[Federal Register Volume 63, Number 183 (Tuesday, September 22, 1998)]
[Rules and Regulations]
[Pages 50712-50732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25211]



[[Page 50711]]

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Part V





Department of Labor





_______________________________________________________________________



Occupational Safety and Health Administration



_______________________________________________________________________



29 CFR Part 1910



Methylene Chloride; Final Rule

  Federal Register / Vol. 63, No. 183 / Tuesday, September 22, 1998 / 
Rules and Regulations  

[[Page 50712]]



DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. H-71]
RIN 1218-AA98


Methylene Chloride; Final Rule

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

ACTION: Final rule.

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SUMMARY: OSHA is amending its standard regulating occupational exposure 
to methylene chloride (29 CFR 1910.1052) by adding a provision for 
temporary medical removal protection benefits for employees who are 
removed or transferred to another job because of a medical 
determination that exposure to methylene chloride may aggravate or 
contribute to the employee's existing skin, heart, liver, or 
neurological disease. OSHA is also amending the startup dates by which 
employers in certain identified application groups, i.e., who use MC in 
certain work operations, must achieve the 8-hour time-weighted-average 
permissible exposure limit and the dates by which they must achieve the 
short-term exposure limit by means of engineering controls.
    On May 4, 1998, OSHA published for comment amendments to the 
standard along the lines requested in a motion for reconsideration 
filed by the International Union, United Automobile, Aerospace and 
Agricultural Implement Workers of America (UAW), the Halogenated 
Solvents Industry Alliance, Inc., and others. OSHA reopened the 
rulemaking record for 30 days for the limited purpose of receiving 
public comment on the amendments (63 FR 24501, May 4, 1998). Based on 
the rulemaking record and the comments received, OSHA is now adopting 
the amendments as published, with one minor modification.

DATES: This final rule becomes effective on October 22, 1998, except 
that the revision of paragraph (n)(2) of Sec. 1910.1052 (regarding 
start-up dates) becomes effective September 22, 1998. See SUPPLEMENTARY 
INFORMATION for a table of start-up dates established in this final 
rule.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates 
the Associate Solicitor for Occupational Safety and Health, Office of 
the Solicitor, Room S-4004, 200 Constitution Ave., N.W., Washington, DC 
20210, as the recipient of petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, OSHA Office 
of Public Affairs, U.S. Department of Labor, Room N3647, 200 
Constitution Avenue, NW, Washington, DC 20210, telephone (202) 219-
8151.

SUPPLEMENTARY INFORMATION: The startup dates established by the 
methylene chloride standard, as amended by this final rule, are shown 
in the following table, with the provisions whose startup dates have 
already passed listed as being ``in effect.''

                                                                          Startup Dates Established in This Final Rule                                                                          
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                                                                                                                          Employers in selected     Employers in selected                       
                                     Employers in selected    All other employers with                                   applications* with 1-49  applications* with 50 or   All other employers
                                    applications* with fewer        fewer than 20        Polyurethane foam mfrs. with      employees and foam      more employees and foam     with 20 or more  
                                       than 20 employees            employees***             20 or more employees        fabricators with 1-149    fabricators with 150 or        employees     
                                                                                                                                employees              more employees                           
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Engineering controls to achieve 8- April 10, 2000...........  April 10, 2000..........  October 10, 1999..............  April 10, 2000..........  April 10, 1999..........  In effect.          
 hour TWA PEL and STEL.                                                                                                                                                                         
Respirators to achieve 8-hour TWA  April 10, 2000...........  In effect...............  October 10, 1999**............  April 10, 2000..........  April 10, 1999..........  In effect.          
 PEL.                                                                                                                                                                                           
Respirators to achieve STEL......  In effect................  In effect...............  In effect.....................  In effect...............  In effect...............  In effect.          
All other provisions.............  In effect................  In effect...............  In effect.....................  In effect...............  In effect...............  In effect.          
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* The selected applications/operations are: furniture refinishing; general aviation aircraft stripping; product formulation; use of MC-based adhesives for boat building and repair,            
  recreational vehicle manufacture, van conversion, or upholstery; and use of MC in construction work for restoration and preservation of buildings, painting and paint removal, cabinet making,
  or floor refinishing and resurfacing.                                                                                                                                                         
** Due to a typographical error, this date was listed as October 10, 2000 in the table accompanying the notice of the motion for reconsideration. However, the date of October 10, 1999 is      
  consistent with the motion.                                                                                                                                                                   
*** This column was inadvertently omitted from the table accompanying the notice for the motion for reconsideration but is consistent with the text of the motion.                              

OMB Review Under the Paperwork Reduction Act

    OSHA submitted an amended Methylene Chloride Information Collection 
Request (ICR) to the existing Methylene Chloride ICR (OMB Control 
Number 1218-0179) when the proposal for Methylene Chloride: Notice of 
Motion of Reconsideration was published. This amendment calculated 
burden hours and costs for the additional medical examinations 
resulting from the inclusion of the Medical Removal Protection 
provisions. On July 2, 1998, OMB approved the amendment. All methylene 
chloride collections of information expire on 7/31/2001.
    This final rule also extends the compliance dates for the 
implementation of engineering controls and respiratory protection for 
employees engaged in selected activities. Paragraphs (n)(2)(A), (B), 
and (C) provide new implementation dates for engineering controls for 
employers engaged in the following: polyurethane foam manufacturing; 
foam fabrication; furniture refinishing; general aviation aircraft 
stripping; product formulation; adhesive users using adhesives for boat 
building and repair, recreational vehicle manufacture, van conversion, 
and upholstering; and construction work. Those employers who choose the 
option of postponing the implementation of engineering controls and 
respiratory protection are required to conduct quarterly short-term 
exposure limit (STEL) monitoring until implementation of the 
engineering controls and respiratory protection. Since this requirement 
is already present in the final MC standard, the Agency will submit an 
ICR to OMB to increase those

[[Page 50713]]

burden hours attributed to the additional monitoring. Under 5 CFR 
1320.5(b), an agency may not conduct or sponsor a collection of 
information unless: (1) the collection of information displays a 
currently valid OMB control number; and (2) the agency informs the 
potential persons who are to respond to the collection of information 
that such persons are not required to respond to the collection of 
information unless it displays a currently valid OMB control number.

I. Background

    On January 10, 1997, OSHA issued a standard regulating occupational 
exposure to methylene chloride (MC)(62 FR 1494, January 10, 1997) 
codified at 29 CFR 1910.1052. The standard was designed to reduce both 
the risk that worker exposure to MC will cause cancer and the risk that 
MC will cause or aggravate certain other adverse health effects. The 
standard reduced the prior 8-hour time-weighted-average permissible 
exposure limit (8-hour TWA PEL) to MC from 500 parts per million (ppm) 
to 25 ppm. It also set a short term exposure limit (STEL) of 125 ppm 
averaged over a 15 minute period.
    The 8-hour TWA PEL was set at 25 ppm to reduce, to the extent 
feasible, the risk that workers exposed to MC would develop cancer. 
Data showing that MC exposure presents a risk of cancer included animal 
bioassay data in multiple species, mechanistic studies detailing the 
metabolism of MC to carcinogenic products in humans, and 
epidemiological studies suggesting an elevated risk of biliary cancer 
and astrocytic brain cancer in MC-exposed workers. The agency used a 
physiologically-based pharmacokinetic (PBPK) model to estimate the 
cancer risk. OSHA's final risk assessment estimated that, at the prior 
8-hour TWA PEL of 500 ppm (a level that the Agency found was 
considerably higher than the level at which most affected workers were 
currently exposed, see 62 FR 1565, January 10, 1997), lifetime 
occupational exposure to MC could result in approximately 125 excess 
cancer deaths per 1000 exposed workers (62 FR 1563, January 10, 1997, 
Table VII). At the new 8-hour TWA PEL of 25 ppm, OSHA estimated that 
the excess cancer risk would be reduced to approximately 3.6 deaths per 
1000 workers. Id. OSHA concluded that a significant risk to workers 
remains at an exposure level of 25 ppm but set the 8-hour TWA PEL at 
that level because it was the lowest level for which OSHA could 
document feasibility across all the affected application groups (62 FR 
1575, January 10, 1997).
    The STEL was set at 125 ppm to minimize the adverse health effects 
caused by acute exposure to MC. Central nervous system (CNS) depression 
has been observed at MC concentrations as low as 175 ppm. CNS 
depression is characterized by fatigue, difficulty in maintaining 
concentration, dizziness, and headaches. These consequences of MC 
exposure constitute material impairments of health and, by reducing 
workers' coordination and concentration, can lead to workplace 
accidents. Also, MC is metabolized to carbon monoxide (CO) and 
therefore causes health impairment similar to that caused by direct 
exposure to CO. Carbon monoxide blocks the oxygen binding site on 
hemoglobin, producing carboxyhemoglobin, or COHb. Elevated COHb levels 
reduce the supply of oxygen to the heart and can aggravate pre-existing 
heart disease and lead to heart attacks. Physical exertion increases 
the concentration of COHb in MC-exposed workers and thus increases the 
risk of a heart attack, particularly for persons with silent or 
symptomatic cardiac disease, who may be susceptible to very small 
increases in COHb due to an already impaired blood supply to the heart.
    The liver and skin are also susceptible to acute effects from MC 
exposure. Chlorinated hydrocarbons as a class (of which MC is a member) 
are generally toxic to the liver. However, animal studies indicate that 
MC is among the least hepatotoxic of this class of compounds. The 
limited amount of human data that are available is inconclusive but 
supports the hypothesis that MC is toxic to the liver (62 FR 1515, 
January 10, 1997). Prolonged skin contact with MC also causes 
irritation and skin burns (62 FR 1609, January 10, 1997).
    Employers must achieve the 8-hour TWA PEL and the STEL, to the 
extent feasible, by engineering and work practice controls. If such 
controls are unable to achieve the exposure limits (and during the time 
they are being implemented), employers must provide appropriate 
respirators at no cost to employees and ensure that employees use them. 
The standard does not permit the use of air-purifying respirators to 
protect against MC exposure because MC quickly penetrates all currently 
available organic vapor cartridges, rendering air-purifying respirators 
ineffective after a relatively brief period of time. Therefore, when 
respiratory protection is required, the standard provides that 
atmosphere-supplying respirators must be used.
    The standard requires employers to provide medical surveillance to 
employees who are exposed to MC either (1) at or above the action level 
(12.5 ppm) on 30 or more days per year or at or above the 8-hour TWA 
PEL or STEL on 10 or more days per year; (2) at or above the 8-hour TWA 
PEL or STEL for any time period where an employee who has been 
identified by a physician or other licensed health care professional as 
being at risk from cardiac disease or from some other serious MC-
related health condition requests inclusion in the medical surveillance 
program; or (3) during an emergency. The medical surveillance must 
include a comprehensive medical and work history that emphasizes 
neurological symptoms, skin conditions, history of hematologic or liver 
disease, signs or symptoms suggestive of heart disease (angina, 
coronary artery disease), risk factors for cardiac disease, MC 
exposures, and work practices and personal protective equipment used 
during such exposures. The standard's medical surveillance procedures 
focus on MC's noncarcinogenic health effects because a medical 
surveillance program cannot detect MC-induced cancer at a preneoplastic 
stage (62 FR 1589, January 10, 1997). However, the standard's medical 
surveillance provisions can lead to early detection of cancer and to 
higher survival rates from early treatment.
    OSHA found that the standard was both technologically and 
economically feasible in all of the industrial applications that use 
MC. However, the Agency recognized that larger employers are better 
able than smaller ones to absorb or pass through the costs associated 
with compliance with the standard. To avoid placing an undue economic 
burden on small businesses, OSHA provided for later startup dates for 
small employers. Larger employers were given until April 10, 1998 (one 
year after the standard's effective date) to complete installation of 
engineering controls to achieve the PEL and STEL, while employers with 
fewer than 20 employees were given a total of three years, or until 
April 10, 2000, to do so. Employers with fewer than 20 employees were 
also given more time than larger employers to comply with the other 
provisions of the standard. In addition, intermediate startup dates 
were established for polyurethane foam manufacturers with 20-99 
employees because OSHA anticipated that firms in that group could have 
somewhat higher capital expenditures to meet the requirements of the 
standard.
    After the methylene chloride standard was issued, the International 
Union, United Automobile, Aerospace and Agricultural Implement Workers 
of

