Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Lead Exposure in Construction|
| Title:||Section 2 - II. Key Issues|
II. KEY ISSUES:
(A) Procedural Requirements.
Aside from the general requirement that the Secretary of Labor consult and coordinate with EPA, Congress in the 1992 Act did not impose any procedural requirements that must be followed in developing and promulgating the interim final standard. Furthermore, the legislative history of the Act makes it clear that Congress intended the Secretary to be free to follow whatever procedures he chooses. Specifically, the Secretary need not follow the procedural requirements of the OSH Act or the Administrative Procedures Act ("APA"; 5 U.S.C.A. 551, 553).
The Secretary's freedom from procedural constraints imposed by this legislation is clear from the Report on H.R. 5730, p. 16, where the House Committee states:
(1) "[T]he procedural requirements of section 6 of the OSH Act do not apply to the promulgation of the interim final regulation."
(2) "Nor...do the notice and comment provisions of the Administrative Procedures Act apply."
(3) Indeed, "the Secretary is not required to follow any specific notice and comment procedures before issuing the interim final regulation...."
Nonetheless, the Committee does say that "it is the Committee's hope that the Secretary [will] solicit input from and consider the views of affected industry and labor representatives as well as public health and industrial hygiene experts in fashioning an interim lead regulation for the construction industry." But here again, the Committee declares that "The Secretary is free to select whatever method she feels is best suited to obtain public input into the development of the interim final regulation, so long as the procedures she selects do not have the effect of delaying publication of the regulation."
Prior to issuing this interim final rule OSHA consulted members of the Lead Work Group of the Construction Advisory Committee, which included representatives of labor, management and the public health community. In the process, OSHA provided the work group with a draft of the interim final, listened to members' comments on the draft, and made modifications to the draft in response to their comments. The chairman of the work group was sufficiently satisfied with the results that in his report to the full ACCSH on February 16, 1993, he made a motion recommending that the full Committee support OSHA's efforts, which was unanimously passed by the Advisory Committee.
In addition, in accordance with Congress' mandate, OSHA has established a dialogue with EPA in order to coordinate the actions of the two agencies to maximize effectiveness and minimize duplication. This began with a preliminary meeting on February 22, 1993. Subsequently, OSHA and EPA are sharing working documents and will continue this cooperative effort throughout the ongoing EPA work on its rulemaking, also mandated by the Housing and Community Development Act of 1992.
The language of the 1992 Act, in conjunction with the legislative history, leave little doubt that Congress intended the interim final rule to extend to all lead exposed construction workers, not simply to those removing lead-based paint. Thus, the worker protection section of the Act uses all inclusive language: It requires OSHA to issue "an interim final regulation regulating occupational exposure to lead in the construction industry". Moreover, by its terms, the interim final is to "apply until a final standard becomes effective under section 6 of the Occupational Safety and Health Act of 1970." As Congress knew, OSHA has been developing a lead standard for all workers in the construction industry, not simply those engaged in lead paint abatement. Nowhere in the 1992 Act or the legislative history does Congress say that it intended the interim final regulation to have a narrower scope than OSHA's final standard.
In addition, from the legislative history it is clear that the gap Congress sought to fill by passing this Act was nothing less than the gap left when OSHA exempted the construction industry as a whole from the 1978 general industry standard for lead. The Committee report repeatedly refers to the general failure to protect construction workers and does not limit its focus to workers engaged in lead paint abatement. Indeed, the HUD Guidelines, which apply only to lead-based paint abatement work, are first raised in the Report only as the "most significant" effort to provide "alternative forms of protection to construction workers....[i]n the absence of a comprehensive OSHA lead standard protecting workers in the construction industry...." Thus, the protections Congress mandated OSHA to incorporate in its interim final rule are to be extended to all construction workers exposed to lead.
There are a few indications in the 1992 Act and legislative history that Congress might have intended to protect only construction workers engaged in lead paint abatement, but they are not persuasive. For example, the short title of title X of the Act is the "Residential Lead-Based Paint Hazard Reduction Act of the 1992" and the short title of Subtitle C-Worker Protection is the "Lead-Based Paint Exposure Reduction Act." Moreover, the criterion in the Act for assessing the sufficiency of the interim final regulation is the HUD guidelines, which apply only to lead paint abatement in housing. Furthermore, related sections of the Act focus on lead paint abatement (e.g., Sec. 1032). Finally, remarks by Representative Paul Henry suggest that he thought the scope of the interim standard would be limited to residential lead-based paint abatement work (138 Cong. Rec. H11470; daily ed. Oct. 5, 1992).
