[Federal Register Volume 63, Number 183 (Tuesday, September 22, 1998)]
[Rules and Regulations]
[Pages 50712-50732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25211]
[[Page 50711]]
_______________________________________________________________________
Part V
Department of Labor
_______________________________________________________________________
Occupational Safety and Health Administration
_______________________________________________________________________
29 CFR Part 1910
Methylene Chloride; Final Rule
Federal Register / Vol. 63, No. 183 / Tuesday, September 22, 1998 /
Rules and Regulations
[[Page 50712]]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. H-71]
RIN 1218-AA98
Methylene Chloride; Final Rule
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Final rule.
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SUMMARY: OSHA is amending its standard regulating occupational exposure
to methylene chloride (29 CFR 1910.1052) by adding a provision for
temporary medical removal protection benefits for employees who are
removed or transferred to another job because of a medical
determination that exposure to methylene chloride may aggravate or
contribute to the employee's existing skin, heart, liver, or
neurological disease. OSHA is also amending the startup dates by which
employers in certain identified application groups, i.e., who use MC in
certain work operations, must achieve the 8-hour time-weighted-average
permissible exposure limit and the dates by which they must achieve the
short-term exposure limit by means of engineering controls.
On May 4, 1998, OSHA published for comment amendments to the
standard along the lines requested in a motion for reconsideration
filed by the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), the Halogenated
Solvents Industry Alliance, Inc., and others. OSHA reopened the
rulemaking record for 30 days for the limited purpose of receiving
public comment on the amendments (63 FR 24501, May 4, 1998). Based on
the rulemaking record and the comments received, OSHA is now adopting
the amendments as published, with one minor modification.
DATES: This final rule becomes effective on October 22, 1998, except
that the revision of paragraph (n)(2) of Sec. 1910.1052 (regarding
start-up dates) becomes effective September 22, 1998. See SUPPLEMENTARY
INFORMATION for a table of start-up dates established in this final
rule.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor for Occupational Safety and Health, Office of
the Solicitor, Room S-4004, 200 Constitution Ave., N.W., Washington, DC
20210, as the recipient of petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, OSHA Office
of Public Affairs, U.S. Department of Labor, Room N3647, 200
Constitution Avenue, NW, Washington, DC 20210, telephone (202) 219-
8151.
SUPPLEMENTARY INFORMATION: The startup dates established by the
methylene chloride standard, as amended by this final rule, are shown
in the following table, with the provisions whose startup dates have
already passed listed as being ``in effect.''
Startup Dates Established in This Final Rule
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Employers in selected Employers in selected
Employers in selected All other employers with applications* with 1-49 applications* with 50 or All other employers
applications* with fewer fewer than 20 Polyurethane foam mfrs. with employees and foam more employees and foam with 20 or more
than 20 employees employees*** 20 or more employees fabricators with 1-149 fabricators with 150 or employees
employees more employees
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Engineering controls to achieve 8- April 10, 2000........... April 10, 2000.......... October 10, 1999.............. April 10, 2000.......... April 10, 1999.......... In effect.
hour TWA PEL and STEL.
Respirators to achieve 8-hour TWA April 10, 2000........... In effect............... October 10, 1999**............ April 10, 2000.......... April 10, 1999.......... In effect.
PEL.
Respirators to achieve STEL...... In effect................ In effect............... In effect..................... In effect............... In effect............... In effect.
All other provisions............. In effect................ In effect............... In effect..................... In effect............... In effect............... In effect.
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* The selected applications/operations are: furniture refinishing; general aviation aircraft stripping; product formulation; use of MC-based adhesives for boat building and repair,
recreational vehicle manufacture, van conversion, or upholstery; and use of MC in construction work for restoration and preservation of buildings, painting and paint removal, cabinet making,
or floor refinishing and resurfacing.
** Due to a typographical error, this date was listed as October 10, 2000 in the table accompanying the notice of the motion for reconsideration. However, the date of October 10, 1999 is
consistent with the motion.
*** This column was inadvertently omitted from the table accompanying the notice for the motion for reconsideration but is consistent with the text of the motion.
OMB Review Under the Paperwork Reduction Act
OSHA submitted an amended Methylene Chloride Information Collection
Request (ICR) to the existing Methylene Chloride ICR (OMB Control
Number 1218-0179) when the proposal for Methylene Chloride: Notice of
Motion of Reconsideration was published. This amendment calculated
burden hours and costs for the additional medical examinations
resulting from the inclusion of the Medical Removal Protection
provisions. On July 2, 1998, OMB approved the amendment. All methylene
chloride collections of information expire on 7/31/2001.
This final rule also extends the compliance dates for the
implementation of engineering controls and respiratory protection for
employees engaged in selected activities. Paragraphs (n)(2)(A), (B),
and (C) provide new implementation dates for engineering controls for
employers engaged in the following: polyurethane foam manufacturing;
foam fabrication; furniture refinishing; general aviation aircraft
stripping; product formulation; adhesive users using adhesives for boat
building and repair, recreational vehicle manufacture, van conversion,
and upholstering; and construction work. Those employers who choose the
option of postponing the implementation of engineering controls and
respiratory protection are required to conduct quarterly short-term
exposure limit (STEL) monitoring until implementation of the
engineering controls and respiratory protection. Since this requirement
is already present in the final MC standard, the Agency will submit an
ICR to OMB to increase those
[[Page 50713]]
burden hours attributed to the additional monitoring. Under 5 CFR
1320.5(b), an agency may not conduct or sponsor a collection of
information unless: (1) the collection of information displays a
currently valid OMB control number; and (2) the agency informs the
potential persons who are to respond to the collection of information
that such persons are not required to respond to the collection of
information unless it displays a currently valid OMB control number.
I. Background
On January 10, 1997, OSHA issued a standard regulating occupational
exposure to methylene chloride (MC)(62 FR 1494, January 10, 1997)
codified at 29 CFR 1910.1052. The standard was designed to reduce both
the risk that worker exposure to MC will cause cancer and the risk that
MC will cause or aggravate certain other adverse health effects. The
standard reduced the prior 8-hour time-weighted-average permissible
exposure limit (8-hour TWA PEL) to MC from 500 parts per million (ppm)
to 25 ppm. It also set a short term exposure limit (STEL) of 125 ppm
averaged over a 15 minute period.
The 8-hour TWA PEL was set at 25 ppm to reduce, to the extent
feasible, the risk that workers exposed to MC would develop cancer.
Data showing that MC exposure presents a risk of cancer included animal
bioassay data in multiple species, mechanistic studies detailing the
metabolism of MC to carcinogenic products in humans, and
epidemiological studies suggesting an elevated risk of biliary cancer
and astrocytic brain cancer in MC-exposed workers. The agency used a
physiologically-based pharmacokinetic (PBPK) model to estimate the
cancer risk. OSHA's final risk assessment estimated that, at the prior
8-hour TWA PEL of 500 ppm (a level that the Agency found was
considerably higher than the level at which most affected workers were
currently exposed, see 62 FR 1565, January 10, 1997), lifetime
occupational exposure to MC could result in approximately 125 excess
cancer deaths per 1000 exposed workers (62 FR 1563, January 10, 1997,
Table VII). At the new 8-hour TWA PEL of 25 ppm, OSHA estimated that
the excess cancer risk would be reduced to approximately 3.6 deaths per
1000 workers. Id. OSHA concluded that a significant risk to workers
remains at an exposure level of 25 ppm but set the 8-hour TWA PEL at
that level because it was the lowest level for which OSHA could
document feasibility across all the affected application groups (62 FR
1575, January 10, 1997).
The STEL was set at 125 ppm to minimize the adverse health effects
caused by acute exposure to MC. Central nervous system (CNS) depression
has been observed at MC concentrations as low as 175 ppm. CNS
depression is characterized by fatigue, difficulty in maintaining
concentration, dizziness, and headaches. These consequences of MC
exposure constitute material impairments of health and, by reducing
workers' coordination and concentration, can lead to workplace
accidents. Also, MC is metabolized to carbon monoxide (CO) and
therefore causes health impairment similar to that caused by direct
exposure to CO. Carbon monoxide blocks the oxygen binding site on
hemoglobin, producing carboxyhemoglobin, or COHb. Elevated COHb levels
reduce the supply of oxygen to the heart and can aggravate pre-existing
heart disease and lead to heart attacks. Physical exertion increases
the concentration of COHb in MC-exposed workers and thus increases the
risk of a heart attack, particularly for persons with silent or
symptomatic cardiac disease, who may be susceptible to very small
increases in COHb due to an already impaired blood supply to the heart.
The liver and skin are also susceptible to acute effects from MC
exposure. Chlorinated hydrocarbons as a class (of which MC is a member)
are generally toxic to the liver. However, animal studies indicate that
MC is among the least hepatotoxic of this class of compounds. The
limited amount of human data that are available is inconclusive but
supports the hypothesis that MC is toxic to the liver (62 FR 1515,
January 10, 1997). Prolonged skin contact with MC also causes
irritation and skin burns (62 FR 1609, January 10, 1997).
Employers must achieve the 8-hour TWA PEL and the STEL, to the
extent feasible, by engineering and work practice controls. If such
controls are unable to achieve the exposure limits (and during the time
they are being implemented), employers must provide appropriate
respirators at no cost to employees and ensure that employees use them.
The standard does not permit the use of air-purifying respirators to
protect against MC exposure because MC quickly penetrates all currently
available organic vapor cartridges, rendering air-purifying respirators
ineffective after a relatively brief period of time. Therefore, when
respiratory protection is required, the standard provides that
atmosphere-supplying respirators must be used.
The standard requires employers to provide medical surveillance to
employees who are exposed to MC either (1) at or above the action level
(12.5 ppm) on 30 or more days per year or at or above the 8-hour TWA
PEL or STEL on 10 or more days per year; (2) at or above the 8-hour TWA
PEL or STEL for any time period where an employee who has been
identified by a physician or other licensed health care professional as
being at risk from cardiac disease or from some other serious MC-
related health condition requests inclusion in the medical surveillance
program; or (3) during an emergency. The medical surveillance must
include a comprehensive medical and work history that emphasizes
neurological symptoms, skin conditions, history of hematologic or liver
disease, signs or symptoms suggestive of heart disease (angina,
coronary artery disease), risk factors for cardiac disease, MC
exposures, and work practices and personal protective equipment used
during such exposures. The standard's medical surveillance procedures
focus on MC's noncarcinogenic health effects because a medical
surveillance program cannot detect MC-induced cancer at a preneoplastic
stage (62 FR 1589, January 10, 1997). However, the standard's medical
surveillance provisions can lead to early detection of cancer and to
higher survival rates from early treatment.
