Revising the Notification Requirements in the Exposure Determination; Provisions of the Hexavalent Chromium Standards

AGENCY:

Occupational Safety and Health Administration (OSHA), Department of Labor.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

On February 28, 2006, OSHA published a final rule for Occupational Exposure to Hexavalent Chromium (Cr (VI)). Public Citizen Health Research Group (Public Citizen) and other parties petitioned for review of the standard in the United States Court of Appeals for the Third Circuit. The court denied the petitions for review on all but one issue. The Third Circuit remanded the employee notification requirements in the standard's exposure determination provisions for further consideration. More specifically, the court directed the Agency to either provide an explanation for its decision to limit employee notification requirements to circumstances in which Cr(VI) exposures exceed the permissible exposure limit (PEL) or take other appropriate action with respect to that paragraph of the standard. After reviewing the rulemaking record on this issue, and reconsidering the provision in question, OSHA has decided to propose a revision of the notification requirements, by means of this Notice of Proposed Rulemaking (NPRM), that would require employers to notify employees of the results of all exposure determinations.

DATES:

Comments to this NPRM, hearing requests, and other information must be submitted (transmitted, postmarked, or delivered) by April 15, 2010. All submissions must bear a postmark or provide other evidence of the submission date.

ADDRESSES:

You may submit comments, hearing requests, and other materials, identified by Docket No. OSHA-H054a-2006-0064, by any of the following methods:

Electronically: You may submit comments and attachments electronically at http://www.regulations.gov which is the Federal eRulemaking Portal. Follow the instructions online for submitting comments.

Facsimile: OSHA allows facsimile transmission of comments and hearing requests that are 10 pages or fewer in length (including attachments). You can fax these documents to the OSHA Docket Office at (202) 693-1648; hard copies of these documents are not required. Instead of transmitting facsimile copies of attachments that supplement these documents (e.g., studies, journal articles), commenters must submit these attachments to the OSHA Docket Office, Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210. These attachments must clearly identify the sender's name, the date, and the Docket No. (OSHA-H054a-2006-0064) so that the Agency can attach them to the appropriate document.

Regular mail, express delivery, hand (courier) delivery, and messenger service: Submit comments and any additional material to the OSHA Docket Office, Docket No. OSHA-H054a-2006-0064 or RIN No. 1218-AC43, Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY number is (877) 889-5627.) Note that security procedures may delay OSHA's receipt of comments and other written materials submitted by regular mail. Please contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express delivery, hand delivery, and messenger service. Deliveries (hand, express mail, messenger service) are accepted during the Docket Office's normal business hours, 8:15 a.m. to 4:45 p.m., E.T.

Instructions: All submissions must include the Agency name and the OSHA docket number (i.e., OSHA Docket No. OSHA-H054a-2006-0064). Comments and other material, including any personal information, will be placed in the public docket without revision, and will be available online at http://www.regulations.gov . Therefore, the Agency cautions commenters about submitting statements they do not want made available to the public or submitting comments that contain personal information (either about themselves or others) such as social security numbers, birth dates, and medical data.

Docket: To read or download comments or other material in the docket, go to http://www.regulations.gov or to the OSHA Docket Office at the address above. Documents in the docket are listed in the http://www.regulations.gov index; however, some information (e.g., copyrighted material) is not publicly available to read or download through this Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT:

For general information and press inquiries contact Ms. Jennifer Ashley, Director, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999. For technical inquiries, contact Maureen Ruskin, Office of Chemical Hazards—Metals, Directorate of Standards and Guidance, Room N-3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-1950, fax: (202) 693-1678. Copies of this Federal Register notice are available from the OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. Electronic copies of this Federal Register notice, as well as news releases and other relevant documents, are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

I. Request for Comment

OSHA requests comments on all issues related to this action including economic or other regulatory impacts of this action on the regulated community. OSHA will consider all of the comments, and the comments will become part of the record. OSHA will determine its next steps based on all comments and submissions.

II. Relationship Between This Proposed Rule and the Companion Direct Final Rule

In direct final rulemaking, an agency publishes a direct final rule in the Federal Register with a statement that the rule will go into effect unless a significant adverse comment is received within a specified period of time. An identical proposed rule is often published at the same time. If significant adverse comments are not submitted in response to the direct final rule, the rule goes into effect. If a significant adverse comment is received, the agency withdraws the direct final rule and treats such comment as a response to the proposed rule. Direct final rulemaking is typically used where an agency anticipates that a rule will not be controversial. Examples include minor substantive changes to regulations, direct incorporations of mandates from new legislation, and in this case, minor changes to regulations resulting from a judicial remand.

