INITIAL STATEMENT OF REASONS
CALIFORNIA CODE OF REGULATIONS
TITLE 8: CONSTRUCTION SAFETY ORDERS
Chapter 4, Subchapter 4, Article 4, Section 1532.1
Section 1532.1 of the Construction Safety Orders, Lead, became effective in California on September 28, 1993. Section 1532.1 was adopted pursuant to Labor Code Section 142.3(a)(4) in response to the Federal adoption of 29 CFR 1926.62, Lead. 29 CFR 1926.62, the Federal lead in construction rule, was adopted April 26, 1993 as an interim final rule. This rule was mandated by and issued under the exclusive authority of Housing and Community Development Act of 1992. The Housing and Community Development Act mandated that the U. S. Department of Labor issue an interim final lead standard within 180 days after its enactment, and that the interim final standard would have the effect of an OSH Act standard until a final standard was adopted under Section 6 of the OSH Act. As of the date of this document, no final Federal construction lead standard has been adopted under Section 6 of the OSH Act. The process by which the interim final standard was adopted did not include public review and comment and therefore did not benefit from this aspect of the normal adoption process.
Section 1532.1 of the Construction Safety Orders is based on the requirements of the interim final standard which includes requirements addressing exposure assessment, methods of compliance, respiratory protection, protective clothing and equipment, hygiene facilities and practices, medical surveillance, medical removal protection, employee information and training, signs, recordkeeping, and observation of monitoring. Subsection (f) of Section 1532.1 specifies requirements for the use of respirators in construction work involving employee exposure to lead. This subsection specifies maximum use concentrations for various classes of respirators in Table I. Table I specifies that type CE hood or helmet continuous flow abrasive blasting respirators may be used in concentrations not exceeding 1250 µg/m3. This is a concentration which is equivalent to 25 times the PEL of 50 µg/m3. The limitation has the effect that use of type CE hood or helmet continuous flow abrasive blasting respirators is prohibited from many blasting operations which were permitted prior to the adoption of this standard. Since the adoption of Section 1532.1, new information regarding the protectiveness of these respirators has been obtained which indicates that the limitation on the use of CE hood or helmet continuous flow abrasive blasting respirators is excessive. The limitation unnecessarily denies employers and employees the use of these respirators in operations for which they are appropriate.
SPECIFIC PURPOSE AND FACTUAL BASIS OF PROPOSED ACTION
The specific purpose of the proposed action is to permit the use of type CE hood or helmet continuous flow abrasive blasting respirators in construction work at airborne concentrations of lead which are consistent with their ability to protect the user.
On November 15, 1996 the OSHSB received a petition from the E. D. Bullard Company requesting a change to the assigned protection factor for type CE continuous flow respirators in Section 1532.1 (petition file #373). The E. D. Bullard Company submitted a similar request to the Occupational Safety and Health Administration in March 1994. OSHA granted this request for particular E. D. Bullard respirators after a third party conducted performance tests on the respirators. The tests were performed at Lawrence Livermore National Laboratory (May 1995) and found that the measured protection factor in simulated workplace use generally exceeded 40,000. OSHA changed its enforcement policy to permit the E. D. Bullard continuous flow abrasive blasting respirators in lead atmospheres, which require a protection factor of 1000, in a memorandum dated August 30, 1995. Subsequent to the E. D. Bullard petition, OSHA granted enforcement relief to a similar type CE abrasive blast respirator manufactured by CLEMCO Industries Corporation after independent testing to the same criteria as the E. D. Bullard respirators by the Los Alamos National Laboratory. This relief is described in an OSHA memorandum dated March 31, 1997.
The E. D. Bullard petition states that the adoption of the interim final rule for lead in construction, 29 CFR 1926.62, reduced the assigned protection factor for Type CE hood or helmet continuous flow respirators to a level far lower than provided in other OSHA regulations and those recommended by ANSI. This new level effectively banned these respirators for construction blasting operations involving lead. The petition further states that OSHA used the 1987 NIOSH respirator decision logic document as a basis for assigning the protection factor of 25. This is confirmed by statements made by OSHA in its August 30, 1995 memorandum which was attached to the petition.
The E. D. Bullard petition also stated that NIOSH based its reduction of the protection factor for Type C and CE hood or helmet respirators to 25 on respirators with significantly different designs than those used for blasting. The respirators considered by NIOSH are currently described as "loose-fitting facepiece" respirators by ANSI. The research cited by NIOSH for these loose-fitting facepiece respirators showed that those respirators were not as protective as expected for this classification. Other research cited in the petition indicates that other respirator designs in the Type C and CE certification could provide sufficient protection to warrant an assigned protection factor of 1000. It also cited a NIOSH study of an abrasive blasting operation at BP Oil Corporation, Lima, Ohio, where workers used a Bullard Type CE respirator. This research indicated that the respirator contributed to a "remarkably high" program protection factor of 10,000.
