Occupational Exposure to Hexavalent Chromium

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
 [Federal Register: February 28, 2006 (Volume 71, Number 39)]
[Rules and Regulations]
[Page 10299-10348]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe06-29]
 
[[pp. 10299-10348]]

Occupational Exposure to Hexavalent Chromium

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Economic Feasibility for Many Industries With Low Potential Impacts

    To determine whether a rule is economically feasible, OSHA 
evaluates evidence from a number of sources. And while there is no hard 
and fast rule, in the absence of evidence to the contrary OSHA 
generally considers a standard

[[Page 10300]]

economically feasible when the costs of compliance are less than one 
percent of revenues. Common-sense considerations indicate that 
potential impacts of such a small magnitude are unlikely to eliminate 
an industry or significantly alter its competitive structure 
particularly since most industries have at least some ability to raise 
prices to reflect increased costs. Of course, OSHA recognizes that even 
when costs are within this range, there could be unusual circumstances 
requiring further analysis. In addition, as a second check, OSHA also 
looks to see whether even such low costs may represent more than ten 
percent of the profit in a particular industry. If either of these 
factors is present, or if there is other evidence of industry demise or 
potential disruption in an industry's competitive structure because of 
the standard, OSHA examines the effect of the rule on that industry 
more closely. Finally, OSHA reviews the record for any other unusual 
circumstances, such as excellent substitutes of equal cost that might 
make an industry particularly sensitive to price change. In this case, 
the only argument of this kind that OSHA noted was an argument by one 
commenter that trivalent chromium plating might be substituted in some 
applications for hexavalent chromium. However, even if this is the case 
(some in the record did not agree), a plating operation could switch to 
trivalent plating with minimal capital investment and thus remain in 
business.
    OSHA believes that a potential one percent revenue effect is an 
appropriate way to begin the analysis in light of the fact that the 
United States has a dynamic and constantly changing economy. There is 
an enormous variety of year-to-year events that could cause a one 
percent increase in a business's costs, e.g., increasing fuel costs, an 
unusual one-time expense, changes in costs of materials, increased 
rents, increased taxes, etc. Table V-8, which shows year to year 
changes in prices for a number of industries affected by the standard, 
reflects this phenomenon.
    Changes in profits are also subject to the dynamics of the economy. 
A recession, or a downturn in a particular industry, will typically 
cause profit declines in excess of ten percent for several years in 
succession. Table V-9, which shows annual profits for several years in 
succession, illustrates this phenomenon. While a permanent loss of 
profits presents a greater problem than a temporary loss, these year-
to-year variations do serve to show that small changes in profits are 
quite normal without affecting the viability of industries.
    The potential impacts of this regulation on the affected employers, 
for the most part, are within the range of normal year-to-year 
variation that firms and industries expect and survive. Table V-8 in 
the FEA shows year-to-year price variations for selected industries 
with hexavalent chromium exposure, and Table V-9 (in the FEA) shows 
year-to-year profit variations for selected industries with hexavalent 
chromium exposures. Table V-8 serves the purpose of showing that, for 
many industries, annual price changes of one percent or more are 
commonplace without affecting the viability of the industry. Table V-9 
serves to show that temporary profit swings of significantly more than 
ten percent are also well within the boundaries of normal year-to-year 
change.
    Because a permanent decrease in profits is much more significant 
than a temporary swing of the same magnitude, OSHA has also used the 
fact that a very large short term decline can be compared in effect to 
a smaller long-term decrease in profits to calculate the extent to 
which the temporary changes shown in Table V-9 may demonstrate an 
industry's ability to withstand a long-term change. For example, using 
a 7 percent discount rate, and the assumption that profits return to 
the long term average following a temporary decline, the following 
short term declines are approximately equivalent to a 10 percent long-
term decline:

50 percent decline for one year;
30 percent decline for two years;
20 percent decline for three years.

    Looking at profits of the average corporation for the period of 
1990 to 2002, events of one of the above magnitudes have occurred twice 
in that 12-year period without threatening industrial viability. (Based 
on corporate profit rate data from IRS, Statistics of Income: Corporate 
Income Tax Returns, as Reported in U.S. Department of Commerce, U.S. 
Statistical Abstract 2006). And since, as discussed below, demand is 
not perfectly elastic in any of the affected industries, it is unlikely 
that the actual effect on profits will be as high as indicated in Table 
VIII-7.
    The record does not contain evidence that any of the affected 
industries for which OSHA found that the costs of complying with the 
standard will be less than both one percent of prior revenue and ten 
percent of prior profits will in fact be threatened by the standard. 
Although some industry representatives asserted that compliance would 
threaten their existence, these assertions (with one exception, 
discussed below) were not supported by empirical evidence that even the 
proposed PEL of 1 would be economically infeasible. As noted above, 
cost changes of less than one percent are routinely passed on and 
impacts that are less than 10 percent of profits have not been shown to 
be likely to affect the viability or competitive structure of any of 
the industries affected by this standard.

Economic Feasibility for Industries With Higher Potential Impacts

    In Table VIII-7, OSHA found that there were 9 industries in three 
application groups in which costs were greater than 1 percent of 
revenues, and an additional 22 industries in six application groups in 
which costs were greater than 10 percent of profits.
    However, this number of industries is somewhat misleading. Seven of 
the industries in which costs exceed one percent of revenues, and an 
additional twelve of those in which costs exceeded 10 percent of 
profits (without exceeding 1 percent of revenues) are industries in the 
plating and welding application groups in which plating or welding are 
exceedingly rare, such as electroplating in the performing arts, 
spectator sports and related industries (NAICS 711) and welding in 
religious, governmental, civil, and professional organizations (NAICS 
813). In both cases, only one establishment in the entire industry 
reported engaging in either welding or plating. It is difficult to 
determine whether reports of welding or plating in such industries 
represent an extremely unusual situation or, perhaps, simply someone 
inadvertently checking the wrong box on a survey. In either case, OSHA 
concludes that if such establishments do indeed engage in welding or 
plating, they could maintain their primary line of business, as almost 
everyone else in their industries does, by dropping welding or plating 
operations if such operations represented any threat whatsoever to the 
viability of their businesses.
    The same is true of the other industries that are in the general 
category of extremely rare and unusual users of plating operations: 
Specialty trade contractors (NAICS 238); wholesale trade and durable 
goods (NAICS 423); motor vehicle and parts dealers (NAICS 441); 
furniture and home furnishing stores (NAICS 442); electronics and 
appliance stores (NAICS 443); building materials and garden equipment 
dealers (NAICS 444); health and personal care stores (NAICS 446); 
miscellaneous store retailers (NAICS 453); nonstore retailers (NAICS 
454); information services and data processing service (NAICS 519); rental

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and leasing services (NAICS 532); professional, scientific and 
technical services (NAICS 541); performing arts, spectator sports and 
related industries (NAICS 711); and personal and laundry services 
(NAICS 812). In the welding application groups, the industries in this 
category are: gasoline stations (NAICS 447); nursing and residential 
care (NAICS 623); social assistance (NAICS 624); food services and 
drinking places (NAICS 722); and religious, governmental, civil, and 
professional organizations (NAICS 813).
    The remainder of this section examines those industries with higher 
potential impacts where their businesses may be dependent on Cr (VI) 
applications.
    Electroplating Job Shops: Electroplating job shops (NAICS 332813: 
electroplating, plating, polishing anodizing and coloring services) are 
a service industry for the manufacturing sector, and, to a lesser 
extent, to those maintaining, restoring, or customizing objects with 
metal parts. At a PEL of 5, job shops have costs as a percentage of 
profits of 30 percent and costs as a percentage of revenues of 1.24 
percent. These firms sell a service rather than a product. (Firms that 
directly sell the products they plate end up in other NAICS codes.) As 
a result, plating firms are primarily affected by foreign competition 
through the loss of other manufacturing in the United States, rather 
than through their customers sending products or their component parts 
abroad for electroplating. However, some commenters noted that there 
may be cases of sending products abroad for the sole purpose of 
electroplating. This seems unlikely to be commonplace however, because 
of the shipping times and costs for a process that normally represents 
a very small part of the value added for the ultimate product. In 
addition, because electroplating is essential to the manufacture of 
most plated products, the ultimate demand for plating services is 
unlikely to decrease significantly.
    Finally, independent electroplating shops have been subject to 
annual profit changes larger in magnitude than those associated with 
this standard. Table V-9 in the FEA shows that, over the past ten 
years, profits in this industry have risen and fallen as much as 49 
percent in one year without affecting the viability of the industry. 
Although these kinds of temporary changes would not have the effect of 
permanent decline of profits by 30 percent, OSHA believes that all of 
the factors discussed above indicate that there is sufficient price 
elasticity and other flexibility in this industry to absorb these costs.
    The price increase of 1.24 percent required to fully restore 
profits at a PEL of five is significantly less than the average annual 
increase in price of electroplating services, as shown by Table V-8 in 
the FEA. Further, during the period shown in Table V-8, the industry 
successfully survived, without any real price increase, the regulatory 
costs imposed by EPA's Chrome MACT standard. The costs of that standard 
are somewhat uncertain. Some commenters argued that that standard could 
be quite expensive. One commenter suggested that one facility had 
incurred costs of $80,000 per year to meet that standard, and that such 
high costs were not atypical. (Tr. 2003) Another commenter noted, 
however, that ``the effect of the MACT Standard was minimized when 
people realized that the combination of a mist suppressant and the 
development of a mist suppressant that would work in a hard chrome 
installation along with the use of mesh pads puts you below the MACT 
standard.'' (Tr. 2203) The commenter apparently felt that, in the 
latter case, the costs would not have been significant. Nevertheless, 
in either event, probably due to productivity improvement in other 
aspects of the industry, there was no real price increase or massive 
dislocation in the industry.
    SFIC (Ex. 38-265) also argued that it was difficult to pass on 
costs in electroplating based on an EPA study that estimated a cost 
pass through elasticity of 0.58. This study was based on pre-1996 data, 
and found a statistical relationship between nominal price increases 
and increases in a nominal cost index. Whatever the difficulties in 
passing increased costs to its customers the industry might have had 
before 1996, since that time nominal prices have increased in ways that 
did not have the effects on profit predicted by the EPA study.
    Even in the event of a real price increase, we believe that demand 
for electroplating services is relatively inelastic. For most products 
that are plated, plating is basically essential to the function of the 
product. The EPA study for the MACT standard found that products 
incorporating electroplating had relatively inelastic demand, on the 
order of less than 0.5, and the cost of plating represented a very 
small percentage of the total costs of the products in question. In 
this situation, the chief danger associated with a real cost increase 
of less than 1 percent is that there would be some increased foreign 
penetration of U.S. markets. However, the small size of the change, and 
the difficulty of sending products abroad solely for plating services, 
assures that the price change in question would not eliminate the industry, 
and is unlikely to alter the competitive structure of the industry.
    However, OSHA is concerned about the economic feasibility of the 
standard for electroplating at a PEL of 1. At this lower PEL, costs of 
the standard represent 2.7 percent of revenues and 65 percent of 
profits. In almost all OSHA health standards in which this figure was 
developed, the costs for the most affected industry have been less than 
2 percent of revenues. (The major exception was brass and bronze 
foundries, where the lead standard PEL was found economically 
infeasible with the use of engineering controls.) Further, in standards 
where the costs might have been in excess of 2 percent of revenues, 
OSHA has sought ways to lower the cost through long term phase-ins of 
engineering controls. OSHA examined this possibility for job-shop 
electroplaters, and found that even allowing the use of respirators 
rather than engineering controls would not significantly lower the 
costs as percentage of revenues. OSHA also examined the issue of 
whether there were particular types of platers that might have 
unusually high or low costs, and found that even quite different 
plating shop configurations with respect to the type of plating done 
would have approximately equal average costs.
    Given the high level of costs as a percentage of revenues and 
profits, and the inability to alleviate those impacts without a higher 
PEL, OSHA further examined the economic feasibility of the standard at 
a PEL of 1. It seems unlikely that a price increase of 2.7 percent, 
although significantly larger than the average nominal price increases 
in recent years, would eliminate the industry entirely. OSHA has 
concluded, however, that the costs associated with such a PEL could 
alter the competitive structure of the industry. OSHA has concluded 
this because these costs substantially exceed the average nominal price 
increases in the industry, and the reasons for these nominal price 
increases--increases in the cost of labor and energy, for example--will 
continue. Thus a price increase that would assure continued 
profitability for the entire industry would require almost tripling the 
annual nominal price increase. (The long term average price increase 
for plating, as shown in Table V-9, is 1.6 percent per year. Assuming 
this continues to be needed, an increase that would leave profits 
unchanged would require a cost increase of 4.2 percent (1.6 plus 2.6), 
almost three times as much.) That would represent a significant real 
price increase that might

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not be passed forward, particularly by older and less profitable 
segments of the industry.
    Welding (Stainless Steel) in Construction: OSHA calculated that the 
costs of the standard could equal 22.3 percent of profits in this 
industry, but only 0.92 percent of revenues. The maximum price 
increases required to fully restore profits (0.92 percent) is unlikely 
to significantly alter the demand for construction welding services 
which are essential for many projects and not subject to foreign 
competition. Further, costs of using stainless steel (the chief source 
of welding exposure) already vary significantly from year to year, and 
often from month to month. Table V-10 shows the producer price index 
for steel prices. Prices of steel have changed by more than 10 percent 
within a single year a number of times in the past ten years without 
affecting the viability of the use of stainless steel in construction.
    Welding in General Industry: There are a significant number of 
establishments engaged in welding in repair and maintenance (NAICS 811) 
and in personal and laundry services (NAICS 812). For repair and 
maintenance services, the costs as a percentage of revenues are 0.40 
percent and the costs as a percentage of profits are 10.5 percent. For 
personal and laundry services the costs as a percentage of revenues are 
0.67 percent and costs as a percentage of profits are 13 percent. (All 
costs include the costs of any respirators welders will need to use.) 
These two sectors conduct maintenance and repair welding. Even if costs 
cannot be passed on, the resulting declines in profits are unlikely to 
affect the viability of an otherwise viable employer. Further, 
businesses of this kind are more likely to be able to increase costs 
because of the absence of foreign competition. While some loss of 
revenue is possible with a price increase, it is unlikely that the 
quantity of routine repairs would be significantly affected by price 
increases of this magnitude.
    Painting and Corrosion Protection: Four sectors in the painting 
application groups have costs as a percentage of revenues in excess of 
one percent or costs as a percentage of profits in excess of 10 
percent. These are motor vehicle body and trailer manufacturing (NAICS 
3362) with costs of 0.51 percent and 20 percent; military armored 
vehicle and tank manufacturers (NAICS 336992) with costs of 0.25 
percent and 10 percent; used car dealers (NAICS 44112) with costs of 
0.41 percent and 34 percent; and automotive body, paint and interior 
repair (NAICS 81121) with costs of 1.5 percent and 39 percent. These 
costs are incurred in part for the use of hexavalent chromium pigments, 
but largely for using hexavalent chromium coating (applied like paint) 
as undercoats for corrosion protection. In the case of the first two 
NAICS codes, these are part of manufacturing processes. For both of 
these manufacturing industries, while the costs of hexavalent chromium 
coatings may be significant in the establishments where they are 
applied, the costs of Hexavalent chromium coatings represent an 
insignificant percentage of the costs of a car or a tank. While 
manufacturers may seek substitutes for hexavalent chromium coatings, 
additional expenses for such coatings are unlikely to affect the 
ultimate demand for cars or tanks. The latter two affected industries 
involve repair and refurbishing of existing automobiles. The cost 
analysis assumes all firms who currently use hexavalent chromium in 
these industries will continue to do so. In each case, there are 
choices that would avoid the costs in question. One choice would be to 
use non-hexavalent chromium pigments or non-hexavalent chromium 
corrosion protection. A variety of substitutes have been developed, and 
the use of hexavalent chromium based coatings for these purposes is 
already banned in California. (Tr. 1913) Although these substitutes 
have not yet been subject to long term use and their protectiveness is 
currently less certain than that of hexavalent chromium, it is likely 
that products that are equivalent to hexavalent chromium will be 
developed, particularly if demand for such products increases as a 
result of the standard. In addition, applying hexavalent chromium 
coatings represents a very small portion of the business of either auto 
body repair shops or used car dealers. A firm whose viability was 
seriously threatened as a result of this standard could retain most of 
its core businesses without continuing to use hexavalent chromium.
    In addition, it is also reasonable to suppose that both used cars 
and auto body repair do not have highly elastic demand, such that a 
small change in prices would result in a very large drop in the number 
of cars repaired. As a result, the required increases in price can be 
accommodated without such significant losses as to alter the 
competitive structure of the industries.
    Chromium Catalyst Producers (0.8 percent; 27 percent) and Service 
Companies (0.44 percent; 12 percent): Chromium catalyst production and 
service companies are also unlikely to be affected by costs of the 
relative magnitude found here. Most companies are locked into the use 
of specific catalysts without major new investments. As a result, while 
there may be some small long-term shift away from the use of chromium 
catalysts, a price change of one percent is unlikely to immediately 
prompt such a change. This also means that the market for chrome 
catalyst services is likely to be maintained. Further, faced with a new 
regulation, companies are more rather than less likely to turn to a 
service company to handle chromium products. Based on these 
considerations, OSHA determined that the standard is economically 
feasible in these sectors.
    Iron and Steel Foundries: Iron and steel foundries (NAICS 3315) 
have costs that are 0.42 percent of revenues and 15 percent of profits. 
An oddity of the estimated costs for this industry is that 44 percent 
of the costs are associated with monitoring costs. In this cost 
estimate, OSHA assumes that iron and steel foundries will use scheduled 
periodic monitoring rather than adopting the option of performance-
based monitoring. Adopting a performance-based monitoring approach 
rather than scheduled monitoring might well reduce costs as a 
percentage of profits to less than 10 percent of profits. As noted 
above, cost changes of less than one percent are routinely passed on 
and impacts that are less than 10 percent of profits have not been 
shown to be likely to affect the viability or competitive structure of 
any of the industries affected by this standard.
    Even if costs are not reduced, the industry has demonstrated its 
ability to survive real cost increases by remaining viable in the face 
of a 32 percent increase in the price of its basic input, steel, over 
the last two years. Based on these considerations, OSHA concludes the 
standard is feasible for this sector.

F. Benefits and Net Benefits

    OSHA estimated the benefits associated with alternative PELs for 
Cr(VI) by applying the dose-response relationship developed in the risk 
assessment to current exposure levels. OSHA determined current exposure 
levels by first developing an exposure profile for industries with 
Cr(VI) exposures using OSHA inspection and site visit data, and then 
applying this profile to the total current worker population. The 
industry-by-industry exposure profile was given in Table VIII-2 above.
    By applying the dose-response relationship to estimates of current 
exposure levels across industries, it is possible to project the number 
of lung cancers expected to occur in the worker

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population given current exposures (the ``baseline''), and the number 
of these cases that would be avoided under alternative, lower PELs. 
OSHA assumed that exposures below the limit of detection (LOD) are 
equivalent to no exposure to Cr(VI), thus assigning no baseline or 
avoided lung cancers (and hence, no benefits) to these exposures. For 
exposures above the current PEL and for purposes of determining the 
benefit of reducing the PEL, OSHA assumed exposure at exactly the PEL.
    Consequently, the benefits computed below are attributable only to 
a change in the PEL. No benefits are assigned to the effect of a new 
standard increasing compliance with the current PEL. OSHA estimates 
that between 3,167 and 12,514 lung cancers attributable to Cr(VI) 
exposure will occur during the working lifetime of the current worker 
population. Table VIII-10 shows the number of avoided lung cancers by 
PEL. At the final PEL of 5 [mu]g/m3, an estimated 1,782 to 
6,546 lung cancers would be prevented over the working lifetime of the 
current worker population.
    Note that the Agency based these estimates on a worker who is 
employed in a Cr(VI)-exposed occupation for his entire working life, 
from age 20 to 65. The calculation also does not allow workers to enter 
or exit Cr(VI) jobs, nor switch to other exposure groups during their 
working lives. While the assumptions of 45 years of exposure and no 
mobility among exposure groups may seem restrictive, these assumptions 
actually are likely to yield somewhat conservative (lower) estimates of 
the number of avoided cancers, given the nature of the risk assessment 
model.
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    For example, consider the case of job covered by five workers, each 
working nine years rather than one worker for 45 years. The former 
situation will likely yield a slightly higher rate of lung cancers, 
since more workers are exposed to the carcinogen (albeit for a shorter 
period of time) and the average age of the workers exposed is likely to 
decrease. This is due to: (1) The linearity of the estimated dose-response