OSHA is publishing this proposed rule along with a companion direct final rule. The comment period for the proposed rule runs concurrently with that of the direct final rule. Any comments received under this proposed rule will also be treated as comments regarding the companion direct final rule. Likewise, significant adverse comments submitted to the companion direct final rule will also be considered as comments to this proposed rule.

If OSHA receives a significant adverse comment on the companion direct final rule, the Agency will publish a timely withdrawal of the DFR and proceed with this NPRM. In the event OSHA withdraws the companion direct final rule because of significant adverse comment, the Agency will consider all comments received when it continues with this proposed rule. OSHA will then decide whether to publish a new final rule.

III. Discussion of Changes

Paragraph (d) of the Chromium standard (29 CFR 1910.1026, 29 CFR 1915.1026, 29 CFR 1926.1126) (71 FR 10100) is titled “Exposure Determination” and requires employers to determine the 8-hour time-weighted-average exposure for each employee exposed to Cr(VI). This can be done through scheduled air monitoring (paragraph (d)(2)) or on the basis of any combination of air monitoring data, historical monitoring data, and/or objective data (paragraph (d)(3)). As originally promulgated, paragraph (d)(4) required the employer to notify affected employees of any exposure determinations indicating exposures in excess of the PEL. The employer can satisfy this requirement either by posting the exposure determination results in an appropriate location accessible to all affected employees or by notifying each affected employee in writing of the results of the exposure determination. Under the general industry standard, notice has to be provided within 15 work days, and in construction and maritime employers have 5 work days to provide the required notice.

The requirement to notify employees of exposures above the exposure limit was consistent with Section 8(c)(3) of the Occupational Safety and Health Act of 1970 (OSH Act), which requires employers “to promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents * * * at levels which exceed those prescribed by an applicable occupational safety and health standard,” 29 U.S.C. 657(c)(3). The promulgated notice requirement was more limited than the proposed chromium standard (69 FR 59306, Oct. 4, 2004), however. The proposed standard would have required employers to notify affected employees of all exposure determinations, irrespective of the results. The broader, proposed notice requirement mirrored similar provisions in OSHA's other substance-specific health standards including, but not limited to, lead (29 CFR 1910.1025(d)(8)(i)); arsenic (29 CFR 1910.1018(e)(5)(i)); methylenedianiline (29 CFR 1910.1050(e)(7)(i)); butadiene (29 CFR 1910.1051(d)(7)(i)); and methylene chloride (29 CFR 1910.1052(d)(5)(i)). All of those other standards require employers to notify employees of all exposure monitoring results.

Public Citizen and other parties petitioned for review of the final chromium standard. (See Public Citizen Health Research Group v. Dept. of Labor, 557 F.3d 165 (3d Cir. 2009)). Part of Public Citizen's petition involved a challenge to paragraph (d)(4). Public Citizen argued that OSHA's decision to depart from the proposed rule and limit the employee notification requirement to exposures above the PEL was arbitrary and unexplained. Although OSHA defended the final notification provision on many grounds, including that it was consistent with Section 8(c)(3) of the OSH Act, the Third Circuit granted Public Citizen's petition for review with regard to the employee notification requirement (while denying all other challenges to the standard). See Public Citizen, 557 F.3d at 185-86. The court found that “OSHA failed to provide a statement of reasons for departing from the proposed standard and past practice in other standards,” id. at 186, and remanded paragraph (d)(4) to the agency “for further consideration and explanation.” Id. at 191. The court “expect[ed] OSHA [to] * * * act expeditiously in either providing an explanation for its chosen notification requirements or taking such further action as may be appropriate.” Id. at 192.

In response to the Third Circuit's decision, OSHA re-examined the record. The Agency did not find any comments or testimony in the record on the narrow issue of whether employees should be notified of all exposure determinations. OSHA also confirmed that all of its other substance-specific health standards have broader notification requirements than the 2006 Cr(VI) standard, i.e., they require employers to notify employees of exposures even below the relevant exposure limits. See, e.g., lead (29 CFR 1910.1025(d)(8)(i)); arsenic (29 CFR 1910.1018(e)(5)(i)); methylenedianiline (29 CFR 1910.1050(e)(7)(i)); butadiene (29 CFR 1910.1051(d)(7)(i)); and methylene chloride (29 CFR 1910.1052(d)(5)(i)).

Upon reconsidering this issue, OSHA has decided to take action, by means of this notice, to propose an amendment to the notification requirements in the Cr(VI) standards. Consistent with the language in the proposed chromium standard, as well as past practice in OSHA's other substance-specific health standards, the amended provision would require employers to notify affected employees of all exposure determinations, whether above or below the PEL. OSHA is not proposing to change any other requirements in the exposure determination or notification provisions. For example, the number of work days employers have to provide notice to employees would remain unchanged.

