mandates that final

public. On the basis of the best availa- The Arthur Young study (Ex. 148A) standards be set which most adequateble evidence, therefore, OSHA has dealso considered other affected indusly assure employee safety and health termined, as explained in detail below, try groups. However, those industries "to the extent feasible, on the basis of that the permanent standard is ecowhich are covered by this final standthe best available evidence" and furnomically feasible. ard did not specifically submit any dether requires that, in the development A number of studies were done of tailed studies themselves though they of occupational safety and health economic considerations resulting made a few comments. standards, "considerations shall be the from an arsenic standard. The Arthur AY estimates the 4 µg/m³ was latest available scientific data in the Young study (Ex. 135A) contracted for achievable with engineering and work field, the feasibility of the standards, by OSHA considered economic factors practice controls alone in zinc smeltand experience gained under this and for all affected industries. Other studers. Arthur Young and Arthur D. other health and safety laws." ies submitted concentrated on the Little (Ex. 111-7, p. 37) clearly consid- While the precise meaning of feasicopper smelting industry. These are ered the 4 µg/m³ level feasible at pribility is not clear from the Act, it is listed in section V of this preamble. In mary lead smelters though it is un- OSHA's view that the term may inaddition the matter was specifically clear to what extent limited respirator clude the economic ramifications of reconsidered in testimony at the hearuse might be needed. quirements imposed by standards. The ings. Arthur Young estimated that the determination that OSHA has the auglass, and desiccant manufacturer in- The copper smelting industry is the thority to consider economic feasibilmost affected industry. Table 2 sumdustries could achieve 4 µg/m³ with ity factors in developing standards has marizes the Arthur Young and indusengineering controls alone. They estibeen endorsed by the courts. Industrimated that the herbicide and pesticide try cost estimates for a 4 µg/m³ level al Union Dept., AFL-CIO V. Hodgson, and Arthur Young's estimates for a 50 manufacturers, wood preservative 499 F. 2d 467 (C.A.D.C., 1974); AFL- µg/m³ level. However more than half manufacturers and lead arsenical in- CIO V. Brennan, 530 F. 2d 109 (C.A. 3, of the industry's total cost estimate dustry could achieve 50 µg/m³ with en- 1975); American Iron & Steel Inst. V. was comprised of hypothesized worker gineering controls alone but would re- OSHA, No. 76-2358 (3rd Cir., 3/28/78). rotation costs for Anaconda and Kenquire some respirator use to achieve 4 As pointed out by the D.C. Court of necott. The industry hypothesized µg/m³. As the former two industries Appeals, Congress did not intend the that the OSHA proposal required that are chemical industries where enclosed Secretary to promulgate standards industry use employee rotation, rather processes can often be utilized, OSHA which drive entire industries or large than respiratory protection, if engibelieves that the 10 µg/m³ level can be numbers of employers out of business. neering controls and work practices achieved without respirator use. There On the other hand, "standards may be were sufficient by themselves to may be limited use of respirators reconomically feasible even though, achieve the proposed 4 µg/m³ exponeeded at the 10 µg/m³ level in the from the standpoint of employers, sure level. Although it is true that lead arsenical segment. they are financially burdensome and Arthur Young's cost estimates in- In conclusion, the 10 µg/m³ exposure affect profit margins adversely". Furcludes in a few instances a limited level is the lowest feasible level for exther, the Court said, the concept of amount of worker rotation, the proposure to inorganic arsenic. It minieconomic feasibility does not "necesposal does not contain any language mizes, to the maximum extent feasisarily guarantee the continued exisspecifying worker rotation. Like the ble, excess lung cancer deaths resulttence of individual employers." Indusproposal, the final standard contains ing from exposure to inorganic artrial Union Dept., AFL-CIO V. Hodgno requirement that worker rotation senic. It is achievable generally son, supra, at page 478. In accordance be used rather than respiratory prothrough engineering and work pracwith the Secretary's position, it has tection when engineering and work tice controls. Limited respirator use been OSHA's practice to analyze the practice controls do not succeed in will be needed to achieve the limit in reaching the permissible exposure economic impact of proposed standsome locations in some facilities, and limit (sometimes referred to in this ards where significant impact on emone facility will require extensive resdocument as the PEL or TWA limit). ployers covered by the proposals seem Therefore OSHA does not consider it pirator usage. The absolute degree of likely. OSHA then makes, such analyappropriate to include worker rotation control of work exposure will be cerses available to affected parties for costs and Table 2 also presents the intain only after inplementation of engicomment and subsequent hearing dustry estimate adjusted to exclude neering and work practice controls. prior to issuance of final rules, and inworker rotation costs. TABLE 2.-Cost of compliance for copper smelters [Millions of dollars] 50 µg/m³ 4 µg/m3 Source of estimate Capital Annual Annualized Capital Annual Annualized AY (Ex. 135A) 85.9 6.2 23.5 103.9 11.2 32.0 Industry (Exs. 156a, 111-7) 224.2 153.7 198.8 Industry adjusted 224.2 49.6 94.7 FEDERAL REGISTER, VOL. 43, NO. 88-FRIDAY, MAY 5, 1978 RULES AND REGULATIONS 19605 Annual costs include the additional detail below, in the Tacoma section, overestimated by three-quarter or costs resulting from the standard for ASARCO's estimate of employees on $6.65 million. Therefore the total fuel, medical examinations, monitorrespirators at Tacoma is probably ASARCO estimate for respirator exing, maintenance, etc., as well as podouble the correct figure and the 20 penses is overestimated at least $9 miltential loss of efficiency through respipercent estimate of loss of efficiency lion per year at the 10 µg/m³ level rator use. Annualized capital costs are for respirator use is probably more ($2.43 million overestimate at Tacoma 20 percent of initial capital costs. than double the correct estimate. and $6.65 million non-Tacoma). The These are then added to annual costs Therefore the loss. of efficiency ASARCO capital cost figure will also to derive annualized costs. through respirator use at Tacoma is be reduced in the short and middle The industry cost figures cited in probably more than $2.43 million too term by the likelihood of less capital Table 2 do not include costs for four of high. investment at Tacoma as discussed the 16 U.S. primary copper smelters OSHA believes that substantially below. In the longer term that investwhich are not owned by the four fewer than 2,000 employees will need ment will be necessary. major companies. The Arthur Young to wear respirators full time at non- The above overestimates come to estimate includes costs for all 16 U.S. Tacoma ASARCO facilities at the 10 $32.1 million per year in annualized primary copper smelters. The µg/m³ level. ADL does not make clear costs. Subtracting the overestimates ASARCO estimates, included in the how this figure is derived, but it apfrom the industry estimate of $94.7 overall industry cost figure includes pears to be based on all production million leaves a balance of $62.6 milcosts of compliance for some of their employees at El Paso, Hayden, East lion in annualized costs. The computanon-copper operations as well as their Helena and possibly other ASARCO tions to derive the $32.1 million figure copper smelters and thus to that facilities wearing respirators at the 4 are as follows: Capital costs at Phelps extent the industry figure overstates µg/m³ level. However ASARCO Exhib- Dodge should be no more than the costs which are attributable to copper it 29G indicates that many employees Kennecott estimate of $28 million, smelting alone. at those