Department of Energy Safety and Health Regulatory and Policy Response Line

DISCLAIMER: The information contained in this response is a technical clarification to a DOE Rule or Directive and should only be applied to the specific conditions described in this response. These responses represent the best available technical knowledge from the Department's subject matter experts and are NOT binding upon DOE. These responses DO NOT represent approval of a variance, exemption, or equivalence for any requirements.

Requests for exemptions or equivalencies for Directives requirements must follow the procedures in the specified Order, or if there are no such procedures in the specified Order, the procedures for exemptions or equivalencies in DOE O 251.1D must be followed. Requests for exemptions from DOE Nuclear Safety Requirements must be submitted in accordance with the requirements of 10 C.F.R. Part 820, Subpart E, and requests for interpretations of the Atomic Energy Act, Nuclear Statutes, and DOE Nuclear Safety Requirements must be submitted in accordance with the requirements of 10 C.F.R. Part 820, Subpart D.

Requests for variances from the requirements of 10 C.F.R. Part 851 must be made in accordance with 10 C.F.R. Part 851, Subpart D. More information on variances to 10 C.F.R. Part 851 can be found on the eVariance website located at: EHSS. Interpretive rulings regarding 10 C.F.R. Part 851 that are binding on DOE may only be made by the Office of the General Counsel and those wishing to request such a ruling must follow the procedures described in 10 C.F.R. Part 851, Section 851.7. Responses on this Response Line that predate the issuance of 10 C.F.R. Part 851 'Worker Safety and Health Program' on February 9, 2006, may be out of date and should be validated prior to use.




Approval (SME):______________________________Date:_______________
Approval (Office Dir.):______________________________Date:_______________
Other Reviewers:



Call ID:D19-04-002   Date Recd:4-25-2019
Received By:    Handled By:
Subject:Silica Workers Silica Medical Surveillance
OPS Office:
Call Status:
Caller Information
Name:Employee Type:
Phone:Email:



Question And Response Information
Reviewer:
Keeler, Robin
GC:
HQ POC:Field POC:
Kara BushKara Bush
Enforcement:
Question:

Does the assessment below correctly outline requirements for enrollment of Silica Workers in Silica Medical Surveillance at Department of Energy DOE facilities? If not, what is the correct interpretation of these requirements?














With respect to enrollment of Silica Workers in Silica Medical Surveillance per Occupational Safety and Health Administration OSHA regulation 1926.1153, Respirable Crystalline Silica, OSHA requires the employer to “make medical surveillance available….for each employee who will be required under this section to use a respirator for 30 or more days per year”.














In a Letter of Interpretation dated March 4, 2019 OSHA confirmed that “Employers must make medical surveillance available to each employee who will be required under the RCS standard for construction to use a respirator for 30 or more days per year. The standard requires respirator use where respirator use is specified on Table 1 when employers are following the specified exposure control methods or where exposures exceed the Permissible Exposure Limit PEL”.














While compliance with Table 1 of 1926.1153 was meant to simplify determination of respirator usage requirements under OSHA regulations, DOE Response Line document D17-12-003, Respirable Crystalline Silica – Exposure Control Methods states that contractors are not to “rely on Table 1 instead of obtaining exposure monitoring data”. For medical surveillance purposes, this effectively leaves exposures exceeding the PEL as the only OHSA criteria for determining when respirator usage, and consequently enrollment in medical surveillance, are required.






















Although DOE contractors are required to comply with the more restrictive American Conference of Governmental Industrial Hygienists ACGIH Threshold Limit Values TLVs for compliance demonstration purposes, ACGIH does not define requirements for enrollment in Medical Surveillance the only requirements for enrollment in medical surveillance are propagated by OSHA. For reference, the non-Table 1 OSHA regulations applicable to DOE contractors are copied here:














Respiratory protection is required:














1926.1153e1iiA Where exposures exceed the PEL during periods necessary to install or implement feasible engineering and work practice controls














1926.1153e1iiB Where exposures exceed the PEL during tasks, such as certain maintenance and repair tasks, for which engineering and work practice controls are not feasible and






















1926.1153e1iiC During tasks for which an employer has implemented all feasible engineering and work practice controls and such controls are not sufficient to reduce exposures to or below the PEL.







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While DOE contractors follow the ACGIH TLV for compliance demonstration purposes, the only requirements for enrollment of Silica Workers in Medical Surveillance applicable to DOE contractors are those listed above from 1926.1153e. This subsequently means that DOE contractors are only to count days on which 1 employees are “required under the RCS standard for construction to use a respirator for 30 or more days per year” AND 2 “exposures exceed the PEL” toward the 30-day medical surveillance enrollment requirement.








CFR Citation:
10 CFR §851.23, Safety and health standards; 29 CFR §1926.1153, Respirable Crystalline Silica

Regulatory Review:
Question: Do I correctly understand that based on regulatory requirements and DOE Letters of Interpretation, that DOE contractors are only to count days on which 1 employees are “required under the RCS standard for construction to use a respirator for 30 or more days per year” AND 2 “exposures exceed the PEL” toward the 30-day medical surveillance enrollment requirement?














No. Silica medical surveillance must be made available to employees who use respirators for 30 or more days per year in situations where respirators are required OR when workers will be occupationally exposed to respirable crystalline silica at or above the ACGIH TLV (a concentration of airborne respirable crystalline silica of 25 μg/m3, calculated as an eight-hour time-weighted average) for 30 or more days per year.














Note that DOE contractors may use a modified Table 1 (See responses D19-02-001 and D19-03-002); if respirator use is dictated by a modified Table 1, then DOE contractors must offer medical surveillance if the worker is required to wear a respirator for 30 days or more per year, even if a worker wears a respirator for only a few minutes per day for short duration tasks.







Attchment(s):
https://responseline.doe.gov/pres/attachments/DOE Response Line - 30 Day Silica Medical FInal.pdf
https://responseline.doe.gov/pres/attachments/D19-04-002_Medical Surveillance and Silica_FINAL_ 1-22-20.pdf