Nevertheless, conventional rules of legislative interpretation give considerably more weight to the express language in legislation than to its title. Moreover, the fact that the source of the criterion for determining the level of protection to be afforded workers is guidelines for abating lead paint in residential housing does not necessarily mean or imply that the intention was to protect only those engaged in such abatement. Finally, Representative Henry's views on scope seem to misunderstand and diverge from the views on scope of the majority. Indeed, Representative Henry was not present when the provisions that became section 1031 were discussed, did not seek clarification of the scope issue, voted against the conference agreement, and did not sign the Conference Report to H.R. 5334. His views, then, can hardly be taken to represent the intention of the majority. This understanding is confirmed by a letter from Representative William D. Ford, the Chairman of the originating House Committee on Education and Labor written on November 26, 1992, after the fact, to then Secretary of Labor, Lynn Martin.
(C) The Justification and Explanation Required for the Interim Final Rule
The in the Act of 1992 does not impose an independent duty to justify the interim final rule. Without such a duty in the authorizing legislation, if OSHA has a duty to provide a justification or explanation, it must come from two sources: First, the common law or generic legislation like the APA; and second, any other applicable specific law or regulation, such as the OSH Act or Executive Order ("EO") 12291. As to the first of these, the Agency believes that it is inherently obligated under the APA to give a reasonable explanation for its actions in order to provide a basis for judicial review (5 U.S.C.A. 551, 553(C)).
As to the second, because the interim final is being issued under the authority of the Housing and Community Development Act of 1992 and not under the OSH Act, OSHA is not required to comply with any of the requirements of the OSH Act for 6(b) rulemakings. Consequently, for example, OSHA need not undertake and provide a formal analysis of economic and technological feasibility. Nor need the Agency make a determination of significant risk. As a result, no quantitative risk assessment is required.
The Act does state that the interim final regulation "shall have the legal effect of an Occupational Safety and Health Standard...." However, by that, Congress seems only to mean that the interim final is to be enforced by OSHA as a 6(b) standard. There is no reason to infer from such language that OSHA must justify the interim final in accordance with the legal tests developed under the OSH Act. On the contrary, precisely because the interim final is not a 6(b) standard it was necessary for Congress to give it that "effect." If Congress had expected OSHA to justify the interim final in the same manner that OSHA justifies 6(b) standards, the legislature could hardly have expected OSHA to issue the interim final in 180 days.
However, the 1992 Act does not appear to exempt OSHA from any other preexisting duties to explain the interim rule. Thus, OSHA still might be required to perform some form of regulatory impact analysis ("RIA") under Executive Order 12291. The extent of that obligation is limited in this case by three considerations: (1) Congress ordered OSHA to produce this rule. OSHA did not, based upon its own priorities, decide to issue it at this time. The Agency therefore should not be responsible for justifying the rule as if it were a typical OSHA determination. (2) Congress also broadly decided the level of protection that must be provided. OSHA, therefore, should not be responsible for justifying that decision as if it were a typical OSHA determination. For all practical purposes, whatever the costs and benefits, OSHA must issue the interim final with the level of protection determined by Congress. (3) The duty to perform an RIA may be further limited by the time constraints imposed by the Congressional deadline. The EO by its own terms is inapplicable to any regulation for which performing the analysis required by the Order "would conflict with the deadlines imposed by statute or by judicial order...." (EO 12291, Sec. 8(a)(2)). As a result, in the event of conflict, the duty to perform an RIA is limited by the statutory deadline."
In summary, in issuing this interim final rule, OSHA must: (1) comply with the Congressional mandate in Section 1031 of Title X of the Housing and Community Development Act of 1992; and (2) provide a sufficiently reasoned explanation for the rule to permit judicial review (5 U.S.C.A. Section 551, 553 (C); and see note 198).
That is the focus of what follows in this preamble. First comes a general discussion of the criteria for compliance with the Congressional mandate. That is followed by a conventional "summary and explanation" to help employers, employees and others understand the particular provisions in the interim final standard and to help them and the courts understand why OSHA chose to require certain things and not others.
(D) Complying With the Congressional Mandate That the Interim Final be as Protective as the HUD Guidelines
Applying Congress's mandate to issue an interim final standard that provides workplaces that are "as safe and healthful as those that would prevail under" the HUD Guidelines raises a number of questions. Some are relatively easy, but others are difficult, to answer.