locations (except El Paso) saving $52 million in capital costs from OSHA believes that at the 10 µg/m³ have exposures already below 10 µg/ the Phelps Dodge $80 million estimate level the adjusted industry cost esti- m³ and other are exposed at levels sufor $10.4 million in annualized costs. mates are too high. Respirator costs ficiently close to 10 µg/m³ so that en- Even the $28 million figure is likely to will be reduced substantially from the gineering controls will in many inbe an overestimate for Phelps Dodge 4 µg/m³ level because engineering constances succeed in reducing exposures since Exhibit 12 indicates that existing trols will succeed in reaching the 10 below 10 µg/m³. In any event full time exposures are low. Caplan, an µg/m³ level more frequently. There use of respirators by many of these ASARCO witness estimated $16 per will be a limited reduction in the cost employees is not likely to be neces- CFM for difficult ventilation jobs. Apof engineering controls at the 10 µg/ sary. plying that figure to the Anaconda es- m3 level at Kennecott and Phelps- Further David Burton and AY estitimate of 1 million CFM results in Dodge. The Phelps-Dodge capital costs mated that approximately 50 employcosts of $16 million rather than the estimate of $80 million, supported by ees would need to wear respirators at $30 million Anaconda estimate. This no underlying data, seem, much too Hayden at the 4 µg/m³ level. (Ex. 18, saves $14 million in capital costs or high relative to other industry esti- p. 67, Ex. 173A). Arthur Young esti- $2.8 million in annualized costs. mates. They had originally estimated mated that approximately 70 employ- Arthur Young believed the $30 CFM $22 million (Ex. 12). Kennecott, with ees at El Paso will need to wear respifigure was too high but nonetheless higher exposures and a larger scale of rators full time at the 4 µg/m³ level utilized it in their analysis. They beoperation, estimated capital costs at (Ex. 173A). These estimates would inlieved the capacity required was over- $28.5 million. dicate much lower respirator use than estimated as well. Also subtracted are Kennecott's estimate of $9.9 million the ADL estimate at 4 µg/m³. $9 million in excess respirator costs at in annual energy costs to reheat stack Based on the change to the 10 µg/m³ ASARCO and $9.9 million in excess gasses is unsubstantiated. Anaconda's level, existing exposure levels, the effuel cost at Kennecott. estimate of $30 cfm estimate for ventifectiveness of engineering controls and (10.4+2.8+9.0+9.9=$32.1 million in lation controls is approximately estimates of other experts, OSHA beoverestimates). double other estimates used for ventilieves that fewer than 500 employees lation controls on the record (Ex. 29 will be wearing respirators at ASAR- Changes in the standard from the m, Ex. 148A). CO's non-Tacoma facilities. Further as proposal will also result in substantial The ASARCO cost estimate includes discussed below in the Tacoma section, cost savings from the industry estiannual costs of $10.57 million for loss the 20 percent figure for loss efficienmates. Monitoring costs will be reof efficiency from respirator use and cy through respirator use is too high duced by approximately two-thirds $231 million for respirator expenses at and 10 percent may be a more reasondue to the reduction in monitoring frethe 4 µg/m³ level. These figures are able high side estimate. Therefore the quency. Medical, laundering and hybased on approximately 900 employees ASARCO estimate of $8.86 million in giene costs will also be reduced signifiat Tacoma and approximately 2000 total respirator expenses at noncantly by the change in the definition employees at other ASARCO facilities Tacoma facilities ($7.33 million loss of of covered employees and the reducwearing respirators full time. Loss of efficiency plus $1.54 million respirator tion in laundering frequency. These efficiency through respirator use is savings have not been subtracted from costs) is probably overstated by a computed by ASARCO at 20 percent factor of seven-eighths. In any event, the various estimates. or $3600 per man year. Respirator full time use of respirators by many of It also should be noted that both incosts are estimated at approximately these employees is not likely to be necdustry and Arthur Young figures are $800 per man year. essary. However to be certain that resbased on a 20 percent factor covering OSHA believes these ASARCO figpirator costs are not underestimated, interest and depreciation to annualize ures are substantial over-estimates at it will be assumed for purposes of this capital costs. A figure commonly used the 10 µg/m³ level. As analyzed in analysis that these respirator costs are in other OSHA proceedings has been FEDERAL REGISTER, VOL. 43, NO. 88-FRIDAY, MAY 5, 1978 19606 RULES AND REGULATIONS 15 percent. To the extent that the 15 sponse to higher energy, environmencosts, or 12.3 percent of average prepercent figure is more realistic, all of tal and other costs. (Ex. 111-7, p. 24- tax profits. As discussed above, that the estimates have exaggerated the 25.) Also ASARCO has successfully inpercentage is probably too high at a 10 annualized cost figures. creased smelting charges to independ- µg/m³ level because the $94.7 million The Arthur Young cost estimates ent mines to assist in offsetting costs cost figure appears to be too high. are reasonably detailed and based to a of environmental controls. (STR. pp. Using the AY figure of $32 million in substantial extent on detailed underly- 457-458.) Notes 1 and 6 of the 1975 costs and the 1 cent per pound ining data. Caplan of IHEA testified ASARCO Annual Report indicate that crease in revenues, the costs to be abthat AY did not always give sufficient ASARCO has been receiving approxisorbed by the industry would be a negreasons when choosing the DBA mately $12 million per year in environligible $2 million. This net figure is report as the basis for estimates mental surcharges. probably low. At the $32 million cost rather than selecting the IHEA esti- A. D. Little suggested that those figure only a lower increase in smeltmates. (STR p. 629.) Nonetheless, the costs of controls which affected most ing charges would probably be passed choice was made by qualified persons smelters can be passed on to consumon because of the different cost imand general considerations and someers by smelting operations without dispacts of the standard on different times specific reasons were given in ruption in time of "normal" copper smelters. Exhibits 148A and 173A. The DBA prices. (Smelting charges are normally An intermediate analysis would be to costs, when chosen, were detailed and assumed by copper analysts to be paid consider costs at the 10 µg/m' level as made by a qualified expert. DBA estiby the mine which takes the gains and midway between the AY and industry mates were adjusted by AY to fully aclosses from rises and falls in copper adjusted estimate or $63 million. With count for overhead costs. prices.) ADL estimated that 2 cents increased smelting charges of 1 cent Some of the AY costs based on DBA per pound of copper could be passed per pound this would result in the inestimates may be too low. For examalong. (Ex. 111-7, pp. 35-37.) Arthur dustry absorbing $33 million in inple, in OSHA's experience the esti- Young estimated that there would creased costs, or 6.3 percent of historimate of $5,350 for enclosing, filtering, only be a "negligible" increase in cal pretax profits. and air conditioning an overhead copper prices based on the low impact It would appear to OSHA that these crane (Ex. 148A, p. 8) may be too low. of the proposal on some smelters, percentages indicate that the cost of Also, the AY computation of costs for ADL's estimate that there is a surplus the arsenic standard is well within the Phelps-Dodge smelters may be too low of smelting capacity abroad, and that economic capabilities of the copper based on exposure levels at the Dougtheir study was directed at long-term smelting and refining industry as a las smelter and interpolation of AY impacts. (Ex. 135, p. VI-10, Ex. 184.) whole. It is true that the copper smeltcost data. These underestimates are at A 2 cent increase in smelting charges ing industry is also being required to least in part compensated for by the would result in increased revenue to spend substantial sums on environlessening of costs at the 10 µg/m³ level smelters of $60 million per year and a mental controls. However, no witfrom the 4 µg/m³ level. 