" employees and adjacent areas from asbestos contamination. The record presents a mixed case on both issues. First, very limited data were submitted showing that employees working within the enclosures experienced reduced asbestos levels because of the enclosures themselves, or the ventilation provided by negative air machines, in spite of claims that the enclosures and ventilation produce such results. In fact claims were made that in comparing work within enclosures to work without enclosures, "enclosures consistently came out higher in terms of what the person inside the enclosure is exposed to" (Exxon, Tr. 2678). However, the record contains some data which show that properly designed and installed NPEs may limit the spread of asbestos contamination to adjacent areas and employees. However, the record also demonstrates that other systems, properly installed and performed by trained employees will also limit the spread of asbestos contamination. These are discussed in depth below.
Based on this record and on the Agency's experience and expertise, OSHA has concluded that although negative pressure enclosure systems are effective in many circumstances in protecting workers both within and outside the enclosure, other systems are equally effective in designated circumstances. Additionally, the demonstration in this rulemaking that other systems can be effective, supports regulatory provisions which do not stifle continued development and refinement of control strategies for asbestos work.
2. Effectiveness of NPEs in Protecting Employees Working Within the Enclosure
As noted above, little data were submitted showing that employees working within the enclosure have reduced exposures because of the enclosure itself, or other components of the NPE system. Although much data was alluded to during the hearing, e.g., "* * * 10 years of real, real projects with rooms full of data, * * * we have some nice summaries that I can give you * * *."(Tr. 3133). However, none of these data was submitted to the record. Also, NIOSH testified during the rulemaking hearing, "we are not aware of any studies evaluating their (negative pressure enclosures) effectiveness or delineating important parameters such as minimum pressure differential, minimum air flow, or maximum volumes feasible for various barrier materials." (Tr. 228). BCTD noted a study in which "two MIT researchers estimated "that total exposures using the HEPA negative pressure system might be about four-fold less than they would be without the system" (Ex. 143 at 90). OSHA notes that this estimate was derived from "assumptions" of the study team, and was unsupported by exposure data. Further, the baseline exposure model was based on a much earlier study of activities cleaning up contamination in a building. During this rulemaking hearing, the author of that study described it as "extremely unique, * * * not representative of buildings in the United States" (Tr. 2157). OSHA therefore regards the MIT exposure reduction estimate as unsupported and too speculative to serve as a basis for regulatory decision making.
Exposure data submitted to this rulemaking record which reflected personal samples within negative pressure enclosures do not support the view that working within such enclosures by itself will ensure reduced employee exposure. In fact, data were submitted which showed that employees working within negative pressure enclosures under some circumstances were exposed to excessive levels of asbestos (see below). OSHA recognizes that a showing of elevated levels from any one project or series of projects does not indict the control method as the cause of such elevations. However, numerous submissions from various sources which show elevated exposure levels with no indication of improper system installation indicates that in operation, the use of negative pressure enclosure systems does not assure effective exposure reduction to the employees performing the work.
Thus, Union Carbide submitted 1,000 exposure measurements "generally obtained from jobs where insulation was removed from piping of 1" -14" diameter and from other miscellaneous jobs removing asbestos from vessels" (Ex. 7-108). More than one half of the samples were over the proposed PEL of 0.1 f/cc, and most of those were over the previous PEL of 0.2 f/cc. Additional data showing high exposures within negative pressure enclosures compared to relatively low exposure levels for glove bag use were submitted by Arco Products, Inc. (Ex. 7-139) and Grayling (7-144). The Arco submission contained monitoring results from 9 personal samples taken within the enclosure. These ranged from 0.01 to 0.44 f/cc with a mean on 0.28 f/cc. Lower exposure levels for work within NPEs was shown by data submitted by the Asbestos Abatement Council, presenting data incorporating air monitoring results for over 200 projects, collected from four different contractors over an eight year time period. These data showed area samples ranging from 0.12 to 0.15 f/cc, while personal samples ranged from 0.03 to 0.07 f/cc (Ex. 1-142).
Various reasons were advanced for the presence of elevated exposure levels within negative pressure enclosures. Thus Dr. Sawyer testified "I have seen configurations that not only don't work maintaining the enclosure integrity, but they actually can increase fiber burdens in the contamination area * * * (t)his involves * * * a HEPA filter by itself without a drive mechanism, without a fan to force air through it" (Tr. 2176). "I can anecdotally tell you what I've seen out there, but a lot of the systems just don't work, and some of them can actually increase the hazard to workers" (Id at 2177-78).
In view of the disparity in the submitted data, OSHA concludes that negative pressure enclosure systems, like other control systems which depend on proper installation, design and supervision for effectiveness, can vary in protection they afford to employees working within. Unlike engineering systems permanently installed which are capitalized by the facility owner, negative pressure systems are installed for the duration of the job, and economic pressures are exerted to hold down the time and cost of the installation.
Thus, the support for the use of NPEs to reduce employee exposure is mixed. OSHA is also concerned that other health and safety hazards may result from work in negative pressure enclosure systems. For example, problems with toxic adhesives were noted in the record. Levels of methylene chloride, used to seal poly sheeting to underlying surfaces to contain work areas have been measured at over the PEL for that substance (Ex. 1-24). Some of the polyethylene used for sheeting may be combustible (Ex. 7-18). Certain industries reported particular hazards of NPEs. For example, a representative of Arco Products Co. commented that in the gasoline industry hazards included: build-up of gases inside the enclosure, heat stress, fire hazards, lack of good ventilation, difficulty in working with mobile equipment, difficulties in communicating and exiting during emergencies (Ex. 7-139).
Various solutions to these problem were suggested. Thus, it was suggested that less toxic adhesives be substituted for methylene chloride; that poly sheets can be attached without adhesives (BCTD, Ex. 143); that heat stress be eliminated by increasing the number of air changes per hour within the enclosure; that a transparent window be installed in each enclosure to facilitate communication (Ex. 7-6); and other such adaptations. Certain of these suggestions were criticized as ineffective. For example, Union Carbide stated in its post-hearing submission, "(w)e have observed that even when 8 to 12 air changes per hour are provided to the enclosure, on certain days the inside of the enclosure temperature has risen as high as 140 degrees F. The heat stress situation is further exacerbated by the body coveralls worn by the workers" (Ex. 113 p. 6).
OSHA believes that some of these potential problems attributable to negative pressure enclosures may be averted. However, the record also indicates that the use of this control technique shares with other asbestos control methods, a primary reliance upon the skill and training of designers and workers to assure its effectiveness. In addition, under some circumstances even the proper use of negative pressure enclosures can introduce additional hazards into the workplace.
One feature of some negative pressure enclosure systems, negative air ventilation, was singled out by some participants as the primary means of reducing exposures to employees working within them. OSHA notes however, that the requirement for NPEs as adopted in the 1986 rule, did not contain any criteria for such ventilation, and that the rationale for requiring NPEs did not rest on the capability of ventilation to reduce employee exposure. Therefore, OSHA regards the recommendation for requiring special ventilation as a new claim, to be supported by evidence and testimony submitted to this record.
One of the main characteristics of the negative pressure enclosure system is that the air pressure inside the enclosure is less than outside the enclosure. This pressure difference is created by a fan exhausting air, through a filter, from inside the enclosure to outside the enclosure. Under negative pressure, any leaks in the walls of the enclosure will result in clean air coming into the enclosure, rather than contaminated air leaking to the outside. The system is primarily designed to keep asbestos from contaminating the building. As stated earlier, this approach does not appear to improve working conditions inside the enclosure. Negative air ventilation draws clean air from outside the enclosure at sufficient quantities and at strategic locations, so as to provide clean air in the worker's breathing zone. Support for negative air ventilation was submitted by numerous participants. For example, Mr. D'Angelo testified that "negative air ventilation is the single most effective engineering control reducing worker exposure as well as reducing the risk to adjacent bystanders or other operations." Further, he recommended a minimum of 8 and up to 20 air changes per hour to assure appropriate ventilation is maintained (Tr. 3078, 3087). This process, "which has expanded on the negative pressure enclosure, (is) called air flush methodology" (Tr. 3085).
Other participants also supported the use of "air flushing" techniques, or directed make-up air. Chip D'Angelo, an asbestos abatement consultant described the principle as moving airborne fibers out of the work area with air velocity, thereby "flushing" the area by bringing in air from sources outside the enclosure additional to that brought through the decontamination chamber. He further described moving the air away from the worker and toward the negative air filtration machines and directing the moving air to "dead spots" in the enclosure by use of baffles and flexiducts (Tr. 3035) (see BCTD, Ex. 143 p. 90, and citations therein). Mr. Cook, an asbestos abatement contractor, appearing for the BCTD, testified that "it's a fairly easy technology to implement, depending on the situation."(Tr. 805). Mr. Medaglia, president of an engineering firm suggested adding to the definition of a negative pressure enclosure, the phrase "* * * all areas within the enclosure are swept by the flowing air towards the exhaust fans * * *" (Tr. 3052). Other support was provided by New Jersey White Lung Association (Tr. 601-2), NIOSH (Tr. 228 and 257), R. Sawyer (Tr. 2161), D. Kirby (Tr. 170), Global Consumer Services (Tr. 2341) and J. Cook of QSI International (Tr. 804.) However, some engineers who testified did not utilize the technique;
Exxon noted in its testimony that "you can't, quite honestly, get enough volume of air velocity to convince yourself you are going to get good equal mixing within an entire enclosure" (Tr. 2680); and NIOSH noted in its submitted testimony, that "we are not aware of any studies evaluating their effectiveness (NPE's) or delineating important parameters such as * * * minimum air flow" (Ex. 9). NIOSH recommended that OSHA incorporate into the rule for negative-pressure enclosures, design requirements for air-flow patterns within the enclosure to move airborne particles away from the worker" (Ibid).
Although "air flushing" is the ventilation approach most recommended for use within negative pressure systems, actual data showing its success is limited. In recognition of the support from engineers who have utilized these systems, OSHA is requiring a performance based version of "air flushing" as a component of the negative pressure enclosure system. OSHA is also requiring ventilation which "directs the air away from exposed employees" when other controls are used for Class I work where no there is insufficient data to support a "negative exposure assessment."
Participants also argued that the use of negative pressure systems under stated circumstances was unnecessary and would not contribute to employee protection against asbestos exposure. Working outdoors was one such circumstance. Amoco submitted data in which 95% amosite was removed from an outdoor pipe run without negative pressure enclosure in which most samples indicated very low fiber levels (Ex. 7-39). However, the following work practices were also used: restricted access, immediate and double bagging of debris or use of airtight chutes, barricaded area, use of HEPA equipped vacuums, respirator, decontamination procedures, and training and supervision of the operation by a competent person.
OSHA believes that outdoor Class I work may be safely done without enclosures. Therefore, paragraph (g) allows all outdoor Class I work to be conducted using other control methods, such as a glove bag system, so long as the specifications and work practices for such systems are followed. In addition, decontamination procedures for all Class I work, outdoors as well as indoors, including decontamination facilities and showers, must be made available for all Class I work, including that performed outdoors.
As discussed above, the negative pressure enclosure requirement in the 1986 standard lacked specificity. BCTD recommended that OSHA specify the number of air changes per hour required in the negative pressure enclosure (Ex. 143, p. 94). They reasoned that this would improve ventilation within the enclosure and reduce worker exposure. Union Carbide testified that they use 8 to 12 changes per hour (Tr. 2255) and Chip D'Angelo recommended 10 changes per hour (Ex. 99). New Jersey White Lung Association representative suggested 8 changes per hour (Tr. 482). BCTD and others also proposed that the negative pressure differential be increased from the recommended 0.02 column inches water in Appendix F (Ex. 143, p. 95) "because of fluctuations inside the enclosure."
In several published articles, Spicer and D'Angelo expressed their support for these recommendations and further suggested that pressure measurements be made at several points within the enclosure (Ex. 9-34 NN, Tr. 3126). The use of a manometer to measure the pressure differential between the enclosure and the area outside the enclosure was also supported by BCTD and D'Angelo and Spicer primarily because this device would provide immediate notice if there were a loss of pressure and therefore increased potential for fiber escape (Ex. 143, p. 96 and Ex. 9-34 NN). He estimated the cost of a manometer at $20.00 (Tr. 3078).
BCTD submitted additional recommendations which it felt would improve negative pressure enclosure use:
-- Use additional air filtration machines in areas of especially high fiber concentrations, to serve as "scrubbers" -- Use at least one negative air filtration machine per room in multi-room enclosures -- Provide an independent power source and back-up HEPA unit for use in case of failure -- Smoke test the enclosure for leaks -- Pre-filter inlet air (Ex. 143, p. 97)
Most of these recommendations appear to be beneficial. Requiring smoke testing to detect leaks is adopted by the Agency as part of required set-up procedures when such enclosures are used. Others, such as requiring "additional air filtration machines * * * where exposures are especially high" appear to be sound engineering advice but would present enforcement problems, if included in the regulatory text (Ex. 143). Instead, as part of the mandatory criteria for NPEs, when used to control exposure in Class I jobs, the Agency is requiring "competent persons" to oversee the installation of such systems, and employees to be protected within such enclosures by ventilation systems which minimize their asbestos exposure. OSHA believes that its provisions on negative pressure systems will protect employees working within them.
Based on the above extensive analysis of the many studies and comments, OSHA has concluded that NPEs are not appropriate as a universal requirement. They usually protect bystanders well, but not always workers within the enclosures, and can sometimes create other problems. Consequently, OSHA is permitting alternatives to NPEs in appropriate circumstances and is upgrading requirements for NPEs when they are used.
Also, OSHA believes that various alternative requirements in this final revised standard triggered by Class I, II, and III work, some of which are components of negative pressure systems will protect adjacent or "bystander" employees under most situations. Thus, mandatory critical barriers for most Class I, some Class II and III work will bar passage of fugitive asbestos fibers; and, clarifying the responsibilities of the various employers on a multi-employer worksite, paragraph (d) will protect all work site employees from fugitive emissions.
3. What Other Control Systems Can be Allowed for Asbestos Work Which Involves High Risk Materials?
OSHA is allowing other control systems for Category I asbestos work, but only under stated conditions. Thus, the second asbestos control system permitted for use for Category I asbestos work is a glove bag system which meets the requirements of the standard, and is used only in the limited situations listed in paragraph (g), i.e. straight runs of piping and to remove intact TSI.
Other technologies recommended by the accredited project designer or competent person based on supporting data showing their effectiveness may also be used. Whenever a technology is used which is not referenced in the standards, the employer must notify OSHA before the asbestos job, and include in the notification the basis for the project designer's or certified industrial hygienist's decision that the new technology will be equally effective as other technologies referenced in the appendix. Daily personal and periphery area monitoring must be conducted for all such jobs, as well as clearance samples at the termination of the abatement job.
Glove Bag Systems
The decision to allow increased glove bag use is based on the considerable comment and evidence submitted during this proceeding concerning the safety and effectiveness of glove bag use. OSHA had proposed to permit only small-scale, short duration removals to be conducted using glove bags; however the Agency noted that it was considering whether alternatives, including glove bags, to negative pressure enclosures for renovation, removal and demolition operations should be allowed (55 FR at 29716).
In the 1986 standard, glove bag effectiveness was considered too uncertain to allow as a preferred control. Therefore OSHA relegated glove bag use to small-scale, short duration jobs, or jobs exempt from the negative pressure enclosure requirement because of the configuration of the work environment. However OSHA noted that glove bag use could generally be expected to reduce exposures to below 0.1 f/cc (51 FR 22711).
In the preamble to its proposed amendments the Agency noted that available data indicated that glove bags in use may not always provide adequate protection. In large part, the Agency based this preliminary evaluation on the results of an evaluation performed by NIOSH in which improperly used glove bags resulted in excessive fiber counts.
As noted above, this final construction standard expands the conditions in which glove bag use is allowed. Now, glove bag use for removal of TSI and surfacing ACM is allowed without quantity limitation for intact TSI for straight runs of piping.
OSHA believes these decisions are well supported by this rulemaking record. Many participants urged OSHA to expand the conditions for permitting glove bag use. For example the Dow Chemical Company stated, "removal of asbestos containing material from pipes or pipelines can best be accomplished with the use of glove bags in all instances, not just when pipes are elevated. Needless to say, the employees carrying out the operation must be trained and adequately supervised to the glove bags properly." (Ex. 7-103). The American Paper Institute and the National Forest Products Association stated that "(w)e fully agree with the field personnel that there should be no linear footage limit for the removal of asbestos insulation on pipe when proper glove bag techniques are used" (Ex. 7-74 at 9). The National Insulation and Abatement Contractors Association commented "(a) skilled asbestos abatement mechanic can certainly remove in excess of 21 linear feet in properly used glove bags in as safe a manner as he or she can less than 21 feet. * * * (i)n addition, the implied restriction against glove bag use outside of small-scale, short-duration work ignores the advances made in glove bag practices and worker skills" (Ex 7-72 at 2).
Mr. Vest of the U.S. Air Force commented: "(t)he regulation should clearly allow for * * * operations that are not small-scale, short duration but are also not within the purview of the full requirements for a regulated area. We believe multiple glove bag operations would fall into this category; this in-between category should require training and additional procedures, but not necessarily "negative pressure enclosures." James Snyder, representing the American Paper Institute, maintained that there should be no linear limit as long as proper glove bag techniques were used (Ex. 7-74). Exhibits 7-9, 7-19, 7-21, 7-26, 7-32, 7-33, 7-50, 7-63, 7-72, 7-73, 7-74, 7-76, 7-95, 7-99, 7-102, 7-103, 7-106, 7-107, 7-120, 7-121, 7-125, 7-128, 7-130, 7-139, 7-144, and 7-146 also supported expanded glove bag use.
In addition, to these generalized statements of support for expanded use of glove bags, participants submitted data to show the effectiveness of glove bags in protecting workers. For example, the U.S. Air Force, introduced data (Ex. 3-9). The large majority of measurement were below 0.1 f/cc. Only 54 of the 370 measurements sets were over 0.1 f/cc, some of which were within the sampling and analytical error margin of 25%.
Dr. Vernon Rose of the University of Alabama at Birmingham submitted a paper entitled: "Analysis of PCM asbestos air monitoring results for a major abatement project" (Ex. 7-194), in which over 2000 sampling results were presented, taken over a five year period during which thermal system insulation was removed from a single building. This study provides very extensive data on closely observed work which the authors described as "* * * ideal conditions existed to support the proper abatement of ACM" (Ex. 7-194). However, they also noted that the environment was generally quite dusty and that since the results were PCM counts, they might overestimate the true exposure level. The results are summarized Table I.
Table I. -- Asbestos Fiber Levels During Various Removal Operations [Ex. 7-194] ______________________________________________________________________ | No. | Mean | Confidence Sample description | samples | (f/cc(3)) | interval ________________________________|_________|___________|_______________ | | | Full enclosure-entrance.........| 303 | 0.026 | 0.021-0.033 Full enclosure-background.......| 333 | 0.022 | 0.019-0.025 Mini-enclosure-entrance.........| 35 | 0.022 | 0.016-0.036 Mini-enclosure-background.......| 38 | 0.023 | 0.013-0.058 At glove bag....................| 430 | 0.037 | 0.034-0.041 Glove bag-background............| 386 | 0.028 | 0.025-0.031 Full enclosure-clearance........| 161 | 0.002 | 0.002-0.003 Mini-enclosure-clearance........| 94 | 0.006 | 0.005-0.008 Pre-work........................| 39 | 0.013 | 0.010-0.018 Full enclosure-personal.........| 116 | 0.233 | 0.177-0.327 Full enclosure-within...........| 160 | 0.119 | 0.097-0.152 ________________________________|_________|___________|_______________
Except for those taken within the negative pressure enclosure, all sample means, including those taken at and away from glove bags are well below the new PEL of 0.1 f/cc.
In OSHA's view, the large amount of data contained in this study demonstrating that exposure levels at the glove bag consistently were well below the PEL of 0.1 f/cc supports the effectiveness of glove bags in protecting the asbestos worker.
Additional data were submitted by Grayling Industries and Control Resource Systems, Inc., glove bag manufacturers (Ex. 7-144). Personal breathing zone measurements representing varied removals are almost all below OSHA's proposed PEL of 0.1 f/cc. After the hearing, Grayling submitted letters from some of the contractors and organizations in charge of the projects for which data was submitted, which detailed the procedures followed by employees during the jobs where low exposure levels were recorded. (Ex. 111). These conditions correspond to the specifications and work practices which OSHA is requiring in this standard for glove bag use.
Virtually all of the participants who opposed expanded use of glove bags for removal jobs, cited the NIOSH study referred to above. (See e.g. Ex. 143 at 98-100). The study was conducted jointly by NIOSH and EPA in 1985, and its results were made public, as a Health Hazard Evaluation (Exs. 1-1, 1-2, 1-20). It has also formed the basis for NIOSH's institutional position on glove bags published as "An Evaluation Glove Bag Containment in Asbestos Removal" in October 1990. (submitted post-hearing as Ex. 125). Based on the data and analysis in that document, NIOSH's spokesperson, Richard Lemen testified at the rulemaking hearing:
NIOSH has found that airborne fibers are released in the work place when glove bags are used to remove asbestos pipe. Although the reasons for these releases were not determined, the study indicated that glove bags did not control asbestos exposures as anticipated. Thus, NIOSH strongly supports OSHA in requiring that negative-pressure enclosures be used in conjunction with glove bags. Furthermore, NIOSH recommends that OSHA require the use of respiratory protection when glove bags are used. At a minimum, NIOSH recommends that workers should be required to wear the most protective air-purifying respirators * * * (Tr. 229)
The study evaluated the removal of asbestos containing pipe lagging using glove bags from four public school buildings. The data were obtained during week-long surveys in each of the buildings. According to the abstract in the evaluation: "the same work crew removed asbestos-containing pipe lagging in all four schools. Personal exposures to airborne fibers were determined using the NIOSH method" (Ex. 125). NIOSH summarized the results: "* * * In three of the four facilities studied, workers were exposed to airborne asbestos concentrations above the OSHA PEL. Only in the last building where the removal took place, were exposure levels reduced to below the new OSHA PELs."
Interpretation of the results of this study varied. BCTD viewed the study as supporting its view that glove bags should not be permitted for other than small scale, short duration jobs because they do not provide reliable protection for bystanders. (Ex. 143, p. 98). HEI concluded, based on the NIOSH study, that "* * * glove bags should never be used as a stand alone abatement isolation procedure for long pipe runs" (HEI, Ex. 1-344, p. 5-48). Clearly these results call into question any expansion of permitted glove bag use. However, after paying close attention to the conditions, personnel and equipment utilized in the NIOSH study, and to the rest of the record, OSHA believes that glove bag systems, when properly deployed and supplemented by barriers, are capable of protecting both the abatement worker and bystander employee.
Details of the improper usage in the NIOSH study were pointed out by Grayling and CI and by the NIOSH investigators themselves; "the methods employed by workers * * * violated current state-of the art glove bag procedures * * * (t)he glove bags contained over four times the recommended material, they were opened up and slid down the pipe, * * * (t)hey were used as a receptacle rather than as a glove bag, * * * the envelope was slit to speed the removal process, * * * bags were being sealed while removal was taking place * * *" and other improper procedures (Ex. 130, Ex. 125). In addition, although NIOSH noted "[w]orker training and experience are important components in a reliable system of control measure, * * * (in this study) the work crew was not trained in the proper use of glove bags" (Ex. 125, p. 20).