OSHA found that the standard was both technologically and
economically feasible in all of the industrial applications that use
MC. However, the Agency recognized that larger employers are better
able than smaller ones to absorb or pass through the costs associated
with compliance with the standard. To avoid placing an undue economic
burden on small businesses, OSHA provided for later startup dates for
small employers. Larger employers were given until April 10, 1998 (one
year after the standard's effective date) to complete installation of
engineering controls to achieve the PEL and STEL, while employers with
fewer than 20 employees were given a total of three years, or until
April 10, 2000, to do so. Employers with fewer than 20 employees were
also given more time than larger employers to comply with the other
provisions of the standard. In addition, intermediate startup dates
were established for polyurethane foam manufacturers with 20-99
employees because OSHA anticipated that firms in that group could have
somewhat higher capital expenditures to meet the requirements of the
standard.
After the methylene chloride standard was issued, the International
Union, United Automobile, Aerospace and Agricultural Implement Workers
of
[[Page 50714]]
America (UAW), the Halogenated Solvents Industry Alliance, Inc. (HSIA),
and others filed a motion with OSHA asking the Agency to reconsider two
aspects of the standard: (1) the agency's decision not to include
medical removal protection benefits in the medical surveillance
provisions of the standard; and (2) the startup dates for engineering
controls and for use of respirators to achieve the 8-hour TWA PEL for
employers using MC in certain specific applications. Those applications
are:
Polyurethane foam manufacturing;
Foam fabrication;
Furniture refinishing;
General aviation aircraft stripping;
Formulation of products containing methylene chloride;
Boat building and repair;
Recreational vehicle manufacture;
Van conversion;
Upholstery; and
Use of methylene chloride in construction work for
restoration and preservation of buildings, painting and paint removal,
cabinet making and/or floor refinishing and resurfacing.
II. Summary and Explanation of the Final Rule
After receiving the motion for reconsideration, OSHA published a
notice of the motion in the Federal Register that contained changes to
amend the rule substantially as requested in the motion. 63 FR 24501
(May 4, 1998). In that notice, OSHA explained why it believed the
amendments requested in the motion were justified and were consistent
with the rulemaking record. OSHA reopened the record for 30 days to
allow the public an opportunity to comment on the amendments. Most of
the comments the agency received supported the amendments. Several
comments in opposition were received. In this section, OSHA describes
the amendments to the MC standard being made by this final rule,
explains why it concludes the amendments are appropriate in light of
the entire rulemaking record, and discusses the comments received in
response to the reopening of the record.
Medical Removal Protection Benefits
In this final rule, OSHA is modifying the medical surveillance
provisions in paragraph (j) of the MC standard to provide for limited
medical removal protection (MRP) benefits.
As discussed above, paragraph (j)(1) of the standard requires
employers to provide medical surveillance to employees exposed to
methylene chloride (1) at or above the action level on 30 or more days
per year or at or above the 8-hour TWA PEL or STEL on 10 or more days
per year; (2) at or above the 8-hour TWA PEL or STEL for any time
period where an employee who has been identified by a physician or
other licensed health care professional as being at risk from cardiac
disease or from some other serious MC-related health condition requests
inclusion in the medical surveillance program; or (3) during an
emergency. Such surveillance includes [paragraph (j)(5)] a
comprehensive medical and work history that emphasizes neurological
symptoms, skin conditions, history of hematologic or liver disease,
signs or symptoms suggestive of heart disease (angina, coronary artery
disease), risk factors for cardiac disease, MC exposures, and work
practices and personal protective equipment used during such exposures.
Paragraph (j)(9) requires the employer to ensure that the physician or
other licensed health care provider (PLHCP) who conducts the medical
examination provides a written opinion regarding the results of that
examination.
Originally, paragraph (j)(9)(i)(A) required that written opinion to
include the PLHCP's opinion as to ``whether the employee has any
detected medical condition(s) which would place the employee's health
at increased risk of material impairment from exposure to MC.'' That
paragraph is being amended to provide that the PLHCP's written opinion
must include ``whether exposure to MC may contribute to or aggravate
the employee's existing cardiac, hepatic, neurological (including
stroke) or dermal disease or whether the employee has any other medical
condition(s) which would place the employee's health at increased risk
of material impairment from exposure to MC.'' If the PLHCP recommends
removal because exposure to MC may contribute to or aggravate the
employee's existing cardiac, hepatic, neurological (including stroke)
or dermal disease, new paragraph (j)(11) requires the employer to
either transfer the employee to comparable work where MC exposure is
below the action level or remove the employee from MC exposure. In
either case, the employer must provide MRP benefits to the employee
under paragraph (j)(12) by maintaining, for up to six months, the
employee's earnings, seniority, and other employment rights and
benefits as though the employee had not been removed from MC exposure
or transferred to a comparable job.
As explained in the notice, MRP benefits are designed to improve
employee participation in medical surveillance by removing a potential
economic disincentive to such participation. The medical surveillance
conducted under the standard can result in a medical opinion that
continued MC exposure would endanger the health of a particular worker
and a recommendation that the worker should be removed from his or her
present job or have his or her work activities otherwise restricted.
The possibility of job loss or transfer can lead to concern among
workers that participation in medical surveillance could endanger their
livelihoods. For this reason, OSHA has generally found that employees
will be reluctant voluntarily to cooperate in medical surveillance
programs if they believe they could suffer a loss of income as a
result. See, e.g., 50 FR 51120, 51154-56 (Dec. 13, 1985) (cotton dust
standard); 43 FR 54442-54449 (Nov. 21, 1978) (lead standard). OSHA
similarly found, when it issued the MC standard, that MRP benefits
would increase employee participation in medical surveillance by
removing an economic disincentive to such participation (62 FR 1595,
January 10, 1997).
Although OSHA found that MRP benefits would improve employee
participation in medical surveillance, the Agency did not provide for
such benefits when it originally issued the MC standard. The Agency
noted that there was no biological marker to indicate whether an
employee's continued exposure to MC would unduly endanger the
employee's health, nor could the Agency identify any other objective
criteria that could be used to determine when an employee's exposure to
MC should be restricted for medical reasons. Because it did not believe
it could offer substantive guidance to medical professionals as to when
it would be appropriate to remove an employee from further MC exposure
or to return a removed employee to the workplace, OSHA decided not to
require employers to provide MRP benefits. 62 FR at 1595.
The motion for reconsideration suggested that a provision limiting
MRP benefits to situations in which a PLHCP recommends removal based on
an opinion that continued exposure to MC would contribute to or
aggravate an employee's existing cardiac, hepatic, neurological, or
dermal disease would provide sufficient guidance to PLHCPs because the
specified organs are the ones known or believed to be susceptible to
the noncarcinogenic effects of MC exposure. The parties further
recommended that OSHA instruct PLHCPs to presume that an employee's
medical condition is unlikely to require medical removal if
[[Page 50715]]
the employee is not exposed to MC above the 8-hour TWA PEL. New
paragraph (j)(10) includes that presumption and requires employers to
remove such an employee only if the PLHCP cites specific medical
evidence in support of a removal recommendation.
OSHA believes that the MRP benefits provision recommended in the
motion gives adequate guidance to the PLHCPs who are called upon to
make recommendations for or against medical removal under the standard.
The provision is consistent with MRP provisions in earlier standards
that base medical removal decisions on the informed judgment of the
health care professionals who conduct medical surveillance under the
standards. For example, the lead standard (29 CFR 1910.1025), in
addition to requiring medical removal based on high blood lead levels,
requires medical removal ``on each occasion that a final medical
determination results in a medical finding, determination, or opinion
that the employee has a detected medical condition which places the
employee at increased risk of material impairment to health from
exposure to lead.'' The cadmium standard (29 CFR 1910.1047) requires
medical removal if certain biological triggers are met or if a written
medical opinion determines that removal is justified by ``evidence of
illness, other signs or symptoms of cadmium-related dysfunction or
disease, or any other reason deemed medically sufficient. . . .'' The
formaldehyde standard (29 CFR 1910.1048) provides for medical removal
if there is a medical finding ``that significant irritation of the
mucosa of the eyes or of the upper airways, respiratory sensitization,
dermal irritation, or dermal sensitization result from workplace
formaldehyde exposure and recommends restrictions or removal.''
The American Association of Occupational Health Nurses (AAOHN)
suggested that the criteria for medical removal are insufficiently
specific and will be difficult for health care professionals to apply
(Ex. 3-12). AAOHN states that medical removal works well when it is
based on specific biological criteria, such as blood lead levels, but
not when it is based on a health care professional's opinion that
continued exposure to a contaminant will endanger a worker's health.
OSHA disagrees. As noted above, the lead, cadmium, and formaldehyde
standards provide for medical removal based on a health care
professional's opinion that an employee's existing medical condition
will be aggravated by continued exposure to the chemical. OSHA's
experience under these standards has shown that the health care
professionals who provide medical surveillance have received sufficient
guidance from those standards as to when medical removal is
appropriate, even when removal is required by medical conditions other
than numerical biological triggers. OSHA thus has confidence that the
MRP benefits provision in the MC standard, which similarly relies on
the informed judgment of health care professionals, will give
sufficient guidance to the PLHCPs who will be called upon to make
medical removal decisions under the standard.
Organization Resources Counselors, Inc. (ORC) criticized the MRP
benefits provision on the basis that OSHA had not estimated the extent
to which MRP benefits will increase worker participation in medical
surveillance or what incremental benefits might result (Ex. 3-13).
Although OSHA cannot quantify precisely the extent to which MRP
benefits will increase participation in medical surveillance, it has
been OSHA's experience that substantial numbers of workers will be
discouraged from participating in medical surveillance if there is a
financial disincentive to such participation. For example, in Phelps
Dodge Corp., 11 O.S.H. Cas. (BNA) 1441 (Rev. Comm'n 1983), it was
reported that 42% of employees failed to undergo medical examinations
when they were required to take the examinations on their personal time
and provide their own transportation to and from the hospital.
Moreover, the workers who most need medical surveillance are those in
poor or marginal health, and such workers are likely to be particularly
concerned that a medical examination may result in a recommendation
that they be removed from their current job. Because MRP benefits will
remove a significant financial disincentive to employees participating
in medical surveillance, OSHA expects this final rule to result in a
significant increase in the number of workers who cooperate with the
medical surveillance provided under the MC standard.