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relationship, and (2) once an individual accumulates a dose, the 
increase in relative risk persists for the remainder of his lifetime. 
For example, a worker exposed from age 20 to 30 will have a constant 
increased relative risk for about 50 or so years (from age 30 on, 
assuming no lag between exposure and increased risk and death at age 
80), whereas a person exposed from age 40 to 50 will have only about 30 
years of increased risk (again assuming no lag and death at age 80). 
The persistence of the increased relative risk for a lifetime follows 
directly from the risk assessment and is typical of life table analysis.
    For informational purposes only, OSHA has estimated the monetary 
value of the benefits associated with the final rule. These estimates 
are informational because OSHA cannot use benefit-cost analysis as a 
basis for determining the PEL for a health standard. In order to 
estimate monetary values for the benefits associated with the final 
rule, OSHA reviewed the approaches taken by other regulatory agencies 
for similar regulatory actions. OSHA found that occupational illnesses 
are analogous to the types of illnesses targeted by EPA regulations and 
has thus used them in this analysis.
    OSHA is adopting EPA's approach, applying a value of $6.8 million 
to each premature fatality avoided. The $6.8 million value represents 
individuals' willingness-to-pay (WTP) to reduce the risk of premature 
death.
    Nonfatal cases of lung cancer can be valued using a cost of illness 
(COI) approach, using data on associated medical costs. The EPA Cost of 
Illness Handbook (Ex.35-333) reports that the medical costs for a 
nonfatal case of lung cancer are, on average, $136,460. Updating the 
EPA figure to 2003 dollars yields the value of $160,030. Including 
values for lost productivity, the total COI which is applied to the 
OSHA estimate of nonfatal cases of lung cancer is $188,502.
    An important limitation of the COI approach is that it does not 
measure individuals' WTP to avoid the risk of contracting nonfatal 
cancers or illnesses. As an alternative approach, nonfatal cancer 
benefits may be estimated by adjusting the value of lives saved 
estimates. In its Stage 2 Disinfection and Disinfection Byproducts 
water rule, EPA used studies on the WTP to avoid nonfatal lymphoma and 
chronic bronchitis as a basis for valuing nonfatal cancers. In sum, EPA 
valued nonfatal cancers at 58.3 percent of the value of a fatal cancer. 
Using WTP information would yield a higher estimate of the benefits 
associated with the reduction in nonfatal lung cancers, as the nonfatal 
cancers would be valued at $4 million rather than $188,502 per case. 
These values represent the upper and lower bound values for nonfatal 
cases of lung cancer avoided.
    Using these assumptions, latency periods of 15, 20, 25, and 30 
years--and adjustments to the value of statistical life to today--OSHA 
estimated the total annual benefits of the standard at various PELS in 
Table VIII-11, considering the benefits from preventing both fatal and 
non-fatal cases of lung cancer.
    Occupational exposure to Cr(VI) has also been linked to a multitude 
of other health effects, including irritated and perforated nasal 
septum, skin ulceration, asthma, and dermatitis. Current data on Cr(VI) 
exposure and health effects are insufficient to quantify the precise 
extent to which many of these ailments occur. However, it is possible 
to provide an upper bound estimate of the number of cases of dermatitis 
that occur annually and an upper estimate of the number that will be 
prevented by a standard. This estimate is an upper bound because it 
uses data on incidence of dermatitis among cement workers, where 
dermatitis is more common than it would be for other exposures to 
Cr(VI). It is important to note that if OSHA were able to quantify all 
Cr(VI)-related health effects, the quantified benefits would be 
somewhat higher than the benefits presented in this analysis.
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    Using National Institute for Occupational Safety and Health (NIOSH) 
data, Ruttenberg and Associates (Ex. 35-332) estimate that the 
incidence of dermatitis among concrete workers is between 0.2 and 1 
percent. Applying the 0.2 percent-1 percent incidence rate indicates 
that there are presently 418-2,089 cases of dermatitis occurring 
annually. This approach represents an overestimate for cases of 
dermatitis in other application groups, since some dermatitis among 
cement workers is caused by other known factors, such as the high 
alkalinity of cement. If the measures in this final standard are 50 
percent effective in preventing dermatitis, then there would be an 
estimated 209-1,045 cases of Cr(VI) dermatitis avoided annually.
    To assign values to the cases of avoided dermatitis OSHA applied 
the COI approach. Ruttenberg and Associates computed that, on average, 
the medical costs associated with a case of dermatitis are $119 (in 
2003 dollars) and the indirect and lost productivity costs are $1,239 
(Ex. 35-332). These estimates were based on an analysis of BLS data on 
lost time associated with cases of dermatitis, updated to current 
dollars. Based on the Ruttenberg values, OSHA estimates that a Cr(VI) 
standard will yield $0.3 million to $1.4 million in annual benefits due 
to reduced incidence of dermatitis.
    Occupational exposure to Cr(VI) can lead to nasal septum 
ulcerations and nasal septum perforations. As with cases of dermatitis, 
the data were insufficient to conduct a formal quantitative risk 
assessment to relate exposures and incidence. However, previous studies 
provide a basis for developing an approximate estimate of the number of 
nasal perforations expected under the current PEL as well as PELs of 
0.25 [mu]g/m3, 0.5 [mu]g/m3, 1.0 [mu]g/m3, 5.0 [mu]g/m3, 10.0 [mu]g/m3 and 
20.0 [mu]g/m3. Cases of nasal perforations were computed 
only for workers in electroplating and chrome production. The 
percentage of workers with nasal tissue damage is expected to be over 
50 percent for those regularly exposed above approximately 20 [mu]g/
m3. Less than 25 percent of workers could reasonably be 
expected to experience nasal tissue damage if Cr(VI) exposure was kept 
below an 8-hour TWA of 5 [mu]g/m3 and regular short-term 
exposures (e.g. an hour or so) were below 10 [mu]g/m3. Less 
than 10 percent of workers could reasonably be expected to experience 
nasal tissue damage at a TWA Cr(VI) below 2 [mu]g/m3 [and 
short-term exposures below 10 [mu]g/m3]. It appears likely 
that nasal damage might be avoided completely if all Cr(VI) exposures 
were kept below 1 [mu]g/m3.
    OSHA estimates that 1,728 nasal perforations/ulcerations occur 
annually under current exposure levels. OSHA estimates that 1,140 of 
these would be prevented under the final PEL of 5 [mu]g/m3. 
Due to insufficient data, it was not possible to monetize the benefits. 
Thus, the benefits associated with a reduction in nasal perforations/
ulcerations are excluded from the net benefits analysis presented below.
    Finally, for informational purposes, OSHA examined the net benefits 
of the standard, based on the benefits and costs presented above, and 
the costs per case of cancer avoided, as shown in Table VIII-12.
    As noted above, the OSH Act requires OSHA to set standards based on 
eliminating significant risk to the extent feasible. That criterion or 
a criterion of maximizing net (monetary) benefits may result in very 
different regulatory outcomes. Thus, these analyses of net benefits 
cannot be used as the basis for a decision concerning the choice of a 
PEL for a Cr(VI) standard.
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    Nevertheless, the Agency agrees that additional information 
concerning the circumstances in which monetary benefits exceed costs 
would be a useful addition to the above table. OSHA found the following 
conditions key to determining whether benefits exceed costs:
    ? If the risk is at the lowest end of the range considered, 
then benefits do not exceed costs no matter what other variables are used.
    ? If the risk is at the high end of the range, and a 
discount rate of 7 percent is used, then benefits exceed costs for PELs 
of 1 and 20 if the latency period is less than 20 years, and for PELs 
of 5 and 10 if the latency period is less than 25 years.
    ? If the risk is at the high end of the range, and a 
discount rate of 3 percent is used, then benefits exceed costs for a 
PEL of 0.5 if the latency period is twenty years or less, and benefits 
exceed costs for all latency periods for all higher PELs.
    Incremental costs and benefits are those that are associated with 
increasing stringency of the standard. Comparison of incremental 
benefits and costs provides an indication of the relative efficiency of 
the various PELs. OSHA cannot use this information in selecting a PEL, 
but it has conducted these calculations for informational purposes. 
Incremental costs, benefits, net benefits and cost per cancer avoided 
are presented in Table VIII-13.
    In addition to examining alternative PELs, OSHA also examined 
alternatives to other provisions of the standard. These alternatives 
are discussed in the summary of the Final Regulatory Flexibility 
Analysis in the next section.

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G. Summary of the Final Regulatory Flexibility Analysis

    The full final regulatory flexibility analysis is presented in 
Chapter VII of the FEA. Many of the topics discussed there, such as the 
legal authority for the rule; the reasons OSHA is going forward with 
the rule; and economic impacts on small business have been presented in 
detail elsewhere in the Preamble. As a result, this section focuses on 
two issues: duplicative, overlapping, or conflicting rules; and 
alternatives OSHA considered.

Federal Rules That May Duplicate, Overlap, or Conflict With the Final 
Rules

    OSHA's SBREFA panel for this rule suggested that OSHA address a 
number of possible overlapping or conflicting rules: EPA's Maximum 
Achievable Control Technology (MACT) standard for chromium 
electroplaters; EPA's standards under the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA) for Chromium Copper Arsenate 
(CCA) applicators; and state use of OSHA PELs for setting fence line 
air quality standards. The Panel was also concerned that, in some 
cases, other OSHA standards might overlap and be sufficient to assure 
that a new final standard would not be needed, or that some of the 
final standard's provisions might not be needed.
    OSHA has thoroughly studied the provisions of EPA's MACT standard 
and has also consulted with EPA. The standards are neither duplicative 
nor conflicting. The rules are not duplicative because they have 
different goals--environmental protection and protection against 
occupation exposure. It is quite possible, as many electroplaters are 
now doing, to achieve environmental protection goals without achieving 
occupational protection goals. The regulations are not conflicting 
because there exist controls that can achieve both goals without 
interfering with one another. However, it is possible that meeting the 
final OSHA standard would cause someone to incur additional costs for 
the MACT standard. If an employer has to make major changes to install 
LEV, this could result in significant expenses to meet EPA requirements 
not accounted for in OSHA's cost analysis. In its final cost estimates, 
OSHA has included costs for additional MACT testing in cases where it 
may be needed. OSHA has also allowed all facilities four years to 
install engineering controls, with the result that electroplaters can 
better coordinate their EPA and OSHA requirements and avoid the need 
for extra testing.
    OSHA examined the potential problem of overlapping jurisdiction for 
CCA applicators, and found that there would indeed be overlapping 
jurisdiction. As a result, OSHA had excluded CCA applicators from the 
scope of the coverage of the rule. OSHA has been unable to find a case 
where a state, as a matter of law, bases fence line standards on OSHA 
PELs. OSHA notes that the OSHA PEL is designed to address the risks 
associated with life long occupational exposure only.
    OSHA has also examined other OSHA standards, and where standards 
are overlapping, referred to them by reference in the final standard in 
order to eliminate the possibility of

[[Page 10310]]

overlapping, duplicative or conflicting standards. Existing OSHA 
standards that may duplicate the final provisions in some respect 
include the standards addressing respiratory protection (29 CFR 
1910.134); hazard communication (29 CFR 1910.1200); access to medical 
and exposure records (29 CFR 1910.1020); general requirements for 
personal protective equipment in general industry (29 CFR 1910.132), 
construction (29 CFR 1926.95), and shipyards (29 CFR 1915.152); and 
sanitation in general industry (29 CFR 1910.141), construction (29 CFR 
1926.51), and shipyards (29 CFR 1915.97).

Regulatory Alternatives

    This section discusses various alternatives to the final standard 
that OSHA considered, with an emphasis on those suggested by the SBREFA 
Panel as potentially alleviating impacts on small firms. (A discussion 
on the costs of some of these alternatives to OSHA's final regulatory 
requirements for the hexavalent chromium standard can be found in 
Section III.3 Costs of Regulatory Alternatives in the final report by 
OSHA's contractor, Shaw (Shaw, 2006). In the Shaw report, costs are 
analyzed by regulatory alternative and major industry sector at 
discount rates of 7 percent and 3 percent.)
    Scope: The proposed standard covered exposure to all types of 
Cr(VI) compounds in general industry, construction, and shipyard. 
Cement work in construction was excluded.
    OSHA considered the Panel recommendation that sectors where there 
is little or no known exposure to Cr(VI) be excluded from the scope of 
the standard. OSHA decided against this option. The costs for such 
sectors are relatively small--probably even smaller than OSHA has 
estimated because OSHA did not assume that any industry would use 
objective data to demonstrate that initial assessment was not needed. 
However, it is possible that changes in technology and production 
processes could change the exposure of employees in what are currently 
low exposure industries. If this happens, OSHA would need to issue a 
new standard to address the situation. As a result, OSHA is reluctant 
to exempt industries from the scope of the standard.
    However, OSHA has rewritten the scope of the standard for the final 
rule so that it exempts from the scope of the standard any employer who 
can demonstrate that a material containing Cr(VI) or a specific 
process, operation, or activity involving Cr(VI) will not result in 
concentrations at or above 0.5 [mu]g/m\3\ under any condition of use. 
As a result, industries are exempted from all provisions of the 
standard and all costs if the industry can demonstrate that exposure is 
always at relatively low levels. This approach seems the best way to 
minimize the costs for the standard for industries where exposure is 
currently minimal, but could change in the future.
    As stated above, the final standard does not cover exposures to 
hexavalent chromium resulting solely from exposure to portland cement. 
OSHA's assessment of the data indicates that the primary exposure to 
cement workers is dermal contact that can lead to irritant or contact 
allergic dermatitis. Current information indicates that the exposures 
in cement work are well below 0.25 [mu]g/m\3\. Moreover, unlike other 
exposures in construction, general industry or shipyards, exposures 
from cement are most likely to be solely from dermal contact. There is 
little potential for airborne exposures and unlikely to be any in the 
future, as Cr(VI) appears in cement in only minute quantities 
naturally. Given these factors, the final standard excludes cement from 
the scope of the standard. OSHA has determined that addressing the 
dermal hazards from these exposures to Cr(VI) through guidance 
materials and enforcement of existing personal protective equipment and 
hygiene standards may be a more effective approach. Such guidance 
materials would include recommendations for specific work practices and 
personal protective equipment for cement work in construction.
    OSHA's analysis suggests that there are 2,093 to 10,463 cases of 
dermatitis among cement workers annually. Using a cost of illness (COI) 
approach, avoiding 95 percent of these dermatoses would be valued at 
$2.5 million to $12.6 million annually, and avoiding 50 percent of 
these dermatoses would be valued $1.3 million to $6.6 million annually.
    The costs of including cement would depend on what requirements 
were applied to wet cement workers. OSHA estimates that the costs 
associated with existing standards (e.g., requirements for PPE and 
hygiene practices) could range from $80 million to $300 million per 
year. Placing wet cement within the scope of the standard would cost an 
additional $33 million per year for compliance with such provisions as 
initial monitoring; those costs would be incurred even if the employer 
has no airborne exposures.
    PELS: Section F of this preamble summary presented data on the 
costs and benefits of alternative PELS for all industries. The full FEA 
contains detailed data on the impacts on small firms at each PEL.
    The SBREFA Panel also suggested alternatives to a uniform PEL 
across all industries and exposures. The Panel recommended that OSHA 
consider alternative approaches to industries that are intermittent 
users of Cr(VI). OSHA has adopted the concept of permitting employers 
with intermittent exposures to meet the requirements of the standard 
using respirators rather than engineering controls. This approach has 
been used in other standards and does not require workers to routinely 
wear respirators.
    The SBREFA Panel also recommended considering Separate Engineering 
Control Airborne Limits (SECALs). OSHA has adopted this approach for 
applications in the aerospace industry. OSHA considered a SECAL for 
electroplating when the Agency was considering setting PELs lower than 
5, but found a SECAL would not significantly lower costs because 
respirator use would be almost as expensive as using engineering 
controls. The expense of respirator use would also be a problem with 
SECALs for this sector at any PEL. OSHA's reasons for not using the 
SECAL approach in other sectors are provided in the Summary and 
Explanation. The SBREFA Panel also suggested that OSHA consider 
different PELs for different Cr(VI) compounds leading to exposure to 
Cr(VI). This issue is fully discussed in VI. Quantitative Risk 
Assessment. Here, it will only be noted that this would result in lower 
PELs than OSHA is setting in at least some industries, and thus 
potentially increase impacts on some small businesses.
    Special Approaches to the Shipyard and Construction Industries: The 
SBREFA Panel was concerned that changing work conditions in the 
shipyard and construction industry would make it difficult to apply 
some of the provisions that OSHA suggested at the time of the Panel. 
OSHA has decided to change its approach in these sectors. OSHA is 
proposing three separate standards, one for general industry, one for 
construction, and one for shipyards. OSHA initially proposed that, in 
shipyards and construction, medical surveillance would be required only 
for persons with signs and symptoms, and regulated areas would not be 
required. In the final standard, OSHA has provided for the same medical 
surveillance standard in all sectors. The reasons for doing this are 
discussed in the Summary and Explanation section of the Preamble. 
However, employers must still meet the PEL with engineering controls 
and work practices where feasible. OSHA's

[[Page 10311]]

proposed rule did not require exposure monitoring in the construction 
and maritime sectors. In light of comments, OSHA has shifted from this 
approach to requiring all sectors to conduct exposure monitoring, but 
allowing a performance-oriented option to exposure monitoring.
    Timing of the Standard: The SBREFA Panel also recommended 
considering a multi-year phase-in of the standard. OSHA has solicited 
comment and examined the comments on this issue. OSHA has decided to 
allow employers four years (rather than two years) to comply with the 
engineering control provisions of the standard. This expanded phase-in 
of engineering controls has several advantages from a viewpoint of 
impacts on small businesses. First, it reduces the one-time initial 
costs of the standard by spreading them out over time. This would be 
particularly useful for small businesses that have trouble borrowing 
large amounts of capital in a single year. A phase-in is also useful in 
the electroplating sector by allowing employers to coordinate their 
environmental and occupational safety and health control strategies to 
minimize potential costs. See the Summary and Explanation section of 
this Preamble for further discussion of this issue.

SBREFA Panel

    Table VIII-14 lists all of the SBREFA Panel recommendations and 
notes OSHA responses to these recommendations.
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BILLING CODE 5410-26-C

H. Need for Regulation

    Employees in work environments addressed by the final standards are 
exposed to a variety of significant hazards that can and do cause 
serious injury and death. The risks to employees are excessively large 
due to the existence of market failures, and existing and alternative 
methods of alleviating these negative consequences have been shown to 
be insufficient. After carefully weighing the various potential 
advantages and disadvantages of using a regulatory approach to improve 
upon the current situation, OSHA concludes that in this case the final 
mandatory standards represent the best choice for reducing the risks to 
employees. In addition, rulemaking is necessary in this case in order 
to replace older existing standards with updated, clear, and consistent 
health standards.

IX. OMB Review Under the Paperwork Reduction Act of 1995

    The final Cr(VI) rule contains collection of information 
(paperwork) requirements that are subject to review by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995 
(PRA-95), 44 U.S.C. 3501 et seq., and OMB's regulations at 5 CFR part 
1320. The Paperwork Reduction Act defines ``collection of information'' 
as ``the obtaining, causing to be obtained, soliciting, or requiring 
the disclosure to third parties or the public of facts or opinions by 
or for an agency regardless of form or format * * * '' (44 U.S.C. 
3502(3)(A)). The collection of information requirements (paperwork) 
associated with the proposed Cr(VI) rule were submitted to OMB on 
October 1, 2004. On November 30, 2004 OMB did not approve the Cr(VI) 
paperwork requirements, and instructed OSHA to examine ``public comment 
in response to the NPRM, including paperwork requirements,'' and 
address any public comments on the paperwork in the preamble. OMB assigned 
the control number 1218-0252 for the Agency to use in future submissions.
    The major information collection requirements in the Standard 
include conducting employee exposure assessment (Sec. Sec.  1910.1026 
(d)(1)-(3), 1915.1026 (d)(1)-(3), and 1926.1126 (d)(1)-(3)), notifying 
employees of their Cr(VI)exposures when employee exposures exceed the 
PEL (Sec. Sec.  1910.1026 (d)(4), 1915.1026 (d)(4), and 1926.1126 
(d)(4)), providing respiratory protection (Sec. Sec.  1910.1026 (g), 
1915.1026 (f), and 1926.1126 (f)), labeling bags or containers of 
contaminated protective clothing or equipment (Sec. Sec.  1910.1026 
(h)(2), 1915.1026 (g)(2), and 1926.1126 (g)(2)), informing persons who 
launder or cleans protective clothing or equipment contaminated with 
Cr(VI) of the potential harmful effects (Sec. Sec.  1910.1026 (h)(3), 
1915.1026 (g)(3), and 1926.1126 (g)(3)), implementing medical-
surveillance of employees (Sec. Sec.  1910.1026 (k), 1915.1026 (i), and 
1926.1126 (i)), providing physician or other licensed health care 
professional (PLHCP) with information (Sec. Sec.  1910.1026 (k)(4), 
1915.1026 (i)(4), and 1926.1126 (i)(4)), ensuring that employees 
receive a copy of their medical-surveillance results (Sec. Sec.  
1910.1026 (k)(5), 1915.1026 (i)(5), and 1926.1126 (i)(5)), maintaining 
employees' exposure-monitoring and medical-surveillance records for 
specific periods, and maintaining historical monitoring and objective 
data (Sec. Sec.  1910.1026 (m), 1915.1026 (k), and 1926.1126 (k)). The 
collection of information requirements in the rule are needed to assist 
employers in identifying and controlling exposures to Cr(VI) in the 
workplace, and to address Cr(VI)-related adverse health effects. OSHA 
will also use records developed in response to this standard to 
determine compliance.
    The final rule imposes new information collection requirements for 
purposes of the PRA. In response to comments on the proposed rule, OSHA 
has revised provisions of the final rule that affect collection of 
information requirements. These revisions include:
    ? The final rule exempts exposures to portland cement in 
general industry and shipyards;
    ? An exemption is included in the final rule where the 
employer can demonstrate that Cr(VI) exposures will not exceed 0.5 
[mu]g/m\3\ under any expected conditions;

[[Page 10326]]

    ? The final PEL of 5 [mu]g/m\3\ has been revised from the 
proposed 1 [mu]g/m\3\;
    ? Requirements for exposure determination have been added to 
the construction and shipyard standards, and a performance-oriented 
option for exposure determination is included in the standards for each 
sector (general industry, construction, and shipyards);
    ? Medical surveillance must be provided to employees exposed 
to Cr(VI) above the action level (rather than the PEL) for 30 or more 
days per year in general industry, construction, and shipyards;
    ? Requirements to maintain records used for exposure 
determination have been added to the construction and shipyard 
standards, while requirements for training records have been removed 
for all sectors.
    OSHA has revised the paperwork package to reflect these changes, 
and estimates the total burden hours associated with the collection of 
information to be approximately 940,000 and estimates the cost for 
maintenance and operation to be approximately $126 million.
    Potential respondents are not required to comply with the 
information collection requirements until they have been approved by 
OMB. OMB is currently reviewing OSHA's request for approval of the 
final rule's paperwork requirements. OSHA will publish a subsequent 
Federal Register document when OMB takes further action on the 
information collection requirements in the Cr(VI) rule.

X. Federalism

    The Agency reviewed the final Cr(VI) standard according to the most 
recent Executive Order on Federalism (Executive Order 13132, 64 FR 
43225, August 10, 1999). This Executive Order requires that federal 
agencies, to the extent possible, refrain from limiting state policy 
options, consult with states before taking actions that restrict their 
policy options, and take such actions only when clear constitutional 
authority exists and the problem is of national scope. The Executive 
Order allows federal agencies to preempt state law only with the 
expressed consent of Congress; in such cases, federal agencies must 
limit preemption of state law to the extent possible. Under section 18 
of the Occupational Safety and Health Act (the ``Act'' or ``OSH Act''), 
Congress expressly provides that OSHA preempt state occupational safety 
and health standards to the extent that the Agency promulgates a 
federal standard under section 6 of the Act. Accordingly, under section 
18 of the Act OSHA preempts state promulgation and enforcement of 
requirements dealing with occupational safety and health issues covered 
by OSHA standards unless the state has an OSHA approved occupational 
safety and health plan (i.e., is a state-plan state) [see Gade v. 
National Solid Wastes Management Association, 112 S. Ct. 2374 (1992)]. 
Therefore, with respect to states that do not have OSHA-approved plans, 
the Agency concludes that this final rule falls under the preemption 
provisions of the Act. Additionally, section 18 of the Act prohibits 
states without approved plans from issuing citations for violations of 
OSHA standards; the Agency finds that this final rulemaking does not 
expand this limitation. OSHA has authority under Executive Order 13132 
to promulgate a Cr(VI) standard because the problems addressed by these 
requirements are national in scope.
    As explained in section VII of this preamble, employees face a 
significant risk from exposure to Cr(VI) in the workplace. These 
employees are exposed to Cr(VI) in general industry, construction, and 
shipyards. Accordingly, the final rule would establish requirements for 
employers in every state to protect their employees from the risks of 
exposure to Cr(VI). However, section 18(c)(2) of the Act permits state-
plan states to develop their own requirements to deal with any special 
workplace problems or conditions, provided these requirements are at 
least as effective as the requirements in this final rule.

XI. State Plans

    The 26 states and territories with their own OSHA-approved 
occupational safety and health plans must adopt comparable provisions 
within six months of the publication date of the final hexavalent 
chromium standard. These states and territories are: Alaska, Arizona, 
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, 
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, 
South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, 
Washington, and Wyoming. Connecticut, New Jersey and New York have OSHA 
approved State Plans that apply to state and local government employees 
only. Until a state-plan state promulgates its own comparable 
provisions, Federal OSHA will provide the state with interim 
enforcement assistance, as appropriate.

XII. Unfunded Mandates

    The Agency reviewed the final Cr(VI) standard according to the 
Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and 
Executive Order 12875. As discussed in section VIII of this preamble, 
OSHA estimates that compliance with this final rule would require 
private-sector employers to expend about $288 million each year. 
However, while this final rule establishes a federal mandate in the 
private sector, it is not a significant regulatory action within the 
meaning of section 202 of the UMRA (2 U.S.C. 1532). OSHA standards do 
not apply to state and local governments, except in states that have 
voluntarily elected to adopt an OSHA-approved state occupational safety 
and health plan. Consequently, the provisions of the final rule do not 
meet the definition of a ``Federal intergovernmental mandate'' [see 
section 421(5) of the UMRA (2 U.S.C. 658(5))]. Therefore, based on a 
review of the rulemaking record, the Agency believes that few, if any, 
of the employers affected by the final rule are state, local, or tribal 
governments. Therefore, the Cr(VI) requirements promulgated herein do 
not impose unfunded mandates on state, local, or tribal governments.