1 cent increase of $30 million per year nesses have testified that costs of this It therefore appears to OSHA that based on a typical figure of 1.5 million magnitude would be infeasible for the the AY 4 µg/m³ estimate is a reasontons of copper smelted per year in the copper smelting industry as a whole. able estimate at the 10 µg/m³ level. It U.S. In view of past increases in smelt- This conclusion is consistent with also appears that the industries ading charges to cover increased costs, the conclusions of A. D. Little, ASARjusted figure for the 4 µg/m³ level is OSHA believes some part of the in- CO's witness, that the cost to the high at a 10 µg/m³ level, though an escreased costs of the regulations can be copper and lead smelting industries timate in between those two figures of recovered by the smelters in increased can be passed on without any major approximately $63 million would also dislocations except in times of abnorsmelting charges to mitigate the be a reasonable high-side estimate. mally low metal prices (Ex. 111-7, p. impact of the cost of arsenic controis. The adjusted industry figure with 37). They believed the exception to There are costs in shipping copper this was the additional compliance some of the probable overestimates from overseas and some overseas costs to ASARCO at their Tacoma and substracted would come out to apsmelters are also facing increased envi- El Paso facilities over and above the proximately $63 million in annualized ronmental costs. Therefore despite a level of costs at other smelters. costs. possible surplus of overseas capacity, OSHA is aware that subsequent to The smelters not included in the in- OSHA believes that a part of the cost the close of the record in this ruledustry compilation will probably have increases can be recovered in increased making, that copper prices have been costs in the lower range in comparison smelting charges. very low and some copper companies with other smelters at the 10 µg/m³ The average annual pretax profits have been in a loss position on their level since exposures are already in over the 10 year period 1966-1975 for copper operations. It is also true that the lower range. In addition, it is not the four largest copper smelting comsubsequent to the close of the record unreasonable to assume that as they panies total $525 million excluding ex- Kennecott received a very large sum in did nbot actively participate in the traordinary items (Standard and cash from the sale of Peabody Coal hearing process, they did not believe it Poors). Industry profits need to be av- Co., Anaconda was purchased by Atdifficult to comply. It also should be eraged over a period of time because lantic-Richfield and Bendix has investnoted that the profit figures used of their historically large fluctuations. ed in ASARCO. The Financial Press below do not include profits for the It is appropriate to compare costs has speculated about high copper other smelters and therefore underagainst pretax profits since depreciprices in the 1980's. state industry profits. ation and interest are tax deductible. OSHA has not considered these fac- In considering economic impact, it is (Such a comparison may still overstate tors in its analysis. However at the inappropriate to assume that the inthe impact of the costs because there compliance level, feasible compliance dustry will have to absorb all these is a tax credit for capital investment plans are worked out for specific facilicosts. Some of the increased costs will that would have the effect of reducing ties. To the extent that a specific combe offset by increases in smelting net capital outlays.) pany can prove that serious economic charges. Since the early 1970's smelt- Using the industry's adjusted estifeasibility difficulties exist, the coming charges have risen from about 6 mate of costs of $94.7 million and a pliance plan can be adjusted to include cents to 12 cents per pound of copper low estimate at increased smelting a more extended period for the instaland combined smelting and refining charges of 1 cent per pound ($30 millation of required engineering controls charges have increased from about 10 lion), the copper smelting industry with more extensive use of respirators cents to 20 cents per pound in rewould be left to absorb $64.7 million of in the short term. FEDERAL REGISTER, VOL. 43, NO. 88-FRIDAY, MAY 5, 1978 RULES AND REGULATIONS 19607 It is not appropriate to reopen the Act, as distinguished from some other highly uncertain, the evidence indirecord each time the state of the econenvironmental and safety legislation, cates that the number is likely to be omy or the price of a specific commodclearly indicate that Congress has alappreciable. A dose-response relationity changes. These fluctuations are ready arrived at a judgment concernship, that is a lower incidence of frequent and it would become difficult ing the balancing of cost and benefit, excess risk at lower levels of exposure ever to close a record and issue a final with the result that worker safety and is likely to exist at lower as well as standard. In consequence needed health are to be heavily favored over higher levels of exposure to inorganic health protection for employees would the economic burdens of compliance. arsenic. Therefore reductions in expobe further delayed. Such changes are Specifically, Section 6(b)(5) of the Act sure to lower levels is accompanied by better addressed at the compliance provides that: a reduced risk, even though a precise level where more detailed information quantitative relationship cannot be esis available. See Atlantic and Gulf Ste- The Secretary, in promulgating standards tablished. vedores V. OSHA, 534 F. 2d 541 (3rd dealing with toxic materials or harmful The epidemiologic studies discussed Cir. 1976). No party has petitioned to physical agents under this subsection, shall set the standard which most adequately asin the health effects section give an inreopen this proceeding. sures, to the extent feasible, on the basis of dication of the magnitude of the the best available evidence, that no employexcess risk which will be reduced by LEAD AND ZINC SMELTERS ee will suffer material impairment of health this standard. For example, the excel- The IIS estimated annualized costs or functional capacity even if such employlent Lee and Fraumeni study considto primary lead smelters of $9.3 milee has regular exposure to the hazard dealt ered the employees at one copper lion and of $940,000 to zinc smelters at with by such standard for the period of his smelter. This study indicated that over a 4 µg/m³ level. It found no economic working life. Development of standards a 25 year period, there were 147 lung impact of sufficiently great magnitude under this subsection shall be based upon cancer deaths where only 45 deaths research, demonstrations, experiments and to create questions of economic feasisuch other information as may be appropriwould be expected (Ex. 5D, Table 3, p. bility or supply problems. In addition ate. In addition to the attainment of the 1048). Exposures of groups of employno detailed industry analyses were highest degree of health and safety protecees showing excess risk were both made indicating that any problems of tion for the employee, other considerations above and below the existing 500 µg/ economic feasibility existed. shall be the latest available scientific data m3 limit. It is clear that the new standin the field, the feasibility of the standards, ard would contribute very substantial- ECONOMIC IMPACT-OTHER INDUSTRIES and experience gained under this and other ly to reducing the 102 excess lung Interested parties in other industries health and safety laws. cancer deaths at that one copper did not bring to OSHA's attention Thus, while feasibility is an approsmelter. In light of the uncertainties major problems of economic feasibilpriate consideration, the Secretary is in this area of scientific knowledge. ity. The IIS estimated substantial ($30 directed to set standards which attain OSHA believes that it is required by