Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Lead Exposure in Construction|
| Title:||Section 3 - III. Summary and Explanation of the Standard|
III. Summary and Explanation of the Standard
As discussed earlier, OSHA believes that the intent of Congress' mandate, to a significant degree, was the issuance of a interim final standard that provided a level of protection to workers exposed to lead in construction equivalent to that afforded other lead workers under OSHA's general industry standard. To that end, the interim final construction standard incorporates many provisions as they are set-forth in the general industry standard. Although some provisions carried from the general industry standard into the interim rule are not adopted verbatim, the regulatory intent of the provisions in the rules is consistent. Thus, the discussion and justifications set forth in the preamble and supplements to the general industry standard (43 FR 52985) are applicable to the "Summary and Explanation" in this interim final rule. Provisions derived from the general industry standard and incorporated into the interim final standard include the following paragraphs of this rule: (b) Definitions; (c)(1),(2),(3), Permissible exposure limit; (d)(1),(3),(4),(5),(6),(7),(8), Exposure assessment; (e)(2)(i)-(v),(4) Methods of compliance; (f)(l)(i)-(iv),(2),(3),(4), Respiratory protection; (g)(1),(2), Protective work clothing and equipment; (h)(1),(2),(3),(4), Housekeeping; (i)(1),(2), Hygiene facilities and practices; (j)(1)(ii)-(iv),(2)(i)(B)-(C),(ii)-(iv),(3),(4), Medical surveillance; (k)(1)(ii)-(v),(2), Medical removal protection; (l)(1)(ii)-(iii),(2),(3), Information and training; (m)(1),(2), Signs; (n)(1),(2),(3),(5),(6), Recordkeeping; and (o)(1),(2), Observation of monitoring.
A. Scope and Application Paragraph (a)
This interim final lead standard for the construction industry applies to all occupational exposure to lead in all construction work in which lead, in any amount, is present in an occupationally related context. Exposure of employees to the ambient environment which may contain small concentrations of lead unrelated to the job is not subject to this standard; however, where the source of lead is employment related, all exposure to lead is covered by the standard. The forms of lead to which this construction standard applies is defined to include metallic lead, all inorganic lead compounds, and organic lead soaps.
Construction work is defined as work involving construction, alteration and/or repair, including painting and decorating. Such work includes but is not limited to: demolition or salvage of structures where lead or materials containing lead are present; removal or encapsulation of materials containing lead; construction, alteration, repair, or renovation of structures, substrates, or portions thereof, that contain lead, or materials containing lead; installation of products containing lead; lead contamination/emergency cleanup; transportation, disposal, storage, or containment of lead or materials containing lead on the site or location at which construction activities are performed; and maintenance operations associated with the construction activities described above. All construction work excluded from coverage in the general industry standard, section 1910.1025(a)(2), is covered by this interim final rule. OSHA intends that there should be no gaps and no overlaps between the two standards.
It should be recognized that although this standard may apply to a particular employer or workplace, almost all of the obligations in the standard are triggered by certain minimum levels of lead exposure. For example, the employer is required to provide requirements for periodic exposure monitoring and medical surveillance only if employees are exposed to airborne lead in excess of the action level. Employers whose employees are exposed below this level are not required to comply with most provisions of the standard. This distinction is made in order to differentiate between hazardous and relatively unhazardous work operations and to impose obligations commensurate to the degree of hazard present.
B. Definitions: Paragraph (b)
- The terms "Action Level", "Assistant Secretary", "Director" and "Lead"
in this interim standard are defined as set forth in 29 CFR 1910.1025.
"Action level" is defined as an airborne concentration of lead of 30 ug/m(3) of air calculated as an 8-hour time-weighted average. Several provisions of the standard, such as periodic exposure monitoring, biologic monitoring and initial and annual employee training are triggered whenever exposure measurements reach or exceed the action level. For employees exposed to lead at or above the action level for more than 30 days per year, employers are also required to provide an ongoing medical surveillance program. Past experience with the action level concept in other OSHA standards has demonstrated its usefulness to employers as an objective means of determining whether compliance activities are required, thus relieving them of most compliance obligations where exposures are maintained below the action level.