XIII. Protecting Children From Environmental Health and Safety Risks

    Executive Order 13045 requires that Federal agencies submitting 
covered regulatory actions to OMB's Office of Information and 
Regulatory Affairs (OIRA) for review pursuant to Executive Order 12866 
must provide OIRA with (1) an evaluation of the environmental health or 
safety effects that the planned regulation may have on children, and 
(2) an explanation of why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the agency. Executive Order 13045 defines ``covered regulatory 
actions'' as rules that may (1) be economically significant under 
Executive Order 12866 (i.e., a rulemaking that has an annual effect on 
the economy of $100 million or more, or would adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities, and (2) concern an 
environmental health risk or safety risk that an agency has reason to 
believe may disproportionately affect children. In this context, the 
term ``environmental health risks and safety risks'' means risks to 
health or safety that are attributable to products or substances that 
children are likely to come in contact with or ingest (e.g., through 
air, food, water, soil, product use). The final Cr(VI) standard is 
economically significant under Executive Order 12866 (see section VIII 
of this preamble). However, after reviewing the final

[[Page 10327]]

Cr(VI) standard, OSHA has determined that the standard would not impose 
environmental health or safety risks to children as set forth in 
Executive Order 13045. The final standard requires employers to limit 
employee exposure to Cr(VI) and take other precautions to protect 
employees from adverse health effects associated with exposure to 
Cr(VI). To the best of OSHA's knowledge, no employees under 18 years of 
age work under conditions that involve exposure to Cr(VI). However, if 
such conditions exist, children who are exposed to Cr(VI) in the 
workplace would be better protected from exposure to Cr(VI) under the 
final rule than they are currently. Based on this determination, OSHA 
believes that the final Cr(VI) standard does not constitute a covered 
regulatory action as defined by Executive Order 13045.

XIV. Environmental Impacts

    The Agency reviewed the final Cr(VI) standard according to the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.), the regulations of the Council on Environmental Quality (40 CFR 
part 1500), and the Department of Labor's NEPA procedures (29 CFR part 11).
    As a result of this review, OSHA has made a final determination 
that the final Cr(VI) standard will have no impact on air, water, or 
soil quality; plant or animal life; the use of land or aspects of the 
external environment. Therefore, OSHA concludes that the final Cr(VI) 
standard will have no significant environmental impacts.

XV. Summary and Explanation of the Standards

(a) Scope
    OSHA is issuing separate standards addressing hexavalent chromium 
(also referred to as chromium (VI) or Cr(VI)) exposure in general 
industry, construction, and shipyards. The standard for shipyards also 
applies to marine terminals and longshoring. The standards for 
construction and shipyards are very similar to each other, but differ 
in some respects from the standard for general industry. OSHA believes 
that certain conditions in these two sectors warrant requirements that 
are somewhat different than those that apply to general industry. This 
summary and explanation will describe the final rule for general 
industry and will note differences between it and the standards for 
construction and shipyards.
    Commenters were generally supportive of OSHA's decision to propose 
separate standards for general industry, construction, and shipyards 
(e.g., Exs. 38-199-1; 38-212; 38-214; 38-220-1; 38-236; 38-244; 39-19), 
although one commenter believed that a single standard should apply to 
all sectors (Ex. 39-51). Where concerns were expressed about the 
establishment of separate standards, they focused on the provisions of 
the standards and their application, rather than the concept of 
establishing separate standards. Some commenters argued that certain 
activities or industries should be covered by the construction standard 
rather than the general industry standard (e.g., Exs. 38-203; 38-228-1, 
p. 18; 39-52-2; 39-56); others considered the proposed construction and 
shipyard standards to be less protective than the proposed general 
industry standard (Exs. 38-222; 39-71; 47-23, pp. 16-17; 47-28).
    OSHA has long recognized a distinction between the construction and 
general industry sectors, and has issued standards specifically 
applicable to construction work under 29 CFR Part 1926. The Agency has 
provided a definition of the term ``construction work'' at 29 CFR 
1910.12(b), has explained the terms used in that definition at 29 CFR 
1926.13, and has issued numerous interpretations over the years 
explaining the classification of activities as either general industry 
or construction. OSHA recognizes that in some circumstances, general 
industry activities and conditions in workplaces where general industry 
tasks are performed may be comparable to those found in construction. 
However, the Agency believes the longstanding delineation between 
sectors is appropriate. The distinction between sectors is generally 
well understood by both OSHA enforcement personnel and the regulated 
community, and any attempt to create exceptions or to provide different 
criteria in this final rule would not improve upon the current criteria 
but would rather cause confusion.
    OSHA is issuing the construction and shipyard standards to account 
for the particular conditions found in those sectors. The Agency 
intends to ensure that Cr(VI)-exposed workers in construction and 
shipyards are provided protection that, to the extent feasible, is 
comparable to the protection afforded workers in general industry. OSHA 
believes that concerns raised about differences between the Cr(VI) 
proposed standard for general industry and the proposed standards for 
construction and shipyards will be lessened because the final standards 
are more consistent with one another than as originally proposed. 
Specifically, OSHA proposed explicit exposure assessment requirements 
for general industry, but not for construction and shipyard workplaces. 
The requirements of the final rule for exposure determination are 
nearly identical for all sectors (see discussion of exposure 
determination under paragraph (d) of this section). In addition, OSHA 
proposed a requirement for periodic medical examinations in general 
industry, but not in construction and shipyards. The final rule 
includes requirements for periodic medical examinations in all sectors 
(see discussion of medical surveillance requirements under paragraph 
(k) of this section). The final standards for construction and 
shipyards provide the most adequate protection within the constraints 
of feasibility.
    The final rule applies to occupational exposures to Cr(VI), that 
is, any chromium species with a valence of positive six, regardless of 
form or compound. Examples of Cr(VI) compounds include chromium oxide 
(CrO₂), ammonium dichromate ((NH₄)₂Cr₂O₇), calcium 
chromate (CaCrO₄), chromium trioxide (CrO₃), lead chromate (PbCrO₄), 
potassium chromate (K₂CrO₄), potassium dichromate 
(K₂Cr₂O₇), sodium chromate (Na₂CrO₄), strontium chromate 
(SrCrO₄), and zinc chromate (ZnCrO₄).
    Some commenters supported the proposal to include all chromium 
compounds within the scope of the new rule. (See, e.g., Exs. 38-214; 
39-60). Other commenters, however, contended that specific Cr(VI) 
compounds should be excluded from the scope of the final rule. Notably, 
the Color Pigments Manufacturers Association and Dominion Colour 
Corporation argued that differences in the bioavailability and toxicity 
of lead chromate pigments when compared to other Cr(VI) compounds 
warrant unique treatment (Exs. 38-201; 38-205). The Boeing Company also 
argued that OSHA should consider the bioavailability of different 
Cr(VI) compounds (Ex. 38-106). Boeing indicated that exposures to 
strontium chromate and zinc chromate used in aerospace manufacturing 
are not equivalent to Cr(VI) exposures in other industries.
    OSHA considers all Cr(VI) compounds to be carcinogenic. This 
conclusion is based upon careful consideration of the epidemiological, 
animal, and mechanistic evidence in the rulemaking record, and is 
discussed in section V, ``Health Effects,'' of this preamble. OSHA's 
conclusion that all Cr(VI) compounds are carcinogenic is consistent 
with the findings of IARC, NTP, and NIOSH. These organizations have 
each found Cr(VI) compounds to

[[Page 10328]]

be carcinogenic, without exception. OSHA therefore sees no reason to 
exempt any Cr(VI) compounds from the final rule.
    Several commenters argued that existing standards provide adequate 
protection for employees exposed to Cr(VI), citing in particular OSHA's 
current welding and lead standards (Exs. 38-203; 38-254; 38-124; 39-19; 
39-47; 39-48; 39-52, p. 22; 39-54; 39-56). However, none of these 
standards provide the full range of protections afforded by the Cr(VI) 
rule. For example, OSHA's welding requirements (29 CFR Subpart Q for 
general industry; 1926 Subpart J for construction; 1915 Subpart D for 
shipyards) include provisions for ventilation, but do not address other 
aspects of worker protection included in the Cr(VI) rule such as 
exposure determination or medical surveillance. OSHA's lead standards 
(29 CFR 1910.1025 for general industry; 29 CFR 1926.62 for 
construction) have a PEL of 50 [mu]g/m\3\, which effectively limits 
Cr(VI) exposure from lead chromate to 12.5 [mu]g/m\3\; however, this 
value is more than double the PEL in the Cr(VI) rule. Other standards 
therefore do not provide protection equivalent to the final Cr(VI) 
rule. Moreover, even though other requirements may affect Cr(VI) 
occupational exposure, Cr(VI) exposure in the current workplace still 
results in a significant risk that can be substantially reduced in a 
feasible manner by the requirements of this final rule.

Portland Cement

    The final rule does not cover exposure to Cr(VI) in portland 
cement. OSHA proposed to exclude exposure to portland cement in 
construction; the final rule extends this exclusion to all sectors. In 
the proposal, OSHA identified two general industry application groups 
where all employee exposure to Cr(VI) is from portland cement: Portland 
Cement Producers and Precast Concrete Products. (A third application 
group, Ready-Mixed Concrete, was later identified.) OSHA proposed to 
cover exposures to portland cement in general industry because the 
Agency's preliminary exposure profile indicated that some employees in 
these application groups were exposed to Cr(VI) levels associated with 
a significant risk of lung cancer. However, evidence in the record 
indicating the low Cr(VI) content of portland cement has led OSHA to 
conclude that the current PEL for portland cement effectively limits 
inhalation exposures from work with portland cement.
    Cement ingredients (clay, gypsum, and chalk), chrome steel grinders 
used to crush ingredients, refractory bricks lining the cement kiln, 
and ash may serve as sources of chromium that may be converted to 
Cr(VI) during kiln heating, leaving trace amounts of Cr(VI) in the 
finished product (Ex. 35-317, p. 148). The amount of Cr(VI) in American 
portland cement is generally less than 20 g Cr(VI)/g cement (Exs. 9-57; 
9-22; 35-417). Because the Cr(VI) concentration in portland cement is 
so low, OSHA's current PEL for portland cement (15 mg/m\3\ for total 
dust, 29 CFR 1910.1000) effectively limits the Cr(VI) inhalation 
exposure from cement to levels below the new Cr(VI) PEL and Action 
Level (i.e., if an employee is exposed at the PEL for portland cement 
and the Cr(VI) concentration in that cement is below 20 [mu]g/g, the 
employee's exposure to Cr(VI) will be below 0.3 [mu]g/m\3\ ). Because 
the evidence in the record demonstrates that current requirements for 
portland cement are as protective as the new PEL with regard to Cr(VI) 
inhalation exposures, OSHA considers it reasonable to exclude portland 
cement from the scope of the final rule. This position was supported by 
a number of commenters (e.g., Exs. 38-127; 38-217; 38-227; 38-229; 38-235).
    A number of other commenters, including over 200 laborers, 
requested that portland cement be covered under the scope of the final 
rule (e.g., Exs. 38-10; 38-35; 38-50; 38-110; 38-222). These comments 
generally, but not exclusively, focused on dermal hazards associated 
with exposure to portland cement. For example, the Building and 
Construction Trades Department, AFL-CIO (BCTD) stated:

    To provide construction employees with protection from 
predictable exposures to hexavalent chromium, the construction 
standard must include portland cement within its scope. Portland 
cement represents both a dermal and inhalation hazard in 
construction, and reduction of exposures would greatly benefit 
construction employees (Ex. 38-219).

    Commenters favoring coverage of portland cement in the final rule 
argued that a number of the proposal's provisions would serve to 
protect cement workers, such as requirements for appropriate protective 
clothing (Exs. 47-26, pp. 26-27; 35-332, pp. 22-23; 40-4-2, p. 20), 
hygiene facilities (particularly washing facilities)(Exs. 38-219-1, p. 
14; 47-26, pp. 26-27; 35-332, p. 19; 40-4-2, p. 19), and training and 
education (Exs. 47-26, pp. 26-27; 35-332, p. 19; 40-4-2, p. 19). Some 
commenters also favored medical surveillance requirements for workers 
exposed to portland cement (38-219-1, p. 18; 47-26, pp. 26-27) and 
requirements to reduce the Cr(VI) content of portland cement through 
the addition of ferrous sulfate (Exs. 38-199-1, p. 43; 38-219-1, p. 14-
15; 38-222; 35-332, p. 23-24). Some noted that OSHA's Advisory 
Committee on Construction Safety and Health had recommended that the 
Agency apply certain provisions of the Cr(VI) rule to portland cement 
exposures in construction (Ex. 38-199-1, p. 30).
    The primary intent of this rule is to protect workers from lung 
cancer resulting from inhalation of Cr(VI). The Agency has established 
that exposure to Cr(VI) at the previous PEL results in a significant 
risk of lung cancer among exposed workers, and compliance with the new 
PEL will substantially reduce that risk. As indicated previously, the 
existing PEL for portland cement protects employees against inhalation 
of Cr(VI) that is present in portland cement as a trace contaminant. 
Therefore, OSHA does not believe further requirements addressing 
inhalation exposure to Cr(VI) in portland cement are warranted.
    The Agency does recognize, however, that in addition to respiratory 
effects resulting from Cr(VI) inhalation, Cr(VI) is also capable of 
causing serious dermal effects (see discussion in section V of this 
preamble). In previous chemical-specific health standards, OSHA 
typically has addressed serious health effects associated with exposure 
to a chemical, even if those effects are not the focus of the rule. For 
example, OSHA issued a standard for cadmium primarily based on lung 
cancer and kidney damage associated with inhalation exposures to 
cadmium; however, contact with cadmium can also cause irritation of the 
skin and OSHA included a provision in the final cadmium rule addressing 
protective clothing and equipment to prevent skin irritation. OSHA has 
followed a similar approach in the Cr(VI) rule, incorporating 
provisions for protective clothing and equipment that will address 
potential dermal hazards, and including consideration of dermal effects 
in medical surveillance requirements. The Agency believes this is a 
reasonable approach to protecting workers when a chemical causes a 
variety of adverse health effects.
    The dermal hazards from contact with portland cement, however, are 
not related solely to the Cr(VI) content of cement. Portland cement is 
alkaline, abrasive, and hygroscopic (water-absorbing). Cement 
dermatitis may be irritant contact dermatitis induced by these 
properties, allergic contact dermatitis elicited by an immunological 
reaction to Cr(VI), or a combination of the two (Exs. 35-317; 46-74). 
Although

[[Page 10329]]

reports vary, the weight of the evidence indicates that the vast 
majority of cement dermatitis cases do not involve Cr(VI) sensitization 
(Ex. 46-74). Dermatitis associated with exposure to portland cement is 
thus substantially, perhaps even primarily, related to factors other 
than Cr(VI) exposure.
    Moreover, OSHA believes that appropriate requirements are already 
in place elsewhere in OSHA standards, to protect workers from dermal 
effects associated with exposure to portland cement. The Agency has 
existing requirements for the provision and use of personal protective 
equipment (PPE) (29 CFR 1910.132 for general industry; 29 CFR 1915.152 
for shipyards; 29 CFR 1926.95 for construction). These requirements are 
essentially equivalent to the requirements of the final Cr(VI) rule 
with respect to provision of protective clothing and equipment.
    OSHA also has existing requirements for washing facilities that are 
comparable to those found in the final Cr(VI) rule (29 CFR 1910.141(d) 
for general industry and shipyards; 29 CFR 1926.51(f) for 
construction). For example, in operations where contaminants may be 
harmful to employees, the Sanitation standard for construction requires 
employers to provide adequate washing facilities in near proximity to 
the worksite. With only limited exceptions for mobile crews and 
normally unattended worksites, lavatories with running water, hand soap 
or similar cleansing agents, and towels or warm air blowers must be 
made available in all places of employment covered by the standard. The 
Sanitation requirements that apply to general industry and shipyards 
provide equivalent protections.
    OSHA's Hazard Communication standard (29 CFR 1910.1200) requires 
training for all employees potentially exposed to hazardous chemicals, 
including mixtures such as portland cement. This training must cover 
the physical and health hazards of the chemicals and measures employees 
can take to protect themselves from these hazards, such as appropriate 
work practices, emergency procedures, and personal protective equipment 
to be used.
    Concerns raised in the record with regard to protective clothing, 
washing facilities, and training on cement dermatitis hazards appear to 
relate to lack of compliance with these existing requirements, rather 
than any inadequacy in the requirements themselves. For example, BCTD 
representatives indicated that in spite of current requirements, 
washing facilities are rarely provided on construction sites (Tr. 1464, 
1470-1471, 1474, 1479-1480). By covering portland cement in the final 
Cr(VI) rule, BCTD argued that compliance would improve (Tr. 1519-1522).
    OSHA recognizes that reiterating the requirements of generic rules 
such as the Sanitation standard in a chemical-specific standard like 
the Cr(VI) rule can be useful in some instances by providing employers 
with a comprehensive reference of applicable requirements. However, the 
Agency does not consider the Code of Federal Regulations to be the best 
tool for raising awareness about existing standards. Rather, OSHA 
believes guidance documents, compliance assistance efforts, and 
enforcement of existing requirements are the best mechanisms for 
accomplishing this objective.
    Some commenters argued that requirements not included in the 
generic standards were needed to protect employees working with 
portland cement. The International Brotherhood of Teamsters (IBT) 
stated that absent coverage under the standard, portland cement workers 
would be responsible for purchasing and maintaining their own PPE. If 
there is no requirement for an employer to purchase and provide 
required PPE, IBT argued, most employees would elect not to purchase it 
(Ex. 38-199-1, p. 30). Of course many employers choose to pay for the 
PPE so that they can be sure of its effectiveness. The important 
factors are that the PPE must be suitable for the job and must be used 
correctly. Moreover, even when employees provide their own protective 
equipment, OSHA's PPE standards specify that the employer is 
responsible for ensuring its adequacy, including proper maintenance and 
sanitation (see 29 CFR 1910.132(b); 29 CFR 1926.95(b)).
    Other commenters believed that medical surveillance was needed for 
employees exposed to portland cement (Exs. 38-219-1, p. 18; 47-26, pp. 
26-27). However, irritant contact dermatitis and allergic contact 
dermatitis present the same clinical appearance, and it is difficult to 
determine if an employee with dermatitis is sensitized to Cr(VI). 
Because cement dermatitis is often related to the irritant properties 
of cement rather than Cr(VI), medical surveillance requirements for 
portland cement would necessarily involve covering health effects not 
solely, or even primarily, attributable to Cr(VI) exposure. OSHA 
therefore does not consider a requirement for medical surveillance for 
portland cement workers to be appropriate within the context of the 
Cr(VI) rule.

Ferrous Sulfate

    Finally, some commenters suggested it would be appropriate to 
require the addition of ferrous sulfate to portland cement (Exs. 38-
199-1, p. 43; 38-219-1, pp. 14-15; 38-222; 35-332, pp. 23-24; 47-26, p. 
8). Cr(VI) concentrations in portland cement can be lowered by the 
addition of ferrous sulfate, which reduces Cr(VI) to Cr(III). Residual 
Cr(VI) concentrations of less than 2 ppm are typical. As discussed in 
section V of this preamble, reports from two researchers suggest that 
the addition of ferrous sulfate to cement in Scandinavian countries 
reduces the incidence of Cr(VI)-related allergic contact dermatitis in 
cement workers (Exs. 9-131; 48-8).
    It is reasonable to believe that a reduction in the Cr(VI) 
concentration of portland cement would reduce the potential for Cr(VI)-
induced allergic contact dermatitis. However, the lack of available 
information regarding a dose-response relationship between Cr(VI) 
exposure and allergic contact dermatitis makes it impossible to 
estimate how substantial that reduction might be. For instance, a 
portion of cement samples already have relatively low Cr(VI) 
concentrations. Analyses of 42 samples of American portland cement 
reported by Perone et al. indicated that 33 of the samples had Cr(VI) 
concentrations below 2 ppm (Ex. 9-57); the benefit of adding ferrous 
sulfate to cement with already low Cr(VI) concentrations is unclear.
    Moreover, it is not clear that the addition of ferrous sulfate to 
cement would be successful in reducing Cr(VI) to Cr(III) under 
conditions found in the U.S. Attempts in the U.S. to reduce Cr(VI) in 
cement to Cr(III) with ferrous sulfate have been unsuccessful, due to 
oxidation of the ferrous sulfate in the production process (Ex. 35-
417). Methods used to handle and store cement have also been shown to 
influence the effectiveness of ferrous sulfate in reducing Cr(VI). When 
cement is exposed to moisture during storage, the ferrous sulfate in it 
is likely to be oxidized, and as a result, the Cr(VI) will not be 
reduced to Cr(III) when the cement is mixed with water (Ex. 9-91). 
Handling and storage of cement in silos can have this effect (Tr. 
1363). Because a substantial amount of cement in the U.S. is produced 
in winter and stored for use during warmer weather, ferrous sulfate 
added to the cement at the time of production could be oxidized during 
that time, rendering it ineffective (Tr. 1363).
    Considering this evidence, OSHA does not believe the record 
demonstrates that the addition of

[[Page 10330]]

ferrous sulfate to portland cement in the U.S. would necessarily result 
in a reduction in the incidence of Cr(VI)-induced allergic contact 
dermatitis. Therefore, OSHA does not believe that requiring the 
addition of ferrous sulfate to cement is warranted.
    In any event, even if ferrous sulfate was completely effective in 
eliminating the potential for Cr(VI)-induced allergic contact 
dermatitis from portland cement, the potential for portland cement to 
induce irritant contact dermatitis would not be affected. (See section 
V(D) of this preamble for additional discussion.) Therefore, 
appropriate protective clothing, good hygiene practices, and training 
on hazards and control methods would still be necessary and these are 
adequately covered by OSHA's generic standards.

Pesticides

    The final rule does not cover exposures to Cr(VI) that occur in the 
application of pesticides. Some Cr(VI)-containing chemicals, such as 
chromated copper arsenate (CCA) and acid copper chromate (ACC), are 
used for wood treatment and are regulated by EPA as pesticides. Section 
4(b)(1) of the OSH Act precludes OSHA from regulating working 
conditions of employees where other Federal agencies exercise statutory 
authority to prescribe or enforce standards or regulations affecting 
occupational safety or health. Therefore, OSHA specifically excludes 
those exposures to Cr(VI) resulting from the application of a pesticide 
regulated by EPA from coverage under the final rule.
    The exception for exposures that occur in the application of 
pesticides was limited to the proposed standard for general industry. 
At the time, OSHA was not aware of exposures to Cr(VI) from application 
of pesticides in other sectors. Exposures to Cr(VI) from pesticide 
application outside of general industry were brought to OSHA's 
attention during the public comment period (Exs. 39-47, p. 9; 39-48, p. 
4; 39-52). This provision excluding coverage or exposures occurring in 
the application of pesticides has therefore been added to the standards 
for construction and shipyards as well.
    The exemption pertains to the application of pesticides only. The 
manufacture of pesticides containing Cr(VI) is not considered pesticide 
application, and is covered under the final rule. The use of wood 
treated with pesticides containing Cr(VI) is also covered. In this 
respect, the Cr(VI) standard differs from OSHA's Inorganic Arsenic 
standard (29 CFR 1910.1018). The Inorganic Arsenic standard explicitly 
exempts the use of wood treated with arsenic. When the Inorganic 
Arsenic standard was issued in 1978, OSHA found that the evidence in 
the record indicated ``the arsenic in the preserved wood is bound 
tightly to the wood sugars, exhibits substantial chemical differences 
from other pentavalent arsenicals after reaction, and appears not to 
leach out in substantial amounts'' (43 FR 19584, 19613 (5/5/78)). Based 
on the record in that rulemaking, OSHA did not consider it appropriate 
to regulate the use of preserved wood. A number of commenters argued 
that a similar exception should be included in the final rule for use 
of wood preserved with Cr(VI) compounds (Exs. 38-208; 38-231; 38-244; 
43-28). However, OSHA's exposure profile indicates that work with wood 
treated with pesticides containing Cr(VI) can involve Cr(VI) exposures 
above the new PEL (see FEA, Chapter III). OSHA therefore considers a 
blanket exception from the scope of the final rule for use of wood 
treated with Cr(VI) to be unjustified.