million annualized) costs of complithe "highest degree of health and the statutory mandate to adopt a ance at the 4 µg/m³ level in the glass safety protection for the employee highly protective posture in considerindustry but did not indicate that difing the evidence for health benefits. ficult economic feasibility questions This does not mean, however, that a We recognize that in view of the laexisted. The costs are distributed systematic evaluation of costs and tency period usually associated with broadly across a reasonably large inbenefits is not to be encouraged within the induction of cancer, significant redustry. In addition arsenic use in glass the limits of the estimation techductions in mortality may not be seen has been going down as substitutes niques. In considering the issue of feafor many years. However, unless expohave been developed. Manufacturers sibility in this rulemaking, as in sures are reduced now, OSHA believes are continuing to reduce the already others, OSHA has carefully evaluated that the mortality rate will not decline small percentage of arsenic in glass the cost of compliance which may be and employees exposed to inorganic and to develop complete substitutes incurred by the directly affected emarsenic will continue to suffer excess which will reduce the costs of compliployers and their ability to comply. mortality. ance. The costs will be further reduced Additionally, OSHA believes that a Based upon the foregoing and the by the change to the 10 µg/m³ The IIS estimates $6.7 million in anstandard for a substance which has record as a whole, OSHA finds that nualized costs for secondary lead been found to pose a cancer risk to compliance with the standard is well smelters. It suggests that a few of the workers, in this case inorganic arsenic, within the financial capability of the smaller firms may have some difficulmust assure maximum benefit (i.e. covered industries. Moreover, alty in raising capital to meet the costs prevention of serious illness or death), though the benefits of the standard of controls though no smelters have constrained only by the limits of feasicannot rationally be quantified in dolpresented specific evidence on this bility. lars, OSHA has given careful considerpoint. This evidence indicates that the There is general agreement that ination to the question of whether these standard is feasible for the industry as organic arsenic exposure causes substantial costs are justified in light a whole. cancer. In spite of the certainty of this of the hazards of exposure to inorgan- The IIS estimates that annualized conclusion, and that there is a reasonic arsenic. OSHA concludes that these costs of compliance were not over $1 able dose-response relationship for excosts are necessary in order to effectumillion at the 4 µg/m³ in any of the posures in the hundreds of microate the statutory purpose of the Act other industries studied. Although the grams per cubic meter, there does not and to adequately protect employees IIS suggests that one or two individual exist an adequate scientific basis for from the hazards of exposure to inorplants may have difficulty in raising determining a quantitative dose-expoganic arsenic. capital, no specific evidence has been sure relationship at the lower levels of In making judgments about specific presented to OSHA. In view of the relexposures necessary to reduce the risk hazards, OSHA is given discretion atively small amounts involved at a 4 as much as is feasible. The uncertainty which is essentially legislative in µg/m³ level, no significant questions of in both the actual magnitude of exnature. In setting an exposure limit economic feasibility appear to be prepected deaths and in the theory of exfor a substance like inorganic arsenic, sented for these industries as a whole trapolation from existing data to the OSHA has concluded that it is inapat a 10 µg/m³ exposure level set by this standard propriate to substitute cost benefit criplaces the estimation of benefits on teria for the legislatively determined BENEFITS "the frontiers of scientific knowledge." directive of protecting all exposed em- The legislative history and language While the actual estimation of the ployees against material impairment of the Occupational Safety and Health number of cancers to be prevented is of health or bodily function. Where FEDERAL REGISTER, VOL. 43, NO. 88-FRIDAY, MAY 5, 1978 19608 RULES AND REGULATIONS the health effectiveness of alternative $1.5 trillion plus GNP. If it did occur, the exposure limit in the near term approaches are extremely uncertain it would interestingly make the copper through a carefully planned mix of and likely to vary from situation to sitindustry as a whole much more profitfeasible engineering controls, work uation, OSHA believes it is appropriable and substantially improve its capractices and personal protective ate to adopt the compliance strategy pabilities for paying for needed enviequipment. The plan should set priorwhich provides the greatest certainty ronmental and occupational safety ities for the adaptation and installaof worker protection even if the apcontrols. tion of further engineering controls proach carries with it greater economwhich will be put in place as soon as ic burdens for the affected employers. THE ARSENIC MARKET possible. It should also include strate- In the case of the inorganic arsenic A. D. Little speculated that if gies for reducing the difficulties in standard, the evidence in the record Tacoma closes, the other producers of using personal protective equipment. indicates that the costs of compliance arsenic, Sweden, Mexico and South- Normally, these situations will be are not overly burdensome to industry. west Africa may form a cartel and dealt with at the compliance level. Having determined that the benefits of the proposed standard are likely to force up the price of arsenic (Ex. 167A, Considering the unusual circumbe appreciable, OSHA is not obligated p. II-16). Arthur Young points out stances at a few locations in a general that their speculation is not "obvious" rulemaking hearing would excessively to carry out further exercises toward though the IIS did not specifically lengthen the hearing with its many more precise calculations of benefit consider this contention. (Ex. 184, p. participants, and would reduce rewhich would not significantly clarify 15) sources available to respond to major the ultimate decision. Previous at- The compliance strategy suggested health questions with broad implicatempts to quantify benefits as an aid to decisionmaking in setting health for Tacoma will assist in maintaining tions. Also solutions to the compliance its continued viability, so the basis for problems are best incorporated in the standards have not proved fruitful (41 FR 46742). ADL's speculation may not occur. In compliance plan for a specific location any event OSHA believes the ADL so they can be tailored to specific diffi- IMPACTS ON PRICE INDEXES suggestion is based on mere conjecture culties. and is highly speculative. Further the However, a substantial amount of Both the IIS (Ex. 135, p. VI-5) and flue dusts of many copper smelters are evidence has been placed on the the Council on Wage and Price Stabilrich in arsenic and precious metals. record in regard to the Tacoma smeltity (STR, pp. 845-6) estimate that the These dusts, which in some cases now er of ASARCO, Inc. which has the overall impact on general price indexare stored, might very well become admost difficult compliance problems. es of the inorganic arsenic standard inditional sources of arsenic if price rela- OSHA has spent a substantial amount dexes will be "negligible." Arsenic tionships were suitable. of time analyzing those data and memproducts have a very small weight in bers of its standards staff have visited these indexes and even substantial in- THE ECONOMETRIC MODEL the Tacoma smelter. Therefore, to creases in individual arsenicals would assist the compliance process to more have no significant impact. The likeli- The 115 includes an econometric quickly and effectively reduce expohood of a 50 percent increase in the model. Arthur D. Little presented exsure levels, the evidence is analyzed price of arsenic trioxide is discussed tensive criticisms of the model (Ex. here. This