Action levels are important because their use permits employers to concentrate their resources on those employees and workplace conditions with the potential for high lead exposures. Thus the action level in the interim standard provides for the most cost-effective means of employee protection. The action level provides a mechanism to tailor certain requirements of the standard to a minimum level of employee exposure to lead by triggering preventive action by the employer for employees who face exposure at or above that level. The use of the action level to trigger various provisions of the lead standard is consistent with other final OSHA health standards (e.g., the Lead standard for general industry, as well as Asbestos, 51 FR 22612, June 20, 1986; Benzene, 52 FR 34460, September 11, 1987; Formaldehyde, 52 FR 4668, December 4, 1987; Ethylene Oxide decision (796 F.2d 1479 (D.C. Cir., 1986) and, Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir., 1986), and Acrylonitrile, 43 FR 45809, October 3, 1978).
This substantive consistency provides administrative consistency and continuity to employers in developing and implementing compliance strategies for this and other applicable OSHA health standards at individual worksites. In addition, use of an action level has been found to encourage employers, where feasible, to lower lead exposure levels to below the action level to avoid the added costs of required compliance with provisions triggered by the action level.
A definition of "Competent person" is included in this paragraph. Paragraph (e)(2)(iii) of the standard broadly establishes the duties of the "competent person." The duties and definition of the "competent person" under this standard are essentially identical to those already prescribed for construction work in 29 CFR 1926.20 and 29 CFR 1926.32, respectively, and are included in this section to primarily ensure that employers are aware of these existing requirements. Thus, no new burdens are imposed by the "competent person" provisions in this section. The term "competent person" means a person who is capable of identifying hazards and has authorization to take corrective measures to eliminate them. Compliance programs required to be developed by employers under paragraph (e) of this section must provide for inspections of job sites, materials, and equipment to be made by the "competent person" to achieve the duties of the competent person set forth in the definition.
C. Permissible Exposure Limit: Paragraph (c)
The employer is required to assure that no employee is exposed to lead at concentrations in excess of the PEL of fifty micrograms of lead per cubic meter of air (50 ug/m(3)). The PEL adopted in this interim rule is the same as the PEL provided for in OSHA's general industry lead standard (29 CFR 1910.1025). This is in accordance with Congress' intention, as expressed in the legislative history of the 1992 Act.
The PEL is an eight-hour average of exposure for any work day. If respiratory protection is permissibly being used to comply with this limit and all of the requirements relating to selection, fitting, and maintenance of respirators are met, the employee needs to wear the respirator only for a period of time that, when averaged with periods of time the respirator is not worn, will result in a TWA exposure to or below the PEL. For this purpose, the employee's exposure level when a respirator is worn may be considered to be the airborne concentration, without regard to the respirator, divided by the protection factor of the respirator. For example, if an employee is exposed to 100 ug/m(3) for 8 hours without a respirator, he would have to wear a respirator with a protection factor of 10 for about 4.4 hours or with a protection factor of 50 for about 4.1 hours, in order to comply with the PEL.
Of course, a class of respirator more protective than required by paragraph (f) may be selected, and if selected, would reduce the amount of time a respirator would need to be worn.
OSHA recognizes that workshifts can extend beyond the regular 8-hour period as the result of overtime or other alterations of the work schedule. This extension of worktime also extends the time during which the employee is exposed. The effects of this additional exposure time must be considered in arriving at a permissible level of exposure. For the purpose of calculating such a level, the relationship of concentration and length of time of exposure has been assumed to be linear. As the exposure time increases, the factor of concentration multiplied by time (C x T) should remain constant. As a result, it is believed that by not exceeding the total allowable exposure of the 8-hour time-weighted average (8 hrs x 50 ug/m(3) = 400), reasonable assurance of maintaining a safe exposure level is retained.
The interim final standard contains a formula by which adjustments to the permissible exposure limit can be made due to overtime. For example, if an employee is exposed to lead for 10 hours, the permissible limit as a 10 hour average, would be 400/10 or 40 ug/m(3). This is the same formula used in the lead General Industry Standard to calculate the allowable exposure level for employees working beyond 8-hours in lead exposed jobs.
D. Exposure Assessment: Paragraph (d)
Each employer who has a workplace or work operation covered by this standard is required to determine if any employee may be exposed to lead at or above the action level of 30 ug/m(3) as an 8-hour TWA. This initial determination need not be based exclusively on employee exposure monitoring. Where the employer has objective data, demonstrating that under any expected conditions of use 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. The employer must establish and maintain a record documenting the nature and relevancy of the objective data (see paragraph (n)(4)). As is discussed elsewhere in this preamble, certain specified tasks are treated differently.