Paragraph (j)(10) requires the PLHCP to presume that MC exposure
below the 8-hour TWA PEL is not likely to aggravate an existing disease
of the heart, liver, central nervous system, or skin. Under this
paragraph, a PLHCP may still recommend removal of an employee who is
exposed below the 8-hour TWA PEL but must cite specific medical
evidence to support the recommendation. Absent such evidence, the
employer need not remove the employee. The rulemaking record contains
no evidence that exposures below the 8-hour TWA PEL will generally
aggravate existing cardiac, hepatic, neurological, and skin diseases,
and OSHA therefore believes it is appropriate to require the PLHCP to
specifically justify a recommendation that an employee exposed below
the 8-hour TWA PEL be medically removed. No comments were received
concerning this provision.
When a PLHCP recommends medical removal within the terms of the
standard, paragraph (j)(11) requires the employer either to transfer
the employee to comparable work where MC exposures are below the action
level or to remove the employee from MC exposure. For each employee
thus transferred or removed, the employer must maintain the employee's
earnings, seniority, and other employment rights and benefits for up to
six months. The employer may cease paying MRP benefits before the end
of the six-month period upon receipt of a medical determination that
the employee's exposure to MC will no longer aggravate any existing
cardiac, hepatic, neurological, or dermal disease, or upon receipt of a
medical determination concluding that the employee can never return to
MC exposure above the action level.
The final rule also adopts provisions similar to those OSHA has
included in previous standards that provide for MRP benefits. These
provisions (1) allow an employer to condition an employee's receipt of
MRP benefits on participation in follow-up medical surveillance
[paragraph (j)(12)(ii)]; (2) provide for a reduction in MRP benefits to
offset any workers' compensation indemnity payments the employee
receives for the same period of time [paragraph (j)(12)(iii)]; (3)
provide an offset of MRP benefits against compensation from a publicly
or employer-funded compensation program or income the employee receives
from other employment that is made possible by virtue of the employee's
removal [paragraph (j)(12)(iv)]; and (4) require the employer to pay
MRP benefits if it voluntarily removes or restricts an employee due to
the effects of MC exposure on the employee's medical condition
[paragraph (j)(13)].
The Southern Company (Ex. 3-14) contended that OSHA lacks the
statutory authority to provide for MRP benefits and that employee wages
should be left to the collective bargaining process. However, the Court
of Appeals for the D.C. Circuit has upheld OSHA's statutory authority
to require employers to provide MRP
[[Page 50716]]
benefits. United Steelworkers v. Marshall, 647 F.2d 1189, 1230 (D.C.
Cir. 1980), cert. denied, 453 U.S. 913 (1981). The Court observed that
safety issues have traditionally been a subject for collective
bargaining but that Congress, by giving OSHA authority to regulate
occupational safety and health, expected OSHA regulations to override
collective bargaining agreements to the extent necessary to provide
safe and healthful workplaces. United Steelworkers, 647 F.2d at 1236.
MRP benefits promote worker health by encouraging employees to
participate in medical surveillance and thereby become aware of whether
they have health problems that could be aggravated by MC exposure. OSHA
concludes it has the requisite statutory authority to provide for MRP
benefits in the methylene chloride standard.
The American Association of Occupational Health Nurses (AAOHN)
stated that it generally supports removal of employees who are
experiencing adverse health effects as a result of workplace exposure
to a hazardous material. Ex. 3-12. However, AAOHN recommended that,
rather than adopt the MRP provisions, OSHA should strengthen the
requirements for engineering controls, work practices, and medical
surveillance. AAOHN also suggested that the medical removal provisions
are discriminatory and expressed the belief that the Americans with
Disabilities Act (ADA) and state workers' compensation statutes provide
adequate remedies for individuals with serious diseases that are
aggravated by occupational exposure.
OSHA does not agree with AAOHN that strengthening other provisions
of the standard is a viable substitute for MRP benefits. OSHA set the
8-hour TWA PEL at the lowest level for which it could document
feasibility across the affected application groups. Accordingly, OSHA
cannot require employers generally to achieve lower limits through
engineering controls and work practices. OSHA notes, however, that the
inclusion of MRP benefits under the standard provides an incentive for
employers to reduce MC exposures, where feasible, to levels below those
required by the standard to minimize the possibility that MC exposure
will contribute to or aggravate an employee's existing cardiac, central
nervous system, hepatic, or skin disease and thereby require medical
removal. The requirement for MRP benefits will therefore encourage
employers to minimize MC exposures to the extent it is feasible to do
so. Furthermore, medical removal under the final rule is limited to
those employees who are particularly vulnerable to MC exposure because
they have existing heart, central nervous system, liver, or skin
diseases that could be aggravated by continued MC exposure. OSHA
believes that, for these especially susceptible employees, removal from
MC exposure that could aggravate their diseases is a necessary means of
protection.
OSHA also disagrees with AAOHN's contention that the Americans with
Disabilities Act provides adequate remedies for individuals with
diseases that would be aggravated by occupational exposure to MC. The
ADA requires employers to make reasonable accommodations to an employee
with a ``disability,'' which is a physical or mental impairment that
substantially limits one of more of the employee's ``major life
activities'' [29 CFR 1630.2(g)]. Those major life activities include
functions such as caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working [29 CFR
1630.2(i)]. The cardiac, neurological, hepatic, and dermal diseases
which, if aggravated by MC exposure may qualify an employee for MRP
benefits, are not necessarily diseases that limit major life activities
as defined in the ADA. Therefore, employees who qualify for MRP
benefits under this final rule may not be protected by the ADA.
Moreover, even if a worker who is entitled to MRP benefits under
this final rule would also qualify for ADA protection, the ADA does not
necessarily protect that worker against immediate loss of income. The
ADA requires an employer to make reasonable accommodations for a worker
whose current job presents an unreasonable risk to the employee's
health. However, if no reasonable accommodation is possible, the
employer is free to discharge that employee (See Appendix to 29 CFR
Part 1630). Therefore, the ADA does not provide the same level of
assurance as MRP benefits that participation in medical surveillance
will not lead to an immediate loss of the worker's income.
Two commenters in addition to AAOHN (National Air Transportation
Association, Ex. 3-9; KAL-AERO, Ex. 3-11) suggested that MRP benefits
are not needed because they would duplicate workers' compensation
benefits. However, MRP benefits and workers' compensation serve
fundamentally different purposes and, in many instances, are not
duplicative. Unlike MRP benefits, workers' compensation payments are
not a preventive measure available to an employee who must be removed
from his or her current job to keep an existing condition from becoming
aggravated. Workers' compensation benefits are available only when an
employee has already contracted a work-related injury or illness that
involves time lost from work and/or medical treatment and has been
awarded compensation after submitting a claim.
The underlying diseases that can be aggravated by continued MC
exposure and result in MRP benefits under this final rule are not
necessarily work-related, and therefore might not qualify an employee
for workers' compensation. For example, an employee with a
cardiovascular disease that is wholly unrelated to his or her current
employment could not collect workers' compensation benefits for that
disease even though MC exposure associated with the current job might
aggravate that worker's disease. Although that employee would not be
eligible for worker's compensation, he or she would qualify for MRP
benefits if there is a medical determination that the employee's
cardiovascular disease would be aggravated by continued MC exposure.
Some diseases that qualify workers for MRP benefits might be work-
related, thereby making the employees eligible for workers'
compensation benefits as well. However, the possibility that, in some
cases, an employee is eligible for both MRP benefits and workers'
compensation does not negate the need for MRP benefits to encourage
employees to participate in medical surveillance. The Court of Appeals
for the D.C. Circuit has held that MRP benefits may still be needed
even though they may overlap with workers' compensation payments. UAW
v. Pendergrass, 878 F.2d 389, 400 (D.C. Cir. 1989). Moreover, new
paragraph (j)(12)(iii) of the standard provides that, in cases where
both MRP and workers' compensation benefits are payable, the MRP
benefits can be reduced by the amount the employee receives for lost
wages from workers' compensation. Therefore, the standard ensures that
employees are not deterred by a potential loss of income from
cooperating with medical surveillance while also ensuring that
employers need not provide an employee with MRP benefits and workers'
compensation payments that total more than an employee's current
earnings.
New paragraph (j)(14)(i) permits the employer to select the initial
physician or other licensed health care professional who will conduct
the required medical surveillance and recommend whether an employee
must be removed for medical reasons. Where
[[Page 50717]]
the employer does so, new paragraph (j)(14)(ii) allows employees the
option of having the recommendation of the employer-selected PLHCP
reviewed by a licensed health care professional of the employee's
choice. If the two health care professionals disagree, paragraph
(j)(14)(iii) provides that the employer and employee shall instruct
them to resolve their disagreement. If they are unable to do so, under
paragraph (j)(14)(iv) they must jointly designate a third PLHCP, who
must be a specialist in the field at issue and whose written opinion,
under paragraph (j)(14)(v), is the definitive medical determination
under the standard. OSHA believes that the option for such multi-step
review is a necessary part of any MRP benefits provision because it
strengthens the basis for medical removal determinations and increases
employee and employer confidence in those determinations. OSHA has
provided for similar multi-step review in all previous standards that
included provisions for MRP benefits.
The Southern Company (Ex. 3-14) contends that multi-step review is
``unwarranted and unnecessary'' and would interfere with state workers'
compensation laws that dictate employee choice of physician or that
tell employers how occupational illnesses must be diagnosed and
treated. As explained above, however, the diseases that can result in
medical removal are not necessarily work-related illnesses that qualify
for workers' compensation. Moreover, similar multi-step review
provisions have been in effect since the lead standard was issued in
1978, and OSHA is not aware of any conflicts or inconsistencies between
such provisions and state laws.
OSHA is adopting, in paragraph (j)(11)(i)(B), a provision that is
designed to avoid an undue burden that could result if a small business
would need to provide MRP benefits to more than one employee at the
same time. Under paragraph (j)(11)(i)(B), if one or more employees are
already receiving MRP benefits and the employer receives a
recommendation for medical removal of an additional employee, and if
comparable work that does not involve exposure to MC at or above the
action level is not available for that additional employee, the
employer need not remove the additional employee if the employer can
demonstrate that removal and the costs of MRP benefits to that
employee, considering feasibility in relation to the size of the
employer's business and the other requirements of this standard, make
further reliance on MRP an inappropriate remedy. Although new paragraph
(j)(11)(i)(B) is designed to benefit small businesses, it is not
explicitly limited to businesses of a certain size because no single
size cutoff would be appropriate for all of the employers who might
experience feasibility constraints as a result of providing MRP
benefits to multiple employees at the same time. However, because
feasibility in relation to the size of the business is taken into
account in determining whether an employer may retain an employee in
his or her present job under paragraph (j)(11)(i)(B), the application
of that provision will effectively be limited to relatively small
businesses.