Other Requested Exemptions

    In addition to those who maintained that Cr(VI)-treated wood should 
be exempted from the final rule, a number of commenters requested 
exemptions from the final rule for other operations or industries 
(e.g., welding, electric utilities, Cr(VI) pigment production, 
residential construction, and telecommunications (Exs. 38-124; 38-203; 
38-205; 38-211; 38-230; 38-244; 38-254; 39-14; 39-15; 39-47; 47-25; 47-
37). OSHA does not believe that the evidence in the record supports a 
blanket exception from the final rule for these operations and 
industries. In no case have commenters submitted data demonstrating 
that the operations or industries for which an exception was requested 
do not involve exposures to Cr(VI) that present significant risk to the 
health of employees. Rather, the data presented in Chapter III of the 
FEA indicate that exposures in these sectors can and do involve 
exposures at levels that entail significant risk to workers, and may 
exceed the new PEL. OSHA therefore has not included exceptions for 
these operations or industries in the final rule.
    One commenter argued that the provisions of the standard, including 
the new PEL, should apply only where Cr(VI) exposures occur on more 
than 30 days per year (Ex. 38-233, pp. 43-44). However, exposures of 30 
or fewer days per year may involve cumulative exposures associated with 
significant risk of lung cancer. For example, if an employee was 
exposed to 50 [mu]g/m3 Cr(VI) for 30 days during a year, 
that employee s cumulative exposure for the year would exceed that of 
an employee exposed at the new PEL of 5 [mu]g/m3 working 
five days a week through the entire year. Therefore, OSHA does not 
believe such an exemption is appropriate because it would deny workers 
exposed to relatively high levels of Cr(VI) for 30 or fewer days per 
year the protections afforded by the Cr(VI) rule. The Agency does 
include exceptions from certain requirements of the rule for exposures 
occurring on fewer than 30 days per year (e.g., with regard to 
requirements for engineering controls and periodic medical 
surveillance). However, these exceptions are related to the practical 
aspects of implementing protective measures, and not to an absence of 
risk for exposures occurring on fewer than 30 days per year.
    Other commenters suggested that materials or substances containing 
trace amounts of Cr(VI) (e.g., less than 0.1% or 1%) be exempted from 
the final rule (Exs. 38-203; 38-254; 39-19; 39-47; 39-48; 39-52; 39-54; 
39-56). In particular, some utilities argued that fly ash produced by 
the incineration of coal contains trace amounts of Cr(VI) that are so 
low as to be insignificant, and that an exclusion from the final rule 
for coal ash was warranted (Ex. 39-40). Edison Electric Institute 
supported this argument by submitting sampling data and material safety 
data sheets that indicated the Cr(VI) concentrations in ash by-products 
of the coal combustion process (Exs. 47-25-1; 47-25-2; 47-25-3; 47-25-
4; 47-25-5; 47-25-6; 47-25-7).
    OSHA does not believe that it would be appropriate to establish a 
threshold Cr(VI) concentration for coverage of substances under the 
scope of this final rule. The evidence in the rulemaking record is not 
sufficient to lead OSHA to conclude that the suggested concentration 
thresholds would be protective of employee health. While OSHA has 
recognized that the Cr(VI) content of portland cement is sufficiently 
low to warrant an exception from the standard, a threshold 
concentration of 0.1% for Cr(VI) would be more than 50-fold higher than 
Cr(VI) levels typically found in portland cement (< 0.002%). See above 
discussion of the extremely low Cr(VI) concentration in portland cement 
(< 20 [mu]g/g).
    Although evidence submitted to the record indicates that Cr(VI) 
levels in coal ash may be comparable to levels in portland cement, OSHA 
does not believe that the evidence is sufficient to establish that all 
coal ash from all

[[Page 10331]]

sources will necessarily have comparable Cr(VI) content.
    A threshold concentration is also not reasonable because many 
operations where Cr(VI) exposures occur are the result of work with 
materials that do not contain any Cr(VI). Welders, who represent nearly 
half of the workers covered by this final rule, do not ordinarily work 
with materials that contain Cr(VI). Rather, the high temperatures 
created by welding oxidize chromium in steel to the hexavalent state. 
An exception based on a specified Cr(VI) concentration could be 
interpreted to exclude these workers from the scope of the standard. 
This would be particularly inappropriate in view of the fact that data 
in the record show that many welders have significant Cr(VI) exposures.
    OSHA does, however, appreciate the concerns of commenters regarding 
situations where they believe exposures are minimal and represent very 
little threat to the health of workers. The Agency believes that a 
reasonable approach is to have an exception based on Cr(VI) exposure 
level. OSHA is therefore including in the final rule an exception for 
those circumstances where the employer has objective data demonstrating 
that a material containing chromium or a specific process, operation, 
or activity involving chromium cannot release dusts, fumes, or mists of 
chromium (VI) in concentrations at or above 0.5 [mu]g/m3 as 
an 8-hour TWA under any expected conditions of use.
    OSHA believes this approach is sensible because it provides an 
exception for situations where airborne exposures are not likely to 
present significant risk and thus allows employers to focus resources 
on the exposures of greatest occupational health concern. The Agency 
has added a definition for ``objective data'' (discussed with regard to 
paragraph (b) of the final rule) to clarify what information and data 
can be used to satisfy the obligation to demonstrate that Cr(VI) 
exposures will be below 0.5 [mu]g/m3.
    Other standards which have included similar exceptions (e.g., 
Acryolitrile, 29 CFR 1019.1045; Ethylene Oxide, 29 CFR 1910.1047; 1,3-
Butadiene, 29 CFR 1910.1051) have generally relied upon the action 
level as an exposure threshold. A threshold lower than the action level 
has been selected for the Cr(VI) rule because OSHA believes this to be 
more protective of worker health given the existing significant risk at 
the action level. Although OSHA understands the difficulties of 
developing objective data to demonstrate that exposures will be below a 
given level, the Agency believes that the 0.5 [mu]g/m3 
coverage threshold represents an exposure level where it is still 
reasonably possible to develop objective data to take advantage of this 
exception if Cr(VI) exposure levels are minimal. For instance, 
variation in exposures even in well controlled workplaces requires that 
typical exposures be below 0.25 [mu]g/m3 in order for an 
employer to be reasonably sure that exposures will consistently be 
below 0.5 [mu]g/m3 (see Exs. 46-79; 46-80; 46-81). Where 
typical exposures are below 0.25 [mu]g/m3, an industry 
survey might be used to show that exposures for a given operation would 
be below 0.5 [mu]g/m3 under any expected conditions of use.
    When using the phrase ``any expected conditions of use'' OSHA is 
referring to situations that can reasonably be foreseen. The criteria 
are not intended to be so circumscribed that it is impossible to meet 
them. OSHA acknowledges that a constellation of unforeseen 
circumstances can occur that might lead to exposures above 0.5 [mu]g/
m3 even when the objective data demonstration has been 
correctly made, but believes that such occurrences will be extremely rare.
(b) Definitions
    ``Action level'' is defined as an airborne concentration of Cr(VI) 
of 2.5 micrograms per cubic meter of air (2.5 [mu]g/m3) 
calculated as an eight-hour time-weighted average (TWA). The action 
level triggers requirements for exposure monitoring and medical 
surveillance.
    Because employee exposures to airborne concentrations of Cr(VI) are 
variable, workers may sometimes be exposed above the PEL even if 
exposure samples (which are not conducted on a daily basis) are 
generally below the PEL. Maintaining exposures below the action level 
provides increased assurance that employees will not be exposed to 
Cr(VI) at levels above the PEL on days when no exposure measurements 
are made in the workplace. Periodic exposure measurements made when the 
action level is exceeded provide the employer with a degree of 
confidence in the results of the exposure monitoring. The importance of 
the action level is explained in greater detail in the exposure 
determination and medical surveillance discussions of this section 
(paragraphs (d) and (k) respectively).
    As in other standards, the action level has been set at one-half of 
the PEL. The Agency has had successful experience with an action level 
of one-half the PEL in other standards, including those for inorganic 
arsenic (29 CFR 1910.1018), ethylene oxide (29 CFR 1910.1047), benzene 
(29 CFR 1910.1028), and methylene chloride (29 CFR 1910.1052).
    Following the publication of the proposed rule, which included a 
proposed action level of 0.5 [mu]g/m3 (\1/2\ the proposed 
PEL of 1 [mu]g/m3), OSHA received several comments 
pertaining to the definition of the action level. Commenters such as 
the International Brotherhood of Teamsters (IBT) supported OSHA s 
preliminary determination that the action level should be set at one-
half the permissible exposure limit (Exs. 38-199-1, p. 9; 38-219, p. 
16-17; 38-228-1; 40-10-2). The IBT stated that the action level set at 
one-half the PEL has been successful historically in OSHA's standards 
such as inorganic arsenic, cadmium, benzene, ethylene oxide, 
methylenedianiline, and methylene chloride (Ex. 38-199-1, pp. 9, 44). 
NIOSH also supported OSHA's approach, stating that the action level of 
one-half the PEL is the appropriate level to indicate sufficient 
probability that an employee's exposure does not exceed the PEL on 
other days (Ex. 40-10-2, p. 17). The North American Insulation 
Manufacturer's Association (NAIMA) agreed that an action level of one-
half the PEL is appropriate (in conjunction with a higher PEL than that 
proposed) (Ex. 38-228-1, pp. 23-24).
    Previous standards have recognized a statistical basis for using an 
action level of one-half the PEL (see, e.g., acrylonitrile, 29 CFR 
1910.1045; ethylene oxide, 29 CFR 1910.1047). In brief, OSHA previously 
determined (based in part on research conducted by Leidel et al.) that 
where exposure measurements are above one-half the PEL, the employer 
cannot be reasonably confident that the employee is not exposed above 
the PEL on days when no measurements are taken (Ex. 46-80).
    Following the publication of the proposed rule, the United 
Automobile, Aerospace, and Agricultural Implement Workers of America 
(UAW) requested an action level of one-tenth of the permissible 
exposure limit (PEL) (Tr. 791; Exs. 39-73; 39-73-2, pp. 3, 10; 40-19-
1). The UAW argued that the lower action level is appropriate because 
variability in exposures is greater than was previously believed in 
some occupational settings. While OSHA previously assumed a geometric 
standard deviation (GSD) of 1.4, the UAW stated that a GSD of 2 should 
be assumed as a matter of policy. They concluded that this GSD implies 
an action level of one-tenth the PEL to minimize the frequency of 
exposures above the PEL on days when measurements are not taken (Ex. 
39-73-2, p. 12).

[[Page 10332]]

    If the variability of workplace exposures is typically as high as 
the UAW suggests, an action level less than one-half the PEL would be 
required to give employers a high degree of confidence that employees' 
exposures are below the PEL on most workdays. Leidel et al., calculated 
that for exposures with a GSD of 2.0, an action level of 0.115 times 
the PEL would be required to limit to 5% the probability that 5% or 
more of an employee's unmeasured daily exposure averages will exceed 
the PEL (Ex. 46-80, p. 29). However, the evidence in the record is 
insufficient to permit OSHA to conclude that a GSD of 2.0 is typical of 
workplace Cr(VI) exposures. Furthermore, while OSHA recognizes the 
value of high (95%) confidence that exposures exceed the PEL very 
infrequently (<  5%), the Agency believes that the action level should 
be set at a value that effectively encourages employers to reduce 
exposures below the action level while still providing reasonable 
(though possibly <  95%) assurance that workers' exposures are typically 
below the PEL. OSHA's experience with past rules and the comments and 
testimony of NIOSH and other union representatives indicate that 
reasonable assurance of day-to-day compliance with the PEL is achieved 
with an action level of one-half the PEL (Exs. 40-10-2, p. 17; 199-1, 
pp. 9, 44).
    The Agency's experience with previous standards also indicates that 
an action limit of one-half the PEL effectively encourages employers, 
where feasible, to reduce exposures below the action level to avoid the 
added costs of required compliance with provisions triggered by the 
action level. Where there is continuing significant risk at the PEL, 
the decision in the Asbestos case (Building and Construction Trades 
Department, AFL-CIO v. Brock, 838 F. 2d 1258 (D.C. Cir 1988)) indicates 
that OSHA should use its legal authority to impose additional 
requirements on employers to further reduce risk when those 
requirements will result in a greater than de minimus incremental 
benefit to workers' health. OSHA believes that the action level will 
result in a very real and necessary further reduction in risk beyond 
that provided by the PEL alone.
    The action level improves employee protection while increasing the 
cost-effectiveness and performance orientation of the standard. The 
action level will encourage employers who can, in a cost-effective 
manner, identify approaches or innovative methods to reduce their 
employees' exposures to levels below the action level, because this 
will eliminate the costs associated with exposure monitoring and 
medical surveillance. The employees of such employers will have greater 
protection against adverse health effects because their exposures to 
Cr(VI) will be less than half of those permitted by the permissible 
exposure limit. Employees of those employers who are not able to lower 
exposures below the action level will have the additional protection 
provided by medical surveillance, exposure monitoring, and the other 
provisions of the standard that are triggered by the action level.
    ``Chromium (VI) [hexavalent chromium or Cr(VI)]'' means chromium 
with a valence of positive six, in any form or chemical compound in 
which it occurs. This term includes Cr(VI) in all states of matter, in 
any solution or other mixture, even if encapsulated by another or 
several other substances. The term also includes Cr(VI) when created by 
an industrial process, such as when welding of stainless steel 
generates Cr(VI) fume.
    For regulatory purposes, OSHA is treating Cr(VI) generically, 
instead of addressing specific compounds individually. This is based on 
OSHA's determination that the toxicological effect on the human body is 
similar from Cr(VI) in any of the substances covered under the scope of 
this standard, regardless of the form or compound in which it occurs. 
As discussed in Section V of this preamble, some variation in potency 
may result due to differences in the solubility of compounds. Other 
factors, such as encapsulation, may have some effect on the 
bioavailability of Cr(VI). However, OSHA believes that these factors do 
not result in differences that merit separate provisions for different 
Cr(VI) compounds. OSHA considers it appropriate to apply the 
requirements of the standard uniformly to all Cr(VI) compounds.
    ``Emergency'' means any occurrence that results, or is likely to 
result, in an uncontrolled release of Cr(VI), such as, but not limited 
to, equipment failure, rupture of containers, or failure of control 
equipment. To constitute an emergency, the exposure to Cr(VI) must be 
unexpected and significant. If an incidental release of chromium (VI) 
can be controlled at the time of release by employees in the immediate 
release area, or by maintenance personnel, it is not an emergency. 
Similarly, if an incidental release of Cr(VI) may be safely cleaned up 
by employees at the time of release, it is not considered to be an 
emergency situation for the purposes of this section. Those instances 
that constitute an emergency trigger certain requirements in this 
standard (e.g., medical surveillance) that are discussed later in this 
section.
    In comments submitted to OSHA following the publication of the 
proposed Cr(VI) rule, the International Brotherhood of Teamsters (IBT) 
disagreed with OSHA's definition of ``emergency''. IBT stated that all 
spills and leaks involving Cr(VI) are unexpected and significant, and 
should be considered emergencies (Ex. 38-199-1, pp. 20-21).
    OSHA does not agree with the IBT's position that every spill or 
leak should be considered an emergency. Not all spills and leaks are 
significant; the particular circumstances of the release, such as the 
quantity involved, confined space considerations, and the adequacy of 
ventilation will have an impact on the amount of Cr(VI) to which 
employees are exposed when a spill or leak occurs. For example, a minor 
spill that can be quickly cleaned up by an employee with minimal 
airborne or dermal exposure to Cr(VI) is clearly not an emergency. In 
addition, factors such as the personal protective equipment available, 
pre-established standard operating procedures for responding to 
releases, and engineering controls that employees can activate to 
assist them in controlling and stopping the release are all factors 
that must be considered in determining whether a release is incidental 
or an emergency.
    The IBT also stated that the person who determines whether a spill 
or leak constitutes an emergency situation should be qualified with 
specific training, knowledge, and experience regarding the hazards 
associated with exposure to Cr(VI) and the appropriate response 
measures that must be implemented to prevent Cr(VI) exposures during 
the spill or leak remediation (Ex. 38-199-1, pp. 20-21). OSHA believes 
that the provisions of the Hazard Communication standard adequately 
address the IBT's concern (29 CFR 1910.1200). Paragraph (h)(3) of that 
standard directs employers to provide employees who are exposed or 
potentially exposed to a hazardous chemical (such as Cr(VI)) with 
training on the physical and health hazards of the chemical and

[t]he measures employees can take to protect themselves from these 
hazards, including specific procedures the employer has implemented 
to protect employees from exposure to hazardous chemicals, such as 
appropriate work practices, emergency procedures, and personal 
protective equipment to be used * * * (29 CFR 1910.1200 (h)(3)(iii)).

The Agency expects that employers and employees equipped with the 
training required by the Hazard Communication

[[Page 10333]]

standard will be sufficiently knowledgable to determine whether an 
emergency has occurred, and that it is not necessary to mandate 
additional specialized training for this purpose.
    ``Employee exposure'' means exposure to airborne Cr(VI) that would 
occur if the employee were not using a respirator. This definition is 
included to clarify the fact that employee exposure is measured outside 
any respiratory protection worn. It is consistent with OSHA's previous 
use of the term in other standards.
    ``Historical monitoring data'' means data from chromium (VI) 
monitoring conducted prior to May 30, 2006, obtained during work 
operations conducted under workplace conditions closely resembling the 
processes, types of material, control methods, work practices, and 
environmental conditions in the employer's current operations. To 
demonstrate employees' exposures, historical monitoring data must 
satisfy all exposure monitoring requirements of this section (e.g., 
accuracy and confidence requirements).
    ``Objective data'' means information other than employee monitoring 
that demonstrates the expected employee exposure to chromium (VI) 
associated with a particular product or material or a specific process, 
operation, or activity. Types of information that may serve as 
objective data include, but are not limited to, air monitoring data 
from industry-wide surveys; data collected by a trade association from 
its members; or calculations based on the composition or chemical and 
physical properties of a material.
    ``Physician or other licensed health care professional'' [PLHCP] is 
an individual whose legally permitted scope of practice (i.e., license, 
registration, or certification) allows him or her to independently 
provide or be delegated the responsibility to provide some or all of 
the particular health care services required by the medical 
surveillance provisions of this final rule. This definition is 
consistent with several recent OSHA standards, including the 
respiratory protection standard (29 CFR 1910.134), the bloodborne 
pathogens standard (29 CFR 1910.1030), and the methylene chloride 
standard (29 CFR 1910.1052). In these standards, the Agency determined 
that any professional licensed by state law to do so may perform the 
medical evaluation procedures required by the standard. OSHA recognizes 
that the personnel qualified to provide the required medical evaluation 
may vary from state to state, depending on state licensing laws.
    At the public hearing, the 3M Company (3M) expressed concern with 
OSHA's interpretation of licensing requirements for PLHCPs. In the 
recent standards discussed above, OSHA has interpreted the requirements 
to mean that PLHCPs must be licensed in the states of residence for the 
employees they evaluate. This interpretation is based on OSHA's 
recognition of state licensing laws that require PHLCP's to be licensed 
in the state in which they practice. 3M encouraged OSHA to adopt an 
expanded definition of PLHCP for the Cr(VI) standard, allowing PLHCPs 
licensed in any U.S. state to evaluate employees residing in that or 
any other state, arguing that other federal agencies such as the 
Department of Transportation permitted similar allowances. 3M argued 
that this arrangement `` * * * would permit one medical director to 
oversee the program in several states'' where a company has operations 
(Tr. 1592, Ex. 47-36). Moreover, 3M added that OSHA has no authority to 
enforce state licensing requirements.
    Despite the concerns raised by 3M, OSHA continues to believe that 
it is appropriate to establish PLHCP requirements consistent with state 
requirements for medical practice. OSHA's goal is that the medical 
surveillance provisions of the final Cr(VI) rule be conducted by or 
under the supervision of a health care professional who is 
appropriately licensed to perform those provisions and is therefore 
operating under his or her legal scope of practice. OSHA also continues 
to believe that issues regarding a PLCHP's legal scope of practice 
reside most appropriately with state licensing boards. While OSHA does 
not enforce state licensing requirements (e.g., fining an individual 
PHCLP for operating outside their legal state license), OSHA can cite, 
using the Cr(VI) standard, an employer for using a health care 
professional who is not operating under his or her legal scope of 
practice. Thus, the Agency believes that the proposed definition for 
PHLCP is reasonable, and has retained it in the final rule. OSHA's 
experience with other standards using this definition supports the 
Agency's determination in this matter.
    ``Regulated area'' means an area, demarcated by the employer, where 
an employee's exposure to airborne concentrations of Cr(VI) exceeds, or 
can reasonably be expected to exceed the PEL. This definition is 
consistent with the use of the term in other standards, including those 
for cadmium (29 CFR 1910.1027), butadiene (29 CFR 1910.1051), and 
methylene chloride (29 CFR 1910.1052).
    OSHA has not included a requirement for regulated areas in 
construction and shipyards. This definition is therefore not included 
in the standards for construction and shipyards.
    The definitions for ``Assistant Secretary'', ``Director'', ``High-
efficiency particulate air [HEPA]
filter'', and ``This section'' are 
consistent with OSHA's previous use of these terms found in other 
health standards.
(c) Permissible Exposure Limit (PEL)
Introduction
    Paragraph (c) of the final rule establishes an 8-hour time-weighted 
average (TWA) exposure limit of 5 micrograms of Cr(VI) per cubic meter 
of air (5 [mu]g/m3). This limit means that over the course 
of any 8-hour work shift, the average exposure to Cr(VI) cannot exceed 
5 [mu]g/m3. The new limit applies to Cr(VI), as opposed to 
the previous PEL which was measured as CrO₃. The previous 
PEL of 1 milligram per 10 cubic meters of air (1 mg/10m3, or 
100 [mu]g/m3) reported as CrO₃ is equivalent to a 
limit of 52 [mu]g/m3 as Cr(VI).
    OSHA proposed a PEL of 1 [mu]g/m\3\ for Cr(VI). This PEL was 
proposed because the Agency made a preliminary determination that 
occupational exposure to Cr(VI) at the previous PEL resulted in a 
significant risk of lung cancer among exposed workers, and compliance 
with the proposed PEL was expected to substantially reduce that risk. 
Based on the information available to OSHA at the time, a PEL of 1 
[mu]g/m\3\ was believed to be economically and technologically feasible 
for affected industries.
    The PEL was a focus of comment in the rulemaking process, revealing 
sharply divided opinion on the justification for a PEL of 1 [mu]g/m\3\. 
Some support was expressed for the proposed PEL (Exs. 38-199-1, p. 42; 
38-219-1, p. 2; 39-73-1). The vast majority of commenters, however, did 
not believe the proposed PEL was appropriate. Some maintained that a 
higher PEL was warranted, arguing that the proposed limit was 
infeasible or was not justified by the health and risk evidence (e.g., 
Exs. 38-205; 38-215; 38-231; 38-228; 38-233). Several commenters 
suggested alternative PELs that they considered appropriate, such as 10 
[mu]g/m\3\ (Exs. 38-134; 38-135; 38-195; 38-203; 38-212; 38-250; 38-
254), 20 [mu]g/m\3\ (Ex. 38-204), 23 [mu]g/m\3\ (e.g., Exs. 38-7; 43-
22; 43-23; 43-25; 43-39), or 26 [mu]g/m\3\ (Ex. 38-263). Others 
maintained that the remaining risk at the proposed PEL was excessive 
and believed OSHA should adopt a