discussion will also provide below. But such an increase would 167, 167A, 186, 190(3)). Arthur Young useful information for other facilities. have very little impact on the prices of responded to the criticisms in Ex. The outline of a feasible compliance finished chemicals, cotton, or pre- 173B and 184. OSHA has made its own plan is also described. Such a plan will served wood because the cost of the arindependent interpretation of econompermit compliance with the final senic trioxide is generally a small part ic considerations in this preamble standard including the 10 µg/m' level, of the cost of the finished product. based on the data in the record. substantially reduce the elevated lung See the discussion in the Final EIS of Therefore, it has not found it necescancer mortality reported among how even a 100 percent increase in the sary to attempt to resolve the differworkers at the Tacoma smelter and alcost of arsenic trioxide would only ing views on the econometric model. leviate the hardships of respirator use. have a negligible impact on the cost of VII. THE TACOMA SMELTER It will assist in maintaining the concotton production, the largest user. tinuing viability of the Tacoma smelt- This preamble utilizes a 1 cent per lb The above analysis indicates that er and the employment for its apincrease in the price of copper as a low the final arsenic standard is feasible proximately 1,000 employees. side estimate of the increase in price for the industries affected. However, The details and changes based on of copper for purposes of estimating the record also indicates that for new evidence will be worked out at the impacts on copper smelters. ADL origicopper smelters the magnitude of the compliance level where the most nally suggested a 2 cent increase in task to achieve compliance will vary recent evidence will be available to price. At the September 1976 hearing substantially among the different faclosely scrutinize compliance efforts they suggested the possibility of a 5 cilities in the industry. As discussed and capabilities. Also, a joint EPA and cent increase if the Tacoma smelter above, OSHA believes that it is inap- OSHA study will be available which shut down. As discussed below OSHA propriate to make feasibility determiwill integrate and set priorities for OCbelieves a compliance strategy exists nations based on those few facilities cupational and environmental health which will assist in maintaining the which have the most difficult complicontrols. continued viability of the Tacoma ance problems. To do so would deny The evidence indicates that Tacoma smelter. necessary and achievable health prois principally a copper smelter and OSHA does not believe that suffitection to the majority of employees similar to the other 15 in the United cient evidence has been introduced to in facilities where a much lower level States. Like many of the others it is an permit it to evaluate the validity of can be achieved. older facility which smelts copper ADL's second prediction. No doubt a 5 When there are some facilities through a high temperature pyromecent increase in the price of copper is which cannot comply with the standtalurgical process involving the open not insignificant to copper users. Howard in the medium term using princitransference of molten and fuming ever the market price frequently flucpally engineering controls, for technimineral complexes between and from tuates by much greater amounts in cal reasons or because of serious ecofurnaces. The employees at Tacoma the course of a year. Such an increase nomic difficulties, then a more elabocarry out many tasks in a manner simwould still have a negligible impact on rate compliance plan is required. Such ilar to other copper smelters. Compligeneral price indexes, $150 million in a a plan is to achieve compliance with ance, as at other smelters, requires FEDERAL REGISTER, VOL. 43, NO. 88-FRIDAY, MAY 5, 1978 RULES AND REGULATIONS 19609 principally enclosure, hooding, and tive feasible controls in the near term, employee can stay with his respirator ventilation to the extent feasible at mitigate the difficulties of substantial off in between tasks, or while monitorthe various steps in the process. respirator use and provide a frameing controls. As a result, the employ- However, the record indicates that work for complete compliance in the ee's exposure is substantially reduced the degree of difficulty to achieve long term. ASARCO is obligated to inwithout the full-time use of respiracompliance is greater at Tacoma. Two stall additional engineering controls as tors. reasons principally account for this. they become feasible. Both D. B. Associates and Arthur First, the level of arsenic in Tacoma's The most effective types of engi- Young emphasized the importance of copper concentrate feed (4 to 5 perneering controls to be installed by Dethese controls, which are effective at cent overall) is five times that at the cember 31, 1979, would include the folmoderate cost and which in OSHA's two smelters with the next highest lowing three types of controls. Conexperience are commonly used by inlevels of arsenic in their feed and at trols should be installed which would dustry. Caplan testified that at least 40 times greater than the other most effectively reduce background Tacoma, clean rooms might not sucsmelters. Second, Tacoma is the only levels of arsenic contamination at the ceed in reducing exposures to the 4 domestic producer of arsenic-trioxide. smelter. This includes enclosure, hood- µg/m³ because of high background Both Knowlton Caplan, expert witing, and ventilating sources of arsenic levels. OSHA believes that well deness for ASARCO (Ex. 29m, pp. 66-67; contamination which are currently unsigned clean rooms will succeed in ATR p. 1314) and David Burton, controlled or only partially controlled. keeping exposures below the 10 µg/m³ expert witness for OSHA (Exs. 18, 150; Possible examples are controls at the level. Good design includes adequate STR p. 279), suggested that in a roaster flue cleanout and enclosure of filtration and vacuums for the employnumber of areas at Tacoma, ventilathe fine ores bin. Other examples are ee to dust himself off before entering. tion and enclosure controls by themhooding and ventilation of sources of The above discussion is not intended selves would have a low probability of arsenic emissions at the roaster, and to be determinative, but to provide reducing exposures below 50 µg/m³. during charging and tapping at the regeneral guidance. The specific plan for Arthur Young did not specifically exverberatory furnaces and convertors setting installation priorities for engipress a judgment on this point, but did to the extent that current systems are neering controls needs to be worked suggest that to reach a 4 µg/m³ level, insufficient or incomplete. Also, some out at the compliance level where all engineering controls would have to be steps in the arsenic-trioxide producnecessary details can be taken into accoupled with substantial use of clean tion process are basically uncontrolled count. It is clear that such a plan can rooms, respiratory protection and at present and reasonable controls be devised. Caplan testified that he some worker rotation. should be installed to reduce backindeed could develop a compliance Arthur Young estimated that the ground contamination. For example, plan which would rationally set priorcapital cost of all technically feasible hand tools are used in the open to ities for the installation of engineering engineering controls at Tacoma would "pull" (remove) arsenic-trioxide out of controls, and that the study which he be $31 million and that the annualized the "kitchens" (condensers) with little submitted to the record did not do cost would be $10 million at the 4 µg/ in the way of even basic forms of enthat (STR, pp. 642-643). Similarly, the m³ level. A. D. Little estimated capital closure, ventilation or mechanization D.B. Associates study did not prioritize costs at $41 million and annualized leaving a visible residue of arsenic-tricontrols, but Burton himself did indicost at $16 million at that level. Costs oxide. cate the beginnings of a plan to do of all technically feasible engineering Lowering background arsenic levels that in his testimony (STR, pp. 270- controls would be similar at the 10 µg/ makes controls at other specific loca- 281). m³ and 4 µg/m³ levels at Tacoma betions easier to devise and reduces the In conjunction with the installation cause of the high current exposure need for full time use of respirators. It of the most effective feasible engineerlevels. ASARCO stated that pretax lessens respirator use in those areas of ing controls, substantial respirator use profits at Tacoma had averaged $1.9 the plant where little arsenic is emitwill be necessary in the medium term million per year but supplied no unted and where most exposure is from to meet the 10 µg/m³ exposure limit. derlying data (STR, p. 439). ASARbackground sources. Such controls by Therefore, the standard requires the CO's pretax profits have averaged $92 reducing fugitive arsenic emissions, compliance plan to include provisions million in the 10 year period 1966-1975 reduce the spread of arsenic outside of for a respiratory protection program (Standard and Poors). As discussed the plant boundaries. They thereby designed to reduce the burden on the below, Tacoma is integrated into other reduce potential exposure in the suremployees of widespread respirator ASARCO operations. This evidence inrounding community. These types of use as well as assuring the effective dicates that part of the costs of conengineering controls must necessarily use of respirators. trols should be borne by ASARCO as a be coupled with good housekeeping The plan for engineering controls whole. practices such as promptly cleaning up discussed above is the first step in The standard requires that employspills, cleaning larry car tops and fursuch a respiratory protection program. ers install at the earliest possible time nace doors for better seals, and clean- It will provide a basis for reducing the but no later than December 31, 1979, ing of maintenance shops. A conscienneed for full time respiratory use. necessary engineering controls except tiously carried out program of such Many employees will be able to spend to the extent the employer can show practices can substantially reduce part of the day in clean rooms and that those controls are not feasible. background levels of arsenic. pulpits where they may remove their Unless the evidence supplied by Secondly, those engineering controls respirators. Another part of the day, ASARCO does not represent the curwhich will reduce exposures below the the employee will have to wear a respirent circumstances, ASARCO may be 10 µg/m³ limit for significant numbers rator. However, properly fitted and seable to show that installing all of the of employees should be installed. This lected respirators in many circumtechnically feasible engineering conwill eliminate the need for respirator stances will reduce exposures substantrols discussed in the IHEA, DBA and usage in those locations. tially under 10 µg/m³. That, in con- Arthur Young studies are not feasible Thirdly, filtered-air pulpits and junction with a general lowering of in that period at Tacoma. In addition, clean rooms should be utilized where background exposure levels, will substantial respirator usage will be reappropriate. Many production jobs in permit employees to spend part of the quired. a smelter are of a tending or intermitday not wearing respirators outside of If this is the case, the standard retant nature. A clean room or filtered the clean room and still maintain 8 quires ASARCO to develop a compliair pulpit provides an environment hour time weighted average under the ance plan for installing the most effecbelow the 10 µg/m³ level, where the 10 µg/m³ limit set by the standard. FEDERAL REGISTER, VOL. 43, NO. 88-FRIDAY, MAY 5, 1978 19610 RULES AND REGULATIONS The standard also requires quantitaficulties. If carefully administered by Tacoma. It has committed itself to tive fit testing for facilities with wide- ASARCO, it will provide needed spending $6 million for environmental spread respirator use. Such testing will health protection for the employees arsenic controls there, knowing about permit a more accurate assessment of and respond to the feasibility questhe pendency of OSHA arsenic regulathe degree of protection the respirator tions. tions. The expenditure of sums in this is giving each employee. It will also In the longer term installation of adrange will go a long way towards compermit determination of what part of ditional engineering controls, modernpleting, or complete by 1980 the instalthe day the employee may go without ization of the Tacoma facility and lation of those most effective engiwearing his respirator, and still be technological development will reduce neering controls describes above. Obviunder the exposure limit. exposure levels. As this occurs less reously ASARCO management has con- The standard also gives the employliance on respiratory protection will be sidered it economically feasible to ees the option of wearing powered air needed. invest sums of this size in environmenpurifying respirators and requires em- The case of IUD V. Hodgson (supra) tal controls in the recent past at ployers to furnish them when requestsuggests that consideration may be Tacoma. However, in view of the ed. Those respirators, as discussed given to setting a different exposure severe health hazards, it is OSHA's below, are often more comfortable for level for different industries. Such a view that a substantial sum must be the employee and can provide a higher response does not seem proper in invested in engineering controls, no degree of protection than negative these circumstances. OSHA does not matter what the circumstances, in pressure respirators. In addition, the believe that the carcinogenic risk at order to significantly reduce that process of developing new and more higher worker exposure levels is achazard and indicate that a major comfortable forms of powered air puriceptable, and an approach is available effort to reduce exposures is being fying respirators continues. OSHA is which can provide the Tacoma emmade. willing to consider granting experiployees with the same level of protec- In considering economic feasibility mental variances or other appropriate tion as other employees, although in a at Tacoma it is also necessary to take action to permit use of such respiraless satisfactory manner. In addition into account additional revenues tors or other respirators which in- Tacoma is primarily a copper smelter which will be generated at the smelter crease comfort and reduce safety proband does not constitute a separate inas a result of this standard. As dislems before certification by NIOSH is dustry. cussed above in the feasibility analysis granted, if quantitative fit tests indi- The rulemaking record includes for the copper smelting industry, cate they are providing proper protecanalyses of economic feasibility for there will be conservatively an addition in the Tacoma environment. Tacoma by Arthur D. Little, Inc., tional 1c per pound in copper smelting A compliance plan for Tacoma fol- Arthur Young & Co., Dr. Arvil Adams, charges as a result to the standard. lowing the above outlines will mitigate and ASARCO management officials. Based on approximately 75,000 tons of the hardships of respirator use at Based on this record OSHA believes copper per year smelted at Tacoma, Tacoma. It will reduce the need to ASARCO is in position to spend a subthis will come to $1.5 million in inwear respirators for the entire work stantial capital sum towards the increased revenues. day and will encourage the use of stallation of effective engineering con- In addition, as a result of this standmore comfortable types of respirators. trols and carry the provisions of the ard Tacoma will receive increased rev- It also will be beneficial to ASARCO compliance plan described. enues from the sale of arsenic-trioxide because the loss of efficiency through Final determination of the most efover its arsenic-trioxide revenues at respiratory use is less when they need fective economically feasible schedule the time this record was compiled. not be worn all day and more comfortfor installation of engineering controls Both Arthur Young and A. D. Little able types can be worn. It is recoganalyzed the arsenic market at considwill be determined at the compliance