Where objective data as described above is not available to employers, employers must monitor employee exposures, except as noted below, and base initial determinations on the employee exposure monitoring results and any of the following, relevant considerations: Any information, observations, or calculations which would indicate employee exposure to lead; any previous measurements of airborne lead; and any employee complaints of symptoms which may be attributable to exposure to lead.
Historical measurements of airborne lead may be used to satisfy the initial exposure assessment requirement if all the requirements of (d)(3)(iii) are met. OSHA has included this provision to allow employers who have been conducting relevant exposure monitoring on construction sites to use such data for current construction jobs that are substantially similar to previous jobs for which monitoring was conducted.
However, such monitoring data must have been obtained from projects conducted by the employer within the past 12 months under conditions which in all relevant and significant respects are essentially the same as the current project. These conditions include the following:
(1) The data upon which employee exposure assessments are based are scientifically sound and collected using methods that are sufficiently accurate and precise.
(2) The processes and work practices in use when the historical data were obtained are essentially the same as those to be used during the job for which initial monitoring will not be performed.
(3) The characteristics of the lead containing material being handled when the historical data were obtained are essentially the same as those on the job for which initial monitoring will not be performed.
(4) Environmental conditions prevailing when the historical data were obtained are essentially the same as for the job which initial monitoring will not be performed.
OSHA believes that if an employer has previous monitoring data that meet all these conditions, these data can be reasonably assumed to be representative of employee exposures that will be encountered on a new construction site. The employer must develop and maintain a record of the relevancy of previous exposure data if used for the initial exposure assessment. These provisions are set-forth in paragraph (d)(3)(iii) of this section.
The initial monitoring requirement only requires monitoring of a representative sample of the employees believed to have the highest exposure levels. If these measurements indicate exposures are all below the action level no further monitoring is required except where subsequent process or control changes would trigger a redetermination pursuant to paragraph (d)(8) due to additional employee exposure. If any employee is determined to be at or above the action level, then full-scale representative monitoring for all exposed employee is required as set-forth in paragraph (d)(4) of this section. However, under paragraph (d)(4)(ii) historical exposure monitoring data, which is permitted to be used to assess whether exposures are either above or below the action level, as discussed above, can also be used to satisfy the determination of the level of exposure that employees will be subject to above the action level.
In conducting the monitoring of employee exposures under paragraph (d)(4), the standard does not require that each individual employee's exposure level be measured. In establishments having more than one work operation involving the use of lead, in order for monitoring to be representative, it must be performed for each type of employee exposure within each operation. An employer, of course, is allowed to take individual exposure measurements of each of his employees. Representative monitoring merely establishes the minimum that the employer must meet.
All exposure monitoring performed pursuant to this section must consist of personal breathing zone samples which are representative of the monitored employee's regular, daily exposure to lead over a full shift and which must consist of at least one sample for each job classification in each work area either for each shift or for the shift with the highest exposure level. The exposure data may be collected during a single shift only if the activities in the other shifts are essentially the same as that shift.
- The purposes served by air sampling for employee exposures include:
Determination of the extent of exposure at the worksite; prevention of employee overexposure; identification of the sources of exposure to lead; collection of exposure data so that the employer can select the proper control methods to be used; and evaluation of the effectiveness of selected controls. Monitoring further enables employers to notify employees of their exposure levels, as required by section 8(c)(3) of the Act.
Required periodic monitoring provides the employer with assurance that employees are not experiencing higher exposures that may require the use of additional controls. In addition, periodic monitoring reminds employees and employers of the continued need to protect against the hazards associated with exposure to lead.
The collection of exposure monitoring data also enables an examining physician to be informed of the existence and extent of potential sources of occupational diseases.
The results of initial and periodic monitoring determine whether subsequent monitoring is necessary. Exposure monitoring is important not only to determine the level of lead to which employees are exposed and the frequency at which employees should be monitored, but also determine whether other protective provisions of the standard need to be implemented.
Where exposure monitoring is required under this standard samples must be taken within the employee's breathing zone (i.e., personal samples) and must reflect the employee's exposure, without regard to the use of respirators, to airborne concentrations of lead over an eight-hour period. A full description of "Breathing zone" is provided in the OSHA Instruction CPL 2-2.20B, CH-1, Nov. 13, 1990, Directory of Technical Support, Basically, it encompasses a sampling area as close as practical to the nose and mouth of the employee If the initial determination or subsequent determination reveals employee exposure to be at or above the action level but at or below the PEL the employer is required to perform monitoring at least every 6 months. The employer must continue monitoring at the required frequency until at least two consecutive measurements, taken at least 7 days apart, are below the action level at which time the employer may discontinue monitoring for that employee.