Representatives of the glove bag industry also noted that since the study was undertaken in 1985-86, the equipment used by the workers, has been replaced by better designed and more protective equipment and materials. For example, one of the glove bags used in the study employed a zippered connection system, which "promote(s) the free flow of contaminated air from the glove bag during removal * * *," and the "one-size fits all" glove bag has been replaced by a "greater number of designs and configurations of glove bags * * * (for) T's, elbows, valves, verticals and extended runs" (Ex. 130, p. 3).
The study showed that by the time the removal activity reached the fourth (final) building, the work crew, having been "trained" by a variety of on-the-job methods, such as "trial and error," advice from the survey team, and watching a videotape, exposure levels were dramatically reduced. The pre-removal levels were not lower at the final facility, approximately the same amount of asbestos was removed as in the other operations and the authors stated that the lagging was in generally good condition throughout the study -- lending further credence to the hypothesis that the use of improved work practices led to generation of lower fiber levels. The report concluded with a list of recommendations for work practices for glove bag use.
OSHA believes that the NIOSH study should be viewed as a demonstration of poor work practices by untrained employees. The Agency notes that although the NIOSH study contains carefully presented and analyzed exposure data, the study design was compromised by the intervention of the investigators in instructing the workers. Further, since the workers were untrained, and for the most part did not use the glove bags correctly to attempt to isolate the disturbances, the study is of limited utility in identifying problems of glove bag systems when they are used correctly.
NIOSH speculated that ignorance of proper glove bag procedures was common for plant maintenance personnel, asbestos operations and maintenance personnel, and many asbestos removal contractors who use glove bags only occasionally" (Ex. 125, p. 53). If indeed this is so, it suggests that short of prohibiting glove-bag removals entirely, restricting permitted usage to, for example, maintenance work (small- scale, short-duration work) may result in limiting permitted glove bag work to where it is likely to be performed incorrectly. It also suggests that, the frequency of glove bag work, rather than the size of the removal project is more relevant to its effectiveness. Other participants echoed this caution, for example, David Kirby of Oak Ridge National Laboratory testified that glove bag usage should be conditioned on showing quarterly frequency of glove bag usage (Tr. 116-17).
OSHA concludes that when conscientiously used by well-trained, well-supervised personnel, glove bags can effectively reduce asbestos fiber release. The NIOSH study demonstrated clearly that the obverse is also true; when glove bags are used improperly by untrained or insufficiently trained workers, airborne fiber levels can become significantly elevated. Consequently, based on this extensive evidence and analysis, OSHA is permitting wider use of glove bag technology in the final standard, but is including additional requirements to improve the effectiveness of their use. The Agency notes that the new regulatory text prescribing the specifications and work practices for allowable glove bag removals would prohibit the kind of removal activity observed in the NIOSH study.
Based on its study, NIOSH recommended detailed work practices and specifications for glove bag use. OSHA has incorporated the major recommendations into the standard, either as part of the overall requirements for asbestos removal, or as required components of permitted glove bag systems. For example, NIOSH recommends that workers "spray frequently during the removal process so that newly exposed surfaces are wetted." OSHA requires that all work be performed using wet methods. "Wet methods" are defined as, applying sufficient water to ACM and PACM during the work operation so that fibers, if released, are prevented from becoming airborne. Other recommendations likewise are covered by more generic requirements.
For Class I work in which glove bags are used, OSHA is requiring that 2 persons perform the glove bag removal. BCTD recommended that 2 persons perform glove bag work stating that "* * * the operation can be hard-pressed to adjust the HEPA vacuum flow rates or water pressure in the sprayer while his/her hands are in the bag" (Ex. 143, p. 125). BCTD also felt that proper decontamination required a "buddy system" involving a second worker.
Exxon representative, Mr. Booher, testified that their practices is to have 2 persons per glove bag (Tr. 2673). Mr. Sledge of Naval Sea Systems Command testified that two personal normally perform glove bag operations in their facilities, usually using glove bags under negative pressure (Tr. 420). OSHA agrees and believes that proper use of glove bags in removing high-risk ACM (TSI and surfacing ACM) requires at least two persons. The Agency also notes that required training of employees must cover detailed glove bag procedures. Many of the detailed work practices recommended by NIOSH are advisory, i.e. use "sprayer of sufficient length," will be covered in training, and/or are encompassed by more general requirements.
Although glove bag systems were the alternative system most discussed during the rulemaking, participants submitted data on other systems which were claimed to effectively isolate asbestos dust during removal. The Agency has reviewed the data and comment on these submissions and has listed four additional systems as permitted for Class I work under stated circumstances in paragraph (g)(5). The Agency emphasizes that the listing of any system is not an endorsement by OSHA. The listing merely indicates that various combinations of engineering controls and work practices represented by these systems, when properly carried out, and when all other provisions of these standards, e.g., training, competent person supervision, exposure assessments and respirator use where required, are found by the Agency on this record to constitute effective means of controlling employee exposure to asbestos.
Two of the systems are modifications of glove bag systems. One, a negative pressure glove bag system, was presented as an alternative by several participants. One witness stated that "the nuclear ship repair industry has used pipe containment glove bags for years * * * all of this work has been required to be performed with constant negative pressure being maintained inside the glove bag during removal operations" (Tr. 3028). A panel testifying on behalf of Union Carbide described a negative-pressure glove bag technology which they have developed (Tr. 2192 and Ex. 7-108). M. Patel, an industrial hygienist at Union Carbide, described it in his written testimony:
The glove bag system is used as follows: The glove bag is connected to the glove/hose connector. All the tools needed to remove asbestos are placed in the inner pouch of the glove bag. The bag is installed on a pipe utilizing the zipper provided at the top. The shoulder is fastened on both ends of the glove bag with tourniquets. The rest of the system is connected. The insulation is wetted with amended water using the portable garden sprayer. The asbestos is cut and falls through the open sliding gate valve and collects in the waste bag. Vacuum in the bag and in the rest of the system is adjusted to prevent collapse of the bag. When the asbestos waste collected in the bag is almost full, the sliding gate valve is closed as the vacuum in the system is slowly controlled by adjusting the splitter valve, and the bag is carefully sealed and removed. A new bag is installed and the sliding gate valve opened. When all asbestos inside the glove bag is removed, the pipe and the wall of the glove bag above the middle zipper inside the bag are rinsed with amended water. The middle zipper is closed to isolate the upper compartment while vacuum is still being pulled.
The tourniquet on either end of the glove bag is loosened and the bag is moved to the next position. The middle portion of the bag is unzipped and the work is continued Ex. 9-43).
The panel members reported that the mean value of the exposure for the modified negative-pressure glove bag was 0.02 f/cc.
In a post-hearing submission, Union Carbide submitted a large number of additional measurements from various operations supporting the relative effectiveness of their negative-pressure glove bag method of asbestos control. These data showed both glove bags and negative pressure glove bag personal exposure levels were low, and well below those for negative pressure enclosures as measured by the company.
Table II. -- Asbestos Fiber Levels During Removal Operations [Ex. 113] _______________________________________________________________________ | No. | Sample | % > 0.1 Operation | samples | type | F/CC _____________________________________|_________|____________|__________ | | | Glove bag............................| 2,280 | Area.......| 2.3 Negative-pressure enclosure..........| 1,220 | Area.......| 16.4 Glove bag............................| 2,361 | Personal...| 22.7 Negative-pressure enclosure..........| 1,001 | Personal...| 60.9 Negative-pressure glove bag..........| 90 | Area.......| 1.1 Negative-pressure glove bag..........| 80 | Personal...| 10.0(1) _____________________________________|_________|____________|________________ Footnote(1) mean of those > 0.1 f/cc = 0.21 f/cc, the overall mean = 0.046 f/cc.
Some of the exposure monitoring results showed personal samples above the new PEL of 0.1 f/cc. Union Carbide suggested, that employees performing Class I work using the modified negative pressure glove-bag, wear respiratory protection. OSHA is requiring that all employees who perform Class I work wear respirators.
Additional data on negative pressure glove bags showing effective exposure reductions was submitted by others, including NIOSH (Ex. 1-125, 1-126). "Opinion evidence" was that negative pressure glove bags, when properly used, offered an additional margin of safety over non-negative pressure glove bags (see e.g., testimony of David Kirby, Tr. 188).
Based on these data, OSHA is allowing negative pressure glove bags for Class I work, subject to similar limitations as "regular" glove bags.
Another method allowed for Class I work is the negative pressure glove box. This isolation device, is a rigid containment, unlike the glove bag, which is made of flexible material. Because it can be constructed of strong, impermeable material, common glove bag failures due to holes, leaks and collapse, would theoretically be avoided.
Mark Mazzara of SDS International Builders submitted several documents describing a negative pressure glove box, which his firm was marketing. The accompanying brochures described it as follows:
* * * system allows for the removal of ACM on pipes by creating a closed work area around the pipe section to be worked on. * * * consists of work box, together with a pressure barrier generated by the systems inherent Negative Pressure filtration system. The Work Box is a maneuverable element of sturdy metal construction that is positioned around the unit of pipe to be worked on * * * [it] is fitted with standard gloved apertures allowing for access into the closed system for the asbestos workers. At the base of the Work Box is an aperture feeding into a bagging outlet into which the liberated ACM is passed. This allows for easy bagging of the ACM and its subsequent disposal. * * * [it] is attached to a * * * negative pressure generator, that allows the creation of the pressure barrier that allows the creation of the closed system, preventing the escape of hazards materials into surrounding area (Ex. 7-98).
The submissions contained numerous sampling results indicating that low fiber levels were maintained during the use of this device. Accompanying these was a letter from the State of New Jersey in which the Division of Building and Construction (Frank J. Kuzniacki) stated that he felt that the device "provided a safe and cost effective alternative to standard glove bag removal."
The last method specifically listed for Class I use is designated the "water spray" process. In submissions to the docket and in testimony at the public hearing, representatives of Hydrous Dust Control Systems, Inc. described an alternate method of control for use in work on asbestos covered pipes which they called the Portam Process. This process relies on water spray to provide a barrier between the worker and the ACM. In written materials it was described as follows:
Engineered designed sprays are configured so as to create a liquid barrier on every plane. The spray is so designed as to throw a heavy droplet of liquid giving it both velocity and direction. On at least one of these planes * * * the heavy water droplets are forced into collision creating a very fine aerosol which is contained within liquid barriers. A water containment device is placed around the spray rails with an open access and double drain facility. A vacuum hose is connected to the drain facility creating a slight pressure differential (negative pressure), in the contained area. When water covers the drain area the pressure differential is maximized in the drain hose pulling the waste and water very rapidly to the remote interceptor. This movement creates a shock pulse which is quite visual and is reflected at the workhead. The sudden movement of air within the work zone helps to stimulated the fine aerosol droplets creating eddy current. These eddy currents promote a 360 deg. precipitation around the pipe (Ex. 1-171).
Data were presented showing that use of this system achieved consistently low exposure levels. However, the complexity of the system, and its uniqueness require, as the manufacturer recommends, additional training for effective use. Therefore OSHA is allowing this system to be used only by workers who are trained in a supplemental 40 hour training course in the specific use of this system, including at least 8 hours of which must be hands-on training. Although BCTD stated that this system possessed a high potential for exposure because it is not a sealed system, (Ex. 143, at 103), OSHA believes that the technology of the water spray system is sufficiently proven by the data submitted.
Other specific systems which do not easily fit the descriptions of the above systems were discussed during the rulemaking. Some, such as the "Lyons Trough" appear promising, however, the data submitted are too limited for OSHA to determine effectiveness in the rulemaking. Several TEM and PCM measurements were made during a "controlled demonstration" which lasted 31 minutes and during "field evaluation" of 29 minutes. The personal sample from the former was below the limit of detection by PCM, and the personal sample from the latter measured 0.002 f/cc by PCM (Ex. 135).
- Other methods appeared too limited in application to be "generically"
approved by OSHA, and/or appeared highly dependent on worker behavior to avoid failure. Such a system, devised by Tenneco, is a modified glove bag/mini-enclosure to facilitate safe removal of small amounts of asbestos fireproofing above ceiling tiles (Ex. 65 A-P). In its post-hearing brief, the BCTD objected to the use of the Tenneco device for two reasons. First, because it was held as close as possible to the ceiling and did not fit against it, they felt there was potential for fiber escape; and second, they questioned how effective it would be if one of the workers holding it up got tired and dropped it. (Ex. 143, p. 103). OSHA agrees; the device may be used therefore only as an alternative control method pursuant to the requirements for certification in paragraph (g)(6).
Mini-enclosures, the other control method allowed for Class I work is supported by a submission by BCTD which described a portable isolation enclosure developed by J. Streiter of Southern Insulation Inc. (Ex. 119, #5). OSHA notes, however, that mini-enclosures are manufactured by other companies and this rule does not limit use of the device to any particular manufacturer. In an accompanying trade paper article the portable enclosure is described as: "a cubicle with an extendable shroud that fits on top. A HEPA filtration system drew air down from the ceiling. Inside the enclosure was a suited man; opposite was a trapped door with a bag attached * * * the worker remove[d] the tile, clean[ed] off the grid and deposit[ed] everything in the bag after opening the trap door. Suction would pull the door shut. Within the enclosure was a shower attachment * * *" The submission also contained air sampling data obtained during use of this apparatus while removing ceiling tiles from a Virginia building. The results indicated that fiber levels averaged less than 0.01 f/cc. However, as pointed out by BCTD in its post-hearing brief there was failure to achieve clearance (0.01 f/cc under AHERA) in this building following use of the device which "necessitated evacuation of the work areas on several occasions." As explained elsewhere in this document, OSHA is not requiring AHERA clearance levels to be achieved for Class I work. If such requirements must be met, the employer should employ all applicable controls which in some cases may exceed those in these standards.
Class II Work
Class II asbestos work is defined as activities involving the removal of ACM or PACM which is not TSI or surfacing ACM. According to the definition, this includes, but is not limited to, the removal of asbestos-containing wallboard, floor tile and sheeting, gaskets, joint compounds, roofing felts, roofing and siding shingles, and construction mastics.
OSHA has found that the exposure potential from Class II work is generally lower than for Class I work, when removal is conducted under substantially similar conditions. Consequently, if the employer shows, that in any particular job, that well-trained and experienced workers, with an established "track record" of keeping exposures low will perform that removal, the required controls are less stringent than those required for Class I removals.
Removal of materials which are not TSI or surfacing ACM may be handled by complying with work practice and engineering control requirements for Class II in paragraph (g)(7), and the generic requirements for all asbestos work in (g)(1) of the standard. Additionally, methods allowed for Class I removals may be used for Class II work, unless the system cannot be adapted for Class II work, such as in the case of the water spray process system. Glove bags/boxes can be installed around some materials covered by the Class II designation, such as gaskets and ceiling tiles. It is OSHA's intent to allow Class I methods to be used for removing Class II materials when no modification in the apparatus is required, without special notice to OSHA.
As Class II work, removal of asbestos-containing material such as floor tiles and roofing will not be subject to quantity cut-offs for using certain control methods. This is similar to the proposal, which would have allowed these materials to be removed using mandated work practices, and exempted compliant jobs from negative pressure enclosure requirements. Under the final standard, other materials classified as "miscellaneous" by EPA such as transite panel and valves/gaskets may be removed without quantity limitation so long as Class II work practices are followed. Additionally, the standard allows all other materials (except TSI and surfacing ACM) to be removed using the generic work practices in paragraph (g)(1) which require wet methods, HEPA vacuuming and prompt waste disposal, and pursuant to additional controls in (g)(2) if the PEL may be exceeded.
Paragraphs (g)(7)(i) and (ii) establish "setting-up" requirements which apply to all removals of all Class II materials. These include the requirement that a competent person supervise the work and that where a negative exposure assessment cannot be produced or changed conditions during the job indicate elevated fiber levels, critical barriers or other isolation methods must be used or where the ACM is not removed substantially intact.
OSHA is also listing specific work practices for some kinds of Class II work which are common, such as removing flooring material or roofing material, as proposed. The generic list of work practices for all operations under this standard in paragraph (g)(1), covers most specific practices set out for each kind of removal. However, since both OSHA and participants believe that stating how each kind of material must be removed in specific terms will enhance compliance, paragraph (g)(7)(2) restates the relevant generic requirements in terms specific to each activity. For example, using wet methods for all asbestos work, unless the employer can show wet methods are infeasible, is now required, in the generic requirements, for all asbestos work [see (g)(1)]. However, wet methods encompass a range of work practices. For example, when removing material which is bound in a matrix, misting may be appropriate. Removing ACM or PACM which is not so bound, or where deterioration of the ACM has occurred, would require more aggressive wetting.
Thus, in the paragraph applying to flooring removal, the employer must mist the "snip point" used for cutting sheet flooring. For roofing removal, the blades of all powered tools must be continually misted during use. OSHA believes these more specific directions will help insure that work is done protectively.
OSHA proposed to require use of wet methods to remove sheet floor covering. RFCI guidelines state that floor tile is to be removed by prying up an edge but no mention of the use of water on the floor tile is made. The revised standards require the use of wet methods wherever feasible including operations involving the removal of all floor covering materials known or presumed to contain asbestos. P. Quirk, an asbestos consultant, recommended that "Floor tile and sheet removal must utilize wet methods for all work" (Ex. 3-34). A representative of the Resilient Floor and Decorative Covering Union expressed a similar view that "the floor should be kept adequately wet during the entire operation" (Ex. 7-37). Based on this support, OSHA has concluded that most flooring removals must be performed using wet methods when feasible and has included this requirement in the final with one exception. The exception allows floor tiles to be removed intact using heat.
Specific Work Practices for Specific Class II Operations
As discussed above, certain precautions are always required for all work under these construction and shipyard standards in paragraph (g)(1). These are HEPA equipped vacuums, wet methods, and prompt disposal of waste and debris. Additional provisions apply to the removal of all Class II material [Paragraph (g)(7)]. These are required critical barriers in designated indoor activities and dropcloths in all.
OSHA also includes more detailed work practices for specific Class II activities, such as the removal of roofing materials and resilient flooring material. Most of these requirements are more specific applications of general industrial principles for handling dust- generating materials, asbestos in particular. OSHA and many participants believe that employers are helped by specific work practice requirements so long as they do not restrict common sense accommodations to unique workplace conditions. The following discussion show the reasons for and support of OSHA's decisions for specific work practices for removal or disturbing ACM or PACM.
Flooring operations are separately discussed because of the amount of interest in these activities manifest during the rulemaking, and the prevalence of asbestos-containing flooring materials in buildings. Because of the prevalence of asbestos-containing flooring, the frequency which it is maintained and removed, and the possibility of exposure if improperly done, specific requirements for flooring are needed to reduce significant risk to the extent feasible.
Removal of asbestos containing flooring materials is a Class II asbestos job. As such, it must be performed using the operation specific controls set out in paragraph (g)(8)(i), or when called for by an "exposure assessment using "alternative" controls. Additional controls must be used if the employer does not produce a "negative exposure assessment" prior to the beginning of the job, if during the job, there is reasonable belief that a permissible exposure level will be exceeded, or if methods are used which are expected to result in flooring material breaking or otherwise removed in a non-intact state. The required controls in large part mirror those of the proposal which were based on work practice recommended by the Resilient Flooring Covering Institute (RFCI). Additional "non-aggressive" practices are allowed, in response to supporting data and to commenters such as Michael Murphy of Monsanto who asked that OSHA "* * * allow the use of other practices which achieve comparable results" (Ex. 7-125).
OSHA believes that these provisions are necessary and appropriate to reduce risk to workers who perform this type of activity. The relative level of risk of removing asbestos-containing flooring was considered in the rulemaking. OSHA has not classified asbestos containing flooring as "high risk." The degree of risk from removing these materials depends on the kind of removal activity performed, and on the condition of the material. Data relating to flooring removal show overall lower levels than TSI and surfacing ACM (see e.g., Ex. 7-100; 7-132). Thus, EPA recently included resilient floor covering, in its lowest risk category (Category I non-friable ACM). However EPA concluded that "if these materials are in poor condition and are friable or they are subjected to sanding, grinding, cutting or abrading, they are to be treated as friable asbestos materials (55 FR at 48409). The OSHA record supports these findings.
Opinions of some asbestos abatement experts familiar with a range of asbestos removal projects agreed with the basis for EPA's and OSHA's classification scheme. Marshall Marcus stated that flooring removals, when well conducted are likely to involve lower exposures than removals of other types of interior asbestos containing materials; whereas Mary Finn emphasized that removing of flooring tile, because it cannot be saturated easily, may, when aggressively removed, result in significant exposures (see testimony of Marshall Marcus, Tr. 3794 and Mary Finn Tr. 3765).
OSHA's approach of requiring those removal methods which are unlikely to elevate exposures was challenged by participants who contended that methods for removing flooring cannot be determined at the beginning of the project. This might occur when employees discover during the project that flooring is resistant to removal. This may be difficult to predict in advance, as pointed out by BCTD (Ex. 143 at 155, citing testimony of asbestos contractor and consultant Marshall Marcus, Tr. 3794 and others). OSHA acknowledges that such difficulties may occur. However, as pointed out by Mary Finn, many of the variables contributing to exposures are available for consideration at the inception of the project; "* * * the predictability of how aggressive one must remove floor tile varies from job to job depending on the age of the particular materials, depending on the wear that it's undergone and depending on the techniques that the particular contractor and his workers might use" (Tr. 3744).
Also, OSHA notes that much of the project data submitted show consistency in practices over the entire project. In cases where more aggressive methods are resorted to mid-job, OSHA requires a "mid-course correction:" a re-evaluation of the exposure potential by the competent person, and the installation of additional controls if the projection is that the exposures will exceed the PEL.
Most "aggressive" techniques, such as "shot-blasting" may be used only after an evaluation showed that less aggressive methods are not feasible. Even if the evaluation of the "aggressive" method shows exposures will be below the PEL, the employees must still install critical barriers or otherwise isolate the removal operation [paragraph (g)(4)(i)(B)(2)], and employees must wear respirators. This is required regardless of when such "aggressive" methods were used, at the inception, or mid-way into a removal job.
Specific "non-aggressive" control methods are allowed and preferred for removing flooring materials (tile, sheet, and mastics) which contain asbestos and those materials for which the employer/building owner has not verified the absence of asbestos. The controls are "non-aggressive" work practices, and include the practices which under OSHA's proposal would have allowed an exemption from the requirement to erect a negative pressure enclosure for flooring material removal (see 55 FR at 29719).
OSHA did not propose to require employers to assume that vinyl or asphalt tile or resilient flooring was asbestos containing, although the RFCI recommended that such an assumption be made. OSHA asked for comments on this issue.
Several industrial hygienists agreed that the recommendation should be followed. For example, David Kirby, industrial hygienist, Oak Ridge National Laboratory, testified that an ongoing survey of ORNL facilities showed that "90 percent of our floor tile either contained asbestos or the mastic material that's used to attach them to the floors contained asbestos." Mr. Kirby recommended that it's "prudent to * * * assume that all floor tile materials contain asbestos, unless you can prove the contrary * * *" (Tr. 124-125). According to Mr. Kirby, negating the presence of asbestos content in flooring material entails a complex and expensive process; "taking those materials, having them ashed, using high temperature ashing techniques, and then the residue could be analyzed by transmission electron microscopy." Other evidence in the record indicated the prevalence of asbestos containing flooring material. An EPA 1988 survey, cited in the HEI report, reported that 42% of public and commercial buildings within the U.S. contain asbestos containing floor tile (Ex. 1-344).
