DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFRParts 1910, 1915 and 1926 [Docket No. H-71] RIN: 1218-AA98 OccupationalExposure to Methylene Chloride

AGENCY:Occupational Safety and Health Administration (OSHA), Department ofLabor.

ACTION:Proposed rule; notice of informal public hearing; notice ofadditional issues.

SUMMARY:This notice supplements the Notice of Informal Public Hearing onOccupational Exposure to Methylene Chloride (MC) in the Federal Register (57FR 22448, June 9, 1992) by advising the public of the Occupational Safety andHealth Administration's consultation with the Advisory Committee onConstruction Safety and Health, reporting the recommendations of thatCommittee, and extending the deadlines for filing of notice of intention toappear at the informal public hearings, written testimony and comments onissues regarding the construction industry.

DATES:All informal public hearings will begin at 9:30 a.m. on the first dayof the hearing and at 9:00 a.m. on each succeeding day. The two informalpublic hearings are scheduled to begin on the following dates:

     Washington, DC:  September 16, 1992.     San Francisco, CA:  October 14, 1992.

Notices of intention to appear at the informal public hearings to testifyregarding the construction-related issues raised in this supplemental noticemust be postmarked by September 8, 1992. Notice of intention to appear at theinformal public hearings to testify on all other issues must be postmarked byAugust 24, 1992.

Testimony and all evidence which will be introduced into the hearing recordregarding the construction-related issues raised in this supplemental noticemust be postmarked by September 8, 1992 for the Washington, DC hearing and bySeptember 22, 1992 for the San Francisco, CA hearing. Testimony and allevidence to be introduced into the hearing record regarding all other issuesmust be postmarked by August 24, 1992 for the Washington, DC hearing and bySeptember 22, 1992 for the San Francisco, CA hearing.

Comments on the construction-related issues raised in this supplementalnotice must be postmarked by September 22, 1992. Comments on all other issuesmust be postmarked by August 24, 1992.

ADDRESSES: Notices of intention to appear at the hearing and testimony anddocumentary evidence which will be introduced into the hearing record must besubmitted in quadruplicate to Mr. Tom Hall, Occupational Safety and HealthAdministration, Division of Consumer Affairs, room N3647, 200 ConstitutionAvenue NW., Washington, DC 20210; (202) 523-8615.

Comments are to be submitted in quadruplicate to: The Docket Office, DocketNo. H-71, room N-2634, United States Department of Labor, 200 ConstitutionAvenue, NW., Washington, DC 20210, telephone No. (202) 523-7894.

Comments limited to 10 pages or less in length also may be transmitted byfacsimile to (202) 523-5046, provided that the original and three copies ofthe comment are sent to the Docket Officer thereafter.

The locations of the informal public hearings are as follows:

Washington, DC: The Auditorium of the Frances Perkins Building, U.S.Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.

San Francisco, CA: The Coit Room, Holiday Inn, Financial District, 750Kearny St., San Francisco, CA, 94108 (415) 433-6600

FOR FURTHER INFORMATION CONTACT: Hearings: Mr. Tom Hall, OccupationalSafety and Health Administration, Division of Consumer Affairs, room N3647,200 Constitution Avenue NW., Washington, DC 20210; (202) 523-8615.

Proposal: Mr. James F. Foster, Office of Public Affairs, U.S. Department ofLabor, Occupational Safety and Health Administration, room N3647, 200Constitution Avenue NW., Washington, DC 20210; (202) 523-8151.

SUPPLEMENTARY INFORMATION: On November 7, 1991, OSHA proposed to amend itsexisting regulation for employee exposure to Methylene Chloride (MC), so thatthe permissible exposure limits (PELs) would appropriately reflect theavailable animal and human data. The Agency proposed to reduce thepermissible 8-hour time- weighted average (TWA) exposure from 500 parts permillion (ppm) to 25 ppm. In addition, OSHA proposed to delete the existingceiling limit concentration of 1000 ppm and to reduce the short- termexposure limit (STEL) from 2,000 ppm (measured over 5 minutes in any 2 hoursas a maximum peak concentration) to 125 ppm, measured as a 15-minute TWA.