If the initial determination reveals that employee exposure is above the PEL the employer must perform monitoring at least quarterly. The employer must continue monitoring at the required frequency until at least two consecutive measurements, taken at least 7 days apart, are at or below the PEL but at or above the action level at which time the employer shall repeat monitoring at least every 6 months.
Within 5 working days after completion of the exposure assessment, the employer is required to notify each employee in writing of the results which represent that employee's exposure. Whenever the results indicate that the representative employee exposure, without regard to respirators, is at or above the PEL, the employer shall include in the written notice a statement that the employees exposure was at or above that level and a description of the corrective action taken or to be taken to reduce exposure to below that level. Section 8(c)(3) of the Act requires employee notification of monitoring results which reveal excess exposures to toxic substances, and requires employers to also notify affected employees of corrective actions that will be taken to reduce exposures.
Where monitoring is required under this standard the employer must use a method of monitoring and analysis which has an accuracy (to a confidence level of 95 percent) of not less than plus or minus 25 percent for airborne concentrations of lead equal to or greater than 30 ug/m(3). This accuracy requirement is consistent with the most recent criterion established under the NIOSH/OSHA Standards Completion Program with regards to monitoring and analyses of airborne lead concentrations.
As discussed earlier, OSHA is aware that in many instances in the construction industry the exposure assessment required under this standard will not be completed until after lead operations have begun or even ended (i.e. exposure monitoring usually must be conducted during actual performance of the lead activity in order to be representative). Thus, employees performing certain tasks which will generate airborne lead due to the presence of lead either in paint or in other materials being worked on, might be exposed without protection to some unknown, and potentially high concentrations of lead, pending the outcome of the exposure assessment. The Lead Workgroup of the Department of Labor's Advisory Committee on Construction Safety and Health (ACCSH), which was consulted by OSHA in development of this standard expressed concern to the Agency regarding this issue. The ACCSH Workgroup comprised of representatives from labor, industry, state government, and the public, recommended that some degree of interim protection, pending completion of the exposure assessments, should be provided to employees performing activities which are recognized as having the potential to produce exposures to lead in excess of the PEL. The Agency agrees with the ACCSH Workgroup that the need for interim employee protection should be presumed necessary for certain tasks until demonstrated otherwise. The Workgroup indicated that minimal interim protective measures, pending completion of the exposure assessment, should include provision of respirators, protective clothing and equipment, hygiene facilities, training, and biological monitoring.
The list of lead-related tasks/operations that have been developed by OSHA are based on available exposure data and recommendations of SOEH and the Workgroup, and are grouped by the presumed degree of overexposure to lead and, therefore, are differentiated by the type of respirator to be provided. One group of tasks/operations presumes employee exposures above the PEL, but not so high as to require the employer to provide the employee with more than the least protective, allowable respirator (e.g. a respirator with a protection factor of 10). The second task group presumes employee exposure above 500 ug/m(3) and requires the employer to provide the employee with a respirator with a protection factor of at least 25. The third task group presumes very high exposures to lead (in excess of 2500 ug/m(3)) and, therefore, requires the employer to provide the employee with a respirator permitted by the standard for use during that exposure condition (e.g a respirator with a protection factor above 50).
The tasks identified as requiring interim worker protection are briefly described below.
"Abrasive blasting": Removes scale, paint, and dirt from surfaces prior to repainting; abrasive media includes sand, steel grit, steel shot, aluminum oxide, "Black Beauty" (processed boiler slag, and others).
"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.
"Lead burning": Involves torch melting or fusing of lead or alloyed lead to another lead object.
"Manual scraping and sanding": Associated with lead paint removal and involves the application of hand-held scraping or sanding tool to the painted surface containing lead.
"Manual demolition of structures": Involves removal of walls (plaster, gypsum) or building components coated with lead based paint by sledge hammer or similar tool.
"Heat gun application": Involves use of a heat gun that produces a stream of hot air which is directed to surfaces to melt lead paint which is subsequently scraped off.