[[Page 50714]]

America (UAW), the Halogenated Solvents Industry Alliance, Inc. (HSIA), 
and others filed a motion with OSHA asking the Agency to reconsider two 
aspects of the standard: (1) the agency's decision not to include 
medical removal protection benefits in the medical surveillance 
provisions of the standard; and (2) the startup dates for engineering 
controls and for use of respirators to achieve the 8-hour TWA PEL for 
employers using MC in certain specific applications. Those applications 
are:
     Polyurethane foam manufacturing;
     Foam fabrication;
     Furniture refinishing;
     General aviation aircraft stripping;
     Formulation of products containing methylene chloride;
     Boat building and repair;
     Recreational vehicle manufacture;
     Van conversion;
     Upholstery; and
     Use of methylene chloride in construction work for 
restoration and preservation of buildings, painting and paint removal, 
cabinet making and/or floor refinishing and resurfacing.

II. Summary and Explanation of the Final Rule

    After receiving the motion for reconsideration, OSHA published a 
notice of the motion in the Federal Register that contained changes to 
amend the rule substantially as requested in the motion. 63 FR 24501 
(May 4, 1998). In that notice, OSHA explained why it believed the 
amendments requested in the motion were justified and were consistent 
with the rulemaking record. OSHA reopened the record for 30 days to 
allow the public an opportunity to comment on the amendments. Most of 
the comments the agency received supported the amendments. Several 
comments in opposition were received. In this section, OSHA describes 
the amendments to the MC standard being made by this final rule, 
explains why it concludes the amendments are appropriate in light of 
the entire rulemaking record, and discusses the comments received in 
response to the reopening of the record.

Medical Removal Protection Benefits

    In this final rule, OSHA is modifying the medical surveillance 
provisions in paragraph (j) of the MC standard to provide for limited 
medical removal protection (MRP) benefits.
    As discussed above, paragraph (j)(1) of the standard requires 
employers to provide medical surveillance to employees exposed to 
methylene chloride (1) at or above the action level on 30 or more days 
per year or at or above the 8-hour TWA PEL or STEL on 10 or more days 
per year; (2) at or above the 8-hour TWA PEL or STEL for any time 
period where an employee who has been identified by a physician or 
other licensed health care professional as being at risk from cardiac 
disease or from some other serious MC-related health condition requests 
inclusion in the medical surveillance program; or (3) during an 
emergency. Such surveillance includes [paragraph (j)(5)] a 
comprehensive medical and work history that emphasizes neurological 
symptoms, skin conditions, history of hematologic or liver disease, 
signs or symptoms suggestive of heart disease (angina, coronary artery 
disease), risk factors for cardiac disease, MC exposures, and work 
practices and personal protective equipment used during such exposures. 
Paragraph (j)(9) requires the employer to ensure that the physician or 
other licensed health care provider (PLHCP) who conducts the medical 
examination provides a written opinion regarding the results of that 
examination.
    Originally, paragraph (j)(9)(i)(A) required that written opinion to 
include the PLHCP's opinion as to ``whether the employee has any 
detected medical condition(s) which would place the employee's health 
at increased risk of material impairment from exposure to MC.'' That 
paragraph is being amended to provide that the PLHCP's written opinion 
must include ``whether exposure to MC may contribute to or aggravate 
the employee's existing cardiac, hepatic, neurological (including 
stroke) or dermal disease or whether the employee has any other medical 
condition(s) which would place the employee's health at increased risk 
of material impairment from exposure to MC.'' If the PLHCP recommends 
removal because exposure to MC may contribute to or aggravate the 
employee's existing cardiac, hepatic, neurological (including stroke) 
or dermal disease, new paragraph (j)(11) requires the employer to 
either transfer the employee to comparable work where MC exposure is 
below the action level or remove the employee from MC exposure. In 
either case, the employer must provide MRP benefits to the employee 
under paragraph (j)(12) by maintaining, for up to six months, the 
employee's earnings, seniority, and other employment rights and 
benefits as though the employee had not been removed from MC exposure 
or transferred to a comparable job.
    As explained in the notice, MRP benefits are designed to improve 
employee participation in medical surveillance by removing a potential 
economic disincentive to such participation. The medical surveillance 
conducted under the standard can result in a medical opinion that 
continued MC exposure would endanger the health of a particular worker 
and a recommendation that the worker should be removed from his or her 
present job or have his or her work activities otherwise restricted. 
The possibility of job loss or transfer can lead to concern among 
workers that participation in medical surveillance could endanger their 
livelihoods. For this reason, OSHA has generally found that employees 
will be reluctant voluntarily to cooperate in medical surveillance 
programs if they believe they could suffer a loss of income as a 
result. See, e.g., 50 FR 51120, 51154-56 (Dec. 13, 1985) (cotton dust 
standard); 43 FR 54442-54449 (Nov. 21, 1978) (lead standard). OSHA 
similarly found, when it issued the MC standard, that MRP benefits 
would increase employee participation in medical surveillance by 
removing an economic disincentive to such participation (62 FR 1595, 
January 10, 1997).
    Although OSHA found that MRP benefits would improve employee 
participation in medical surveillance, the Agency did not provide for 
such benefits when it originally issued the MC standard. The Agency 
noted that there was no biological marker to indicate whether an 
employee's continued exposure to MC would unduly endanger the 
employee's health, nor could the Agency identify any other objective 
criteria that could be used to determine when an employee's exposure to 
MC should be restricted for medical reasons. Because it did not believe 
it could offer substantive guidance to medical professionals as to when 
it would be appropriate to remove an employee from further MC exposure 
or to return a removed employee to the workplace, OSHA decided not to 
require employers to provide MRP benefits. 62 FR at 1595.
    The motion for reconsideration suggested that a provision limiting 
MRP benefits to situations in which a PLHCP recommends removal based on 
an opinion that continued exposure to MC would contribute to or 
aggravate an employee's existing cardiac, hepatic, neurological, or 
dermal disease would provide sufficient guidance to PLHCPs because the 
specified organs are the ones known or believed to be susceptible to 
the noncarcinogenic effects of MC exposure. The parties further 
recommended that OSHA instruct PLHCPs to presume that an employee's 
medical condition is unlikely to require medical removal if

[[Page 50715]]

the employee is not exposed to MC above the 8-hour TWA PEL. New 
paragraph (j)(10) includes that presumption and requires employers to 
remove such an employee only if the PLHCP cites specific medical 
evidence in support of a removal recommendation.
    OSHA believes that the MRP benefits provision recommended in the 
motion gives adequate guidance to the PLHCPs who are called upon to 
make recommendations for or against medical removal under the standard. 
The provision is consistent with MRP provisions in earlier standards 
that base medical removal decisions on the informed judgment of the 
health care professionals who conduct medical surveillance under the 
standards. For example, the lead standard (29 CFR 1910.1025), in 
addition to requiring medical removal based on high blood lead levels, 
requires medical removal ``on each occasion that a final medical 
determination results in a medical finding, determination, or opinion 
that the employee has a detected medical condition which places the 
employee at increased risk of material impairment to health from 
exposure to lead.'' The cadmium standard (29 CFR 1910.1047) requires 
medical removal if certain biological triggers are met or if a written 
medical opinion determines that removal is justified by ``evidence of 
illness, other signs or symptoms of cadmium-related dysfunction or 
disease, or any other reason deemed medically sufficient. . . .'' The 
formaldehyde standard (29 CFR 1910.1048) provides for medical removal 
if there is a medical finding ``that significant irritation of the 
mucosa of the eyes or of the upper airways, respiratory sensitization, 
dermal irritation, or dermal sensitization result from workplace 
formaldehyde exposure and recommends restrictions or removal.''
    The American Association of Occupational Health Nurses (AAOHN) 
suggested that the criteria for medical removal are insufficiently 
specific and will be difficult for health care professionals to apply 
(Ex. 3-12). AAOHN states that medical removal works well when it is 
based on specific biological criteria, such as blood lead levels, but 
not when it is based on a health care professional's opinion that 
continued exposure to a contaminant will endanger a worker's health. 
OSHA disagrees. As noted above, the lead, cadmium, and formaldehyde 
standards provide for medical removal based on a health care 
professional's opinion that an employee's existing medical condition 
will be aggravated by continued exposure to the chemical. OSHA's 
experience under these standards has shown that the health care 
professionals who provide medical surveillance have received sufficient 
guidance from those standards as to when medical removal is 
appropriate, even when removal is required by medical conditions other 
than numerical biological triggers. OSHA thus has confidence that the 
MRP benefits provision in the MC standard, which similarly relies on 
the informed judgment of health care professionals, will give 
sufficient guidance to the PLHCPs who will be called upon to make 
medical removal decisions under the standard.
    Organization Resources Counselors, Inc. (ORC) criticized the MRP 
benefits provision on the basis that OSHA had not estimated the extent 
to which MRP benefits will increase worker participation in medical 
surveillance or what incremental benefits might result (Ex. 3-13). 
Although OSHA cannot quantify precisely the extent to which MRP 
benefits will increase participation in medical surveillance, it has 
been OSHA's experience that substantial numbers of workers will be 
discouraged from participating in medical surveillance if there is a 
financial disincentive to such participation. For example, in Phelps 
Dodge Corp., 11 O.S.H. Cas. (BNA) 1441 (Rev. Comm'n 1983), it was 
reported that 42% of employees failed to undergo medical examinations 
when they were required to take the examinations on their personal time 
and provide their own transportation to and from the hospital. 
Moreover, the workers who most need medical surveillance are those in 
poor or marginal health, and such workers are likely to be particularly 
concerned that a medical examination may result in a recommendation 
that they be removed from their current job. Because MRP benefits will 
remove a significant financial disincentive to employees participating 
in medical surveillance, OSHA expects this final rule to result in a 
significant increase in the number of workers who cooperate with the 
medical surveillance provided under the MC standard.
    Paragraph (j)(10) requires the PLHCP to presume that MC exposure 
below the 8-hour TWA PEL is not likely to aggravate an existing disease 
of the heart, liver, central nervous system, or skin. Under this 
paragraph, a PLHCP may still recommend removal of an employee who is 
exposed below the 8-hour TWA PEL but must cite specific medical 
evidence to support the recommendation. Absent such evidence, the 
employer need not remove the employee. The rulemaking record contains 
no evidence that exposures below the 8-hour TWA PEL will generally 
aggravate existing cardiac, hepatic, neurological, and skin diseases, 
and OSHA therefore believes it is appropriate to require the PLHCP to 
specifically justify a recommendation that an employee exposed below 
the 8-hour TWA PEL be medically removed. No comments were received 
concerning this provision.
    When a PLHCP recommends medical removal within the terms of the 
standard, paragraph (j)(11) requires the employer either to transfer 
the employee to comparable work where MC exposures are below the action 
level or to remove the employee from MC exposure. For each employee 
thus transferred or removed, the employer must maintain the employee's 
earnings, seniority, and other employment rights and benefits for up to 
six months. The employer may cease paying MRP benefits before the end 
of the six-month period upon receipt of a medical determination that 
the employee's exposure to MC will no longer aggravate any existing 
cardiac, hepatic, neurological, or dermal disease, or upon receipt of a 
medical determination concluding that the employee can never return to 
MC exposure above the action level.
    The final rule also adopts provisions similar to those OSHA has 
included in previous standards that provide for MRP benefits. These 
provisions (1) allow an employer to condition an employee's receipt of 
MRP benefits on participation in follow-up medical surveillance 
[paragraph (j)(12)(ii)]; (2) provide for a reduction in MRP benefits to 
offset any workers' compensation indemnity payments the employee 
receives for the same period of time [paragraph (j)(12)(iii)]; (3) 
provide an offset of MRP benefits against compensation from a publicly 
or employer-funded compensation program or income the employee receives 
from other employment that is made possible by virtue of the employee's 
removal [paragraph (j)(12)(iv)]; and (4) require the employer to pay 
MRP benefits if it voluntarily removes or restricts an employee due to 
the effects of MC exposure on the employee's medical condition 
[paragraph (j)(13)].
    The Southern Company (Ex. 3-14) contended that OSHA lacks the 
statutory authority to provide for MRP benefits and that employee wages 
should be left to the collective bargaining process. However, the Court 
of Appeals for the D.C. Circuit has upheld OSHA's statutory authority 
to require employers to provide MRP