In the first place, the HUD Guidelines (Revised Chapter 8) are neither sufficiently comprehensive nor sufficiently clear to be translated directly into an enforceable OSHA standard regulating occupational exposure to lead in the construction industry. Second, the HUD Guidelines were written exclusively with regard to lead paint abatement in housing and therefore have to be adapted to the diverse conditions in the construction industry as a whole. Third, the HUD Guidelines expressly incorporate many provisions of the OSHA lead standard for general industry, but the extent to which the lead standard is incorporated differs in different provisions.
Fourth, there is the question of what criterion should be used to trigger application of the standard in the first place. Although the HUD Guidelines refer to the OSHA general industry standard, there is no explicit reference to a general action level or PEL. In fact, there is no reference to any trigger level or in Chapter 8 of the Guidelines. The only such reference is in the Introduction to the Guidelines and that reference is not in the context of worker protection. (This issue is discussed later in more detail).
Thus, OSHA has to fill in the gaps, clarify, modify, make choices, and adapt the Guidelines to conditions in the construction industry at large. Based upon the Committee report, Congress clearly understood this and signalled that it did not intend for OSHA to simply adopt the HUD Guidelines whole cloth. Rather, the Guidelines are to serve "as the basis" for developing the interim final rule, but "the Secretary may alter the provisions of the HUD Guidelines, so as long as the interim regulation provides workers with health and safety protections which are equally as effective." (House Committee report on H.R. 5730, pp.15-16). Thus, Congress provided OSHA with flexibility to determine what modifications should be made to those Guidelines, in part based upon the need to adapt the HUD Guidelines to the broader construction industry. So Congress expected that OSHA would have to exercise judgement in determining the contents of the interim final rule.
OSHA considered somewhat different interpretations of how Congress intended the Guidelines to relate to the OSHA general industry standard with regard to such issues as trigger levels. After careful consideration, OSHA has concluded that the Guidelines were intended to be understood in conjunction with OSHA's lead standard for general industry.
The Guidelines are based on, and to a substantial degree repeat, much of the language of the standard. In most respects the Guidelines and the lead standard can be read to be consistent. The close relationship between the two is attested to by the many, often sweeping references in the Guidelines to OSHA's lead standard. For example, the introduction to the worker protection chapter in the Guidelines declares that the Guidelines "are intended to provide, at a minimum, the level of protection afforded by ...OSHA['s] general industry lead standard" (55 FR 39874). Similarly, in paragraph 8.6 concerning MRP, the Guidelines say that public housing agencies should "refer to OSHA's general industry standard for lead for complete guidance on this subject." Again, in paragraph 8.8 regarding worker training, the employer is required to inform workers of the content of the OSHA lead standard and its appendices. Likewise, just preceding a list of the major elements that employers are advised to include in their employee protection plan, the Guidelines note that "Employers can refer directly to the OSHA lead standard...for complete requirements." Finally, near the end of the Guidelines, HUD says, "In addition to the lead standard, there are many standards that abatement employers must comply with." But abatement employers need not comply with OSHA's lead standard, which exempts construction, unless "required" to do so by the HUD Guidelines. These and other similar references to OSHA's lead standard give the strong impression that HUD Guidelines either incorporate that standard or are so dependent on it that they cannot be understood separately from it.
The legislative history of the 1992 Act makes clear that Congress regarded the Guidelines as very similar in essentials to OSHA's lead standard for general industry. Thus, the Committee Report states that "The HUD guidelines are based on, and in most respects mirror, OSHA's general industry lead standard." It further adds that, "Where the guidelines differ from OSHA's standard, the differences are intended to reflect the unique circumstances of the construction industry." Moreover, by requiring OSHA to issue an interim final regulation as protective as the HUD Guidelines, Congress' overriding intention appears to have been to extend to construction workers the protection afforded by OSHA's lead standard for general industry: "By relying on the HUD guidelines as the basis for the Secretary's interim final regulation, the Committee expects that construction workers will gain the same benefits available to general industry workers under the lead standard, i.e., a PEL of 50 ug/m(3), medical surveillance, medical removal protection, etc." The reference to a PEL of 50 ug/m(3) is repeated elsewhere in the legislative history: "the HUD guidelines recognize that compliance with a 50 ug/m(3) PEL in the construction industry likely will require greater reliance on respirator use than is accepted in general industry."
