Energy Law Update: CDC Proposes Rule for Air-Purifying Particulate Respirators
Of interest to the mining community, the U.S. Centers for Disease Control and Prevention (CDC) has proposed a new rule that would impact respirators used by miners and other persons working in the environmental field. The new rule would establish total inward leakage (TIL) requirements for half-mask air-purifying particulate respirators approved by the National Institute for Occupational Safety and Health (NIOSH). See 74 Fed. Reg. 209 (Oct. 30, 2009) (to be codified at 42 C.F.R 84). TIL is defined as the combination of contaminated air leaked through various potential sources, including the facepiece-to-face seals, and any contaminants that have penetrated the filter. The proposed rule would establish testing to be conducted by NIOSH and manufacturers. It would also specify TIL minimum performance requirements to ensure that half-mask respirators have facepiece-to-face and other seals that adequately perform, when properly fit-tested and used correctly, to provide effective respiratory protection to a majority of intended users.
To receive NIOSH approval under the proposed rule, at least seventy-five percent of the intended user population for the respirator must be able to achieve adequate TIL performance. Adequate TIL performance is a TIL value of 1.0, equivalent to a fit factor of 100. NIOSH presently requires adequate TIL performance for most other respirators, however, the regulations were never placed into effect for half-mask respirators due to limitations on leakage testing which no longer exist. The proposed rule is not intended to replace the necessity of proper fit-testing conducted by employers and individuals prior to selection and use of a respirator. NIOSH expects, however, that the new rule will help streamline selection of a properly fitting respirator.
NIOSH cannot estimate the number of half-mask products currently on the market that would not meet the proposed TIL requirement of the new rule. Nonetheless, NIOSH does not anticipate that the proposed new rule will result in additional costs to consumers. The current NIOSH-approved products that NIOSH expects to pass the new requirements do not differ substantially in cost from comparable products expected not to pass. NIOSH has further proposed that a three year transition period be allowed during which currently approved respirators could still be sold and shipped. Any continued use of distributed respirators following expiration of the three year period is under the jurisdiction of Occupational Safety and Health Administration and Mine Safety and Health Administration, and is therefore not addressed in the proposed rule.
The complete text of the proposed rule can be viewed here. The CDC is accepting comments on the proposed rule until December 29, 2009.
Melanie Norris
1233 Main Street, Suite 3000
Wheeling, WV 26003
304.231.0460
melanie.norris@steptoe-johnson.com
Kristian White
1233 Main Street, Suite 3000
Wheeling, WV 26003
304.231.0470
kristian.white@steptoe-johnson.com
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