[[Page 50716]]

benefits. United Steelworkers v. Marshall, 647 F.2d 1189, 1230 (D.C. 
Cir. 1980), cert. denied, 453 U.S. 913 (1981). The Court observed that 
safety issues have traditionally been a subject for collective 
bargaining but that Congress, by giving OSHA authority to regulate 
occupational safety and health, expected OSHA regulations to override 
collective bargaining agreements to the extent necessary to provide 
safe and healthful workplaces. United Steelworkers, 647 F.2d at 1236. 
MRP benefits promote worker health by encouraging employees to 
participate in medical surveillance and thereby become aware of whether 
they have health problems that could be aggravated by MC exposure. OSHA 
concludes it has the requisite statutory authority to provide for MRP 
benefits in the methylene chloride standard.
    The American Association of Occupational Health Nurses (AAOHN) 
stated that it generally supports removal of employees who are 
experiencing adverse health effects as a result of workplace exposure 
to a hazardous material. Ex. 3-12. However, AAOHN recommended that, 
rather than adopt the MRP provisions, OSHA should strengthen the 
requirements for engineering controls, work practices, and medical 
surveillance. AAOHN also suggested that the medical removal provisions 
are discriminatory and expressed the belief that the Americans with 
Disabilities Act (ADA) and state workers' compensation statutes provide 
adequate remedies for individuals with serious diseases that are 
aggravated by occupational exposure.
    OSHA does not agree with AAOHN that strengthening other provisions 
of the standard is a viable substitute for MRP benefits. OSHA set the 
8-hour TWA PEL at the lowest level for which it could document 
feasibility across the affected application groups. Accordingly, OSHA 
cannot require employers generally to achieve lower limits through 
engineering controls and work practices. OSHA notes, however, that the 
inclusion of MRP benefits under the standard provides an incentive for 
employers to reduce MC exposures, where feasible, to levels below those 
required by the standard to minimize the possibility that MC exposure 
will contribute to or aggravate an employee's existing cardiac, central 
nervous system, hepatic, or skin disease and thereby require medical 
removal. The requirement for MRP benefits will therefore encourage 
employers to minimize MC exposures to the extent it is feasible to do 
so. Furthermore, medical removal under the final rule is limited to 
those employees who are particularly vulnerable to MC exposure because 
they have existing heart, central nervous system, liver, or skin 
diseases that could be aggravated by continued MC exposure. OSHA 
believes that, for these especially susceptible employees, removal from 
MC exposure that could aggravate their diseases is a necessary means of 
protection.
    OSHA also disagrees with AAOHN's contention that the Americans with 
Disabilities Act provides adequate remedies for individuals with 
diseases that would be aggravated by occupational exposure to MC. The 
ADA requires employers to make reasonable accommodations to an employee 
with a ``disability,'' which is a physical or mental impairment that 
substantially limits one of more of the employee's ``major life 
activities'' [29 CFR 1630.2(g)]. Those major life activities include 
functions such as caring for oneself, performing manual tasks, walking, 
seeing, hearing, speaking, breathing, learning, and working [29 CFR 
1630.2(i)]. The cardiac, neurological, hepatic, and dermal diseases 
which, if aggravated by MC exposure may qualify an employee for MRP 
benefits, are not necessarily diseases that limit major life activities 
as defined in the ADA. Therefore, employees who qualify for MRP 
benefits under this final rule may not be protected by the ADA.
    Moreover, even if a worker who is entitled to MRP benefits under 
this final rule would also qualify for ADA protection, the ADA does not 
necessarily protect that worker against immediate loss of income. The 
ADA requires an employer to make reasonable accommodations for a worker 
whose current job presents an unreasonable risk to the employee's 
health. However, if no reasonable accommodation is possible, the 
employer is free to discharge that employee (See Appendix to 29 CFR 
Part 1630). Therefore, the ADA does not provide the same level of 
assurance as MRP benefits that participation in medical surveillance 
will not lead to an immediate loss of the worker's income.
    Two commenters in addition to AAOHN (National Air Transportation 
Association, Ex. 3-9; KAL-AERO, Ex. 3-11) suggested that MRP benefits 
are not needed because they would duplicate workers' compensation 
benefits. However, MRP benefits and workers' compensation serve 
fundamentally different purposes and, in many instances, are not 
duplicative. Unlike MRP benefits, workers' compensation payments are 
not a preventive measure available to an employee who must be removed 
from his or her current job to keep an existing condition from becoming 
aggravated. Workers' compensation benefits are available only when an 
employee has already contracted a work-related injury or illness that 
involves time lost from work and/or medical treatment and has been 
awarded compensation after submitting a claim.
    The underlying diseases that can be aggravated by continued MC 
exposure and result in MRP benefits under this final rule are not 
necessarily work-related, and therefore might not qualify an employee 
for workers' compensation. For example, an employee with a 
cardiovascular disease that is wholly unrelated to his or her current 
employment could not collect workers' compensation benefits for that 
disease even though MC exposure associated with the current job might 
aggravate that worker's disease. Although that employee would not be 
eligible for worker's compensation, he or she would qualify for MRP 
benefits if there is a medical determination that the employee's 
cardiovascular disease would be aggravated by continued MC exposure.
    Some diseases that qualify workers for MRP benefits might be work-
related, thereby making the employees eligible for workers' 
compensation benefits as well. However, the possibility that, in some 
cases, an employee is eligible for both MRP benefits and workers' 
compensation does not negate the need for MRP benefits to encourage 
employees to participate in medical surveillance. The Court of Appeals 
for the D.C. Circuit has held that MRP benefits may still be needed 
even though they may overlap with workers' compensation payments. UAW 
v. Pendergrass, 878 F.2d 389, 400 (D.C. Cir. 1989). Moreover, new 
paragraph (j)(12)(iii) of the standard provides that, in cases where 
both MRP and workers' compensation benefits are payable, the MRP 
benefits can be reduced by the amount the employee receives for lost 
wages from workers' compensation. Therefore, the standard ensures that 
employees are not deterred by a potential loss of income from 
cooperating with medical surveillance while also ensuring that 
employers need not provide an employee with MRP benefits and workers' 
compensation payments that total more than an employee's current 
earnings.
    New paragraph (j)(14)(i) permits the employer to select the initial 
physician or other licensed health care professional who will conduct 
the required medical surveillance and recommend whether an employee 
must be removed for medical reasons. Where

[[Page 50717]]

the employer does so, new paragraph (j)(14)(ii) allows employees the 
option of having the recommendation of the employer-selected PLHCP 
reviewed by a licensed health care professional of the employee's 
choice. If the two health care professionals disagree, paragraph 
(j)(14)(iii) provides that the employer and employee shall instruct 
them to resolve their disagreement. If they are unable to do so, under 
paragraph (j)(14)(iv) they must jointly designate a third PLHCP, who 
must be a specialist in the field at issue and whose written opinion, 
under paragraph (j)(14)(v), is the definitive medical determination 
under the standard. OSHA believes that the option for such multi-step 
review is a necessary part of any MRP benefits provision because it 
strengthens the basis for medical removal determinations and increases 
employee and employer confidence in those determinations. OSHA has 
provided for similar multi-step review in all previous standards that 
included provisions for MRP benefits.
    The Southern Company (Ex. 3-14) contends that multi-step review is 
``unwarranted and unnecessary'' and would interfere with state workers' 
compensation laws that dictate employee choice of physician or that 
tell employers how occupational illnesses must be diagnosed and 
treated. As explained above, however, the diseases that can result in 
medical removal are not necessarily work-related illnesses that qualify 
for workers' compensation. Moreover, similar multi-step review 
provisions have been in effect since the lead standard was issued in 
1978, and OSHA is not aware of any conflicts or inconsistencies between 
such provisions and state laws.
    OSHA is adopting, in paragraph (j)(11)(i)(B), a provision that is 
designed to avoid an undue burden that could result if a small business 
would need to provide MRP benefits to more than one employee at the 
same time. Under paragraph (j)(11)(i)(B), if one or more employees are 
already receiving MRP benefits and the employer receives a 
recommendation for medical removal of an additional employee, and if 
comparable work that does not involve exposure to MC at or above the 
action level is not available for that additional employee, the 
employer need not remove the additional employee if the employer can 
demonstrate that removal and the costs of MRP benefits to that 
employee, considering feasibility in relation to the size of the 
employer's business and the other requirements of this standard, make 
further reliance on MRP an inappropriate remedy. Although new paragraph 
(j)(11)(i)(B) is designed to benefit small businesses, it is not 
explicitly limited to businesses of a certain size because no single 
size cutoff would be appropriate for all of the employers who might 
experience feasibility constraints as a result of providing MRP 
benefits to multiple employees at the same time. However, because 
feasibility in relation to the size of the business is taken into 
account in determining whether an employer may retain an employee in 
his or her present job under paragraph (j)(11)(i)(B), the application 
of that provision will effectively be limited to relatively small 
businesses.
    In a case governed by paragraph (j)(11)(i)(B), the employer may 
retain the additional employee in the existing job until transfer or 
removal becomes appropriate, provided: (i) the employer or the PLHCP 
informs the additional employee of the risk to the employee's health 
from continued MC exposure; and (ii) the employer ensures that the 
employee receives medical surveillance, including a physical 
examination, at least every 60 days. OSHA believes that, in the limited 
circumstances specified in this provision, it is appropriate to allow 
an employer to retain an employee in his or her present job, even when 
the PLHCP has recommended removal, provided the employer ensures that 
the employee receives the more frequent medical surveillance specified 
in the provision and is fully aware of the health risk. Frequent 
medical surveillance and full information will enable the employer and 
employee to take steps to minimize the risk under existing workplace 
conditions by, for example, implementing those controls that are in 
place and strictly following work practices that are designed to 
minimize the employee's MC exposure.
    The American Association of Occupational Health Nurses (Ex. 3-12) 
suggests that this provision is discriminatory and could expose 
companies to litigation under the Americans with Disabilities Act 
(ADA). The AAOHN did not explain in what way this provision would 
violate the ADA, and OSHA does not believe it would. As discussed 
above, the workers who qualify for MRP benefits under this final rule 
are not necessarily ``disabled'' within the meaning of the ADA and, to 
the extent they are, MRP benefits provide protection to workers that 
may not be available under the ADA. Moreover, OSHA does not agree with 
AAOHN that allowing an employer to retain an employee who is eligible 
for medical removal in his or her current job while one or more other 
employees are on medical removal is accurately characterized as 
``discrimination.'' All employees receive protection from the new MRP 
benefits provisions beyond that afforded by the current rule. The 
employee who is retained in his or her present job under paragraph 
(j)(11)(i)(B) will receive additional protection through enhanced 
medical surveillance. Paragraph (j)(11)(i)(B) also requires that the 
employee be informed of the risk to his or her health from continued MC 
exposure, thereby enabling the employer and employee to take steps 
necessary to minimize that risk under existing workplace conditions by, 
for example, implementing those controls that are in place and strictly 
following work practices designed to minimize the employee's MC 
exposure.
    Several commenters (Imperial Adhesives, Ex. 3-3; Tupelo Foam Sales, 
Inc., Ex. 3-6; Diversified Brands, Ex. 3-7) urged OSHA to narrow the 
MRP provisions to the greatest extent possible to reduce their economic 
impact. These commenters did not, however, offer specific suggestions 
as to how the economic impact of the provisions could be narrowed. As 
discussed below in the final economic analysis, OSHA concludes that 
addition of the provisions for MRP benefits to the MC standard will 
have a minimal economic impact on businesses of all sizes. Moreover, 
paragraph (j)(11)(i)(B) permits an employer to retain an employee who 
would otherwise need to be removed in his or her present job if the 
employer can demonstrate that the cost of medical removal would impose 
an undue economic hardship on the business. OSHA therefore believes 
that the final rule already reduces the economic impact of MRP benefits 
to the extent possible while still maintaining the protection those 
benefits afford to workers.