The references to the PEL are important. If the HUD Guidelines were not understood by Congress to have incorporated requirements from the general industry standard, Congress could not have expected a PEL of 50 ug/m(3) to apply to construction since there is no explicit reference to a PEL in the language of the Guidelines. Thus, from the legislative history it is clear that Congress intended the interim final regulation to incorporate the PEL and other provisions from the general industry standard. This interim final standard is patterned very closely on the HUD Guidelines and the general industry standard for lead.
OSHA is confirmed in this position by its understanding, based upon the language of the Act and its legislative history, that Congress conceived of the interim final standard within a broader perspective. First, Congress intended the interim final as a long overdue protective measure which generally would not break significant new ground. Second, Congress expected that the interim final would involve an adaption of OSHA's lead standard for general industry to the construction industry along the lines of the HUD Guidelines, which incorporate much of OSHA's lead standard. Finally, Congress assumed that a stricter construction standard or one that breaks new ground, if OSHA determines that one is needed, should be the product of a future 6(b) rulemaking, which provides for extensive notice and comment.
(E) Reasons for Differences With HUD Guidelines on Certain Provisions
In the previous discussion, issues involved in satisfying Congress' mandate that the interim final standard should be as protective as the HUD Guidelines were outlined. In what follows, the resolution of some of these issues is discussed with particular reference to where and why this interim final standard may differ somewhat in specific instances from the HUD Guidelines and/or from the OSHA lead standard. Further detailed discussion of the contents of each of the individual provisions of the standard is provided in the Summary and Explanation below.
One of the most important of these issues concerns the criteria by which applicability of the standard and of particular provisions of the standard are triggered. The most basic trigger determines whether an employer is covered by the standard at all. In addition, specific provisions of the standard can be triggered by other criteria or exposure levels.
The trigger criteria for the OSHA general industry standard and the HUD Guidelines appear to be different. For example, the general industry standard triggers are the PEL of 50 ug/m(3) and the action level of 30 ug/m(3). Exposures above the PEL require implementation of feasible engineering and work practice controls, and provision of personal protective equipment and hygiene facilities supplemented by the use of respirators, if necessary, to reduce exposures to below 50 ug/m(3). For employees exposed at or above the action level of 30 ug/m(3), employers must provide biological monitoring. Additional medical examinations are required for those with elevated blood-lead levels, and upon development of signs of lead intoxication. Exposures at or above the action level also require implementation of exposure monitoring and training.
Chapter 8 of the Guidelines seems to require the employer to comply with all provisions where there is any potential of exposure to lead at any level. These provisions include use of respirators (Section 8.2), medical surveillance (Section 8.5), protective clothing (Section 8.3), hygiene facilities (Section 8.4), medical examinations (Section 8.53) and training (Section 8.8) for all employees who work where there is any potential of exposure to lead at any level. Chapter 8 further states that engineering controls, where feasible, must be used to minimize employee exposures (Section 8.1) without regard to the specific air level. That could mean that if it is feasible, engineering controls must be used to reduce exposures to zero.
Thus if OSHA were to adopt the seeming requirements of Chapter 8 without modification, it would apply all of the above provisions to people who are exposed at any level as well as to people who are exposed to higher levels. This would not only be unduly costly but would be impossible to comply with. For example, nearly every person on nearly every lead-related construction site would have to wear protective clothing and a respirator, and would have to be provided an annual medical examination even if they were only exposed to an air lead level of 5 ug/m(3) for less than one hour per day and for one week per year. OSHA does not believe this is what Congress intended; nor is it what HUD intended in its Guidelines.
Although the HUD Guidelines do not address a specific trigger in the context of worker protection, the Introduction to the Guidelines states that wherever the lead concentration in a painted surface exceeds 1 mg/cm(2), abatement is required. This level is based on the hazard which the painted surface presents to occupants of the building, and the abatement is for their protection. It is only where abatement is already required in the Guidelines that most provisions in Chapter 8 are triggered by "any potential exposure". Since abatement is required only when the surface concentration of the painted surface exceeds 1 mg/cm(2), this level effectively establishes a trigger for the worker protection provisions.
On the basis of the foregoing, several options were theoretically open to OSHA in deciding the basic trigger for application of the standard and its provisions. The first was to trigger the standard, as Chapter 8 of the Guidelines appears to, at any potential exposure. In this case, requirements would be triggered in cases where little risk can be shown to exist. Every workplace where any lead can be shown to exist would be covered, even if the exposures could be shown, for example, to be 1 or 2 ug/m(2) of lead in the air. Such a requirement could not be justified in terms of substantial adverse health effects and would involve unprecedented annual costs.