"Using lead containing mortar": Typically used in high pressure acid tanks lined with specialized tile or lead brick held in place with specialized lead-containing mortar or grout; these tank linings periodically require repainting, repairing or relining involving lead containing mortar.
"Abrasive blasting enclosure movement and removal": Involves movement and removal of blasting enclosure or containment units as work proceeds on structures; such units are often comprised of flexible nylon, plastic or burlap tarpaulins upon which lead dust will accumulate and be reentrained when movement of the structure occurs.
"Power tool cleaning": Involves the use of power tools (grinders, brushes, needle guns, sanders, etc.) to remove dirt, scale, or paint from structures where lead based paint is present.
"Rivet busting": Involves removal of rivets from steel structures where lead containing paints are present; rivet busting can involve use of torches and mechanical means for rivet extraction.
"Cleanup activities where dry expendable abrasives are used": Pertains to the use of non-recycled dry abrasives during abrasive blasting operations on structures where lead containing paint is found.
The requirements regarding interim employee protection during performance of these specific tasks, when lead is involved typically as in a paint or coating, are discussed below.
Paragraph (d)(2)(i) includes a listing of the following tasks which are presumed to frequently entail lead exposure levels above the PEL: where lead containing coatings or paint are present; manual demolition of structures (e.g. dry wall), manual scraping, manual sanding, heat gun applications, and power tool cleaning with dust collection systems; and spray painting with lead based paint. With respect to these tasks, paragraph (d)(2)(i) requires that, 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 above the PEL, the employer must treat the employee as if the employee were exposed above the PEL by providing the protective measures as prescribed in paragraph (d)(2)(v) of the standard (discussed below).
In addition, with regard to tasks not listed in paragraph (d)(2)(i), paragraph (d)(2)(ii) requires that where the employer has any reason to believe that an employee performing a task may be exposed in excess of the PEL, until the employer performs an employee exposure assessment as required by paragraph (d) and documents that the employee's lead exposure is not above the PEL, the employer must treat the employee as if the employee were exposed above the PEL by providing the protective measures as prescribed in paragraph (d)(2)(v) of this standard.
Paragraph (d)(2)(iii) includes a listing of the following tasks: Using lead containing mortar; lead burning; rivet busting; power tool cleaning without dust collection systems; cleanup activities where dry expendable abrasives are used; and abrasive blasting enclosure movement and removal. With respect to these tasks, paragraph (d)(2)(iii) requires that 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 in excess of 500 ug/m(3), the employer must treat the employee as if the employer were exposed to lead in excess of 500 ug/m(3) by providing the protective measures prescribed in paragraph (d)(2)(v) of this section. Where the employer has established that employee exposure is at or below 500 ug/m(3) during these tasks, a less protective respirator, in accordance with Table 1 of this section, shall be provided as protection.
Paragraph (d)(2)(iv) includes a listing of the following tasks which are presumed to frequently entail exposures to lead above 2,500 ug/m(3): Abrasive blasting, and welding, cutting, and torch burning on steel structures where lead containing coatings or paint are present.
With respect to these tasks, paragraph (d)(2)(iv) requires that until the employer performs an employee exposure assessment as required in paragraph (d) and documents that the employee performing any of the listed tasks is not exposed to lead in excess of 2,500 ug/m(3) (50 x PEL), the employer must treat the employee as if the employee were exposed to lead in excess of 2,500 ug/m(3) by providing the protective measures prescribed under paragraph (d)(2)(v) of the standard. Where the employer has established that the employee is exposed to levels of lead below 2,500 ug/m(3) during these tasks, the employer shall provide the exposed employee with a less protective respirator in accordance with Table 1 of this section.
Paragraph (d)(2)(v) of the standard sets forth the interim protective measures that employers must implement during performance of the tasks discussed above at least until an exposure assessment as prescribed in paragraph (d) of the standard is completed.
These protections are required when an employee performs a specified task where lead is present. Interim protection to be provided to affected employees includes: (1) Appropriate respiratory protection in accordance with paragraph (f) of the standard; (2) appropriate personal protective clothing and equipment in accordance with paragraph (g) of the standard; (3) change areas in accordance with paragraph (i)(2) of the standard; (4) hand washing facilities in accordance with paragraph (i)(5) of the standard; (5) biological monitoring in accordance with paragraph (j)(1)(i) of the standard; and (5) training as required under paragraph (l)(1)(i) of the standard, which incorporates the relevant requirements of 29 CFR 1926.59 (Hazard Communication), as required under 29 CFR 1926.21 (Safety training and education), and as required under paragraph (l)(2)(ii)(c) of the standard regarding the purpose, selection, fitting, use and limitation of respirators It should be noted that the interim respiratory protection required to be provided to employees performing the tasks listed above is based on a presumed 8-hour exposure period. Where the tasks listed above are performed for lesser periods than 8-hours, the employer may be able to provide a less protective respirator if compliance with the PEL as an 8- hour TWA can be achieved.