III. Extensions of Startup Dates.

    The motion for reconsideration requested that the standard's 
current final engineering control startup date of April 10, 2000, which 
was limited in the final standard to employers with fewer than 20 
employees, also apply to employers in the specified application groups 
who have 20-49 employees and to foam fabricators who have 20-149 
employees. (When the original standard established different startup 
dates based on an employer's number of employees, OSHA intended for the 
number of employees to refer to the total number of workers employed by 
the particular employer, not the number who work at a particular 
facility or the number that use methylene chloride in their work. The 
parties to the motion for reconsideration explained in their motion 
that they also intended this

[[Page 50718]]

definition when they referred to an employer's number of employees). 
The parties contended that employers in these application groups and 
size categories, similarly to those with fewer than 20 employees, have 
limited resources with which to develop and implement engineering 
controls and will be able to use those resources more efficiently if 
given additional time to develop and install effective controls and to 
take advantage of the compliance assistance that OSHA offers. The 
motion requested shorter extensions of the engineering control dates 
for larger employers in these application groups.
    The parties further requested that respirator use to achieve the 8-
hour TWA PEL not be required before the engineering control startup 
dates for those employers covered by the motion. They contended that 
workers would be better protected if these employers can concentrate 
their limited resources on implementing effective engineering controls 
rather than diverting some of those resources to interim and expensive 
respiratory protection (i.e., supplied-air respirators) that would no 
longer be needed a short time later, once full compliance with the 8-
hour TWA PEL and STEL is achieved by engineering controls.
    In the notice of the motion for reconsideration, OSHA stated that 
it believed the extensions of the startup dates the parties had 
requested were justified. The Agency noted that engineering controls, 
such as local exhaust ventilation, must be properly designed and 
installed if they are to work properly and provide effective 
protection. OSHA believed that, for the relatively small employers who 
would be receiving extensions of the startup dates, additional time to 
implement engineering controls would enable them to take advantage of 
compliance assistance that OSHA offers and avoid the uncertainty and 
expense that would result if each employer attempted to design and 
implement controls on its own. OSHA further believed that it was 
appropriate to extend the startup dates for respirator use to achieve 
the 8-hour TWA PEL to enable the employers receiving that extension to 
concentrate their resources on developing and implementing engineering 
controls to reduce airborne concentrations of MC. Based on the comments 
received and the entire rulemaking record, OSHA is now adopting the 
requested extensions in paragraph (n) of the final rule.
    Most commenters supported the extensions. The National Air 
Transportation Association (Ex. 3-9) and KAL-AERO (Ex. 3-11) stated 
that use of MC-based paint strippers in general aviation aircraft 
stripping had already declined substantially, and that the extended 
startup dates for that activity would encourage the complete 
elimination of MC-based paint strippers by the year 2000. The 
Polyurethane Foam Association (Ex. 3-10) supported the extensions for 
foam manufacturers and foam fabricators, noting in particular that 
extending the startup date for respirator use to meet the 8-hour TWA 
PEL would permit these industries to focus their resources on 
developing engineering controls.
    The National Marine Manufacturers Association (Ex. 3-8) urged OSHA 
to adopt the extensions for boat building. The Association stated that 
boat builders now use adhesives that contain MC and that additional 
compliance time is needed to enable them to determine whether it would 
be safer to substitute MC-free adhesives, which may be flammable, or to 
continue to use products that contain MC and install engineering 
controls to reduce MC exposures. Individual companies supporting the 
extensions for either their own operations or those of their customers 
included Benco Sales, Inc. (Ex. 3-1), Imperial Adhesives (Ex. 3-3), Mid 
South Adhesives, Inc. (Ex. 3-4), Tupelo Foam Sales, Inc. (Ex. 3-6), and 
Diversified Brands (Ex. 3-7).
    Organization Resources Counselors (ORC) was the only commenter 
opposing the extensions (Ex. 3-13). ORC objected to the deferral of the 
requirement that the employers covered by the amendments use 
respiratory protection to achieve the 8-hour TWA PEL until the date 
that those employers are required to achieve the PEL through 
engineering controls. ORC notes that MC is a carcinogen and that OSHA 
has, in its earlier standards for carcinogens, consistently required 
employers to use respirators to protect employees while engineering 
controls are being implemented.
    OSHA agrees that interim respirator use while engineering controls 
are being implemented is desirable, and the Agency acknowledged in the 
notice that it has required interim respirator use in its past air 
contaminant standards. However, in all of those earlier standards, air-
purifying respirators were available that would protect against the 
contaminant being regulated. For methylene chloride, air-purifying 
respirators do not provide effective protection because MC quickly 
penetrates all currently available organic vapor cartridges. For that 
reason, the MC standard requires that, when respirators are needed, 
atmosphere-supplying respirators must be provided and used.
    Atmosphere-supplying respirators are a relatively expensive type of 
respiratory equipment, requiring the employer not only to purchase the 
respirators themselves but also to install an air compressor and 
associated ductwork or rent cylinders containing breathing air. In the 
case of methylene chloride, the situation is complicated by the 
predominance of relatively small companies among the employers whose 
employees are currently exposed above the 8-hour TWA PEL. For those 
small employers, the relatively high cost associated with atmosphere-
supplying respirators would divert or exhaust resources that can be 
better spent on developing and installing engineering controls that 
will permanently and reliably reduce exposures below the 8-hour TWA PEL 
and STEL. OSHA continues to believe that worker protection is best 
served by early installation of effective engineering controls and that 
the smaller employers who are being granted extensions of startup dates 
by this final rule should therefore be allowed to use their limited 
resources for engineering controls instead of interim, short-term use 
of atmosphere-supplying respirators.
    Moreover, as explained in the notice, employees will still receive 
substantial interim protection against MC exposure under these amended 
startup dates. The STEL will go into effect as scheduled, and employers 
will be required to ensure that some combination of engineering 
controls, work practice controls, and respiratory protection reduce 
exposures below that level. Workers will therefore be protected against 
acute health effects associated with high short-term exposure to MC. 
Moreover, reduction of short-term exposures to below the STEL will, in 
most cases, reduce 8-hour time-weighted average exposures and will 
thereby provide workers with some interim protection against the 
chronic effects of MC exposure. If no 15-minute exposures exceed 125 
ppm, the 8-hour TWA must by definition be below 125 ppm. In practice, 
in order to control variable processes such that no excursions above 
the STEL occur, the average 8-hour concentration may need to be 
maintained substantially below 125 ppm.
    This final rule also does not delay compliance with the requirement 
that employers implement feasible work practices to reduce MC 
exposures. Such controls can achieve significant reductions in MC 
exposures in many workplaces at low cost. Early implementation of work 
practice controls will also enable employers to evaluate the extent to 
which exposures

[[Page 50719]]