An alternative option that would follow the Guidelines would be to trigger the standard based on a minimum lead concentration in paints or coatings of 1 mg/cm(3) in any surface coated with lead-containing material. However, there is no reliable connection between such a concentration and any risk of adverse health effects. That connection would have to be established by relating the surface concentration to an air concentration. Where this has been tried, the results were so variable as to be impossible to apply.
For example, in preparing a proposal for a standard for lead in construction, the state of California developed a mathematical model with which they calculated the air lead levels that would arise in certain specific work situations as a result of having 1 mg/cm(3) of lead in a painted surface. (Draft proposed standard: Occupational Exposure to Lead in Construction Operations, May 11, 1992, Department of Health Services/Department of Industrial Relations, State of California). The results are highly variable, depending in part on the method of removing the paint from the surface. For example, in the case of wet scraping of paint containing 1 mg/cm(2) it was calculated that an air lead level of about 37 ug/m(3) would result. However, dry scraping of the same surface was estimated to result in an exposure level of about 371 ug/m(3). Therefore, in the latter case, if OSHA were to follow the HUD guidelines approach, it could permit exposures to 371 ug/m(3) of lead in the air before the standard would be applicable. Thus in the absence of a firm correlation between lead-in-paint concentration and air lead levels, OSHA would have no idea what health effects might be produced by such a surface concentration. Moreover, the trigger applies only to lead painted surfaces. It does not deal at all with the broad range of jobs in the construction industry that involve lead that is not in paint. As a result, the incorporation of this trigger from the HUD Guidelines into an OSHA standard would not be appropriate. Nor did Congress intend such a result. To quote the conference report once more, "By relying on the HUD guidelines as the basis for the Secretary's interim final regulation, the Committee expects that construction workers will gain the same benefits available to general industry workers under the lead standard, i.e., a PEL of 50 ug/m(3)...." Thus, Congress intended OSHA to incorporate a PEL of 50 ug/m(3) into the interim final standard regardless of whether such a PEL was part of the HUD Guidelines.
This approach follows the general industry standard for lead and establishes that a potential hazard must exist prior to requiring an employer to implement the standard. As described above, some provisions will be triggered by the 50 ug/m(3) PEL, while others will be triggered by a 30 ug/m(3) action level. These trigger levels are taken from the OSHA lead standard for general industry and are based upon health effects data generated for that standard and thus have a health-related foundation.
In response to Congress' mandate that OSHA should modify the HUD Guidelines in this interim final standard as needed to adapt to the particular conditions in the construction industry, OSHA has added a provision included in neither the HUD Guidelines nor the general industry standard. This approach is consistent with the approach taken in the HUD Guidelines. The air lead levels that trigger the standard are determined by an employee exposure assessment, most often containing air sampling. However, there is often a time lapse between taking the sample and receiving the results. Certain construction tasks are known to commonly produce exposures above the PEL--sometimes many orders of magnitude above the PEL. In such tasks, workers could be exposed to high concentrations of lead in air during the period between sampling and receipt of the results without sufficient protection. In addition, because many construction jobs are of short duration, workers could complete one job before monitoring results are in and go on to another, again in a high exposure situation, still without adequate protection in the absence of monitoring results.
To address this problem, OSHA has included within the regulatory text three lists of tasks, the performance of which in the presence of lead trigger basic protective provisions prior to air lead monitoring. The first consists of tasks which commonly produce a substantial proportion of exposures above the PEL of 50 ug/m(3), but less than 10 times the PEL. The second consists of tasks which commonly produce a substantial proportion of exposures greater than 10 times the PEL (500 ug/m(3)), but less than 50 times the PEL (2500 ug/m(3)). The third set of tasks consists of those which commonly produce a substantial proportion of exposures greater than 50 times the PEL (2500 ug/m(3)). For all three sets of tasks, employers are required to provide respiratory protection appropriate to the tasks' anticipated exposure level, protective work clothing and equipment, change areas, hand washing facilities, training, and initial medical surveillance consisting of blood sampling and analysis. OSHA believes that these basic provisions are essential where employees are exposed to air levels above the PEL. In the absence of monitoring results to the contrary, tasks which commonly produce air levels above the PEL must be assumed to continue to do so and, thus, it is necessary to require these provisions. The only difference in the provisions among task categories is in the kind of respirators which are required. For example, abrasive blasting workers need a much higher performance respirator than do workers doing spray painting.