E. Methods of Compliance: Paragraph (e)
The interim final standard requires employers to institute engineering and work practice controls to the extent feasible to reduce exposures to or below the PEL. Where all feasible engineering and work practice controls that can be instituted are not sufficient to reduce employee exposure to or below the PEL, appropriate respiratory protection is required to be provided as a supplement to such controls to reduce employee's exposures to lead to or below the PEL.
OSHA thus continues to maintain its preference for engineering and work practice controls in this standard. However, in the construction industry generally based on available data, OSHA is unable to show for purposes of this interim final rule that the PEL can be achieved by engineering and work practice controls in most operations most of the time. Consequently, as Congress anticipated, OSHA expects employers to place broader reliance on respirators than in General Industry.
The standard has a requirement for the development and implementation of a written compliance plan prior to the commencement of the job where employee exposure to lead, without respect to respiratory protection, will be in excess of the PEL. The plan should be a written strategy and schedule for protecting workers from occupational hazards, and must incorporate all relevant information that relates to those goals, so that one could determine whether the employer reasonably analyzed the problems and their solutions, including alternatives and has implemented the plan in accordance with its schedules.
These written plans must be furnished upon request for examination and copying to affected employees and their designated representatives and to representatives of the Assistant Secretary and the Director. They must be reviewed and updated periodically at least every 6 months to reflect the current status of exposure control. OSHA views the requirement for written plans as an essential part of the compliance program since it will form the basis for determining the employer's ability to achieve the controls and provide the necessary documentation to employees and their designated representatives of the compliance methods chosen, the extent to which controls have been instituted, and of the plans to institute further controls.
Where mechanical ventilation is used to control employee exposure to lead, the employer is required to evaluate the performance of the system in controlling exposure as necessary to maintain its effectiveness.
Finally, the standard requires that when administrative controls are used to lower employee exposure, a rotation schedule is to be kept and followed and made a part of the written compliance plan. This will enable affected employees and OSHA to determine the effectiveness of the administrative control program.
F. Respiratory Protection: Paragraph (f)
This section contains specific requirements for the usage, selection, maintenance, and fitting of respirators.
The interim final standard, requires that respirators be used whenever the concentration of lead is at or above the PEL, in work situations in which engineering and work practice controls are not sufficient to reduce exposures to or below the PEL, or whenever an employee requests a respirator. This last requirement is to provide protection for those employees who wish to reduce their lead burden below what is required by the interim standard. For example, male and female workers whose blood lead levels are in the 30-50 ug/100g range may desire increased protection, especially if they intend to parent in the near future.
Because of the discomfort and hazards associated with negative pressure respirators, coupled with the possibility of routine and long-term use in some industries, OSHA has required employers to provide powered, air purifying (positive pressure) respirators (PAPR) to employees who request one, so long as it will provide adequate protection against the hazard for which a respirator is worn. Powered air positive-pressure respirators simultaneously provide greater protection to individuals, especially those who cannot obtain a good face fit on a negative pressure respirator, and greater comfort when a respirator needs to be worn for long periods of time. OSHA believes employees will have a greater incentive to wear respirators if discomfort is minimized.
The standard requires the employer to provide respirators at no cost to the employee and to select respirators from those approved by MSHA or NIOSH under the provisions of 30 CFR Part 11 and in accordance with the respirator selection table (Table 1) set-forth in the standard. The respirator selection table will enable the employer to provide the type of respirator which affords the proper degree of protection based on the airborne concentration of lead. While the employer must select the appropriate respirator from the table on the basis of the airborne concentration of lead, the employer may always select a respirator providing greater protection, that is, one prescribed for higher concentration of lead than present in the workplace. The respirator table is based on NIOSH recommendations.
The standard requires that the employer institute a respirator program in accordance with 29 CFR 1910.134 which contains basic requirements for proper selection, use, cleaning and maintenance of respirators. Under the respirator program the employer must change the filter elements of filter respirators whenever an employee detects an increase in breathing resistance, and must permit employees to leave work areas to wash their face and respirator facepiece when necessary to prevent skin irritation associated with respirator use.