The proposal also set requirements for exposure control, personal protectiveequipment, employee exposure monitoring, training, medical surveillance,hazard communication, regulated areas, emergency procedures andrecordkeeping. In order to minimize the compliance burdens of employerswhose employees have consistently low exposures to MC, the Agency hasproposed an "action level" of 12.5 ppm, measured as an 8-hour TWA. TheNotice of Proposed Rulemaking (NPRM) presented 48 issues, including one issuespecifically addressing methylene chloride use and exposure in theconstruction industry, through which the Agency sought to elicit informationand comments.

At the time the NPRM was published, the Agency had not yet consulted withthe Advisory Committee on Construction Safety and Health (ACCSH) regardingthe application of the proposed rule to the construction industry, becausethe Committee's members, whose terms expired in June 1990, had not yet beenreappointed or replaced. OSHA stated (56 FR 57115-16) that the NPRM for MCprovides the necessary rationale for regulatory action and sets out therequirements needed to protect employees in all industries, includingconstruction, from the health hazards associated with occupational exposureto MC.

On May 4, 1992, the ACCSH was reconstituted (57 FR 19139). On May 19, 1992,the Advisory Committee convened and established a work group to gatherinformation for consideration by the full Committee at its next meeting,scheduled for July 28, 1992. In preparing its report, the methylene chloridework group addressed questions regarding MC use and exposure in theconstruction industry which OSHA had presented to the Committee. In addition,the work group generated issues and information that went beyond the scope ofOSHA's questions.

On June 9, 1992, OSHA published a Notice of Informal Public Hearing (57 FR22448) which scheduled hearings and raised 16 issues (including Issue 10,which focused on the construction industry, repeating the questions presentedto the ACCSH) regarding which the Agency sought testimony, with supportinginformation. The hearing notice also reopened the comment period for theNPRM. In addition, the hearing notice stated that OSHA would publish asupplemental hearing notice once the Agency had completed its consultationwith the Advisory Committee, so that the Committee's recommendations could beaddressed in testimony at the hearings or in comments.

On July 28, 1992, the Advisory Committee received the report of themethylene chloride work group. The Committee approved the work group reportand formally presented the report to OSHA as the compilation of itsrecommendations regarding OSHA's proposal to regulate occupational exposureto MC in the construction industry. OSHA has placed the work group report inthe Docket for this rulemaking (Ex. 21-69), so it is available for publicinspection and copying.

This notice summarizes the Committee's recommendations and extends thedeadlines for filing notice of intention to appear at the informal publichearings, written testimony and comments on issues regarding MC in theconstruction industry. The limited extension of deadlines for inputregarding construction issues provides additional time for interested membersof the public to review the recommendations set forth by the AdvisoryCommittee on Construction Safety and Health and to prepare comments ortestimony on these issues.

The Agency has reviewed the Committee's recommendations and has determinedthat those recommendations call for no revisions to the proposed regulatorytext as regards the construction industry. The Committee's recommendations,and any public input regarding those recommendations, will be furtherconsidered in drafting the final rule for occupational exposure to MC. Theresponses to the eight questions presented to the Advisory Committee(repeated in Issue 10 of the hearing notice) are presented in Item 1 throughItem 8, below. In addition, recommendations that addressed matters notraised by the eight questions are presented in Item 9, below.

The Agency solicits testimony and comments, with supporting information,regarding the issues raised by the recommendations of the Advisory Committee,as discussed below.

1. Exposed employee population. Regarding the inquiry about constructionworker exposures to MC and specific trades where exposure is significant, theCommittee suggested several populations of construction workers which OSHAshould investigate in order to identify potentially exposed workers. Inparticular, the ACCSH discussed MC exposure among lead paint abatementworkers, painters, hazardous waste workers, workers in confined spaces,workers in trades where adhesives are used, mechanics, electricians,plumbers, carpenters and employees of small independent contractors. Datawas submitted on the total number of workers for several of thesepopulations, although data describing the number of workers exposed tomethylene chloride in these situations was not available.

2. Duration of employee exposure. Regarding the inquiry about the amountof time employees are exposed to MC, the Committee noted that there are onlylimited data available. It was suggested that OSHA review the NationalOccupational Exposure Survey data and a study of solvent exposures amongpainters in Alaska.

3. Control of employee exposure. Regarding the inquiry about theengineering controls, work practices and personal protective equipment usedto protect employees from MC exposure, the Advisory Committee stated thatthere are few engineering controls currently in use to protect againstexposure to MC in the construction industry. The Committee suggested thatOSHA review the asbestos rulemaking record for information on engineeringcontrol issues. Also, the report stated that work practices should bereviewed on a trade-by-trade basis to determine where changes should be made.In addition, the ACCSH noted there is a widely held view that it isimpractical to use supplied-air respirators to control MC exposure atconstruction sites.

