Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24501

Federal Aviation Administration,

Airspace Branch, ANM–520, 1601 Lind

Avenue SW, Renton, Washington

98055–4056. Communications must

identify the notice number of this

NPRM. Persons interested in being

placed on a mailing list for future

NPRM’s should also request a copy of

Advisory Circular No. 11–2A, which

describes the application procedure.

The Proposal

The FAA is considering an

amendment to Title 14 Code of Federal

Regulations, part 71 (14 CFR 71) to

modify Class D airspace at Colorado

Springs USAF Academy Airstrip, CO.

The USAF Academy has seen

substantial development adjacent to the

airfield in recent years causing the VFR

traffic pattern altitude to be increased to

7800’MSL (1000’AGL). In the interest of

safety at this high intensity student

training area, it is considered reasonable

and necessary to have a 1000’ Class D

airspace area above the standard VFR

traffic pattern. The 1000’ of Class D area

allows a student pilot a safety area of

500’ above the standard VFR traffic

pattern and still have 500’ from

overflights of the USAF Class D

airspace. This proposal would satisfy

the requirement of a 1000’ safety area by

increasing the Class D airspace area

from 8600’MSL to 8800 MSL.

The area would be depicted on

aeronautical charts for pilot reference.

The coordinates for this airspace docket

are based on North American Datum 83.

Class D airspace areas designated as

surface areas are published in Paragraph

5000 of FAA Order 7400.9E dated

September 10, 1997, and effective

September 16, 1997, which is

incorporated by reference in 14 CFR

71.1. The Class D airspace designation

listed in this document would be

published subsequently in the Order.

The FAA has determined that this

proposed regulation only involves an

established body of technical

regulations for which frequent and

routine amendments are necessary to

keep them operationally current. It,

therefore, (1) is not a ‘‘significant

regulatory action’’ under Executive

Order 12866; (2) is not a ‘‘significant

rule’’ under DOT Regulatory Policies

and Procedures (44 FR 11034; February

26, 1979): and (3) does not warrant

preparation of a Regulatory Evaluation

as the anticipated impact is so minimal.

Since this is a routine matter that will

only affect air traffic procedures and air

navigation, it is certified that this rule,

when promulgated,, will not have a

signficiant economic impact on a

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

The Proposed Amendment

In consideration of the foregoing, the

Federal Aviation Administration

proposes to amend 14 CFR part 71 as

follows:

PART 71—DESIGNATION OF CLASS A,

CLASS B, CLASS C, CLASS D, AND

CLASS E AIRSPACE AREAS;

AIRWAYS; ROUTES; AND REPORTING

POINTS

1. The authority citation for 14 CFR

part 71 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,

40120; E.O. 10854, 24 FR 9565, 3 CFR 1959–

1963 Comp., p. 389.

§ 71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of the Federal Aviation

Administration Order 7400.9E, Airspace

Designations and Reporting Points,

dated September 10, 1997, and effective

September 16, 1997, is amended as

follows:

Paragraph 5000 General.

* * * * *

ANM CO D Colorado Springs USAF

Academy Airstrip, CO [Revised]

Colorado Springs USAF Academy Airstrip,

CO

(Lat. 38°58′11′′ N, long. 104°48′47′′ W)

That airspace extending upward from the

surface to and including 8,800 feet MSL

within a 3-mile radius of the USAF Academy

Airstrip, excluding that airspace within the

Colorado Springs, CO. Class C airspace area.

This Class D airspace area is effective during

the specific dates and times established in

advance by a Notice to Airmen. The effective

date and time will thereafter be continuously

published in the Airport/Facility Directory.

* * * * *

Issued in Seattle, Washington, on April 6,

1998.

Joe E. Gingles,

Acting Assistant Manager, Air Traffic

Division, Northwest Mountain Region.

[FR Doc. 98–11767 Filed 5–1–98; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF LABOR

Occupational Safety and Health

Administration

29 CFR Part 1910

[Docket No. H–71]

RIN 1218–AA95

Methylene Chloride; Notice of Motion

for Reconsideration; Proposed Rule

AGENCY: Occupational Safety and Health

Administration (OSHA), Department of

Labor.

ACTION: Notice of motion for

reconsideration; proposed rule.

SUMMARY: The Occupational Safety and

Health Administration (OSHA) has

received a motion for reconsideration of

certain provisions of its standard

regulating occupational exposure to

methylene chloride (MC), 62 FR 1494

(Jan. 10, 1997). The motion, filed jointly

by the International Union, United

Automobile, Aerospace and Agricultural

Implement Workers of America, UAW,

the Halogenated Solvents Industry

Alliance, Inc., and others asks OSHA to

amend the methylene chloride standard

by adding to the medical surveillance

provisions of the standard a provision

for temporary medical removal

protection benefits for employees who

are temporarily 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; and modifying certain startup

dates for employers in certain identified

application groups, i.e., who use MC in

certain work operations. The standard

currently requires employers with fewer

than 20 employees to complete

installation of engineering controls by

April 10, 2000 and larger employers to

do so by earlier dates. The motion asks

that the April 10, 2000 startup date for

engineering controls be applied to some

additional small- and medium-sized

employers in the identified application

groups. Shorter startup date extensions

are requested for the larger employers in

those same application groups. The

parties to the motion further request that

respirator use to achieve the 8-hour

time-weighted-average permissible

exposure limit not be required before

the engineering control startup dates for

the employers covered by the motion.

OSHA tentatively concludes that the

amendments are appropriate and are

supported by the rulemaking record.

Accordingly, OSHA is hereby proposing

to amend the MC standard with the
24502 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

modifications the parties have

recommended. OSHA is reopening the

rulemaking record for the methylene

chloride standard for 30 days for the

limited purpose of receiving public

comment on the proposed amendments.

DATES: Comments concerning the

proposed rule must be postmarked or

transmitted by fax on or before June 3,

1998. Comments concerning the

collection of information requirements

must be postmarked or transmitted by

fax on or before July 6, 1998.

ADDRESSES: Comments are to be

submitted in quadruplicate to: The

Docket Office, Docket No. H–71, Room

N–2625, United States Department of

Labor, 200 Constitution Avenue, NW.,

Washington, DC 20210, telephone (202)

219–7894. Comments of 10 pages or

fewer may be transmitted by fax to (202)

219–5046, provided the original and

three copies are sent to the Docket

Office thereafter. The hours of operation

of the Docket Office are 10:00 a.m. to

4:00 p.m.

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:

INFORMATION COLLECTION REQUIREMENTS:

This proposed rule contains collection

of information requirements in 29 CFR

1910.1052, ‘‘Methylene Chloride,’’ in

paragraphs (j)(11)(B) and (j)(14)(i), (ii),

and (iv). Under these requirements

employers must provide certain

employees with additional medical

examinations beyond those now

required under the standard. The

proposed rule would not change the

requirement in the existing standard

that employers provide the employee

with a copy of the written medical

opinion for each medical examination

required by the standard. Because it

requires additional medical

examinations than does the current rule

and, for some of those examinations, the

provision of more information about the

results, the proposed rule imposes

additional collection of information

requirements on employers than the

current standard. The Paperwork

Reduction Act of 1995, 44 U.S.C.

3507(d), and 5 CFR 1320.11 require

Federal agencies to submit collections of

information contained in proposed rules

to the Office of Management and Budget

(OMB) for review. OSHA has submitted

the appropriate request to OMB for

approval. OSHA currently has approval

for the collection of information

requirements in the existing Methylene

Chloride standard under OMB Control

Number 1218–0179.

OSHA invites comments on whether

the proposed collection of information:

1. Ensures that the collection of

information is necessary for the proper

performance of the functions of OSHA,

including whether the information will

have practical utility;

2. Estimates the projected burden

accurately, including whether the

methodology and assumptions used are

valid;

3. Enhances the quality, utility and

clarity of the information to be

collected; and

4. Minimizes the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques, or

other forms of information technology,

e.g., permitting electronic submission of

responses.

Title: Methylene Chloride (MC) (29

CFR 1910.1052).

Description: The purpose of this

standard and its information collection

requirements is to protect employees

from adverse health effects associated

with occupational exposure to MC. The

current standard requires employers to

monitor employee exposure to MC,

inform employees of monitoring results,

and notify employees of corrective

action to be taken. Employers are also

required to provide medical

surveillance to employees who are

exposed to MC above the action level.

Employers must also provide

information and training to employees

on the following: health effects of MC,

specifics regarding use of MC in the

workplace, the content of the standard,

and means the employees can take to

protect themselves from overexposure to

MC.

In response to a motion for

reconsideration by the United Auto

Workers (UAW), the Halogenated

Solvents Industry Alliance, Inc., and

others, the Agency is proposing to add

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 to the MC standard.

Respondents: The respondents are

employers whose employees have

occupational exposure to MC, Chemical

Abstracts Service Registry Number 75–

09–2, in general industry, construction

and shipyard employment,

approximately 92,000 respondents.

Estimate of Burden Hours: OSHA

estimates that the total burden for the

proposed MC collection of information

provision will be 619 burden hours.

Estimate of Costs: OSHA estimates

that the total cost for the first year will

be $60,515 for the collection of

information provision.

Interested parties are requested to

send comments regarding this

information collection to the Office of

Information and Regulatory Affairs,

Attn. OSHA Desk officer, OMB New

Executive Office Building, 725 17th

Street, NW, Room 10235, Washington,

DC 20503. Commenters are encouraged

to send a copy of their comments on the

collection of information to OSHA along

with their other comments.

Comments submitted in response to

this notice will be summarized and/or

included in the request for Office of

Management and Budget approval of the

final information collection request:

They will also become a matter of

public record. Copies of the referenced

information collection request are

available for inspection and copying in

the OSHA Docket office and will be

mailed immediately to any person who

requests copies by telephoning Adrian

Corsey at (202) 219–7075 extension 105.

For electronic copies of the MC

information collection request, contact

OSHA’s WebPage on the Internet at

http://www.osha.gov/ and click on

‘‘Federal Register Notices’’. Then click

on ‘‘Type of Publication’’, then

‘‘Notices’’, and lastly ‘‘1998’’. Copies of

the request are also available at the

OMB docket office.

I. Background

On January 10, 1997, OSHA issued a

standard regulating occupational

exposure to methylene chloride (MC).

62 FR 1494. 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 timeweighted-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 contract cancer. Data showing

that MC exposure presents a risk of

cancer included animal bioassay data,

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
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24503

(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), lifetime occupational exposure to

MC could result in approximately 125

cancer deaths per 1000 exposed

workers. 62 FR 1563, 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.

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 to

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 to

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 at 1515. Prolonged skin contact

with MC also causes irritation and skin

burns. 62 FR at 1609.

Employers must achieve the 8-hour

TWA PEL and the STEL, to the extend

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,

at no cost to employees, and ensure that

employees use, appropriate respirators.

The standard does not permit the use of

air-purifying respirators to protect

against MC exposure because MC

1uickly 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 atomsphere-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 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 TWL 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 cancer at a preneoplastic

state. 62 FR at 1589. 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 recognizes 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.

II. The Motion for Reconsideration

The motion filed by the parties asks

OSHA 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

start-up 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.

The motion requests that the

standard’s current final engineering

control startup date of April 10, 2000,

which now applies to employers with

fewer than 20 employees, be applied

also to employers in the specified

application groups with 20–49

employees and to foam fabricators with

20–149 employees. (In referring to an

employer’s number of employees, the

parties to the motion explain that they

intend for the number of employees to

refer to the total number or 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

motion requests shorter extensions of

the engineering control dates for larger

employers in these application groups.

The parties further request that

respirator use to achieve the 8-hour

TWA PEL not be required before the
24504 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

engineering control startup dates for the

employers covered by the motion.

In evaluating the motion, OSHA notes

that the parties are not seeking to

modify the fundamental protections

provided to workers by the standard.

They are not challenging the 8-hour

TWA PEL or the STEL or the

requirement that those limits be met, to

the extent feasible, through engineering

and work practice controls. Nor are the

parties seeking modifications of the

provisions in the standard for regulated

areas, protective work clothing and

equipment, hygiene facilities, hazard

communication, employee information

and training, and recordkeeping.

Moreover, the extensions of the startup

dates that they seek would not change

the standard’s current final compliance

deadline of April 10, 2000 but would

merely give additional employers the

benefit of that startup date. The parties

suggest that their proposed changes to

startup dates will enhance long-term

worker protection by enabling

employers to use their resources

effectively and efficiently in developing

permanent engineering solutions to

reduce MC exposures in their

workplaces. The parties’ proposed

addition to the medical surveillance

provisions of the standard—a provision

for medical removal protection

benefits—is also designed to enhance

worker protection by encouraging

worker participation in medical

surveillance. Thus, the parties believe

that the amendments they seek will

promote worker protection while

minimizing employers’ compliance

burdens.

III. Medical Removal Protection

Benefits

OSHA set the permissible exposure

limits for methylene chloride to

eliminate significant risk, to the extent

feasible, to workers exposed to MC.

However, individuals vary in their

response to chemical exposures. Some

may see their health impaired, or

preexisting medical conditions

aggravated, at an exposure level that

does not provoke such effects in most

workers. Medical surveillance can

identify those workers who exhibit signs

or symptoms of illnesses that could be

aggravated by exposure to a toxic

substance and lead to treatment or

reduction in exposure. OSHA has

therefore provided for medical

surveillance whenever it has issued a

new standard for a single toxic

substance.

Medical surveillance can result in a

medical opinion that particular workers

should be removed from their present

jobs have their work activities otherwise

restricted. This can lead to concern

among workers that participation in

medical surveillance could cost them

their jobs. A worker who fear that

medical surveillance may endanger his

or her livelihood may be reluctant to

consent to medical tests or to provide

complete and accurate information

during a medical examination. If

employees whose health could be

significantly impaired by continued MC

exposure withhold their full

cooperation, they might continue to be

exposed to MC without being aware that

such exposure poses a risk to their

health. To avoid having the potential

loss of a job act as a disincentive to

workers participating in the standard’s

medical surveillance program, OSHA

has, in certain of its toxic chemical

standards, provided for medical removal

protection benefits (MRPB). MRPB

provisions require that an employer

who must remove an employee from

continued exposure to a chemical or

otherwise restrict an employee’s

exposure to that chemical must

maintain the employee’s earnings and

other employment rights and benefits

for a specified time.

When it has included MRPB

provisions in earlier standards, OSHA

has delineated as specifically as

possible the medical conditions that

trigger removal. Where possible, the

Agency has specified objective removal

criteria. For example, the lead standard

(29 CFR 1910.1025) requires that an

employee be removed from exposure

above the action level when an

employee’s blood lead concentration

exceeds a certain value. Similarly, the

cadmium standard (29 CFR 1910.1047)

lists objective biological monitoring

criteria that trigger medical removal.

OSHA has also, however, recognized

that medical removal is sometimes

appropriate without regard to specific

biological markers when, in the

judgment of a physician or other

licenses health care professional,

removal is necessary to protect the

health of the employee. Thus, in

addition to objective removal criteria,

the lead and cadmium standards

provide for medical removal based on

the discretion of a health care

professional. The lead standard 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.’’ Under the cadmium

standard, an employee must be removed

if a written medical opinion determines

that removal is justified by ‘‘biological

monitoring results, inability to wear a

respirator, 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) contains no objective

criteria for medical removal but

provides for removal ‘‘if the physician

finds 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.’’

In the proposed MC rule, OSHA

solicited comment on whether it should

provide for medical removal protection

benefits in the final rule. 56 FR at 57043

(Nov. 7, 1991). A number of commenters

urged the Agency to do so on the basis

that MRPB would encourage employee

participation in medical surveillance. In

the final rule, OSHA found, as it had in

the earlier standards discussed above,

that MRPB would increase employee

participation in medical surveillance.

However, the Agency declined to

include such a provision in the standard

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.

62 FR at 1595.

The parties to the motion for

reconsideration believe they have

drafted a provision that is narrowly

tailored to diseases that MC exposure

may aggravate and that limits the scope

of the provision in a way that avoids

any undue economic burden on small

employers. Under their proposal, MRPB

would be required only when a

physician or other licensed health care

professional (PLHCP) determines that

the employee’s exposure to MC would

contribute to or aggravate the

employee’s existing cardiac, hepatic,

neurological (including stroke), or skin

disease. The parties note that the heart,

liver, central nervous system, and skin

are the organs and systems that OSHA

identified in the standard as being

particularly susceptible to MC-induced

noncarcinogenic health effects. They

believe that physicians and other

licensed health care professionals will

be able to render an informed judgment

as to whether MC exposure will

contribute to or aggravate an existing

disease affecting these systems or

organs.

The parties further propose, in

paragraph (j)(10), that the standard

require the PLHCP to presume that MC

exposure below the 8-hour TWA PEL
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24505

will not aggravate an existing disease of

the heart, liver, central nervous system,

or skin. Under the proposal, a PLHCP

who recommends removal of an

employee who is exposed below the 8-

hour TWA PEL must cite specific

medical evidence to support the

recommendation. Absent such evidence,

the employer need not remove the

employee.

When a medical determination

indicates removal, the parties’ proposal

requires the employer to either transfer

the employee to comparable work where

MC exposures are below the action level

or remove the employee from MC

exposure. For each employee thus

removed or transferred, 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 parties also propose inclusion of

provisions that OSHA has routinely

included in previous standards that

provided for MRPB. These provisions

(1) allow an employer to condition an

employee’s receipt of MRPB on

participation in follow-up medical

surveillance; (2) provide for a

diminution of MRP benefits to offset any

workers’ compensation indemnity

payments the employee receives for the

same period of time; (3) provide an

offset of such 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, 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.

The current standard provides for the

employer to select the PLHCP who

conducts medical surveillance. Under

the parties’ proposal, the health care

professional selected by the employer

would make the medical determination

whether to recommend that an

employee be removed. The parties also,

propose to include a provision that

allows employees the option to have the

recommendation of the employerselected health care professional

reviewed by a health care professional

or the employee’s choice. If the two

health care professionals disagree, they

jointly designate a third, who must be

a specialist in the field at issue and

whose written opinion is the definitive

medical determination under the

standard. The parties note that, in

previous standards that have provided

for MRPB, OSHA has included similar

provisions for multi-step review to

strengthen the basis for medical removal

determinations and to increase

employee confidence in those

determinations.

The parties have also recommended a

provision designed to avoid an undue

burden that could result if a small

business would need to provide medical

removal protection benefits to more

than one employee at the same time.

Paragraph (j)(11)(i)(B) of their proposal

states that if the employer receives a

recommendation for medical removal of

an additional employee and comparable

work that does not involve exposure to

MC at or above the action level is not

available, 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. In such a case,

the employer may retain the additional

employee in the existence 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 has carefully considered the

parties’ proposal in light of its earlier

concern that a MRPB provision must

provide sufficient guidance to licensed

health care professionals as to when

medical removal is indicated. OSHA

concludes that the MRPB provision

recommended by the parties delineates

with sufficient specificity the

circumstances that can trigger medical

removal protection benefits. First, the

provision requires MRPB only if the

PLHCP finds that the employee has an

identifiable disease of one or more

specific organs that are known to be

susceptible to MC exposure. Second, by

providing for a rebuttable presumption

that such a disease will not be

aggravated by exposure to MC below the

8-hour TWA PEL, the parties’ proposal

ensures that the physician or other

health care professional will take into

account the level of methylene chloride

to which the worker is exposed. OSHA

believes that, with these constraints, the

parties’ proposal will improve employee

confidence and participation in medical

surveillance while providing adequate

guidance to the physicians and other

licensed health care professionals who

will be conducting medical surveillance

and making recommendations for

medical removal under the standard.

OSHA also believes that the ancillary

provisions of the MRPB program

recommended by the parties are

appropriate. The parties have patterned

their recommendation on the existing

OSHA standards that provide for MRPB.

OSHA agrees that provisions it has

routinely included as part of a MRPB

program, including those providing for

a multi-step review process, should be

included in the methylene chloride

standard. OSHA continues to believe

that multi-step review is vital to

ensuring employee confidence in

medical removal determinations and is

a necessary part of any standard that

provides for medical removal protection

benefits.

The one provision in the parties’

proposal with no direct counterpart in

earlier standards that provide for MRPB

is the provision in proposed paragraph

(j)(11)(i)(B) that would allow an

employer who has already removed one

or more employees under paragraph

(j)(11) to retain an additional employee

in the existing job despite a removal

recommendation if removal would

result in undue economic burden. In

such a situation, the parties propose that

the employer must provide enhanced

medical surveillance to the employee

and must ensure that the employee who

is not removed is fully informed of the

health risk presented by continued MC

exposure.

OSHA agrees with the parties 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

proposed 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

exiting 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.

Thus, the parties’ proposal provides

additional protection to those workers

who would be retained in their current

jobs under paragraph (j)(11)(i)(B).
24506 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

IV. Extensions of Startup Dates

The motion for reconsideration

requests that the standard’s current final

engineering control startup date of April

10, 2000, which is 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.

According to the parties employers in

these application groups and size

categories, like 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 plans to offer. The motion

requests shorter extensions of the

engineering control dates for larger

employers in these application groups.

The parties further request that

respirator use to achieve the 8-hour

TWA PEL (currently required by Aug.

31, 1998 under a partial stay issued by

OSHA on Dec. 18, 1997, 62 FR 66275)

not be required before the engineering

control startup dates for those

employers covered by the motion. They

contend that workers would be better

protected if these employers can

concentrate their limited resources on

implementing effective engineering

controls rather than diverting part of

those resources to interim and

expensive respiratory protection 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.

The following chart shows the startup

dates requested by the motion for

reconsideration. Where the startup date

for a provision has already passed, the

chart lists that provision as being ‘‘in

effect.’’ For the reasons discussed

below, OSHA is now proposing to adopt

the startup dates requested by the

parties to the motion.

PROPOSED STARTUP DATES

Employers with fewer

than 20 employees

Polyurethane foam

mfrs. with 20 or more

employees

Selected applications 1 with 1–49 employees and foam

fabricators with 1–149

employees

Selected applications 1 with 50 or

more employees and

foam fabricators with

150 or more employees

All other employers

with 20 or more employees

Engineering controls to

achieve 8-hour TWA

PEL and STEL.

April 10, 2000 (unchanged from current standard).October 10, 1999 2 .... April 10, 2000 2 ......... April 10, 1999 2 ......... In effect.

Respirators to achieve

8-hour TWA PEL.

April 10, 2000 2 ......... October 10, 2000 2 .... April 10, 2000 2 ......... April 10, 1999 2 ......... In effect.

Respirators to achieve

STEL.

In effect ..................... In effect ..................... In effect ..................... In effect ..................... In effect.

All other provisions ...... In effect ..................... In effect ..................... In effect ..................... In effect ..................... In effect.

1As described earlier, the selected applications are furniture refinishing; general aviation aircraft stripping; product formulation; use of MCbased adhesive 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. 2 Under a partial stay issued on December 18, 1997 (62 FR 66275) these dates are now December 10, 1998 for engineering controls and August 31, 1998 for respirators to achieve the 8-hour TWA PEL.

OSHA generally agrees that worker

protection against MC exposure will

best be achieved if employers develop

and install effective engineering

controls as soon as practicable. OSHA

has long recognized that engineering

controls are superior to respiratory

protection as a means of protecting

workers against inhalation of toxic

chemicals. Engineering controls protect

workers by reducing the airborne

concentrations of methylene chloride to

or below permitted limits. Their

effectiveness does not, unlike respirator

use, depend on the respiratory

protection functioning as designed or on

employers effectively supervising

employees to ensure that they use and

maintain respiratory equipment

consistently and properly. Respirators

also may present safety hazards by

limiting workers’ mobility, vision, and

ability to communicate.

The agency also recognizes that

employers require a reasonable amount

of time to develop and install

engineering controls. Engineering

controls, such as local exhaust

ventilation, must be properly designed

and installed if they are to work

efficiently. The parties request that

OSHA help employers in the

application groups for which relief is

sought to develop effective engineering

controls by offering compliance

assistance that will give those

employers guidance as to appropriate

engineering controls and avoid the

uncertainty and expense that would

result if each employer were to attempt

to design and implement its own

controls. OSHA agrees that compliance

assistance would help employers use

their resources more efficiently and

plans to offer such assistance. Already,

OSHA has developed Fact Sheets for a

number of applications that identify

engineering controls and work practices

that employers can use to protect their

employees against MC exposure. OSHA

has also developed a small entity

compliance guide and has started

conducting a series of outreach seminars

on the MC standard in various cities

around the country. OSHA intends to

add to this information base to further

help employers to develop engineering

controls that would be both effective

and feasible to implement in their

facilities.

Although OSHA has long recognized

the superiority of engineering controls,

respirator use is necessary when

engineering and work practice controls

cannot achieve the required exposure

levels. The Agency has consistently

required that respirators be used when

feasible engineering and work practice

controls cannot achieve permissible

exposure limits. OSHA also requires the

use of respirators for interim protection

while engineering controls are being

developed and installed. For most toxic

chemicals, air-purifying respirators,

which are relatively inexpensive,

provide effective protection at most

workplace exposure levels. However,

air-purifying respirators do not provide

effective protection against MC

exposure because MC quickly penetrates

all currently available organic vapor

cartridges. Therefore, when respirators

are required under the MC standard,
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24507

atmosphere-supplying respirators must

be used.

Atmosphere-supplying respirators are

a relatively expensive type of

respiratory equipment, requiring the

employer not only to purchase the

respiratory equipment itself but also to

install an air compressor and associated

ductwork or rent cylinders containing

breathing air. In light of the relatively

high cost associated with the

atmosphere-supplying respirators

required by the MC standard, OSHA

agrees with the parties that the standard

should permit employers in the

identified application groups to

concentrate their limited resources on

developing permanent engineering

solutions rather than diverting part of

those resources to interim respiratory

protection to achieve the 8-hour TWA

PEL.

OSHA further notes that the parties’

proposal will provide workers with

significant interim protection before the

final compliance deadline of April 10,

2000 or by whatever earlier date

controls are required. First, under the

parties’ proposal, 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 many cases, help reduce 8-hour

time-weighted average exposures as

well and will thereby provide workers

with some interim protection against the

chronic effects of MC exposure.

The parties’ proposal will also 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

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. Furthermore,

the remaining protections of the

standard (regulated areas, protective

work clothing and equipment, hygiene

facilities, hazard communication,

employee information and training, and

recordkeeping) will take effect as

currently scheduled for all employers.

In many workplace situations,

adherence to careful work practices will

achieve substantial reductions in MC

exposures. In its Fact Sheets, OSHA has

identified feasible work practices for

several of the application groups

(furniture refinishing, polyurethane

foam manufacturing, construction work)

for which the parties seek relief. Many

of the identified work practices would

be feasible for and useful to facilities in

other application groups as well. To

facilitate widespread dissemination of

the information on work practices in the

Fact Sheets, OSHA is listing them

below.

A. Furniture Refinishers

Keep MC Vapors Contained

• Keep the door to mixing/storage

areas closed at all times.

• Store and transport MC only in

approved safety containers.

• Properly label all MC containers to

indicate their contents, hazards, and

proper use, storage and disposal. Read

these labels and follow the directions.

• Keep solution containers closed

tightly when not in use.

• Avoid unnecessary transfer or

movement of stripping solutions.

• Keep dip tanks and reservoir tanks

covered when not in use.

• Keep the stripping solution at the

appropriate temperature (often around

70° F). At this temperature, wax in the

solution will form a vapor barrier that

prevents the solution from evaporating

too quickly. If the temperature is too

high or too low, the wax will not form

a vapor barrier.

• Do not let sludge dry on the

stripping table. Place the wet sludge in

sealed containers for later recovery or

disposal, or dry it using proper

engineering controls (e.g., local exhaust

ventilation) to capture the MC vapors.

Avoid Breathing MC Vapors

• Turn on the dip tank or stripping

table ventilation system at least an hour

before work begins or leave it on

overnight.

• Avoid breathing air directly above

the stripping solution and dip tank. Do

not lean over the tank when working.

• Avoid breathing the air directly

above the furniture during manual

stripping. Do not lean over an area

covered with stripper.

• Do not work or stand between

solution-covered furniture and the

exhaust system.

• Turn the solution-recycling system

off when it is not being used.

• Do not rely on the odor of MC to

warn you of overexposure. People

cannot smell MC until vapor

concentrations are above 300 ppm,

which is 12 times higher than the 8-

hour time-weighted-average permissible

exposure limit of 25 ppm. Also, you

sense of smell can quickly get used to

the odor of MC so that you stop noticing

it.

• If you become dizzy, light-headed,

or have other symptoms of MC

exposure, go immediately to an area

with fresh air.

Minimize the Chance of Spills and

Leaks

• Develop and follow your facility’s

procedures for detecting MC leaks from

process equipment, holding tanks, and

spill control devices.

• Frequently inspect process

equipment, holding tanks, and spill

control devices for cracks, loose parts,

and other possible sources of leaks.

• Where spills occur, follow

procedures for containing them.

• Clean up all spills and leaks as

quickly as possible.

• Place rags, waste, paper towels, or

absorbent used to clean spills in a

closed container (preferably a nonaluminum, all metal safety container)

immediately after use.

• Make sure that leaks are repaired

and spills cleaned up by employees who

are trained in proper cleanup methods.

These employees should wear

appropriate personal protective

equipment.

Take Extra Precautions in Low and

Confined Spaces

MC vapors are heavier than air, so

they tend to move to low, unventilated

spaces such as tanks and maintenance

pits.

• Do not enter or lean into a storage

tank, dip tank, or low-lying confined

area until it has been completely aired

out and tested. Wear proper PPE and

follow the appropriate confined space

entry procedures outlined in OSHA’s

Permit Required Confined Spaces

standard (29 CFR 1910.146).

• Use a long-handled tool to pick up

items that you drop into a confined

space or low-lying area.

B. Polyurethane Foam Manufacturers

Keep MC Vapors Contained

• Keep the doors to the pouring and

cooling areas closed at all times.

• Store and transport MC only in

approved safety containers.

• Properly label all MC containers to

indicate their contents, hazards, and

proper use, storage and disposal. Read

these labels and follow the directions.

• Keep MC containers closed tightly

when not in use.

• Avoid unnecessary transfer or

movement of MC.

• Keep the openings on the sides of

the tunnel closed when it is not in use.
24508 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

This keeps MC vapors from escaping

and ensures that the makeup air system

at the end of the tunnel runs well.

Avoid Breathing MC Vapors

• Turn on local exhaust ventilation

systems in the tunnel and cooling rooms

at least an hour before work begins or

leave them on overnight.

• Turn on the general ventilation

system in the cooling room at least an

hour before work beings or leave it on

overnight.

• Avoid breathing air directly above

cooling foam.

• When possible, minimize the

amount of time spent near the cooling

foam and tunnel openings because these

areas are likely to have the highest

levels of MC vapors.

• Do not work or stand between

cooling foam and the exhaust system.

• Do not rely on the odor of MC to

warn you of overexposure. People

cannot smell MC until vapor

concentrations are above 300 ppm,

which is 12 times higher than the 8-

hour time-weighted-average permissible

exposure limit of 25 ppm. Also, you

sense of smell can quickly get used to

the odor of MC so that you stop noticing

it.

• If you become dizzy, light-headed,

or have other symptoms of MC

exposure, go immediately to an area

with fresh air.

Minimize the Chance of Spills and

Leaks

• Develop and follow your facility’s

procedures for detecting MC leaks from

process equipment, holding tanks, and

spill control devices.

• Frequently inspect the tunnel and

other equipment for cracks, loose parts,

and other possible sources of leaks.

• Clean up all spills and leaks as

quickly as possible.

• Place rags, waste, paper towels, or

absorbent used to clean spills in a

closed container (preferably a nonaluminum, all metal safety container)

immediately after use.

• Make sure that leaks are repaired

and spills cleaned up by employees who

are trained in proper cleanup methods.

These employees should wear

appropriate personal protective

equipment.

Take Extra Precautions in Low and

Confined Spaces

MC vapors are heavier than air, so

they tend to move to low, unventilated

spaces.

• Do not enter or lean into a low-lying

confined area until it has been

completely aired out and tested. Wear

proper PPE and follow the appropriate

confined space entry procedures

outlined in OSHA’s Permit Required

Confined Spaces standard (29 CFR

1910.146).

• Use a long-handled tool to pick up

items that you drop into a confined

space or low-lying area.

C. Construction Work

Keep MC Vapors Contained

• Store and transport MC products

only in approved safety containers.

• Properly label all MC containers to

indicate their contents, hazards, and

proper use, storage and disposal. Read

these labels and follow the directions.

• Keep MC product containers closed

tightly when not in use.

• Avoid unnecessary transfer or

movement of MC products.

Avoid Breathing MC Vapors

• Avoid breathing the air directly

above areas covered with MC. Do not

lean over an area covered with MC.

• Do not work or stand between MCcovered areas and the exhaust system.

• Do not rely on the odor of MC to

warn you of overexposure. People

cannot smell MC until vapor

concentrations are above 300 ppm,

which is 12 times higher than the 8-

hour time-weighted-average permissible

exposure limit of 25 ppm.

Also, your sense of smell can quickly

get used to the odor of MC so that you

stop noticing it.

• If you become dizzy, light-headed,

or have other symptoms of MC

exposure, go immediately to an area

with fresh air.

Minimize the Chance of Spills and

Leaks

• Develop and follow procedures for

containing MC spills or leaks.

• Frequently inspect MC product

containers for cracks or other possible

sources of leaks.

• Clean up all spills and leaks as

quickly as possible.

• Place rags, waste, paper towels, or

absorbent used to clean spills in a

closed container (preferably a nonaluminum, all metal safety container)

immediately after use.

• Make sure that leaks are repaired

and spills cleaned up by employees who

are trained in proper cleanup methods.

These employees should wear

appropriate personal protective

equipment.

Take extra Precautions in Low and

Confined Spaces

MC vapors are heavier than air, so

they tend to move to low, unventilated

spaces.

• Do not enter or lean into a low-lying

confined area until it has been

completely aired out and tested. Wear

proper PPE and follow the appropriate

confined space entry procedures

outlined in OSHA’s Permit Required

Confined Spaces standard (29 CFR

1910.146).

• Use a long-handled tool to pick up

items that you drop in area where MC

is being used.

V. Preliminary Economic and

Regulatory Flexibility Analysis

OSHA is proposing to revise

paragraph (j), Medical Surveillance, of

the final rule governing occupational

exposure to methlylene chloride (MC)

(29 CFR 1910.1052) to add medical

removal protection benefits to the rule.

This preliminary economic analysis

estimates the costs of complying with

the proposed 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 (Federal Register

Vol. 62, 7, pp. 1494 to 1619). Relying on

the data developed for the analysis to

support this proposed 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 revisions being proposed 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

proposing to add 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)

would apply 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 proposed rule

instructs the physician or other licensed

health care professional to presume that

a medical condition is unlikely to

require removal form exposure to MC,
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24509

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 proposal would require

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 proposal would

allow 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.

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 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.

Cost of Medical Removal Protection

Provisions

OSHA’s estimates of the costs of the

proposed 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 Proposal

Because of the presumption stated

explicitly in the proposed revisions,

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 would be in

effect but the engineering control

requirements of the rule would 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 lower the

exposure 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 a 8-hour TWA. To capture all costs

potentially associated with the proposed

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 Proposed

Provisions

The proposed changes to the

occupational exposure to methylene

chloride standard allow for medical

removal protection in the event 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 stoke) 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 MCinduced 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 proposal 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
24510 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

condition occurs in the working

population, and not simply on the

frequency with which MC causes these

conditions. For the first year after the

MRP provisions are in effect, 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 (18–65). OSHA

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 and65. 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 proposed 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 proposal 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.

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-towork 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.

TABLE 1.—ANNUALIZED COSTS OF

MRP FOR METHYLENE CHLORIDE

APPLICATION GROUPS

Application group

Annualized

costs

($)

Methylene Chloride Manufacturing .......................................... 70

Distribution/Formulation of Solvents ...................................... 6,597

Metal Cleaning:

Cold Degreasing and Other

Cold Cleaning ................ 307,216

Open-Top Vapor

Degreasing ..................... 2,709

Conveyorized Vapor

Degreasing ..................... 378

Semiconductors ................. 1,147

Printed Circuit Boards ....... 0

Aerosol Packaging .................... 2,875

Paint Remover Manufacturing .. 593

Paint Manufacturing .................. 823

Paint Stripping:

Aircraft Stripping ................ 9,662
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24511

TABLE 1.—ANNUALIZED COSTS OF

MRP FOR METHYLENE CHLORIDE

APPLICATION GROUPS—Continued

Application group

Annualized

costs

($)

