June 7, 2011
Mr. Mark A. Lies II
Seyfarth Shaw LLP
131 South Dearborn Street
Chicago, Illinois 60603
Dear Mr. Lies:
Thank you for your June 11, 2010, letter to the Occupational Safety and Health Administration (OSHA) Directorate of Enforcement Programs. Because it involves construction issues, it was forwarded to the Directorate of Construction. We apologize for the delay in our reply. You have specific questions regarding the application of the OSHA lead standard, specifically 29 CFR 1926.62(d)(2)(iv)(C), to a shearing operation during demolition of a structure where lead or materials containing lead are present. This letter is OSHA's interpretation of the requirements discussed.
Question 1: When demolishing a structure where lead or materials containing lead are present, is the shearing of structural members solely by mechanical means, without the application of heat to the structural member, considered "cutting" as that term is used in §1926.62(d)(2)(iv)(C)?
Reply: No. Shearing a structural member during demolition where lead or materials containing lead are present is not considered "cutting" or any of the other tasks listed in §1926.62(d)(2)(iv).
With respect to the tasks listed in paragraph (d)(2)(iv) of this section, where lead is present, until the employer performs an employee exposure assessment as required in paragraph (d) of this section and documents that the employee performing any of the listed tasks is not exposed to lead in excess of 2,500 µg/m3 (50 x PEL), the employer shall treat the employee as if the employee were exposed to lead in excess of 2,500 µg/m3 and shall implement employee protective measures as prescribed in paragraph (d)(2)(v) of this section. Where the employer does establish that the employee is exposed to levels of lead below 2,500 µg/m3, the employer may provide the exposed employee with the appropriate respirator prescribed for use at such lower exposures, in accordance with Table I of [1910.134(d)(3)(i)(A)]. Interim protection as described in this paragraph is required where lead containing coatings or paint are present on structures when performing:
(A) Abrasive blasting, (B)Welding, (C) Cutting, and (D) Torch burning. (emphasis added).
This paragraph does not cover shearing. The Preamble to Subpart D supports this interpretation:
Welding, cutting and burning on steel structures: involves the process of heating coated steel to its melt temperature typically by using an oxy-acetylene torch or an arc-welder. 58 Fed. Reg. 26,590, 26,600 (May 4, 1993).
Shearing structural members does not involve the process of heating coated steel to its melt temperature. Shearing is a mechanical process for breaking down steel structures, solely utilizing the scissors-like action of the shear. Accordingly, shearing is not covered by §1926.62(d)(2)(iv).
Question 2: When demolishing a structure by shearing structural members where lead or materials containing lead are present, what protection must employers provide employees before and during assessment of exposure?
Reply: When demolishing a structure by shearing structural members where lead or materials containing lead are present employers must ensure compliance with all relevant provisions of 29 CFR §1926.62 Lead.
The scope provision of this standard, 1926.62(a), states that the standard covers all demolition activity where lead or materials containing lead are present:
(a) This section applies to all construction work where an employee may be occupationally exposed to lead...It includes but is not limited to the following:
(1) Demolition or salvage of structures where lead or materials containing lead are present.
Because lead or materials containing lead are present during the shearing process the employer must conduct an exposure assessment in accordance with §1926.62(d)(1):
Each employer who has a workplace or operation covered by this standard shall initially determine if any employee may be exposed to lead at or above the action level.1
The initial exposure assessment typically includes monitoring; requirements and exceptions2 are found in §1926.62(d)(3).
If employees are performing certain tasks listed in §1926.62(d) the employer must treat these employees as if they are exposed to lead at a particular level until the employer completes the initial assessment and documents that employees are not exposed above the PEL. Shearing is not listed among these tasks, therefore §1926.62(d)(2)(ii) applies:
[W]here the employe[r] has any reason to believe that an employee performing the task may be exposed to lead in excess of the PEL, until the employer performs an employee exposure assessment as required by paragraph (d) of this section and documents that the employee's lead exposure is not above the PEL the employer shall treat the employee as if the employee were exposed above the PEL and shall implement employee protective measures as prescribed in paragraph (d)(2)(v) of this section.
Accordingly, if the employer, before or during the initial assessment, has any reason to believe that an employee shearing structural members may be exposed to lead in excess of the PEL, then the employer must implement the protective measures during the initial exposure assessment in accordance with §1926.62(d)(2)(v).
Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and their application to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that changes to OSHA rules may affect our enforcement guidance. In addition, 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 contact the Directorate of Construction at 202-693-2020.
James G. Maddux, Director
Directorate of Construction
1 §1926.62(b) defines action level:" [E]mployee exposure, without regard to the use of respirators, to an airborne concentration of lead of 30 micrograms per cubic meter of air circulated as an 8-hour time-weighted average." [Return to Text]
2 §1926.62(d)(3)(iii) states that, "[w]here the employer has previously monitored for lead exposures, and the data were obtained within the past 12 months during work operations conducted under workplace conditions closely resembling the processes, type of material, control methods, work practices, and environmental conditions used and prevailing in the employer's current operations, the employer may rely on such earlier monitoring results to satisfy the requirements of paragraphs (d)(3)(i)." §1926.62(d)(3)(iv) states that "[w]here the employer has objective data, demonstrating that a particular product or material containing lead or a specific process, operation or activity involving lead cannot result in employee exposure to lead at or above the action level during processing, use, or handling, the employer may rely upon such data instead of implementing initial monitoring." [Return to Text]