The employer is also required to assure that the respirator facepieces fit properly and exhibit minimum facepiece leakage. Proper fit of the respirator is critical. As a negative pressure is created within the facepiece when the wearer inhales, unfiltered air may enter the facepiece between the facepiece and the employees' face. Obtaining a proper fit on each employee may require the employer to provide two or three different mask styles.
Employers are required to perform either quantitative or qualitative face fit tests at the time of initial fitting and at least every six months thereafter for each employee wearing negative pressure respirators.
The qualitative fit tests may be used only for testing the fit of half-mask respirators where they are permitted to be worn, and must be conducted in accordance with appendix D. The tests are to be used to select facepieces that provide the required protection as prescribed in the respirator selection table included in the standard (Table 1).
G. Protective Clothing and Equipment: Paragraph (g)
This paragraph contains requirements that the employer provide, at no cost to employees, protective clothing and equipment that are appropriate for the hazard. Such clothing and equipment is necessary in order to protect employees from lead compounds which may cause skin or eye irritation (e.g., lead arsenate, lead azide) where encountered and, for employees who are exposed to lead above the PEL, to assure that clothing, shoes, and equipment on which lead dust can accumulate during the work shift are not worn home. Wearing contaminated clothing outside the work place will lengthen the duration of the employee's exposure through both inhalation and ingestion routes and potentially expose others in the family.
Clean work clothing is required to be provided at least weekly to employees whose exposure levels are above the PEL and daily to those above 200 ug/m(3) as an 8-hour TWA. The employer must also repair or replace required protective clothing and equipment as needed to maintain its effectiveness. Removal of lead from protective clothing or equipment by blowing, shaking, or other means which disperses lead into the air is prohibited in order to minimize secondary exposure to lead in work areas.
The employer is required to provide for the cleaning, laundering, or disposal of protective clothing and equipment and must repair or replace required protective clothing and equipment as needed to maintain its effectiveness. The employer must assure that all protective clothing is removed at the completion of a work shift only in change areas provided for that purpose and must assure that contaminated protective clothing which is to be cleaned, laundered, or disposed of, is placed in a closed labelled container in the change area.
The employer must also inform in writing any person who cleans or launders protective clothing or equipment of the potentially harmful effects of exposure to lead. These requirements regarding personal protective equipment and clothing are commonplace in OSHA standards.
H. Housekeeping: Paragraph (h)
The interim standard requires that all surfaces be maintained as free as practicable of accumulation of lead dust. This is to be accomplished primarily by vacuuming floors, rafters, and other surfaces or by methods equally effective in preventing the dispersal of lead into the workplace. This clean-up is an exceptionally important provision because it minimizes the reentrainment of lead dust into the air which can provide an additional source of exposure that engineering controls are generally not designed to control.
OSHA's view is that as rigorous a housekeeping program as practicable is necessary in many jobs to keep airborne lead levels below permissible limits. This contemplates a regular housekeeping schedule adapted to exposure conditions at a particular site.
Vacuuming is considered to be the most reliable method of cleaning surfaces on which dust accumulates, but equally effective methods may be used, for example, a wet floor scrubber. Where vacuuming methods are selected, the vacuums must be equipped with HEPA filters. Dry or wet sweeping, shoveling, or brushing may not be used except where vacuuming or other equally effective methods have been tried and do not work.
Blowing with compressed air is generally prohibited as a cleaning method, unless the compressed air is used in conjunction with a ventilation system designed to capture the airborne dust created by the compressed air.
I. Hygiene Facilities: Paragraph (i)
This paragraph requires employers to provide hygiene facilities and to assure employee compliance with basic hygiene practices. These provisions are universally recognized industrial hygiene tools for minimizing additional sources of lead absorption from inhalation or ingestion of lead that accumulates on a worker's clothes or body. The employer must provide adequate shower facilities, if feasible, clean areas for changing clothes, and eating areas for employees who have exposure above the PEL. Hand washing facilities are to be provided for all employees occupationally exposed to lead in accordance with 29 CFR 1926.51(f). In addition, employers must assure that employees use the facilities as required by the standard as well as observe prohibitions on the use of tobacco, food, and cosmetics in contaminated areas. OSHA expects that strict compliance with these provisions will control several sources of lead exposure which substantially contribute to increased lead absorption.