A review of the comments and evidence demonstrates that there is a high degree of prevalence of asbestos-containing flooring and that there are diagnostic difficulties in identifying asbestos fibers in flooring material. Consequently, OSHA is changing its approach and the final standard provides that the employers shall assume in removing flooring that it contains asbestos and take the specific precautions unless the employer demonstrates that the flooring materials are not asbestos-containing. Such a showing must be based on analysis which is likely to reveal the asbestos content of the flooring material, the backing and the mastic. No one protocol for analysis is specified, but the standard requires that a certified industrial hygienist (CIH) or project designer certify the analytical results.
OSHA believes that the final standard's provisions relating to flooring removal are more comprehensive and protective than the proposal's. There, an exemption for flooring removals from the NPE requirement was conditioned merely on compliance with certain work practices recommended by the Resilient Floor Covering Institute (RFCI). These practices included a prohibition of sanding of floor or backing, use of a HEPA vacuum cleaner before and after removal, prohibition of dry sweeping, application of new material over old tiles without removal if possible, wet removal of residual felt, and bagging and disposal of waste in 6 mil plastic containers. The new final provisions allow removal to be performed by these methods, but also allow various heating methods to be used, or any other means of loosening floor tiles, without breakage. Unlike the proposal, an employer cannot proceed without negative air or critical barriers, merely using non-aggressive work practices and wet methods, unless his pre-job evaluation shows that similar floor removals (in the same building or of the same materials and mastics) were successfully completed by work crews with adequate training and experience in working under these conditions.
OSHA noted in the proposal that data provided by RFCI showed that where jobs followed their recommended practices, mean exposures to workers were between 0.0045 and 0.03 f/cc for workers performing floor tile removal, removal of resilient sheet flooring, or removal of cutback adhesive. During the rulemaking, additional data were submitted showing exposure levels during flooring removals. David Kirby, OSHA witness from Oak Ridge National Laboratory (ORNL) said that he has used the RFCI work practices successfully, maintaining personal sampling fiber levels at an average of 0.0075 f/cc (range 0.001 to 0.029) (Tr. 99). When asked what additional precautions were taken at his facilities during these operations, he replied that "we do use regulated areas in the sense that we don't allow anyone in the area as we're doing the work, and we also require workers to wear respiratory protection as they're doing this activity, but yet we don't feel like there is * * * a need for negative pressure enclosures." (Tr. 124). BCTD, in its post-hearing brief argued that the RFCI methods specifically, and "non-aggressive" flooring removal methods generally, do not always result in exposure levels which are acceptable (Ex. 143). It cited various studies or project results submitted to the record. Some of these results were given in terms of structures per square centimeter, a convention of TEM. For example, Richard Kelly of Lawrence Livermore National Laboratory objected to allowing the use of RFCI methods to control asbestos exposure during removal of asbestos containing mastic (Ex. 11, #22). He reported that during removals in which only the mastic contained asbestos, he had measured (by TEM) fiber levels of 33 s/cc during dry power chipping of VAT and 0.9 s/cc during wet hand removal in what he called a "real-world application of the RFCI procedures." He noted that the floor was not pre-vacuumed nor was a heat gun used as described in the recommended practices. Under its AHERA rule, EPA defines "structure" as a microscopic bundle, cluster, fiber or matrix which may contain asbestos. OSHA notes that such structures may be smaller and/or thinner than the asbestos fibers required to be counted under the OSHA reference method. A general summary of the results of these studies shows that most of the exposure levels were below the proposed PELs when measured using the OSHA reference method (e. g., Gobbell, 1991, exposure range, 0.01 to 0.035: AT &T, 1990, non-detected to 0.019).
Some other studies of floor removals entered into the record showed higher exposure levels of "structures" as detected by TEM, and defined by EPA. As noted above, counts of structures are not comparable to fiber counts, and OSHA believes that most "structure" counts result in significantly higher fiber counts than would be counted by PCM.
A related issue is whether flooring material should be analyzed by TEM, rather than by PCM. As pointed out by BCTD and other participants, floor tile tends to generate smaller fibers which often cannot be detected under PCM; and TEM detects these shorter asbestos fibers (and the thinner asbestos fibers, which PCM cannot distinguish [Ex. 143, p. 147 citing Tr. 3468; Tr 3751, Tr. 3279, Tr. 473-474]. In the 1986 rulemaking OSHA considered the issue of the relative toxicity of short asbestos fibers, which were not required to be counted under the OSHA definition of "fiber." Then, the Agency stated that "* * * animal studies * * * in particular the recent work by Dr. Davis, point to a clear relationship between fiber dimension and disease potential. The finding in these studies that thin fibers, (having an aspect ratio of at least 3:1) greater than 5 um in length are associated with elevated incidence of cancer and lung fibrosis is also consistent with current knowledge regarding lung clearance mechanisms, i.e., that shorter fibers are easily phagocytized and removed from lung tissue" (51 FR at 22613). Dosages used in OSHA's risk assessment extrapolated from studies of human exposure, attempted to transform or reconstruct fiber counts to correlate with fiber counts using current conventions of counting fibers only longer than 5 um, using PCM. Similar to the conclusions reached by OSHA in the preamble to its 1986 asbestos rule, the HEI report of 1991 found that "experimental results described in this review indicate that short fiber preparations have a lower toxicity than long fiber preparations, but do not exclude their contribution to the lesions caused by the smaller number of long fibers in the tail of the fiber length distribution * * * individual fibers shorter than approximately 5 um appear to possess much less toxicity than those longer than 5 um" (Ex. 1-344, p. 6-76).
The HEI Report also noted that the exposure-response relationship reported in the literature which served as the basis for estimation of risk had exposure expressed in terms of fibers greater than 5 um in length (Ex. 1-344). These aspects of OSHA's risk assessment, and counting protocols were not challenged in the litigation following the 1986 rules, therefore were not remanded to OSHA for reconsideration in the Court of Appeal's 1988 decision. The only study submitted in its entirety, (see Freed et al, Ex. 143 at Att. B), is of limited relevance; it is a case study, which was undertaken to show that asbestos fiber may produce DIP (desquamative interstitial pneumonia) as well as asbestosis. The authors note that "although over 90% of the 820 million fibers of wet lung tissue were 3 um or less in length, sufficient numbers of fibers greater than 5 um in length were present, which could also account for the tissue response" (Ex. 143, Att B at 332). Resolution of whether short or long fibers are counted is not necessary for the purposes of this revised standard, because OSHA finds that work practices and controls are needed when working on floors regardless of the measurement method used. OSHA does not change its conclusion and retains the provisions that airborne asbestos measurements taken during flooring operations shall use the same methodology as in the 1986 standard.
The Agency's analysis of data submitted showing exposure levels during flooring removal, shows a general correlation between lower levels and "non-aggressive" methods, and higher levels and "aggressive methods." For example, Mary Finn of Chart Services, an asbestos consulting company, testified that "if breakage is minimized, obviously exposures are going to go down" (Tr. 3765). Ms. Finn submitted area sampling data from flooring removal operations which had a mean of 0.056 f/cc as an 8-hour time-weighted average (Ex. 9-18). She also presented data on area TEM counts taken during four operations involving drilling through VAT -- the mean for the four samples was 0.3 structures/cc (2 samples were below the limit of detection and one value was 1.01 f/cc), while all four samples were below the limit of detection when measured by PCM. BCTD cited various studies showing high fiber levels during flooring removal (Ex. 143 at 151-153). One, the Cook data, showed some high short term levels on one job, it was unclear what work practices were used, other jobs done by the same firm showed exposure values less than the PELs (see Ex. 35 and 119S). The Rosby data showed short term data which were well within the PEL excursion limit (Ex. 119 U). Other data pointed to by BCTD as indicating the unreliability of exposure reductions using non-aggressive methods, merely shows that EPA clearance levels were not achieved (Ex. 7-132), that exceedances were possible (Ex. 7-137 [it is noted that an exposure of .11 f/cc is considered in compliance with OSHA's PEL, and that TEM fiber counts were elevated (Ex. 119T)].
In addition to the Environ data contracted for and submitted by RFCI and Armstrong, which was interpreted differently by the submitter and by BCTD, these and other interested parties submitted additional data showing exposure levels during various kinds of asbestos-containing flooring removal. Low exposure levels were obtained in a New York State Department of Health Study, for floor tile removal using automated infrared heating, (followed by hand scraping)(see Ex. 7-100). As noted above, OSHA is allowing removal to be performed using heat, so long as tiles are not broken during the removal process. Under contract with EPA, PEI Associates performed a study which was described in a report entitled "Evaluation of Tile and Mastic Removal at Fort Sill" (Ex. 1-330). TEM was used to measure fiber levels resulting from use of several different methods to remove tile and/or mastic. They found that "airborne asbestos levels averaged 0.135 structures per cubic centimeter (s/cc) during dry tile removal, 0.066 s/cc during wet tile removal, 0.247 s/cc during removal of mastic using citric acid and towels and 0.326 s/cc during sand machine mastic removals. No PCM measurements were presented, and the proportion of the TEM-measured fibers exceeding 5 um in length was not reported.
The question of whether a negative pressure enclosure should be required for floor tile removal, was considered during the rulemaking. Some participants, including asbestos abatement consultant, Marshall Marcus recommended negative pressure enclosures as a matter of course for asbestos containing flooring removal (See e.g., Tr. 3796 and Ex. 7-37, 7-92). OSHA notes that its final rule now requires bystander protection, when excessive exposure levels are measured or expected. The questionable benefits to flooring removal employees of working within a enclosure are discussed in the general discussion on NPEs in this preamble. OSHA also notes that some exposure data submitted concerning flooring removal exposure levels, contained relatively high exposures for work within enclosures (see e.g., Ex. 7-134A) and that removing flooring using dry ice in a negative pressure enclosure can result in toxic buildups within the enclosure (see Tr. 202). Therefore OSHA is not generally requiring flooring removal to be done within NPEs. However, where flooring material is removed using "aggressive methods," higher fiber levels have been reported, at least as measured by TEM (see Ex 11, #22 and 9-18). The Agency concludes that the use of aggressive floor removal techniques in which the material is not removed intact, such as mechanical chipping of floor tile and shot-blast removal of mastic, are likely to result in the release of larger amounts of fibers and must be performed within negative-pressure enclosures or the equivalent. EPA has concluded similarly:
Removal of VAT (or other known or assumed ACM flooring or its adhesive) which involves sanding, grinding, mechanical chipping, drilling, cutting or abrading the material has a high probability of rendering the material friable and capable of releasing asbestos fibers. Therefore, removal projects which employ any of these techniques (other than small-scale-short-duration) must be conducted as response actions, including use of a project designer, accredited persons, and air clearance (55 FR 48409).
In response to concerns that the RFCI work practices will not be followed, it should be pointed out that the alternate to their use is full enclosure of the operation which is likely to be considered more burdensome than the work practices.
Removal of transite panels is considered a Class II activity in this revised standard. As such, they are required to be removed using certain practices and controls. These are: the intact removal of transite panels; the use of wet methods followed by wrapping of the panels in plastic; and the lowering of panels to the ground without breakage. These provisions are in essence the same one proposed by OSHA in 1990 when allowing an exemption from the NPE requirements. The 1990 proposal presented the comments of OSHA field personnel which suggested that removal of transite panels, without regard to quantity, should be exempt from the negative-pressure enclosure requirement as long as the transite is removed without cutting or otherwise abrading the material (Ex. 1-59). This suggestion was supported by numerous participants (Ex. 7-6, 7-9, 7-23, 7-42, 7-43, 7-47, 7-52, 7-62, 7-63, 7-74, 7-79, 7-86, 7-95, 7-99, 7-103, 7-106, 7-108, 7-111, 7-112, 7-125, 7-128, 7-134, 7-144, 7-146, 7-140).
Additional work practices such as wrapping panels and lowering them intact, were suggested in this proceeding and are incorporated in the revised standards [see comments of Robert Welch of Columbia Gas System who recommended wrapping intact transite panels in sheeting and lowering them intact to the ground avoiding breakage (Ex. 7-23); and, comments of Edward Karpetian of the Los Angeles Department of Power and Water, who recommended that in addition, the material be HEPA vacuumed and wrapped (Ex. 7-42)]. As noted in prior discussion of the general provisions covering construction activities, negative pressure enclosures are not required for Class II activities, unless they are performed along with a Class I activity for which an NPE is required.
The rulemaking record contains strong evidence showing low exposures resulting from transite panel removal when appropriate work practices are followed. The submission of the American Paper Institute and the National Forest Products Association contained sampling data taken during the removal of transite panels from paper machine hoods (Ex. 7-74). Wet methods were used and the area was regulated. Personal and area samples were well below 0.1 f/cc, with the 23 personal samples having an average of 0.012 f/cc (not time-weighted). Rose Simpson of Lubrizol stated that "area monitoring samples taken during transite removal operations at our facilities indicate exposure levels well below the current 0.2 f/cc and the proposed 0.1 f/cc limits" (Ex. 7-86). OSHA witness David Kirby of Oak Ridge National Laboratory stated in his comments that personal air monitoring during transite panel removal resulted in average fiber level of 0.008 f/cc (8 hr. TWA) (Ex. 7-111). And in a post-hearing submission (Ex. 105), he presented the fiber levels (measured by PCM) generated during non-enclosed transite removal performed wet at ORNL, which ranged from < 0.031 to < 0.082 f/cc (mean = 0.058 f/cc) (see also Ex. 140, where the Dow Chemical Company claimed transite removal real time levels did not exceed 0.07 f/c).
As described above, most data show that if performed intact, transite removal will result in exposures well below the PELs. Some evidence, however, was presented showing exceedances. Paul Heffernan of Kaselaan & D'Angelo Associates, Inc. stated:
* * * removal of transite panels which are not cut or broken should not be generically allowed. Many transite panels used in interior wall construction consist of very rough inner surfaces from which asbestos fiber is readily released into the air. Kaselaan & D'Angelo Associates has monitored the removal of 18" by 36" transite panels which were held in place with screws. The transite panels were removed intact by removing the screws and lifting the relatively small panels to the floor where they were placed in boxes. The exposed surface of each panel was first wet with amended water before removing the screws. The job was performed within negative pressure containment. Airborne fiber levels exceeding 1.0 f/cc were measured. Transite panel removal has potential for fiber release even when the panels are not broken (Ex. 7-36).
As noted above in the flooring material discussion, OSHA is requiring job by job evaluation of each Class II job, including transite panel removal projects, by a competent person, as part of the requirements to perform an initial exposure assessment. As detailed above, the data submitted to the record show that transite panel removal without cutting usually results in very low exposure levels. Building and facility records of past removals of similar material will alert on-site competent persons to the exposure potential of the panels in their facilities. For rare cases, when the evaluation of material, condition, crew and past exposure data do not support a "negative exposure assessment," (i.e., that excessive exposures may be expected), additional precautions are required by the standard, including critical barriers, and respirator use.
OSHA believes that these provisions will protect employees against significant exposures, are feasible, and are supported by the record. In particular OSHA finds that quantity limitations on transite panel removal would not tend to reduce risk, and in some cases may increase fiber levels. For example, Richard Olson of Dow Co. pointed out that if transite panel removal were to be exempted from the negative pressure enclosure requirement and the cutoff remained at 9 square feet as proposed, it would be necessary to cut nearly every piece of material removed or always use a negative-pressure enclosure (Ex. 7-103).
Cementitious Asbestos-Containing Siding (CACS)
The removal of cementitious asbestos-containing siding is a Class II activity. OSHA is requiring the same work practices for shingle removal as for transite panel removal. OSHA did not propose specific work practices for removal of CACS, either to exempt this activity from the negative pressure enclosure requirement or to qualify as a SSSD activity. However, many participants representing a wide spectrum of interests, including states, federal agencies, and asbestos industry organizations, recommended that OSHA exempt CACS removal from the requirement to establish negative-pressure enclosures; (See e.g. asbestos coordinator for Florida (Ex. 7-6); Navy Office of Chief of Operations (Ex. 7-52); Asbestos Information Association/North America (Ex. 7-120); New York City Department of Environmental Protection (Ex. 126); and, The Army Corps of Engineers who also submitted the data from a study of fiber levels generated during CACS removals Ex. 1-307).
In the Army Corps of Engineers' study cited above, three mechanical CACS asbestos removal methods and the manual method were evaluated by monitoring during removal of the siding. The three methods were: 1) super wet: the siding was thoroughly wetted with water on the outfacing and back side; 2) mist: a measured amount of water was applied to the outfacing side of the siding only; and, 3) encapsulation: an EPA-approved commercially available encapsulant was applied at or above the recommended application rate. These removals took place inside enclosures and the hand method was also evaluated. Samples were measured using TEM and results of area samples indicated all were less than 0.005 or below the limit of detection. Two personal samples taken "while removing cement-asbestos siding shingles from Building 523" yielded 8 hour time-weighted averages of 0.008 and 0.012 f/cc.
Other data show low exposures during CACS removal. One where approximately 110,000 square feet, in total of CACS were moved from 43 college campus dormitory buildings prior to demolition. The average bulk analysis of the CACS was 17%. No outdoor area samples were higher than 0.01 f/cc by PCM for the duration of the project. The 80 personal samples collected during the project had an arithmetic average of 0.049 f/cc with a standard deviation of 0.041. The geometric mean was 0.04 f/cc with not TEM data available (Ex. 7-132A). The study authors concluded that "CACS removal, even though outside where dilution is assumed significant, should be done carefully, using as a minimum the abatement techniques described in this paper." These included wetting, dropcloths, and a 20-foot wide regulated area. OSHA agrees and believes that the methods required by the standard will reduce risk significantly for exposed workers.
Results of this study and others show that CACS removal can be performed using work practices which minimize exposure to workers and that containment in NPEs is neither necessary or appropriate in most cases to protect the workers performing the removals or working nearby. However, it is clear that Class II work practices are necessary to keep exposures low.
OSHA has coupled CACS removal with transite panel removal in the regulatory provisions establishing mandatory work practices for the removal of these materials.
The final construction standard classifies removal of roofing material which contains asbestos as a Class II operation. As such, specific exposure assessment and work practices must be performed. The record shows that these work practices can be feasibly implemented and are necessary to effectively reduce airborne asbestos levels from roofing removal projects. They consist of continual misting of cutting machines during use, keeping roofing materials intact during removal, using wet methods, immediately lowering unwrapped or unbagged roofing material to a covered receptacle using a dust-tight chute, or immediately wrapping roofing material in plastic sheeting, and lowering it to the ground by the end of the work shift.
In addition, unless the employer can demonstrate that it is not feasible, the roof level heating and ventilation air intake and discharge sources must be isolated, HEPA filtered, or extended beyond the regulated area, or mechanical systems must be shut down and vents sealed with 6 mil plastic. OSHA has taken into account concerns that isolating air intakes may cause heat build-up in the building (Ex. 7-7). As for all Class II work, respirators must be worn if material cannot be removed in an intact state, or if wet methods are not used. In addition, regulated areas must be established pursuant to the provisions of paragraph (e).
These provisions are similar to the conditions proposed by OSHA which would have allowed an exemption from the proposed negative pressure enclosure requirement providing implementation of specific control methods which would have applied to all non-exempt removal jobs. In the proposal, the Agency stated that it did not believe that requiring use of negative pressure enclosures on roofs would result in more than a de minimis benefit to workers removing roofing or to other employees in their vicinity. That the safety hazards which might be imposed by their use on roofs would outweigh the benefits (55 FR at 29719). The Agency proposed that employers engaged in roofing operations take additional steps to reduce employee exposure to asbestos. These steps included use of dust-tight chutes to lower debris from the roof to the ground, or immediate bagging and lowering of debris rather than dumping it from a height. Wetting would also be required where feasible to reduce contamination. The Agency felt that these measures had been shown to be effective in reducing employee and bystander exposures during roofing operations.
There was general support for the exemption of roofing operations from the NPE requirement (Ex. 7-1, 7-12, 7927, 7-36, 7-39, 7-43, 7-52, 7-95). BCTD acknowledged that negative-pressure enclosures are infeasible for most roofing operations. OSHA also believes that categorizing roofing removals as Class II work is well supported by the record. Some data show exceedances of the new PEL in roofing operations (see Ex. 9-34 QQ, cited by BCTD, Ex. 143 at 135). Other data show roofing removals, where proper work practices are followed, generate low exposure levels, e.g., data submitted by NCRA, collected by SRI shows many exposures were below the revised PEL, most jobs used wet methods (Ex. 9-31A).
A health survey submitted by the BCTD showed asbestos related diseases and deaths among roofers in the period from 1976-1989 (Ex. 119 QQ). That study is evidence that proper protective practices are necessary to protect workers. However, diseases resulted from past exposures both removing and installing asbestos-containing roofing without protective requirements and do not necessarily predict worker health from lower exposures resulting primarily from removal work performed more protectively.
In addition participants supported required work practices (see Ex. 7-120, 7-132, 7-36). BCTD preferred adoption by OSHA of the recommendations made by the labor representatives of ACCSH which are more rigorous than the work practices proposed by OSHA. The additional practices would include: establishing the entire roof as a regulated area; cutting or removing ACM using hand methods whenever possible; equipping all powered tools with a HEPA vacuum system or a misting device; HEPA vacuuming all loose dust left by the sawing operation; and, isolating all roof-level air intake and discharge sources, or shutting down all mechanical systems and sealing off all outside vents using two layers of 6 mil polyethylene (Ex. 34). As noted above, OSHA has adopted most of these additional work practices in the final regulations. OSHA is not requiring the entire roof to be designated as a regulated area: the portion to be removed may be a small part of the entire roof. The regulated area should encompass that portion of the roof where dust and debris from the removal is likely to accumulate.
One issue concerning required controls is whether OSHA should prohibit power cutting on roofing materials containing asbestos. Information in the record is inconclusive on whether power cutting usually results in higher exposure levels than hand cutting. A representative of the National Roofing Contractors Association (NRCA) testified that "we're finding extremely low readings (on the power cutter); * * * it appears to us that the cutting of the material seals the edges because of the heat of the blade of the cutter, mixing with the asphalt" (Tr. 2427). Other data were submitted to show that power cutting elevates asbestos fiber levels compared to hand cutting; however OSHA believes that some of these conclusions may overstate the results of limited experimentation. For example, one study was presented as suggesting that power cutting elevated fiber levels over hand cutting (Ex 1-357). OSHA regards this study as not definitive. The differences in fiber levels in the breathing zones of workers were only marginally statistically significant, and there was another variable in the study's protocol which may have effected the outcome. OSHA recognizes the bound nature of the asbestos in most roofing materials, however, it also understands the physical principles involved in cutting of these materials and that such actions release fibers.
Because of this mixed record, OSHA concludes that no prohibition of power cutting is called for as long as the other specified precautions including misting are carefully followed. The standard allows power cutting, but also requires that sections of roofing material shall be cut into the largest pieces which can be feasibly handled for disposal pursuant to the standard. Requiring misting of power tools in all situations except where a competent person determines that misting may decrease safety is expected to help reduce exposure levels from power cutting.
The general requirement that all asbestos work be performed wet, unless the employer can demonstrate lack of feasibility applies to roofing operations. A discussion of this provision is found above in the discussion on paragraph (g)(1)(i)(B). As noted there, "flooding" is not required; "misting" of cut areas is sufficient to control dust.