4. Construction industry-specific concerns. In response to OSHA's requestfor information and recommendations regarding any special problems whichmight be encountered by the construction industry in complying with theproposed requirements for medical surveillance and exposure monitoring, theCommittee recommended that OSHA consider requiring that the originators ofproposals specify that provisions for exposure monitoring and medicalsurveillance be included in all bids received, so that all contractors wouldbe required to address and cost these items in their submitted bids.

5. Medical surveillance and exposure monitoring. Regarding the inquiryabout potential problems in complying with the proposed medical surveillanceand exposure monitoring requirements, the Committee discussed differentapproaches for medical surveillance programs, including surveillanceadministered at the national level, either by trade unions or by agovernmental body (e.g. OSHA or NIOSH).

The ACCSH noted that exposure monitoring may be difficult because exposurelevels vary so widely in the construction industry, adding that airmonitoring should not be tied to medical surveillance. The Committee alsoobserved that, while virtually all exposure monitoring at constructionworksites is performed under contract by outside personnel, there is ashortage of industrial hygienists to monitor construction industry exposures.In addition, concern was expressed regarding the cost of the industrialhygiene resources needed to perform the exposure monitoring required by theproposed rule.

The Committee suggested that OSHA consider triggering specific requirementsof the rule (such as exposure monitoring and medical surveillance) byfrequency of use in addition to, or in place of, the exposure level triggerscurrently proposed. In addition, the ACCSH suggested increased emphasis onproduct labeling, establishment of regulated areas as a partial replacementof some of the monitoring requirements, and the feasibility of usingreal-time monitoring instead of periodic monitoring to detect exposures toMC.

6. Substitute products and processes. With regard to the feasibility ofsubstitutes for methylene chloride in construction industry applications, theCommittee submitted the proceedings from the International Conference onReducing Risk in Paint Stripping, sponsored by the Environmental ProtectionAgency and held in Washington, DC on February 12-13, 1991. It was suggestedthat manufacturers issue alerts to let employers know of suitable substitutesfor MC. OSHA notes that this document is already available for inspectionand copying in the Docket for this rulemaking (Ex. 21-76).

7. Use of respiratory protection. Regarding the inquiry about respiratorusage in the construction industry, the Committee replied "Currently,construction workers do not wear respirators to control for exposure to MC." The NIOSH recommendations concerning respirators (Ex. 19-46) were discussed. Because NIOSH considers MC to be a carcinogen, that Agency does not recommendrespirators to control exposure to MC. The Committee stated that, if arespirator were to be used, the most effective type would be a pressuredemand, supplied-air respirators with an auxiliary self-contained breathingapparatus. Air-purifying respirators were not recommended for reducingexposure to MC because of poor breakthrough qualities and lack of end-of-service-life-indicators.

8. Impact of proposed 25 ppm PEL. Regarding the inquiry about anyanticipated changes in construction worksites resulting from efforts tocomply with a 25 ppm 8-hour TWA PEL, the Advisory Committee stated that therewould not be a great deal of difference between the compliance strategy usedfor 25 ppm and that used for 50 ppm. The ACCSH also stated that OSHA shouldconsider how employers would monitor compliance with the short- term exposurelimits. In addition, the Committee suggested that OSHA also consider thefrequency of MC use in triggering specific provisions of the proposed rule.

9. Additional recommendations.

A. Availability of training and MSDSs. The Advisory Committee suggestedthat OSHA add a discussion to the preamble of the final rule and anon-mandatory appendix concerning lead abatement and MC issues. TheCommittee suggested that the non-mandatory appendix include information abouttraining, such as non- mandatory "minimum" curriculum recommendations. TheACCSH noted that training employers/employees through the use of videos isconsidered to be superior to on-the-job training with safety coordinatorsbecause of the amount of knowlege required, and because safety supervisorsmay not have sufficient time or information to provide thorough training. The Committee also noted that videos are more effective than writtenmaterials, as they are accessible to employees who are illiterate, and thatbilingual videos or other training material should be available fornon-English speaking workers. The ACCSH also noted that safety informationvideos may be borrowed from the NIOSH library, for the cost of postage, thatthe Laborers Union has videos and safety cards for dissemination, and thatan EPA pilot program on disk is also available.