Criteria for selection of the tasks in each category were based on three sources -- advice from the Department of Labor Advisory Committee on Construction Safety and Health (ACCSH) Lead Workgroup; recommendations of the Society for Occupational and Environmental Health (SOEH) in conference proceedings entitled Protective Work Practices for Lead-Based Paint Abatement; and limited exposure data provided to OSHA by a firm contracted to perform an assessment of lead exposure levels encountered in the construction industry.
The first set of tasks, consisting of those which commonly produce exposures between 50 ug/m(3) PEL and 500 ug/m(3), includes manual demolition; manual scraping; manual sanding; heat gun applications; general clean up; power tool cleaning with dust collection systems; and spray painting. This selection of tasks was suggested by the chairman of the ACCSH Lead Workgroup. It is further supported by the SOEH recommendation that, when these tasks are performed, halfmask air purifying respirators -- with a protection factor of 10 -- should be used. In addition, the selection of these tasks is based partly on limited exposure data available to OSHA.
Since the data which OSHA has obtained indicate a wide range of exposure levels in particular tasks, and are sometimes based on a limited number of samples, OSHA had to consider the data in relation to recommendations from knowledgeable people or organizations. For example, in the case of spray painting, available data showed exposures ranging from 1 ug/m(3) to 460 ug/m(3). However, the average exposure was 74 ug/m(3), and a level of 101 ug/m(3) would be expected to be exceeded only five percent of the time. Moreover, SOEH recommends using halfmask negative pressure air purifying respirators for this task, i.e. respirators with a protection factor of 10. Therefore, spray painting seems to belong in the task category with anticipated exposures between 50 ug/m(3) and 500 ug/m(3). In general, the other tasks in this category also entail a likelihood of exposures in this range, which is supported both by the contractor data and the SOEH recommendations.
The second category, from 500 ug/m(3) to 2500 ug/m(3), includes the use of lead-containing mortar; lead burning; rivet busting; power tool cleaning without dust collection systems; clean up of dry expendable abrasives; and abrasive blasting enclosure movement and removal. Following is a discussion of why these tasks were selected for this exposure range and why powered air purifying respirators (PAPRs) are required to be used when performing them.
The only information OSHA has on the use of lead-containing mortar and lead burning comes from its contractor report which suggests control exposure levels for both that are greater than 600 ug/m(3), greater than would be safe with an air purifying respirator with a protection factor of 10. ("Control exposure levels" here refers to levels that would not be expected to be exceeded in 95 percent of the time the activity was monitored.) With an assigned protection factor of from 25 to 50, depending on which specific type is used, a PAPR will provide adequate protection in an exposure range from 1250 to 2500 ug/m(3), and thus appears to be effective for these applications.
Rivet busting falls under the SOEH category of "Chipping and Breaking with Pneumatic Tools". SOEH recommends that powered air purifying respirators be used for this group of tasks. Since such respirators have protection factors greater than 10, OSHA infers that SOEH regards likely exposures for rivet busting to be greater than ten times the PEL -- greater than 500 ug/m(3). Data reflecting actual exposures in this task, however, were not provided to OSHA by its contractor.
Without the use of dust collection systems, the use of power tools for grinding, sanding and wire brushing can raise large concentrations of lead in the air. The OSHA contractor report suggests control exposure levels of more than 1000 ug/m(3). SOEH recommends the use of powered air purifying respirators. Thus, placing this task in the 500 ug/m(3) - 2500 ug/m(3) category is consistent with both sources.
Clean-up after abrasive blasting when the blasting involves dry expendable abrasives, while not characterized by exposure data available to OSHA, was identified by SOEH as a task with potentially high exposures. SOEH consequently recommends powered air purifying respirators as the minimum respiratory protection. OSHA has classified it accordingly.
In addition to the high concentrations of air lead produced by abrasive blasting operations, the enclosures within which the work is done are left with a substantial accumulation of lead when the blasting is completed. Therefore, movement and removal of these enclosures can themselves create high air lead concentrations, although not to the same extent as the blasting. Available contractor data show a control exposure level for this operation to be between 1100 and 1200 ug/m(3). On this basis OSHA has included abrasive blasting enclosure movement and removal in the category where exposures between 500 and 2500 ug/m(3) can commonly be expected.
The final category requiring interim protection prior to receiving exposure assessment covers tasks commonly associated with air lead exposures greater than 2500 ug/m(3) (50 times the PEL). This category includes abrasive blasting as well as welding, cutting and torch burning on steel structures. In the case of abrasive blasting, the possibility of extremely high exposures is well known and documented by data which show control exposure levels between 20,000 and 40,000 ug/m(3). Consistent with these numbers, SOEH recommends the use of supplied air respirators.