In a case governed by paragraph (j)(11)(i)(B), the employer may
retain the additional employee in the existing job until transfer or
removal becomes appropriate, provided: (i) the employer or the PLHCP
informs the additional employee of the risk to the employee's health
from continued MC exposure; and (ii) the employer ensures that the
employee receives medical surveillance, including a physical
examination, at least every 60 days. OSHA believes that, in the limited
circumstances specified in this provision, it is appropriate to allow
an employer to retain an employee in his or her present job, even when
the PLHCP has recommended removal, provided the employer ensures that
the employee receives the more frequent medical surveillance specified
in the provision and is fully aware of the health risk. Frequent
medical surveillance and full information will enable the employer and
employee to take steps to minimize the risk under existing workplace
conditions by, for example, implementing those controls that are in
place and strictly following work practices that are designed to
minimize the employee's MC exposure.
The American Association of Occupational Health Nurses (Ex. 3-12)
suggests that this provision is discriminatory and could expose
companies to litigation under the Americans with Disabilities Act
(ADA). The AAOHN did not explain in what way this provision would
violate the ADA, and OSHA does not believe it would. As discussed
above, the workers who qualify for MRP benefits under this final rule
are not necessarily ``disabled'' within the meaning of the ADA and, to
the extent they are, MRP benefits provide protection to workers that
may not be available under the ADA. Moreover, OSHA does not agree with
AAOHN that allowing an employer to retain an employee who is eligible
for medical removal in his or her current job while one or more other
employees are on medical removal is accurately characterized as
``discrimination.'' All employees receive protection from the new MRP
benefits provisions beyond that afforded by the current rule. The
employee who is retained in his or her present job under paragraph
(j)(11)(i)(B) will receive additional protection through enhanced
medical surveillance. Paragraph (j)(11)(i)(B) also requires that the
employee be informed of the risk to his or her health from continued MC
exposure, thereby enabling the employer and employee to take steps
necessary to minimize that risk under existing workplace conditions by,
for example, implementing those controls that are in place and strictly
following work practices designed to minimize the employee's MC
exposure.
Several commenters (Imperial Adhesives, Ex. 3-3; Tupelo Foam Sales,
Inc., Ex. 3-6; Diversified Brands, Ex. 3-7) urged OSHA to narrow the
MRP provisions to the greatest extent possible to reduce their economic
impact. These commenters did not, however, offer specific suggestions
as to how the economic impact of the provisions could be narrowed. As
discussed below in the final economic analysis, OSHA concludes that
addition of the provisions for MRP benefits to the MC standard will
have a minimal economic impact on businesses of all sizes. Moreover,
paragraph (j)(11)(i)(B) permits an employer to retain an employee who
would otherwise need to be removed in his or her present job if the
employer can demonstrate that the cost of medical removal would impose
an undue economic hardship on the business. OSHA therefore believes
that the final rule already reduces the economic impact of MRP benefits
to the extent possible while still maintaining the protection those
benefits afford to workers.
III. Extensions of Startup Dates.
The motion for reconsideration requested that the standard's
current final engineering control startup date of April 10, 2000, which
was limited in the final standard to employers with fewer than 20
employees, also apply to employers in the specified application groups
who have 20-49 employees and to foam fabricators who have 20-149
employees. (When the original standard established different startup
dates based on an employer's number of employees, OSHA intended for the
number of employees to refer to the total number of workers employed by
the particular employer, not the number who work at a particular
facility or the number that use methylene chloride in their work. The
parties to the motion for reconsideration explained in their motion
that they also intended this
[[Page 50718]]
definition when they referred to an employer's number of employees).
The parties contended that employers in these application groups and
size categories, similarly to those with fewer than 20 employees, have
limited resources with which to develop and implement engineering
controls and will be able to use those resources more efficiently if
given additional time to develop and install effective controls and to
take advantage of the compliance assistance that OSHA offers. The
motion requested shorter extensions of the engineering control dates
for larger employers in these application groups.
The parties further requested that respirator use to achieve the 8-
hour TWA PEL not be required before the engineering control startup
dates for those employers covered by the motion. They contended that
workers would be better protected if these employers can concentrate
their limited resources on implementing effective engineering controls
rather than diverting some of those resources to interim and expensive
respiratory protection (i.e., supplied-air respirators) that would no
longer be needed a short time later, once full compliance with the 8-
hour TWA PEL and STEL is achieved by engineering controls.
In the notice of the motion for reconsideration, OSHA stated that
it believed the extensions of the startup dates the parties had
requested were justified. The Agency noted that engineering controls,
such as local exhaust ventilation, must be properly designed and
installed if they are to work properly and provide effective
protection. OSHA believed that, for the relatively small employers who
would be receiving extensions of the startup dates, additional time to
implement engineering controls would enable them to take advantage of
compliance assistance that OSHA offers and avoid the uncertainty and
expense that would result if each employer attempted to design and
implement controls on its own. OSHA further believed that it was
appropriate to extend the startup dates for respirator use to achieve
the 8-hour TWA PEL to enable the employers receiving that extension to
concentrate their resources on developing and implementing engineering
controls to reduce airborne concentrations of MC. Based on the comments
received and the entire rulemaking record, OSHA is now adopting the
requested extensions in paragraph (n) of the final rule.
Most commenters supported the extensions. The National Air
Transportation Association (Ex. 3-9) and KAL-AERO (Ex. 3-11) stated
that use of MC-based paint strippers in general aviation aircraft
stripping had already declined substantially, and that the extended
startup dates for that activity would encourage the complete
elimination of MC-based paint strippers by the year 2000. The
Polyurethane Foam Association (Ex. 3-10) supported the extensions for
foam manufacturers and foam fabricators, noting in particular that
extending the startup date for respirator use to meet the 8-hour TWA
PEL would permit these industries to focus their resources on
developing engineering controls.
The National Marine Manufacturers Association (Ex. 3-8) urged OSHA
to adopt the extensions for boat building. The Association stated that
boat builders now use adhesives that contain MC and that additional
compliance time is needed to enable them to determine whether it would
be safer to substitute MC-free adhesives, which may be flammable, or to
continue to use products that contain MC and install engineering
controls to reduce MC exposures. Individual companies supporting the
extensions for either their own operations or those of their customers
included Benco Sales, Inc. (Ex. 3-1), Imperial Adhesives (Ex. 3-3), Mid
South Adhesives, Inc. (Ex. 3-4), Tupelo Foam Sales, Inc. (Ex. 3-6), and
Diversified Brands (Ex. 3-7).
Organization Resources Counselors (ORC) was the only commenter
opposing the extensions (Ex. 3-13). ORC objected to the deferral of the
requirement that the employers covered by the amendments use
respiratory protection to achieve the 8-hour TWA PEL until the date
that those employers are required to achieve the PEL through
engineering controls. ORC notes that MC is a carcinogen and that OSHA
has, in its earlier standards for carcinogens, consistently required
employers to use respirators to protect employees while engineering
controls are being implemented.
OSHA agrees that interim respirator use while engineering controls
are being implemented is desirable, and the Agency acknowledged in the
notice that it has required interim respirator use in its past air
contaminant standards. However, in all of those earlier standards, air-
purifying respirators were available that would protect against the
contaminant being regulated. For methylene chloride, air-purifying
respirators do not provide effective protection because MC quickly
penetrates all currently available organic vapor cartridges. For that
reason, the MC standard requires that, when respirators are needed,
atmosphere-supplying respirators must be provided and used.
Atmosphere-supplying respirators are a relatively expensive type of
respiratory equipment, requiring the employer not only to purchase the
respirators themselves but also to install an air compressor and
associated ductwork or rent cylinders containing breathing air. In the
case of methylene chloride, the situation is complicated by the
predominance of relatively small companies among the employers whose
employees are currently exposed above the 8-hour TWA PEL. For those
small employers, the relatively high cost associated with atmosphere-
supplying respirators would divert or exhaust resources that can be
better spent on developing and installing engineering controls that
will permanently and reliably reduce exposures below the 8-hour TWA PEL
and STEL. OSHA continues to believe that worker protection is best
served by early installation of effective engineering controls and that
the smaller employers who are being granted extensions of startup dates
by this final rule should therefore be allowed to use their limited
resources for engineering controls instead of interim, short-term use
of atmosphere-supplying respirators.
Moreover, as explained in the notice, employees will still receive
substantial interim protection against MC exposure under these amended
startup dates. The STEL will go into effect as scheduled, and employers
will be required to ensure that some combination of engineering
controls, work practice controls, and respiratory protection reduce
exposures below that level. Workers will therefore be protected against
acute health effects associated with high short-term exposure to MC.
Moreover, reduction of short-term exposures to below the STEL will, in
most cases, reduce 8-hour time-weighted average exposures and will
thereby provide workers with some interim protection against the
chronic effects of MC exposure. If no 15-minute exposures exceed 125
ppm, the 8-hour TWA must by definition be below 125 ppm. In practice,
in order to control variable processes such that no excursions above
the STEL occur, the average 8-hour concentration may need to be
maintained substantially below 125 ppm.
This final rule also does not delay compliance with the requirement
that employers implement feasible work practices to reduce MC
exposures. Such controls can achieve significant reductions in MC
exposures in many workplaces at low cost. Early implementation of work
practice controls will also enable employers to evaluate the extent to
which exposures
[[Page 50719]]
can be reduced by such controls and will enable them to better
determine the nature and extent of the engineering controls they will
need to achieve the 8-hour TWA PEL and STEL. OSHA has developed Fact
Sheets identifying feasible work practice controls for several of the
application groups that are receiving extensions of the startup dates
in this final rule, and many of those work practices would be feasible
and useful for workplaces in other application groups as well. Those
work practices were listed in the earlier Federal Register notice, 63
FR at 24507-08, and are available in a small entity compliance guide,
which can be obtained at OSHA's web site, http://www.osha.gov.
Furthermore, the remaining protections of the standard (regulated
areas, protective work clothing and equipment, hygiene facilities,
hazard communication, employee information and training, and
recordkeeping) are already in effect for all employers.
ORC (Ex. 3-13) contends that the final rule does not afford
employees sufficient interim protection because it interprets the rule
to excuse employers from all use of atmosphere-supplying respirators.
However, these amendments do not alter the requirement that employers
achieve the STEL and, if necessary, use atmosphere-supplying
respirators to do so. This final rule only extends the startup date for
using engineering controls and respirators to achieve the 8-hour TWA
PEL. Because the STEL will be in effect as originally scheduled, all
employers, including those receiving extensions of startup dates to
achieve the 8-hour TWA PEL in this final rule, already need to ensure
that employee exposures do not exceed the STEL through some combination
of engineering controls, work practices, and atmosphere-supplying
respirators.