OSHA believes that these precautions are necessary to protect employees who remove roofing materials against elevated exposures in normal circumstances. The record shows, however, that elevated exposures may occur where damaged or friable roofing material is removed. [See SRI report, recommending the use of respirators where roofing material is "uncharacterized and aged" (Ex. 9-31A at 20)]. Under such circumstances, the competent person's determination must be that the normal precautions are not sufficient. Steven Phillips, counsel to the NCRA agreed: "(w)hen you're working with uncharacterized and aged roofing materials, that is * * * where you have no idea what the exposures may be because you have no historical data; you haven't worked with that particular material; * * * (there are) the normal OSHA requirements of doing initial job site monitoring and having respirators until you have good, reliable, job site monitoring" (Tr. 2463). In such atypical circumstances, additional precautions, including respirator use and more extensive wetting, will be necessary. NRCA's objection to the routine use of respirators on roofing jobs, as recommended by BCTD, was based on its view that respirator use on roofs often compromises worker safety, because respirators reduce "downward visibility" of the wearer (Tr. 2463). OSHA agrees that in some roofing conditions, limitations from wearing respirators might occur. When respirator use is necessary because of the condition of the roofing material, but respirators cannot be safely worn because of great heat, cold, or high winds, etc., such roofing jobs shall not be performed until they can be done safely. The Agency has concluded that "routine" respirator use is not required, because as discussed above the required work practices will keep exposures low in normal circumstances; but where historic data, experience of the crew, or the condition of the roof indicate the possibility of higher exposures, then respirator use is required.
Various studies which were submitted support OSHA's classification of roofing removal as a Class II activity. They show that most measured exposures are lower than many studies showing removal of Class I materials; but still may be significant. In most cases levels below the new PELs can be routinely expected with minimum controls.
SRI evaluated air monitoring reports from 79 roofing removal operations, 560 personal and 353 area samples (Ex. 9-31). All samples, except 24 were well below the new PEL of 0.1 f/cc. Fourteen samples were collected for 30 minutes or less (and were below the excursion limit). When the remaining sample measurements were calculated as 8 hour time-weighted averages, they also did not exceed the PEL. The remaining samples did not exceed 0.1 f/cc. The contractors concluded, "there appears to be no pressing need for air monitoring at the start of each job, negative pressure enclosures, or wetting. However the use of half-mask respirators is recommended until the source of the fibers in the few samples where concentrations were above 0.1 f/cc can be defined." They added that "exposure to asbestos should be minimized until more (or better) information is available; the use of respirators seems a prudent compromise when working with uncharacterized and aged roofing materials."
The submission of Preston Quirk of Gobbell Hays Partners, Inc. included a study entitled "Airborne Levels During Non-Friable Asbestos-Containing Material (ACM) Removal" which was presented at the 1990 meeting of the National Asbestos Council (Ex. 7-133a). One section of this study presented the sampling measurements taken during removal of asbestos-containing roofing felt and flashing using a wet prying and peeling technique with no enclosure. Five area samples averaged 0.007 f/cc by PCM and 0.008 s/cm3 by TEM. Five personal samples averaged 0.024 f/cc by PCM and 0.304 f/cc by TEM. It was reported that the personal TEM samples had 0.124 s/cm3 of structure greater than or equal to 5 um.
BCTD submitted a study by D. Hogue and K. Rhodes entitled "Evaluation of Asbestos Fiber Release from Built-up Roof Removal Projects" (Ex. 34, VV) in which roofing operations were monitored using both PCM and TEM methods of measurement. The authors stressed the "non-scientific" nature of the study and noted that they had measured only a limited number of samples. They described a project involving removal of a 15% asbestos roof from a hospital in which a several control methods were used. Area samples were taken at "high," "medium," and "low" locations and most were measured using the PCM method. During mechanical removal, the arithmetic mean concentration was 0.16 f/cc (not time-weighted); and during manual removal the average was 0.1 f/cc (non-weighted). Personal samples were measured only by TEM and the 3 taken during manual removal averaged 0.11 f/cc (also not weighted). In another section of this report the authors describe a "Controlled removal of asbestos containing built-up roofing materials without containment with engineering and work practice controls and extensive sampling and analysis by transmission electron microscopy," however, the specific engineering and work practice controls employed are not described. Nonetheless, the resulting measurements, both PCM and TEM, are well below the PEL except one sample in which the TEM concentration was 0.1 s/cc.
NIOSH described an evaluation of airborne asbestos fibers during the tear-off of an old asbestos shingle roof from a residential building (HETA 84-321-1590, Ex. 44). Seventeen personal breathing-zone samples were collected for approximately two hours. For 5 tear-off workers the fiber concentrations ranged from 0.04 to 0.16 f/cc, arithmetic mean 0.09 f/cc; for two clean-up workers the fiber concentrations ranged from 0.13 to 0.16 f/cc, arithmetic mean 0.14 f/cc; and, for the 5 workers applying new shingles the concentration ranged from 0.03 to 0.08 f/cc with a mean of 0.05 f/cc. In this evaluation, NIOSH concluded that there was a hazard from exposure to airborne asbestos fibers during the tear-off of an asbestos shingle roof and recommended several practices to reduce worker exposure.
OSHA notes that in some cases, the author of the above studies recommend more rigorous controls than the final standards require. Largely, this was based on evaluations of roofing removal exposure potential based on small numbers of TEM measurements. As stated elsewhere in this document, OSHA has based its risk assessment, and relative exposure profiles on the results of many studies which relied on PCM values. OSHA considered TEM in the 1986 standard and concluded that it was quite expensive and not fully validated. More importantly, OSHA believes that the roofing studies submitted show the relatively low levels of asbestos fibers emitted during removal work when proper controls are used. The small number of exceedances which occurred reflect poor work practices and "uncharacterized and aged material."
The purpose of the regulated area in the asbestos standards is to prevent asbestos contamination of other parts of the workplace and to limit exposure to only those specially trained employees who need to work in the area. While OSHA does not want to shut down the entire building when asbestos work is done on the roof, asbestos entering the ventilation system during roofing work is clearly unacceptable. OSHA expects good judgment to be used by the competent person in striving to achieve the intent of the standard. OSHA requires that roof level heating and ventilation air intake sources must be isolated. The employer would also have the option to shut down the ventilation system and seal it with plastic. Only necessary work should be done on the roof while asbestos materials are being removed, and the locations of the work should be selected to minimize exposures, such as upwind of the asbestos work. OSHA agrees that the 20 foot barrier approach recommended by Mr. Collins (Ex. 7-52) has merit, but believes the exact determination should be made on site, and could vary depending upon working conditions.
OSHA concludes that removal of roofing material containing asbestos requires the use of controls to reduce significant risk. Simple procedures will reduce exposure levels substantially and, for the most part, will reduce levels below the PELs. OSHA believes that it is appropriate to require specification work practices for removal of asbestos-containing roofing material, regardless of measure exposure levels. As discussed above, these controls were recommended by rulemaking participants, although there was some disagreement regarding the need for some of the controls.
The final standard requires the use of wet methods and continuously misting cutting machines during use and loose dust left by the sawing operation is to be HEPA vacuumed immediately. Some commenters were concerned that water could create safety hazards, so the standard reflects that the competent person could determine that misting the cutting machine, or other wet methods, should not be used. If wet methods are not used the respiratory protection provision of this standard, paragraph (h) requires that respirators be used regardless of exposure level. This provision is based upon OSHA's finding that dry disturbance or removal of asbestos containing material has large potential to expose workers and is in accordance with that of EPA NESHAP. Other controls include removing the roofing material in an intact state to the extent feasible, immediately lower unbagged or unwrapped roofing material to the ground via dust-tight chute, crane or hoist, or wrapping the roofing material in plastic sheeting and lowering it to the ground, transferring materials immediately to a closed receptacle in a manner so as to preclude the dispersion of dust, and sealing off air intakes to the building prior to doing any roofing removal.
OSHA concludes from the studies that exposures can go over the PEL and create significant risk in circumstances when appropriate precautions are not take. Consequently, they support OSHA requirement for some specific work practices in all circumstances.
Methods of Compliance for Class III Asbestos Work
The newly revised construction and shipyard employment standards continue to regulate exposure to employees engaged in repairing and maintaining building components which contain previously installed asbestos containing material. In the 1986 construction standard, most of these jobs were called "small-scale, short-duration operations," but, as discussed above, OSHA was instructed by the Court of Appeals to clarify the cut-offs for that designation. Now, OSHA has determined that separate regulatory treatment of repair and maintenance operations will not be limited by arbitrary duration and amount-of-material-disturbed criteria. Instead, they are called "Class III operations," and are defined as "repair and maintenance operations which may involve intentional disturbance of ACM, including PACM" (see Green Book, Ex. 1-183). The major difference between the newly revised repair and maintenance definitions, is that the amount of material and/or the time the operation takes are no longer the criteria for inclusion in the class.
The revised and expanded definitions of the various terms in the Category III definition enhance its clarity. Since Category III includes maintenance, repair, some renovation and other operations which disturb ACM, and PACM, a definition of "disturb" is provided. Although "removal" activities are designated Category I or II, the incidental cutting away of small amounts of ACM or PACM to access mechanical or structural components for repair or maintenance, is considered Category III.
Examples of work which are considered Category III are contained in various studies submitted by participants to prove or disprove how risky asbestos disturbing repair and maintenance work is. OSHA has evaluated the data from a number of sources to estimate the degree of exposure of workers to previously installed asbestos building material during various types of activities. Most studies showed lower levels of exposure than Category I and II work. For example, the Safe Building Alliance submitted a study by its consultant Price (Ex. 151). He compiled sampling data from numerous sources including OSHA compliance data, and obtained questionnaire information from building owners. The questionnaires solicited information on the frequency and duration of specific activities. These activities included, maintenance/repair of boilers, air handling units, heat exchangers, tanks; repair/replacement of pipe insulation including removal of small amounts of ACM; and, valve or gasket replacement, of activities above suspended ceilings such as connections and/or extensions for telecommunication/computer networks; adjustment/repair of HVAC systems; and, testing/cleaning/replacing smoker or heat detectors. The final activities which may result in ACM contact such as repairing/replacing lighting fixtures and replacing ceiling tiles. The data were used to calculate potential exposure hours (PEH) which is the product of the annual frequency of an activity and the duration of that activity in hours. For all activities in all buildings in the data set, Price calculated a PEH of 91 hours per year and a PEH per worker of 19 hours per year per worker. Eight-hour time weighted averages were also reported as presented in Table III.
Table III. -- Asbestos Fiber Levels During Maintenance Activities [Ex. 151] _______________________________________________________________________ | 8-hour | Median | PEH/ Location of activity | TWA | PEH | worker _______________________________________|__________|________|___________ | | | Above ceilings.........................| 0.029 | 13 | 5 In utility spaces......................| 0.031 | 13 | 2 Other..................................| 0.018 | 6 | < 1 OSHA data..............................| 0.027 | ... | .... All activities.........................| ....... | 74 | 19 _______________________________________|__________|________|___________
Price concluded that small-scale, short duration activities take up a relatively small proportion of a typical worker's time in that in 80% of the buildings he studied, less than 22% of total time is spent on these activities in a year, and that "on a per worker basis, in 80 percent of the buildings the number of potential exposure hours total slightly less than 4 percent of a work year" (Ex. 151, Appendix A, p. 12).
OSHA notes that BCTD objected to various aspects of the Price study in its post-hearing brief (Ex. 143) and concluded that the study "demonstrated that in some buildings exposure hours can be very high * * *" (Ex. 143, p. 112). However, OSHA views the study as supporting its view that when properly controlled, most kinds of routine maintenance involving ACM results in low exposure levels.
A recent study by Kaselaan and d'Angelo Associates for Real Estate's Environmental Action League in 1991 was reviewed (Ex. 123). The contractors looked at historical data from 5 commercial buildings in which the activities sampled were reported as "small-scale, short duration." The operations were performed "almost exclusively" within mini-enclosures and most were performed by "trained and experienced asbestos abatement workers, who are more used to the larger full-scale asbestos abatement procedures" and not by building maintenance workers. The data are summarized in Table IV.
Table IV. -- Asbestos Fiber Levels in 5 Buildings During "Small-Scale" Operations [Ex. 123] ____________________________________________________________________ | No. of | | Building designation | sam- | Average | 8 hr. | ples | exposure | TWA _______________________________________|________|__________|________ One-C..................................| 76 | 0.073 | 0.025 1500...................................| 25 | 0.055 | 0.01 645....................................| 49 | 0.011 | 0.003 28.....................................| 19 | 0.02 | 0.003 1114...................................| 7 | 0.023 | 0.007 _______________________________________|________|__________|________ (From Ex. 123, p. 1)
The authors also pointed out that because air monitoring and third party oversight during these activities, they probably represented situations in which proper precautions were taken. They concluded that "the data presented indicates the necessity of controlling asbestos exposure during the type of [small-scale, short duration] activities represented in this study. However if appropriately performed * * * exposures well below the current OSHA exposure limits can be maintained" (Ex. 123, p. 26).
Table V. -- Asbestos Fiber Levels During Various Maintenance Activities _______________________________________________________________________ | Personal samples: |_____________________________________ Type of work | No. of | | | samples | Mean | Range _________________________________|_________|________|__________________ Air handling unit preventive | | | maintenance....................| 87 | 0.0942 | 0.0087-0.6805 Miscellaneous repair.............| 48 | 0.1272 | 0.0039-0.5496 Miscellaneous installation.......| 20 | 0.1742 | 0.0049-0.8395 Clean-up of ACM debris...........| 8 | 0.2030 | 0.0414-0.6246 Cable pulling....................| 9 | 0.0544 | 0.0240-0.0985 Relamping........................| 9 | 0.0469 | 0.0205-0.0929 Generator testing................| 18 | 0.0843 | 0.0075-0.2261 Fire alarm testing...............| 4 | 0.1654 | 0.0836-0.2693 _________________________________|_________|________|__________________
OSHA also notes that although exposures ranges above the PEL for some activities, mean levels were, in most case, much lower.
Dr. Morton Corn of Johns Hopkins University submitted summaries of monitoring results from samples taken during a variety of operation and maintenance activities from 5 buildings (Ex. 162-52). The 8-hour time- weighted averages of the personal samples for each building are presented in the Table VI.
Table VI. -- Asbestos Fiber Levels During O&M Operations in 5 Buildings [Ex 162-52] _______________________________________________________________________ Operation/building # | 1 | 2 | 3 | 4 | 5 _____________________________|_______|_______|_______|_______|_________ | | | | | Ceiling removal/installation.| 0.015 | 0.003 | 0.008 | 0.03 | ..... Electrical/plumbing work.....| 0.06 | 0.003 | 0.006 | 0.008 | 0.04 HVAC work....................| 0.02 | ..... | 0.003 | 0.01 | 0.02 Miscellaneous work...........| 0.008 | 0.004 | 0.01 | 0.09 | ..... Remove/encapsulate...........| 0.06 | 0.003 | 0.002 | ..... | ..... Run cable....................| 0.02 | 0.002 | 0.08 | 0.01 | 0.03 _____________________________|_______|_______|_______|_______|________ 8 Hour Time-Weighted Averages Personal Samples ... indicates data not provided
The report contained limited information as to specific controls in place during the sampling periods; however, Dr. Corn stated that "* * * the controls for the 5 buildings were minimal O&M controls" (Ex. 162-52).
The submission of Mr. Saul, Assistant Commissioner for Occupational Safety and Health, State of Maryland included a summary of the monitoring results conducted for Maryland employees performing building maintenance activities (ex. 162-44). A total of 207 samples analyzed by PCM during May 1988 to June 1990 were analyzed. The real-time values fell into the exposure categories presented in Table VI.
Table VII. -- Asbestos Fiber Levels During Maintenance Activities [Ex. 162-44] _________________________________________________________________________ | No. | Percent Fibers/cubic centimeter | samples | of | | samples __________________________________________________|_________|____________ <0.01.............................................| 125 | 60.4 0.01-0.04.........................................| 30 | 14.5 0.05-0.09.........................................| 24 | 11.6 0.10-0.20.........................................| 24 | 11.6 >0.20.............................................| 4 | 1.9 __________________________________________________|_________|___________
During these activities, workers were required to wear personal protective equipment. In his discussion of the study results, Mr. Saul explained that the four values in excess of 0.2 f/cc resulted from: a removal in which wet methods could not be employed, wetting painted surfaces, removing and wetting metal enclosed pipe lagging, and improperly sealing of a mini-enclosure. He further concluded that these data indicate that the work practices used by these workers are generally effective during these maintenance-type asbestos activities.
In addition to the above studies showing relatively low exposures, almost all below the revised PELs, other submissions showed the potential for Class III work to exceed the PEL.
BCTD submitted studies including those by Keyes and Chesson which reported results of a series of experiments designed to determine fiber levels in asbestos-containing buildings during simulated activities (Ex.9-34 OO, PP and 7-53). They demonstrated (using transmission electron microscopic measurements) that use of dry methods in a room containing damaged ACM and visible dust and debris elevated the fiber level in air significantly, that physical activity (playing ball) within such an area increased fiber levels and that cable pulling activities also raised fiber counts.
HEI submitted an analysis of a data set provided to them by Hygienetics, Inc. which contained data on airborne asbestos fiber concentrations during various maintenance activities performed under an operations and maintenance (O&M) program in a large U.S. hospital (Ex. 162-6). During the period of study, all maintenance work in areas with ACM in the hospital required a permit issued by the Hygienetics project manager on site. The authors concluded "* * * spatial and temporal proximity to maintenance work was an important determinate of PCM fiber levels" (Ex. 1-344, p. 1.8). Jobs involving removal of ACM resulted in higher fiber levels than non-removal jobs [personal samples: mean, removal jobs = 0.166 f/cc, non-removal = 0.0897 f/cc (Ex. 1-344 p. 1.6)]. HEI concluded that these activities resulted in increased fiber levels (Ex. 1-344, p. 1.8).
OSHA has reviewed and evaluated all available information pertaining to maintenance, repair, and other asbestos-disturbing activities within buildings classified as "Class III" and has concluded that some of these activities can result in significant risk from exposure of workers. The range of activities and exposure potential encompassed by a Class III designation is wide.
The studies generally show that when protective work practices are used by trained workers, exposures are greatly reduced. Thus, OSHA is requiring various work practices and protective measures to reduce exposure to asbestos containing material (or material which is presumed to contain asbestos) and that workers must receive training in courses which include the appropriate techniques to use in handling and/or avoiding such disturbances. OSHA concludes that these are effective, feasible controls needed to reduce significant risk.
Paragraph (g)(8) sets out these requirements. Again, wet methods are required; local exhaust ventilation is required, if feasible; Where the material OSHA has found to be of high-risk, TSI and surfacing material, is drilled, cut, abraded, sanded, chipped, broken or sawed, dropcloths and isolation methods such as mini-enclosures or glove bags must be used; and respirators must be worn; and where a negative exposure assessment has not been produced, dropcloths and plastic barriers (tenting or equivalent) must be used. OSHA believes these mandatory practices will protect employees who perform Class III work from significant risk of asbestos-related effects.
Class IV Work
As defined in paragraph (b), Class IV work consists of "maintenance and custodial work" where employees contact ACM and PACM, including activities to clean up waste and debris containing ACM and PACM. Examples of such work are sweeping, mopping, dusting, cleaning, and vacuuming of asbestos containing materials such as resilient flooring, or any surface where asbestos-containing dust has accumulated; stripping and buffing of asbestos containing resilient flooring, and clean-up after Class I, II, and III work, or other asbestos construction work such as the installation of new asbestos-containing materials. Clean-up of waste and debris during a removal job, or other Class job, is Class IV work. Because in these cases the employee doing the clean-up is within the regulated area and subject to the same exposure conditions as the employees actually doing the removal, paragraph (9)(1) requires the custodial employee to be provided with the same respiratory protection as the employees performing the removal or other asbestos work.
Generally, exposures for Class IV work are lower than for other classes. Data in the record show this general exposure profile (see for example, Kominsky study, Ex. 119 I, where carpet "naturally contaminated" for year by friable, TSI and surfacing ACM was cleaned using three cleaning methods; all personal samples were below 0.022 f/cc; using allowable methods resulted in the highest personal sample of 0.019 f/cc; see also, data in Ex. 162-52). Other data show even lower exposures for custodial work (see for example, Wickman et al, Ex. L163, where the authors conclude: "This study determined that custodians who performed routine activities in buildings which contained friable asbestos materials were not exposed to levels of airborne asbestos which approached the OSHA action level of 0.1 f/cc. The arithmetic mean value for 38 personal samples, analyzed by TEM, was 0.0009 s/cc, 8 hour TWA for structure lengths greater than 5 um" ( Id at 20). The much higher exposure data from the earlier Sawyer study, (Ex. 84-262A), showed exposure levels ranging to 4.0 f/cc for dry dusting of bookshelves under friable ACM. As noted above, at this rulemaking hearing Sawyer noted that the conditions in the building he studied were unrepresentative of other buildings in the U.S. (Tr. 2157).
OSHA believes the Wickman report is the most complete study available concerning custodial exposures. Because the study was submitted into the record after the close of the post-hearing comment periods, OSHA is not relying on it to prove the extent of exposures anticipated in most custodial work. Rather, OSHA views the Wickman study as confirming its view that Class IV activities result in reduced exposure and thus, reduced risk compared to activities of other classes. Because maintenance work involving active "disturbances" is Class III work, the "contact" with ACM which constitutes Class IV work will be either with intact materials, or in cleaning-up debris from friable material or from material which has been disturbed. The latter activities present the higher risk potential. OSHA acknowledges that evidence of asbestos disease among school custodians and maintenance workers has been submitted to this record (See e.g., references cited in SEIU's post hearing brief, Ex. 144). The Agency believes that significant exposures to custodians result from Class III work or when they clean up accumulations of friable material. Therefore, these revisions contain several requirements aimed at reducing custodial exposures when cleaning up asbestos debris and waste material.
OSHA believes that the work practices and precautions prescribed in these regulations will virtually eliminate significant health risks for custodial workers, and will cure any confusion about which protections and which standards will apply to custodial worker (see submission of SEIU, Ex. 144).
Custodial work is covered in all three standards. Housekeeping provisions in the general industry standard, paragraph (k), cover custodians in public and commercial buildings, in manufacturing and other industrial facilities, where construction activity is not taking place. To avoid confusion, and to cover clean-up, and other housekeeping on construction sites, which properly is covered under the construction standard, similar "housekeeping" provisions are included in the construction and shipyard standards as well (Paragraph (1). These housekeeping provisions are discussed separately. The specific provisions in paragraph (g), relating to Class IV work in the construction standard relate to construction work only, and are not necessarily limited to housekeeping. Like all other construction work, competent person supervision of Class IV work is required, exposure assessments of clean-up of waste and debris, and use of HEPA filtered vacuums, in paragraph (g)(1) apply.
Particular requirements were adopted in response to concerns of some participants. These are paragraph (g)(10) which requires specific awareness training for Class IV workers. Under the 1986 standard, training was not required unless employees were exposed above the action level, then 0.1 f/cc. Two labor organizations representing employees who perform Class IV work, SEIU and AFSCME, and other participants, (see e.g., Ex. 141, 144), noted that custodial workers needed training, separate from other building service workers, such as maintenance workers (Ex. 141 at 49), generally referred to as "awareness training." The record shows the lack of awareness that material containing asbestos contributed to asbestosis (Tr. 959 ff). Paragraph (g)(10) of the construction and shipyard standards requires that Class IV asbestos jobs be performed by employees trained according to the awareness training set out in the training section, (k)(8). The general industry standard, also requires that employees who work in areas where ACM or PACM is present, also be so trained, in paragraph (j).
