OSHA requirements are set by statute, standards and 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 interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. 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 https://www.osha.gov.

May 30, 1995



SUBJECT: Review of Variance Request Number 2276


The Office of Health Compliance Assistance has reviewed the request for variance of the Pure Carbon Company for relief from complying with the permissible exposure limit (PEL) for coal tar pitch volatiles (CTPV).

In the Pure Company's request, they have asked for relief in one of these three ways:

* adjust the limits (PEL) for their industry,

* use an adjustment factor to transpose the benzene soluble fraction (BSF) to more accurately represent the amount of coal tar pitch volatiles present, or

* base the limits on a more accurate analytical method which would not interfere with the benzene soluble species.

Section (6)(d) of the OSH Act requires "that the proponent of the variance must demonstrate by a preponderance of evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by the employer will provide employment and places of employment to his employees which are safe and healthful as those which would prevail if he complied with the standard." We believe that the employer has not met the burden of proof required for granting any of the above variance request based on the facts discussed below:

* The information that the employer has submitted in this variance request package represents the company's abatement plan. In the information provided the employer has shown that employee exposures can be reduced to or below the PEL under the abatement plan. By attaining this level of employee protection, the employer has shown that compliance to the PEL is achievable.

* A review of OSHA's Analytical Method 58 with the Salt Lake City Technical Center acknowledged that sulfur and zinc stearate are benzene soluble species (BSS) that could interfere with the benzene soluble fraction of coal tar pitch volatiles. If these or other interferences are known then the BSS's could be analyzed and factored into the analytical results to accurately measure the BSF of the CTPV's. If this practice is utilized effectively then the use of an adjustment factor is presently in place. As for developing a better analytical method, OSHA believes that OSHA method 58 is accurate.

Should you have any questions concerning this matter, please contact Gail Brinkerhoff or Lewis Ligon at 219-8036.