[[Page 10334]]

lower PEL, suggesting 0.2 or 0.25 [mu]g/m\3\ (Exs. 39-71; 40-10-2; 47-
23; 47-28).
    After careful consideration of the evidence in the rulemaking 
record, OSHA has established a final PEL of 5 [mu]g/m\3\. OSHA s 
examination of the health effects evidence, discussed in section V of 
this preamble, reaffirms the Agency's preliminary conclusion that 
exposure to Cr(VI) causes lung cancer, as well as other serious adverse 
health effects. OSHA's quantitative risk assessment, presented in 
section VI, indicates that the most reliable lifetime estimate of risk 
from exposure to Cr(VI) at the previous PEL is 101 to 351 excess lung 
cancer deaths per 1000 workers. As discussed in section VII, this 
clearly represents a significant risk of material impairment of health. 
OSHA believes that lowering the PEL to 5 [mu]g/m\3\ will substantially 
reduce this risk. OSHA estimates the lifetime excess risk of death from 
lung cancer at the new PEL to be between 10 and 45 per 1000 workers.
    The Agency considers the level of risk remaining at the new PEL to 
be significant. However, based on evidence evaluated during the 
rulemaking process, OSHA has concluded that a uniform PEL of 5 [mu]g/
m\3\ is appropriate. The new PEL is technologically and economically 
feasible for all industry sectors. In only two operations within one of 
those sectors, the painting of aircraft and large aircraft parts in the 
aerospace industry, is a PEL of 5 [mu]g/m\3\ infeasible. In accordance 
with section 6(b)(5) of the OSH Act, OSHA has determined that the new 
PEL is the lowest limit that employers can generally achieve, 
consistent with feasibility constraints. Additional requirements are 
included in the final rule to further reduce any remaining risk. OSHA 
anticipates that these ancillary provisions will reduce the risk beyond 
the reduction that will be achieved by the new PEL alone.
    OSHA's rationale for adopting a uniform PEL of 5 [mu]g/m\3\ is set 
forth in greater detail below. The discussion is organized around the 
issues of primary importance to commenters: (a) Whether a uniform PEL 
is appropriate for all chromium compounds, (b) the technologic and 
economic feasibility of various PELs, (c) the requirement of section 
6(b)(5) to promulgate the most protective standard consistent with 
feasibility, and (d) whether there is a need for a short-term exposure 
limit.
A Uniform PEL Is Appropriate for All Chromium Compounds
    OSHA believes that it is appropriate to establish a single PEL that 
applies to all Cr(VI) compounds. OSHA's preferred estimates of risk are 
derived from two cohorts of chromate production workers that were 
predominantly exposed to sodium chromate and sodium dichromate. A 
number of commenters argued that risk estimates from these cohorts were 
not applicable to certain other Cr(VI) compounds (Exs. 38-106; 38-201-
1; 38-205; 38-215-2).
    After carefully evaluating the epidemiological, animal and 
mechanistic evidence in the rulemaking record, OSHA considers all 
Cr(VI) compounds to be carcinogenic. (For additional discussion see 
section V of this preamble.) OSHA has determined that the risk 
estimates developed from the chromate production cohorts are reasonably 
representative of the risks expected from equivalent exposures to 
different Cr(VI) compounds in other industries. OSHA finds that the 
risks estimated from the Gibb and Luippold cohorts of chrome production 
workers adequately represent the risks to workers in other industries 
who are exposed to equivalent levels of Cr(VI) compounds. (The 
rationale supporting these conclusions is discussed in detail in 
sections V and VI of this preamble. In particular, see Section VI(H) of 
the Quantitative Risk Assessment.) Because OSHA's estimates of risk are 
reasonably representative of all occupational Cr(VI) exposures, the 
Agency considers it appropriate to establish a single PEL applicable to 
all Cr(VI) compounds. A number of rulemaking participants supported 
this approach (Exs. 38-214; 38-220; 39-20; 39-60; 40-10; 40-19). See 
also, e.g., Color Pigments Mfr. Ass'n, Inc. v. OSHA, 16 F.3d 1157, 1161 
(11th Cir. 1994):

    Given the absence of definiteness on the issue, the volume of 
evidence that points at least implicitly to the dangers of cadmium 
pigments, and the serious potential health risks present if cadmium 
exposure is as great in pigment form as in other compounds, we 
believe that OSHA was justified in choosing to include cadmium 
pigments in the PEL * * * ;

Asarco, Inc. v. OSHA, 746 F.2d 483, 495 (9th Cir. 1984) (permissible 
for OSHA to ``use trivalent arsenic studies and conclusions to support 
inclusion of pentavalent arsenic in the standard'').
The Final PEL of 5 [mu]g/m\3\ Is Technologically and Economically 
Feasible for all Affected Industries; the Proposed PEL Is Not
    OSHA has concluded that a PEL of 5 [mu]g/m\3\ is economically and 
technologically feasible for all the affected industries. OSHA has also 
concluded, based on the comments and evidence submitted to the record, 
that the proposed PEL of 1 [mu]g/m\3\ is not feasible in all 
industries. OSHA's feasibility determinations are explained below.
    Technologic feasibility of the final PEL. In making its 
determination of technological feasibility, OSHA relied upon guidance 
provided by the courts that have reviewed previous standards. In 
particular, the decision of the U.S. Court of Appeals for the District 
of Columbia on OSHA's Lead standard (United Steelworkers of America v. 
Marshall, 647 F.2d 1189 (D.C. Cir. 1981)) established a benchmark that 
the Agency has relied on for evaluating technological feasibility. The 
court explained that OSHA has ``great discretion * * * in determining 
the feasibility of a chosen PEL.'' 647 F.2d at 1309. Both technological 
and economic feasibility are ``to be tested industry-by-industry.'' 647 
F.2d at 1301. In order to establish that a standard is technologically 
feasible, ``OSHA must prove a reasonable possibility that the typical 
firm will be able to develop and install engineering and work practice 
controls that can meet the PEL in most of its operations.'' 647 F.2d at 
1272. The court allowed that ``insufficient proof of technological 
feasibility for a few isolated operations within an industry, or even 
OSHA's concession that respirators will be necessary in a few such 
operations, will not undermine'' OSHA's finding of technological 
feasibility. Id.
    Applying this definition of feasibility, OSHA has evaluated each 
affected industry and has concluded that a PEL of 5 [mu]g/m\3\ can be 
achieved through engineering and work practice controls, with only 
limited respirator use, in every industry. The primary evidentiary 
support for this conclusion is the report of Shaw Environmental, Inc., 
discussed in depth in the Final Economic and Regulatory Flexibility 
Analysis (FEA). Based on the data collected by Shaw, OSHA concludes 
that engineering controls, such as local exhaust ventilation (LEV), 
process control, and process modification or substitution can be used 
to control exposures in most operations.
    OSHA recognizes that there are certain instances in which 
supplemental respirator use will be required because engineering and 
work practice controls are not always sufficient to reduce airborne 
exposures below the PEL. Summary information regarding the extent of 
respirator usage expected at various potential PELs is presented in 
Table VIII-3 (see section VIII, summary of the FEA). Considering this 
information together with other data and analysis presented in the FEA, 
OSHA has concluded that a PEL of 5 [mu]g/

[[Page 10335]]

m\3\ is technologically feasible in all affected industry sectors and 
in virtually all operations, with the limited exception of some 
aerospace painting operations discussed more fully below. In only three 
sectors would respirator use be required by more than 5% of exposed 
employees. In two of these sectors, chromate pigment producers and 
chromium dye producers, use of respirators will be intermittent. The 
third sector, stainless steel welding, presents technological 
challenges in certain operations. However, the new PEL can clearly be 
achieved in most operations with engineering and work practice controls.
    OSHA recognizes that for two distinct operations within the 
aerospace industry, painting aircraft and painting large aircraft 
parts, engineering and work practice controls cannot control exposures 
below 25 [mu]g/m\3\ and respirators would be required for most 
employees performing these operations. (See additional discussion of 
aerospace painting below.) For that reason OSHA is adopting a provision 
for those specific operations requiring employers to use engineering 
and work practice controls to limit employee exposures to 25 [mu]g/
m\3\. Respiratory protection must then be used to achieve the PEL.
    OSHA did not set the PEL at 25 [mu]g/m\3\, a level achievable in 
every operation in every industry with engineering and work practice 
controls alone. That approach is inappropriate because it would leave 
the vast majority of affected employees exposed to Cr(VI) levels above 
those that could feasibly be achieved in most industries and 
operations. As discussed above, the lower PEL of 5 [mu]g/m\3\ is 
feasible within the meaning of the case law, although it will result in 
limited use of respirators in some industries and significant 
respirator use in two painting operations in the aerospace industry. 
The two aerospace painting operations with significant respirator use 
are covered by the provision discussed above. For those operations, 
OSHA weighed the added protection provided by respirators against the 
negative aspects of respiratory protection requirements, and decided 
that the additional respirator use was acceptable.
    Technological feasibility of the proposed PEL. OSHA concludes that 
the proposed PEL of 1 [mu]g/m\3\ is not technologically feasible for 
all industries under the criteria in the D.C. Circuit's Lead decision. 
The court's definition of technological feasibility recognizes that for 
a standard based on a hierarchy of controls, a particular PEL is not 
technologically feasible simply because it can be achieved through the 
widespread use of respirators. 647 F.2d at 1272. This is consistent 
with OSHA's long-held view that it is prudent to avoid requirements 
that will result in extensive respirator use.
    In its post-hearing brief, Public Citizen argued that a PEL should 
be considered technologically feasible if respirator use would be 
necessary to achieve compliance in a significant number of operations 
within an industry, or even if the PEL could only be achieved through 
use of respirators alone (Ex. 47-23, pp. 12-15). That position is 
inconsistent with the established test for feasibility for standards 
based on the hierarchy of controls. Moreover, as discussed in the 
preamble explanation of paragraph (f) on methods of compliance, use of 
respirators in the workplace presents a number of independent safety 
and health concerns. The vision of workers wearing respirators may be 
diminished, and respirators can impair the ability of employees to 
communicate with one another. Respirators can impose physiological 
burdens on employees due to the weight of the respirator and increased 
breathing resistance experienced during operation. The level of 
physical work effort required, the use of protective clothing, and 
environmental factors such as temperature extremes and high humidity 
can interact with respirator use to increase the physiological strain 
on employees. Inability to cope with this strain as a result of medical 
conditions such as cardiovascular and respiratory diseases, reduced 
pulmonary function, neurological or musculoskeletal disorders, impaired 
sensory function, or psychological conditions can place employees at 
increased risk of illness, injury, and even death. Routine use of 
respirators for extended periods of time is regarded by the Agency to 
be of greater significance than intermittent use for short time periods.
    OSHA also believes that respirators are inherently less reliable 
than engineering and work practice controls. To consistently provide 
adequate protection, respirators must be appropriately selected and 
fitted, properly used, and properly maintained. Because these 
conditions can be difficult to attain, and are subject to human error, 
OSHA does not believe respirators provide the same degree of protection 
as do engineering and work practice controls.
    Based on evidence and comment submitted in response to the 
proposal, OSHA finds that a PEL of 1 [mu]g/m\3\ is not technologically 
feasible for a substantial number of industries and operations 
employing a large number of the workers covered by the standard. The 
record shows that a PEL of 1 [mu]g/m\3\ is technologically infeasible 
for welding and aerospace painting because engineering and work 
practice controls cannot reduce exposures below 1 [mu]g/m\3\ for many 
operations. OSHA also finds that the record contains insufficient 
evidence to establish the technologic feasibility of the proposed PEL 
for four other industries: chromate pigment producers, chromium 
catalyst producers, chromium dye producers and some hard chrome 
electroplaters. OSHA's findings on the technologic feasibility of the 
proposed PEL are summarized below, and are discussed more extensively 
in Chapter III of the FEA (in particular, see section titled: 
"Technological Feasibility of the Proposed 1 [mu]g/m\3\ 8-Hour TWA PEL.").
    Welding. OSHA has concluded that a PEL of 1 [mu]g/m\3\ is not 
technologically feasible for shielded metal arc welding (SMAW) on 
stainless steel because engineering and work practice controls cannot 
generally reduce employee exposures to below 1 [mu]g/m\3\. Almost one 
third (29%) of all stainless steel SMAW operations would need to use 
respirators at a PEL of 1 [mu]g/m\3\. In general industry alone, more 
than half (52%) of stainless steel SMAW processes would be unable to 
use engineering or work practice controls to reduce Cr(VI) exposures 
below 1 [mu]g/m\3\. Notably, stainless steel welding is widespread 
throughout the economy; it occurs in over 20,000 establishments 
employing approximately 127,000 workers in over sixty-five 3-digit 
NAICS codes. SMAW is the most common type of stainless steel welding 
and is performed by more than 67,000 employees--more than half of the 
total number of stainless steel welders and one quarter of all welders 
covered by the standard.
    OSHA initially recommended the substitution of gas metal arc 
welding (GMAW) for SMAW as the cheapest and most effective method to 
reduce Cr(VI) exposures. GMAW, like SMAW, is a common type of welding, 
but GMAW tends to produce lower exposures than SMAW. However, based on 
hearing testimony and evidence submitted to the record, OSHA now 
believes that only 60% of SMAW operations can switch to GMAW (Exs. 38-
220-1, p. 8; 39-60, p. 3; 39-70, p. 2; 35-410, p. 4). Moreover, even 
among the SMAW operations with current exposures above 1 [mu]g/m\3\ 
that can switch to GMAW, only a portion (40% in general industry and 
59% in construction and maritime)

[[Page 10336]]

would be able to achieve a PEL of 1 [mu]g/m\3\ without respirators.
    OSHA has also determined that a PEL of 1 [mu]g/m\3\ is 
technologically infeasible for stainless steel welding that is 
performed in confined or enclosed spaces due to limitations on the 
availability of ventilation. Because engineering and work practice 
controls cannot consistently reduce exposures to below 1 [mu]g/m\3\, a 
large percentage of stainless steel welding operations in confined or 
enclosed spaces would require respirators at a PEL of 1 [mu]g/m\3\. In 
general industry, for example, 60% of welding tasks done on stainless 
steel in confined spaces would be unable to comply with the proposed 
PEL by using engineering or work practice controls.
    In sum, OSHA has concluded that it is infeasible for some of the 
most common welding operations to achieve a PEL of 1 [mu]g/m\3\. For a 
more detailed explanation of OSHA's technological feasibility analysis 
for welding operations, see Chapter III of the FEA. OSHA has also 
decided that although it may be feasible for some of the less common 
types of welding operations to achieve a PEL of 1 [mu]g/m\3\ with 
engineering and work practice controls, the ubiquitous nature of 
welding necessitates a finding that a PEL of 1 [mu]g/m\3\ is generally 
infeasible for all welding operations. In particular, OSHA believes 
that the proposed PEL is infeasible for welding operations generally 
because welding is not easily separated into high and low exposure 
operations. Welders may perform different types of welding in the same 
day, making it difficult or impossible for employers to monitor them on 
an operation by operation basis. See, e.g., Ex. 39-22. In addition, 
because workers doing different types of welding often work alongside 
one another, what is technologically feasible for a welding operation 
considered in isolation may not be technologically feasible for that 
operation when it is performed next to SMAW on stainless steel or another 
operation for which a PEL of 1 [mu]g/m\3\ is technologically infeasible.
    Welding occurs in over 40,000 establishments spanning sixty-five 
different 3-digit NAICS codes. Welding is done in a variety of sites 
throughout many diverse workplaces (Ex. 38-8, p. 5). Stainless steel 
SMAW is commonly done in close proximity to other welding or cutting 
operations, which could expose nearby workers to the higher exposures 
generated by the SMAW welder (Ex. 38-214, p. 7). The Specialty Steel 
Industry of North America commented that, ``workers in job categories 
other than those evaluated by OSHA may spend significant time in areas 
of potential exposure'' (Ex. 38-233, p. 10). The Integrated Waste 
Services Association similarly indicated that inspectors, scaffold 
workers, laborers, pipe fitters, and refractory workers may pass 
through areas with potential Cr(VI) exposure during nickel chrome alloy 
overlay (Ex. 38-258, p. 2). The Building and Construction Trades 
Department of the AFL-CIO also stated that ``workers may be exposed to 
hazards even if they are not directly performing tasks associated with 
Cr VI exposure via close proximity exposure'' (Ex. 31-6-1).
    Moreover, OSHA is aware that welders sometimes weld in many 
different environments on a variety of types of base metal using 
different welding methods in the course of a project or even during a 
single work shift (Exs. 34-10, 38-235). In those situations, the 
employee's overall exposure levels are inevitably influenced by the 
variety of exposures present during the various welding tasks he or she 
performs. Therefore, depending on how much time the employee spends 
doing welding operations for which a PEL of 5 [mu]g/m\3\ is the lowest 
feasible level, even the use of engineering and work practice controls 
to comply with a PEL of 1 [mu]g/m\3\ in the other welding operations 
would not necessarily reduce the employee's overall exposure levels 
below that mark.
    Because of these factors, welding is not easily separated into high 
and low exposure operations in the real work site. For these reasons, 
OSHA believes the record demonstrates that the proposed PEL of 1 [mu]g/
m\3\ is infeasible for welding operations generally. Almost 270,000 of 
the employees covered by the new standard engage in these welding 
operations (Table VIII-2).
    Aerospace painting. There are approximately 8300 exposed employees 
in aerospace painting (Table VIII-2). A PEL of 1 [mu]g/m\3\ is not 
feasible for approximately two thirds of all aerospace painting 
operations. At a PEL of 5 [mu]g/m\3\, only \1/3\ of aerospace painting 
operations would require substantial respirator use.
    Exposures in aerospace painting are controlled by enclosing the 
operations in painting booths or dedicated rooms with LEV. This is 
feasible for small parts, but as the size of the parts increases it 
becomes more difficult to control exposures. For example, when painting 
most small parts, exposures below 1 [mu]g/m\3\ are achievable, but for 
larger parts exposures can only be reduced to between 1 [mu]g/m\3\ and 
5 [mu]g/m\3\ using engineering and work practice controls. This group 
that can achieve levels between 1 [mu]g/m\3\ and 5 [mu]g/m\3\ 
(approximately \1/3\ of total aerospace painting operations) can use 
LEV, but as the size of the part increases it becomes increasingly 
difficult to provide good air flow around the entire part, such as 
underneath large horizontal structures. Moreover, as the size of the 
part increases, it becomes increasingly difficult for the painter to 
position him or herself to avoid being downstream of the paint 
overspray due to the geometry of the parts.
    When painting even larger parts, such as fuselages, wings or the 
entire aircraft, exposures below 5 [mu]g/m\3\ are no longer achievable 
without supplementary respiratory protection. Because these large parts 
do not fit into enclosures or painting rooms, they must be painted in 
oversized workspaces, typically hangers that can reach the size of a 
football field (Ex. 38-106-2, p. 2). In oversized workspaces the 
ventilation system becomes less effective and generally, the larger the 
space, the more difficult it is to ventilate.
    Moreover, when ventilation is put into such areas, the simple 
solution of increasing air flow is not feasible because the amount of 
air that is needed to dilute or diffuse the contaminated air can 
adversely affect the quality of the job to the point where the paint or 
coating is unacceptable for its purpose of protecting the part or plane 
(Ex. 38-106, p. 38). Thus, simply increasing the air flow in these 
sites and situations is not a viable alternative. As discussed above, 
OSHA has established a provision to address the situation where 
exposures cannot be brought below 25 [mu]g/m\3\ through engineering and 
work practice controls alone. However, a PEL of 5 [mu]g/m\3\ can be 
achieved using respiratory protection for these operations.
    In short, OSHA believes a PEL of 5 [mu]g/m\3\ is feasible for 
aerospace painting operations. Although one-third of those operations 
will need to use respiratory protection to achieve the PEL, the 
remainder can do so with engineering and work practice controls alone. 
Half of that remaining group cannot achieve a PEL of 1 [mu]g/m\3\ 
because, even though they can take advantage of enclosures such as 
paint rooms with LEV, the LEV becomes less effective as the part 
becomes larger. For this reason lowering the PEL from 5 [mu]g/m\3\ to 1 
[mu]g/m\3\ would result in the above-described substantial increase in 
the number of employees required to wear respirators. OSHA has 
therefore concluded that a PEL of 1 is not generally feasible for 
aerospace painting. For a more detailed explanation of OSHA's 
technological feasibility analysis for aerospace

