Occupational Safety and Health Administration (OSHA), Department of Labor.
Final rule.
The Occupational Safety and Health Administration (OSHA) is making a minor amendment to its final rule governing occupational exposure to hexavalent chromium in general industry, which was promulgated on February 28, 2006. This amendment implements a settlement agreement (Agreement) entered into among OSHA, the Surface Finishing Industry Council (SFIC), Public Citizen Health Research Group (HRG), and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (Steelworkers) on October 25, 2006, to resolve SFIC's legal challenge to the standard.
The amendment in this document will be effective November 29, 2006. Declarations of Party Status must be received by OSHA or postmarked on or before November 30, 2006.
In accordance with the instructions in Section IV of this notice, Declarations of Party Status must be submitted to Richard Fairfax, Director of Enforcement Programs, Occupational Safety and Health Administration, 200 Constitution Ave., NW., Room N3119, Washington, DC 20210; Fax: (202) 693–1681.
Richard Fairfax, Director of Enforcement Programs, Occupational Safety and Health Administration, 200 Constitution Ave., NW., Room N3119, Washington, DC 20210; telephone (202) 693–2190.
OSHA promulgated its final rule governing occupational exposure to hexavalent chromium (also written as chromium (VI) or Cr(VI)) in general industry (the standard) on February 28, 2006.
SFIC, a trade association whose members are primarily surface- and metal-finishing (electroplating) job shops, filed a timely petition for review of the standard in the United States Court of Appeals for the Eleventh Circuit. SFIC's petition was consolidated with other petitions for review of the standard, including one filed jointly by HRG and the Steelworkers on behalf of workers affected by the standard, in the United States Court of Appeals for the Third Circuit.
SFIC, OSHA, HRG and the Steelworkers engaged in settlement negotiations to resolve SFIC's challenge to the standard. The negotiations resulted in OSHA, SFIC, HRG, and the Steelworkers agreeing to the settlement being attached to the standard as Appendix A. Eligible SFIC members and other metal- and surface-finishing job shop facilities may become parties to this Agreement by following the instructions in Section IV of this notice.
The Agreement creates an optional, alternative compliance timetable for metal- and surface-finishing operations at eligible worksites. Facilities that elect to participate must implement engineering controls on an expedited schedule (by December 31, 2008), but will have relief from certain respirator requirements in the interim. (See Section II below for a detailed summary of the Agreement.) This is not a material change to the substantive requirements of the standard, and therefore the amendment does not require a new finding of significant risk.
In the preamble to the final standard, OSHA explained its longstanding preference for engineering and work practice controls over respiratory protection. The agency concluded that respirators do not “provide the same degree of protection” as other types of controls. 71 FR at 10335. OSHA stated that the “use of respirators in the workplace presents a number of independent safety and health concerns.”
In its economic feasibility analysis, OSHA concluded that the record did not support a finding that the proposed PEL of 1 μg/m
In light of the aforementioned findings, OSHA considers it reasonable to provide eligible facilities with the option of devoting their resources to implementing engineering controls on an expedited basis instead of to interim respirator requirements. OSHA believes that the Agreement and corresponding amendment to the standard will have the positive result of expediting the installation of engineering controls for a narrow group of employers with unique economic feasibility concerns. Although the Agreement will provide participating electroplating facilities with temporary, limited relief from short-term respirator requirements, provisions in the Agreement (discussed more fully in Section II of this notice) ensure that those facilities will still provide respirators in certain situations,
In entering into the Agreement and adopting this amendment, OSHA did not make and is not presently making any representations regarding its enforcement of the hexavalent chromium standard in facilities that are
OSHA is amending the hexavalent chromium standard for general industry (29 CFR 1910.1026) as follows:
(1) Existing paragraph 1910.1026(n)(3) is being amended to clarify that facilities that are parties to the Agreement are covered by the compliance deadline in new paragraph (n)(4) instead of the otherwise applicable May 31, 2010, compliance deadline for engineering controls;
(2) A new paragraph, 1910.1026(n)(4), is being added to the standard to provide that facilities that are parties to the Agreement must implement feasible engineering controls by December 31, 2008; and
(3) The Agreement between OSHA, SFIC, HRG, and the Steelworkers is being attached to the standard as Appendix A.
Facilities that become parties to the Agreement must comply with all provisions of the standard in accordance with the compliance dates set forth in 29 CFR 1910.1026(n), as amended, except that in certain circumstances (described below) OSHA will not enforce respirator requirements in those facilities prior to December 31, 2008.
