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This is the complete text of an OSHA "Standard Interpretation
letter," dated January 31, 2002. For more information
about such letters, see the text below the end of the letter.
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U.S. Department of Labor
Assistant Secretary for
Occupational Safety and Health
Washington, D.C. 20210
JAN 31 2002
Mr. Lowell Peterson
Meyer, Suozzi, English and Klein, P.C.
Counselors at Law
1350 Broadway, Suite 501
New York, NY 10018
Dear Mr. Peterson:
Thank you for your October 16 letter
to the Occupational Safety and Health
Administration (OSHA). This letter constitutes OSHA's position
only on the
requirements discussed and may not be applicable to any issue
not delineated within
your original correspondence. You presented steps that Local 78
of the Asbestos, Lead,
and Hazardous Waste Laborers union thinks are imperative to protect
the workers and
residents in the area of the World Trade Center from the settled
dust produced by the
collapse of the twin towers. The steps the union recommends and
our replies are
provided below.
Step 1: All of the dust must be tested for asbestos using the Transmission
Electron Microscopy method.
Reply: In that the materials containing
asbestos were used in the construction of the
Twin Towers, the settled dust from their collapse must be presumed
to contain asbestos.
Therefore, the use of Transmission Electron Microscopy (TEM) is
not necessary in order
to establish that the applicable provisions of the Construction
Asbestos standard, 29
CFR 1926.1101 apply during the demolition or salvage of the affected
structures.
Step 2: All dust which tests positive must be removed by licensed contractors
using certified asbestos handlers.
Reply: As you may know, contractor licensing
and asbestos handler certification are
city and state programs. Your concern, however, is directed toward
ensuring the
appropriate handling of asbestos hazards. OSHA's requirements,
per 29 CFR
1926.1101(o)(1), address the need for a "competent person"
and state that this individual
must be on the worksite. The competent person must have the qualifications
and
authorities for ensuring worker safety and health as required
by Subpart C, General
Safety and Health Provisions for Construction (29 CFR 1926.20
through 1926.32).
The general definition of a "competent
person" is presented at 29 CFR 1926.32(f).
According to the standard, a "competent person" is,
"one who is capable of identifying
existing and predictable hazards in the surroundings or working
conditions which are
unsanitary, hazardous, or dangerous to employees, and who has
authorization to take prompt
corrective measures to eliminate them." Paragraph 1926.1101(b)
further defines a
"competent person" as, "in addition to the definition
in 29 CFR 1926.32(f), one who is capable
of identifying existing asbestos hazards in the workplace and
selecting the appropriate control
strategy for asbestos exposure, who as the authority to take prompt
corrective measures to
eliminate them, as specified in 29 CFR 1926.32(f)." The Construction
Asbestos standard
further incorporates the provisions of 29 CFR 1926.20(b)(2) which
requires frequent and
regular inspections of job sites, materials, and equipment to
be made by the competent
person. These requirements are geared toward ensuring maximum
safety and health
for employees on worksites where asbestos is present.
Step 3: HEPA filters must be evaluated.
Reply: The National Institute for Occupational
Safety and Health (NIOSH) is the
Federal agency assigned the responsibility for approving respirators
and filters. All
respirators and filters required by OSHA standards must be NIOSH
certified. OSHA's
Respiratory Protection Standard, 29 CFR 1910.134, governs the
workplace use of
respirators.
A NIOSH-certified HEPA filter is, "a
filter that is at least 99.97% efficient in removing
mono-disperse particles of 0.3 micrometers in diameter."
Equivalent particulate filters
certified by NIOSH are the N100, R100, and P100 filters.
The 0.3 micrometers (microns - µm)
diameter particle used in the certification testing of
the HEPA (and 100-series) respirator filters is approximately
the most penetrating for
particulate filters. Although it seems contrary to expectation,
smaller particles do not
penetrate as readily as 0.3 µm particles. That is to say,
these filters eliminate other
particle sizes at least as well as the certified efficiency value
of 99.97%.
Step 4: The remaining debris must
be taken out properly.
Reply: Asbestos-containing waste must
be presumed to be intermixed with the
remaining debris at the World Trade Center site because materials
containing asbestos
were used in the construction of the Twin Towers. Therefore, in
accordance with
1926.1101(g)(l)(ii), wet methods must and are being used to control
employee asbestos
exposures while removing the remaining Twin Towers debris except
where employers
demonstrate that the use of wet methods is infeasible. The debris
must be kept wet at
all times until it has been loaded and transported away from the
site.
Thank you for your interest in occupational
safety and health. We hope you find this
information helpful. OSHA requirements are set by statutes, standards,
regulations.
Our interpretation letters explain these requirements and how
they apply to particular
circumstances, but they cannot create additional employer obligations.
This letter
constitutes OSHA's interpretations of the requirements discussed.
Also, from time to
time we update our guidance in response to new information. To
keep apprised of such
developments, you can consult OSHA's website at http://www.osha.gov.
If you have
any further questions, please feel free to contract the Office
of Health Compliance
Assistance at 202-693-2190.
Sincerely,
/s/ John L. Henshaw
John L. Henshaw
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OSHA routinely produces approximately 200 such letters annually
in response to questions from employers, employees and employee
organizations.
OSHA posts many (but not all) of its interpretation letters
on its website. OSHA never posted this letter. To view
interpretation letters posted on the OSHA website, click
here
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