[[Page 10337]]

painting operations, see Chapter III of the FEA.
    Other industries. There are other major industries or applications 
where OSHA is confident the PEL of 5 [mu]g/m\3\ can be met with 
engineering and work practice controls, but the record does not 
establish that a PEL of 1 [mu]g/m\3\ would be technologically feasible. 
In particular, chromate pigment producers, chromium catalyst producers, 
and chromium dye producers would have difficulty meeting the proposed 
PEL. A significant portion of operations in these industries are 
conducted in open and often large areas that are very dusty, making 
exposures hard to control. Just as in aerospace painting above, the 
primary control is to enclose the operation and then ventilate. 
However, some of the operations cannot be enclosed because of the 
physical configuration of the plant, especially in older facilities 
(Ex. 47-3, p. 55). Moreover, because the medium containing the Cr(VI) 
tends to be a fine powder, additional LEV in any worksite potentially 
can result in significant and intolerable product loss. In other words, 
the product could be drawn up through the ventilation system (Ex. 38-
12, pp. 12-14).
    Thus, depending in large part on the number of facilities that can 
accommodate enclosures, these operations could potentially require 
extensive respirator use in order to meet a PEL of 1 [mu]g/m\3\; at 1 
[mu]g/m\3\, OSHA expects that 44% of employees in these three 
industries would need to wear respirators on at least an intermittent 
basis. This number could be even higher if there are a large number of 
facilities that cannot enclose troublesome operations.
    To find the proposed PEL technologically feasible for an industry, 
OSHA must ``prove a reasonable possibility'' that the typical firm can 
meet it with engineering and work practice controls in most operations. 
United Steelworkers, 647 F.2d at 1272. Table VIII-3 indicates that 
intermittent respirator use would be required to reach the proposed PEL 
of 1 [mu]g/m\3\ for chromate pigment producers, chromium catalyst 
producers, and chromium dye producers. The extent of daily respirator 
usage that would be required to meet the proposed PEL is not clear if 
the recommended controls of enclosures and automation of the key 
operations are not feasible for existing facilities, but could be 
substantial depending upon the variables discussed above. On balance, 
OSHA does not believe that the record establishes the likelihood that 
the typical firm in these industries can meet the proposed PEL with 
engineering and work practice controls. There are a total of 
approximately 469 exposed employees in these three industries (Table 
VIII-2). For a more detailed explanation of OSHA's technological 
feasibility analysis for chromate pigment producers, chromium catalyst 
producers, and chromium dye producers, see Chapter III of the FEA.
    Technological feasibility is also an issue for hard chrome 
electroplating operations where fume suppressants cannot be used to 
control Cr(VI) exposures because they would interfere with the product 
specifications, making the resulting product unusable.
    In conclusion, OSHA has determined that while a PEL of 5 [mu]g/m\3\ 
is technologically feasible for all affected industries, the record 
does not support the feasibility of the proposed PEL of 1 [mu]g/m\3\ 
for welding operations, aerospace painting, chromate pigment producers, 
chromium catalyst producers, chromium dye producers, and some hard 
chrome electroplating operations.
    Economic feasibility of the final and proposed PELs. OSHA has also 
evaluated the economic feasibility of the proposed and final PELs. With 
regard to economic feasibility, OSHA must ``provide a reasonable 
assessment of the likely range of costs of its standard, and the likely 
effects of those costs on the industry,'' so as to ``demonstrate a 
reasonable likelihood that these costs will not threaten the existence 
or competitive structure of an industry, even if it does portend 
disaster for some marginal firms.'' AFL-CIO v. OSHA, 965 F.2d 982 (11th 
Cir. 1992). OSHA believes that the final PEL of 5 [mu]g/m\3\ is 
feasible for all affected industries. (For a more detailed discussion 
of OSHA's economic feasibility analysis, see Chapter VIII, Summary of 
the Final Economic Analysis and Regulatory Flexibility Analysis, 
Sections D and E.) In the majority of industries, costs will be less 
than 1% of revenues. For fewer than 10 of the approximately 250 NAICS 
(North American Industry Classification System) categories affected by 
the rule, costs are estimated to exceed 1% of revenues. OSHA has 
concluded that all affected industries will be able to absorb these 
costs without threatening their existence or competitive structure. 
Accordingly, OSHA has concluded that the new standard is economically 
feasible for all industries.
    By contrast, the proposed PEL of 1 [mu]g/m\3\ would not be 
economically feasible for a significant industry-electroplating job 
shops (NAICS 332813; electroplating, plating, polishing anodizing and 
coloring services). Electroplating establishments can be broadly 
classified into two categories: (1) Job shops and (2) captive shops, 
with roughly half of establishments falling into each category. Job 
shops perform electroplating services for others, while captive shops 
provide plating services to the facility of which they are part.
    A PEL of 1 [mu]g/m\3\ would result in costs exceeding 2.7% of 
revenues and 65% of profits for electroplating job shops. As explained 
further in section VIII of this preamble, and in the FEA, OSHA does not 
believe that options for reducing impacts (e.g., phase-ins or allowing 
use of respirators) would significantly alleviate the burden of the 
proposed PEL. OSHA is concerned that these costs could alter the 
competitive structure of the industry. Approximately 33,400 workers are 
employed in electroplating job shops.
    Summary of the technological and economic feasibility of the final 
and proposed PELs. To summarize, OSHA concludes that the final PEL of 5 
[mu]g/m\3\ is technologically and economically feasible for the 
affected industries. On the other hand, the proposed PEL of 1 [mu]g/
m\3\ would be technologically or economically infeasible or is of 
unproven feasibility in a large number of industries and operations 
covered by the standard, including welding, aerospace painting, 
chromate pigment production, chromium catalyst production, chromium dye 
production, some hard chrome electroplating operations, and 
electroplating job shops. These operations affect approximately 312,170 
exposed employees, or almost 56% of the total number of employees 
occupationally exposed to Cr(VI) (Table VIII-2). This figure includes 
270,000 employees in welding, 8,300 employees in aerospace painting 
operations, 33,400 employees in electroplating job shops, and 469 
employees in the other three industries. (Note that this number does 
not include a separate count for employees performing hard chrome 
electroplating in order to avoid double counting employees performing 
that operation who are employed in the electroplating job shop 
category). OSHA did not receive data or recommendations regarding 
setting the PEL at any levels between 1 and 5 [mu]g/m\3\.
A Uniform PEL of 5 [mu]g/m\3\ Is Consistent With the Feasibility 
Constraint of Section 6(b)(5)
    Section 6(b)(5) of the OSH Act requires OSHA to set the standard 
which most adequately assures, to the extent feasible * * * that no 
employee will suffer material impairment of health.'' This provision 
requires the agency to eliminate or reduce significant risk, to the 
extent feasible. See

[[Page 10338]]

American Textile Mfr. Inst., Inc. v. Donovan, 452 U.S. 490, 506-
22(1981). OSHA has always interpreted Section 6(b)(5) to accord the 
agency substantial discretion to set the PEL at the lowest level that 
is feasible for industries and operations as a whole. OSHA has not 
interpreted the provision to require setting multiple PELs based on the 
lowest level particular industries or operations could achieve. Because 
Congress did not speak to the precise issue in the statute, OSHA has 
authority to adopt the reasonable interpretation that it judges will 
best carry out the purposes of the Act. Chevron U.S.A. v. Natural 
Resources Defense Council, 467 U.S. 837 (1984).
    The new Cr(VI) standard meets the requirements of Section 6(b)(5) 
because the PEL of 5 [mu]g/m\3\ is the lowest feasible limit for many 
operations and sectors employing a large number of covered employees in 
fact, a majority of affected employees. In addition, the record does 
not afford a basis for any further disaggregation.
    OSHA recognizes that, according to the determination made in 
Section VII of this preamble, significant risk remains at a PEL of 5 
[mu]g/m\3\. As indicated in Table VII-3 in the Significance of Risk 
section, the remaining risk for a worker exposed at the PEL throughout 
a 45-year working lifetime is comparable to or greater than the 
remaining risk in previous OSHA health standards where quantitative 
estimates have been presented. Although OSHA anticipates that the 
ancillary provisions of the standard will reduce this residual risk, 
the Agency realizes that lower PELs might be achievable in some 
industries and operations, which would reduce this risk even further. 
As explained below, however, OSHA concludes that these benefits would 
be offset by the significant disadvantages of attempting to establish 
and apply multiple PELs for the diverse group of industries and 
operations covered by the standard. See Building & Constr. Trades Dep't 
v. U.S. Dep't of Labor, 838 F.2d 1258, 1273 (D.C. Cir. 1988) 
(administrative difficulties, if appropriately spelled out, could 
justify a decision to select a uniform PEL).
    Requiring OSHA to set multiple PELs--taking into account the 
feasibility considerations unique to each industry or operation or 
group of them--would impose an enormous evidentiary burden on OSHA to 
ascertain and establish the specific situations, if any, in which a 
lower PEL could be reached. Such an onerous obligation would inevitably 
delay, if not preclude, the adoption of important health standards. In 
addition, the demanding burden of setting multiple PELs would be 
complicated by the difficulties inherent in precisely defining and 
clearly distinguishing between affected industries and operations where 
the classification determines legal obligations. The definitional and 
line-drawing problem is far less significant when OSHA merely uses a 
unit of industries and operations for analytical but not compliance 
purposes, and when it sets a PEL in the aggregate, i.e., when its 
analysis is limited to determining whether a particular PEL is the 
lowest feasible level for affected industries as a whole. If OSHA had 
to set multiple PELs, and assign industries or operations to those 
PELs, the problem would become much more pronounced as the consequences 
of imprecise classifications would become much more significant.
    The North American Industry Classification System (NAICS), which 
has replaced the Standard Industrial Classification (SIC) system as the 
standard Federal statistical agencies use in classifying business 
establishments, is not an appropriate basis for establishing multiple 
PELs. NAICS classifications are based on generally-worded definitions 
and it is not always clear which definition best fits a particular 
establishment. Moreover, an establishment's NAICS classification is 
based on its primary activity. The establishment may include many other 
activities, however, and what is the lowest feasible level for 
operations in one activity may not be so for other activities. In 
addition, the primary activity in an establishment may change over time 
and the NAICS system itself is subject to revision every five years. 
Definitional uncertainties, the presence of multiple and changing 
business activities, and periodic revisions in individual codes could 
have important consequences for enforcement of the standard over time. 
For these reasons, OSHA has historically been reluctant to disaggregate 
coverage of a standard by SIC classification. See 58 FR 166620-16621 
(March 30, 1993) (discussing disaggregation of coverage of lockout/
tagout standard).
    Similarly, disaggregation by operation has major practical 
disadvantages. In addition to definitional complexities, a significant 
problem with the use of operations for disaggregating the PEL is that 
many firms have exposures in two or more different categories. Welding, 
for example, is widely used in manufacturing operations in general 
industry, maritime and construction. So, for instance, setting the PEL 
at 5 for welding applications and 1 for other applications would mean 
that some firms would have to attain two different PELs for Cr(VI) 
exposures within the same workplace, and possibly even for the same 
employees. As another example, chromium conversion is a process where a 
treated metal surface is converted to a layer containing a complex 
mixture of chromium compounds. Unlike electroplating, chromium 
conversion is an entirely chemical process, and results in lower Cr(VI) 
exposures than are typically associated with chromium electroplating. 
Where chromium conversion is performed along with chromium 
electroplating in a single establishment, it may be virtually 
impossible to distinguish exposures from one source versus the other. 
The same workers may even perform both tasks. Exposures from hard 
chrome electroplating inevitably affect other nearby workers because 
hard chrome plating is often done in the same workplaces or areas and 
even at the same time as other operations involving lower Cr(VI) 
exposures such as decorative plating and chrome conversion. In fact, in 
many circumstances it can be virtually impossible to distinguish the 
different sources that contribute to a particular employee's exposure 
levels.
    These are just a few examples of the many instances reflected in 
the record in which individual employers will have Cr(VI) exposures 
emanating from two or more different operations (Exs. 38-233, pp. 9-10; 
39-52, p. 4; 47-24, p. 2; 39-20, p. 5). If multiple PELs were 
established for different operations, employers would be forced to 
monitor for compliance with two or more PELs within the same 
workplace--a task rendered all the more difficult by the fact that the 
exposure of an employee may not be tied exclusively to a single task; 
different processes may be performed in close proximity to one another 
and each may contribute to the exposure of an individual.
    OSHA also believes that a uniform PEL will ultimately make the 
standard more effective by making it easier for affected employers to 
understand and comply with the standard's requirements. A uniform PEL 
also makes it easier for OSHA to provide clear guidance to the 
regulated community and to identify non-compliant conditions.
    Finally, OSHA is concerned that adopting multiple PELS could result 
in a great number of subcategories that would have to be tracked for 
enforcement purposes. Apart from welding and electroplating, which 
present particularly severe

[[Page 10339]]

dissagregation problems, there are over thirty other industry sectors 
with exposure to Cr(VI). None of these sectors individually accounts 
for more than 6% of the total of exposed employees; in fact, several of 
those groups employ fewer than 100 employees.
    For these reasons, OSHA has historically interpreted section 
6(b)(5) to accord the Agency substantial discretion to set the PEL at 
the lowest level feasible for industries or operations as a whole. In 
adopting the arsenic standard, for example, OSHA expressly declined to 
set different PELS, finding that ``[s]uch an approach would be 
extremely difficult to implement.'' 43 FR 19584, 19601 (May 5, 1978). 
In that instance, OSHA explained:

    The approach OSHA believes appropriate and has chosen for this 
and other standards is the lowest level achievable through 
engineering controls and work practices in the majority of 
locations. This approach is intended to provide maximum protection 
without excessively heavy respirator use. Id.

Similarly, when OSHA initially lowered the PEL for benzene from 10 ppm 
to 1 ppm, it considered, but rejected, the idea of establishing 
additional lower PELs, concluding that ``different levels for different 
industries would result in serious administrative difficulties.'' 43 FR 
5918, 5947 (Feb. 10, 1978). And when OSHA subsequently reconsidered the 
benzene standard after it was remanded for a more specific finding of 
significant risk, OSHA considered, but rejected, a PEL of 0.5 ppm, noting:

    The unions have pointed out some situations where controls might 
do somewhat better than 1 ppm * * * [but] OSHA believes it has 
chosen the correct balance at 1 ppm as the level it can have a high 
degree of confidence is generally achievable. 52 FR 34460, 34519 
(Sept. 11, 1987).

    In the case of cotton dust, where OSHA did set different PELs for 
certain discrete groups, the groups involved exposures to different 
kinds of cotton dust and different degrees of risk. Even so, OSHA 
declined to adopt a unique PEL for every single affected sector. See 43 
FR 27350, 37360-61 (June 23, 1978) (OSHA set one PEL for textile 
industries and a separate PEL for non-textile industries, but expressly 
rejected the option of adopting different exposure limits for each non-
textile industry).
    In conclusion, the new PEL is the lowest level that can feasibly be 
attained for many industries and operations employing a large number of 
covered workers, in fact a majority of employees exposed to hexavalent 
chromium. Considering all of the factors outlined above, OSHA finds 
that a uniform PEL of 5 [mu]g/m\3\ is consistent with section 6(b)(5) 
and that further dissagregation is not warranted.
    A Short-term Exposure Limit is Unnecessary. Several commenters 
recommended that OSHA establish a short-term exposure limit (STEL) for 
Cr(VI) (Exs. 38-219; 38-222; 39-38; 39-50; 40-19). By restricting 
potential high magnitude exposures of short duration, a STEL is 
intended to protect against health effects associated with relatively 
high exposures, as well as to reduce cumulative exposures. The UAW 
indicated that the high residual risk of cancer justified a STEL (Ex. 
40-19), while NIOSH stated that short-term exposures to high levels of 
Cr(VI) can cause severe respiratory effects (40-10-2, p. 17). Other 
commenters did not believe a STEL was justified, in some cases noting 
that neither NIOSH nor ACGIH recommends a STEL for Cr(VI) (Exs. 38-214; 
38-220; 39-19; 39-20; 39-40; 39-41; 39-47; 39-51; 39-52; 39-60; 43-26).
    OSHA decided not to include a STEL in the final Cr(VI) standard for 
three reasons. First, employers already are required to reduce 
exposures to levels at or below the new PEL, which is expected to limit 
the occurrence of high exposure excursions. Although it will not 
eliminate all risk from peak exposures, the Agency anticipates that 
compliance with the new PEL will substantially reduce the frequency and 
magnitude of high exposure excursions, and thereby minimize the 
likelihood of adverse health effects resulting from peak exposures. 
Second, although in theory imposing a STEL might further lower 
cumulative exposures to Cr(VI), there is little record evidence 
supporting this supposition. Third, in some application groups, such as 
plastic colorant producers, employees are typically exposed to Cr(VI) 
not only for short durations but also intermittently. The industry has 
estimated that only 5% of pigments used contain Cr(VI) (Ex. 47-24-1). 
For these users, compliance with a STEL might require the expenditure 
of considerable resources without providing much additional protection 
to workers. These resources could more effectively be allocated to 
other forms of worker protection.
    Without better justification, OSHA does not consider establishment 
of a STEL to be reasonably necessary or appropriate. OSHA has concluded 
that a STEL would provide at most a de minimis health benefit.
(d) Exposure Determination
    Paragraph (d) of the final rule sets forth requirements for 
determining employee exposures to Cr(VI). The requirements are issued 
pursuant to Section 6(b)(7) of the OSH Act (29 U.S.C. 655) which 
mandates that any standard promulgated under section 6(b) shall, where 
appropriate, ``provide for monitoring or measuring of employee exposure 
at such locations and intervals, and in such manner as may be necessary 
for the protection of employees.''
    The purpose of requiring an assessment of employee exposures to 
Cr(VI) includes: determination of the extent and degree of exposure at 
the worksite; identification and prevention of employee overexposure; 
identification of the sources of exposure to Cr(VI); collection of 
exposure data so that the employer can select the proper control 
methods to be used; and evaluation of the effectiveness of those 
selected methods. Assessment enables employers to meet their legal 
obligation to ensure that their employees are not exposed to Cr(VI) in 
excess of the permissible exposure level and to notify employees of 
their exposure levels, as required by section 8(c)(3) of the Act. In 
addition, the availability of exposure data enables the PLHCP 
performing medical examinations to be informed of the extent of 
occupational exposures.
    The final requirements have been revised from those proposed in 
response to comments received. In the proposed general industry 
standard, OSHA included a requirement for initial exposure monitoring 
in all workplaces covered by the rule, unless monitoring had been 
performed in the previous 12 months, or the employer had data to 
demonstrate that exposures would be below the action level. Periodic 
monitoring was required at intervals determined by monitoring results 
(i.e., at least every 6 months if exposures were at or above the action 
level, at least every 3 months if exposures were above the PEL), and 
additional monitoring was required when changes in the workplace 
resulted in new or additional exposures to Cr(VI). These requirements 
are similar to requirements for monitoring found in previous OSHA 
substance-specific health standards, such as those for methylene 
chloride (29 CFR 1910.1052) and 1,3-butadiene (29 CFR 1910.1051).
    The proposed standards for construction and shipyards did not 
include provisions for exposure monitoring. OSHA did not propose 
specific exposure monitoring requirements for construction and 
shipyards because operations in these sectors are often of short 
duration, and are performed under varying environmental conditions.
    In omitting exposure monitoring requirements from the proposed

[[Page 10340]]

standards for construction and shipyards, OSHA intended to provide 
construction and shipyard employers with the flexibility to assess 
Cr(VI) exposures in any manner they considered appropriate. It was not 
the Agency's intent that employers ignore substantial exposures to 
Cr(VI). Because the obligation to comply with the PEL would remain, the 
employer would have to accurately characterize Cr(VI) exposures in 
order to determine if they were in compliance. At the time of the 
proposal, OSHA considered this performance-oriented approach a 
reasonable way to determine employee exposures to Cr(VI) while avoiding 
the more infeasible requirements of a scheduled monitoring approach 
that might not be useful in construction and shipyard workplaces. This 
performance-based approach was consistent with OSHA's standard for air 
contaminants (29 CFR 1910.1000), which establishes PELs for over 400 
substances but does not include specific requirements for exposure 
monitoring.
    Construction and shipyard employers who expressed an opinion on the 
issue generally supported the absence of specific exposure monitoring 
requirements (e.g., Exs. 38-220; 38-235; 38-244). In addition to those 
operations that involved changing conditions, employers argued that 
periodic monitoring requirements were unnecessary when conditions did 
not change (Exs. 38-124; 38-213, 38-215; 38-189, 38-191). For example, 
the U.S. Navy stated:

    The prescriptive schedule of required air sampling has not 
proved beneficial in assessing risks in shipyards * * * where there 
has been virtually no change in conditions, yet costs for consistent 
air sampling have been incurred on an annual basis without 
informational benefit or added protection for workers. The 
performance-based sampling approach * * * is protective, efficient, 
and logical (Ex. 38-220).

A number of employers also supported a performance oriented approach 
for exposure determination in general industry workplaces (Exs. 38-189; 
38-191; 38-213; 38-215; 39-48). Some of these commenters argued that 
Cr(VI) exposures in their workplaces were intermittent, variable, and 
of short duration, and therefore similar to those found in construction 
and shipyards (Exs. 38-203; 38-254; 39-19; 39-48; 39-56). Other 
comments focused on requirements for periodic monitoring that were 
considered to be excessive (e.g., Exs. 38-124; 38-189; 38-191; 38-213; 
38-215; 38-233). For example, the Color Pigments Manufacturers 
Association stated:

    OSHA continues to require repeated monitoring at great cost in 
general industry under circumstances where no change in procedure, 
process, equipment or exposure has occurred to warrant repeated 
exposure monitoring. This requirement is unnecessary and punitive. 
It forces general industry to expend valuable resources on continual 
monitoring without reason (Ex. 38-205).

Some employers, while maintaining that periodic monitoring requirements 
were not warranted, indicated that initial exposure monitoring or an 
initial hazard assessment would be appropriate (Exs. 38-214; 38-245-1).
    Other commenters, including unions, Public Citizen, and NIOSH, 
supported explicit requirements for exposure assessment (Exs. 38-199-1; 
38-222; 40-10-2; 47-23, p. 16). These parties argued that employers 
will not know whether or not they are in compliance with the standard 
without mandated exposure monitoring. For example, the Building and 
Construction Trades Department, AFL-CIO, stated:

    If OSHA indeed intends construction employers to conduct an 
exposure assessment, this requirement must be explicitly stated in 
the regulation. To suggest that employers will attempt to 
characterize exposure routinely without an explicit requirement in 
the regulation is ludicrous (Ex. 38-219).

Even where controls are implemented, it was argued, exposure assessment 
is still necessary to ensure that those controls are adequately 
protective (Ex. 38-219). NIOSH suggested that OSHA might want to 
consider developing alternative means for assessing exposures, such as 
the use of interim protection provisions in construction for certain 
tasks until exposure monitoring could be done (see the lead standard, 
29 CFR 1926.62(d)) and the use of grouped tasks and grouping job types 
into classes based on exposure potential (see the asbestos standard, 29 
CFR 1926.1101) (Ex. 40-10-2, p. 19).
    After considering the evidence and arguments advanced by rulemaking 
participants, OSHA is convinced that requirements for scheduled initial 
and periodic Cr(VI) exposure monitoring are not appropriate in all 
circumstances. In particular, OSHA believes that the evidence in this 
rulemaking, as discussed earlier in this section in paragraph (c), 
permissible exposure limit, demonstrates the varied nature of Cr(VI) 
exposures across a number of different work operations. However, OSHA 
also believes that valid concerns have been raised regarding the 
adequacy of exposure assessments that would be performed in the absence 
of explicit requirements. The Agency is therefore including in the 
final rule two alternative options for all affected employers to follow 
for determining employee exposures to Cr(VI). The first option, 
referred to as the ``scheduled monitoring option'', consists of 
requirements for initial monitoring and periodic monitoring at 
intervals based on monitoring results. This approach is similar to that 
proposed for general industry in this rulemaking and with exposure 
assessment requirements in previous OSHA substance-specific standards. 
The second option, referred to as the ``performance-oriented option'', 
allows employers to use any combination of air monitoring data (i.e., 
data obtained from initial and periodic monitoring performed in 
accordance with the requirements of the Cr(VI) standard), historical 
monitoring data, or objective data to determine employee exposures to 
Cr(VI), as long as the data are sufficient to accurately characterize 
exposures.
    OSHA believes that by including explicit requirements for exposure 
determination in the standards for general industry, construction, and 
shipyards, the Agency makes clear the obligation of employers to 
accurately assess employee exposures to Cr(VI) in all sectors. By 
offering two options for achieving this goal, the final rule provides a 
framework that is familiar to many employers and has been successfully 
applied in the past, as well as flexibility for employers who are able 
to characterize employee exposures through alternative methods.
    OSHA has chosen not to use the task-based approaches suggested by 
NIOSH (Ex. 40-10-2) that the Agency has used in several previous health 
standards covering construction. While OSHA believes that these 
approaches are effective in certain construction settings, there was 
not sufficient information in this rulemaking record for OSHA to 
develop classes of exposures that would apply across the many varied 
work operations with Cr(VI) exposures. While it was not possible to 
develop specific classes of operations to apply across all industries, 
OSHA believes that an individual employer, with specific information 
about the work processes at his worksite, may be able to use such an 
approach in using the performance-based option allowed by this final rule.
    Paragraph (d)(2) contains requirements for employers who choose the 
scheduled monitoring option. Employers who select this option must 
conduct initial monitoring to determine employee exposure to Cr(VI). 
OSHA has not established a separate compliance date for initial 
monitoring to allow employers flexibility in scheduling this activity. 
However, employers must