ORC also questions whether employers will know when exposures
exceed the STEL because the odor threshold of MC is well above the STEL
of 125 ppm. OSHA notes that employers may not rely on the odor of MC to
determine whether the STEL is exceeded but must, under paragraph (d) of
the standard, conduct exposure monitoring that accurately characterizes
the short-term concentrations to which their employees are exposed.
Paragraph (d) requires the employer to take ``one or more personal
breathing zone air samples which indicate the highest likely 15-minute
exposures during such operations for at least one employee in each job
classification in the work area during every work shift, and the
employee sampled [must be the employee] expected to have the highest MC
exposure [within the job classification].''
OSHA is concerned, however, that employers who are required only to
comply with the STEL and not with the 8-hour TWA PEL during the interim
period created by these amendments may not have adequate information to
determine whether they are in fact in compliance with the STEL
requirement. Under the current standard, if initial measurements for
all job classifications (representing the employee in each job
classification with the highest short-term exposure) are below the
STEL, no additional (periodic) STEL monitoring is required. In the
unusual interim period created by these amendments, during which time
controls may not have been implemented to ensure that TWA exposures are
below the PEL, a single STEL measurement may be inadequate to ensure
that employees are receiving adequate interim protection. To assure
that STEL monitoring is conducted with sufficient frequency to
characterize employees' short term exposures until compliance with the
8-hour TWA PEL is achieved, OSHA is amending Table 1 in the MC standard
to require each employer who is receiving an extended startup date in
this final rule to conduct quarterly STEL monitoring, during the period
covered by that extension, when its 8-hour TWA exposures are above the
PEL. Those employers must already conduct quarterly STEL monitoring if
their initial measurements show exposures above the STEL. The amendment
to Table 1 thus extends the requirement for quarterly monitoring to
those employers whose initial measurements are below the STEL.
The purpose of this additional STEL monitoring is to provide
ongoing information, to those employers whose monitoring results show
exposures above the 8-hour TWA PEL but below the STEL, that their
employees continue to be exposed below the STEL. For this purpose, it
is sufficient if those employers conduct the additional monitoring for
the highest-exposed employee within the single job classification shown
to have the highest short-term exposures. Moreover, because this
additional STEL monitoring is intended to apply only to those employers
whose 8-hour TWA exposures exceed the PEL, those employers who are
required to conduct additional STEL monitoring by this amendment need
only conduct such monitoring until they are required to be in full
compliance with the 8-hour TWA PEL or until they are in fact in
compliance with the 8-hour TWA PEL. Any employer whose initial 8-hour
TWA exposures are below the PEL need not conduct any additional STEL
monitoring under this amendment.
Normally, the last sentence of the note to paragraph (d)(3) allows
an employer to discontinue all STEL monitoring for employees where at
least two consecutive measurements taken at least 7 days apart are at
or below the STEL. This provision does not apply to the additional
monitoring required by this amendment which, according to amended Table
1, must be conducted ``without regard to the last sentence of the note
to paragraph (d)(3).'' Once the compliance dates established by these
amendments have passed for a particular employer or that employer has
achieved compliance with the 8-hour TWA PEL, whichever comes first, the
additional monitoring required by these amendments no longer applies,
and the note to paragraph (d)(3) would allow that employer to
discontinue periodic STEL monitoring for those employees whose
exposures are shown to be at or below the STEL by two consecutive
measurements taken at least seven days apart. Any TWA or STEL
monitoring required after these compliance dates have passed must
include each job classification and each shift that does not qualify
for discontinuance of monitoring under the note to paragraph (d)(3).
ORC further contends (Ex. 3-13) that it is inappropriate for OSHA
to reconsider its earlier rulemaking decisions at the behest of parties
who have challenged the standard in court. ORC argues that the
possibility of settling litigation over the standard should not induce
OSHA to reconsider or change its earlier rulemaking judgments.
OSHA believes that ORC is mistaken in suggesting that OSHA should
be unwilling to reconsider its rulemaking judgments when asked to do so
by parties who are challenging the rule in court. Agencies have both
the right and the duty to reconsider their decisions if they are
persuaded that a different course of action would better serve the
statutory purpose. Such requests for reconsideration often come from
parties who have brought judicial challenges to a rule because these
parties are typically the parties who have the greatest interest in the
rule and who were most active in the rulemaking proceeding. Here, labor
and industry organizations who had been active participants in the
rulemaking presented OSHA with a well-supported motion for
reconsideration of certain narrow aspects of the methylene chloride
standard. Those parties also stated that they would withdraw their
judicial
[[Page 50720]]
challenges if OSHA amended the standard along the lines they requested.
Upon evaluating the motion, OSHA tentatively concluded that the changes
the parties sought were justified and afforded the public an
opportunity to comment on those changes.
Having considered the entire rulemaking record, including the
comments it received in response to the reopening of the record, OSHA
concludes that the amendments it is making in this final rule serve the
statutory purpose of protecting employees while avoiding excessive
economic burdens on employers, particularly small employers. As
discussed above, OSHA believes that the addition of MRP benefits to the
standard will increase employee participation in the standard's medical
surveillance provisions and thereby ensure that employees are aware of
medical conditions that could be aggravated by continued MC exposure.
OSHA further believes that the extensions of startup dates being
granted to some employers will benefit workers by improving the ability
of those employers to comply with the standard. The cornerstone of the
standard, the 8-hour TWA PEL of 25 ppm, is not being altered by these
amendments. OSHA is issuing these amendments because it believes they
are justified by the record and will better effectuate the purposes of
the Act, not because the Agency is seeking to resolve legal challenges
to the methylene chloride standard.
OSHA does, however, believe that the potential withdrawal of the
parties' judicial challenges to the MC standard is a positive benefit.
Litigation over earlier standards has hindered OSHA's achievement of
its statutory duty to protect the health and safety of workers. In some
cases, OSHA standards have been vacated by the courts (e.g., AFL-CIO v.
OSHA, 965 F.2d 962 (11th Cir. 1992), and vacated standards cannot
protect worker health or safety. Some standards have also been stayed
during judicial review (e.g., United Steelworkers v. Marshall, 647 F.2d
1189, 1202 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981)),
thereby delaying the protection afforded by those standards. In other
cases, courts have required OSHA to reconsider certain aspects of its
standards (e.g., Building & Constr. Trades Dep't v. Brock, 838 F.2d
1258 (D.C. Cir. 1988)), and the additional rulemaking proceedings
required by such court orders have delayed implementation of important
parts of the rule and have diverted OSHA's resources from other
important projects. In carrying out its statutory mandate, OSHA cannot
ignore the adverse impact that might result from litigation over its
standards. However, any modifications to a standard suggested by a
litigant or any other person must be justified on their merits and must
assure adequate worker protection. That is the case here, and OSHA is
therefore including in the final rule the requirements suggested by the
parties to the motion for reconsideration.
IV. Final Economic and Regulatory Flexibility Analysis
OSHA is revising paragraph (j), Medical Surveillance, of the final
rule governing occupational exposure to methylene chloride (MC) (29 CFR
1910.1052) to add medical removal protection benefits to the rule. This
final economic analysis estimates the costs of complying with the final
MRP provisions and then assesses the economic feasibility and potential
economic impacts of these costs on firms in the affected sectors. The
information used in this analysis is taken from the exposure profile,
industry profile, and economic impacts analysis presented in the Final
Economic Analysis (Ex. 129) that accompanied OSHA's final rule for
methylene chloride (62 FR 1494-1619, January 10, 1997). Relying on the
data developed for that analysis to support this revision to the final
rule ensures analytical consistency and comparability across the two
economic analysis documents.
OSHA's final MC rule did not contain medical removal protection
provisions. The amendments being made today respond to a motion for
reconsideration filed by the United Auto Workers (UAW), the Halogenated
Solvents Industry Alliance, Inc., and others. As requested in that
motion, OSHA is adding paragraphs (j)(9)(i)(A) and (B), (j)(10),
(j)(11), (j)(12), (j)(13), and (j)(14), dealing with medical removal
protection, medical removal protection benefits, voluntary removal or
restriction of an employee, and multiple health care professional
review, respectively, to the final rule. Medical removal protection
(MRP) applies only under certain limited circumstances, i.e., medical
removal protection would be required only if a physician or other
licensed health care professional finds that exposure to MC may
contribute to or aggravate the employee's existing cardiac, hepatic,
neurological (including stroke), or dermal disease. The rule instructs
the physician or other licensed health care professional to presume
that a medical condition is unlikely to require removal from exposure
to MC, unless medical evidence indicates to the contrary, if the
employee is not exposed to MC at concentrations above the 8-hour TWA
PEL of 25 ppm. The physician or other licensed health care professional
may also recommend removal from exposure to MC for any other condition
that would, in the health care professional's opinion, place the
employee's health at risk of material impairment from exposure to MC,
but MRP would only be triggered by a finding that exposure to MC may
contribute to or aggravate the employee's existing cardiac, hepatic,
neurological (including stroke), or dermal disease.
Any employee medically removed must (1) be provided with comparable
work where MC exposures are below the action level, or (2) be
completely removed from MC exposure. The employee's total pay, benefits
and seniority must be maintained throughout the period of medical
removal protection, even if the only way to remove the employee from MC
exposure is to send him or her home for the duration of the medical
removal protection period. The employer may reduce the amount paid to
the removed worker to the extent that the worker's previous pay has
been offset by other compensation (such as worker's compensation
payments) or by wages from another job made possible by the medical
removal.
The final rule requires employers to maintain medical removal
protection benefits for up to six months. Medical removal protection
may be terminated in less than 6 months if a medical determination
shows that the employee may return to MC exposure, or a medical
determination is made that the employee can never return to MC
exposure.
In situations in which no comparable work is available for the
medically removed employee, the rule allows the employer to demonstrate
that the medical removal and the costs of medical removal protection
benefits, considering feasibility in relation to the size of the
employer's business and the other requirements of this standard, make
reliance on medical removal protection an inappropriate remedy. In such
a situation, the employer may retain the employee in the existing job
until transfer or removal becomes appropriate, provided that the
employer ensures that the employee receives additional medical
surveillance, including a physical examination at least every 60 days
until removal or transfer occurs, and that the employer or PLHCP
informs the employee of the risk to the employee's health from
continued MC exposure.
[[Page 50721]]
In conducting this economic analysis, OSHA has estimated the number
of workers with the four listed types of conditions (neurological,
hepatic, cardiac, and dermal disease) that can trigger MRP. OSHA has
assumed that medical removal protection would be extended only to
employees exposed above the PEL, as reflected by the presumption. This
analysis also assumes that all employers will provide medical removal
protection whenever a physician or other licensed health care provider
recommends removal, i.e., OSHA has not quantified the number of times
small firms may retain an employee for whom a removal recommendation
has been made in the employee's existing job due to the employer's
financial inability (i.e., economic infeasibility) to remove the
employee. Because some very small firms may find that medical removal
protection is infeasible in their circumstances but this cost analysis
assumes that all such employees will be removed, OSHA believes that
this analysis is likely to overestimate the costs associated with MRP.
