Regulations (Preambles to Final Rules) - Table of Contents Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Lead Exposure in Construction
• Section: 1
• Title: Section 1 - I. Background

SUPPLEMENTARY INFORMATION:

I. Background

In 1971, in accordance with section 6(a) of the OSH Act, OSHA adopted standards incorporating a permissible exposure limit (PEL) of 200 ug/m(3) to regulate occupational exposure to lead in general industry (29 CFR 1910.1000) and in the construction industry (29 CFR 1926.55). In both standards, the PEL had to be achieved by engineering and work practice controls. Some years later in 1978, after a section 6(b) rulemaking, OSHA promulgated a final lead standard for general industry (29 CFR 1910.1025), which lowered the PEL to 50 ug/m(3). The 1978 lead standard also required that the PEL be achieved, to the extent feasible, by engineering and work practice controls and in addition included a number of ancillary provisions requiring employers to provide medical surveillance, medical removal protection (MRP), hygiene facilities, appropriate respirators, and air monitoring, among other things.

The 1978 lead standard in paragraph (a) excluded the construction industry from its coverage. OSHA in the preamble explained that it had exempted the industry because of insufficient information in the record to resolve issues raised about the applicability of the standard to conditions in the construction industry. OSHA said it would request the Construction Advisory Committee (ACCSH) to review the record and make recommendations for a lead standard for the construction industry (43 FR 52986, November 14, 1978).

Subsequently, OSHA's exemption of the construction industry was challenged in litigation involving the lead standard for general industry. In response to that challenge, the court upheld OSHA's decision. Although the court declared that "OSHA would be shirking its statutory responsibilities if it made no effort to protect workers in the construction industry from lead exposure....," the court accepted OSHA's assurances at the time "that it will take reasonably prompt steps to fashion this protection", and indicated that "So long as it does so, OSHA has met its duty." "Nothing in the Act," the court said, "prevents the agency from exercising discretion in delaying specific standards according to the unique problems of specific industries...." (United Steelworkers of America v. Marshall, 647 F.2d 1189, 1310 (DC Cir. 1980).

Since 1979, employers have been required to comply with a PEL for lead in the construction industry that is four times the PEL for general industry. Employers have also been required to take other actions to protect construction workers from excess lead exposure to the extent that employers' obligations to provide respirators, protective clothing, hygiene facilities, training, and the like were imposed by generic standards that covered construction (e.g., 1910.20; 1910.94; 1910.134; 1926.20; 1926.21; 1926.28; 1926.51; 1926.55; 1926.57; 1926.59; 1926.103; 1926.200; 1926.353; 1926.354). However, there has still been no comprehensive standard regulating occupational lead exposure in construction.

In 1990, NIOSH set as a national goal the elimination of exposures that result in workers having blood lead concentrations greater than 25 ug/dL of whole blood. Under these circumstances, OSHA in the fall of 1990 announced it would begin to develop a proposal for a comprehensive standard regulating occupational lead exposure in construction. In addition, on June 12, 1992 OSHA proposed to amend its existing air contaminants standards by, among other things, reducing the PEL for occupational lead exposure in construction from 200 ug/m(3) to 50 ug/m(3) (57 FR 26001). However, progress on that air contaminants proposal was suspended because of the decision by the U.S. Court of Appeals for the Eleventh Circuit vacating an earlier rule on air contaminants for general industry (AFL-CIO v OSHA 965 F.2d, 962 (1992)).

The Housing and Community Development Act of 1992

Because Congress did not anticipate publication of OSHA's proposed comprehensive lead standard for the construction industry before late spring of 1993 or publication of a final standard before 1996 (House Report on H.R. 5730, pp. 14-15), Congress in October 1992 passed Sections 1031 and 1032 of Title X of the Housing and Community Development Act of 1992 ("the Act," Pub. L. 102-550, signed by the President on October 28, 1992, 106 Stat. 3924).

In those sections, Congress included worker protection provisions expressly requiring that:

(1) No later than 180 days after enactment (April 26, 1993), the Secretary of Labor must issue an interim final lead standard covering the construction industry.

(2) The standard must be as protective as the worker protection guidelines for identification and abatement of lead-based paint in public and Indian housing issued by the Department of Housing and Urban Development (Revised Chapter 8, "HUD Guidelines;" 55 FR 38973, Aug. 1991).

(3) The interim final standard is to take effect upon "issuance," except that the standard may include a reasonable delay in the effective date.

(4) The standard will have the effect of an OSH Act standard and will apply until a final standard becomes effective under Section 6 of the OSH Act.

(5) The Secretary of Labor in developing this standard must consult and coordinate with the Environmental Protection Agency (EPA) to achieve maximum enforcement of the Toxic Substances Control Act (TSCA) and the OSH Act while minimizing duplication.

Congressional Intent

From its language and legislative history, the broad Congressional intent behind the Act of 1992 is clear. OSHA is required within 180 days after enactment to issue an interim final regulation that provides protection to construction workers from occupational exposure to lead that is as effective as the HUD guidelines and OSHA's lead standard for general industry.

Congressional intent is clear as well with regard to many particular provisions. OSHA is mandated, for example, to include medical surveillance provisions similar to the HUD Guidelines and OSHA's lead standard. Engineering controls are to continue to be preferred, to the extent feasible, over respirators as the method of choice for compliance. More generally, most of the provisions of the interim final standard, such as those concerning housekeeping, air monitoring, record keeping, and hazard communication, are to be like those in the Guidelines and general industry lead standard, except insofar as it was necessary to adapt requirements of the interim final to conditions in the construction industry.

To determine Congressional intent, OSHA looked to the relevant language in the worker protection provisions of Section 1031 of Title X of the Housing and Community Development Act of 1992 and to the legislative history of that section of the Act. As can be seen below, the language of the Act provides help in resolving many of the issues raised. Nonetheless, OSHA has had to rely at times on the legislative history to clarify Congress' mandate.

The legislative history is embodied in and essentially limited to three sources. First, the primary source is the House Committee on Labor and Education Report on H.R. 5730, which is the origin of the worker protection requirements that were then incorporated in House housing bill, H.R. 5334 and were adopted without objection by the conference committee. Second, there is a statement concerning the conference bill H.R. 5334 on the House floor by Rep. William D. Ford, the author of the worker protection provisions, which repeats verbatim relevant portions of the House Report on H.R. 5730 (138 Cong. Rec., H11475-76; daily ed. Oct. 5, 1992). And third, there is a statement by ranking minority member Representative Paul B. Henry (138 Cong. Rec. H11470; daily ed. Oct. 5, 1992).

[58 FR 26590, May 4, 1993]

Regulations (Preambles to Final Rules) - Table of Contents Regulations (Preambles to Final Rules) - Table of Contents