can be reduced by such controls and will enable them to better 
determine the nature and extent of the engineering controls they will 
need to achieve the 8-hour TWA PEL and STEL. OSHA has developed Fact 
Sheets identifying feasible work practice controls for several of the 
application groups that are receiving extensions of the startup dates 
in this final rule, and many of those work practices would be feasible 
and useful for workplaces in other application groups as well. Those 
work practices were listed in the earlier Federal Register notice, 63 
FR at 24507-08, and are available in a small entity compliance guide, 
which can be obtained at OSHA's web site, http://www.osha.gov. 
Furthermore, the remaining protections of the standard (regulated 
areas, protective work clothing and equipment, hygiene facilities, 
hazard communication, employee information and training, and 
recordkeeping) are already in effect for all employers.
    ORC (Ex. 3-13) contends that the final rule does not afford 
employees sufficient interim protection because it interprets the rule 
to excuse employers from all use of atmosphere-supplying respirators. 
However, these amendments do not alter the requirement that employers 
achieve the STEL and, if necessary, use atmosphere-supplying 
respirators to do so. This final rule only extends the startup date for 
using engineering controls and respirators to achieve the 8-hour TWA 
PEL. Because the STEL will be in effect as originally scheduled, all 
employers, including those receiving extensions of startup dates to 
achieve the 8-hour TWA PEL in this final rule, already need to ensure 
that employee exposures do not exceed the STEL through some combination 
of engineering controls, work practices, and atmosphere-supplying 
respirators.
    ORC also questions whether employers will know when exposures 
exceed the STEL because the odor threshold of MC is well above the STEL 
of 125 ppm. OSHA notes that employers may not rely on the odor of MC to 
determine whether the STEL is exceeded but must, under paragraph (d) of 
the standard, conduct exposure monitoring that accurately characterizes 
the short-term concentrations to which their employees are exposed. 
Paragraph (d) requires the employer to take ``one or more personal 
breathing zone air samples which indicate the highest likely 15-minute 
exposures during such operations for at least one employee in each job 
classification in the work area during every work shift, and the 
employee sampled [must be the employee] expected to have the highest MC 
exposure [within the job classification].''
    OSHA is concerned, however, that employers who are required only to 
comply with the STEL and not with the 8-hour TWA PEL during the interim 
period created by these amendments may not have adequate information to 
determine whether they are in fact in compliance with the STEL 
requirement. Under the current standard, if initial measurements for 
all job classifications (representing the employee in each job 
classification with the highest short-term exposure) are below the 
STEL, no additional (periodic) STEL monitoring is required. In the 
unusual interim period created by these amendments, during which time 
controls may not have been implemented to ensure that TWA exposures are 
below the PEL, a single STEL measurement may be inadequate to ensure 
that employees are receiving adequate interim protection. To assure 
that STEL monitoring is conducted with sufficient frequency to 
characterize employees' short term exposures until compliance with the 
8-hour TWA PEL is achieved, OSHA is amending Table 1 in the MC standard 
to require each employer who is receiving an extended startup date in 
this final rule to conduct quarterly STEL monitoring, during the period 
covered by that extension, when its 8-hour TWA exposures are above the 
PEL. Those employers must already conduct quarterly STEL monitoring if 
their initial measurements show exposures above the STEL. The amendment 
to Table 1 thus extends the requirement for quarterly monitoring to 
those employers whose initial measurements are below the STEL.
    The purpose of this additional STEL monitoring is to provide 
ongoing information, to those employers whose monitoring results show 
exposures above the 8-hour TWA PEL but below the STEL, that their 
employees continue to be exposed below the STEL. For this purpose, it 
is sufficient if those employers conduct the additional monitoring for 
the highest-exposed employee within the single job classification shown 
to have the highest short-term exposures. Moreover, because this 
additional STEL monitoring is intended to apply only to those employers 
whose 8-hour TWA exposures exceed the PEL, those employers who are 
required to conduct additional STEL monitoring by this amendment need 
only conduct such monitoring until they are required to be in full 
compliance with the 8-hour TWA PEL or until they are in fact in 
compliance with the 8-hour TWA PEL. Any employer whose initial 8-hour 
TWA exposures are below the PEL need not conduct any additional STEL 
monitoring under this amendment.
    Normally, the last sentence of the note to paragraph (d)(3) allows 
an employer to discontinue all STEL monitoring for employees where at 
least two consecutive measurements taken at least 7 days apart are at 
or below the STEL. This provision does not apply to the additional 
monitoring required by this amendment which, according to amended Table 
1, must be conducted ``without regard to the last sentence of the note 
to paragraph (d)(3).'' Once the compliance dates established by these 
amendments have passed for a particular employer or that employer has 
achieved compliance with the 8-hour TWA PEL, whichever comes first, the 
additional monitoring required by these amendments no longer applies, 
and the note to paragraph (d)(3) would allow that employer to 
discontinue periodic STEL monitoring for those employees whose 
exposures are shown to be at or below the STEL by two consecutive 
measurements taken at least seven days apart. Any TWA or STEL 
monitoring required after these compliance dates have passed must 
include each job classification and each shift that does not qualify 
for discontinuance of monitoring under the note to paragraph (d)(3).
    ORC further contends (Ex. 3-13) that it is inappropriate for OSHA 
to reconsider its earlier rulemaking decisions at the behest of parties 
who have challenged the standard in court. ORC argues that the 
possibility of settling litigation over the standard should not induce 
OSHA to reconsider or change its earlier rulemaking judgments.
    OSHA believes that ORC is mistaken in suggesting that OSHA should 
be unwilling to reconsider its rulemaking judgments when asked to do so 
by parties who are challenging the rule in court. Agencies have both 
the right and the duty to reconsider their decisions if they are 
persuaded that a different course of action would better serve the 
statutory purpose. Such requests for reconsideration often come from 
parties who have brought judicial challenges to a rule because these 
parties are typically the parties who have the greatest interest in the 
rule and who were most active in the rulemaking proceeding. Here, labor 
and industry organizations who had been active participants in the 
rulemaking presented OSHA with a well-supported motion for 
reconsideration of certain narrow aspects of the methylene chloride 
standard. Those parties also stated that they would withdraw their 
judicial

[[Page 50720]]

challenges if OSHA amended the standard along the lines they requested. 
Upon evaluating the motion, OSHA tentatively concluded that the changes 
the parties sought were justified and afforded the public an 
opportunity to comment on those changes.
    Having considered the entire rulemaking record, including the 
comments it received in response to the reopening of the record, OSHA 
concludes that the amendments it is making in this final rule serve the 
statutory purpose of protecting employees while avoiding excessive 
economic burdens on employers, particularly small employers. As 
discussed above, OSHA believes that the addition of MRP benefits to the 
standard will increase employee participation in the standard's medical 
surveillance provisions and thereby ensure that employees are aware of 
medical conditions that could be aggravated by continued MC exposure. 
OSHA further believes that the extensions of startup dates being 
granted to some employers will benefit workers by improving the ability 
of those employers to comply with the standard. The cornerstone of the 
standard, the 8-hour TWA PEL of 25 ppm, is not being altered by these 
amendments. OSHA is issuing these amendments because it believes they 
are justified by the record and will better effectuate the purposes of 
the Act, not because the Agency is seeking to resolve legal challenges 
to the methylene chloride standard.
    OSHA does, however, believe that the potential withdrawal of the 
parties' judicial challenges to the MC standard is a positive benefit. 
Litigation over earlier standards has hindered OSHA's achievement of 
its statutory duty to protect the health and safety of workers. In some 
cases, OSHA standards have been vacated by the courts (e.g., AFL-CIO v. 
OSHA, 965 F.2d 962 (11th Cir. 1992), and vacated standards cannot 
protect worker health or safety. Some standards have also been stayed 
during judicial review (e.g., United Steelworkers v. Marshall, 647 F.2d 
1189, 1202 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981)), 
thereby delaying the protection afforded by those standards. In other 
cases, courts have required OSHA to reconsider certain aspects of its 
standards (e.g., Building & Constr. Trades Dep't v. Brock, 838 F.2d 
1258 (D.C. Cir. 1988)), and the additional rulemaking proceedings 
required by such court orders have delayed implementation of important 
parts of the rule and have diverted OSHA's resources from other 
important projects. In carrying out its statutory mandate, OSHA cannot 
ignore the adverse impact that might result from litigation over its 
standards. However, any modifications to a standard suggested by a 
litigant or any other person must be justified on their merits and must 
assure adequate worker protection. That is the case here, and OSHA is 
therefore including in the final rule the requirements suggested by the 
parties to the motion for reconsideration.

IV. Final Economic and Regulatory Flexibility Analysis

    OSHA is revising paragraph (j), Medical Surveillance, of the final 
rule governing occupational exposure to methylene chloride (MC) (29 CFR 
1910.1052) to add medical removal protection benefits to the rule. This 
final economic analysis estimates the costs of complying with the final 
MRP provisions and then assesses the economic feasibility and potential 
economic impacts of these costs on firms in the affected sectors. The 
information used in this analysis is taken from the exposure profile, 
industry profile, and economic impacts analysis presented in the Final 
Economic Analysis (Ex. 129) that accompanied OSHA's final rule for 
methylene chloride (62 FR 1494-1619, January 10, 1997). Relying on the 
data developed for that analysis to support this revision to the final 
rule ensures analytical consistency and comparability across the two 
economic analysis documents.
    OSHA's final MC rule did not contain medical removal protection 
provisions. The amendments being made today respond to a motion for 
reconsideration filed by the United Auto Workers (UAW), the Halogenated 
Solvents Industry Alliance, Inc., and others. As requested in that 
motion, OSHA is adding paragraphs (j)(9)(i)(A) and (B), (j)(10), 
(j)(11), (j)(12), (j)(13), and (j)(14), dealing with medical removal 
protection, medical removal protection benefits, voluntary removal or 
restriction of an employee, and multiple health care professional 
review, respectively, to the final rule. Medical removal protection 
(MRP) applies only under certain limited circumstances, i.e., medical 
removal protection would be required only if a physician or other 
licensed health care professional finds that exposure to MC may 
contribute to or aggravate the employee's existing cardiac, hepatic, 
neurological (including stroke), or dermal disease. The rule instructs 
the physician or other licensed health care professional to presume 
that a medical condition is unlikely to require removal from exposure 
to MC, unless medical evidence indicates to the contrary, if the 
employee is not exposed to MC at concentrations above the 8-hour TWA 
PEL of 25 ppm. The physician or other licensed health care professional 
may also recommend removal from exposure to MC for any other condition 
that would, in the health care professional's opinion, place the 
employee's health at risk of material impairment from exposure to MC, 
but MRP would only be triggered by a finding that exposure to MC may 
contribute to or aggravate the employee's existing cardiac, hepatic, 
neurological (including stroke), or dermal disease.
    Any employee medically removed must (1) be provided with comparable 
work where MC exposures are below the action level, or (2) be 
completely removed from MC exposure. The employee's total pay, benefits 
and seniority must be maintained throughout the period of medical 
removal protection, even if the only way to remove the employee from MC 
exposure is to send him or her home for the duration of the medical 
removal protection period. The employer may reduce the amount paid to 
the removed worker to the extent that the worker's previous pay has 
been offset by other compensation (such as worker's compensation 
payments) or by wages from another job made possible by the medical 
removal.
    The final rule requires employers to maintain medical removal 
protection benefits for up to six months. Medical removal protection 
may be terminated in less than 6 months if a medical determination 
shows that the employee may return to MC exposure, or a medical 
determination is made that the employee can never return to MC 
exposure.
    In situations in which no comparable work is available for the 
medically removed employee, the rule allows the employer to demonstrate 
that the medical removal and the costs of medical removal protection 
benefits, considering feasibility in relation to the size of the 
employer's business and the other requirements of this standard, make 
reliance on medical removal protection an inappropriate remedy. In such 
a situation, the employer may retain the employee in the existing job 
until transfer or removal becomes appropriate, provided that the 
employer ensures that the employee receives additional medical 
surveillance, including a physical examination at least every 60 days 
until removal or transfer occurs, and that the employer or PLHCP 
informs the employee of the risk to the employee's health from 
continued MC exposure.

[[Page 50721]]

    In conducting this economic analysis, OSHA has estimated the number 
of workers with the four listed types of conditions (neurological, 
hepatic, cardiac, and dermal disease) that can trigger MRP. OSHA has 
assumed that medical removal protection would be extended only to 
employees exposed above the PEL, as reflected by the presumption. This 
analysis also assumes that all employers will provide medical removal 
protection whenever a physician or other licensed health care provider 
recommends removal, i.e., OSHA has not quantified the number of times 
small firms may retain an employee for whom a removal recommendation 
has been made in the employee's existing job due to the employer's 
financial inability (i.e., economic infeasibility) to remove the 
employee. Because some very small firms may find that medical removal 
protection is infeasible in their circumstances but this cost analysis 
assumes that all such employees will be removed, OSHA believes that 
this analysis is likely to overestimate the costs associated with MRP.