In addition, paragraph (g)(10)(i) requires employees cleaning up waste and debris in a regulated area where respirators are required to be worn to also wear respirators. This restatement of the provision in paragraph (e)(4) relating to regulated areas emphasizes that clean-up workers in large-scale jobs must wear respirators, even though the actual removal is completed. Paragraph (g)(10)(i) offers significant protection to custodians. As pointed out by participants, custodians have swept up "insulation debris which had fallen to the floor because it was so badly deteriorated * * * with no knowledge or concern about asbestos hazards * * *" (see testimony of Ervin Arp at Tr. 962-969). This new provision requires that "(e)mployees cleaning up waste and debris in an area where friable TSI and surfacing ACM is accessible, shall assume that such waste and debris contains high-risk ACM. Since paragraph (k) requires that such ACM and PACM be visibly labeled, OSHA believes that custodial workers will be spared the consequences of being required to clean-up unidentified materials, which in fact contain asbestos.
Various participants asked OSHA to require an employer to adopt and operations and management (O&M) program to protect custodial and maintenance workers. The Agency notes that the 1986 standard contained, in non-mandatory Appendix G, such a program, which listed precautionary actions which the Agency recommended.
OSHA has not adopted an explicit O&M program requirement in these standards. Rather, the Agency has adopted enforceable provisions which cover the major elements of the previous non-mandatory program in the appendix, and of various programs suggested by participants in this rulemaking. For example, the new requirement that maintenance and custodial work be the subject of exposure assessments, [see paragraph (f)(2)], requires the competent person to evaluate operations which may expose employees to asbestos, in order to minimize exposure. The requirement is "operation" based; rather than, as in an O&M program, status-based. However, any active disturbance constitutes an operation. Although each "operation" must be covered by an exposure assessment, operations can be grouped. Cleaning up debris in an area containing deteriorating ACM on a daily basis, need not be evaluated each day. An assessment of such activity can be made on a general basis, covering procedures for wet sweeping and vacuuming, disposal, and instructions to detect deterioration of material which contributes to the debris. Additionally, labeling of ACM and PACM usually considered part of an O&M program, is separately required, as is training of custodial workers. Specific jobs may require specific instructions; the breadth of some are indicated by O&M documents generated by the EPA "Green Book" (Ex. 1-183, EPA 20T-2003, July 1990 and NIBS Ex. 1-371). OSHA believes that competent person supervision of activities under this standard will provide appropriate work practices to be followed for relatively small, less hazardous exposure situations. The Agency is requiring however, in the training provisions, that when Class III and IV workers are trained, that the contents of the EPA or state approved courses for such workers, as the relate to the work to be performed, be part of the required training material [paragraph (k)(v)(D)].
The issue of passive exposure, that is where active contact or disturbance of ACM is not a contributing factor to asbestos fiber release, is covered by the various notification and identification provisions in the standard which will allow employees to identify asbestos-containing material. These are discussed later in this preamble.
In OSHA's expert view, these provisions constitute major components of operations and maintenance programs recommended; are aimed at the more significant sources of exposure for custodial workers, and most importantly, are enforceable. For all these reasons, OSHA believes an explicit requirement for an O&M program, such as suggested by AFSCME (Ex. 141 at 36), would add little benefit to employee health (see e.g., Tr.3500).
In each standard, OSHA is requiring specific work practices and a choice of engineering controls; however, OSHA is aware that some asbestos control systems may be patented. OSHA has not considered the existence of patents or their validity in evaluating the need for those controls. OSHA believes that all employers will have a variety of controls available to them and that new types could be developed.
(8) Respiratory Protection
- Paragraph (g) General Industry
The 1986 general industry standard required respirator use where engineering and work practice controls are being installed, in emergencies, and to reduce exposures to or below the PELs where feasible engineering controls and work practices could not achieve these reductions. Additionally, certain operations i.e., cutting in plants, were shown to have greater difficulties in achieving low exposures without respirator use. OSHA therefore allowed routine respirator use in those segments to reach the PELS, rather than, as in other general industry segments, only where the employer shows that feasible engineering and work practice controls cannot achieve compliance with the PELs. OSHA now believes that engineering and work practices in the few remaining production sectors can achieve lower levels than predicted in 1986, in part because of the mandatory work practices now included in the methods of compliance section. Therefore, allowing respirator use at higher measured exposures for a few operations should not result in less protection for those employees since their ambient exposure levels are expected to be reduced.
- Paragraph (h) Construction Standard and Shipyard Employment Standard.
The respirator provisions in the construction and shipyard employment standards are changed in several respects. First, in addition to the conditions listed in the 1986 standards, where exposures exceed the PELs, required respirator use now is triggered by kinds of activities even where the PELs are not exceeded. These are: Class I work, Class II work where the ACM is not removed substantially intact; all Class II and III work where the employer cannot produce a negative exposure assessment; and all Class IV work carried out in areas where respirators are required to be worn. OSHA has based these decisions on the demonstrated variability during asbestos work, and on the need to protect workers who are disturbing asbestos-containing material with the greatest potential for significant fiber release. In addition, monitoring results for many jobs are not available in a timely fashion. By requiring routine respirator use in jobs which OSHA finds are likely to result in hazardous airborne asbestos levels, such as floor tile removal, where most tiles are broken, OSHA is providing reasonable supplemental protection to employees when certainty concerning exposure levels is not possible.
The kind of respirators required for these "conditions of use" are set out in paragraphs (h)(iv) and (v). In one situation, as explained below, Class I removals where excessive levels are predicted, "supplied air respirators operated in the positive pressure mode" are required, because these jobs have the highest exposure potential, due to their size, duration and the kinds of material involved. Other jobs where higher than usual exposures may occur include, where employees are inexperienced, where TSI and surfacing ACM is disturbed, and where other ACM is broken up during removal. Paragraph (h)(1) states the requirement for supplemental respirator use for these activities as well. These additional respirator requirements conform to OSHA's findings on this record, of the specific conditions which contribute to and are predictive of, higher exposures.
As discussed more fully in the classification section, the data submitted to the record show that in almost all cases of removals and disturbances of non-high-risk ACM, exposure levels are well below the protection factor limits for negative-pressure half-mask respirators, the type required for certain kinds of Class II and III work.
BCTD has recommended that OSHA require the use of "the most effective respirator that is feasible under the circumstances" and further that OSHA require "supplied air respirators which are tight fitting and in a pressure demand mode with either auxiliary SCBA or a HEPA egress cartridge * * * except in limited circumstances which include lack of feasibility because of the configuration of the work environment or an uncorrectable safety hazard" (Ex. 143 at 65-69). BCTD does recognize safety hazards due to the tripping hazard of air lines to which SARs are attached and define certain activities in which PAPRs may be used instead. (Ex. 143 at 71). BCTD also contended that the protection factors used by OSHA to assign respirator classes are contrary to record evidence.
The Court found that OSHA's judgment about supplied air respirators was properly within its discretion. It expressed concern that OSHA's respirator requirements did appear to require only that the combined effect of engineering and work practice controls and respirators limit exposure only as low as the PEL where significant risk remained (838 F.2d at 1274).
OSHA responded to these issues in a Federal Register publication of 5 February 1990 (55 FR 3727), in which the Agency reaffirmed its position concerning effectiveness levels of respirators, pointed out flaws in studies BCTD used to conclude that protection factors are inadequate, and noted that OSHA is revising and updating its general respirator standard. OSHA also noted that implementation of the entire respirator program would result in exposures below the PEL. That was OSHA's final statement of position on these issues and it was not judicially challenged.
In evaluating the respiratory protection needs dictated by the new system of ranking for asbestos operations by "class," OSHA has concluded that there are circumstances in which the highest level of respiratory protection must be used. These are Class I jobs for which a negative exposure assessment (i.e. exposures will be less than the PEL) has not been made. Inexperienced workers removing large amounts of TSI or surfacing ACM are at the high end of the risk spectrum and must have additional protection afforded by the supplied air respirator. OSHA notes that joint EPA-NIOSH recommendations would require a supplied air respirator in even more extensive circumstances, i.e., all "abatement" work and maintenance and some repair work (EPA/NIOSH Guide, referenced at Ex. 143, p. 69). The Agency"s decision balances the acknowledge potential safety hazards of supplied air respirators with the need for more protection in the most risky asbestos jobs. The Court of Appeals has agreed that such judgments are properly within the discretion of the Agency (858 F2d at 1274). In situations where the competent person makes a determination that exposures in Class I jobs will be less than the PELs, the standard requires that a half-mask air purifying, non-disposable respirator equipped with a high efficiency filter must be used. There are two reasons for this requirement: exposures less than the PEL have been determined to result in significant risk, the record shows that Class I work may result in substantial exposures even when good conditions exist, and the variability usually results in some high exposures. However, although all classes of asbestos work are potentially risky, OSHA has used discretion, and has limited the supplied air respirator provision to the highest risk situations, Class I work where it cannot be predicted that exposures will not exceed the PEL. This approach does not leave workers doing other classes of work unprotected. The respirator selection Table D-4, applies to all situations other than Class I work. As the worker(s) gain experience in the use of control methodology, and data accrues documenting low fiber levels, use of less protective respirators may be allowed.
Furthermore, OSHA has based this conclusion on the demonstrated variability of exposures in the construction industry (Ex. 143, p. 63, CONSAD report p. 2.18, Tr. 2156, 2157, Tr. 4571, Ex. 7-57). The contractor Consad reported "while many of the construction jobs monitored did not produce exposure levels above the proposed PEL of 0. 1 f/cc, these data also provide continued evidence that exposure levels can be highly variable in construction work and can exceed the proposed PEL * * * for many of the construction activities examined here" (Ex. 8, 2.18-20).
Shipyard Employment Standard
Paragraph (h). SESAC has recommended the deletion of the qualitative fit test from the shipyard employment asbestos standard. Their rationale is as follows:
The Committee has determined that advances in quantitative fit testing instrumentation have made this procedure accessible to shipyards conducting asbestos operations at a cost which is not overly burdensome ($5,000-6,000 at the low end). Because quantitative fit testing provides a better evaluation of fit among respirators than qualitative methods, and does not rely on subjective determination by the employees, qualitative fit testing methods have been deleted as acceptable alternatives * * * (Ex. 7-77).
They further recommended, based on the recent developments in technology that the use of test chambers, and the requirement for use of aerosols be deleted. They also offered an additional definition: "challenge agent" means the air contaminant, or parameter, which is measured for comparison inside and outside of the respirator facepiece." These are reasonable suggestions, but as they have general application outside shipyards, OSHA indicated this in its notice of February 5, 1990 in its partial response to the Court. The Agency is "still planning to revise and update its general respiratory standard, and believes that continuing to enforce the current asbestos respirator requirements during this interim period will not expose employees to unnecessary risk" (55 FR 3728, February 5, 1990). Therefore, OSHA will not delete the qualitative fit test from the asbestos standard(s), but will consider the issue in the context of the general respiratory standard.
SESAC objected to the requirement that a powered, air-purifying respirator be supplied in lieu of a negative-pressure respirator when the employee chooses it and when it will provide adequate protection. They felt that the employer should be allowed to provide an airline respirator or powered air-purifying respirator. They reasoned that most employers already will have airline respirators in stock and will not need to purchase or maintain any other type of respirator. In evaluating similar comments in the rulemaking for the 1986 revised asbestos rule, OSHA stated:
OSHA agrees that positive-pressure supplied-air respirators provide a greater level of protection than do half-mask negative-pressure respirators. OSHA believes that employers should have the flexibility to use any of the available respirators that provide sufficient protection to reduce the exposures to levels below the PEL. Furthermore, the safety problems associated with the use of supplied-air respirators cannot be ignored. OSHA believes that respirators should be selected that both provide adequate protection from exposure to airborne asbestos fibers and minimize the risk of accident and injury potentially caused by the use of cumbersome supplied-air respirators (51 FR p. 22719, June 20, 1986, p. 22719).
After that rulemaking, BCTD challenged OSHA's refusal to make air supplied respirators mandatory. The Court accepted OSHA's explanation -- that supplied-air respirators had hazards of its own, and stated "this sort of judgment * * * (is) within OSHA's discretion in the absence of evidence supporting the view that the incremental asbestos safety gains plainly exceed the incremental non-asbestos hazards" (838 F.2d at 1274). OSHA reiterated these reasons in its January 28, 1990 response to the Court's remand.
As discussed above, OSHA has determined on this record that supplied air respirators are required for Class I work where a negative exposure assessment is not forthcoming, but not for other Class I work. Therefore, shipyard employees doing the most hazardous work must wear this most protective respirator as well.
(9) Protective Clothing
Paragraph (h) General Industry. OSHA is making no changes in the protective clothing provisions for general industry. Paragraph (i) Construction and Shipyard Standards.
There are several protective clothing issues in this rulemaking. The first issue involves the impact of the Class system on the personal protective clothing provisions. The existing standard requires that protective clothing be provided and worn when exposures exceed the PEL. The revised standards maintain this requirement. In addition, the revised standards require the use of personal protective clothing when Class I work is performed and when Class III work involving TSI and surfacing ACM is performed in the absence of a negative exposure assessment. OSHA believes that this change brings the standard in line with OSHA's 1986 intentions wherein the Agency believed that removal of thermal insulation and surfacing materials would result in exposures that exceed the PEL. This rulemaking record shows that some employers have developed control strategies that can reduce exposures below the PELs, for most of the time. However, as previously discussed, work with high-risk materials has substantial potential for over-exposure. Furthermore, studies have documented that in the past workers have brought asbestos contaminated clothing home with them and thereby caused exposure and asbestos-related disease among family members. OSHA believes that this standard must prevent such conditions, and the nature of Class I work and Class III work with high risk materials merits special consideration. Nearly all rulemaking participants agree on this point.
OSHA notes however, that the judgment to require protective clothing for asbestos work is a subjective one, to some extent, requiring judgment on the part of the competent person. The hazard from asbestos is associated with inhalation of fibers that are in the air, not from asbestos that comes in contact with the skin, like some other chemical that OSHA has regulated (such as methylenedianiline and benzene), which are absorbed through the skin and are systemic toxins. Asbestos fibers that are on clothing can become airborne, so OSHA continues to believe that situations where airborne fiber levels are high are also those which are likely to contaminate clothing. Therefore, the regulation continues the requirement for protective clothing and its proper disposal/cleaning. OSHA does not believe, however, that protective clothing is required for every operation involving asbestos.
In the 1986 standards OSHA did not require that protective clothing be impermeable; in fact, OSHA responded to concerns that disposable clothing which was impermeable not be permitted because it was claimed to contribute to heat stress (see discussion at 51 FR 22722). Although the issue was not remanded to OSHA by the Court, several participants in the current rulemaking focused comment on the issue of whether OSHA should require work clothing during asbestos work be impermeable to asbestos fibers in each of its asbestos standards. Most of those who addressed the issue expressed support for having such a requirement (Exs. 7-10, 7-67, 7-69, 7-138, 7-192, 7-195, 1-242, Tr. 1122, 1142, 1950, 3003 and 3156). It should also be noted that several of these commenters were manufacturers of such fabric or clothing. They also encouraged OSHA to set a requirement that all garments meet the requirements of the ANSI standard 101-1985.
Charles Salzenberg of Dupont presented a study which was performed at their behest by A.D. Little which indicated that neither shampooing the hair nor showering following simulated asbestos exposure completely removed fibers from hair or skin (Ex. 76) to support their request for an impermeable clothing requirement. In response to questioning about heat stress, he stated that:
We've had projects for years on improving the breathability of Tyvek and in fact we have some material that exhibits improved breathability and the problem you always get when you get more breathability, you get more asbestos. There doesn't seem * * * a way to have a perfect filter that keeps out all fibrous material but lets a lot of air through * * * (Tr. 3444).
OSHA continues to believe that heat stress is also a concern in use of protective clothing made of impervious fabric. It should again be noted that the route of exposure of asbestos fibers which creates a health hazard is inhalation, not skin absorption. The Agency reiterates its belief that non-disposable work clothes provide sufficient protection provided they are properly cleaned after work and laundered. The Agency agrees that disposable fiber-impermeable clothing can be safely worn if "employers * * * use appropriate work-rest regimens and provide heat stress monitoring * * *" (51 FR 22722). However, OSHA does not believe that totally impermeable clothing is a necessary requirement for asbestos work.
(10) Hygiene Facilities and Practices
- Paragraph (j) Construction and Shipyard Employment Standards.
OSHA is changing the decontamination requirements in minor details to correspond to its new system of categorizing asbestos work according to its potential risk. The primary requirement that asbestos abatement workers be decontaminated following their work using a 3-part system -- an equipment room, a shower room, and a clean room, is retained. Thus, most workers performing Class I work, removing TSI or surfacing ACM or PACM, as before, must use a shower adjacent to and connected with the work area.
With the introduction of new provisions identifying 4 classes of asbestos work, it is necessary that OSHA modify its requirement for hygiene facilities and practices to reflect these changes. OSHA continues in its belief that the requirements must be proportional to the magnitude and likelihood of asbestos exposure. Therefore the most hazardous asbestos operations -- those involving removal of more than threshold amounts of thermal system insulation or sprayed-on or troweled-on surfacing materials must employ a decontamination room adjacent to the regulated area (most often, a negative-pressure enclosure) consisting of an equipment room, shower room, and clean room in series through which workers must enter and exit the work area, as required in the 1986 standard.
For Class I asbestos work, OSHA has further determined, based on its consideration of the rulemaking record, that there are 3 exceptions to the requirement that the shower facility be located immediately contiguous to the work area. These include, outdoor work (See Ex. 7-21, 7-99, 7-145), shipboard work (Ex. 7-77 and see discussion below), and situations where the employer shows such an arrangement is infeasible. OSHA will again allow in these limited circumstances the workers to enter the equipment room, remove contamination from their worksuits using a portable HEPA vacuum or change to a clean non-contaminated workclothing, and then proceed to the non-contiguous shower area. Outdoor work affected by this requirement will occur mainly in industrial facilities such as refineries and electrical power plants when specified work practices are employed and following outdoor asbestos work.
OSHA intends that HEPA-vacuuming procedures be performed carefully and completely remove any visible ACM/PACM from the surface of the worker's work suit, including foot and head coverings, skin, hair and any material adhering to the respirator.
Also for Class I work involving less than 10 square feet or 25 linear feet of TSI or surfacing ACM (the thresholds referenced above), during which exposures are unlikely to exceed the PELs for which there is a negative exposure assessment, OSHA is allowing less burdensome decontamination procedures which it believes are compatible with the scheme to classify asbestos work according to risk potential. In these operation, an equipment room or area must be set up adjacent to the work area for decontamination use. The floor of the area/room must be covered with an impermeable (e.g., plastic) dropcloth and be large enough to accommodate equipment cleaning and removal of PPE without spread of fibers beyond the area. The worker must HEPA vacuum workclothing, hair, head covering as described above and dispose of clothing and waste properly. Thus, only if the employer shows that for these smaller dimension jobs that the PEL is unlikely to be exceed may the decontamination procedure be abbreviated.
For asbestos operations which are Class II and III which are likely to exceed the PELs and for which a negative exposure assessment is not produced, showering is required, but may be performed in a facility which is non-contiguous to the work area. Use of dropcloths, HEPA vacuuming of workclothing and surfaces as above or the donning of clean workclothing prior to moving to a non-contiguous shower is required.
Following those Class II, III and IV jobs which the employer demonstrates are unlikely to exceed the PELs and for which a negative exposure assessment has been produced, the worker must HEPA vacuum his clothing on an impermeable dropcloth and perform other clean-up on the dropcloth avoiding the spread of any contamination. However, showering is not required.
OSHA is also concerned that workers performing clean-up (Class IV work) following larger abatement work receive appropriate decontamination. Therefore, employees who perform Class IV work in a regulated area must comply with the hygiene practice which the higher classification of work being performed in the regulated area requires.
Shipyard Employment Standards; Paragraph (i)
In other comments the Shipyards Employment Standards Advisory Committee objected to the requirement in the 1986 standard that showers be located contiguous to the work area. They said that this was not a part of the general industry standard and that they wished to continue to provide showers in fixed facilities on shore; that although contiguous showers may not be technologically infeasible, it was impractical. They further stated that change rooms required under the general industry asbestos standard cannot be provided on ships and that the worker must be allowed to remove contaminated clothing in an equipment room as in the construction standard (Ex. 7-77).
The Committee suggested several specific steps to the decontamination process required of workers following work in a shipboard asbestos activity. According to these recommendations, the employer shall ensure that employees who work within regulated area exit as follows:
Remove asbestos from their protective clothing using a HEPA vacuum as they move into the equipment room; Enter the equipment room and remove their decontaminated outer layer of protective clothing and place them in the receptacles provided for that purpose; Enter the decontamination room and perform personal HEPA vacuuming; Remove respirator after exiting decontamination room; Wash their face and hands prior to eating or drinking; If they are not going to make another entry into the regulated area that day, proceed to the shower area and change room; and, Don street clothing (Ex. 7-77).
OSHA believes these are reasonable suggestions. The final standard permits this approach based on the flexibility permitted by the language. Those who shower at remote facilities are required to decontaminate their protective clothing prior to proceeding to the remote showers. The Committee also recommended that, for the sake of modesty, the worker must be allowed to continue to wear the underwear which he had worn under his protective clothing during the process of decontaminating his clothing -- removing them when entering the shower. The 1986 standards are silent on this point and it seems reasonable that persons would be allowed to continue to wear his/her underwear during HEPA vacuuming and removal of protective clothing.
The committee pointed out that the general industry standard requires lunchrooms, while the construction standard requires lunch areas, and that areas were sufficient. OSHA agrees that it is unnecessary to build lunchrooms in shipyard facilities, so long as the area provided for food consumption is not so close to the work area that asbestos contamination is likely. In that case, areas are insufficient and an enclosed room must be provided which is free of contamination.
(11) Communication of Hazards to Employees
Paragraph (j) General Industry. Paragraph (k) Construction and Shipyard Employment Standards.
The "communication of hazards" provisions of the standards contain many revisions. The Court in 1988 had remanded two information transfer issues for OSHA's reconsideration. These were to extend the reporting and information transfer requirements and to require construction employers to notify OSHA of asbestos work. As discussed earlier, OSHA has decided not to require general pre-job notification to the Agency. However, the Agency has expanded required notifications among owners, employers and employees. Basically, the general industry standard has been upgraded to the more extensive notification requirements of the construction standard and the shipyard employment standards. Consequently this preamble section discusses the issues together. In the shipyard standard the "building owner" may be a vessel owner or a building owner. OSHA notes that in shipyards vessels undergoing repair may be owned by foreign entities, as well as by entities subject to the Act's jurisdiction. When a foreign-owned vessel is repaired in an American shipyard, the employer (either the shipyard or an outside contractor) must either treat materials defined as PACM as asbestos-containing or sample the suspect material and analyze it to determine whether or not it contains asbestos.