In the preamble to the final Cr(VI) standard, OSHA concluded that employees were exposed to significant risk at the previous PEL for Cr(VI) of 52 μg/m³ and that lowering the PEL to 5 μg/m³ substantially reduced that risk. 71 FR at 10223-25. Feasibility considerations led OSHA to set the PEL at 5 μg/m³, even though the Agency recognized that significant risk remained at lower levels. See id. at 10333-39. For example, OSHA still expected 2.1-9.1 excess lung cancer deaths per 1000 workers with a lifetime of regular exposure to Cr(VI) at 1 μg/m³. See id. at 10224 (Table VII-1). OSHA explained in the preamble to the final rule that the ancillary provisions of the standard, e.g., monitoring and medical surveillance requirements, were expected to reduce the residual risk remaining at the final PEL. Id. at 10334. OSHA believes that this amendment to the notification requirement will, in addition to the other ancillary requirements, further reduce the risk of health impairment associated with Cr(VI) exposures below 5 μg/m³.

Notifying employees of their exposures arms them with knowledge that can permit and encourage them to be more proactive in working safely to control their own exposures through better work practices and by more actively participating in safety programs. As OSHA noted with respect to its Hazard Communication Standard: “Workers provided the necessary hazard information will more fully participate in, and support, the protective measures instituted in their workplaces.” 59 FR 6126, 6127 (Feb. 9, 1994). Exposures to Cr(VI) below the PEL may still be hazardous, and making employees aware of such exposures may encourage them to take whatever steps they can, as individuals, to reduce their exposures as much as possible.

This may be of particular significance for welders, who make up almost half of the employees affected by the chromium standard. See 71 Fr at 10257-59 (Table VIII-3). Welders have a unique ability to control their own Cr(VI) exposures by making simple changes to their work practices, e.g., changes in technique, posture or the positioning of portable local exhaust ventilation. See, e.g., Shaw Environmental, Inc., Cost and Economic Impact Analysis of a Final OSHA Standard for Hexavalent Chromium, Chapter 2-Welding, Docket No. OSHA-H054a-2006-0064, Document No. 2541, page 2-156 (“Another environmental variable is the variation in welding technique and posture used by different welders. Small differences in the welder's body position in relation to the welding task, the welder's body position in relation to the weld, and any LEV [local exhaust ventilation] may create large differences in an individual's fume exposure. Welder information and training should reduce the occurrence of this poor work practice.”).

For a complete discussion of applicable legal considerations, OSHA's economic analysis and Regulatory Flexibility Act certification, issues involving federalism and State-Plan States, and OSHA's response under the Unfunded Mandates Reform Act, see the preamble to the direct final rule.

IV. OMB Review Under the Paperwork Reduction Act of 1995

The proposed revision to the notification requirement in the Cr(VI) standard is subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA-95), 44 U.S.C. 3501 et seq., and OMB's regulations at 5 CFR part 1320. The information collection requirements (“paperwork”) currently contained in the Chromium VI (Cr(VI)) standard are approved by OMB (Information Collection Request (ICR), Chromium (VI) Standards for General Industry (29 CFR 1910.1026 ), Shipyard Employment (29 CFR 1915.1026 ), and Construction (29 CFR 1926.1126 ), under OMB Control number 1218-0252. The Department notes that a Federal agency cannot conduct or sponsor a collection of information unless it is approved by OMB under the PRA and displays a currently valid OMB control number, and the public is not required to respond to a collection of information requirement unless it displays a currently valid OMB control number. Also, notwithstanding any other provisions of law, no person shall be subject to penalty for failing to comply with a collection of information requirement if the requirement does not display a currently valid OMB control number.

On June 22, 2009, OSHA published a preclearance Federal Register Notice, Docket No. OSHA-2009-0015, as specified in PRA-95 (44 U.S.C. 3506(c)(2)(A)), allowing the public sixty days to comment on a proposal to extend OMB's approval of the information collection requirements in the Cr(VI) standard (74 FR 29517). This Notice also served to inform the public that OSHA was considering revising the notification requirements in the exposure determination provision in response to the court-ordered remand. At that point OSHA estimated the new burden hours and costs that would result from this potential amendment to the standard, and the public had sixty days to comment on those estimates in accordance with the PRA, 44 U.S.C. 3506(c)(2). OSHA estimated that a requirement to notify employees of all exposure determination results would result in an increase of 62,575 burden hours and would increase employer cost, in annualized terms, by $1,526,731.

The pre-clearance Federal Register comment period closed on August 22, 2009. OSHA did not receive public comments on that notice. On October 30, 2009, DOL published a Federal Register notice announcing that the Cr(VI) ICR had been submitted to OMB (74 FR 56216) for review and approval, and that interested parties had until November 30, 2009 to submit comments to OMB on that submission. No comments were received in response to that Notice either.