Facilities that become parties to the Agreement must implement those feasible engineering controls necessary to reduce hexavalent chromium levels at their facilities to or below the 5 μg/m
With the exception of the six classes of employees described below, OSHA has agreed not to enforce the respirator protection provisions at 29 CFR 1910.1026(f) and (g) prior to December 31, 2008, for metal- and surface-finishing operations in facilities that are parties to, and are complying with, the Agreement. The six classes of employees for which OSHA
(1) Employees who are exposed to Cr(VI) in excess of the PEL while performing tasks described in Exhibit B to the Agreement. These tasks, as described more completely in Exhibit B, include Cr(VI) chemical additions, Cr(VI) preparation and mixing, Cr(VI) tank cleaning, and Cr(VI) painting operations.
(2) Through November 30, 2007, employees whose exposures to Cr(VI) exceed an interim “respirator threshold” of 20 μg/m
(3) Beginning December 1, 2007, employees whose exposures to Cr(VI) exceed an interim “respirator threshold” of 12.5 μg/m
(4) Employees who are exposed to Cr(VI) and request a respirator.
(5) Any other employees who are required by their employers to wear a respirator.
(6) Employees with exposures for which respirators were required under the previous Cr(VI) standard at 29 CFR 1910.1000, and any other employees covered by respirator programs in effect on May 30, 2006.
The standard requires all employers, including facilities that are parties to the Agreement, to make an initial exposure determination for each employee exposed to Cr(VI). Facilities that are parties to the Agreement may do this using either the monitoring option described at 29 CFR 1910.1026(d)(2)(i) (which involves taking a sufficient number of personal breathing zone air samples to accurately characterize full shift exposure on each shift, for each job classification, in each work area) or the performance-oriented option described at 29 CFR 1910.1026(d)(3) (which involves using any combination of air monitoring data, historical monitoring data, or objective data sufficient to accurately characterize employee exposures).
Thereafter, each facility that is a party to the Agreement must conduct periodic monitoring in accordance with the Scheduled Monitoring Option provision at 29 CFR 1910.1026(d)(2). Under this provision, if monitoring reveals employee exposures to be above the PEL, the employer shall perform periodic monitoring at least every three months. If monitoring reveals employee exposures to be at or above the action level of 2.5 μg/m
The standard requires employers to notify employees whenever an exposure determination indicates exposures above the PEL. This notification must be in writing and must describe the corrective actions being taken to reduce employee exposures to or below the PEL. 29 CFR 1910.1026(d)(4). In accordance with this requirement, facilities that are parties to the Agreement must prepare a written compliance plan that sets forth the specific control steps being taken to reduce exposures to or below the PEL and must update that plan each time monitoring reveals exposures above the PEL.
Upon request, compliance plans and monitoring results must be provided to OSHA, affected employees and employee representatives.
In addition to training employees as required by Section 1026(l)(2) of the standard, facilities that are parties to the Agreement must train their employees in the provisions of the Agreement within sixty (60) days of the Opt-in Date (
The terms of the Agreement and the amendment being made to Section (n) of the standard have no impact on the compliance requirements applicable to facilities that are not eligible to or do not elect to become parties to the Agreement. Facilities that are not parties to the Agreement must comply with all respirator requirements beginning on the applicable compliance date (November 27, 2006 for employers with 20 or more employees and May 30, 2007 for employers with 19 or fewer employees) and will have until May 31, 2010 to implement feasible engineering controls.
An employer's facility is eligible to become a party to the Agreement if (1) The employer is a member of SFIC
Employers can make their eligible facilities parties to the Agreement by completing a Declaration of Party Status. Declarations are available on OSHA's Web site at
Completed declarations must be mailed or sent by facsimile to: Richard Fairfax, Director of Enforcement Programs, Occupational Safety and Health Administration, 200 Constitution Ave., NW., Room N3119, Washington, DC 20210; Fax: (202) 693–1681.
Declarations of Party Status must be received by OSHA or postmarked on or before November 30, 2006. For purposes of the Settlement Agreement, this deadline is known as the “Opt-in Date.”
SFIC members and other electroplating job shop facilities within the jurisdiction of OSHA-approved State occupational safety and health plans may contact their State plan agencies to determine if their State programs will honor and implement the terms of this Federal Agreement, including the amendment to the standard, or take an alternative position, which may include entering into separate arrangements with surface- and metal-finishing job shop facilities or their representatives. The 22 State plans covering the private sector are in Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. Contact information for these State plans is available on OSHA's Web site at
This amendment is published under authority of the Occupational Safety and Health Act and the Administrative Procedure Act (APA).