Data obtained by OSHA's contractor regarding welding, cutting and burning show control exposure levels to be from about 970 to about 1560 ug/m(3), depending on the specific operation involved. Such levels would not seem to qualify these tasks for the over-2500 ug/m(3) exposure category. The numbers, however, represent estimates from a very wide spread of data points, thus providing a high degree of uncertainty. The data show that actual exposures can reach 28,000 ug/m(3). Further, SOEH recommends use of supplied air respirators during performance of welding, cutting and burning on steel structures. Therefore, based on exposure data showing that exposures often exceed 2,500 ug/m(3) and based on the SOEH recommendation, OSHA has chosen to be conservative and has assigned these tasks to its highest hazard category with respect to required interim protection.
OSHA believes that it has taken a well-reasoned approach to identifying tasks in the foregoing categories, given the limited amount of firm data available at the time of promulgation of this standard. Because the interim protection of workers in these tasks is very important, the approach has been conservative. If the Agency has erred in selecting these tasks, it has erred as authorized by the U.S. Supreme Court on the side of overprotection (IUD v. API, 448 U.S. 601 (1980)). In any event, once the monitoring results are received, if they show air lead levels to be lower than presumed, the presumed level of protection need no longer be provided. OSHA intends to study this issue comprehensively in a forthcoming rulemaking on a permanent final rule for lead exposures in the construction industry.
One of the most important sets of provisions of any substance specific standard is that of medical surveillance. Medical surveillance is particularly relevant to lead exposures because, in the measurement of blood lead levels, there is a true indicator of health risk and, in the case of high blood lead levels, a course of action to address the risk. The medical surveillance provisions of the HUD Guidelines are essentially the same as in the OSHA general industry standard. The essential difference is in the conditions under which the provisions must be implemented. The medical surveillance provisions of this interim final standard are in most respects similar to those in the HUD Guidelines and the OSHA lead standard for general industry.
The Guidelines, in Chapter 8, appear to require full medical surveillance whenever any employee working in lead paint abatement is potentially exposed to any concentration of lead. This effectively places all workers covered by the Guidelines under medical surveillance. If this requirement were used in the interim final standard, it would apply to all of the more than 900,000 workers who might have some contact with lead, no matter how small the exposure. However, limited available data indicate that most exposures in many highly-populated segments of the industry are well below the 30 ug/m(3) action level of the general industry standard, and the blood lead levels of such employees are almost always below any level that, based upon the health effects analysis accompanying the OSHA general industry lead standard, would require medical action. For example, exposure data collected by NIOSH during the Demonstration Project for HUD Lead-based Paint Abatement (The HUD Lead-Based Paint Abatement Demonstration (FHA), U.S. Department of Housing and Urban Development, August 1991), revealed that, in those cases where surface concentration exceeded 1 mg/cm(2), "Over 80 percent of the combined numbers of all air samples, both personal and area, showed airborne lead levels below 10 ug/m(3)." Therefore, in a very large number of cases, the full medical surveillance would serve no purpose and would entail very significant costs. Under these conditions, the same degree of real worker protection can be obtained without the identical requirements of the Guidelines.
The medical surveillance provisions of the OSHA general industry standard are triggered initially by air lead exposure levels. Since it is the air lead level that is relevant, not the industry in which one is exposed, specific air lead triggers in the construction industry should be the same as those in general industry. Thus, medical surveillance in the interim final standard is triggered by the same exposure levels as in the general industry standard.
There are, however, two modifications to this program. As discussed above, in the three categories of high exposure tasks, blood sampling and analysis are triggered by performance of the specified tasks when lead is involved. In addition, the employer must provide every worker who will be exposed to an air lead level greater than the 30 ug/m(3) action level, if only for a single day in any consecutive 12 month period, with blood testing. The construction-related reason for the blood testing related to the high exposure task categories has been discussed earlier. The reason for blood monitoring for workers exposed above the action level, even on one day, also arises from the peculiarities of the construction industry where jobs are frequently of short term, turnover is rapid and exposure levels vary. OSHA believes it important that exposures of duration up to 30 days not be neglected since such exposures in some applications will be very high. A worker exposed at high levels for only a few days can still incur a large lead burden in his or her blood and, if that happens, it is important to keep track of the levels.