Furniture Stripping ............. 80,579

All Other Industrial Paint

Stripping ......................... 206,619

Flexible Polyurethane Foam

Manufacturing ........................ 4,296

Plastics and Adhesives Manufacturing and Use .................. 52,639

TABLE 1.—ANNUALIZED COSTS OF

MRP FOR METHYLENE CHLORIDE

APPLICATION GROUPS—Continued

Application group

Annualized

costs

($)

Ink and Ink Solvent Manufacturing .......................................... 182

Ink Solvent Use ........................ 53,298

Pesticide Manufacturing and

Formulation ........................... 541

Pharmaceutical Manufacturing 3,576

Solvent Recovery ...................... 0

Film Base Manufacturing .......... 0

TABLE 1.—ANNUALIZED COSTS OF

MRP FOR METHYLENE CHLORIDE

APPLICATION GROUPS—Continued

Application group

Annualized

costs

($)

Polycarbonate Manufacturing ... 0

Construction .............................. 115,297

Shipyards .................................. 18,652

Total, All Application

Groups ........................... 920,387

Source: Office of Regulatory Analysis;

OSHA; Department of Labor.

TABLE 2.—SCREENING ANALYSIS TO IDENTIFY POSSIBLE ECONOMIC IMPACTS OF THE PROPOSED MC STANDARD’S

MEDICAL REMOVAL PROVISIONS

Application group

Number of affected establishments

Annualized costs of

compliance

as percent of

sales

as percent of

profit

Manufacture of MC ....................................................................................................................... 4 0.0000 0.0004

Distribution/Formulation of Solvents ............................................................................................ 320 0.0003 0.0046

Metal Cleaning:

Cold Degreasing and Other Cold Cleaning .......................................................................... 23,717 0.0001 0.0021

Open-Top Vapor Degreasing ................................................................................................ 278 0.0001 0.0016

Conveyorized Vapor Degreasing .......................................................................................... 45 0.0001 0.0014

Semiconductors ..................................................................................................................... 239 0.0000 0.0002

Printed Circuit Boards ........................................................................................................... 141 0.0000 0.0000

Aerosol Packaging ....................................................................................................................... 50 0.0001 0.0012

Paint Remover Manufacturing ...................................................................................................... 80 0.0001 0.0015

Paint Manufacturing ..................................................................................................................... 49 0.0001 0.0027

Paint Remover Use (Paint Stripping):

Aircraft Stripping .................................................................................................................... 300 0.0001 0.0017

Furniture Stripping ................................................................................................................. 6,152 0.0154 0.2977

All Other Industrial Paint Stripping ........................................................................................ 35,041 0.0000 0.0010

Flexible Polyurethane Foam Manufacturing ................................................................................ 100 0.0003 0.0093

Plastics and Adhesives Manufacturing and Use ......................................................................... 3,487 0.0000 0.0000

Ink and Ink Solvent Manufacturing .............................................................................................. 15 0.0000 0.0003

Ink Solvent Use ............................................................................................................................ 11,869 0.0004 0.0098

Pesticide Manufacturing and Formulation .................................................................................... 60 0.0001 0.0018

Pharmaceutical Manufacturing ..................................................................................................... 108 0.0000 0.0004

Solvent Recovery ......................................................................................................................... 35 0.0000 0.0000

Film Base ..................................................................................................................................... 1 0.0000 0.0000

Polycarbonates ............................................................................................................................. 4 0.0000 0.0000

Construction ................................................................................................................................. 9,504 0.0027 0.0705

Shipyards ...................................................................................................................................... 25 0.0025 0.0655

All Application Groups ....................................................................................................... 91,624 0.0014 0.0296

Source: Office of Regulatory Analysis; OSHA; Department of Labor

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

proposed medical removal protection is

clearly economically feasible: on

average, annualized compliance costs

amount only to 0.0014 percent of

estimated sales and 0.03 percent of

profits. 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 proposed standard

allows specifically for the cost impact to

be considered on a case-by-case basis.

OSHA’s cost methodology for this

proposal tends to overestimate the costs

and economic impacts of the standard

for several reasons. First, OSHA has not

taken into account cost savings that

employers will realize from the

extended startup dates that are being

proposed. As discussed above, by

extending the startup date for the use of

respirators to achieve the 8-hour TWA

PEL, this proposal will enable some

employers to avoid using respirators at

all because they will achieve the 8-hour

TWA PEL by means of engineering

controls before the date that respirator
24512 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

use is required. Such employers will

achieve significant cost savings as

compared to the current standard.

OSHA has not, however, attempted to

quantify those savings.

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 make reliance on MRP

an inappropriate remedy and thereby

avoid removing that additional

employee, as allowed by the proposal.

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.

TABLE 3.—SCREENING ANALYSIS OF POTENTIAL ECONOMIC IMPACTS ON SMALLER FIRMS (SMALL ESTABLISHMENTS AND

FIRMS AS DEFINED BY SBA UNDER SECTION 3 OF THE SMALL BUSINESS ACT)

Application group

Number of

small establishments affected

Costs as a

percentage of

profits for

small firms

Costs as a

percentage of

sales for small

firms

Manufacture of MC ....................................................................................................................... 0 NA NA

Distribution/Formulation of Solvents ............................................................................................ 278 0.0005 0.0072

Metal Cleaning:

Cold Degreasing and Other Cold Cleaning .......................................................................... 22.365 0.0003 0.0067

Open-Top Vapor Degreasing ................................................................................................ 262 0.0003 0.0051

Conveyorized Vapor Degreasing .......................................................................................... 42 0.0002 0.0044

Semiconductors ..................................................................................................................... 185 0.0000 0.0002

Printed Circuit Boards ........................................................................................................... 109 0.0000 0.0000

Aerosol Packaging ....................................................................................................................... 47 0.0002 0.0019

Paint Remover Manufacturing ...................................................................................................... 77 0.0001 0.0026

Paint Manufacturing ..................................................................................................................... 62 0.0002 0.0045

Paint Remover Use (Paint Stripping) ........................................................................................... 77 0.0001 0.0026

Aircraft Stripping .................................................................................................................... 173 0.0004 0.0088

Furniture Stripping ................................................................................................................. 6,152 0.0154 0.2977

All Other Industrial Paint Stripping ........................................................................................ 33,044 0.0001 0.0029

Flexible Polyurethane Foam Manufacturing ................................................................................ 49 0.0001 0.0034

Plastics and Adhesives Manufacturing and Use ......................................................................... 3,281 0.0002 0.0031

Ink and Ink Solvent Manufacturing .............................................................................................. 11 0.0000 0.0004

Ink Solvent Use ............................................................................................................................ 9,210 0.0005 0.0106

Pesticide Manufacturing and Formulation .................................................................................... 49 0.0001 0.0034

Pharmaceutical Manufacturing ..................................................................................................... 15 NA NA

Solvent Recovery ......................................................................................................................... 24 0.0000 0.0000

Film Base ..................................................................................................................................... 0 NA NA

Polycarbonates ............................................................................................................................. 0 NA NA

Construction ................................................................................................................................. 9,086 0.0033 0.0866

Shipyards ...................................................................................................................................... 0 NA 0NA

All Application Groups ....................................................................................................... 84,573 0.0017 0.0352

NA=No small firms in this application group.