The protection factors described above are the ratio of the contaminant concentration outside the respirator to the contaminant concentration inside the respirator and are a measure of the respirators effectiveness protecting the user. Both the California and Federal construction lead standards do not directly specify protection factors for respirator selection, but do specify maximum use concentrations for the various respirator classes. These maximum use concentrations are listed in Section 1532.1(f), Table I. The maximum use concentrations are related to the protection factor and can be calculated by multiplying the Permissible Exposure Limit by the protection factor. For example, a protection factor of 25 and a PEL of 50 µg/m3 would give a maximum use concentration of 1250 µg/m3.
On March 20, 1997, the Board considered and granted the E. D. Bullard petition. The Board requested in its decision that the Division convene an advisory committee to consider changes to the respirator selection requirements of the construction lead standard. The Board also noted in its decision that it had given particular weight to the fact that there is a strong precedent for using ANSI standards as a model for standards development.
On September 29, 1998, the Division convened an advisory committee to consider changes to the respirator selection requirements in Section 1532.1. After discussing the E. D. Bullard petition and testing results, the committee consensus was that an increased protection factor was justified. The committee also recommended that the change be limited to type CE continuous flow abrasive blasting respirators and thought that a protection factor of 1000 was appropriate. The committee recommended that the increased protection factor be limited to those type CE respirators with neck cuffs or neck sealing features which help maintain positive air pressure in the respiratory inlet cover of the respirator.
The Board agrees with the recommendation of the advisory committee and proposes this amendment for the foregoing reasons.
DOCUMENTS RELIED UPON
November 11, 1996 (Petition file #373).
6. Minutes of the Advisory Committee for Hood and Helmet Supplied Air Respirators, September 29, 1998.
IDENTIFIED ALTERNATIVES THAT WOULD LESSEN
ADVERSE ECONOMIC IMPACT ON SMALL BUSINESSES
No adverse impact on small businesses is anticipated from the implementation of the proposed amendments. Therefore, no alternatives which would lessen the impact on small businesses have been identified.
SPECIFIC TECHNOLOGY OR EQUIPMENT
This proposal will not mandate the use of specific technologies or equipment.
COST ESTIMATES OF PROPOSED ACTION
Cost or Savings to State Agencies
No costs or savings to state agencies will result as a consequence of the proposed action.
Impact on Housing Costs
The proposed revisions will not significantly affect housing costs.
Impact on Businesses
The proposal will not result in a significant adverse economic impact on businesses, including the ability of California businesses to compete with businesses in other states.
Cost Impact on Private Persons or Entities
The proposal will not require private persons or entities to incur additional costs in complying with the proposal.
Costs or Savings in Federal Funding to the State
The proposal will not result in costs or savings in federal funding to the state.
Costs or Savings to Local Agencies or School Districts Required to be Reimbursed
No costs to local agencies or school districts are required to be reimbursed. See explanation under "Determination of Mandate."
Other Nondiscretionary Costs or Savings Imposed on Local Agencies
This proposal does not impose nondiscressionary costs or savings.
DETERMINATION OF MANDATE
The Occupational Safety and Health Standards Board has determined that the proposed regulation does not impose a local mandate. Therefore, reimbursement by the state is not required pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because the proposed amendment will not require local agencies or school districts to incur additional costs in complying with the proposal. Furthermore, this regulation does not constitute a "new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution."
The California Supreme Court has established that a "program" within the meaning of Section 6 of Article XIII B of the California Constitution is one which carries out the governmental function of providing services to the public, or which, to implement a state policy, imposes unique requirements on local governments and does not apply generally to all residents and entities in the state. (County of Los Angeles v. State of California (1987) 43 Cal.3d 46.)
The proposed regulation does not require local agencies to carry out the governmental function of providing services to the public. Rather, the regulation requires local agencies to take certain steps to ensure the safety and health of their own employees only. Moreover, the proposed regulation does not in any way require local agencies to administer the California Occupational Safety and Health program. (See City of Anaheim v. State of California (1987) 189 Cal.App.3d 1478.)
The proposed regulation does not impose unique requirements on local governments. All employers - state, local and private - will be required to comply with the prescribed standard.
PLAIN ENGLISH STATEMENT
It has been determined that the proposal may affect small business and the Board has determined that it is not feasible to draft the proposal in plain English due to the technical nature of the regulation. However, a noncontrolling plain English summary of the proposal is available from the agency contact person named in this Notice.
The adoption of the proposed amendment to this regulation will neither create nor eliminate jobs in the State of California nor result in the elimination of existing businesses or create or expand businesses in the State of California.
ALTERNATIVES THAT WOULD AFFECT PRIVATE PERSONS
No alternatives considered by the Board would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.