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OSHA Instruction STP 2-1.171 July 6, 1993 Office of State Programs

Subject: Lead Exposure in Construction: Interim Final Rule

A. Purpose. This instruction describes a Federal Program Change to the Regions and State designees.

B. Scope. This instruction applies OSHA-wide.

C. Reference. OSHA Instruction STP 2-1.117, August 31, 1984, State Standards.

D. Federal Program Change. This instruction describes a Federal Program Change which affects State programs. Each Regional Administrator shall:

1. Ensure that this instruction is forwarded to each State designee.

2. Provide a copy of the Federal Register notice to the State designee upon request.

3. Explain the technical content of the Federal Register notice at 58 FR 26590, May 4, 1993, Lead Exposure in Construction, Interim Final Rule, to the State designees upon request.

4. Inform each State designee that under 29 CFR 1953.23(a) and (b), the State must, within six months of the date of the Federal Register publication listed in item 3 above, amend its final rule or adopt the final rule to ensure that the State standard is at least as effective as the Interim Final Rule for Lead Exposure in Construction. The State must submit a plan supplement to the Regional Administrator within 30 days of State promulgation.

5. Ensure that each State designee acknowledges receipt of this instruction in writing, within 30 days of notification, to the Regional Administrator. The acknowledgment should include (a) the State's plan to adopt and implement the standard change, (b) the State's plan to develop an alternative change, which is as effective, or (c) the reasons why no change is necessary to maintain a program which is as effective as the Federal program.

E. Different State Standards. Section 18(c) of the Act requires that State standards be "at least as effective" as the Federal and, when applicable to products used or distributed in interstate commerce, the standards must be required by compelling local conditions and not unduly burden interstate commerce. In addition to the "at least as effective" criterion, this "product clause test" will be applied to State standards with substantively different requirements from the comparable Federal standard, as described in STP 2-1.117. A State standard expanded in scope from the Federal is considered to be a substantively different standard.

F. Interim Enforcement. Under 29 CFR 1953.23(a) and (b), State plan States are provided up to six months from publication of the Federal standard in the Federal Register to promulgate an identical or "at least as effective" standard. During the interim period prior to adoption, the State should make every effort to enforce the substantive provisions of the new or revised Federal standard through existing State standards, a general duty clause, or other enforcement mechanism. Federal enforcement assistance will be provided, as necessary, in States without final approval (18(e) determination), and technical assistance in 18(e) final approval States.

G. Effective Date. The interim final rule becomes effective on June 3, 1993. The requirements of paragraphs (c) through (o) of the standard, including administrative controls and feasible work practice controls, but not including engineering controls specified in paragraph (e)(1), must be compiled with within 60 days from the effective date. Feasible engineering controls specified by paragraph (e)(l) of this standard must be implemented within 120 days from the effective date. The effective date for an identical or different State standard may be no later than the date of State promulgation or the Federal effective date, whichever is later. Where a Federal standard contains delayed effective dates for various provisions, the state effective dates for these provisions may be no later than the delayed Federal dates or the date of State promulgation, whichever is later.

H. Explanation.

1. On May 4, 1993, OSHA issued a new standard regulating Lead Exposure in Construction, subpart D of 29 CFR Part 1926 . This standard reduces the permitted level of exposure to lead for construction workers from 200 micrograms per cubic meter of air (200 ug/m(3)) as an 8-hour time weighted average (TWA) to an 8-hour TWA of 50 ug/m(3).

2. The standard also 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. An action level of 30 ug/m(3) as an 8-hour TWA is established as the level at which employers must initiate certain compliance activities. In instances where employers can demonstrate that employee exposures are below 30 ug/m(3) as an 8-hour TWA, the employer is not obligated to comply with most of the requirements in this interim final rule.

3. This interim final rule is mandated by, and issued under the exclusive authority of, Title X, subtitle C, sections 1031 and 1032, Worker Protection, of the Housing and community development Act of 1992. Section 1031 of that Act specifically provides that this interim final rule ... "shall have the legal effect of an occupational safety and health standard and shall apply until a final standard becomes effective under section 6 of the Occupational Safety and Health Act of 1970." Because OSHA is authorized to enforce this standard, the "at least as effective" provisions of section 18(c) would require the states to be able to enforce comparable requirements within the usual six month timeframe. (Please note, that unlike the requirements for adoption of the Hazardous Waste Operation standard under SARA Title III, no mandatory deadline was established for promulgation of the final Federal Lead in Construction rule.)

4. Under 29 CFR 1953.23(a) and (b), State plan States are provided up to six months from the publication in the Federal Register of an OSHA standard for adoption of parallel State standards and amendments. States should promulgate their equivalent of this standard by November 4, 1993.

David C. Zeigler Acting Assistant Secretary

DISTRIBUTION: National and Regional Offices State Designees 18(b) State Monitors OSHA Training Institute OSHA Computerized Information System (OCIS)