Source: Office of Regulatory Analysis; OSHA; Department of Labor.

TABLE 4.—SCREENING ANAYLSIS OF POTENTIAL ECONOMIC IMPACTS ON FIRMS WITH FEWER THAN 20 EMPLOYEES

Application group

Number of

small establishments affected

Costs as a

percentage of

profits for

small firms

Costs as a

percentage of

sales for small

firms

Manufacture of MC ....................................................................................................................... 0 NA NA

Distribution/Formulation of Solvents ............................................................................................ 139 0.0018% 0.0322%

Metal Cleaning:

Cold Degreasing and Other Cold Cleaning .......................................................................... 9,223 0.0005 0.0110

Open-Top Vapor Degreasing ................................................................................................ 0 NA NA

Conveyorized Vapor Degreasing .......................................................................................... 11 0.0005 0.0132

Semiconductors ..................................................................................................................... 0 NA NA

Printed Circuit Boards ........................................................................................................... 20 0.0000 0.0000

Aerosal Packaging ....................................................................................................................... 10 0.0006 0.0072

Paint Remover Manufacturing ...................................................................................................... 34 0.0003 0.0114
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24513

TABLE 4.—SCREENING ANAYLSIS OF POTENTIAL ECONOMIC IMPACTS ON FIRMS WITH FEWER THAN 20 EMPLOYEES—

Continued

Application group

Number of

small establishments affected

Costs as a

percentage of

profits for

small firms

Costs as a

percentage of

sales for small

firms

Paint Manufacturing ..................................................................................................................... 7 0.0006 0.0194

Paint Remover Use (Paint Stripping) ........................................................................................... 34 0.0003 0.0114

Aircraft Stripping .................................................................................................................... 75 0.0011 0.0335

Furniture Stripping ................................................................................................................. 5.900 0.0155 0.3034

All Other Industrial Paint Stripping ........................................................................................ 25,441 0.0002 0.0042

Flexible Polyurethane Foam Manufacturing ................................................................................ 8 0.0010 0.0386

Plastics and Adhesives Manufacturing and Use ......................................................................... 498 0.0013 0.0264

Ink and Ink Solvent Manufacturing .............................................................................................. 3 0.0002 0.0022

Ink Solvent Use ............................................................................................................................ 5,395 0.0011 0.0237

Pesticide Manufacturing and Formulation .................................................................................... 40 0.0010 0.0386

Pharmaceutical Manufacturing ..................................................................................................... 0 NA NA

Solvent Recovery ......................................................................................................................... 17 0.0000 0.0000

Film Base ..................................................................................................................................... 0 NA NA

Polycarbonates ............................................................................................................................. 0 NA NA

Construction ................................................................................................................................. 9,085 0.0044 0.1596

Shipyards ...................................................................................................................................... 0 NA NA

All Application Groups ....................................................................................................... 55,907 0.0026 0.0644

NA=No small firms in this application group.

Source: Office of Regulatory Analysis: OSHA; Department of Labor.

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

proposed standard includes a provision

requiring special consideration of the

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 proposed MRP

provisions will not have a significant

impact on a substantial number of small

entities.

VI. Public Participation

Comments should be submitted to the

OSHA Docket Office by June 3, 1998.

Note: OSHA is only reopening the

record for comments on the two issues

raised in the Motion for

Reconsideration: the compliance dates

and medical removal protection. It is

not reopening the record or requesting

comments on any other issues

pertaining to the methylene chloride

standard.

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 29th day of

April, 1998.

Charles N. Jeffress,

Assistant Secretary of Labor.

Part 1910 of title 29 of the Code of

Federal Regulations is proposed to be

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 (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.

* * * * *

(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,
24514 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules

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 standards, 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.

(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 an MCrelated 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 employerselected 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

professional 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.
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Proposed Rules 24515

(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 fabrication; 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

following requirements listed in this

paragraph 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),

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. 98–11797 Filed 5–1–98; 8:45 am]

BILLING CODE 4510–26–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 60 and 63

[AD–FRL–6003–6]

RIN 2060–AH94

Standards of Performance for New

Stationary Sources: General

Provisions; National Emission

Standards for Hazardous Air Pollutants

for Source Categories: General

Provisions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: This action amends the

General Control Device Requirements

(40 CFR 60.18) which were issued as a

final rule on January 21, 1986, and the

Control Device Requirements (40 CFR

63.11) which were issued as a final rule

on March 16, 1994. This action amends

the flare provisions contained in these

requirements to include operating

specifications for flares that contain

substantial amounts of hydrogen in their

waste streams. EPA believes that

hydrogen-fueled flares meeting the

operating specifications in this

amendment will achieve the same

control efficiency, i.e., 98 percent or

greater, as flares complying with the

existing flare specifications. Further,

these specifications will result in

reduced emissions of carbon monoxide,

nitrogen oxides, and carbon dioxide

formed during the combustion of

supplemental fuel necessary for

hydrogen-fueled flares to comply with

existing regulations.

Because these amendments are only

adding specifications for hydrogenfueled flares and do not otherwise alter

the level of pollutant reduction required

for flares used to comply with the

requirements of the Clean Air Act, the

EPA does not anticipate receiving

adverse comments. Consequently, the

proposed revisions to the promulgated

rule are also being issued as a direct

final rule in the final rules section of

this Federal Register. If no relevant

adverse comments are received by the

due date for comments (see DATES

section), no further action will be taken

with respect to this proposal, and the