Now that OSHA is proposing to amend the Cr(VI) standard via this NPRM, the Agency will provide an additional thirty days for the public to comment on the estimated paperwork implications of the proposed changes to the notification requirements.

Inquiries: You may obtain an electronic copy of the complete Cr(VI) ICR by visiting the Web page at: http://www.reginfo.gov/public/do/PRAMain , scroll under “Inventory of Approved Collections, Collections Under Review, Recently Approved/Expired” to “Department of Labor (DOL)” to view all of the DOL's ICRs, including those ICRs submitted for rulemakings. The Department's ICRs are listed by OMB control number. The Cr(VI) OMB control number is 1218-0252. To make inquiries, or to request other information, contact Todd Owen, Directorate of Standards and Guidance, OSHA, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2222.

Submitting comments: Members of the public who wish to comment on the estimated burden hours and costs attributable to the amendment to the notification provision, as described in the Cr(VI) ICR, may send their written comments to the Office of Information and Regulatory Affairs, Attn: OSHA Desk Officer (RIN 1218-AC43), Office of Management and Budget, Room 10235, 725 17th Street, NW., Washington, DC 20503. The Agency encourages commenters to also submit their comments on these paperwork requirements to the rulemaking docket (Docket No OSHA-H054a-2006-0064). For instructions on submitting these comments to the rulemaking docket, see the sections of this Federal Register notice titled DATES and ADDRESSES.

List of Subjects

29 CFR Part 1910

• Exposure determination
• General industry
• Health
• Hexavalent chromium (Cr(VI))
• Notification of determination results to employees
• Occupational safety and health

29 CFR Part 1915

• Exposure determination
• Health
• Hexavalent chromium (Cr(VI))
• Notification of determination results to employees
• Occupational safety and health, shipyard employment

29 CFR Part 1926

• Construction
• Exposure determination
• Health
• Hexavalent chromium (Cr(VI))
• Notification of determination results to employees
• Occupational safety and health

Authority and Signature

David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this notice of proposed rulemaking. The Agency is issuing this rule under Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order 5-2007 (72 FR 31159), and 29 CFR part 1911.

Amendments to Standards

For the reasons stated in the preamble, OSHA is proposing to amend 29 CFR parts 1910, 1915, and 1926 to read as follows:

PART 1910—OCCUPATIONAL SAFETY AND HEALTH STANDARDS—[AMENDED]

Subpart A—General

1. The authority citation for subpart A of part 1910 is revised to read 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), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable.

Sections 1910.7, 1910.8, and 1910.9 also issued under 29 CFR Part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); and OMB Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).

Subpart Z—Toxic and Hazardous Substances

2. The authority citation for subpart Z of part 1910 is revised to read as follows:

Authority: Secs. 4, 6, 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), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable; and 29 CFR part 1911.

All of subpart Z issued under section 6(b) of the Occupational Safety and Health Act of 1970, except those substances that have exposure limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 1910.1000. The latter were issued under section 6(a) (29 U.S.C. 655(a)).

Section 1910.1000, Tables Z-1, Z-2, and Z-3 also issued under 5 U.S.C. 553, but not under 29 CFR part 1911 except for the arsenic (organic compounds), benzene, cotton dust, and chromium (VI) listings.

Section 1910.1001 also issued under section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704) and 5 U.S.C. 553.

Section 1910.1002 also issued under 5 U.S.C. 553, but not under 29 U.S.C. 655 or 29 CFR part 1911.

Sections 1910.1018, 1910.1029, and 1910.1200 also issued under 29 U.S.C. 653.

Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat. 1901.

3. Section 1910.1026, paragraph (d)(4)(i), is revised to read as follows:

PART 1915—OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD EMPLOYMENT [AMENDED]

Subpart A—General Provisions

4. The authority citation for part 1915 will continue to read as follows:

Authority: Section 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 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), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as applicable; 29 CFR Part 1911.

Subpart Z—Toxic and Hazardous Substances

5. Section 1915.1026, paragraph (d)(4)(i), is revised to read as follows:

PART 1926—SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION—[AMENDED]

Subpart A—General

6. The authority citation for subpart A of part 1926 is revised to read as follows:

Authority: Section 3704 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 et seq.); 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), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as applicable; and 29 CFR part 1911.

Subpart Z—Toxic and Hazardous Substances

7. The authority citation for subpart Z of part 1926 is revised to read as follows:

Authority: Section 3704 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 et seq.); Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (62 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as applicable; and 29 CFR part 11.

Section 1926.1102 of 29 CFR not issued under 29 U.S.C. 655 or 29 CFR part 1911; also issued under 5 U.S.C. 553.

8. Section 1926.1126, paragraph (d)(4)(i), is revised to read as follows: