A new regulation intended to clarify the Occupational Safety and Health Administration’s (OSHA) 1998 rule on respirators used in general industry, construction, shipyards and marine terminals has come under fire from the legal and business community. Indeed, the rule is so controversial that efforts are already underway to stop it from going into effect on November 22, 2006, the currently scheduled implementation date.

Published on August 24, OSHA’s new rule amends the existing “Respirator Protection Standard” to include definitions and requirements for Assigned Protection Factors (APFs) or the numerical ratings that indicate the level of protection that a respirator or class of respirators is expected to provide employees. The new rule also specifies a set of APFs for each class of respirator (i.e. air-purifying; powered air-purifying; supplied-air; and self-contained breathing apparatus), taking the guesswork out of selecting the “right respirator for the job,” according to OSHA.

Others argue, however, that the new rule does the exact opposite. Not only does the new rule make it more difficult for some employers to select appropriate equipment, critics argue, it also leaves them vulnerable to OSHA enforcement action. INDA’s legal counsel, the law firm of Keller and Heckman, LLP in Washington, DC, in fact, is actively working with business interests to seek modifications to the rule to correct these shortcomings.

Considering the fact that this rule will impact customers of INDA members who make and sell respirators, this article will review the key elements of the August 24 rule and the arguments being made against it. But first we will begin by briefly reviewing the regulatory history of the respiratory protection standard.

Background

Recognizing that engineering and work practice controls are not always enough to protect workers in fields such as manufacturing and construction from exposure to harmful dusts, fogs, gases, vapors and sprays, OSHA in 1971 created its first respiratory protection standard (29 CFR 1910.34). Based largely on respirator and gas mask standards developed by the American National Standards Institute (ANSI) in 1969, the 1971 standard required employers to provide respirators under certain circumstances and contained provisions addressing respirator selection, use, maintenance and care.

OSHA eventually went on to update the standard in 1998 to incorporate technological advancements and reflect an improved scientific understanding of the elements needed for an effective respiratory protection program. OSHA included provisions addressing employee training, fit testing, medical evaluation and more in the 1998 standard but deferred specifying definitions and requirements for APFs until a future rulemaking. In the absence of APF guidelines, OSHA instructed employers to “take the best information into account in selecting respirators,” and suggested they look to National Institute for Occupational Safety and Health (NIOSH) standards for guidance during the interim. Not surprisingly, this created a great deal of uncertainty and led many employers to seek assistance from professional consultants to help them select the right respirators for their businesses.

OSHA eventually went on to issue its proposed APF rule in 2003 and held a three-day public hearing on the proposal in 2004. It used the testimony and numerous pre- and post-hearing submissions it received in crafting the current APF standard.

Final Rule

Under the August 24 rule, employers will have to use APFs to select the appropriate type of respirator based upon the exposure limit (EL) of a contaminant and the level of the contaminant in the workplace. According to an agency news release, employers select respirators by comparing the exposure level found in the workplace to the Maximum Use Concentration (MUC). The MUC is the maximum concentration of the contaminant in which a particular type of respirator can be used and is generally determined by multiplying the respirator’s APF by the contaminant’s exposure limit. “If the workplace level of the contaminant is expected to exceed the respirator’s MUC, the employer must choose a respirator with a higher APF,” OSHA notes. OSHA’s final rule includes a table summarizing the required APFs for the different types of respirator. For instance, the APF for a half-mask air-purifying respirator is 10, meaning it would reduce the concentration of the contaminant inside the respirator to one-tenth the level in the surrounding air.

OSHA estimates the APF changes will require some 30,000 users to upgrade to more expensive respirators at a cost of approximately $4.5 million nationwide. Nearly the same number of employees, however, will benefit from a higher degree of respiratory protection, the agency says, including thousands of workers who are exposed to dangerous substances such as lead, asbestos and cotton dust.

“OSHA Has Created What Might be Described as Chaos”
So, if the revisions make it easier for employers to select the right respirator and this, in turn, means more workers will benefit from a higher level of respiratory protection, where is the problem?

The problem, according to Keller and Heckman, is how the rule handles the identification of appropriate exposure limits. Hundreds of hazardous substances already fall under the scope of OSHA’s “Permissible Exposure Limits” (PELs), which are OSHA-enforceable regulatory limits on the amount or concentration of a hazardous substance in the air.  

But, there are many potentially dangerous chemicals that do not have OSHA PELs established. In the case of those substances, the rule instructs employers to determine their exposure limits, “on the basis of relevant available information and informed professional judgment,” without providing any formal guidance about how to establish an appropriate EL. This is especially problematic, Keller & Heckman notes, because it appears that once an EL is established, it becomes OSHA-enforceable. Beyond this, the firm notes, because the hierarchy of controls in the agency’s respirator standard requires employers to first try to control airborne contaminants through the use of engineering controls before turning to respirators, the APF rule could be interpreted to require the employer to implement engineering controls to achieve the self-determined exposure limit. “In light of our reading of the final rule,” INDA’s counsel notes in a September 8 communication, “OSHA has created what might be described as chaos, which leaves no alternative but to seek a stay and judicial review.”

Looking Ahead

As it stands, petitions for review of the final rule must be filed within 60 days of the promulgation of the final rule. Keller and Heckman is working aggressively to form a business community coalition to seek revisions to the final rule to address its existing flaws. If you or your company is interested in participating in this effort, please contact one of the following Keller and Heckman LLP attorneys: Lawrence  Halprin at 202-434-4177 or [email protected]; or David Sarvadi at 202-434-4249 or [email protected].