[[Page 10341]]

allow sufficient time after initial monitoring is performed to achieve 
compliance (e.g., establish regulated areas, provide appropriate 
respiratory protection) by the start-up dates specified in paragraph 
(n) (paragraph (l) for construction and shipyards). Monitoring to 
determine employee exposures must represent the employee's time-
weighted average exposure to airborne Cr(VI) over an eight-hour 
workday. Samples must be taken within the employee's breathing zone 
(i.e., ``personal breathing zone samples'' or ``personal samples''), 
and must represent the employee's exposure without regard to the use of 
respiratory protection.
    Employers must accurately characterize the exposure of each 
employee to Cr(VI). In some cases, this will entail monitoring all 
exposed employees. In other cases, monitoring of ``representative'' 
employees is sufficient. Representative exposure sampling is permitted 
when a number of employees perform essentially the same job under the 
same conditions. For such situations, it may be sufficient to monitor a 
fraction of these employees in order to obtain data that are 
``representative'' of the remaining employees. Representative personal 
sampling for employees engaged in similar work with Cr(VI) exposure of 
similar duration and magnitude is achieved by monitoring the 
employee(s) reasonably expected to have the highest Cr(VI) exposures. 
For example, this may involve monitoring the Cr(VI) exposure of the 
employee closest to an exposure source. This exposure result may then 
be attributed to the remaining employees in the group.
    Exposure monitoring should include, at a minimum, one full-shift 
sample taken for each job function in each job classification, in each 
work area, for each shift. These samples must consist of at least one 
sample characteristic of the entire shift or consecutive representative 
samples taken over the length of the shift. Where employees are not 
performing the same job under the same conditions, representative 
sampling will not adequately characterize actual exposures, and 
individual monitoring is necessary.
    Employers who have workplaces covered by the standard must 
determine if any of their employees are exposed to Cr(VI) at or above 
the action level. Further obligations under the standard are based on 
the results of this assessment. These may include obligations for 
periodic monitoring, establishment of regulated areas, implementation 
of control measures, and provision of medical surveillance.
    Requirements for periodic monitoring depend on the results of 
initial monitoring. If the initial monitoring indicates that employee 
exposures are below the action level, no further monitoring is required 
unless changes in the workplace result in new or additional exposures. 
If the initial determination reveals employee exposures to be at or 
above the action level but at or below the PEL, the employer must 
perform periodic monitoring at least every six months. If the initial 
monitoring reveals employee exposures to be above the PEL, the employer 
must repeat monitoring at least every three months.
    The scheduled monitoring option also includes provisions to adjust 
the frequency of periodic monitoring based on monitoring results. If 
periodic monitoring results indicate that employee exposures have 
fallen below the action level, and those results are confirmed by 
consecutive measurements taken at least seven days apart, the employer 
may discontinue monitoring for those employees whose exposures are 
represented by such monitoring. Similarly, if periodic monitoring 
measurements indicate that exposures are at or below the PEL but at or 
above the action level, the employer may reduce the frequency of the 
monitoring to at least every six months.
    OSHA recognizes that exposures in the workplace may fluctuate. 
Periodic monitoring provides the employer with assurance that employees 
are not experiencing higher exposures that may require the use of 
additional control measures. In addition, periodic monitoring reminds 
employees and employers of the continued need to protect against the 
hazards associated with exposure to Cr(VI).
    Because of the fluctuation in exposures, OSHA believes that when 
initial monitoring results equal or exceed the action level but are at 
or below the PEL, employers should continue to monitor employees to 
ensure that exposures remain at or below the PEL. Likewise, when 
initial monitoring results exceed the PEL, periodic monitoring allows 
the employer to maintain an accurate profile of employee exposures. If 
the employer installs or upgrades controls, periodic monitoring will 
demonstrate whether or not controls are working properly. Selection of 
appropriate respiratory protection also depends on adequate knowledge 
of employee exposures.
    In general, the more frequently periodic monitoring is performed, 
the more accurate the employee exposure profile. Selecting an 
appropriate interval between measurements is a matter of judgment. OSHA 
believes that the frequency of six months for subsequent periodic 
monitoring for exposures at or above the action level but at or below 
the PEL, and three months for exposures above the PEL, provides 
intervals that are both practical for employers and protective for 
employees. This belief is supported by OSHA's experience with 
comparable monitoring intervals in other standards, including those for 
cadmium (29 CFR 1910.1027), methylenedianiline (29 CFR 1910.1050), 
methylene chloride (29 CFR 1910.1052), and formaldehyde (29 CFR 1910.1048).
    OSHA recognizes that monitoring can be a time-consuming, expensive 
endeavor and therefore offers employers the incentive of discontinuing 
monitoring for employees whose sampling results indicate exposures are 
below the action level. The Agency does not believe that periodic 
monitoring is generally necessary when monitoring results show that 
exposures are below the action level because there is a low probability 
that the results of future samples would exceed the PEL. Therefore the 
final rule provides an incentive for employers to control their 
employees' exposures to Cr(VI) below the action level to minimize their 
exposure monitoring obligations while maximizing the protection of 
employees' health.
    Under the scheduled monitoring option, employers are to perform 
additional monitoring when there is a change in production process, raw 
materials, equipment, personnel, work practices, or control methods, 
that may result in new or additional exposures to Cr(VI). For example, 
if an employer has conducted monitoring for an electroplating operation 
while using fume suppressants, and the use of fume suppressants is 
discontinued, then additional monitoring would be necessary to 
determine employee exposures under the modified conditions. In 
addition, there may be other situations which can result in new or 
additional exposures to Cr(VI) which are unique to an employer's work 
situation. For instance, a welder may move from an open, outdoor 
location to an enclosed or confined space. Even though the task 
performed and materials used may remain constant, the changed 
environment could reasonably be expected to result in higher exposures 
to Cr(VI). In order to cover those special situations, OSHA requires 
the employer to perform additional monitoring whenever the employer has 
any reason to believe that a change has occurred which may result in 
new or additional

[[Page 10342]]

exposures. This additional monitoring is necessary to ensure that 
monitoring results accurately represent existing exposure conditions. 
This information will enable the employer to take appropriate action to 
protect exposed employees, such as instituting additional engineering 
controls or providing appropriate respiratory protection. On the other 
hand, additional monitoring is not required simply because a change has 
been made, if the change is not reasonably expected to result in new or 
additional exposures to Cr(VI). For example, monitoring may be 
conducted in an establishment when welding was performed on steel with 
15% Cr content. If the establishment switches to a steel with 10% Cr 
content without changing any other aspect of the work operation, then 
additional exposures to Cr(VI) would not reasonably be expected, and 
additional monitoring would not be required.
    The performance-oriented option allows the employer to determine 
the 8-hour TWA exposure for each employee on the basis of any 
combination of air monitoring data, historical monitoring data, or 
objective data sufficient to accurately characterize employee exposure 
to Cr(VI). This option is intended to allow employers flexibility in 
assessing the Cr(VI) exposures of their employees. Where the employer 
elects to follow this option, the exposure determination must be 
performed prior to the time the work operation commences, and must 
provide the same degree of assurance that employee exposures have been 
correctly characterized as air monitoring would. The employer is 
expected to reevaluate employee exposures when there is any change in 
the production process, raw materials, equipment, personnel, work 
practices, or control methods that may result in new or additional 
exposures to Cr(VI).
    When using the term ``air monitoring data'' in this paragraph, OSHA 
refers to initial and periodic Cr(VI) monitoring conducted to comply 
with the requirements of this standard, including the prescribed 
accuracy and confidence requirements. Historical monitoring data refers 
to Cr(VI) monitoring data that was obtained prior to the effective date 
of the final rule, where the data were obtained during work operations 
conducted under workplace conditions closely resembling the processes, 
types of material, control methods, work practices, and environmental 
conditions in the employer's current operations, and where that 
monitoring satisfies all other requirements of this section, including 
the accuracy and confidence requirements described below.
    Objective data means information such as air monitoring data from 
industry-wide surveys or calculations based on the composition or 
chemical and physical properties of a substance demonstrating employee 
exposure to Cr(VI) associated with a particular product or material or 
a specific process, operation, or activity. The data must reflect 
workplace conditions closely resembling the processes, types of 
material, control methods, work practices, and environmental conditions 
in the employer's current operations. Objective data demonstrate the 
Cr(VI) exposures associated with a work operation or product under the 
range of expected conditions of use. For example, data collected by a 
trade association from its members may be used to determine exposures 
to Cr(VI) provided the data meet the definition of objective data in 
the standard.
    Previous OSHA substance-specific health standards have usually 
allowed employers to use objective data to characterize employee 
exposures, but have generally limited its use to demonstrating that 
exposures would be below the action level (e.g., the Cadmium standard, 
29 CFR 1910.1027(d)(2)(iii)). Likewise, use of historical monitoring 
data has typically been allowed, but has usually been limited to data 
obtained within the previous 12 months (e.g., the Methylene Chloride 
standard, 29 CFR 1910.1052(d)(2)(ii)). In this instance, OSHA does not 
place these limitations on the use of historical monitoring data or 
objective data. However, the burden is on the employer to show that the 
data comply with the requirements of this section. For example, 
historical monitoring data obtained 18 months prior to the effective 
date of the standard could be used to determine employee exposures, but 
only if the employer could show that the data were obtained during work 
operations conducted under workplace conditions closely resembling the 
processes, types of material, control methods, work practices, and 
environmental conditions in the employer's current operations, and that 
the monitoring satisfies all other requirements of this section, 
including the accuracy and confidence requirements. OSHA's intent is to 
allow employers the greatest possible flexibility in methods used to 
determine employee exposures to Cr(VI), but to ensure that the methods 
used are accurate in characterizing employee exposures.
    Under paragraph (d)(4) of the final rule, employers covered by the 
general industry standard must notify each affected employee within 15 
working days if the exposure determination indicates that employee 
exposure exceeds the PEL. In construction and shipyards, employers must 
notify each affected employee as soon as possible but not more than 5 
working days after the exposure determination indicates that employee 
exposure exceeds the PEL. A shorter time period for notification is 
provided in construction and shipyards in recognition of the often 
short duration of operations and employment in particular locations in 
these sectors. The time allowed for notification is consistent with the 
harmonized notification times established for these sectors in Phase II 
of OSHA's Standards Improvement Project (70 FR 1112 (1/5/05)). Where 
the employer follows the scheduled monitoring option, the 15 (or 5) 
working day period commences when monitoring results are received. For 
employers following the performance-oriented option, the 15 (or 5) 
working day period commences when the determination is made (i.e., 
prior to the time the work operation commences, and when exposures are 
reevaluated).
    When using the term ``affected employees'' in this provision, OSHA 
is referring to all employees considered to be above the PEL. This 
would include employees who are not actually subject to personal 
monitoring, but are represented by an employee who is sampled. Affected 
employees also include employees whose exposures have been deemed to be 
above the PEL on the basis of historical or objective data. The 
employer shall either notify each affected employee in writing or post 
the monitoring results in an appropriate location accessible to all 
affected employees. In addition, whenever the PEL has been exceeded, 
the written notification must contain a description of the corrective 
action(s) being taken by the employer to reduce the employee's exposure 
to or below the PEL. The requirement to inform employees of the 
corrective actions the employer is taking to reduce the exposure level 
to or below the PEL is necessary to assure employees that the employer 
is making efforts to furnish them with a safe and healthful work 
environment, and is required under section 8(c)(3) of the Act.
    Paragraph (d)(5) of the final rule requires the employer to use 
monitoring and analytical methods that can measure airborne levels of 
Cr(VI) to within an accuracy of plus or minus 25% (±25%) and 
can produce accurate measurements to within a statistical confidence 
level of 95% for airborne concentrations at or above the action level. 
Many laboratories presently have

[[Page 10343]]

methods to measure Cr(VI) at the action level with at least the 
required degree of accuracy. One example of an acceptable method of 
monitoring and analysis is OSHA method ID215, which is a fully 
validated analytical method used by the Agency. (See Chapter III of the 
FEA for a discussion of issues regarding methods of sampling and 
analysis). Rather than specifying a particular method that must be 
used, OSHA allows the employer to use any method as long as the chosen 
method meets the accuracy specifications. This is consistent with the 
general performance approach favored in the OSH Act.
    Paragraph (d)(6) requires the employer to provide affected 
employees or their designated representatives an opportunity to observe 
any monitoring of employee exposure to Cr(VI), whether the employer 
uses the scheduled monitoring option or the performance-oriented 
option. When observation of monitoring requires entry into an area 
where the use of protective clothing or equipment is required, the 
employer must provide the observer with that protective clothing or 
equipment, and assure that the observer uses such clothing or equipment 
and complies with all other required safety and health procedures.
    The requirement for employers to provide employees or their 
representatives the opportunity to observe monitoring is consistent 
with the OSH Act. Section 8(c)(3) of the OSH Act mandates that 
regulations developed under Section 6 provide employees or their 
representatives with the opportunity to observe monitoring or 
measurements. Also, Section 6(b)(7) of the OSH Act states that where 
appropriate, OSHA standards are to prescribe suitable protective 
equipment to be used in dealing with hazards. The provision for 
observation of monitoring and protection of the observers is also 
consistent with OSHA's other substance-specific health standards such 
as those for cadmium (29 CFR 1910.1027) and methylene chloride (29 CFR 
1910.1052).
(e) Regulated Areas
    Paragraph (e) of the final rule requires general industry employers 
to establish regulated areas wherever an employee's exposure to 
airborne concentrations of Cr(VI) is, or can reasonably be expected to 
be, in excess of the PEL. Regulated areas are to be demarcated from the 
rest of the workplace in a manner that adequately establishes and 
alerts employees to the boundaries of these areas. Access to regulated 
areas is to be limited to persons authorized by the employer and 
required by work duties to be present in the regulated area; any person 
entering the regulated area to observe monitoring procedures; or any 
person authorized by the OSH Act or regulations issued under it to be 
in a regulated area.
    The purpose of a regulated area is to ensure that the employer 
makes employees aware of the presence of Cr(VI) at levels above the 
PEL, and to limit Cr(VI) exposure to as few employees as possible. The 
establishment of a regulated area is an effective means of limiting the 
risk of exposure to substances known to have carcinogenic effects. 
Because of the potentially serious results of exposure and the need for 
persons exposed above the PEL to be properly protected, the number of 
persons given access to the area must be limited to those employees 
needed to perform the job. Limiting access to regulated areas also has 
the benefit of reducing the employer's obligation to implement 
provisions of this standard to as few employees as possible.
    In keeping with the performance orientation of this standard, OSHA 
has not specified how employers are to demarcate regulated areas. OSHA 
proposed that warning signs be posted at all approaches to regulated 
areas, and set forth specific language in paragraph (1) of the proposed 
standard to be included on the warning signs. However, OSHA has 
determined that other means of demarcation such as barricades, lines 
and textured flooring, or signs using other language can be equally 
effective in identifying the boundaries of regulated areas and 
notifying employees of associated hazards, the need to restrict access 
to such areas, and protective measures to be implemented. The specific 
language for warning signs included in paragraph (1) of the proposal, 
and the reference to that language in this provision, have therefore 
been deleted from the final rule.
    In the final rule, OSHA thus has provided employers with the 
flexibility to use the methods of demarcation that are most appropriate 
for identifying regulated areas in their workplace. Factors that the 
Agency believes are appropriate for employers to consider in 
determining how to mark their areas include the configuration of the 
area, whether the regulated area is permanent, the airborne Cr(VI) 
concentration, the number of employees in adjacent areas, and the 
period of time the area is expected to have exposure levels above the 
PEL. Permitting employers to choose how best to identify and limit 
access to regulated areas is consistent with OSHA's belief that 
employers are in the best position to make such determinations, based 
on their knowledge of the specific conditions of their workplaces. 
Whatever methods are chosen, the demarcation must effectively warn 
employees not to enter the area unless they are authorized, and then 
only if they are using the proper personal protective equipment. 
Allowing employers to demarcate and limit access to the regulated areas 
as they choose is consistent with OSHA's two most recent substance-
specific health standards, addressing occupational exposure to methylene 
chloride (29 CFR 1910.1052(e)) and 1,3-butadiene (29 CFR 1910.1051(e)).
    Access to the regulated area is restricted to ``authorized 
persons.'' For the purposes of this standard, these are persons 
required by their job duties to be present in the area, as authorized 
by the employer. This may include maintenance and repair personnel, 
management, quality control engineers, or other personnel if job duties 
require their presence in the regulated area. In addition, persons 
exercising the right to observe monitoring procedures are allowed to 
enter regulated areas when exposure monitoring is being conducted. 
Persons authorized under the OSH Act, such as OSHA compliance officers, 
are also allowed access to regulated areas.
    In the final rule, OSHA has not included a requirement for 
regulated areas in construction and shipyard workplaces, due to the 
expected practical difficulties of establishing regulated areas for 
operations in these sectors. OSHA raised the issue of requiring 
regulated areas for these workplaces and received comments and 
testimony from a variety of sources. A number of commenters supported 
not requiring regulated areas in construction and shipyards (Exs. 38-
214; 38-220; 38-235; 38-236; 38-244; 39-37; 39-20; 39-40; 39-48; 39-64; 
39-65). The National Association of Home Builders, for example, 
indicated that regulated areas are not feasible on residential 
construction jobsites because the area where exposures would exceed the 
PEL could not be accurately determined, stating:

    Because of the fluid nature of construction work and the ever-
changing work environment, a regulated area could never be 
accurately determined due to the fact that construction areas are 
mostly exposed to the ambient environment. Factors such as shifting 
winds, tight work areas and multiple operations adjacent to the 
regulated area would create changes in air movement and would make 
establishment of a regulated area unattainable (Ex. 38-244).

[[Page 10344]]

Associated Builders and Contractors concurred with this assessment, and 
maintained that establishment of regulated areas could interfere with 
construction operations:

    The nature of construction sites makes it extremely difficult to 
close off certain areas from others without shutting down or 
interfering with significant construction activities (Ex. 39-65).

    Some commenters maintained that certain activities should not be 
subject to requirements for regulated areas (Exs. 38-7, p. 5; 38-124; 
38-203; 38-205; 38-228; 38-233; 38-238; 38-254; 39-19; 39-56; 39-62). 
The Office of Advocacy of the Small Business Administration, for 
example, stated that requirements for regulated areas should be limited 
to industries and processes where they would likely reduce exposures, 
arguing that establishment of regulated areas would have the effect of 
requiring respirators or other controls for more employees than 
necessary (Ex. 38-7). Because regulated areas are required only where 
exposures exceed the PEL, OSHA considers that these requirements are 
limited to situations where they can reduce exposures. As mentioned 
previously, making employees aware of potential exposures in excess of 
the PEL and limiting the number of employees present in regulated areas 
will effectively reduce exposures to Cr(VI). Moreover, establishment of 
regulated areas will not result in additional requirements for 
respirators or other controls, because requirements for these other 
control measures are not directly related to the establishment of 
regulated areas. Simply entering a regulated area, for example, does 
not trigger a requirement for use of respiratory protection.
    Other commenters maintained that certain general industry 
activities, or general industry as a whole, should not be subject to 
the proposed requirements for regulated areas. Alabama Power, for 
example, indicated that the same rationale used to justify the absence 
of regulated area requirements in construction and shipyards also 
applied to general industry environments such as power plants (Exs. 38-
254; 38-203). Others argued that regulated areas were not appropriate 
for specific activities such as welding (Ex. 38-124), job shop 
fabrication (Exs. 38-238; 39-62), or glass manufacturing (Ex. 38-228).
    Other commenters expressed support for regulated area requirements, 
arguing that they were a feasible and useful means of protecting 
workers, and should apply to construction and shipyards as well as 
general industry workplaces (Exs. 38-199-1; 38-219; 38-222; 39-38; 39-
71; 40-10-2; 47-28). For example, NIOSH indicated that regulated areas 
help minimize exposures to bystanders in construction and shipyard 
worksites:

    * * * regulated areas are important on construction and shipyard 
worksites because of the potential for ``bystander'' exposures given 
that it is common for employees from different trades to work in 
close proximity. For construction, bystander employees may work for 
different employers, thus complicating control efforts (Ex. 40-10-2).

Regulated areas, it was argued, are not unduly burdensome. Dr. Franklin 
Mirer of the United Auto Workers, when asked if he foresaw problems 
with requirements for regulated areas, stated:

    * * * you put a sign [up] and you tell people who don't have to 
be there not to be there * * * what's burdensome about that? It's 
like * * * putting up a sign on the ladies room. Certain people 
can't go in that regulated area (Tr. 837).

    OSHA believes, however, that Dr. Mirer oversimplifies the 
situation. The difficulty is not with the mere physical act of putting 
up a sign at a regulated area, but rather with determining where, when, 
and for how long a duration to establish a regulated area. Making these 
determinations is very problematic given the varied and changing nature 
of the operations involving Cr(VI) exposures at construction and 
shipyard worksites. Moreover, areas where employees are exposed above 
the PEL might change on a daily or even hourly basis and may occur at 
different sites on the worksite than they did the day before, making it 
unreasonably difficult to keep up with the posting (and removal) of 
signs, barricades or other warning in a manner that would effectively 
let employees know about the hazard.
    OSHA has concluded that requirements for regulated areas are 
appropriate for general industry, but not for construction and 
shipyards, because the work sites and conditions and other factors, 
such as environmental variability normally present in construction and 
shipyard employment, differ substantially from those typically found in 
general industry. Construction and shipyard tasks are often of 
relatively short duration; are commonly performed outdoors, sometimes 
under adverse environmental conditions (e.g., wind, rain); and are 
often performed at non-fixed workstations or work sites. Collectively, 
these factors make establishment of regulated areas impracticable for 
many construction and shipyard operations.
    These difficulties are particularly evident with regard to welding 
operations in construction and shipyard workplaces. Welding is the 
predominant source of Cr(VI) exposures in these sectors, accounting for 
over 82% of employees exposed above the PEL in construction and over 
73% of employees exposed above the PEL in shipyards. Welding operations 
in construction and shipyards often involve movement to different 
locations during the workday, and welding fumes are highly subject to 
changes in air currents, meaning the exposure patterns can shift rapidly.
    In the typical shipyard and construction project involving 
exposure, it is difficult to determine appropriate boundaries for 
regulated areas because the work and worksite are varied and subject to 
environmental influences. Moreover, workers are often moving from place 
to place throughout the site on a regular basis. While each employer 
has the obligation under the requirements of paragraph (d) of this 
final rule to determine Cr(VI) exposures for all employees, accurately 
demarcating all areas where Cr(VI) exposures could potentially exceed 
the PEL is a separate and potentially much more difficult undertaking. 
In general industry environments, which are typically more stable, 
likely to be indoors, and usually at a fixed location, this can 
generally be accomplished with minimal difficulty. In construction and 
shipyard workplaces, for the reasons described above, OSHA has 
determined that establishing regulated areas to control exposures to 
Cr(VI) can not reasonably be accomplished, and has therefore not 
included a requirement for regulated areas for these sectors in the 
final rule.
    The Agency realizes that in some cases general industry work 
operations and work environments may be comparable to those found in 
construction and shipyards, and where the general industry employer can 
show compliance is not feasible, regulated areas will not have to be 
established. However, OSHA believes its longstanding distinction 
between these sectors provides an appropriate line for delineating 
between those operations where the employer generally is reasonably 
able to establish regulated areas where exposures to Cr(VI) exceed the 
PEL versus operations where regulated areas are generally not 
practicable.
    OSHA recognizes that the determination not to include requirements 
for regulated areas for construction and shipyards in this final rule 
differs from the determinations made in previous rulemakings. The AFL-
CIO pointed out that a number of

[[Page 10345]]

previous standards including those for asbestos, cadmium, benzene, 1,2-
dibromo-3-chloropropane, ethylene oxide, methylenedianiline, 
formaldehyde, and 1,3 butadiene, included provisions for regulated 
areas in construction (Exs. 38-222; 47-28-1). It is important to note, 
however, that many of these standards such as benzene, 1,2-dibromo-3-
chloropropane, ethylene oxide, methylenedianiline, and formaldehyde 
involved relatively few exposures in construction operations. For 
example, in the preamble to the final benzene standard OSHA concluded 
that while the standard would cover construction, ``The standard has 
virtually no impact on construction'' (52 FR at 34527). Similarly, 
requirements for regulated areas in the standard for cadmium in 
construction did not pose major problems for employers, because few 
workers were expected to be exposed above the PEL and thus subject to 
requirements for regulated areas. More importantly, in the cadmium 
rulemaking as in others discussed below, regulated areas for 
construction were not at issue because so few employees were 
potentially exposed above the PEL. Thus, the Agency did not address the 
factors that were presented in this rulemaking.
    OSHA's standards for lead in construction and asbestos in 
construction, on the other hand, affect relatively large numbers of 
employers and employees. The standard for lead in construction is a 
notable exception to the AFL-CIO's list. OSHA did not include 
requirements for regulated areas in that standard (see 29 CFR 1926.62). 
While the asbestos construction standard does include requirements for 
regulated areas, the classification scheme for asbestos construction 
operations (i.e., Class I, II, III and IV) and requirements for 
enclosing many work operations makes establishment of regulated areas 
easier for employers. (see 29 CFR 1926.1101). The Agency believes that 
the broad scope of the Cr(VI) final rule for construction, similar to 
the standard covering lead construction operations, would make 
application of regulated area requirements substantially more difficult 
than is the case for a standard with a much more limited scope, such as 
the standards for cadmium or benzene in construction.
    Finally, in none of the previous health standards were the 
particular difficulties of implementing regulated areas for shipyard 
and construction work specifically considered as they have been in this 
rulemaking. In this rulemaking, the establishment of regulated areas 
was a major issue with a significant volume of comments and testimony, 
allowing OSHA to fully consider the matter in light of the specific 
nature of Cr(VI) exposures. First, OSHA's proposal did not include 
regulated areas in construction and shipyard employment. Secondly, in 
the proposal, OSHA included two general questions, numbers 31 and 32, 
on modifying the requirements for construction and shipyard employment 
and one very specific question, number 47, on whether regulated areas 
should be included for construction and shipyard employment (69 FR 
59452, 59310). Thus, the public had sufficient notice and OSHA was able 
to weigh the evidence, ultimately finding the reasons for excluding 
regulated areas from construction and shipyard employment persuasive.
(f) Methods of Compliance
    Paragraph (f) of the final rule (paragraph (e) for construction and 
shipyards) establishes which methods must be used by employers to 
comply with the PEL. It requires that employers institute effective 
engineering and work practice controls as the primary means to reduce 
and maintain employee exposures to Cr(VI) to levels that are at or 
below the PEL unless the employer can demonstrate that such controls 
are not feasible. Where the employer demonstrates that such controls 
are not feasible, the final rule requires the employer to institute 
engineering and work practice controls to reduce exposures to the 
lowest feasible level. The employer is then required to supplement 
these controls with respiratory protection to achieve the PEL.
    A number of commenters supported OSHA's inclusion of the hierarchy 
of controls in the final Cr(VI) rule (e.g., Tr. 826, Exs. 38-232; 38-
235; 38-238; 39-20; 39-47; 40-10-2; 47-23; 47-26). For example, NIOSH 
endorsed the use of engineering and work practice controls as primary 
methods of controlling exposures to Cr(VI) (Ex. 40-10-2). Personal 
protective equipment such as respirators was regarded by NIOSH as the 
last line of defense, to be used only when engineering controls are not 
feasible. Other commenters objected to OSHA's proposed application of 
the hierarchy of controls in the Cr(VI) rule, arguing that use of 
respiratory protection instead of engineering controls should be 
allowed in a variety of different situations (e.g., Exs. 38-204; 38-
215; 38-216-1; 38-218; 38-233; 39-51; 39-66; 43-14; 47-30; 47-31; 47-
32). For example, the National Paint and Coatings Association contended 
that respirator use should be permitted in paint and coatings manufacture:

    * * * exposures to hexavalent chromium compounds are limited in 
time and place, and their handling is seldom encountered by other[sic]
than a relatively small number of workers, whose use of 
respirators would not pose most of the problems OSHA associates with 
respirators * * * (Ex. 39-66).