The Advisory Committee also stated that, in addition to training, workersneed material safety data sheets (MSDS) that are understandable. TheCommittee noted that a non-mandatory appendix in the final rule could be theappropriate place to provide an example of how to simplify the information inmaterial safety data sheets.

B. Emergency procedures. The ACCSH noted that it may also be useful todiscuss in the non-mandatory appendix information about emergency proceduresfor spills and related occurrences.

C. Responsibility for compliance. The ACCSH recommended that OSHA considerassigning responsibility for safety and health responsibility atmulti-employer worksites. In particular, the Committee suggested that theAgency consider designating the worksite owner, or "host" employer as beingresponsible for overall worksite safety.

D. Information in non-mandatory appendix. The Advisory Committee suggestedthat the Agency add information in a non- mandatory appendix to address howemployers should handle MC in construction. In particular, the Committeesuggested that OSHA provide 1) examples of specification language forcontracts which require specific compliance with OSHA standards on jobs whichrequire use of MC; 2) examples of air monitoring programs; and 3) examplesof medical surveillance or preventative medicine programs. The ACCSH notedthat surveillance and preventative medicine issues may be of interest becauseof heightened awareness in public health toward prevention.

E. Significance of risk. The Advisory Committee stated that it wasinappropriate for OSHA to set one excess death for each thousand workers asthe threshold for finding that a substance addressed in a section 6(b)(5)proceeding presented a significant risk of material harm to exposed workers. The Committee stated that the risk of premature death among workers exposedto MC at the levels that would be allowed based on the "1 in a 1000" approachis unacceptable.

OSHA is interested in receiving comments and testimony concerning therecommendations of the ACCSH. Persons interested in submitting comments orin participating in the hearing should refer to the notice of proposedrulemaking on Occupational Exposure to Methylene Chloride (56 FR 57036) andthe Notice of Hearing (57 FR 24488) for the text of the proposed standard anda more thorough discussion of issues.

PUBLIC PARTICIPATION-NOTICE OF HEARING

Pursuant to section 6(b)(3) of the Act, an opportunity to submit oraltestimony concerning the issues raised by this notice will be provided at aninformal public hearing scheduled to begin at 9:30 a.m. on September 16, 1992in the Auditorium, Frances Perkins Department of Labor Building, 200Constitution Avenue, NW., Washington, DC 20210 and at 9:30 a.m. on October14, 1992 in the Coit Room, Holiday Inn, Financial District, 750 Kearny St.,San Francisco, CA 94108.

NOTICE OF INTENTION TO APPEAR

All persons desiring to participate at the hearing regarding theconstruction-related issues raised in this supplemental notice must file anotice of intention to appear postmarked on or before September 8, 1992. Allpersons desiring to participate at the hearing regarding any other issuesmust file a notice of intention to appear postmarked on or before August 24,1992. All notices of intention to appear must be submitted in quadruplicate,addressed to Mr. Tom Hall, OSHA Division of Consumer Affairs, Docket H-71,room N-3647, U.S. Department of Labor, 200 Constitution Avenue NW.,Washington, DC 20210; telephone (202) 523-8615. The notice of intention toappear also may be transmitted by facsimile to (202) 523-5046, provided theoriginal and 3 copies of the notice are sent to the above address thereafter.

The notices of intention to appear, which will be available for inspectionand copying at the OSHA Technical Data Center Docket Office, room N-2625, 200Constitution Avenue NW., Washington, DC 20210, telephone (202) 523-7894, mustcontain the following information:

(1) The name, address, and telephone number of each person to appear;

(2) The capacity in which the person will appear; (3) The approximate amountof time requested for the presentation;

(4) The specific issues that will be addressed; (5) A statement of theposition that will be taken with respect to each issue addressed; and

(6) Whether the party intends to submit documentary evidence, and if so, abrief summary of that evidence.