An overview of these revisions follows. The construction and shipyard standards now require that employers who discover the presence of material which is ACM or is presumed ACM (PACM) on the worksite, must notify the project or building owner. On worksites having multi-employers, the person who discovers the material also is to notify the other employers. An employer on a multi-employer worksite who is planning Class I or Class II asbestos work is to inform all the other employers on the site of the presence of ACM to which employees of those employers might reasonably be expected to be exposed. They are to be informed of the location and quantity of these materials and the measures to be taken to protect them from exposure.
The 1986 construction standard required employers to notify other employers on multi-employer worksites of the existence and location of asbestos work, but was silent on the notification role of building owners. OSHA was concerned that building owners were "outside the domain of the OSH Act." As noted above, this is a specific issue remanded for reconsideration by the Court of Appeals. Now, upon reconsideration, OSHA believes that it has authority to require building owners [as defined in paragraph (b)] who are statutory employers, to take necessary and appropriate action to protect employees other than their own. In the 1990 proposal OSHA pointed to other standards in which it has required building owners and other employers who are not the direct employers of the employees exposed to particular hazards, to warn of defects, take remedial action, or provide information to the directly employing employer. It cited the Hazard Communication Standard's requirement that manufacturers provide information to downstream employers (29 CFR 1910.1200) and the Powered Platform standard which requires the building owner to assure the contract employer that the building and equipment conform to specified design criteria as examples (29 CFR 1910.66(c).) OSHA believes that the building or project owner is the best and often the only source of information concerning the location of asbestos installed in structures; therefore, OSHA is requiring the owner to receive, maintain, and communicate knowledge of the location and amount of ACM or PACM to employers of employees who may be exposed. OSHA acknowledges that in shipyards, foreign vessel owners are not "statutory employers" and thus, are not covered by these standards. In such cases, the employer performing the "refit" must either presume that TSI and surfacing material are asbestos-containing, or have the material tested. When turn-around time must be minimized, the case in many overhauls, OSHA expects that the jobs will be performed in conformity with this standard without testing.
The final rule provides a comprehensive notification scheme for affected parties -- building owners, contract employers and employees, which will assure that information concerning the presence, location, and quantity of ACM or PACM in buildings is communicated in a timely manner to protect employees who work with or in the vicinity of such materials. Before Class I, II, or III work is initiated, building and/or project owners must notify their own employees and employers who are bidding on such work, of the quantity and location of ACM and PACM present in such areas. Owners also must notify their own employees who work in or adjacent to such jobs.
Employers, who are not owners, planning any such covered activity must notify the owner of the location and quantity of ACM and PACM known or later discovered. The building owner must keep records of all information received through this notification scheme, or through other means, which relates to the presence, location and quantity of ACM and PACM in the owner's building/project or vessel and transfer all such information to successive owners. OSHA reaffirms its finding of the 1986 standard that an employee's presence in the workplace places him at increased risk from asbestos exposure regardless of whether he/she is actually working with asbestos or is just in the vicinity of such material.
OSHA has defined "building owner" to include these lessees who control the management and recordkeeping functions of a building / facility/vessel. It is not OSHA's intention to exempt the owner from notification requirements by allowing a lessee to comply. Rather when the owner has transferred the management of the building to a long-term lessee, that lessee is the more appropriate party to receive, transmit, and retain information about in-place asbestos. When a lease has expired, any records in the lessee's possession must be transferred to the owner or the subsequent lessee exercising similar managerial authority. The expanded notification provisions also require that on multi-employer worksites, any employer planning to perform work which will be in a regulated area, before starting, must notify the building owner of the location of the ACM and the protective measures taken; upon discovering unexpected ACM, they must provide similar notification; and, upon work completion they must provide to the owner a written record of the remaining ACM at the site.
OSHA has included a provision that within 10 days of the completion of Class I or II asbestos work, the employer of the employees who performed the work shall inform the owner and employers of employees who will be working in the area of the current location and quantity of PACM and/or ACM remaining in the former regulated area and shall also inform him/her of the final monitoring results taken in that operation. OSHA has determined that the employer of employees reoccupying the area must have this information in order to provide the appropriate protection to his/her workers.
To provide effective notification in Class III asbestos operations, OSHA is building upon its earlier requirement to post warning signs in regulated areas. Now since all Class III work must be conducted in a regulated area all maintenance-type operations will be posted with signs, which state the fact that asbestos exposing activities are present. OSHA considers site posting to be a particularly effective means to alert employees of hazardous areas where relatively short-term repair and maintenance activities are taking place. OSHA believes that site posting will adequately notify potentially affected employees who are not working on the operation, but are working within the area or adjacent to it.
Identification of Asbestos-containing Materials in Buildings and Facilities
In addition to the "notification" issues just discussed, OSHA addresses a related widespread concern expressed by participants in this rulemaking: how to ensure that workers in buildings and facilities with previously installed asbestos containing products, are not exposed to asbestos fibers merely because they have no knowledge of where such products were installed. OSHA has found that such workers, primarily maintenance workers and custodians, but also contract workers such as plumbers, carpenters and sheet metal workers and workers in industrial facilities have shown historic disease patterns which in large part resulted from exposure to previously installed asbestos. (see discussions elsewhere in this preamble of data submitted by BCTD, AFSCME, SEIU and others). In its 1990 proposal OSHA raised the issue of how to identify previously installed asbestos and asked for comments and recommendations (55 FR 29730). OSHA opened the record for supplemental comments in November 1992, in a notice which also set out OSHA's preliminary views on how to effectively protect workers from unknowing exposure to previously installed ACM (57 FR 49657). There, OSHA proposed to require employers to presumptively identify certain widely prevalent and more risky materials. These are thermal system insulation, and sprayed-on and troweled-on surfacing materials, in buildings built between 1920 and 1980. These materials were to be termed "presumed asbestos containing materials" (PACM) and were to be treated as asbestos containing for all purposes of the standard. OSHA would have allowed building owners and employers to rebut these presumptions using building records and/or bulk sampling.
The final provisions which are included in all three standards, like OSHA's 1992 approach, require building owners and employers to presume that thermal system insulation (TSI) and sprayed-on and troweled-on surfacing materials contain asbestos, unless rebutted pursuant to the criteria in the standard. Additionally, OSHA is requiring in its mandatory work practices for flooring material containing asbestos, that employers assume that resilient flooring material consisting of vinyl sheeting, and vinyl and asphalt containing tile installed no later than 1980 also be presumed to contain asbestos (see discussion in the "Methods of Compliance" section). Unlike the proposal, buildings constructed before 1920 are not excluded from these requirements. Also rebuttal criteria have been changed. Unlike the approach OSHA suggested in the November, 1992 notice, building records may not be relied upon to rebut the presumption of asbestos containing material and more detailed instructions are supplied for the inspection process.
OSHA believes that these provisions will protect employees in buildings and facilities from the consequences of unknowing significant exposure to asbestos in the most cost-effective manner.
Participants supported OSHA's "presumptive" approach to identifying asbestos-containing material; in particular, designating only TSI and surfacing ACM for presumptive treatment (see e.g., utility companies such as Southern Cal. Edison, Ex. 162-4; Con Edison, Ex. 162-54; Duke Power, Ex. 162-57; property management companies and associations, e.g., JMB Properties, Ex. 162-29; trade associations, e.g., O.R.C., Ex. 162-12; International Council of Shopping Centers, Ex. 162-58).
As stated in November 1992, OSHA continues to believe that the major advantage of such a regulatory approach is that the materials and buildings/facilities with the greatest risk potential would be automatically targeted for mandatory communication and control procedures, and possible testing. Focusing on high-risk building/facility situations avoids the dilution of resources and attention which might result from requiring broader inspections. Other building/facility areas and material would not be exempt from the standard's control requirements; however, they would not be presumptively considered to contain asbestos. If a building owner or employer has actual knowledge of the asbestos content of materials, they must comply with the protective provisions in the standard. Similarly if there is good cause to know that material is asbestos containing the employer and/or building owner is deemed to know that fact. The current enforcement rules governing "employer knowledge" would be applied in a contested case to determine the application of the asbestos standard to other materials or building/facility areas which the employer claims he did not know contained asbestos.
OSHA believes that this presumptive approach allows building/facility owners whose buildings/facilities contain PACM and other employers of employees potentially exposed to PACM flexibility to choose the most cost-effective way to protect employees. They may treat the material as if it contains asbestos and provide appropriate required training to the custodial staff; test the material and rebut the presumptions; or combine strategies.
OSHA considered a number of approaches to insure that workers do not become exposed to asbestos unknowingly. As noted in the 1992 notice, one option was clarifying in the preamble to the final rule the current enforcement policy that a prudent building/facility owner or other employer exercising "due diligence" is expected to identify certain asbestos-containing materials in his/her building/facility before disturbing them. After reviewing the record, OSHA believes its presumption approach is more protective. "Due diligence," is, in part, a legal defense, invoked by and in order to shelter employers against OSHA citation. Thus in the past, employers who were wrongly informed by building owners about the asbestos content of thermal system insulation successfully argued in some cases that they had exercised "due diligence." OSHA believes that the protection of employees must not depend on the good faith of their employers whose information sources may be defective. By requiring that TSI and troweled- and sprayed-on surfacing material be handled as if they contain asbestos, employees will be protected from the consequences of their employers relying on erroneous information about the most risky asbestos materials. Of course, "due diligence" would also require employers to investigate whether other building material about which there was information suggesting asbestos content, was in fact asbestos-containing. A building owner/employer, for other materials, also may presume they are asbestos-containing, label and treat work with them as asbestos work, without testing the material for asbestos content.
Another option OSHA considered was requiring a comprehensive AHERA-type (EPA's schools rule) building/facility inspection. AHERA (Asbestos Hazard Emergency Response Act, 40 CFR 735) requires that all school buildings be visually inspected for asbestos-containing building materials (ACBM) by an EPA-accredited inspector and that inventory of the locations of these materials be maintained. Under AHERA, school maintenance and custodial staff who may encounter ACBM in the course of their work receive at least 2 hours of awareness training, and for staff who conduct activities which disturb ACBM, an additional 14.
Requiring comprehensive building and facility inspections like EPA does under AHERA was recommended by participants presenting labor interests (e.g., AFSCME Ex. 162-11; SEIU, 162-28; AFL-CIO, Ex. 162-36; BCTD, Ex. 162-42): by engineering, management and asbestos abatement firms, (e.g., Abatement Systems, Inc. Ex. 162-8, California Association of Asbestos Professionals, Ex. 162-27); and by representatives of state health agencies (e.g., North Carolina Department of Health and Natural Resources, Ex. 162-46; N.Y.C. Department of Environmental Protection, Ex. 162-47).
Although there was substantial support for a comprehensive inspection requirement, OSHA believes that the regulatory approach in these final standards will achieve equivalent or superior protection to exposed workers at much reduced cost.
The reasons are as follows. A comprehensive wall-to-wall inspection requirement is found to be unnecessary to protect employees against risks of exposure from asbestos-containing building material of which they are unaware. Such an inspection requirement would be very costly, may be overly broad, the results may not be correct or timely, would not necessarily focus on potential sources of asbestos exposure which present significant risks to employees, and its great expense may divert resources from active protection of workers who actually disturb asbestos. First, OSHA does not believe that protecting employees in buildings from significant asbestos exposure requires that all suspect materials in buildings first be identified. Although all asbestos-containing materials may release fibers when their matrices are disturbed, certain materials are known to be more easily damaged or to suffer more deterioration, and thus cause higher airborne fiber levels than others. As discussed in the November 1992 notice, OSHA determined that thermal system insulation (TSI) and sprayed on and troweled on surfacing materials are such materials. They are potentially more friable, are much more prevalent, are more accessible and are the subject of more maintenance and repair activities than are other asbestos containing materials. They are widely prevalent. A 1984 EPA study limited to residential, commercial and public buildings nationally, found about three quarters of such buildings had asbestos- containing TSI, and over one quarter of the buildings contained sprayed-on or troweled-on asbestos containing surfacing material (see also studies cited in the HEI Report, Ex. 1-344, p. 4-6 to 4-10). The materials are usually accessible. Surfacing material was applied for decorative and acoustical purposes early on, and was later applied as insulation coating to protect structural steel during fires. The HEI Report in summarizing studies conducted in New York, California, and Philadelphia stated that "(i)mportant findings from these studies include the frequent use of friable surfacing in multi-storied buildings and the high proportion of damage to thermal systems insulation, most of which is accessible only to maintenance personnel (HEI Report, Ex. 1-344, p. 4-8 to 10). The accessibility of thermal system insulation is not limited to employees who directly disturb it to repair or replace the piping and infrastructure it covers. As noted by a participant: in industrial settings there are many sources of fiber release including vibration (people often walk on pipes), exposure to the elements, fans and processes, leaks, process leaks, and releases through joints in metal cladding (Ex. 12-7, Respirable Fibers Management Consultancy, Inc.).
The data submitted to OSHA indicate that these two materials have high exposure potential. For example, the potential of surfacing material to become friable and result in sizable exposures was shown by the Yale Architecture School data, which involved exposure to a "fully exposed acoustical material," a "Spanish moss type material" of low density and high friability (Tr. 2168). Dr. Sawyer, whose study showed very high exposures to custodial employees from exposure to dust and debris from this material, noted that its use in the building was unrepresentative, and that the material usually is "used primarily as a fireproofing material on structural steel that was concealed." (Id). Work in ceiling spaces containing sprayed asbestos show elevated exposure levels (see e.g., studies discussed in HEI, Ex. 1-344, p. 4-74). Data showing high exposure levels from TSI are ample and are discussed in detail in the preamble discussion on methods of compliance.
The data in this record showing exposures to other kinds of asbestos containing material such as gaskets, wallboard, roofing and siding materials show that generally, exposures to these products under comparable controls are lower than those released by the materials designated by OSHA as "high risk" and for which the presumption applies. The "high-risk" materials are much more prevalent in buildings and facilities, disturbances of them are more common. Therefore OSHA believes that a targeted approach to presuming the presence of high risk previously installed asbestos containing materials in buildings which are likely to contain them will provide equivalent protection to potentially exposed employees than a requirement to inspect all buildings and facilities for all asbestos containing materials. Some building owners will continue to conduct comprehensive surveys, others, when cost is an issue, will rely on presumptions to protect employees from potential exposure to high-risk ACM, TSI and surfacing materials.
In addition, even an up-front inspection rule must be targeted to be productive. Since not all facilities contain asbestos materials, an attempt should be made to designate those facilities and buildings where it unlikely that ACM will be found, otherwise the information yield from inspections will be unconnected to worker protection. OSHA is using a temporal cut-off of 1980 for its presumption rule. As discussed later, this date was supported by the record, since buildings constructed afterwards are much less likely to contain even stockpiled asbestos containing materials. In 1975, under the authority of the Clean Air Act, EPA banned the use of spray-applied ACM as insulation and the use of asbestos-containing pipe lagging and in 1978 extended the ban to all uses of sprayed-on asbestos. In this regard OSHA notes that the purpose of a cut-off is not to state a date after which it is certain that no asbestos-containing material has been installed in buildings. Rather, it is to designate when it becomes unlikely that asbestos-containing materials have been used in construction. OSHA believes that 1980 is a reasonable date for marking that probability. As noted above, employers and building owners are still required to investigate materials installed after 1980 when they suspect they may be asbestos-containing.
As discussed above, OSHA additionally refined its presumption by recognizing two broad categories of building materials as "high-risk" and thus that the consequences of a false negative identification supported such materials be treated as asbestos-containing unless reliable information showed the absence of asbestos. These kinds of materials are TSI and sprayed-on, troweled-on, or otherwise applied surfacing materials. Although as noted the version of an inspection rule urged by most proponents would require inspection for all potential asbestos-containing materials, some participants suggested an inspection requirement which would also concentrate on more potentially hazardous materials first. One suggestion was to, first require inspection of steel structures with sprayed on fireproofing constructed before 1975, next of sprayed-on acoustic ceiling installed before 1980 (e.g., Ex. 162-27). In the Agency's view, phasing in inspection requirements may provide less certainty and protection than its presumption approach. Requiring a "presumption" is an immediate source of protection. Any inspection program takes time and significant resources. Additionally, if inspection of categories of potentially high risk material are delayed under a phased-in-approach, protection is denied pending the start-up date. If judicial challenge is made employers may hold back on any inspections hoping for a court to invalidate the requirement. Even more importantly, evidence in the record also indicates that inspection data sometimes are not reliable. In particular, the Westat Report which evaluated a large sample of school inspections under AHERA, found that although on the whole inspections identified most asbestos-containing materials, "high-risk" surfacing material was unidentified as asbestos containing in 36% of the inspections studied (Ex. 1-326 p. 326). Since surfacing material has been found by OSHA, based on this record to be a potentially high risk material, OSHA is reluctant to rely on inspections alone to identify it. A presumptive approach requires that material which looks like sprayed on or troweled on surfacing material, be handled with care, without waiting for inspections or relying on the results of inspections which may not correctly identify it.
The Agency asked for comment on its intention to designate thermal system insulation and sprayed-on or troweled-on surfacing material as "high-risk material." Several of those responding to the notice felt the list was too limited and should include all suspect materials ( Exs. 162-11, 162-16, 162-18, 162-24, 162-28, 162-33, 162-36, 162-39, 162-42, 162-44, 162-45, 162-46, 162-57). Some, suggested using the list EPA included in its "Green Book" entitled Managing Asbestos in Place (Ex. 162-35, 162-42, 162-44).
G. Siebert of the Office of the Secretary of Defense offered an alternate plan -- a tiered approach in which thermal system insulation and sprayed-on or troweled-on surfacing materials would be considered high-risk PACM and would be labeled and notification carried out: other material which may contain asbestos (Ex. 162-13). He suggested that other material, should be handled as ACM unless sampling indicates that it does not contain asbestos, but that it not be required to be labeled.
As suggested, OSHA considered extending its presumption requirement to other kinds of building materials which may contain asbestos. A limited extension has been made in two cases. Because of its accessibility and prevalence, the frequent difficulty of identifying its asbestos content and the frequency of maintenance activity which may disturb it matrix. The Agency is requiring that resilient flooring installed before 1980 be presumed to contain asbestos unless rebutted pursuant to the standard. Debris which is present in rooms, enclosures or areas where PACM or high risk ACM is present and not intact, is assumed to be asbestos-containing. Other building materials which may contain asbestos such as roofing material, ceiling tiles and miscellaneous products listed in EPA's "Green Book" have not been found to be both as widely prevalent and easily disturbed and damaged as are TSI and surfacing material or as widely prevalent, accessible and frequently disturbed as resilient flooring.
Therefore, OSHA believes little additional benefit will result from treating all such building materials which uncommonly contain asbestos as if they do, rather than concentrating resources on protecting employees from exposure to materials when there is actual knowledge or reason to believe they contain asbestos. OSHA notes in this regard that an employer or building owner's duty to investigate the possibility that a material contains asbestos is stronger when the consequences of failing to inquire is increased hazard to employees. For example, in the case where a large section of damaged ceiling tiles installed no later than 1980 is to be removed, an employer may not ignore the possibility that the tiles are asbestos-containing. By not including some building materials in the presumption OSHA is not reducing an employer's duty to exercise "due diligence" when exposing employees to such kinds of materials. The Agency has determined merely that the record does not compel the adoption of a presumption for such materials; in any such specific case, circumstances may require the employer or building owner to sample and analyze building materials for asbestos content, or to treat the material as if it is asbestos-containing under the standard.
On a different issue, OSHA is not specifying in the regulatory text the qualifications of the person who may designate materials as PACM. Under AHERA, inspections are required to be conducted by certified inspectors (40 CFR 763, also see recent revisions of Model Accreditation under ASHARA, 59 FR 5236-5260, February 3, 1994). The Agency has found that designation of the kinds of building materials as PACM is not an inspection. This process does not require technical training: thermal system insulation is easily recognized; sprayed on or troweled on surfacing material likewise is identifiable.
OSHA emphasizes that the presumption must apply even where it appears to knowledgeable building personnel, that material is not asbestos-containing and is composed of other materials, such as fiberglass. Therefore, OSHA has not adopted the suggestion of some participants to specify that certain materials such as fiberglass and neoprene, because they are easily identifiable, should not be included in the presumption (see Ex. 162-57). OSHA notes that HEI distinguished a "visual survey," i.e., the identification of suspect materials from more complete surveys, and notes that "this type of survey may minimize the need for trained consultants." (HEI, Ex. 1-344, at 5.1) Some participants suggested that OSHA include the condition of the material in its "high-risk" category to be subject to the presumption. Although the condition of the material influences its risk potential, OSHA continues its practice of not distinguishing materials based on their friability. However, the condition of the material is relevant to whether debris, in the presence of ACM, must be presumed to be asbestos containing. The standard requires that debris in an enclosed area where TSI or surfacing ACM is present, and not intact, be presumed to be asbestos-containing.
OSHA has not used friability to distinguish among asbestos containing materials. First, OSHA mainly regulates active disturbances of asbestos, and uses exposure levels as one element in assigning risk-based requirements. Since the friability of material will influence exposure levels, friability is partly subsumed by this reference to exposure levels. Second, the term's precise meaning is unclear, and thus, confusing to the regulated community. The EPA experience in distinguishing risk categories based on friability indicates the complexity of using this concept. In 1973 the EPA-NESHAP had regulated only friable ACM, but later issued a clarification which stated:
* * * Even though the regulations address only material that is presently friable, it does not limit itself to material that is friable at the time of notification. Rather, if at any point during the renovation of demolition additional friable asbestos material is * * * created from non-friable forms, this additional friable material becomes subject to the regulations from the time of creation (Ex. 1-239, p. 48406).
Third, OSHA's risk categories which are based on the type of material include the potential for friability. For example, surfacing material is loosely bound and therefore is potentially more friable than are other materials and thus is considered to present high risk.
The revised rule also allows the building/facility owner or employer to demonstrate, pursuant to specific criteria, that the material does not contain asbestos. The criteria, specified in paragraph (k)(4)(ii) are similar to the inspection protocols for schools in AHERA, such as sampling and analysis by a certified building inspector.
OSHA also considered allowing the use of specific information in the building/facility owner's possession relating to construction specifications to rebut the presumption. However, many who made submissions during the supplementary comment period, pointed out to the Agency that building records were rarely adequate to convincingly establish the absence of ACM in buildings and recommended that they should not be used for rebutting the presumption (Ex. 162-2, 162-4, 162-5, 162-7, 162-11, 162-12, 162-13, 162-19, 162-22, 162-24, 162-25, 162-27, 162-31, 162-32, 162-33, 162-36, 162-39, 162-42, 162-44, 162-45, 162-46, 162-54). Some felt that building records might be useful in confirming, but not rebutting, the presumption, while others deemed the only reliable records were comprised of an AHERA-like comprehensive building survey with bulk sampling data (Ex. 162-1, 162-12, 162-13, 162-24, 162-27, 162-36, 162-50, 162-58). An owner of commercial properties observed that he had often found it easier to sample the PACM than to locate adequate documentation (Ex. 162-29). A group of environmental lawyers recommended that since EPA in its NESHAP rule declined to rely on building records, OSHA should also for consistency (Ex. 162-22). Members of a consulting firm, noted that before 1980, materials containing less than 5% asbestos by volume were said to be asbestos-free (by EPA). Thus, such materials would be unlikely to appear on building records if they had contained less than 5% asbestos (Ex. 162-7).
In considering the numerous comments on the subject, most of which affirmed the general inadequacy of building records to rebut the presumption, OSHA has not included this as a method to establish that a building material does not contain asbestos.
