Methylene Chloride; Final Rule

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

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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]]

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[[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.

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[[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]]

[GRAPHIC] [TIFF OMITTED] TR22SE98.043

[[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