Costs of Medical Removal Protection Provisions
OSHA's estimates of the costs of the medical removal protection
provisions are calculated based on the number of workers eligible for
medical removal protection times the frequency of the medical
conditions that would trigger medical removal protection in the exposed
population times the costs of medical removal protection for each type
of medical condition.
Number of Workers Eligible for Medical Removal Protection Under the
Final Rule
Because of the presumption stated explicitly in paragraph
(j)(11)(i)(B), medical removal protection will be limited in almost all
cases to employees exposed to MC at concentrations above the PEL of 25
ppm as an 8-hour TWA. The Final Economic Analysis (Ex. 129) estimated
that approximately 55,000 employees in all affected application groups
are currently exposed above 25 ppm. This estimate is used here to
calculate the number of employees potentially eligible for medical
removal protection during the year in which medical removal protection
will be in effect but the engineering control requirements of the rule
will not yet be in effect for some of the application groups. Once the
implementation of engineering controls is required, OSHA assumes, for
the purposes of this analysis, that 10 percent of those employees
previously exposed to an 8-hour TWA above 25 ppm (5,500 employees)
would continue to be exposed to an 8-hour TWA above 25 ppm.
OSHA believes that reliance on these assumptions will lead to an
overestimate of the number of employees eligible for medical removal
protection because some firms will have implemented controls and
lowered the exposures of their employees well before the final standard
requires them to do so. Once the standard requires employers to
implement engineering controls, OSHA's Final Economic Analysis (Ex.
129) estimated that the exposure of almost all employees would be
reduced to MC levels below 25 ppm as an 8-hour TWA. To capture all
costs potentially associated with the medical removal protection
provisions, OSHA has assumed for this analysis that some employees will
continue to be exposed above 25 ppm.
Frequency of Medical Removal Protection Under the Final Rule
Paragraph (j)(11)(i) of the final rule provides for medical removal
protection if there is a medical determination that exposure to
methylene chloride ``may contribute to or aggravate existing cardiac,
hepatic, neurological (including stroke), or skin disease.'' Medical
removal protection does not apply if the condition is such that removal
from MC exposure must be permanent.
OSHA believes that MC-induced or aggravated neurological symptoms
(other than stroke) occur infrequently and that when such protection is
triggered by neurological manifestations (other than stroke), the
period of time involved in the removal will be relatively brief. OSHA
also believes that MC-induced or aggravated heart conditions or strokes
are likely to result in permanent medical removal, and thus that
employers will not incur the costs of medical removal protection in
these cases. This analysis therefore focuses on medical removal
protection for MC-induced or aggravated dermatitis or abnormal hepatic
conditions. Each of these conditions is likely to resolve with time,
proper treatment, or both, and these are therefore the conditions
likely to result in a determination that temporary medical removal
protection, rather than permanent removal, is needed.
Because the final rule would provide for medical removal protection
in situations where exposure to MC contributes to or aggravates the
listed condition, this analysis focuses on the frequency with which
each covered condition occurs in the working population, and not simply
on the frequency with which MC causes these conditions. OSHA has no
evidence that hepatic conditions are more prevalent in workplaces that
use MC than in the general working age population and therefore assumes
that the prevalence of hepatic conditions will be the same as in the
general working age population (ages 18-65). OSHA thus estimates that 5
percent of the working population will be found on evaluation to have
hepatic conditions sufficiently abnormal to trigger medical removal.
For dermatitis, which is seldom a lasting condition, OSHA similarly
assumes, in the absence of evidence to the contrary, that the
prevalence in the MC-exposed workforce is the same as the rate in the
general working age population. For dermatitis, Vital and Health
Statistics (National Center for Health Statistics, 1995) reports that,
in 1993, the prevalence of dermatitis was 2.93 percent for persons
between 18 and 45 and 2.18 percent for persons between 45 and 65.
Weighting using the BLS data cited above, OSHA finds that 2.7 percent
of the MC-exposed workforce will be found on the first required medical
evaluation to have dermatitis and will be medically removed.
After the standard has been in effect for the first year, OSHA
assumes that the prevalence of dermatitis will continue at the same
rate. For liver conditions, OSHA assumes that most of the conditions
that triggered removal in the first year will have been resolved and
that the number of older cases that flare up and have to be treated
again, combined with new cases that trigger medical removal, will occur
at a combined rate \1/5\ that of the initial rate.
Costs of Medical Removal Protection
Employers incur three kinds of costs for medical removal
protection: costs for medical evaluations not already required; costs
resulting from changing the employee's job, such as those related to
retraining and lost productivity; and, where alternative jobs that do
not involve MC exposure are not available, the costs of keeping a
worker who is not working on the payroll.
Employers may incur costs for medical evaluations (over and above
those already required for medical surveillance) for two reasons: to
determine if the employee can return to work, and to determine, using
multiple PLHCP review, whether the initial medical determination was
correct. Because the final rule allows employees to be removed from
medical removal protection status only on the basis of a new medical
determination, every instance of medical removal protection will
require one additional examination.
[[Page 50722]]
OSHA estimated the cost of a medical examination at $130 in the Final
Economic Analysis (Ex. 129). Every case of medical removal protection
would require at least one additional medical evaluation. In addition,
OSHA estimates that 10 percent of all removed cases will require a
second medical evaluation either for the purpose of multiple health
care professional review or because the first examination showed that
the employee could not yet be returned to normal duty.
The largest MRP-related costs in almost all cases will be the cost
of paying for time away from work for the removed employee. OSHA
estimates that the typical dermatitis case will involve 6 days away
from work. BLS (BLS, Occupational Injuries and Illnesses: Counts,
Rates, and Characteristics, 1994) reports that, in 1994, the typical
lost worktime case of dermatitis involved 3 days away from work. OSHA
allowed an additional three days to allow time for a return-to-work
determination to be made. For medical removal for hepatic conditions,
OSHA estimates that a 4-week period of medical removal will normally be
sufficient to provide for stabilization and a return to the normal
range for the typical case of elevated liver enzymes. Because almost no
cases will be resolved in less than 4 weeks and a small number of cases
(such as those involving serious liver disease) may take much longer to
resolve, OSHA's cost estimate estimates 5 weeks as the average period
of medical removal for these cases.
For the short-term medical removal associated with dermatitis, OSHA
has conservatively assumed that the employee will be paid full wages
and benefits even though not at work. For the longer term medical
removal associated with hepatic conditions, OSHA estimates that, in
firms with more than 20 employees, alternative jobs not involving
exposure to MC will be found for affected employees. OSHA estimates the
costs of moving employees to alternative jobs as equivalent to the loss
of 20 person hours in lost productivity and/or retraining expenses. For
firms with fewer than 20 employees, OSHA expects that there may be more
difficulty finding alternative positions both because fewer alternative
positions are available and because more positions in the establishment
are likely to involve exposure to MC.
For the very small firms in furniture stripping, where all jobs may
involve exposure to MC, OSHA has assumed that all cases of medical
removal will involve removing employees from work entirely, and thus
that employers will incur the full costs of the employee's wages and
benefits for the five weeks the employee is medically removed. Firms
with fewer than 20 employees in other application groups tend to be
somewhat larger than in furniture stripping and will therefore be more
likely to have work that does not involve exposure to MC at levels
above the action level. For example, in such small-business-dominated
application groups as printing shops, and in small cold cleaning and
paint stripping operations, exposure to MC tends to involve only a
single employee and is commonly intermittent even for that employee.
For establishments with fewer than 20 employees in application groups
other than furniture stripping, OSHA estimates that 50% will be able to
find alternative employment and 50% will need to send the employee home
because alternative jobs without MC exposure cannot be found.
Annualized Cost Estimates
Table 1 shows OSHA's estimated annualized costs for firms in each
application group. The total annualized costs for medical removal
protection are estimated to be $920,387 per year for all affected
employers. The greatest costs are in the cold cleaning application
group, the all other industrial paint stripping application group, the
construction application group, and the furniture stripping application
group. All of these application groups have annualized MRP costs in
excess of $100,000 per year.
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[[Page 50723]]
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[[Page 50724]]
Potential Cost Savings of the Revisions
OSHA is also altering several provisions concerning the
implementation dates for engineering controls and respiratory
protection for employers engaged in selected activities. Paragraphs
(n)(2)(A), (B), and (C) provide new implementation dates for
engineering controls for employers engaged in these selected
activities. Under paragraph (n)(3)(E), these same employers would also
now be allowed until the implementation date for engineering controls
to meet the rule's requirements for respiratory protection to meet the
PEL, i.e., the implementation dates for engineering controls and
respiratory protection would be the same for employers engaged in these
activities.
Qualified employers who choose the option of postponing the
implementation of engineering controls and respiratory protection would
be required by the final rule to conduct STEL monitoring quarterly
until either the implementation date for engineering controls and
respiratory protection or the date by which they in fact achieve
compliance with the 8-hour TWA PEL. The employers affected by these
extensions of the implementation dates for engineering controls and
respiratory protection, and thus by the final rule's requirements for
quarterly STEL monitoring, are employers with employees exposed above
the PEL who are engaged in foam fabrication; furniture stripping;
general aviation aircraft stripping; product formulation; adhesive
users using adhesives for boat building and repair, recreational
vehicle manufacture, van conversions, and upholstering; and
construction work for restoration and preservation of building,
painting and paint removal, cabinet making, and/or floor refinishing.
OSHA cannot fully evaluate the cost saving effects of these
implementation date postponements because OSHA's Final Economic
Analysis (Ex. 129) did not provide the data needed to estimate the
number of employers in the size classes identified by the final rule
for each of the activities affected by the final rule. (OSHA's Final
Economic Analysis did analyze impacts on employers of all sizes, but
sometimes aggregated them into larger activity groups or different size
classes than those specified in these provisions.) OSHA has, however,
developed an estimate of the potential cost savings using certain
simplifying assumptions. First, OSHA assumes that all employers in the
affected application groups will be affected. The effect of this
assumption is to include some employers who would not qualify because
they do not engage in the prescribed activity, e.g., the estimate
includes cost savings for facilities using adhesives for activities
other than those specified, i.e., for activities other than boat
building and repair, recreational vehicle manufacturing, van conversion
or upholstering. This assumption will thus overestimate the cost
savings.