nized that for some employees, such as level. Latest information and internal erable length in Exhibits 135A and crane chasers, electronic communicafinancial data will be available at that 111-7. Arthur Young suggested that, tion equipment needs to be incorporatso long as Tacoma produced arsenic, stage. This information is discussed ed into the respirator to permit adeprices would not increase significantly here to assist in a more rapid determiquate communication. because of import competition. A. D. nation at the compliance level and to The feasible compliance plan for Little suggested that ASARCO might give guidance to the parties. Tacoma would not be appropriate in raise its arsenic-trioxide approximate- Tacoma is integrated into other most other circumstances. As exly 50 percent ($150 per ton) and still ASARCO operations as pointed out by plained above, the substitution of ressell its entire annual production Strauss, ASARCO's Executive Vicethough not reduce its inventories expirators for feasible engineering con- President (STR, p. 443) and by A. D. isting at the time of the report. It is trols is not acceptable because of the Little, ASARCO's own witness (Ex. OSHA's understanding that Tacoma difficulties in properly fitting and in- 111-7, pp. 29-30). Although ASARCO arsenic inventories have been substansuring that they are used. Moreover supplied little evidence upon which to tially reduced and therefore pricing to many types of respirators are uncomestimate the value of the services it reduce inventories would not now be fortable to wear, and it is inappropriperforms for other ASARCO facilities, necessary. ate to place the burden of compliance they involve treating $30 million in Foreign prices have in the last severon the employee when it is the emmetal values per year (Ex. 111-7, p. al years risen to levels higher than doployer who has not removed toxic sub- 30). ASARCO has stated it would inmestic prices. The largest foreign prostances from the workplace. volve new capital expenditures to perducer, Boliden in Sweden, may cur- Further a program of averaging exform those services at its El Paso rently have less arsenic-trioxide to posures with the respirator on and off smelter (STR. p. 443). On this basis sell; it's inventories have shrunk with to prevent full time use is also not acand because of the serious health the exhaustion of some of its sources ceptable in most circumstances. It is problems at Tacoma it is appropriate of high arsenic concentrates. Foreign difficult to administer such a program, that the initial capital investment for arsenic-trioxide prices have increased enforce it and insure that employees engineering controls should be in about 300-400 percent over the last are not over exposed. major part charged to ASARCO as a eight years. More recently domestic However Tacoma presents difficult whole, and not specifically come only prices have risen 200-300 percent and circumstances. There are serious from Tacoma resources. domestic inventories have declined. health and feasibility problems. In ASARCO recently completed an $18 Foreign prices are now greater than these limited circumstances, the above million program for reduction of envidomestic prices. Domestic consumpprogram is appropriate despite its difronmental sulfur dioxide emissions at tion has been maintained or increased. FEDERAL REGISTER, VOL. 43, NO. 88-FRIDAY, MAY 5, 1978 RULES AND REGULATIONS 19611 The cost of arsenic-trioxide is only a 4 µg/m³ level and an estimated aver- (PAPR) which weights only 5 pounds, small part of the cost of the finished age loss of efficiency of 20 percent. mostly carried at the belt. Because the products in which it is used and for There are other estimates on the face fit is loose, there is a cooling air some uses substitutes are less satisfacrecord of loss of efficiency of respirastream, no breathing resistance and tory. (This aspect is discussed at greattor use ranging down to 8 percent. In light weight, this type of respirator er length in the final EIS.) Based on addition the change in the final standcreates a loss of efficiency substantialthis, many of the purchasers of arard from the proposal and new develly below 20 percent and probably senic compounds should be able to opments in respirator protection since below the low end (8 percent) estimate absorb significantly increased prices that estimate was made, should subon the record. These respirators may without reducing consumption substantially reduce the loss of efficiency be used where expesures do not stantially. associated with respirator use. exceed 10,000 µg/m* thus offering the A 50 percent increase in arsenic The change to the 10 µg/m3 level opportunity for replacing airline respiprices would increase Tacoma revand the use of exposure averaging rators, negative pressure respirators enues by approximately $1.5 million (which would be based on mean expoand self-contained breathing apparaper year based on 10,000 tons prosure levels), will mean that a signifitus in the vast majority if not all locaduced per year and a $300/ton price at cant number of employees may not tions. (See Table 1, paragraph g of the time of this record. It would need to wear respirators at all and standard) appear to OSHA that a price and revemany employees will only need to In view of all these factors, OSHA nue increase of this magnitude would wear respirators part time. Further believes that the loss of efficiency be quite possible in view of the recent employees need not wear respirators from respirator use will be, at most, no price history and other reasons diswhen in clean rooms. In a number of more than one-half of the ASARCO cussed above. areas at Tacoma, existing mean expoestimate. Further OSHA believes that This standard will therefore result sures (based on personal samples as rewith the increase in the permissible in additional smelting revenues of $1.5 quired by the standard if that data is exposure level to 10 µg/m³ and the million and additional arsenic revavailable) are below 20 µg/m³. Exhibit compliance strategy described, apenues of $1.5 million, or total in- 29G, Appendix 3 supplied by ASARCO proximately one-half of the number of creased revenues of $3 million annualindicates that the Acid Plant, Slimes full time equivalent employees will ly. ASARCO has stated that Tacoma Building, Electric Shop, Fine Castings, need to wear respirators as ASARCO pretax profits averaged $1.9 million Ore Dock, Main Office, Warehouse, estimated. Therefore the loss of effiand these two figures total $4.9 mil- Machine Shop, Anode Department, ciency through respirator use is likely lion. Mobile Equipment Repair and Buckto be reduced three-quarters or $2.43 The Arthur Young estimate for ing Room come in this category. The million from ASARCO's $3.24 million annual costs at the 4 µg/m' level is installation of the most effective engiestimate. $3.85 million. This number is based on neering controls discussed above, good In view of these two factors, OSHA some assumptions based upon the prohousekeeping and clean up may elimibelieves that the ASARCO estimate of visions of the proposal and not the nate the need for respirators in those annual compliance costs should be refinal standard. There will be a lower areas or greatly minimize it. duced by $4.27 million ($2.43 million level of operating costs initially as a The ASARCO estimate is based on respirator efficiency plus $1.84 operatresult of the immediate installation of employees exposed over 4 µg/m³ ing costs engineering controls over-esfewer engineering controls. The inhaving to wear fullface piece respiratimates) to $3.41 million. OSHA, howcreased exposure limit will reduce restor which ASARCO believes are less ever, would expect that ASARCO pirator use, but the installation of comfortable. It is also based on a subwould spend several hundred thoufewer engineering controls will instantial number of employees wearing sand dollars more on improved housecrease it. Hence the changes will, at airline respirators. These substantially keeping than the $0.14 million least in part, balance out. reduce efficiency in jobs requiring mo- ASARCO estimated. The ASARCO estimate for annual bility because the hoses interfere. It is Based on the above analysis. OSHA costs at Tacoma is