Paragraphs (k)(1)(ii) and (k)(2)(ii) set out the notification provisions for owners and employers. They instruct them concerning who must be notified of the presence of ACM/PACM and how. Briefly, owners must notify employers who bid for work in or, as tenants, will occupy space where ACM/PACM is present. The owner must also notify employees who will perform work subject to this standard in such areas before such work is begun. This work consists of Class I through IV asbestos work, and the installation of new asbestos-containing material. Similar provisions apply to employers who are not owners. [Paragraph (k)(2)(ii)].
The BCTD suggested that notice of ACM take place early in the contracting process (Ex. 162-42) and a representative of the Interstate Natural Gas Association agreed that pre-bid notification of contractors was needed (Ex. 162-9). OSHA agrees. Requiring notification to prospective contractors at bid time will improve employee protection. Knowledge about asbestos presence gained after bidding may cause the bidder to dilute protection in order to salvage the bid. Contractors may lose time and money if they conscientiously stop a job when asbestos is discovered. Other participants echoed these reasons (see, e.g., NCRA, Tr. 2430-2432; Testimony of C. Gowan, Tr. 834-835.) Notifying employers leasing space containing ACM was also recommended (Ex 162-29).
The standard provides that notification may be either in writing or via a personal communication between the owner and persons owed notification or their authorized representatives. OSHA expects that in the case of contracts for work to be performed, notifications will be included in the bid documents. In other cases it may be "faxed," telephoned or otherwise communicated. OSHA believes these notifications, supplemented by clarified labeling requirements [see (k)(7)(vii)], and regulated area posting, will provide ample information to workers so they will not inadvertently be exposed.
During the rulemaking, participants raised various issues concerning notification. Several participants wanted accessibility to be a consideration in the approach (Exs. 162-5, 162-11, 162-14, 162-23, 162-29, 162-30, 162-33, 162-42, 162-49, 162-55, 162-58, 162-59), and BCTD suggested that "accessible" be defined as "material subject to disturbance by building or facility occupants or maintenance personnel or workers performing renovation, repair or demolition inside and/or outside buildings" (Ex. 162-42).
Most agreed that PACM and/or ACM within areas such as mechanical rooms and boiler rooms should be labeled. For example, Mr. Olson of Dow Chemical Company supported the posting of areas where those who may be exposed will see it before working there (Ex. 162-17). A representative from the Department of Defense felt that general posting in public areas would alarm building occupants and over time, lead to reduced credibility and effectiveness (Ex. 162-13). This was echoed in the comments of J. Thornton of Newport News Shipbuilding who felt that signs "may breed complacency" (Ex. 162-21). One participant worried that perhaps a tenant considering renewing his lease who had been notified of PACM within the building might choose to relocate even though there really was no asbestos-containing materials actually present in the building (Ex. 162-20). OSHA has decided that "accessibility" is relevant to posting information concerning the location of in-place asbestos. Paragraph (k)(7)(vii) requires labels to be attached at "accessible locations." OSHA agrees with BCTD's definition as well.
Some representatives of contractor interests recommended that OSHA use as a model for notification the California regulation by which the building owner provides written notification to all building employees, tenants, and contractors (Exs. 162-27, 162-32).
As noted below, paragraph (k)(7)(vii) requires previously installed asbestos products to be labeled in most circumstances; either visibly labeled in accordance with the standard, when feasible, or that information required on the label be posted as close to the installed product as feasible. Information concerning other previously-installed asbestos-containing products must be posted in mechanical rooms or other areas which are accessible where such material is present; or if the products are installed in other areas, the building owner must otherwise make such information available to employees who perform work covered by this standard. The provision exempts from labeling and posting those products which the manufacturer demonstrates cannot release fibers in excess of the PELs. OSHA has found that this exemption will never apply to PACM (TSI or surfacing ACM); rarely will it apply to other asbestos containing materials, because on this record, disturbance of ACM can exceed the PEL. As noted in the comments summarized above, there will be cases where labeling of such materials is not feasible. In such case, the standard requires that signs or labels be displayed as close as feasible to such materials. Additionally, housekeeping workers must be informed that all resilient flooring material they clean, buff or otherwise maintain may contain asbestos.
OSHA believes that the strategy for the flow of information regarding the presence and location of asbestos-containing or presume- asbestos-containing materials it has developed in this revision of its standards will assure that workers who might be exposed to asbestos within public and commercial buildings and/or facilities will be informed of the potential for such exposure and through the training provisions will be made aware of the practices they are to use to avoid exposure.
To further assure the responsible transfer of information, OSHA is requiring that records of the work performed, the location and quantity of ACM or PACM remaining at the completion of the work, and data supporting any rebuttal of the presumption that a material contains asbestos, are to be maintained by the building/facility owner and are to be transferred to successive owners of the building/facility. Further, in the event that ACM/PACM is inadvertently encountered, OSHA has included a requirement for timely notification. If during the course of asbestos work ACM or PACM is discovered at a worksite, within 24 hours of finding such material, information as to its location and quantity are to be conveyed to the building owner and any other employers at the site.
In the reopening of the record for supplemental comments in November 1992, OSHA asked for comment on the application of the proposed scheme for shipyards. There were few specific responses. J. Curran, State of North Carolina Department of Environmental Health and Natural Resources (Ex. 162-46) and BCTD (Ex. 162-42) supported applying the construction standard to shipyards. Mr. Siebert, a representative of the office of the Assistant Secretary of Defense, agreed with others in wanting a separate standard for shipyards to be developed by SESAC (Ex. 162-13).
OSHA has accepted these suggestions and has issued a separate, final standard for shipyards. Its specific provisions are discussed in appropriate places in the preamble. It is more similar to the new construction standard than to the general industry standard.
Paragraph (k)(8) covers training. It expands the training provisions of the current standard considerably. One, training must be given to virtually all employees who are actively exposed to asbestos, i.e. whose exposure is the result of performing Class I through IV work, or who install new asbestos products. Under the unrevised standard, training was triggered by exposure above the action level, i.e. 0.1 f/cc, the new PEL. As discussed above, OSHA has determined that there is a still significant risk at this level. Further, the Agency's experience in enforcing its health and safety standards, along with testimony, comment, and data in this record clearly establish that training of employees is a vital component of any successful program to control exposures to asbestos and other toxic substances. Participants agreed (see e.g., testimony of Dr. Sawyer at Tr. 2164 ". . . (T)rain the worker. I think is the most important factor.") There was substantial record support to expand training. Among those who advocated additional OSHA training requirements were: P. Heffernan of Kaselaan and D'Angelo (Ex. 7-36), K. Churchill of California Association of Asbestos Professionals (Ex. 7-95), D. Kirby of Oak Ridge National Lab (Ex. 77-111), E. Krause of the United Union of Roofers, Waterproofers (Ex. 7-115), G. Lofton of Heat and Frost Insulators and Asbestos Workers Union (Ex. 7-118), P. Curran of North Carolina State Department of Environment, Health, and Natural Resources (Ex. 7-118), W. Dundulis of the State of Rhode Island Department of Health (Ex. 7-124), BCTD (Ex. 119), American Federation of State, County and Municipal Employees (Ex. 141), Service Employees International Unions, AFL-CIO (Ex. 144), National Institute for Occupational Safety and Health (Tr. 230).
Participants supported training all employees who handle asbestos, rather than waiting for significant exposures to trigger it [see e.g., testimony of D. Kirby, Oak Ridge National Laboratory, "You need to have awareness training of . . . custodial and maintenance" people, (Tr 122); and, R. Lemen, NIOSH, who supported ". . . approved training courses for all workers who are routinely handling asbestos containing material, (Tr. 231)]."
The second major expansion of training requirements covers curriculum method and length of training. Before, in the 1986 standard, OSHA merely required that certain topics be covered in the training program.
Subsequently, as OSHA noted in its proposal, and participants noted in their comments, EPA's training requirements under the Asbestos Hazard Response Act (AHERA) become the standard for the asbestos abatement industry. Under AHERA, at the time of the proposal:
. . . Inspectors must take a 3-day training course; management planners must take the inspection course plus an additional 2 days devoted to management planning; and abatement project designers are required to have at least 3 days of training. In addition, asbestos abatement contractors and supervisors must take a 4-day training course and asbestos abatement workers are required to take a 3-day training course. For all disciplines, persons seeking accreditation must also pass an examination and participate in annual re-training courses. A complete description of accreditation requirements can be found in the Model Accreditation Plan at 40 CFR part 763, subpart E, appendix C.I.1.A. through E. (54 Fr, November 29, 1989 at 49190).
More recently, EPA has published an interim rule updating its Model Accreditation Plan (MAP) (59 FR 5236-5260, February 3, 1994) pursuant to the Asbestos School Hazard Abatement Reauthorization Act (ASHARA). Under the revisions, the length of certain courses has increased, i.e. asbestos abatement workers now must take a 4-day, rather than a 3-day course. Additionally, the entire MAP now applies to work in "public and commercial buildings as well as in schools," and requires more "hands-on" training. For example, for abatement workers 14 hours of hands-on training must be included in the 4-day training course.
The training provisions in the new standard correspond to the class of work performed. For Class I and II work, employers must provide employees with a training course which is the equivalent in curriculum, training method and length to the EPA MAP worker training described above. Keying OSHA required training to the AHERA program was supported by many participants; in many sections of the country, most training is now done using AHERA accreditation as the standard for quality, (see e.g., testimony of Daniel Swartzman, School of Public Health, Univ. of Ill, Tr. at 486. et seq.). and because AHERA training as noted above, is the recognized standard for quality in asbestos work (see. must be trained in the proposal, OSHA asked for comment on whether OSHA should provide model curricula and certification for training, and on whether and how OSHA training requirements should be reconciled with those of EPA (55 FR 29726-28).
Much debate on these issues occurred in this rulemaking. Some, most prominently, BCTD, (Ex. 143 at 220 et seq, see also Tr. 483; Tr. 1142, Tr. 3547) stated that OSHA should develop model curricula and certify training courses for asbestos workers. Reasons for this were given as: OSHA's earlier training requirements are inadequate; that "AHERA has proved successful, but needs improvement," and that AHERA should be improved by more "hands-on" training and testing and longer training (see Ex. 143 at 232).
The Agency notes that participants agreeing and disagreeing with the need for OSHA certification of trainers and courses agreed with BCTD's reasons. For example, R. Chadwick the President of Local Union 22 of the International Association of Heat and Frost Insulators and Asbestos Workers, in a letter to OSHA stated that since OSHA stipulated no specific minimum period of training, "Most abatement contractors show a 2-hour film and classify the workers being trained" (Ex. 1-175). OSHA agreed with the above comment that its 1986 training requirements fairly can be considered "bare-bones."
Although BCTD argued that the AHERA model needed improvement, BCTD acknowledged its success in improving worksite conditions (see Ex. 143 at 240, citing Ex. 7-52). EPA itself has improved its training program. As noted above, it recently issued improved model curricula, increasing the training requirements. In particular, the new MAP contains specific "hands-on" training requirements in each major course, including those of workers and supervisors (59 FR 5236-60, February 3, 1994). EPA also increased the number of training hours and now requires 4-day training of workers, and 5-day training of supervisors. Other disciplines of the AHERA program also have increased training requirements.
OSHA has reviewed recommendations carefully and has concluded that requiring OSHA to certify training courses and trainers would consume a disproportionate share of OSHA's resources. Further, establishing another system for certifying asbestos trainers and workers when another agency has a similar program in place would be duplicative of effort as well. OSHA's concerns regarding duplication of effort is also addressed in this preamble in the section on the notification of OSHA vis-a-vis that of EPA under NESHAP.
In addition, other entities have already developed more stringent curricula than those under AHERA. The HEI Report noted that under AHERA each state develops "training and certification programs for inspectors, management planner, asbestos abatement workers and supervisors that were at least as stringent as the AHERA model" (Ex. 1-344, p. 5-51). It further found that a "number of states have developed other requirements that exceeded the AHERA requirement" and that "* * * in some states AHERA certification are required for any asbestos-related work" -- not just for schools.
Paragraphs (k)(8)(i)-(v) cover curricula and length of course requirement. They allow flexibility in the new training provisions. Courses equivalent to those of AHERA (ASHARA) may be substituted, but must be equivalent in curriculum, training method, and length to that of the EPA plan. Thus, employers who in-house training program meets these requirements does not need send all workers off-site for the required training. Several commentaries objected to requiring that all training take place in EPA or state approved training centers, most also praised job-specific training as superior (e.g., Ex. 7-21, 7-39, 7-50, 7-99, 7-100, 7-102, 7-103, 7-108, 7-150).
Training Requirements for Employees Performing Class III and IV Work:
In these standards OSHA does not define the term "custodian" nor do the requirements differ based on the job title. OSHA agrees that in some facilities there is a clear distinction between custodial workers who as a participant noted, "may only * * * strip or buff floor tile or replace light bulbs in fixtures located below ACM" and maintenance workers "who * * * work on building materials or systems that contain asbestos". (ICSC, Ex. 162-58 at 10). Relying on job title, however, to assign duties is inexact and potentially non-protective. Rather in these standards, the nature of the operations performed by that worker determine the level of training required, regardless of job title; janitor, custodian, or maintenance worker. Those who perform only Class IV work must receive at least 2 hours of awareness training, and those who do Class III work must be given 16 hours of training consistent with EPA requirements for training of local education agency maintenance and custodial staff as set forth at 40 CFR 763.92(a)(2).
Workers performing these activities may be employees of the building owners or other employers such as outside housekeeping contractors, or trade contractors such as plumbing, electrical, or air conditioning contractors. They must be trained to use appropriate measures to avoid exposure to airborne asbestos.
OSHA in the November 3, 1992 notice, stated that it was considering a training requirement modelled after that of the awareness training required by EPA in its AHERA rule. OSHA further noted that in its training requirements under AHERA, EPA distinguishes between the duties and training of custodial workers and the additional duties and training needs of maintenance and service workers (40 CFR Parts 763). OSHA, too, believes that building/facility workers, who frequently disturb asbestos containing material need more extensive training.
Many who commented during the supplemental comment period agreed that OSHA should use AHERA as a general model for drafting training requirements for building/facility workers (e.g., Ex. 162-13, 162-15, 162-16, 162-18, 162-24, 162-27, 162-30, 162-35, 162-42, 162-44, 162- 45,162-46). Others, felt the existing OSHA training requirements were adequate (e.g., Ex. 162-4, 162-22). Some objected to OSHA specifying a time period in its training requirements (Ex. 162-4, 162-12, 162-17, 162-25, 162-50, 162-55, 162-57). BCTD argued that AHERA training was inadequate for OSHA's purposes, and that any employee in a building containing either ACM or PACM who does not intentionally handle the material should receive at least 4 hours of awareness training and that any worker who disturbs ACM during repair, renovation, demolition or maintenance work needs the full 5-day training course (Ex. 162-42).
Under the training provisions of AHERA, all members of the maintenance and custodial staffs (of schools) who may work in a building containing ACBM are required to receive at least 2 hours of "awareness" training whether or not they are required to work with it (40 CFR 763.92). Those who conduct an activity which will result in disturbance of ACBM shall receive both the awareness training and 14 additional hours of training.
EPA set as a minimum that the awareness training cover: -- information of uses and forms of asbestos in buildings; -- information on health effects of exposure to asbestos; -- location of ACBM in building where employee works; -- recognition of deteriorating or damaged ACBM; and, -- the identity of person responsible for management of ACBM. While the more extensive training needed by those who might disturb ACM include in addition: -- description of proper methods to handle ACBM; -- information on respirator protection -- the provisions of the AHERA rule; and, -- hands-on training on the use of protective equipment and work practices
Information in this rulemaking discussed above shows that workers who have performed work now designated Class III and IV have developed asbestos-related disease. Because as noted above, training is one of the most powerful instruments to protect workers, OSHA believes that its former training provisions must be improved by incorporating additional curricula such as covered in the AHERA courses for such workers. Imposing time criteria for courses will help insure that sufficient time for instruction is provided. More time can always be allotted, as needed.
Paragraph (k) General Industry Standard. Paragraph (l) Construction and Shipyard Employment Standards:
Housekeeping practices have been shown to be effective means of reducing employee exposure to asbestos. OSHA is specifying that the now required cleaning of floors and surfaces on which dust containing asbestos can accumulate be performed at least once per shift in primary and secondary manufacturing. In addition to the current requirement that a vacuum containing a HEPA-filter must be used, where feasible, wet methods must also be used for clean-up. Once asbestos dust is entrained, it can accumulate on surfaces leading to potentially substantial levels of exposure. Routine removal of dust can greatly reduce these accumulations and the risks that they pose.
There was little over-all objection to this provision from the participants in the rulemaking process. However, the Asbestos Information Association asked that OSHA not revise the current housekeeping requirements which specify that all surfaces be maintained as free as practicable of accumulation of dusts and wastes containing asbestos (Ex. 142, p. 7). They argue that if OSHA requires once per shift vacuuming, it would lead to less effective housekeeping efforts since vacuuming might then occur at a later time in the areas most in need of housekeeping than occurs with current cleanup whenever a fiber accumulation occurs." OSHA is unconvinced by this argument. If the employer believes that more frequent cleanup is needed, it should be performed. The standard merely requires that vacuuming be done no less often than once per shift. The employer can determine when during a shift, vacuuming is most useful and perform it then.
Flooring Maintenance Requirements
There are now a new Sec. Sec. 1926.1101 (g)(2)(iv) and 1910.1001(f)(1)(xi), which prohibit the sanding of floor tiles containing asbestos. Further, only low abrasion pads may be used at speeds lower than 300 rpm in "stripping" operations, and stripping of unwaxed or unfinished floor tile containing asbestos is prohibited. OSHA believes that without such restrictions this type of mechanized activity may result in the release of significant levels of asbestos fibers into the air. In addition, the new provisions allow asbestos-containing floors to be mechanically buffed without limitation on the speed of the buffing machine, so long as the floor has sufficient finish to preclude contact between the pad and the asbestos-containing material. In most cases, at least 3 layers of wax will provide that margin. If the manufacturer's instructions specify a thicker wax layer, those instructions must be followed. (See testimony of J. Harless of Pioneer Eclipse, ISSA).
These requirements are changed in some respects from the July, 1990 proposal, which would have further restricted stripping and burnishing activities. The prohibition concerning "sanding" of asbestos-containing floors was supported by ISSA and others, and it unchanged from the proposal. (See Ex. 136D). The changes from the proposal reflect the comments and data submitted to the record. The data show that now permitted activities are not expected to result in the release of significant asbestos contamination. In addition, since OSHA's proposal had used various terms relating to floor care imprecisely, the final provisions conform the language to the common understandings of the floor care industry. Thus, "stripping" is defined as a wet process to remove the floor polish or finish using chemical strippers, or abrasive pads. (See Ex. 136D, ISSA's comments). "Burnishing" is dry buffing of floor polish by a high-speed rotary disc machine or otherwise.
The core requirements of OSHA's new provisions are that no "sanding", i.e. the abrading of asbestos-containing material to even out the surface, is allowed: that "stripping" of finishes of asbestos-containing flooring must be conducted wet using the least abrasive pad possible; and that burnishing may be performed only on floors which have sufficient finish so that the pad does not contact the unfinished asbestos-containing material. OSHA believes that these three principles of asbestos-containing floor maintenance are sufficiently clear and flexible to apply to all kinds of floor maintenance activities, even if the activity is described using different terminology.
OSHA is basing these provisions primarily on the results of studies submitted during the rulemaking. Thus, in the most thorough and detailed study submitted to date on this topic, BCTD furnished a copy of a study by T. Marxhausen and S. Shaffer entitled "Vinyl Asbestos Tile: A study of airborne asbestos concentrations during routine floor maintenance activities." (Ex. 119X) In this study both TEM and PCM measurements were made during several operations. The results are briefly summarized in Table VIII.
Table VIII. Asbestos Fiber Levels During Floor Maintenance Activities [Ex. 119K] _______________________________________________________________________ | TEM | PCM Location | s/cc | f/cc ___________________________________________________|_______|___________ Room F1 during low speed with red pad..............| 0.069 | 0.0215 Room F2 during high speed scrub with white pad.....| .533 | .016 Room F2 during stripping with black pad............| 1.450 | .0045 Room F1 during stripping with black pad............| 1.153 | .007 Room F1 during high speed burnishing with white | | pad (after finish build-up)......................| .069 | (1) Room F2 during high speed scrub with white pad.....| .533 | .016 Room F2 during high speed scrub with white pad | | (after finish build-up)..........................| .111 | (1) Room F1 during high speed scrub with white pad | | (after finish build-up)..........................| .130 | .034 ___________________________________________________|_______|___________ Footnote(1) Not available.
The authors found that approximately 97% of the asbestos structures observed during all analyses were less than 5 microns in length (and would therefore not be seen by PCM). They concluded that "Concentrations were low during low speed scrubs and burnishing of freshly built-up, new floor finishes. High speed scrub results were highest on the worn floor but dropped to approximately one-fifth this level on freshly built-up surfaces." The authors noted that although high speed scrubs and burnishing operations used the same machine and pad, the fiber levels observed in high speed scrub operations were higher than during burnishing. They hypothesized that this had been due to condition of the floor tested or that "the limited amount of cleaning solution causes the higher values observed during high speed scrubbing operations." They expressed serious concern about the elevated TEM measurements during some of these operations and called for more extensive study.
S. Wong, Director of Environmental Health and Safety Branch of the Los Angeles Unified School District submitted a report of a study in which fiber levels were measured by TEM during various floor maintenance activities (Ex. 7-11). Using a pass-fail criterion of 5 samples less than or equal to 70 structures per square millimeter (the AHERA clearance level), she found that 5 of 7 stripping pads failed. She also found that use of a brush with a rotary powered scrubbing machine passed and that various stripping solution used in conjunction with the brush also passed. Repeated use of a pad which initially passed, continued to do so. In a final test using one of the stripping solutions and 7 other brushes, all failed. However, neither the OSHA PEL nor action level was exceeded. The report concluded with several recommendations: (1) all VAT floor maintenance using powered equipment be performed using wet methods exclusively; (2) that use of aggressive pads results in release of fibers from previously applied wax (They found 5% fibers in the old wax scraped from baseboards.) and their use should be discontinued; (3) schools continue to use only the off-white or pink pad which passed for buffing; (4) recommends discontinuance of use of power equipment to strip wax from floors unless they do not contain asbestos; and, (5) alter maintenance program to perform frequent damp mopping and less frequent stripping.
Both studies cited above were conducted after the A.F. Meyer study discussed in the proposal, which was conducted in October 1989, and which showed slightly elevated asbestos levels after routine buffing (with standard red buffing pad and standard buffing solution) and stripping. No levels, however, exceeded OSHA's proposed PELs. Two methods were used for stripping: (1) standard stripping mixture mopped on and standard black stripping pad, and (2) mist spray of stripper solution and standard black stripping pad. As noted in the proposal, the stripping conducted using a mist spray of stripping solution and the more abrasive pad resulted in significantly higher asbestos fiber airborne concentrations than the first method.
On January 25, 1990, in response to the A.F. Meyer study, EPA published a "Recommended Interim Guidance for Maintenance of Asbestos-Containing Floor Coverings," (Ex. 1-108) outlining its analysis of the Meyer's findings. The Agency concluded that, although there was "no clear evidence" that "routine" stripping significantly elevated levels of asbestos fibers, it observed that higher levels did occur after a stripping machine was used on a relatively dry, unwaxed floor.