OSHA also assumes that no employers will need to install
engineering controls or use respiratory protection in order to meet the
STEL requirements of the standard. OSHA is uncertain about how many
such employers there are, and thus cannot quantify the extent to which
this assumption overestimates cost savings. Finally, OSHA assumes that
the effect of these provisions of the final rule is that employers of
employees currently exposed above the PEL in the affected application
groups will not incur the costs of respiratory protection for the two
years before they are required to install engineering controls, but
will have to provide quarterly monitoring for the STEL during this
period.
For each affected employee, the employer would save the costs of
installing and maintaining an air-supplied respirator and an air
compressor for two years. The Final Economic Analysis (Ex. 129)
estimates the annual costs of such respirators as $679 per year.
Offsetting this cost savings of $679 per year for each of two years is
the cost of quarterly STEL monitoring during that same time period.
Based on its Final Economic Analysis (Ex. 129), OSHA estimates the cost
of STEL monitoring at these facilities to be $80 for two badge samples.
Annual costs for quarterly monitoring would thus be $320 per year (4
times $80). The total cost savings are thus $359 ($679 minus $320) per
affected employee per year. OSHA estimates, based on the exposure
profile in its Final Economic Analysis (Ex. 129), that there are 18,000
affected employees who are engaged in the activities specified in these
provisions. Considering all 18,000 affected employees, these provisions
will provide cost savings of $6.4 million per year for each of two
years (18,000 employees times $359 per employee). Annualized over ten
years at a seven percent discount rate, this represents a potential
cost savings of $960,000 per year.
Because this estimate of potential cost savings is based on
assumptions that may overestimate the cost savings of the revisions to
the final rule, OSHA is not using this estimate of cost savings to
offset the costs of MRP in its cost and economic impact analysis. This
means that the costs reflected in this analysis will be overstated to
some extent after these amendments go into effect.
Economic Impacts
Table 2 combines the cost data from Table 1 and the economic
profile information provided in the Final Economic Analysis for the
Methylene Chloride rule (Ex. 129) to provide estimates of the potential
impacts of these compliance costs on firms in affected application
groups. The medical removal protection required by the final rule is
clearly economically feasible: on average, annualized compliance costs
amount only to 0.0014 percent of estimated sales and 0.03 percent of
profits. These impacts do not take into account the cost savings
described above. For all but one application group--furniture
stripping--compliance costs are less than 0.07 percent of profits, and
less than 0.003 percent of the value of sales. Even in furniture
stripping, the annualized costs of medical removal protection are still
only 0.015 percent of sales and 0.3 percent of profits. Impacts of this
magnitude do not threaten the economic feasibility of firms in any
affected application group. If highly unusual circumstances were to
arise that pose such a threat, the standard allows specifically for the
cost impact to be considered on a case-by-case basis.
BILLING CODE 4510-26-P
[[Page 50725]]
[GRAPHIC] [TIFF OMITTED] TR22SE98.042
BILLING CODE 4510-26-C
[[Page 50726]]
OSHA's cost methodology for this final rule tends to overestimate
the costs and economic impacts of the standard for several reasons.
First, as discussed in the section on potential cost savings, OSHA has
not taken into account the cost savings some employers will realize
from the extended implementation dates that are permitted by the final
rule.
Other aspects of OSHA's methodology also tend to result in cost
overestimates. OSHA's use of general population prevalence data to
estimate the prevalence of conditions that might lead to medical
removal overestimates costs by ignoring the possibility that workers in
MC establishments may be healthier than the general population, i.e.,
it ignores the ``healthy worker'' effect. OSHA has also assumed that
all unusual hepatic conditions will lead to medical removal, when in
many cases no medical removal protection will be necessary. Finally,
OSHA has also included in its cost estimate all cases involving medical
removal, when it is in fact likely that some smaller firms would be
able to argue that the cost of extending MRP benefits to an additional
employee would not be feasible (and would therefore make reliance on
MRP an inappropriate remedy), and thereby avoid removing that
additional employee, as allowed by paragraph (j)(11)(i)(B).
Regulatory Flexibility Screening Analysis and Certification
Tables 3 and 4 provide a regulatory flexibility screening analysis.
As in the analysis for all firms in Table 2, OSHA used the cost data
presented in Table 1 in combination with the data on small firms
presented in the Final Economic Analysis (Ex. 129). Table 3 shows
annualized compliance costs as a percentage of revenues and profits
using SBA definitions of small firms for each relevant SIC code within
each application group. This analysis shows that costs as a percentage
of revenues and profits are slightly greater than is the case for all
firms in the SIC, but still average only 0.0017 percent of revenues and
0.035 percent of profits. The most heavily impacted industry is
furniture stripping, but the impacts in this group are the same for all
firms in the group because all furniture stripping firms are small
using the SBA definition.
BILLING CODE 4510-26-P
[[Page 50727]]
[GRAPHIC] [TIFF OMITTED] TR22SE98.043
[[Page 50728]]
[GRAPHIC] [TIFF OMITTED] TR22SE98.044
BILLING CODE 4510-26-C
[[Page 50729]]
As noted in the discussion of costs, firms with fewer than 20
employees are much more likely to incur greater costs for medical
removal protection because such firms may have difficulty in finding a
job that does not involve exposure to MC at levels above the action
level. OSHA therefore examined annualized compliance costs as a
percentage of sales and profits for firms with fewer than 20 employees.
Table 4 shows the results of this analysis. For the typical
affected firm with fewer than 20 employees, the annualized costs of
medical removal protection represent 0.0026 percent of sales and 0.064
percent of profits. Furniture stripping has the greatest potential
impacts--annualized costs are 0.016 percent of sales and 0.3 percent of
profits for firms in this application group. These impacts do not
constitute significant impacts, as envisioned by the Regulatory
Flexibility Act. However, because unusually prolonged medical removal
without an alternative job within the establishment might present
problems for these very small firms, the standard includes a provision
[paragraph (j)(11)(i)(B)] requiring special consideration of the
feasibility of, economic burden imposed by, medical removal protection
when an employer would otherwise need to provide MRP benefits to more
than one employee. This provision ensures that impacts are not unduly
burdensome even in rare and unusual circumstances. Therefore, based on
its analyses both of impacts and small firms using the SBA definitions,
and of very small firms with fewer than 20 employees, OSHA certifies
that the MRP provisions in this final rule will not have a significant
impact on a substantial number of small entities.
V. Federalism
This final rule has been reviewed in accordance with Executive
Order 12612 (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 a 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 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' intent to preempt state laws relating to issues for
which Federal OSHA has issued occupational safety and health standards.
Under the OSH Act, if an occupational safety or health issue is
addressed by an OSHA standard, a State law addressing the same issue is
preempted unless the State submits, and obtains Federal OSHA approval
of, a plan for the development of occupational safety and health
standards and their enforcement. Occupational safety and health
standards developed by such State-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. Where such standards are
applicable to products distributed or used in interstate commerce, they
may not unduly burden commerce and must be justified by compelling
local conditions.
This final MC rule revises the current MC standard by adding a
provision for limited medical removal protection benefits and by
extending certain startup dates for employers who use MC in certain
applications. As under the current MC standard, states with
occupational safety and health plans approved under section 18 of the
OSH Act will be able to develop their own State standards to deal with
any special problems which might be encountered in a particular state
while ensuring that their standards are at least as effective as the
Federal standard.
VI. State Plans
The 23 States and two territories with their own OSHA-approved
occupational safety and health plans must adopt a comparable standard
within six months of the publication of this final rule or amend their
existing standards to ensure that their standards are ``at least as
effective'' as the Federal MC standard as amended by this final rule.
Those states and territories are: Alaska, Arizona, California,
Connecticut (for State and local government employees only), Hawaii,
Indiana, Iowa, Kentucky, Maryland, Michigan, Nevada, New Mexico, New
York (for State and local government employees only), North Carolina,
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont,
Virginia, the Virgin Islands, Washington, and Wyoming.
Authority and Signature
This document was prepared under the direction of Charles N.
Jeffress, Assistant Secretary of Labor for Occupational Safety and
Health, U.S. Department of Labor, 200 Constitution Avenue, NW,
Washington, DC 20210.
List of Subjects in 29 CFR Part 1910
Chemicals, Hazardous substances, Occupational safety and health.
Signed at Washington, DC this 16th day of September, 1998.
Charles N. Jeffress,
Assistant Secretary of Labor.
Part 1910 of title 29 of the Code of Federal Regulations is amended
as follows:
PART 1910--[AMENDED]
1. The general authority citation for subpart Z of CFR 29 part 1910
continues to read, in part, as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), or 6-96 (62 FR 111), as applicable;
and 29 CFR Part 1911.
* * * * *
2. Section 1910.1052 would be amended by revising paragraphs
(d)(3), (j)(9)(i)(A) and (B), and paragraph (n)(2), and by adding
paragraphs (j)(10), (j)(11), (j)(12), (j)(13), and (j)(14) as follows:
1910.1052 Methylene Chloride
* * * * *
(d) Exposure monitoring.
* * * * *
(3) Periodic monitoring. Where the initial determination shows
employee exposures at or above the action level or above the STEL, the
employer shall establish an exposure monitoring program for periodic
monitoring of employee exposure to MC in accordance with Table 1:
Table 1--Initial Determination Exposure Scenarios and Their Associated
Monitoring Frequencies
------------------------------------------------------------------------
Exposure scenario Required monitoring activity
------------------------------------------------------------------------
Below the action level and at No 8-hour TWA or STEL monitoring
or below the STEL. required.
Below the action level and No 8-hour TWA monitoring required;
above the STEL. monitor STEL exposures every three
months.
At or above the action level, Monitor 8-hour TWA exposures every six
at or below the TWA, and at months.
or below the STEL.
[[Page 50730]]
At or above the action level, Monitor 8-hour TWA exposures every six
at or below the TWA, and months and monitor STEL exposures every
above the STEL. three months.
Above the TWA and at or below Monitor 8-hour TWA exposures every three
the STEL. months. In addition, without regard to
the last sentence of the note to
paragraph (d)(3), the following
employers must monitor STEL exposures
every three months until either the date
by which they must achieve the 8-hour
TWA PEL under paragraph (n) of this
section or the date by which they in
fact achieve the 8-hour TWA PEL,
whichever comes first: employers engaged
in polyurethane foam manufacturing; foam
fabrication; furniture refinishing;
general aviation aircraft stripping;
product formulation; use of MC-based
adhesives for boat building and repair,
recreational vehicle manufacture, van
conversion, or upholstery; and use of MC
in construction work for restoration and
preservation of buildings, painting and
paint removal, cabinet making, or floor
refinishing and resurfacing.
Above the TWA and above the Monitor 8-hour TWA exposures and STEL
STEL. exposures every three months.