The amendment described in this notice applies only to surface-finishing and metal-finishing (electroplating) operations in eligible facilities that voluntarily elect to participate in the alternative timetable for compliance. It follows that the only entities and persons affected by this amendment are (1) Employers who operate those facilities and (2) employees who work in those facilities. To a significant extent, employers and employees had actual notice of, and ample opportunity to comment on, this amendment by virtue of the participation of representatives (SFIC for employers, and HRG and the Steelworkers for employees) in the settlement negotiations preceding publication of this notice.
Under the APA, the agency may make a “good cause” finding that notice and comment would be impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). In this instance, OSHA finds that public notice and comment for this minor amendment is both unnecessary and impracticable. OSHA's determination that good cause exists for proceeding without additional notice and comment is based on the following factors:
(1) This amendment is a minor, non-substantive, and industry-specific change to the compliance date provisions of the standard. The vast majority of industries and facilities covered by the standard will be unaffected by the amendment, and even at affected worksites, the substantive requirements of the standard remain unchanged.
(2) The amendment simply adds an additional compliance option to the standard. Given the voluntary nature of the new compliance date provision, no affected employer can be prejudiced by the amendment. The terms of the Agreement and the new compliance date provision apply only to facilities that voluntarily file a Declaration of Party Status with OSHA. Any facility wishing to adhere to the standard as originally promulgated may do so.
(3) No employees are adversely affected as a result of the Agreement or the amendment to the standard. Even at facilities that are parties to the Agreement, where OSHA will not be enforcing all interim respirator requirements, each employee who wishes to wear a respirator has a right to request and receive one under the terms of the Agreement, and any employee who makes such a request and is exposed above the PEL will be protected by the full respirator program provided under the standard. In addition, employees currently covered by existing respirator programs will continue to receive respiratory protection. Moreover, OSHA has concluded that employees at participating facilities—including those who request respirators in the interim—will benefit from the expedited implementation of engineering controls.
(4) As described more fully in Section I of this notice, this amendment is consistent with, and an outgrowth of, findings OSHA made based on the record that was developed, with extensive public input, during the chromium rulemaking. No new or additional findings are required to support the amendment.
(5) This amendment arises out of the unique context of settlement negotiations conducted during litigation over the validity of the chromium standard. The new compliance date provision is the result of extensive negotiations between OSHA, SFIC, HRG, and the Steelworkers, and it resolves SFIC's challenge to the rule.
(6) Time-consuming notice and comment on this technical amendment to the standard is impracticable given that the benefits the parties expect to realize from the Agreement depend on immediate or virtually immediate implementation of the terms of the settlement. Any lengthy delay associated with additional rulemaking could undermine the essential (and time sensitive) premise of the Agreement, namely that participating facilities will implement engineering controls earlier than otherwise required in exchange for some interim relief from short-term respirator requirements. In addition, OSHA's enforcement personnel need to know promptly which facilities are parties to the Agreement. Only facilities that become parties to the Agreement are eligible for any relief from the respiratory protection requirements of the standard.
In promulgating the final hexavalent chromium standard in February 2006, OSHA found that the rule was economically and technologically feasible for all affected industries.
In the final hexavalent chromium standard, OSHA also reviewed environmental impacts, unfunded mandates, and federalism issues, and considered the impact of the rule on the environmental health and safety of children.
On February 27, 2006, OSHA submitted the information collection request for the final hexavalent chromium standard to the Office of Management and Budget (OMB) for approval in accordance with the Paperwork Reduction Act of 1995. On March 28, 2006, OMB approved the collections of information contained in the final chromium standard and assigned them OMB Control Number 1218–0252. The amendment described in this notice does not change the burden associated with the preparation, maintenance or disclosure of information as calculated and described by OSHA at the time the final standard was originally promulgated.
In accordance with Section 18(c)(2) of the Occupational Safety and Health Act (29 U.S.C. 667(c)(2)), when Federal OSHA promulgates a new standard or a more stringent amendment to an existing standard, the 26 States or U.S. territories with OSHA-approved occupational safety and health plans must revise their standards to reflect the new standard or amendment. The State standard must be at least as effective as the final Federal rule, must be applicable to both the private and public (State and local government employees) sectors, and must be completed within six months of the publication date of the final Federal rule. When OSHA promulgates a new standard, or an amendment to a standard, which does
The State plans were required to adopt OSHA's hexavalent chromium standard within six months of the Federal promulgation,
Cancer, Chemicals, Hazardous substances, Health, Occupational safety and health.