Costs of Medical Removal Protection Provisions

    OSHA's estimates of the costs of the medical removal protection 
provisions are calculated based on the number of workers eligible for 
medical removal protection times the frequency of the medical 
conditions that would trigger medical removal protection in the exposed 
population times the costs of medical removal protection for each type 
of medical condition.

Number of Workers Eligible for Medical Removal Protection Under the 
Final Rule

    Because of the presumption stated explicitly in paragraph 
(j)(11)(i)(B), medical removal protection will be limited in almost all 
cases to employees exposed to MC at concentrations above the PEL of 25 
ppm as an 8-hour TWA. The Final Economic Analysis (Ex. 129) estimated 
that approximately 55,000 employees in all affected application groups 
are currently exposed above 25 ppm. This estimate is used here to 
calculate the number of employees potentially eligible for medical 
removal protection during the year in which medical removal protection 
will be in effect but the engineering control requirements of the rule 
will not yet be in effect for some of the application groups. Once the 
implementation of engineering controls is required, OSHA assumes, for 
the purposes of this analysis, that 10 percent of those employees 
previously exposed to an 8-hour TWA above 25 ppm (5,500 employees) 
would continue to be exposed to an 8-hour TWA above 25 ppm.
    OSHA believes that reliance on these assumptions will lead to an 
overestimate of the number of employees eligible for medical removal 
protection because some firms will have implemented controls and 
lowered the exposures of their employees well before the final standard 
requires them to do so. Once the standard requires employers to 
implement engineering controls, OSHA's Final Economic Analysis (Ex. 
129) estimated that the exposure of almost all employees would be 
reduced to MC levels below 25 ppm as an 8-hour TWA. To capture all 
costs potentially associated with the medical removal protection 
provisions, OSHA has assumed for this analysis that some employees will 
continue to be exposed above 25 ppm.

Frequency of Medical Removal Protection Under the Final Rule

    Paragraph (j)(11)(i) of the final rule provides for medical removal 
protection if there is a medical determination that exposure to 
methylene chloride ``may contribute to or aggravate existing cardiac, 
hepatic, neurological (including stroke), or skin disease.'' Medical 
removal protection does not apply if the condition is such that removal 
from MC exposure must be permanent.
    OSHA believes that MC-induced or aggravated neurological symptoms 
(other than stroke) occur infrequently and that when such protection is 
triggered by neurological manifestations (other than stroke), the 
period of time involved in the removal will be relatively brief. OSHA 
also believes that MC-induced or aggravated heart conditions or strokes 
are likely to result in permanent medical removal, and thus that 
employers will not incur the costs of medical removal protection in 
these cases. This analysis therefore focuses on medical removal 
protection for MC-induced or aggravated dermatitis or abnormal hepatic 
conditions. Each of these conditions is likely to resolve with time, 
proper treatment, or both, and these are therefore the conditions 
likely to result in a determination that temporary medical removal 
protection, rather than permanent removal, is needed.
    Because the final rule would provide for medical removal protection 
in situations where exposure to MC contributes to or aggravates the 
listed condition, this analysis focuses on the frequency with which 
each covered condition occurs in the working population, and not simply 
on the frequency with which MC causes these conditions. OSHA has no 
evidence that hepatic conditions are more prevalent in workplaces that 
use MC than in the general working age population and therefore assumes 
that the prevalence of hepatic conditions will be the same as in the 
general working age population (ages 18-65). OSHA thus estimates that 5 
percent of the working population will be found on evaluation to have 
hepatic conditions sufficiently abnormal to trigger medical removal.
    For dermatitis, which is seldom a lasting condition, OSHA similarly 
assumes, in the absence of evidence to the contrary, that the 
prevalence in the MC-exposed workforce is the same as the rate in the 
general working age population. For dermatitis, Vital and Health 
Statistics (National Center for Health Statistics, 1995) reports that, 
in 1993, the prevalence of dermatitis was 2.93 percent for persons 
between 18 and 45 and 2.18 percent for persons between 45 and 65. 
Weighting using the BLS data cited above, OSHA finds that 2.7 percent 
of the MC-exposed workforce will be found on the first required medical 
evaluation to have dermatitis and will be medically removed.
    After the standard has been in effect for the first year, OSHA 
assumes that the prevalence of dermatitis will continue at the same 
rate. For liver conditions, OSHA assumes that most of the conditions 
that triggered removal in the first year will have been resolved and 
that the number of older cases that flare up and have to be treated 
again, combined with new cases that trigger medical removal, will occur 
at a combined rate \1/5\ that of the initial rate.

Costs of Medical Removal Protection

    Employers incur three kinds of costs for medical removal 
protection: costs for medical evaluations not already required; costs 
resulting from changing the employee's job, such as those related to 
retraining and lost productivity; and, where alternative jobs that do 
not involve MC exposure are not available, the costs of keeping a 
worker who is not working on the payroll.
    Employers may incur costs for medical evaluations (over and above 
those already required for medical surveillance) for two reasons: to 
determine if the employee can return to work, and to determine, using 
multiple PLHCP review, whether the initial medical determination was 
correct. Because the final rule allows employees to be removed from 
medical removal protection status only on the basis of a new medical 
determination, every instance of medical removal protection will 
require one additional examination.

[[Page 50722]]

OSHA estimated the cost of a medical examination at $130 in the Final 
Economic Analysis (Ex. 129). Every case of medical removal protection 
would require at least one additional medical evaluation. In addition, 
OSHA estimates that 10 percent of all removed cases will require a 
second medical evaluation either for the purpose of multiple health 
care professional review or because the first examination showed that 
the employee could not yet be returned to normal duty.
    The largest MRP-related costs in almost all cases will be the cost 
of paying for time away from work for the removed employee. OSHA 
estimates that the typical dermatitis case will involve 6 days away 
from work. BLS (BLS, Occupational Injuries and Illnesses: Counts, 
Rates, and Characteristics, 1994) reports that, in 1994, the typical 
lost worktime case of dermatitis involved 3 days away from work. OSHA 
allowed an additional three days to allow time for a return-to-work 
determination to be made. For medical removal for hepatic conditions, 
OSHA estimates that a 4-week period of medical removal will normally be 
sufficient to provide for stabilization and a return to the normal 
range for the typical case of elevated liver enzymes. Because almost no 
cases will be resolved in less than 4 weeks and a small number of cases 
(such as those involving serious liver disease) may take much longer to 
resolve, OSHA's cost estimate estimates 5 weeks as the average period 
of medical removal for these cases.
    For the short-term medical removal associated with dermatitis, OSHA 
has conservatively assumed that the employee will be paid full wages 
and benefits even though not at work. For the longer term medical 
removal associated with hepatic conditions, OSHA estimates that, in 
firms with more than 20 employees, alternative jobs not involving 
exposure to MC will be found for affected employees. OSHA estimates the 
costs of moving employees to alternative jobs as equivalent to the loss 
of 20 person hours in lost productivity and/or retraining expenses. For 
firms with fewer than 20 employees, OSHA expects that there may be more 
difficulty finding alternative positions both because fewer alternative 
positions are available and because more positions in the establishment 
are likely to involve exposure to MC.
    For the very small firms in furniture stripping, where all jobs may 
involve exposure to MC, OSHA has assumed that all cases of medical 
removal will involve removing employees from work entirely, and thus 
that employers will incur the full costs of the employee's wages and 
benefits for the five weeks the employee is medically removed. Firms 
with fewer than 20 employees in other application groups tend to be 
somewhat larger than in furniture stripping and will therefore be more 
likely to have work that does not involve exposure to MC at levels 
above the action level. For example, in such small-business-dominated 
application groups as printing shops, and in small cold cleaning and 
paint stripping operations, exposure to MC tends to involve only a 
single employee and is commonly intermittent even for that employee. 
For establishments with fewer than 20 employees in application groups 
other than furniture stripping, OSHA estimates that 50% will be able to 
find alternative employment and 50% will need to send the employee home 
because alternative jobs without MC exposure cannot be found.

Annualized Cost Estimates

    Table 1 shows OSHA's estimated annualized costs for firms in each 
application group. The total annualized costs for medical removal 
protection are estimated to be $920,387 per year for all affected 
employers. The greatest costs are in the cold cleaning application 
group, the all other industrial paint stripping application group, the 
construction application group, and the furniture stripping application 
group. All of these application groups have annualized MRP costs in 
excess of $100,000 per year.

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[[Page 50723]]

[GRAPHIC] [TIFF OMITTED] TR22SE98.041



BILLING CODE 4510-26-C

[[Page 50724]]

Potential Cost Savings of the Revisions

    OSHA is also altering several provisions concerning the 
implementation dates for engineering controls and respiratory 
protection for employers engaged in selected activities. Paragraphs 
(n)(2)(A), (B), and (C) provide new implementation dates for 
engineering controls for employers engaged in these selected 
activities. Under paragraph (n)(3)(E), these same employers would also 
now be allowed until the implementation date for engineering controls 
to meet the rule's requirements for respiratory protection to meet the 
PEL, i.e., the implementation dates for engineering controls and 
respiratory protection would be the same for employers engaged in these 
activities.
    Qualified employers who choose the option of postponing the 
implementation of engineering controls and respiratory protection would 
be required by the final rule to conduct STEL monitoring quarterly 
until either the implementation date for engineering controls and 
respiratory protection or the date by which they in fact achieve 
compliance with the 8-hour TWA PEL. The employers affected by these 
extensions of the implementation dates for engineering controls and 
respiratory protection, and thus by the final rule's requirements for 
quarterly STEL monitoring, are employers with employees exposed above 
the PEL who are engaged in foam fabrication; furniture stripping; 
general aviation aircraft stripping; product formulation; adhesive 
users using adhesives for boat building and repair, recreational 
vehicle manufacture, van conversions, and upholstering; and 
construction work for restoration and preservation of building, 
painting and paint removal, cabinet making, and/or floor refinishing.
    OSHA cannot fully evaluate the cost saving effects of these 
implementation date postponements because OSHA's Final Economic 
Analysis (Ex. 129) did not provide the data needed to estimate the 
number of employers in the size classes identified by the final rule 
for each of the activities affected by the final rule. (OSHA's Final 
Economic Analysis did analyze impacts on employers of all sizes, but 
sometimes aggregated them into larger activity groups or different size 
classes than those specified in these provisions.) OSHA has, however, 
developed an estimate of the potential cost savings using certain 
simplifying assumptions. First, OSHA assumes that all employers in the 
affected application groups will be affected. The effect of this 
assumption is to include some employers who would not qualify because 
they do not engage in the prescribed activity, e.g., the estimate 
includes cost savings for facilities using adhesives for activities 
other than those specified, i.e., for activities other than boat 
building and repair, recreational vehicle manufacturing, van conversion 
or upholstering. This assumption will thus overestimate the cost 
savings.
    OSHA also assumes that no employers will need to install 
engineering controls or use respiratory protection in order to meet the 
STEL requirements of the standard. OSHA is uncertain about how many 
such employers there are, and thus cannot quantify the extent to which 
this assumption overestimates cost savings. Finally, OSHA assumes that 
the effect of these provisions of the final rule is that employers of 
employees currently exposed above the PEL in the affected application 
groups will not incur the costs of respiratory protection for the two 
years before they are required to install engineering controls, but 
will have to provide quarterly monitoring for the STEL during this 
period.
    For each affected employee, the employer would save the costs of 
installing and maintaining an air-supplied respirator and an air 
compressor for two years. The Final Economic Analysis (Ex. 129) 
estimates the annual costs of such respirators as $679 per year. 
Offsetting this cost savings of $679 per year for each of two years is 
the cost of quarterly STEL monitoring during that same time period. 
Based on its Final Economic Analysis (Ex. 129), OSHA estimates the cost 
of STEL monitoring at these facilities to be $80 for two badge samples. 
Annual costs for quarterly monitoring would thus be $320 per year (4 
times $80). The total cost savings are thus $359 ($679 minus $320) per 
affected employee per year. OSHA estimates, based on the exposure 
profile in its Final Economic Analysis (Ex. 129), that there are 18,000 
affected employees who are engaged in the activities specified in these 
provisions. Considering all 18,000 affected employees, these provisions 
will provide cost savings of $6.4 million per year for each of two 
years (18,000 employees times $359 per employee). Annualized over ten 
years at a seven percent discount rate, this represents a potential 
cost savings of $960,000 per year.
    Because this estimate of potential cost savings is based on 
assumptions that may overestimate the cost savings of the revisions to 
the final rule, OSHA is not using this estimate of cost savings to 
offset the costs of MRP in its cost and economic impact analysis. This 
means that the costs reflected in this analysis will be overstated to 
some extent after these amendments go into effect.