------------------------------------------------------------------------
[Note to paragraph (d)(3): The employer may decrease the frequency
of 8-hour TWA exposure monitoring to every six months when at least
two consecutive measurements taken at least seven days apart show
exposures to be at or below the 8-hour TWA PEL. The employer may
discontinue the periodic 8-hour TWA monitoring for employees where
at least two consecutive measurements taken at least seven days
apart are below the action level. The employer may discontinue the
periodic STEL monitoring for employees where at least two
consecutive measurements taken at least 7 days apart are at or below
the STEL.]
* * * * *
(j) Medical surveillance.
* * * * *
(9) Written medical opinions.
(i) * * *
(A) The physician or other licensed health care professional's
opinion concerning whether exposure to MC may contribute to or
aggravate the employee's existing cardiac, hepatic, neurological
(including stroke) or dermal disease or whether the employee has any
other medical condition(s) that would place the employee's health at
increased risk of material impairment from exposure to MC.
(B) Any recommended limitations upon the employee's exposure to MC,
including removal from MC exposure, or upon the employee's use of
respirators, protective clothing, or other protective equipment.
* * * * *
(10) Medical Presumption. For purposes of this paragraph (j) of
this section, the physician or other licensed health care professional
shall presume, unless medical evidence indicates to the contrary, that
a medical condition is unlikely to require medical removal from MC
exposure if the employee is not exposed to MC above the 8-hour TWA PEL.
If the physician or other licensed health care professional recommends
removal for an employee exposed below the 8-hour TWA PEL, the physician
or other licensed health care professional shall cite specific medical
evidence, sufficient to rebut the presumption that exposure below the
8-hour TWA PEL is unlikely to require removal, to support the
recommendation. If such evidence is cited by the physician or other
licensed health care professional, the employer must remove the
employee. If such evidence is not cited by the physician or other
licensed health care professional, the employer is not required to
remove the employee.
(11) Medical Removal Protection (MRP).
(i) Temporary medical removal and return of an employee.
(A) Except as provided in paragraph (j)(10) of this section, when a
medical determination recommends removal because the employee's
exposure to MC may contribute to or aggravate the employee's existing
cardiac, hepatic, neurological (including stroke), or skin disease, the
employer must provide medical removal protection benefits to the
employee and either:
(1) Transfer the employee to comparable work where methylene
chloride exposure is below the action level; or
(2) Remove the employee from MC exposure.
(B) If comparable work is not available and the employer is able to
demonstrate that removal and the costs of extending MRP benefits to an
additional employee, considering feasibility in relation to the size of
the employer's business and the other requirements of this standard,
make further reliance on MRP an inappropriate remedy, the employer may
retain the additional employee in the existing job until transfer or
removal becomes appropriate, provided:
(1) The employer ensures that the employee receives additional
medical surveillance, including a physical examination at least every
60 days until transfer or removal occurs; and
(2) The employer or PLHCP informs the employee of the risk to the
employee's health from continued MC exposure.
(C) The employer shall maintain in effect any job-related
protective measures or limitations, other than removal, for as long as
a medical determination recommends them to be necessary.
(ii) End of MRP benefits and return of the employee to former job
status.
(A) The employer may cease providing MRP benefits at the earliest
of the following:
(1) Six months;
(2) Return of the employee to the employee's former job status
following receipt of a medical determination concluding that the
employee's exposure to MC no longer will aggravate any cardiac,
hepatic, neurological (including stroke), or dermal disease;
(3) Receipt of a medical determination concluding that the employee
can never return to MC exposure.
(B) For the purposes of this paragraph (j), the requirement that an
employer return an employee to the employee's former job status is not
intended to expand upon or restrict any rights an employee has or would
have had, absent temporary medical removal, to a specific job
classification or position under the terms of a collective bargaining
agreement.
(12) Medical Removal Protection Benefits.
(i) For purposes of this paragraph (j), the term medical removal
protection benefits means that, for each removal, an employer must
maintain for up to six months the earnings, seniority, and other
employment rights and benefits of the employee as though the employee
had not been removed from MC exposure or transferred to a comparable
job.
[[Page 50731]]
(ii) During the period of time that an employee is removed from
exposure to MC, the employer may condition the provision of medical
removal protection benefits upon the employee's participation in
follow-up medical surveillance made available pursuant to this section.
(iii) If a removed employee files a workers' compensation claim for
a MC-related disability, the employer shall continue the MRP benefits
required by this paragraph until either the claim is resolved or the 6-
month period for payment of MRP benefits has passed, whichever occurs
first. To the extent the employee is entitled to indemnity payments for
earnings lost during the period of removal, the employer's obligation
to provide medical removal protection benefits to the employee shall be
reduced by the amount of such indemnity payments.
(iv) The employer's obligation to provide medical removal
protection benefits to a removed employee shall be reduced to the
extent that the employee receives compensation for earnings lost during
the period of removal from either a publicly or an employer-funded
compensation program, or receives income from employment with another
employer made possible by virtue of the employee's removal.
(13) Voluntary Removal or Restriction of an Employee. Where an
employer, although not required by this section to do so, removes an
employee from exposure to MC or otherwise places any limitation on an
employee due to the effects of MC exposure on the employee's medical
condition, the employer shall provide medical removal protection
benefits to the employee equal to those required by paragraph (j)(12)
of this section.
(14) Multiple Health Care Professional Review Mechanism.
(i) If the employer selects the initial physician or licensed
health care professional (PLHCP) to conduct any medical examination or
consultation provided to an employee under this paragraph (j)(11), the
employer shall notify the employee of the right to seek a second
medical opinion each time the employer provides the employee with a
copy of the written opinion of that PLHCP.
(ii) If the employee does not agree with the opinion of the
employer-selected PLHCP, notifies the employer of that fact, and takes
steps to make an appointment with a second PLHCP within 15 days of
receiving a copy of the written opinion of the initial PLHCP, the
employer shall pay for the PLHCP chosen by the employee to perform at
least the following:
(A) Review any findings, determinations or recommendations of the
initial PLHCP; and
(B) conduct such examinations, consultations, and laboratory tests
as the PLHCP deems necessary to facilitate this review.
(iii) If the findings, determinations or recommendations of the
second PLHCP differ from those of the initial PLHCP, then the employer
and the employee shall instruct the two health care professionals to
resolve the disagreement.
(iv) If the two health care professionals are unable to resolve
their disagreement within 15 days, then those two health care
professionals shall jointly designate a PLHCP who is a specialist in
the field at issue. The employer shall pay for the specialist to
perform at least the following:
(A) Review the findings, determinations, and recommendations of the
first two PLHCPs; and
(B) Conduct such examinations, consultations, laboratory tests and
discussions with the prior PLHCPs as the specialist deems necessary to
resolve the disagreements of the prior health care professionals.
(v) The written opinion of the specialist shall be the definitive
medical determination. The employer shall act consistent with the
definitive medical determination, unless the employer and employee
agree that the written opinion of one of the other two PLHCPs shall be
the definitive medical determination.
(vi) The employer and the employee or authorized employee
representative may agree upon the use of any expeditious alternate
health care professional determination mechanism in lieu of the
multiple health care professional review mechanism provided by this
paragraph so long as the alternate mechanism otherwise satisfies the
requirements contained in this paragraph.
* * * * *
(n) Dates.
* * * * *
(2) Start-up dates. (i) Initial monitoring required by paragraph
(d)(2) of this section shall be completed according to the following
schedule:
(A) For employers with fewer than 20 employees, within 300 days
after the effective date of this section.
(B) For polyurethane foam manufacturers with 20 to 99 employees,
within 255 days after the effective date of this section.
(C) For all other employers, within 150 days after the effective
date of this section.
(ii) Engineering controls required under paragraph (f)(1) of this
section shall be implemented according to the following schedule:
(A) For employers with fewer than 20 employees: within three (3)
years after the effective date of this section.
(B) For employers with fewer than 150 employees engaged in foam
fabrication; for employers with fewer than 50 employees engaged in
furniture refinishing, general aviation aircraft stripping, and product
formulation; for employers with fewer than 50 employees using MC-based
adhesives for boat building and repair, recreational vehicle
manufacture, van conversion, and upholstering; for employers with fewer
than 50 employees using MC in construction work for restoration and
preservation of buildings, painting and paint removal, cabinet making
and/or floor refinishing and resurfacing: within three (3) years after
the effective date of this section.
(C) For employers engaged in polyurethane foam manufacturing with
20 employees or more: within thirty (30) months after the effective
date of this section.
(D) For employers with 150 or more employees engaged in foam
fabrication; for employers with 50 or more employees engaged in
furniture refinishing, general aviation aircraft stripping, and product
formulation; for employers with 50 or more employees using MC-based
adhesives in boat building and repair, recreational vehicle
manufacture, van conversion and upholstering; and for employers with 50
or more employees using MC in construction work for restoration and
preservation of buildings, painting and paint removal, cabinet making
and/or floor refinishing and resurfacing: within two (2) years after
the effective date of this section.
(E) For all other employers: within one (1) year after the
effective date of this section.
(iii) Employers identified in paragraphs (n)(2)(ii)(B), (C), and
(D) of this section shall comply with the requirements listed below in
this subparagraph by the dates indicated:
(A) Use of respiratory protection whenever an employee's exposure
to MC exceeds or can reasonably be expected to exceed the 8-hour TWA
PEL, in accordance with paragraphs (c)(1), (e)(3), (f)(1) and (g)(1) of
this section: by the applicable dates set out in paragraphs
(n)(2)(ii)(B), (C) and (D) of this section for the installation of
engineering controls.
(B) Use of respiratory protection whenever an employee's exposure
to MC exceeds or can reasonably be expected to exceed the STEL in
accordance with paragraphs (e)(3), (f)(1),
[[Page 50732]]
and (g)(1) of this section: by the applicable dates indicated in
paragraph (n)(2)(iv) of this section.
(C) Implementation of work practices (such as leak and spill
detection, cleanup and enclosure of containers) required by paragraph
(f)(1) of this section: by the applicable dates indicated in paragraph
(n)(2)(iv) of this section.
(D) Notification of corrective action under paragraph (d)(5)(ii) of
this section: no later than (90) days before the compliance date
applicable to such corrective action.
(iv) Unless otherwise specified in this paragraph (n), all other
requirements of this section shall be complied with according to the
following schedule:
(A) For employers with fewer than 20 employees, within one (1) year
after the effective date of this section.
(B) For employers engaged in polyurethane foam manufacturing with
20 to 99 employees, within 270 days after the effective date of this
section.
(C) For all other employers, within 255 days after the effective
date of this section.
* * * * *
[FR Doc. 98-25211 Filed 9-21-98; 8:45 am]
BILLING CODE 4510-26-P