summarized by A. not completely clear whether the estibelieves that the operating cost of the D. Little at page 15 of their Report. mated reduction in efficiency includes compliance plan described will be The basis of this data is testimony by an element of the very high loss of efwithin the resources of the Tacoma ASARCO management and Caplan. A. ficiency in wearing heavy self-consmelter including its $1.9 million his- D. Little did not independently review tained breathing apparatus. However torical annual profits and $3 million the figures. The figure estimated in it appears from the questioning that additional revenues as a result of this $7.68 million. Other figures given are Mr. Lindquist's estimate of 20 percent standard and that overall the complicapital charges which are discussed loss of efficiency includes some ance plan described is feasible. Obviabove. allowance for that. It also should be ously to the extent conditions change However the ASARCO estimate innoted that the study, which Mr. Lindor better analyses become available, cludes two figures which are substanquist stated he relied on for his 20 persuitable adjustments can be made at tial over-estimates. The operating excent estimate, was not systematic and the compliance level. penses for engineering controls given did not involve any actual time and The question of future operations at are $2.77 million based on immediate motion analysis of lost efficiency. Tacoma in uniquely the decision of installation of $41.1 million of engi- The final standard will permit one- ASARCO's management. Evidence on neering controls. If for example it is half facepiece respirators to 100 µg/m³ this record indicates that the continudecided at the compliance level that it which will reduce loss of efficiency ing viability of the smelter depends on is only feasible to install one-third of from possible discomfort wearing full many factors beyond the control of those controls by 1980, then the operfacepieces. There is now a certified OSHA or anyone, such as copper ating costs of engineering controls dust and acid gas cartridge. Therefore prices, availability of British Columbia would be reduced by approximately when the SO2 limit is exceeded, the concentrates, Japanese subsidy politwo-thirds or $1.84 million to $0.93 employee is permitted to wear a onecies, and a number of other considermillion. half facepiece respirator up to a conations. Nor as a matter of policy or of ASARCO estimates a $3.24 million centration of 100 µg/m³ of arsenic and law does OSHA believe it appropriate annual cost for loss of efficiency from 10 times the sulfur dioxide limit. to ignore health considerations berespirator use. This is based on all 900 In addition there is now available a cause difficult feasibility questions production employees wearing respiraportable, battery operated certified may exist. ASARCO figures indicate a tors full time giving protection to the powered air-purifying respirator substantial excess of lung cancer FEDERAL REGISTER, VOL. 43, NO. 88-FRIDAY, MAY 5, 1978 19612 RULES AND REGULATIONS deaths at Tacoma. Certainly, major ef- It should be noted that the standard senic standard to wait for the developforts are required to reduce this risk. does not cover every place where inorment of a suitable sampling technique Consideration of additional capital ganic arsenic is present. As explained as well as other procedures and there investment for engineering controls in in the background section and FEIS, is a current permissible exposure limit the early 1980's, is best analyzed in arsenic is a naturally occurring materifor arsine of 0.05 ppm included in compliance proceedings at that time, al and is present in small amounts in Table Z-1 of 29 CFR 1910.1000 to give in the light of the circumstance and many substances. It is therefore inapprotection now. available resources then existing. In propriate to cover situations where Some parties requested that the addition as engineering controls sucvery low levels of arsenic may be presscope of the final standard be narceed in reducing exposure levels, respient in substances or products in the rowed and clarified. Spokespersons rator use will be reduced. The resultworkplace, but where they are hanfrom several industries expressed their ing savings in respirator costs will dled in such a way that the possibility belief that industries handling materimake available additional sums for of airborne exposure is minimal. But als containing less than 0.1 percent arfurther engineering controls. where the substances containing arsenic (Exhibits 79, 106, 108, 112) be senic are handled or processed in such exempted from the standard. It was VIII. SUMMARY AND EXPLANATION OF a way as to create exposure, a possible their belief that this would provide a THE STANDARD hazard exists, and the operations come reasonable cut-off where exposures The following sections discuss the within the scope of this standard. would be minimal and provisions such individual requirements of the stand- Several examples may be helpful. If as monitoring need not apply. ard. The sections include an analysis arsenic trioxide is added to glass OSHA does not feel it is appropriate of the record evidence, the recommenduring manufacture, airborne arsenic to exclude those industries handling dations of NIOSH, and the policy conis likely to be present and the opermaterials with less than 0.1 percent arsiderations underpinning the decisions ation comes within the scope of this senic from the standard. OSHA feels on the particular provisions of the standard. However, when that glass is this standard must be based on thestandard. As discussed in the PEL seccut or used, airborne exposure is undegree of employee exposure to airtion above, the final standard sets a likely because the arsenic is bound in borne concentrations of inorganic arpermissible exposure limit to inorganic the glass, and those operations are senic since the degree of exposure arsenic of 10 µg/m³. Engineering conoutside the scope of this standard. most represents the risk to the emtrols and work practices are required Similarly when gallium arsenide is ployee. It should be noted, for examwhere necessary and written compliproduced there may be airborne expople, that employee exposure in some ance plans must be developed. Other sures and the operation is covered by copper smelters with arsenic levels of portions of the standard including this standard. However, when light less than 0.1 percent in their feed had those on respirators, protective clothemitting diodes are assembled into cal- a number of employees exposed above ing, hygiene facilities, and exposure culators or watches, airborne exposure 10 µg/m³. The inclusion of an action monitoring have been revised and level limits the requirements of the is unlikely and those operations are clarified as described in detail below. standard (except for initial monitoring outside the scope of this standard. It should be noted that the language and labelling), to employees exposed If the operation comes within the of many of the standard's provisions above 5 µg/m³. scope of this standard, but exposures and the order of the paragraphs have Diamond Shamrock (Ex. 3E) has exare shown to be below 5 µg/m³ after been changed to be consistent with pressed the view that regulatory activinitial monitoring, then there may be the drafting in recent OSHA health ity would be difficult where naturally no other obligations under this standstandards such as the acrylonitrile occurring organic arsenicals may be ard except labelling in some circumproposal (43 FR 2608), benzene final mixed with inorganic arsenic. They standard (43 FR 5913), and the final stances and remonitoring if processes further stated that since they believed coke oven standard (41 FR 46784). change. there was no analytical method for OSHA believes, to as great extent pos- Inorganic arsenic is defined as distinguishing individual arsenic comsible, a similar style should be folcopper aceto-arsenite and all inorganic pounds, only total arsenic can be lowed in order to lead to uniformity of compounds containing arsenic except measured. Diamond Shamrock, thereinterpretation of similar provisions. arsine. Copper aceto-arsenite has been fore, recommended that only oper-