In view of the fact that workers who need medical surveillance, based on air lead levels established in the rulemaking for the general industry standard, on high exposure tasks, and on short duration exposures above the action level receive it, the medical surveillance provisions of the interim final standard are more protective than the OSHA general industry standard and are as protective as the Guidelines.
The HUD Guidelines do not require initial monitoring. They do, however, require that an initial determination be made "to determine whether employees are potentially exposed to lead. The goal is to establish the level of exposure expected." The Guidelines go on to say, "Indications of possible overexposure to lead, such as employee health complaints, prior abatement experience, and prolonged or intense lead-based paint removal, should lead to an initial monitoring of the workplace." The monitoring results are to be used to determine the frequency of further monitoring, and to select appropriate respiratory devices and determine the need for engineering controls. However, in using monitoring results for the foregoing purposes, the Guidelines refer to the PEL of the OSHA general industry standard and the respirator selection table that is used for selecting a respirator that will maintain exposures below the PEL. They allow consideration of objective factors before initial monitoring needs to be performed. Thus, every workplace with very low exposures need not do monitoring where it serves no purpose in identifying excessive exposures. If monitoring is done, however, the Guidelines recommend that the procedures in the general industry standard be followed.
The interim final standard is effectively very similar to the Guidelines. It requires, as a first step, an initial determination which can be an objective assessment of exposure, based on specific data or on previous monitoring or on past experience in identical workplaces. Once again, however, the requirements for the high exposure tasks are slightly more stringent. In order for any data other than from initial monitoring to be acceptable, it must be based on specific and documented monitoring performed 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. Also the sampling and analytical methods used to obtain the data must meet the accuracy and confidence levels specified in the standard.
The remainder of the monitoring requirements are the same as in the general industry standard and the same as the Guidelines for situations where monitoring is performed.
On balance, the exposure assessment requirements for the interim final standard are more specific and somewhat more stringent than those in the Guidelines.
Protective Clothing and Respiratory Protection
Protective clothing and respirators are required in the Guidelines whenever the potential for exposure is present. As discussed earlier in this paragraph, this provision, on its face, would place every worker in a respirator and protective clothing regardless of extent of exposure. When applied across the entire spectrum of construction operations, the overall burden of this provision would be extremely high and difficult to justify. In particular, requiring respirators and personal protective equipment in the 80 percent of all cases in which NIOSH found that air lead exposures were less than 10 ug/m(3) would be difficult to justify on health grounds. Such a requirement would thus entail a significant burden to employers and employees without demonstrated benefit. For these reasons, and because there is no reason to believe that the relationship between health risks in the construction industry and air lead levels is different from that in general industry, the provisions for protective clothing and respiratory protection in this interim final standard are triggered by the PEL, as in the general industry standard.
The actual provisions covering the use and selection of respirators in the Guidelines are the same as in the general industry standard. The interim final standard, however, has one important difference. The respirator selection table of the general industry standard was based on information as of 1978 and contained no specific reference to construction -- particularly abrasive blasting. The selection table in the interim final standard has expanded the types of respirators permitted under the various exposure categories, including those uniquely permitted for abrasive blasting, and added another exposure level category (1250 ug/m(3)) to provide greater flexibility in selection and higher probability of adequate fit. The table has been taken from the latest version of the NIOSH Respirator Decision Logic, which has been a standard reference since its publication. Therefore, in terms of respirator selection the interim final rule is more appropriate and more protective than the HUD Guidelines.
Information and Training
Regarding employee information and training, the Guidelines require comprehensive training for everyone who may be potentially exposed to lead. As discussed previously, this provision, applied to the entire construction work force, would cover a large number of workers who encounter only minimal exposure. The OSHA general industry standard requires comprehensive training only for those workers who are exposed above the action level. The interim final standard has the same provision for comprehensive training; however, other training provisions are also included. First, all employees, regardless of exposure, are required by the Hazard Communication Standard (29 CFR 1926.59) to receive training regarding any hazardous materials, including lead, they may be exposed to at their work site. The interim final standard specifically incorporates this requirement by reference. Second, all construction employees are required to undergo training relevant to all the health and safety hazards of the workplace by the Safety Training and Education Standard (29 CFR 1926.21) which the interim final standard also incorporates by reference. In addition, for those tasks listed as likely to encounter high exposure levels, training in use of respirators is required automatically, until it is shown by monitoring results that exposures will not reach the level at which respiratory protection is necessary.
In view of the foregoing, OSHA believes that the interim final standard requires training as protective as that provided for in the HUD Guidelines.
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