    OSHA is requiring primary reliance on engineering controls and work 
practices because reliance on these methods is consistent with good 
industrial hygiene practice, with the Agency's experience in assuring 
that workers have a healthy workplace, and with the Agency's 
traditional adherence to a hierarchy of preferred controls. Engineering 
controls are reliable, provide consistent levels of protection to a 
large number of workers, can be monitored, allow for predictable 
performance levels, and can efficiently remove a toxic substance from 
the workplace. Once removed, the toxic substance no longer poses a 
threat to employees. The effectiveness of engineering controls does not 
generally depend to any substantial degree on human behavior, and the 
operation of equipment is not as vulnerable to human error as is 
personal protective equipment.
    Engineering controls can be grouped into three main categories: (1) 
Substitution; (2) isolation; and (3) ventilation, both general and 
localized. Quite often a combination of these controls can be applied 
to an industrial hygiene control problem to achieve satisfactory air 
quality. It may not be necessary to apply all these measures to any 
specific potential hazard.
    Substitution can be an ideal control measure. One of the best ways 
to prevent workers from being exposed to a toxic substance is to stop 
using it entirely. Although substitution is not always possible, 
replacement of a toxic material with a less hazardous alternative 
should always be considered.
    In those cases where substitution of a less toxic material is not 
possible, substituting one type of process for another process may 
provide effective control of an air contaminant. For example, process 
changes from batch operations to continuous operations will usually 
reduce exposures. This is true primarily because the frequency and 
duration of workers' potential contact with process materials is 
reduced in continuous operations. Similarly, automation of a process 
can further reduce the potential hazard.
    In addition to substitution, isolation should be considered as an 
option for controlling employee exposures to

[[Page 10346]]

Cr(VI). Isolation can involve containment of the source of a hazard, 
thereby separating it from most workers. Workers can be isolated from 
Cr(VI) by working in a clean room or booth, or by placing some other 
type of barrier between the source of exposure and the employee. 
Employees can also be protected by being placed at a greater distance 
from the source of Cr(VI) emissions.
    Frequently, isolation enhances the benefits of other control 
methods. For example, Cr(VI) compounds may be used in the formulation 
of certain paints. If the mixing operation is conducted in a small, 
enclosed room the airborne Cr(VI) potentially generated by the 
operation could be confined to a small area. By ensuring containment, 
local exhaust ventilation is more effective.
    Ventilation is a method of controlling airborne concentrations of a 
contaminant by supplying or exhausting air. A local exhaust system is 
used to remove an air contaminant by capturing the contaminant at or 
near its source before it spreads throughout the workplace. General 
ventilation (dilution ventilation), on the other hand, allows the 
contaminant to spread throughout the work area but dilutes it by 
circulating large quantities of air into and out of the area. A local 
exhaust system is generally preferred to dilution ventilation because 
it provides a cleaner and healthier work environment.
    Work practice controls involve adjustments in the way a task is 
performed. In many cases, work practice controls complement engineering 
controls in providing worker protection. For example, periodic 
inspection and maintenance of process equipment and control equipment 
such as ventilation systems is an important work practice control. 
Frequently, equipment which is in disrepair or near failure will not 
perform normally. Regular inspections can detect abnormal conditions so 
that timely maintenance can then be performed. If equipment is 
routinely inspected, maintained, and repaired or replaced before failure 
is likely, there is less chance that hazardous exposures will occur.
    Workers must know the proper way to perform their job tasks in 
order to minimize their exposure to Cr(VI) and to maximize the 
effectiveness of control measures. For example, if an exhaust hood is 
designed to provide local ventilation and a worker performs a task that 
generates a contaminant away from the exhaust hood, the control measure 
will be of no use. Workers can be informed of proper operating 
procedures through information and training. Good supervision further 
ensures that proper work practices are carried out by workers. By 
persuading a worker to follow proper procedures, such as positioning 
the exhaust hood in the correct location to capture the contaminant, a 
supervisor can do much to minimize unnecessary exposure.
    Employees' exposures can also be controlled by scheduling 
operations with the highest exposures at a time when the fewest 
employees are present. For example, routine clean-up operations that 
involve Cr(VI) releases might be performed at night or at times when 
the usual production staff is not present.
    Respirators are another important, although less preferred, method 
of compliance. However, to be effective, respirators must be 
individually selected; fitted and periodically refitted; 
conscientiously and properly worn; regularly maintained; and replaced 
as necessary. In many workplaces, these conditions for effective 
respirator use are difficult to achieve. The absence of any of these 
conditions can reduce or eliminate the protection the respirator 
provides to some of all of the employees.
    Respirator effectiveness ultimately relies on the good work 
practices of individual employees. In contrast, the effectiveness of 
engineering controls does not rely so routinely on actions of 
individual employees. Engineering and work practice controls are 
capable of reducing or eliminating a hazard from the workplace as a 
whole, while respirators protect only the employees who are wearing 
them correctly. Furthermore, engineering and work practice controls 
permit the employer to evaluate their effectiveness directly through 
air monitoring and other means. It is considerably more difficult to 
directly measure the effectiveness of respirators on a regular basis to 
ensure that employees are not unknowingly being overexposed. OSHA 
therefore considers the use of respirators to be the least satisfactory 
approach to exposure control.
    In addition, use of respirators in the workplace presents other 
safety and health concerns. Respirators can impose substantial 
physiological burdens on employees, including the burden imposed by the 
weight of the respirator; increased breathing resistance during 
operation; limitations on auditory, visual, and odor sensations; and 
isolation from the workplace environment. Job and workplace factors 
such as the level of physical work effort, the use of protective 
clothing, and temperature extremes or high humidity can also impose 
physiological burdens on workers wearing respirators. These stressors 
may interact with respirator use to increase the physiological strain 
experienced by employees.
    Certain medical conditions can compromise an employee's ability to 
tolerate the physiological burdens imposed by respirator use, thereby 
placing the employee wearing the respirator at an increased risk of 
illness, injury, and even death. These medical conditions include 
cardiovascular and respiratory diseases (e.g., a history of high blood 
pressure, angina, heart attack, cardiac arrhythmias, stroke, asthma, 
chronic bronchitis, emphysema), reduced pulmonary function caused by 
other factors (e.g., smoking or prior exposure to respiratory hazards), 
neurological or musculoskeletal disorders (e.g., epilepsy, lower back 
pain), and impaired sensory function (e.g., a perforated ear drum, 
reduced olfactory function). Psychological conditions, such as 
claustrophobia, can also impair the effective use of respirators by 
employees and may also cause, independent of physiological burdens, 
significant elevations in heart rate, blood pressure, and respiratory 
rate that can jeopardize the health of employees who are at high risk 
for cardiopulmonary disease.
    These concerns about the burdens placed on workers by the use of 
respirators were acknowledged in OSHA's revision of its Respiratory 
Protection standard, and are the basis for the requirement that 
employers provide a medical evaluation to determine the employee's 
ability to wear a respirator before the employee is fit tested or 
required to use a respirator in the workplace (63 FR 1152, 1/8/98). 
Although experience in industry shows that most healthy workers do not 
have physiological problems wearing properly chosen and fitted 
respirators, nonetheless common health problems can cause difficulty in 
breathing while an employee is wearing a respirator.
    In addition, safety problems created by respirators that limit 
vision and communication must always be considered. In some difficult 
or dangerous jobs, effective vision or communication is vital. Voice 
transmission through a respirator can be difficult, annoying, and 
fatiguing. In addition, movement of the jaw in speaking can cause 
leakage, thereby reducing the efficiency of the respirator and 
decreasing the protection afforded the employee. Skin irritation can 
result from wearing a respirator in hot, humid conditions. Such 
irritation can cause considerable distress to workers and can cause 
workers to refrain from wearing

[[Page 10347]]

the respirator, thereby rendering it ineffective.
    Because respirators are less reliable than engineering and work 
practice controls and may create additional problems, OSHA believes 
that primary reliance on respirators to protect workers is generally 
inappropriate when feasible engineering and work practice controls are 
available. All OSHA substance-specific health standards have recognized 
and required employers to observe the hierarchy of controls, favoring 
engineering and work practice controls over respirators. Moreover, 
OSHA's enforcement experience with these standards has reinforced the 
importance of this concept in the protection of employee health.
    The Color Pigment Manufacturers Association suggested that supplied 
air respirators provide an acceptable alternative to engineering 
controls in many circumstances (Ex. 38-205, p. 44). The American 
Foundry Society concurred with this opinion (Ex. 43-14). They claimed 
that supplied air hoods do not present the problems and limitations 
associated with the use of other respirators and are more reliable and 
effective than most engineering controls (Tr. 1713-1717, Exs. 38-205; 
43-14). The National Paint and Coatings Association (NPCA) indicated 
that Cr(VI) exposures in paint and coatings manufacturing are sporadic 
and are limited to a small number of processes and a few workers (Ex. 
39-66). NPCA believed these exposures could be effectively controlled 
with modern air purifying or supplied air respirators (Ex. 39-66).
    While OSHA acknowledges that certain types of respirators may 
lessen problems associated with breathing resistance and skin 
discomfort, these respirators may still present safety concerns of 
their own. OSHA does not believe that respirators provide employees 
with a level of protection that is equivalent to engineering controls, 
regardless of the type of respirator used. To summarize: engineering 
and work practice controls are capable of reducing or eliminating a 
hazard from the workplace; respirators only protect the employees who 
are wearing them. In addition, the effectiveness of respiratory 
protection always depends on the actions of employees, while the efficacy 
of engineering controls is generally independent of the individual.
    It is well-recognized that certain types of respirators are 
superior to other types of respirators with regard to the level of 
protection offered, or impart other advantages. OSHA is currently 
evaluating the level of protection offered by different types of 
respirators in the Agency's Assigned Protection Factors rulemaking (68 
FR 34036, 6/6/03). However, OSHA believes that engineering controls 
offer more reliable and consistent protection to a greater number of 
workers, and are therefore preferable to any type of respiratory 
protection.
    Collier Shannon Scott, on behalf of various steel industry groups, 
maintained that OSHA should allow use of respiratory protection as a 
primary control to achieve the PEL where respiratory protection is 
currently used to comply with another OSHA standard (Exs. 38-233; 40-
12). Without such an allowance, it was claimed, employers would have to 
add additional controls where employees are already wearing 
respirators, which would impose ``significant burden and expense on the 
employer with no attendant benefit to the employee'' (Ex. 38-233, p. 
34). If an employer has adopted all feasible engineering controls to 
address other workplace exposures (e.g., lead, cadmium), and no other 
feasible engineering controls are available to limit Cr(VI) exposures, 
the final Cr(VI) rule would not require additional engineering controls 
to meet the new Cr(VI) PEL. On the other hand, if additional feasible 
engineering controls are available that would reduce Cr(VI) exposures 
that exceed the PEL, then these controls would justifiably be required. 
OSHA believes these additional engineering controls would better 
protect employees. As discussed previously, OSHA considers engineering 
controls to be the most effective method of protecting employees and 
allows respiratory protection only where such controls have been found 
infeasible.
    A number of responses to the proposal commented on the possibility 
of including separate engineering control air limits, or SECALs, in the 
final Cr(VI) rule. Several commenters maintained that SECALs were 
unnecessary (Exs. 38-214; 38-220; 39-20). The majority of respondents 
who expressed an opinion on this issue supported the use of SECALs (Tr. 
373, 1701, 1732, Exs. 38-205; 38-215; 38-216; 38-218; 38-231; 39-43; 
47-30). However, it was apparent that these commenters did not have a 
common understanding of the basis for establishing SECALs or their 
application in the workplace.
    SECALs were included in one previous OSHA rule, the Cadmium 
standard for general industry (29 CFR 1910.1027). In that rule, SECALs 
were based on a two tiered approach to controlling worker exposures. As 
described in the preamble to the final rule:

    The first tier would be a PEL, set at the level required by the 
health science data to protect workers' health. The PEL, in the case 
of industries where compliance by means of engineering and work 
practice controls was infeasible, could be achieved by any allowable 
(e.g., not worker rotation) combination of work practice and 
engineering controls and respirators. The second tier would be set 
above the PEL at the lowest feasible level that could be achieved by 
engineering and work practice controls (57 FR 42389, 9/14/92).

Thus, employers in all industries covered by the cadmium standard were 
required to use engineering and work practice controls to the extent 
feasible to achieve the PEL. For specified processes in particular 
industries, SECALs provided explicit recognition of the lowest exposure 
level that could feasibly be achieved with engineering and work 
practice controls. Respirators could then be used as supplementary 
controls to reduce exposures to the PEL.
    While the cadmium standard is the only standard to use the term 
``SECAL'' other standards have adopted the same approach. For example, 
although the PEL in the lead standard is set at 50 [mu]g/m\3\ (29 CFR 
1910.1025(c)) the brass and bronze ingot manufacture industry sector is 
only required to achieve a lead in air concentration of 75 [mu]g/m\3\ 
through engineering and work practice controls (29 CFR 1910.1025(e)(1) 
Table I, n.3). As with all industry sectors, brass and bronze ingot 
manufacture must provide respiratory protection to supplement 
engineering and work practice controls if they cannot achieve the PEL. 
Similarly, the asbestos standard exempts certain specified operations 
from meeting the PEL of 0.1 fiber per cubic centimeter of air (0.1 
fiber/cm\3\) through engineering controls, but requires such operations 
to use such controls to get down to 0.5 fiber/cm\3\ or 2.5 fibers/cm\3\ 
for short term exposures and to provide supplemental respiratory 
protection (29 CFR 1910.1001(f)(1)(iii)).
    Public Citizen maintained that SECALs could be used to provide a 
more protective PEL. According to Public Citizen, technological 
feasibility considerations applicable to a relatively small number of 
workers should not form the basis for establishing a PEL. They said 
that if OSHA determines that a lower PEL is not feasible in limited 
applications through use of engineering and work practice controls, the 
Agency should use SECALs to allow for use of respirators in those 
applications (Tr. 721, Ex. 47-23). However, SECALs (or equivalent 
provisions) can only be applied to discrete operations that can

[[Page 10348]]

be distinguished from other sources of Cr(VI) exposure. As discussed 
with regard to the PEL in paragraph (c) of this Summary and 
Explanation, this is not the case for most operations involving Cr(VI) 
exposure. Moreover, and also as discussed with regard to paragraph (c), 
the established test for technological feasibility for standards 
requires that the PEL be achieved in most operations with engineering 
and work practice controls.
    On the other hand, a number of commenters supported SECALs in the 
belief that they would lessen the burdens imposed on employers. These 
parties appeared to believe that SECALs would allow them to circumvent 
the hierarchy of controls and use respiratory protection to achieve the 
PEL, even when feasible engineering controls were available. This 
approach was advocated by Elementis Chromium and the Chrome Coalition 
(Exs. 38-216; 38-231).
    As discussed previously, OSHA considers engineering and work 
practice controls to be superior to respiratory protection for 
controlling workplace exposures to Cr(VI). The Agency, therefore, does 
not consider it appropriate to allow regular use of respirators to 
achieve the PEL when feasible engineering and work practice controls 
are available. The scenario envisioned by some commenters, which 
apparently involves a SECAL established at some point higher than the 
lowest level achievable with engineering and work practice controls, 
would therefore compromise worker safety by allowing an inferior method 
of control to substitute for a superior and feasible method.
    OSHA does recognize, however, that an administrative burden can be 
relieved by providing explicit recognition in the final rule of 
operations where the PEL cannot be achieved through use of engineering 
and work practice controls alone. In these instances, absent 
recognition of infeasibility in the standard, the employer would need 
to be able to demonstrate that feasible engineering and work practice 
controls could not achieve the PEL.
    As discussed in Chapter III of the Final Economic Analysis, OSHA 
has determined that during certain painting operations in the aerospace 
industry, the PEL of 5 [mu]g/m\3\ cannot be achieved with engineering 
and work practice controls (Ex. 49). In these operations, the evidence 
indicates that employee exposure to Cr(VI) can feasibly be reduced to 
25 [mu]g/m\3\ using engineering and work practice controls; respiratory 
protection is necessary to supplement these controls to achieve the 
PEL. Accordingly, a provision has been added to the final rule 
recognizing the limitations of engineering and work practice controls 
in controlling Cr(VI) exposures where painting of aircraft or large 
aircraft parts is performed in the aerospace industry. In using the 
term ``aircraft or large aircraft parts'' OSHA is referring to the 
interior or exterior of whole aircraft, aircraft wings, tail sections, 
wing panels and rocket sections, large aircraft body sections, control 
surfaces such as rudders, elevators, and ailerons, or comparably sized 
aircraft parts. Thus, in these operations employee exposures must be 
reduced to 25 [mu]g/m\3\ or less using engineering and work practice 
controls. Respiratory protection will then need to be used to achieve 
the PEL.
    There may even be some situations where the engineering and work 
practice controls cannot achieve exposures of 25 [mu]g/m\3\. The final 
rule recognizes this and addresses this by permitting the employer to 
demonstrate the infeasibility of achieving 25 [mu]g/m\3\ with these 
controls. In these limited circumstances the employer would be 
permitted to further rely on respirators to protect employees.
    OSHA acknowledges that engineering and work practice controls 
cannot feasibly achieve the PEL in some specific operations. In 
particular, OSHA is aware that the use of engineering and work practice 
controls to comply with the PEL is infeasible for some maintenance and 
repair operations and during emergency situations. These situations are 
recognized in paragraph (g) of the final rule (paragraph (f) for 
construction and shipyards), which addresses use of respiratory 
protection where employers can demonstrate that engineering and work 
practice controls are not feasible. In such situations, the burden of 
proof is appropriately placed on the employer to make and support a 
claim of infeasibility because the employer has better access to 
information specific to the particular operation that is relevant to 
the issue of feasibility.
    An exception to the general requirement for primary reliance on 
engineering and work practice controls is included in the final rule 
for employers who do not have employee exposures above the PEL for 30 
or more days per year (during 12 consecutive months) in a particular 
process or task. Thus, if a particular process or task causes employee 
exposures to Cr(VI) that exceed the PEL on 29 or fewer days during any 
12 consecutive months, the employer is allowed to use any combination 
of controls, including respirators alone, to achieve the PEL. The 
obligation to implement engineering and work practice controls to 
comply with the PEL is not triggered until a process or task causes 
employees to be exposed above the PEL on 30 or more working days during 
a year.
    The employer may use this exception if he or she can demonstrate 
that a process or task will not cause employee exposures above the PEL 
for 30 or more days per year (12 consecutive months). The burden of 
proof is on the employer to show that exposures do not exceed the PEL 
on 30 or more days per year. OSHA believes this provision provides 
needed flexibility to employers, while still providing adequate 
protection for workers.
    Under current exposure conditions, the primary adverse health 
effect addressed by this final rule (i.e., lung cancer) is associated 
with cumulative exposure to Cr(VI). Thus, assuming stable exposure 
levels, the fewer number of days that a worker is exposed, the lower 
the risk incurred. Consequently, some exception based on the number of 
days of exposure is justified.
    OSHA realizes that in some industries (e.g., color pigment 
manufacturing), exposure to Cr(VI) is typically infrequent (i.e., fewer 
than 30 days, over 12 consecutive months). For example, certain Cr(VI) 
processes may occur only several days a year when production of a 
particular product is needed. Under such conditions, it may not be cost 
effective or very beneficial to workers' health for employers to invest 
the monies needed to install engineering controls to control Cr(VI) to 
the PEL. Without this exception, employers would be required to 
implement feasible engineering controls and work practice controls 
wherever employees are exposed to Cr(VI) above the PEL, even if they 
are only exposed on one or several days a year. OSHA believes that the 
expense of implementing engineering controls in such circumstances is 
not reasonable.
    A number of commenters expressed general support for this exception 
(e.g., Tr. 1426-1427, 1730; Exs. 38-205; 38-218; 38-220; 38-235; 39-19; 
39-20; 39-47; 39-51; 40-1; 47-31). For example, the Navy expressed the 
view that this provision allowed employers to focus on the most serious 
hazards:

    This 30-day threshold approach reflects the reality and 
challenges of the Maritime Industry and has value in the 
shipbuilding and repair industry. The concept allows employers to 
focus engineering and work practice controls on those operations 
having the potential to result in the greatest cumulative exposure 
while providing the

[[Continued on page 10349]]
Notices For
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