This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210. The Agency issues the final sections under the following authorities: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 5–2002 (67 FR 65008); and 29 CFR Part 1911.
Sections 4, 6, 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657: Secretary of Labor's Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), or 5–2002 (67 FR 65008), as applicable; and 29 CFR part 1911.
All of subpart Z issued under section 6(b) of the Occupational Safety and Health Act, except those substances that have exposure limits listed in Tables Z–1, Z–2, and Z–3 of 29 CFR 1910.1000. The latter were issued under section 6(a) (29 U.S.C. 655(a)).
Section 1910.1000, Tables Z–1, Z–2, and Z–3 also issued under 5 U.S.C. 553, Section 1910.1000 Tables Z–1, Z–2, and Z–3 but not under 29 CFR part 1911 except for the arsenic (organic compounds), benzene, cotton dust, and chromium (VI) listings.
Section 1910.1001 also issued under section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704) and 5 U.S.C. 553.
Section 1910.1002 also issued under 5 U.S.C. 553 but not under 29 U.S.C. 655 or 29 CFR part 1911.
Sections 1910.1018, 1910.1029 and 1910.1200 also issued under 29 U.S.C. 653.
Section 1910.1030 also issued under Pub. L. 106–430, 114 Stat. 1901.
The revisions and additions read as follows:
(n)
(3) Except as provided in (n)(4), for all employers, engineering controls required by paragraph (f) of this section shall be implemented no later than May 31, 2010.
(4) In facilities that become parties to the settlement agreement included in Appendix A, engineering controls required by paragraph (f) of this section shall be implemented no later than December 31, 2008.
The parties to this Settlement Agreement (“Agreement”) are the Occupational Safety and Health Administration, United States Department of Labor (“OSHA”), the Surface Finishing Industry Council or its successors (“SFIC”), surface-finishing and metal-finishing facilities which have opted into this Agreement pursuant to paragraph 7 (“Company” or “Companies”), Public Citizen Health Research Group (“HRG”), and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“Steelworkers”).
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Agreed to this 25th day of October, 2006.
The Companies agree that work towards the implementation of these available engineering and work practice controls should not be delayed to accommodate their completion by December 31, 2008. The Companies are encouraged to implement from among these controls as soon as practicable.
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Some well-known and relatively few, discrete tasks related to metal finishing activities result in potentially higher workplace exposures of hexavalent chromium. Where the applicable PEL for hexavalent chromium is exceeded, respirators shall be worn to conduct the following activities:
(1) Hexavalent chromium chemical additions. In order to have the metal deposited onto the part, hexavalent chromium must be added to the plating tank periodically. This is a discrete activity that involves the addition of either a dry flake of hexavalent chromium chemicals or a liquid solution of hexavalent chromium into the plating tank. Respirators shall be worn during the period it takes to add the hexavalent chromium chemical to the tank.
(2) Hexavalent chromium preparation and mixing. Different mixtures of hexavalent chromium chemicals are needed for different types of chromium plating processes. For example, hard chromium plating can require higher concentrations of hexavalent chromium because a thicker coating and longer plating process may be needed for the critical product quality and performance. Similarly, different types of decorative chromium plating processes may need different levels of hexavalent chromium and other chemicals such as catalysts. These mixtures can be in the form of dry flakes or liquid solutions. All of these different hexavalent chromium chemical mixtures are generally prepared by metal finishing suppliers and distributors. Some metal
(3) Hexavalent chromium tank cleaning. Occasionally, the tanks used for chromium plating may need to be emptied and cleaned. This process would involve the draining of the solution and then the removal of any residues in the tank. Workers cleaning out these tanks may have to enter the tank or reach into it to remove the residues. Respirators (as well as other appropriate PPE) shall be worn during the period it takes to clean the tanks and prepare them for use again.
(4) Hexavalent chromium painting operations. Some metal finishing operations apply paints with higher concentrations of hexavalent chromium to a line of parts, particularly for aerospace applications when a high degree of corrosion protection is needed for critical product performance. Paints are generally applied in such operations with some type of spray mechanism or similar dispersion practice. In some instances, it may be difficult to keep workplace exposures below the PEL for such paint spraying activities. Respirators shall be worn during such spray painting operations.