Economic Impacts

    Table 2 combines the cost data from Table 1 and the economic 
profile information provided in the Final Economic Analysis for the 
Methylene Chloride rule (Ex. 129) to provide estimates of the potential 
impacts of these compliance costs on firms in affected application 
groups. The medical removal protection required by the final rule is 
clearly economically feasible: on average, annualized compliance costs 
amount only to 0.0014 percent of estimated sales and 0.03 percent of 
profits. These impacts do not take into account the cost savings 
described above. For all but one application group--furniture 
stripping--compliance costs are less than 0.07 percent of profits, and 
less than 0.003 percent of the value of sales. Even in furniture 
stripping, the annualized costs of medical removal protection are still 
only 0.015 percent of sales and 0.3 percent of profits. Impacts of this 
magnitude do not threaten the economic feasibility of firms in any 
affected application group. If highly unusual circumstances were to 
arise that pose such a threat, the standard allows specifically for the 
cost impact to be considered on a case-by-case basis.

BILLING CODE 4510-26-P

[[Page 50725]]

[GRAPHIC] [TIFF OMITTED] TR22SE98.042



BILLING CODE 4510-26-C

[[Page 50726]]

    OSHA's cost methodology for this final rule tends to overestimate 
the costs and economic impacts of the standard for several reasons. 
First, as discussed in the section on potential cost savings, OSHA has 
not taken into account the cost savings some employers will realize 
from the extended implementation dates that are permitted by the final 
rule.
    Other aspects of OSHA's methodology also tend to result in cost 
overestimates. OSHA's use of general population prevalence data to 
estimate the prevalence of conditions that might lead to medical 
removal overestimates costs by ignoring the possibility that workers in 
MC establishments may be healthier than the general population, i.e., 
it ignores the ``healthy worker'' effect. OSHA has also assumed that 
all unusual hepatic conditions will lead to medical removal, when in 
many cases no medical removal protection will be necessary. Finally, 
OSHA has also included in its cost estimate all cases involving medical 
removal, when it is in fact likely that some smaller firms would be 
able to argue that the cost of extending MRP benefits to an additional 
employee would not be feasible (and would therefore make reliance on 
MRP an inappropriate remedy), and thereby avoid removing that 
additional employee, as allowed by paragraph (j)(11)(i)(B).

Regulatory Flexibility Screening Analysis and Certification

    Tables 3 and 4 provide a regulatory flexibility screening analysis. 
As in the analysis for all firms in Table 2, OSHA used the cost data 
presented in Table 1 in combination with the data on small firms 
presented in the Final Economic Analysis (Ex. 129). Table 3 shows 
annualized compliance costs as a percentage of revenues and profits 
using SBA definitions of small firms for each relevant SIC code within 
each application group. This analysis shows that costs as a percentage 
of revenues and profits are slightly greater than is the case for all 
firms in the SIC, but still average only 0.0017 percent of revenues and 
0.035 percent of profits. The most heavily impacted industry is 
furniture stripping, but the impacts in this group are the same for all 
firms in the group because all furniture stripping firms are small 
using the SBA definition.

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[[Page 50727]]

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[[Page 50728]]

[GRAPHIC] [TIFF OMITTED] TR22SE98.044



BILLING CODE 4510-26-C

[[Page 50729]]

    As noted in the discussion of costs, firms with fewer than 20 
employees are much more likely to incur greater costs for medical 
removal protection because such firms may have difficulty in finding a 
job that does not involve exposure to MC at levels above the action 
level. OSHA therefore examined annualized compliance costs as a 
percentage of sales and profits for firms with fewer than 20 employees.
    Table 4 shows the results of this analysis. For the typical 
affected firm with fewer than 20 employees, the annualized costs of 
medical removal protection represent 0.0026 percent of sales and 0.064 
percent of profits. Furniture stripping has the greatest potential 
impacts--annualized costs are 0.016 percent of sales and 0.3 percent of 
profits for firms in this application group. These impacts do not 
constitute significant impacts, as envisioned by the Regulatory 
Flexibility Act. However, because unusually prolonged medical removal 
without an alternative job within the establishment might present 
problems for these very small firms, the standard includes a provision 
[paragraph (j)(11)(i)(B)] requiring special consideration of the 
feasibility of, economic burden imposed by, medical removal protection 
when an employer would otherwise need to provide MRP benefits to more 
than one employee. This provision ensures that impacts are not unduly 
burdensome even in rare and unusual circumstances. Therefore, based on 
its analyses both of impacts and small firms using the SBA definitions, 
and of very small firms with fewer than 20 employees, OSHA certifies 
that the MRP provisions in this final rule will not have a significant 
impact on a substantial number of small entities.

V. Federalism

    This final rule has been reviewed in accordance with Executive 
Order 12612 (52 FR 41685, October 30, 1987), regarding Federalism. This 
Order requires that agencies, to the extent possible, refrain from 
limiting State policy options, consult with States prior to taking any 
actions that would restrict State policy options, and take such actions 
only when there is a clear constitutional authority and the presence of 
a problem of national scope. The Order provides for preemption of State 
law only if there is a clear Congressional intent for the Agency to do 
so. Any such preemption is to be limited to the extent possible.
    Section 18 of the Occupational Safety and Health Act (OSH Act) 
expresses Congress' intent to preempt state laws relating to issues for 
which Federal OSHA has issued occupational safety and health standards. 
Under the OSH Act, if an occupational safety or health issue is 
addressed by an OSHA standard, a State law addressing the same issue is 
preempted unless the State submits, and obtains Federal OSHA approval 
of, a plan for the development of occupational safety and health 
standards and their enforcement. Occupational safety and health 
standards developed by such State-Plan States must, among other things, 
be at least as effective in providing safe and healthful employment and 
places of employment as the Federal standards. Where such standards are 
applicable to products distributed or used in interstate commerce, they 
may not unduly burden commerce and must be justified by compelling 
local conditions.
    This final MC rule revises the current MC standard by adding a 
provision for limited medical removal protection benefits and by 
extending certain startup dates for employers who use MC in certain 
applications. As under the current MC standard, states with 
occupational safety and health plans approved under section 18 of the 
OSH Act will be able to develop their own State standards to deal with 
any special problems which might be encountered in a particular state 
while ensuring that their standards are at least as effective as the 
Federal standard.

VI. State Plans

    The 23 States and two territories with their own OSHA-approved 
occupational safety and health plans must adopt a comparable standard 
within six months of the publication of this final rule or amend their 
existing standards to ensure that their standards are ``at least as 
effective'' as the Federal MC standard as amended by this final rule. 
Those states and territories are: Alaska, Arizona, California, 
Connecticut (for State and local government employees only), Hawaii, 
Indiana, Iowa, Kentucky, Maryland, Michigan, Nevada, New Mexico, New 
York (for State and local government employees only), North Carolina, 
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, 
Virginia, the Virgin Islands, Washington, and Wyoming.

Authority and Signature

    This document was prepared under the direction of Charles N. 
Jeffress, Assistant Secretary of Labor for Occupational Safety and 
Health, U.S. Department of Labor, 200 Constitution Avenue, NW, 
Washington, DC 20210.

List of Subjects in 29 CFR Part 1910

    Chemicals, Hazardous substances, Occupational safety and health.

    Signed at Washington, DC this 16th day of September, 1998.
Charles N. Jeffress,
Assistant Secretary of Labor.

    Part 1910 of title 29 of the Code of Federal Regulations is amended 
as follows:

PART 1910--[AMENDED]

    1. The general authority citation for subpart Z of CFR 29 part 1910 
continues to read, in part, as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of 
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 
FR 35736), 1-90 (55 FR 9033), or 6-96 (62 FR 111), as applicable; 
and 29 CFR Part 1911.
* * * * *
    2. Section 1910.1052 would be amended by revising paragraphs 
(d)(3), (j)(9)(i)(A) and (B), and paragraph (n)(2), and by adding 
paragraphs (j)(10), (j)(11), (j)(12), (j)(13), and (j)(14) as follows:


1910.1052  Methylene Chloride

* * * * *
    (d) Exposure monitoring.
* * * * *
    (3) Periodic monitoring. Where the initial determination shows 
employee exposures at or above the action level or above the STEL, the 
employer shall establish an exposure monitoring program for periodic 
monitoring of employee exposure to MC in accordance with Table 1:

 Table 1--Initial Determination Exposure Scenarios and Their Associated 
                         Monitoring Frequencies                         
------------------------------------------------------------------------
      Exposure scenario               Required monitoring activity      
------------------------------------------------------------------------
Below the action level and at  No 8-hour TWA or STEL monitoring         
 or below the STEL.             required.                               
Below the action level and     No 8-hour TWA monitoring required;       
 above the STEL.                monitor STEL exposures every three      
                                months.                                 
At or above the action level,  Monitor 8-hour TWA exposures every six   
 at or below the TWA, and at    months.                                 
 or below the STEL.                                                     

[[Page 50730]]

                                                                        
At or above the action level,  Monitor 8-hour TWA exposures every six   
 at or below the TWA, and       months and monitor STEL exposures every 
 above the STEL.                three months.                           
Above the TWA and at or below  Monitor 8-hour TWA exposures every three 
 the STEL.                      months. In addition, without regard to  
                                the last sentence of the note to        
                                paragraph (d)(3), the following         
                                employers must monitor STEL exposures   
                                every three months until either the date
                                by which they must achieve the 8-hour   
                                TWA PEL under paragraph (n) of this     
                                section or the date by which they in    
                                fact achieve the 8-hour TWA PEL,        
                                whichever comes first: employers engaged
                                in polyurethane foam manufacturing; foam
                                fabrication; furniture refinishing;     
                                general aviation aircraft stripping;    
                                product formulation; use of MC-based    
                                adhesives for boat building and repair, 
                                recreational vehicle manufacture, van   
                                conversion, or upholstery; and use of MC
                                in construction work for restoration and
                                preservation of buildings, painting and 
                                paint removal, cabinet making, or floor 
                                refinishing and resurfacing.            
Above the TWA and above the    Monitor 8-hour TWA exposures and STEL    
 STEL.                          exposures every three months.           
------------------------------------------------------------------------