FILING OF TESTIMONY AND EVIDENCE BEFORE HEARING

Any party requesting more than 10 minutes for a presentation at the hearing,or who will submit documentary evidence, must provide in quadruplicate thecomplete text of his testimony, including any documentary evidence to bepresented at the hearing, to the OSHA Division of Consumer Affairs. For theWashington, DC hearing, materials dealing with the construction- relatedissues raised in this supplemental notice must be postmarked by September 8,1992 and materials relating to all other issues must be postmarked by August24, 1992. For the San Francisco hearing, materials relating to all issuesmust be postmarked by September 22, 1992. These materials will be availablefor inspection and copying at the Technical Data Center Docket Office. Eachsuch submission will be reviewed in light of the amount of time requested inthe Notice of Intention to Appear. In those instances where the informationcontained in the submission does not justify the amount of time requested, amore appropriate amount of time will be allocated and the participant will benotified of that fact.

Any party who has not substantially complied with this requirement may belimited to a 10-minute presentation. Any party who has not filed a notice ofintention to appear may be allowed to testify, as time permits, at thediscretion of the Administrative Law Judge.

OSHA emphasizes that the hearing is open to the public, and that interestedpersons are welcome to attend. However, only persons who have filed properNotices of Intention to Appear at the hearing will be entitled to askquestions and otherwise participate fully in the proceeding.

Any participant who requires audiovisual equipment during the oraltestimony, must submit a request for such equipment in the Notice of Intentto Appear, specifying the type of equipment needed.

CONDUCT AND NATURE OF HEARING

The hearing will commence at 9:30 a.m., on September 16, 1992 in Washington,DC. An additional hearing will convene at 9:30 a.m., on October 14, 1992 inSan Francisco. At those times, any procedural matters relating to theproceeding will be resolved. The informal nature of the rulemaking hearingsto be held is established in the legislative history of section 6 of the Actand is reflected by the OSHA hearing regulations (see 29 CFR 1911.15 (a)). Although the presiding officer is an Administrative Law Judge and questioningby interested persons is allowed on crucial issues, it is clear that theproceeding shall remain informal and legislative in type. The intent, inessence, is to provide an opportunity for effective oral presentation byinterested persons which can be carried out expeditiously and in the absenceof rigid procedures which might unduly impede or protract the rulemakingprocess.

The hearings will be conducted in accordance with 29 CFR Part 1911. Thehearing will be presided over by an Administrative Law Judge who will haveall the powers necessary and appropriate to conduct a full and fair informalhearing as provided in 29 CFR Part 1911 including the powers:

(1) To regulate the course of the proceedings; (2) To dispose of proceduralrequests, objections and comparable matters;

(3) To confine the presentation to the matters pertinent to the issuesraised;

(4) To regulate the conduct of those present at the hearing by appropriatemeans;

(5) In the Judge's discretion, to question and permit the questioning of anywitness and to limit the time for questioning; and

(6) In the Judge's discretion, to keep the record open for a reasonable,stated time to receive written information and additional data, views, andarguments from any person who participated in the oral proceedings.

Following the close of the hearing, the presiding Administrative Law Judgewill certify the record of the hearing to the Assistant Secretary of Laborfor Occupational Safety and Health. The Administrative Law Judge does notmake or recommend any decisions as to the content of the final standard.

The proposed standard will be reviewed in light of all testimony and writtensubmissions received as part of the record and a standard will be issuedbased on the entire record of the proceeding, including the written commentsand data received from the public.

WRITTEN COMMENTS

Interested persons are invited to submit written data, views, and argumentswith respect to this proposed standard. Any comments regarding theconstruction-related issues raised in this supplemental notice must bepostmarked on or before September 22, 1992. Comments on all other issuesmust be postmarked on or before August 24, 1992. All comments must besubmitted in quadruplicate to the Docket Officer, Docket No. H-71, room N-2625, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC20210. Comments limited to 10 pages or less also may be transmitted byfacsimile to (202) 523-5046, provided the original and three copies are sentto the Docket Office thereafter. Written submissions must clearly identifythe proposed provisions or the hearing notice issues which are addressed andthe position taken with respect to those provisions or issues.

The data, views, and arguments that are submitted will be available forpublic inspection and copying at the above address. All timely writtensubmissions will be made a part of the record of the proceeding.

AUTHORITY AND SIGNATURE

This document was prepared under the direction of Dorothy L. Strunk, ActingAssistant Secretary of Labor for Occupational Safety and Health, U.S.Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.

It is issued under section 6(b) of the Occupational Safety and Health Act of1970 (29 U.S.C. 655), Secretary of Labor's Order No. 1-90 (55 FR 9033) and 29CFR part 1911.

Signed at Washington, DC on this 12th day of August, 1992.

Dorothy L. Strunk Acting Assistant Secretary of Labor