Work practices recommended by EPA in the same guidance memo emphasize the same precautions contained in OSHA's final standards: viz. that the least abrasive pad be used for stripping, and that low speed equipment be used for stripping of floors.
OSHA notes that ACCSH's recommendations for work practices in floor maintenance also echo the themes of wet stripping, using the least abrasive pad for stripping, limiting the speed of the machine and prohibiting floor sanding, which are the core requirements in this standard. (Ex. 1-126).
In a change from the proposal, OSHA is permitting high speed buffing of finished floors containing asbestos material. A number of participants pointed out to OSHA that buffing, although performed at high speed, is done on 3 to 5 layers of wax, unlike sanding, and that the wax, not the tile, is polished in this process. (Ex. 7-19, 7-80, 7-84, 7-90, 7-100, 7-107, 7-123, 7-142, 7-188, 125D, 147 and Tr. at 3599). Michael B. Wheeler Chief Executive Officer of Essential Industries Inc., stated that:
Stripping is expensive, labor and material-intensive, and, in the context of vinyl asbestos tile something we wish to keep to a minimum. Ultra high speed maintenance techniques allow workers in heavy trafficked stores to strip their finished floors every 10-18 months as compared to every 2-3 months using older low speed techniques. (Ex. 7-188).
He went on to explain that these high speed techniques also reduce the labor requirements by at least half. He cited studies using low speed spray buffing techniques on finished VAT which yielded fiber levels ranging from 0.015 to 0.025 f/cc and quoted the WRC-TV report that "just buffing an already waxed floor does not throw up any asbestos from the asbestos tile." In addition, ISSA described additional floor maintenance procedures which increase the glossiness of the floor -- spray buffing (done at 175-300 rpm) and burnishing (done at 300-2,000 rpm). ISSA stated that if there is finish on the floor surface, these procedures do not generate unsafe levels of fibers because they do not contact the floor itself. They oppose OSHA's proposed changes prohibiting speeds of more than 190 rpm in floor machines, particularly due to increased costs in time and money. (Ex. 136D).
Based on this record, OSHA believes that employees who burnish and/or buff floors using high speed floor machines will be exposed to minimal asbestos fiber concentrations if the floor machines are used to polish finished or polished floors, and if the pad does not contact the unpolished floor. Industry also claims that the use of high speed buffing will increase the intervals where stripping is required, and thus, may reduce risk to employees who perform floor maintenance, but OSHA is not relying on this speculative benefit.
(13) Medical Surveillance
Paragraph (l) General Industry Standard. Paragraph (m) Construction and Shipyard Employment Standards.
No changes were made to this section. The medical surveillance provisions in the 1986 construction standard are now also included in the shipyard employment standard.
Paragraph (m) General Industry Standard. Paragraph (n) Construction and Shipyard Employment Standards. The recordkeeping provisions now include provisions (n)(5) and (n)(6) which require maintenance of data used to rebut the presumption that a contains asbestos, i.e., the building owner/employer who relies on data to demonstrate that PACM is not asbestos-containing must maintain the data upon which he relied for as long as they are used to rebut the presumption. In addition, where the building owner has received or provided information concerning the location, amount and identify of ACM and PACM, he must maintain written records of them and their content for the duration of ownership and must transfer them to successive owners.
(15) Competent Person
- Paragraph (o) Construction and Shipyard Employment Standards.
OSHA is adopting as final provisions most of the proposed changes to the 1986 construction standard's requirements concerning the designation of a "competent person" on certain construction worksites. The term "competent person" is derived from the generic construction standard's provisions. Under these, employers must designate a "competent person" on all construction worksites to conduct "frequent and regular inspections of the job sites, materials, and equipment" as part of required safety and health programs (Sec. 1926.20). At the suggestion of SESAC, OSHA has designated that the person who performs the shipyard duties analogous to the competent person in the construction standard will be termed a "qualified person." For the purposes of the present discussion these terms are equivalent and will be discussed as "competent person." The 1986 asbestos construction standard appeared to limit this requirement. "Competent person" supervision was required only at removal, demolition, and renovation operations which were not "small-scale, short-duration," but under the asbestos standard, the competent person was to be specially trained in asbestos hazards, and perform various duties mainly involving the setting up and control of the NPE, and the supervision of workers within the enclosure (formerly 1926.58(e)(6)(ii)).
The Court of Appeals, agreeing with BCTD, instructed OSHA to either expand the "competent person" requirement or explain more persuasively why it refused to do so. OSHA agrees that for all construction work involving asbestos exposure under this standard, a "competent person" who is specially trained in asbestos related work conditions, should either be available to employees or be present on the work site. Like other provisions in this standard, the more risky asbestos work deserves a more protective provision; so employees performing Class I and II work will have the benefit of a "competent person" on the worksite, to the extent necessary to perform his duties as set out in paragraph (o). Employees performing Class III and IV work, will be entitled to access to a "competent person" as needed.
Two issues regarding the "competent person" were discussed during the rulemaking. One was the training required; and two, whether or not the competent person needs to be present throughout the operation.
As to the second issue, the standard requires in paragraph (o)(2) and (3), that the competent person must perform the "frequent and regular inspections of the job sites, material and equipment" to accomplish "health and safety programs," which are otherwise required by the general construction provision in Sec. 1926.20(b)(2). Although no elaboration of this provision is provided, OSHA intends that in all work covered by this standard, including Class IV work and work not included in a "Class," a competent person insures, by inspecting the worksite, that workers exposed to asbestos are protected by the relevant provisions of this standard, and that they are informed pursuant to paragraph (k) of this standard about the presence and location of ACM and PACM. Additionally, paragraph (o)(3) requires that in Class I operations the "competent person" must make on-site inspections at least once during the workshift and any time at employee request. In addition, the list of specific duties of the "competent person" in paragraph (o)(3)(i) for Class I and II work includes specific language requiring the required supervision of various controls and work practices to be made through "on-site inspection."
The record supports the need for on-site supervision of setting up of controls. Chip D'Angelo, when asked what were his major concern about glove bags, testified that "Just the act of attaching * * * concerns us * * * a lot of times the material is so overly dry and very loose * * * simply attaching the bag can create some problems * * * Removing the bag, if not done properly and evacuated properly and twisted properly, actually expels fibers out into the air" (Tr. 3126). For example, he/she must be present when a glove bag is attached and determine that a smoke test is passed and again be present when the bag is removed. It is not necessary that the competent person continually watch the operation, rather that he oversees its proper completion. OSHA has not specified the ratio of on-site supervisors to abatement workers. Mr. Booher of Exxon Company, testified that "if you have three glove bag operations going on next to one another, in close proximity to one another, that one competent person can handle up to three jobs effectively" (Tr. 2677). The Agency believes that various operations need closer supervision than others; the exposure assessment should clarify how close supervision needs to be. So long as the specific activities in the standard requiring inspection are covered, the extent of the required inspections are up to the judgment of the "competent person."
Training for the competent person is the same for those who supervise Class I and II asbestos work under the standard. The training must be obtained in a course which is the equivalent of the EPA supervisor course. Unlike the training requirements for workers for Class II jobs which may concentrate on a particular kind of material if that is the only asbestos work which an employee does, the "competent person" supervising Class II jobs must be trained comprehensively in all aspects of asbestos related construction work. Thus, for example, a flooring removal supervisor must be informed about all asbestos removal control methods: this is the person who must evaluate a prospective job to assure that the PELs will not be exceeded, who must choose among available controls to reduce exposures, and must know how to supervise extensive control systems if they are needed for high exposure Class II work.
The training requirements of persons supervising Class III work are different. Most Class III work is maintaining or renovating building components. Supervisors of such work need not be trained in methods of abating asbestos material on a large scale. The EPA asbestos in schools rules, now updated to encompass commercial and public buildings requires that maintenance workers in asbestos-containing school buildings be trained in a 16-hour course which includes; proper asbestos-related work practices, waste handling and disposal, respirator use, decontamination procedures, and the content of applicable Federal, state and local asbestos regulations. All Class III workers and their supervisors must take such a course, which covers all control measures required for Class III work. In this regard OSHA notes comments which stated that training supervisors of plumbers, pipefitters, and sheet metal workers, who are engaged in projects of incidental removal that are small scale and short term, in full enclosure techniques is wasteful (see e.g. Ex. 7-151, 152, 153).
Although the formal training for supervisors and workers in Class III work is the same, additional criteria for "competency" contained in the general construction standard distinguish worker and supervisor on all asbestos jobs, including Class III.
Thus, the "competent person" must be "capable of identifying existing and predictable hazards * * * which are * * * hazardous to employees, and (have) authorization to take prompt corrective measures to eliminate them" (29 CFR 1926.32(f)). Also, the "competent person" must be designated by the employer (29 CFR 1926.20(b)(2)). OSHA notes that the "competency" of the competent person is independent of the training required. "Competency" as well as training is required. Thus, a "competent person" is not merely someone with a specified level of training but connotes a high level of knowledge of worksite safety and health issues as well.
The need for a high degree of expertise for Class III work was acknowledged by labor representatives. (See ACCSH reference in the proposal at 55 FR 29727, and R. Gobbell's testimony (Tr. 4318). Employer representatives questioned the need for this uniform training requirements for competent persons supervising all asbestos work, but also acknowledged that supervisors of maintenance projects needed training in the control methods required (See e.g.Ex. 7-151, 7-152, 153); others stated that in-house training was often superior to EPA's (see e.g. Amoco Corporation, Ex. 7-37); and that trained competent persons should be allowed to train other workers (Gulf Power Company, Ex. 7-50). OSHA is allowing in-house training so long as it meets the criteria for curriculum, length, and method of training contained in the standard.
Training for "competent persons" for Class IV work depends on when that work is performed. When Class IV workers perform their duties in facilities and buildings where no other asbestos work is taking place, the "competent person" supervising them must be trained in a course consistent with EPA requirements for training of local education agency maintenance and custodial staff as set forth at 40 CFR 763.92(a)(2). If clean-up work is done within a regulated area, supervision of the clean-up must be conducted by the "competent person" who is supervising the asbestos job for which the area was established, which in most cases will be Class I and II work.
A number of participants in the rulemaking, primarily representing industry interests, objected to the proposed requirement for a competent person specifically trained in an EPA-approved course to oversee workers performing small-scale, short duration asbestos jobs. These included: J. Bavan of Michigan Consumers Power (Ex 7-21), Mr. Quanstrom of Amoco Corporation who felt in-house training was often superior to EPA's (Ex. 7-37), and others contain virtually identical comments in which the plumbing contractors state their support.
Based on the record evidence, OSHA concludes that its expansion of the competent person requirements and additional requirements for training are appropriate.
Shipyard Employment Standard
SESAC agreed that asbestos operations should be overseen by personnel who have the qualifications to ensure that asbestos operations are performed safely; however, they noted in their submission (Ex. 7-77) that in existing OSHA shipyard standards, the term competent person(s) has been used to refer to a person who is uniquely qualified to perform entry tests preparatory to entering enclosed and confined spaces and felt that the use of this term as employed in the asbestos standard would cause confusion. They suggested that the competent person be called a "qualified" person in the shipyard standard. OSHA does not object to this substitution of terms, but notes that all requirements for competent/qualified person(s) are to be equivalent.
SESAC also pointed to a process which may be the general case in large operations, in which the duties of the shipyard qualified person are shared or divided between two or more persons. That is, in some of the larger companies represented on the committee, a training department (not a person) is responsible for ensuring that employees are trained and another department is responsible for setting up the regulated area, while an industrial hygiene department conducts all monitoring. SESAC recommended that this be specifically allowed. OSHA feels that the current regulatory language permits utilizing this organization of responsibilities and agrees with the suggestion that it is appropriate for shipyards.
The amendments to the General Industry and Construction Standards and the new Shipyard Employment Standard become effective 60 days after date of publication in the Federal Register. All existing provisions remain in effect (including coverage of Shipyards by the General Industry Standard) until the new provision's start-up dates. Various start-up dates are set forth in the standards. Where there is no start-up date for a provision, the start-up date is the effective date. If any new or amended provision is stayed by OSHA or a court or vacated by a court, the pre-existing provision becomes binding again.
Appendices A, C, D, E, and F of the General Industry Standard are binding. Appendices A, C, D, and E of the Construction Standard are binding. Appendices A, C, D, E, J, and L are binding in the Shipyard Employment Standard. Appendices B, H, I, and J of the General Industry Standard are not binding. Appendices B, F, H, I, and K of the Construction Standard are not binding. Appendices B, F, H, I, and K of the Shipyard Employment Standard are not binding. They are intended neither to add to or detract from binding requirements.
Shipyard Employment Standard. With respect to the appendices to the standard, SESAC recommended inclusion of the appendix dealing with work practices and engineering controls for automotive brake and clutch repair and assembly in the shipyard standard. OSHA agrees that this appendix is appropriate to the shipyard employment standard, since these activities occur within shipyards and has included this as appendix L in the shipyard employment standard. OSHA further notes that this appendix has been amended subsequent to consideration by SESAC, and therefore differs from the alternate regulatory language suggested by the committee. For example, the Agency no longer considers the solvent spray can a preferred method for controlling asbestos contamination and will not include it in either standard.
All changes indicated in this document are to be made to Appendix A of the asbestos standards and all changes are the same for 1910.1001, 1915.1001, and 1926.1101.
- In the explanatory paragraph at the beginning of Appendix A phrase:
- "(such as the NIOSH 7400 Method)" is replaced with:
"(such as Appendix B of this regulation, the most current version of the OSHA method ID-160, or the most current version of the NIOSH Method 7400)."
This change is made to assure that the analytical methodologies followed are the most current and reliable available. Appendix B of this standard has been updated and is the most current version of OSHA ID-160. This method was written to adhere to the language of Appendix A so that there would be no confusion about the limits of the sampling and analytical parameters such as flow rates. So long as parameters consistent with Appendix A are used, there will be no analytical differences between ID-160 and NIOSH 7400 methods.
- Sampling and Analytical Procedure paragraph 2:
- The following sentence is added to the end of the paragraph:
- "Do not reuse or reload cassettes for asbestos sample collection."
The practice of reusing cassettes can result in lower estimates of employee exposure. Adequate cleaning of the cassettes cannot be assured. Fibers from the cassette may become dislodged and be collected on the filter during subsequent sampling. Employee exposure assessments are often assessed based on a small number of fibers. This is because it is not possible in every work place to use single cassettes for an entire work shift due to excess dust in the air. This is significant for occupational exposures, because the background fiber concentration must be subtracted from the compliance sample. If fugitive fibers from used cassettes were deposited on the blank filter, the background estimate would be artificially high and the employee exposure will be underestimated when the background concentration is subtracted as required. Elimination of the practice of reusing cassettes will eliminate this source of error, thereby better assessing employee exposure. A requirement that cassette reuse not be allowed is added to the end of paragraph 2 of Appendix A.
- Paragraph 11 is revised as follows:
11. Each set of samples taken will include 10% field blanks or a minimum of 2 field blanks. These blanks must come from the same lot as the filters used for sample collection. The field blank results shall be averaged and subtracted from the analytical results before reporting. A set consists of any sample or group of samples for which an evaluation for this standard must be made. Any samples represented by a field blank having a fiber count in excess of the detection limit of the method being used shall be rejected.
The original wording of the standard was inadequate to apply meaningfully to certain sampling practices, such as continuous sampling. This change establishes that the blanks are to be field blanks. This wording also establishes when blanks are to be taken. The specific practice to be followed for blank correction is outlined in Appendix B, the detailed analytical method. Each time an evaluation of work place exposure is made for the purposes of this standard, the samples used in that evaluation must be represented by valid blanks taken in the work space where the compliance samples were taken.
- The following changes apply to the Quality Control Section.
Paragraph 2 is renumbered 2(a). Since the standard was promulgated, the lack
of a specific requirement to participate the Program for Analytical Testing
(PAT) has led to confusion with the requirement that laboratories participate
in a round robin using samples taken from real world samples.
- A second paragraph is added directly following 2(a) and is denoted 2(b).
2(b) All laboratories should participate in a national sample testing scheme such as the Proficiency Analytical Testing Program (PAT), the Asbestos Registry sponsored by the American Industrial Hygiene Association (AIHA).
This is a requirement of OSHA method ID-160 and NIOSH 7400. This requirement was originally left out of the standard because of the uncertain status of the PAT program at the time of promulgation of the standard. Inclusion at this time is to make it clear that the required participation in a round robin indicated in paragraph 2(a) is not satisfied by participation in the PAT program. Such participation is however, highly desirable and may be required for private accreditation.
Since the original promulgation of the asbestos standards, there have been several improvements and refinements to the analytical procedure. Two major analytical methods reflect these changes and continue to be updated as necessary. The changes are mostly procedural, providing safer analysis and clearer descriptions of the procedures that are to be carried out. As a result, Appendix A and Appendix B have been updated to reflect the most recent refinements.
Changes to the mandatory asbestos method Appendix A are intended to clarify some of the requirements of the method. Wording has been inserted to indicate what methods are acceptable. A definition of what constitutes a "set" of asbestos samples was added to more clearly define when blank samples are to be taken and to reinforce that they are to be field samples.
Paragraph 11 is amended to clarify what a set of samples is and when it is necessary to take blank samples.
An early draft version of NIOSH method 7400 was used for the model of Appendix B. There were several problems with the method including the potentially dangerous practice of boiling acetone. This appendix has been replaced entirely with the most current version of OSHA method ID-160 Asbestos in Air. The OSHA ID-160 give the same results as NIOSH 7400 when used within the sampling constraints imposed by Appendix A, notably the flow rate limits of between 0.5 and 5 liters per minute for the 25 mm cassette and 1 to 5 for the 37 mm cassette. The counting rules are functionally the same for both methods. Use of Appendix B, OSHA ID-160 or NIOSH method 7400 when used within the constraints of Appendix A are all acceptable and equivalent. Appendix B is the same as OSHA method ID-160 on the date of publication of these changes. It, like NIOSH method 7400, is subject to change when such changes will result in better methodology.
As the PEL has been lowered to 0.1 fiber/cc, there is an increased concern about sample overloading as voiced by several commentors such as the American Industrial Hygiene Association (AIHA). Such overloading is the presence of non-asbestos dust on the surface of the filter obscuring the filter surface. Such dust has been shown to decrease the number of fibers counted even before the surface is fully obscured. Some employers have taken samples in such a way that there are no representative samples for the work being performed because all of the filters have been obscured by excess dust. The intention of Appendix A is to provide for the most precise measurement possible while allowing for the fact that many work places have an exceeding amount of non-asbestos dust. Appendix A suggests that a sample be collected such that there are a minimum of 100 fibers/mm(2). In many work places this is not possible. It is preferable to collect a sample that can be used to estimate the asbestos concentration even if it is with a higher than ideal error level than it is to collect a large volume and completely obscure the filter rendering the sample useless.
An acceptable weight of dust on the filter is highly dependent on the average particle size of the dust. Very small particles such as those from diesel exhaust will quickly obscure the filter with very little weight (much less than 1 mg on the filter). On the other hand, large particles may load the weight up beyond several milligrams with little loss in fiber count. For 5 micrometer diameter particles with a density of 3, 25% of the filter area will be obscured with a total weight on the filter of 1mg. Increasing the average diameter of the particles to 10 micrometers will double the allowable weight to 2mg. It is very important for the person conducting sampling to be careful about the dust levels in the air. It is acceptable to take a series of samples to model the work place air when serial sampling will result in samples that can be used. Serial sampling has the additional benefit that higher asbestos concentrations can be measured by reducing the volume of air drawn through each filter.
OSHA is removing appendix G from the construction standard. The rulemaking proceeding and the Agency's experience enforcing the unrevised standard showed that this "non-mandatory" appendix was unclear and that portions of it belonged in the regulatory text. Former appendix G covered controls for all four classes of asbestos work. Therefore, OSHA has extracted the main provisions covering various controls and practices required for each class and placed them as discussed in the regulatory text applying to each operation covered.
OSHA knows that some employers would like additional guidance on specifications for required work practices and controls. The EPA "Greenbook," (Ex. 1-183), NIBS Guidance Manual (Ex. 1-371) and other sources of specific work practices are available.
OSHA method ID-191 for bulk asbestos analysis has been included as Appendix J, to provide a suggested uniform method for the identification of asbestos. This method uses polarized light optics on a phase contrast microscope. Using this methodology, fibers visible in phase contrast illumination can be viewed to assess whether there might be potential for asbestos exposure from a material which can be measured by a phase contrast counting method. This method also contains the criteria used by OSHA to differentiate between asbestiform and non-habit of minerals. The text of the method is informational and explains its limitations and proper use.
Environmental Assessment; Findings of No Significant Impact
OSHA has reviewed the environmental impact in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.), the Council on Environmental Quality (CEQ) NEPA regulations (40 CFR Part 1500), and OSHA's NEPA compliance procedures (29 CFR Part 11).
As a result of this review, OSHA has determined that these regulations will have no impact on air, water or soil quality, plant or animal life, or the use of land or aspects of the external environment. Therefore, OSHA concludes there will be no significant impact on the general quality of the human environment outside the workplace, particularly in terms of ambient air quality, water quality, or solid waste disposal. No comments made at the public hearing or submitted to the record contradict this conclusion.
State Plan Requirements
The 25 States and territories with their own OSHA-approved occupational safety and health plans must revise their existing standards within six months of the publication date of the final standards or show OSHA why there is no need for action, e.g., because existing state standards are already "at least as effective" as the new Federal standards. These States are: California, Connecticut (State and local government workers only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan Minnesota, Nevada, New Mexico, New York (State and local government workers only), North Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington and Wyoming. Until such time as a State standard is promulgated, Federal OSHA will provide interim enforcement assistance, as appropriate.
The standard has been reviewed in accordance with Executive Order 12866 (52 FR 41685; October 30, 1987) regarding Federalism. This Order requires that agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. The Order provides for preemption of State law only if there is a clear constitutional authority and the presence of a problem of national scope. Additionally, the Order provides for preemption of State law only if there is a clear Congressional intent for the agency to do so. Any such preemption is to be limited to the extent possible.
Section 18 of the Occupational Safety and Health Act (OSH Act), expresses Congress' clear intent to preempt State laws relating to issues with respect to which Federal OSHA has promulgated occupational safety or health standards. Under the OSH Act a State can avoid preemption only if it submits, and obtains Federal approval of, a plan for the development of such standards and their enforcement. Occupational safety and health standards developed by such Plan-States must, among other things, be at least as effective in providing safe and healthful employment and places of employment as the Federal standards.
The Federally promulgated Asbestos standard is drafted so that workers in every State would be protected by general, performance-oriented standards. To the extent that there are State or regional peculiarities that could alter work practices, States with occupational safety and health plans approved under section 18 of the OSH Act would be able to develop their own State standards to deal with any special problems. Moreover, the performance nature of this final standard, of and by itself, allows for flexibility by States and contractors to provide as much safety as possible using varying methods consonant with conditions in each State.
In short, there is a clear national problem related to occupational safety and health of workers. While the individual States, if all acted, might be able collectively to deal with the safety problems involved; most have not elected to do so in the twenty-three years since the enactment if the OSH Act. Those States which have elected to participate under section 18 of the OSHA Act would not be preempted by this final regulation and would be able to deal with special, local conditions within the framework provided by this performance-oriented standard while ensuring that their standards are at least as effective as the Federal standard.
- [59 FR 40964, Aug. 10, 1994; 60 FR 33973, June 29, 1995]
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