[Note to paragraph (d)(3): The employer may decrease the frequency 
of 8-hour TWA exposure monitoring to every six months when at least 
two consecutive measurements taken at least seven days apart show 
exposures to be at or below the 8-hour TWA PEL. The employer may 
discontinue the periodic 8-hour TWA monitoring for employees where 
at least two consecutive measurements taken at least seven days 
apart are below the action level. The employer may discontinue the 
periodic STEL monitoring for employees where at least two 
consecutive measurements taken at least 7 days apart are at or below 
the STEL.]
* * * * *
    (j) Medical surveillance.
* * * * *
    (9) Written medical opinions.
    (i) * * *
    (A) The physician or other licensed health care professional's 
opinion concerning whether exposure to MC may contribute to or 
aggravate the employee's existing cardiac, hepatic, neurological 
(including stroke) or dermal disease or whether the employee has any 
other medical condition(s) that would place the employee's health at 
increased risk of material impairment from exposure to MC.
    (B) Any recommended limitations upon the employee's exposure to MC, 
including removal from MC exposure, or upon the employee's use of 
respirators, protective clothing, or other protective equipment.
* * * * *
    (10) Medical Presumption. For purposes of this paragraph (j) of 
this section, the physician or other licensed health care professional 
shall presume, unless medical evidence indicates to the contrary, that 
a medical condition is unlikely to require medical removal from MC 
exposure if the employee is not exposed to MC above the 8-hour TWA PEL. 
If the physician or other licensed health care professional recommends 
removal for an employee exposed below the 8-hour TWA PEL, the physician 
or other licensed health care professional shall cite specific medical 
evidence, sufficient to rebut the presumption that exposure below the 
8-hour TWA PEL is unlikely to require removal, to support the 
recommendation. If such evidence is cited by the physician or other 
licensed health care professional, the employer must remove the 
employee. If such evidence is not cited by the physician or other 
licensed health care professional, the employer is not required to 
remove the employee.
    (11) Medical Removal Protection (MRP).
    (i) Temporary medical removal and return of an employee.
    (A) Except as provided in paragraph (j)(10) of this section, when a 
medical determination recommends removal because the employee's 
exposure to MC may contribute to or aggravate the employee's existing 
cardiac, hepatic, neurological (including stroke), or skin disease, the 
employer must provide medical removal protection benefits to the 
employee and either:
    (1) Transfer the employee to comparable work where methylene 
chloride exposure is below the action level; or
    (2) Remove the employee from MC exposure.
    (B) If comparable work is not available and the employer is able to 
demonstrate that removal and the costs of extending MRP benefits to an 
additional employee, considering feasibility in relation to the size of 
the employer's business and the other requirements of this standard, 
make further reliance on MRP an inappropriate remedy, the employer may 
retain the additional employee in the existing job until transfer or 
removal becomes appropriate, provided:
    (1) The employer ensures that the employee receives additional 
medical surveillance, including a physical examination at least every 
60 days until transfer or removal occurs; and
    (2) The employer or PLHCP informs the employee of the risk to the 
employee's health from continued MC exposure.
    (C) The employer shall maintain in effect any job-related 
protective measures or limitations, other than removal, for as long as 
a medical determination recommends them to be necessary.
    (ii) End of MRP benefits and return of the employee to former job 
status.
    (A) The employer may cease providing MRP benefits at the earliest 
of the following:
    (1) Six months;
    (2) Return of the employee to the employee's former job status 
following receipt of a medical determination concluding that the 
employee's exposure to MC no longer will aggravate any cardiac, 
hepatic, neurological (including stroke), or dermal disease;
    (3) Receipt of a medical determination concluding that the employee 
can never return to MC exposure.
    (B) For the purposes of this paragraph (j), the requirement that an 
employer return an employee to the employee's former job status is not 
intended to expand upon or restrict any rights an employee has or would 
have had, absent temporary medical removal, to a specific job 
classification or position under the terms of a collective bargaining 
agreement.
    (12) Medical Removal Protection Benefits.
    (i) For purposes of this paragraph (j), the term medical removal 
protection benefits means that, for each removal, an employer must 
maintain for up to six months the earnings, seniority, and other 
employment rights and benefits of the employee as though the employee 
had not been removed from MC exposure or transferred to a comparable 
job.

[[Page 50731]]

    (ii) During the period of time that an employee is removed from 
exposure to MC, the employer may condition the provision of medical 
removal protection benefits upon the employee's participation in 
follow-up medical surveillance made available pursuant to this section.
    (iii) If a removed employee files a workers' compensation claim for 
a MC-related disability, the employer shall continue the MRP benefits 
required by this paragraph until either the claim is resolved or the 6-
month period for payment of MRP benefits has passed, whichever occurs 
first. To the extent the employee is entitled to indemnity payments for 
earnings lost during the period of removal, the employer's obligation 
to provide medical removal protection benefits to the employee shall be 
reduced by the amount of such indemnity payments.
    (iv) The employer's obligation to provide medical removal 
protection benefits to a removed employee shall be reduced to the 
extent that the employee receives compensation for earnings lost during 
the period of removal from either a publicly or an employer-funded 
compensation program, or receives income from employment with another 
employer made possible by virtue of the employee's removal.
    (13) Voluntary Removal or Restriction of an Employee. Where an 
employer, although not required by this section to do so, removes an 
employee from exposure to MC or otherwise places any limitation on an 
employee due to the effects of MC exposure on the employee's medical 
condition, the employer shall provide medical removal protection 
benefits to the employee equal to those required by paragraph (j)(12) 
of this section.
    (14) Multiple Health Care Professional Review Mechanism. 
    (i) If the employer selects the initial physician or licensed 
health care professional (PLHCP) to conduct any medical examination or 
consultation provided to an employee under this paragraph (j)(11), the 
employer shall notify the employee of the right to seek a second 
medical opinion each time the employer provides the employee with a 
copy of the written opinion of that PLHCP.
    (ii) If the employee does not agree with the opinion of the 
employer-selected PLHCP, notifies the employer of that fact, and takes 
steps to make an appointment with a second PLHCP within 15 days of 
receiving a copy of the written opinion of the initial PLHCP, the 
employer shall pay for the PLHCP chosen by the employee to perform at 
least the following:
    (A) Review any findings, determinations or recommendations of the 
initial PLHCP; and
    (B) conduct such examinations, consultations, and laboratory tests 
as the PLHCP deems necessary to facilitate this review.
    (iii) If the findings, determinations or recommendations of the 
second PLHCP differ from those of the initial PLHCP, then the employer 
and the employee shall instruct the two health care professionals to 
resolve the disagreement.
    (iv) If the two health care professionals are unable to resolve 
their disagreement within 15 days, then those two health care 
professionals shall jointly designate a PLHCP who is a specialist in 
the field at issue. The employer shall pay for the specialist to 
perform at least the following:
    (A) Review the findings, determinations, and recommendations of the 
first two PLHCPs; and
    (B) Conduct such examinations, consultations, laboratory tests and 
discussions with the prior PLHCPs as the specialist deems necessary to 
resolve the disagreements of the prior health care professionals.
    (v) The written opinion of the specialist shall be the definitive 
medical determination. The employer shall act consistent with the 
definitive medical determination, unless the employer and employee 
agree that the written opinion of one of the other two PLHCPs shall be 
the definitive medical determination.
    (vi) The employer and the employee or authorized employee 
representative may agree upon the use of any expeditious alternate 
health care professional determination mechanism in lieu of the 
multiple health care professional review mechanism provided by this 
paragraph so long as the alternate mechanism otherwise satisfies the 
requirements contained in this paragraph.
* * * * *
    (n) Dates.
* * * * *
    (2) Start-up dates. (i) Initial monitoring required by paragraph 
(d)(2) of this section shall be completed according to the following 
schedule:
    (A) For employers with fewer than 20 employees, within 300 days 
after the effective date of this section.
    (B) For polyurethane foam manufacturers with 20 to 99 employees, 
within 255 days after the effective date of this section.
    (C) For all other employers, within 150 days after the effective 
date of this section.
    (ii) Engineering controls required under paragraph (f)(1) of this 
section shall be implemented according to the following schedule:
    (A) For employers with fewer than 20 employees: within three (3) 
years after the effective date of this section.
    (B) For employers with fewer than 150 employees engaged in foam 
fabrication; for employers with fewer than 50 employees engaged in 
furniture refinishing, general aviation aircraft stripping, and product 
formulation; for employers with fewer than 50 employees using MC-based 
adhesives for boat building and repair, recreational vehicle 
manufacture, van conversion, and upholstering; for employers with fewer 
than 50 employees using MC in construction work for restoration and 
preservation of buildings, painting and paint removal, cabinet making 
and/or floor refinishing and resurfacing: within three (3) years after 
the effective date of this section.
    (C) For employers engaged in polyurethane foam manufacturing with 
20 employees or more: within thirty (30) months after the effective 
date of this section.
    (D) For employers with 150 or more employees engaged in foam 
fabrication; for employers with 50 or more employees engaged in 
furniture refinishing, general aviation aircraft stripping, and product 
formulation; for employers with 50 or more employees using MC-based 
adhesives in boat building and repair, recreational vehicle 
manufacture, van conversion and upholstering; and for employers with 50 
or more employees using MC in construction work for restoration and 
preservation of buildings, painting and paint removal, cabinet making 
and/or floor refinishing and resurfacing: within two (2) years after 
the effective date of this section.
    (E) For all other employers: within one (1) year after the 
effective date of this section.
    (iii) Employers identified in paragraphs (n)(2)(ii)(B), (C), and 
(D) of this section shall comply with the requirements listed below in 
this subparagraph by the dates indicated:
    (A) Use of respiratory protection whenever an employee's exposure 
to MC exceeds or can reasonably be expected to exceed the 8-hour TWA 
PEL, in accordance with paragraphs (c)(1), (e)(3), (f)(1) and (g)(1) of 
this section: by the applicable dates set out in paragraphs 
(n)(2)(ii)(B), (C) and (D) of this section for the installation of 
engineering controls.
    (B) Use of respiratory protection whenever an employee's exposure 
to MC exceeds or can reasonably be expected to exceed the STEL in 
accordance with paragraphs (e)(3), (f)(1),

[[Page 50732]]

and (g)(1) of this section: by the applicable dates indicated in 
paragraph (n)(2)(iv) of this section.
    (C) Implementation of work practices (such as leak and spill 
detection, cleanup and enclosure of containers) required by paragraph 
(f)(1) of this section: by the applicable dates indicated in paragraph 
(n)(2)(iv) of this section.
    (D) Notification of corrective action under paragraph (d)(5)(ii) of 
this section: no later than (90) days before the compliance date 
applicable to such corrective action.
    (iv) Unless otherwise specified in this paragraph (n), all other 
requirements of this section shall be complied with according to the 
following schedule:
    (A) For employers with fewer than 20 employees, within one (1) year 
after the effective date of this section.
    (B) For employers engaged in polyurethane foam manufacturing with 
20 to 99 employees, within 270 days after the effective date of this 
section.
    (C) For all other employers, within 255 days after the effective 
date of this section.
* * * * *
[FR Doc. 98-25211 Filed 9-21-98; 8:45 am]
BILLING CODE 4510-26-P