The interim final standard requires employers to prohibit smoking, eating, applying cosmetics and the presence of tobacco products, food stuffs, or cosmetics in all work areas where employees are exposed to lead above the PEL. This prohibition will prevent unnecessary contamination of food or tobacco products caused by exposure to lead dust or fumes within the work area. It also decreases the likelihood of lead absorption in employees due to ingestion or inhalation of products contaminated with lead within the work environment.
The standard requires employers to provide separate storage facilities in change areas for street and work clothing to prevent cross- contamination between the two. This provision coupled with showering, where feasible, and the prohibition on wearing work clothing home will minimize employee exposure to lead after the work shift ends because it limits the period in which work clothes contaminated with lead dust may be worn.
Employers are also required to assure that employees exposed to lead during their work shift shower before leaving the workplace, where showers are provided, and do not leave wearing protective work clothing. Showering reduces the worker's period of exposure to lead and removes lead particles which accumulate on the skin and hair. Employees are not permitted to leave the worksite wearing any protective work clothes or equipment required to be provided by the employer.
The interim final standard also requires employers to provide employees working in lead areas where their airborne exposures exceed the PEL with lunchroom facilities or eating areas which are as free as practicable from lead contamination and are readily accessible to employees. Employers must also assure that employees wash their hands and face prior to eating or smoking and do not enter the lunchroom facilities or eating area wearing protective clothing, unless properly cleaned beforehand. This is to further minimize the possibility of food contamination and reduce the likelihood of additional lead absorption from contaminated food, beverages or tobacco.
J. Medical Surveillance: Paragraph (j)
The medical surveillance provisions are part of this standard's comprehensive approach to prevention of lead-related disease. Its purpose is to supplement the standard's primary mechanisms of disease prevention, the elimination or reduction of airborne concentrations of lead and sources of ingestion, by facilitating the early detection of medical effects associated with exposure to lead. These provisions in most respect are very similar to parallel provisions in the HUD Guidelines and lead standard for general industry.
All medical examinations and procedures are to be performed by or under the supervision of a licensed physician and are to be provided without cost to employees at a reasonable time and place. The standard does not make participation in the medical surveillance program mandatory for the employee. The employer's obligation is to "provide" and "make available" the medical tests and procedures as required. Where employee confidence in the medical program exists, refusal to participate should be minimal.
The medical surveillance provisions contemplate two phases of medical surveillance: one is initial medical surveillance, the other is a medical surveillance program. The employer is required to provide initial medical surveillance to employees occupationally exposed to airborne concentration of lead on any one day at or above the action level, consisting of biological monitoring in the form of blood sampling and analysis for lead and zinc protoporphyrin levels. Where this initial biological monitoring indicates that an employee's blood lead level is at or above 40 ug/dl, the employer must continue to provide biological monitoring at least every two months. The frequency is to continue until two consecutive blood samples and analyses indicate that the employee's blood lead level is below 40 ug/dl.
If an employee's airborne lead exposure is at or above the action level for more than 30 days a year, the employer shall provide a medical surveillance program to the employee consisting of routine monitoring of an employee's blood lead and ZPP levels, made available at least every 2 months for the first 6 months in the exposed job and every 6 months thereafter. If an employees PbB exceeds 40 ug/dl, the monitoring frequency must be increased to at least every 2 months and not reduced until two consecutive PbB's are below 40 ug/dl. If PbB levels exceed the removal criteria under paragraph (k)(1)(i), a second PbB must be provided within 2 weeks after the employer receives the results of the first blood test to confirm the accuracy of the results. This follow-up is intended to assure that no unnecessary removals occur. If the second test exceeds the removal criteria then the employee must be removed. Blood lead level sampling and analysis must have an accuracy (to a confidence level of 95 percent) within plus or minus 15 percent or 6 ug/dl, whichever is greater, and must be conducted by a laboratory approved by OSHA.
Within five working days after the receipt of biological monitoring results, the employer is to notify each employee in writing of his or her blood lead level. The employer must notify each employee who underwent biological monitoring whose blood lead level exceeds 40 ug/dl, that the standard requires temporary medical removal with Medical Removal Protection benefits when an employee's blood lead level exceeds the numerical criterion for medical removal.
The employer's obligation to provide a full medical surveillance program to an employee, including annual medical exams, is triggered by a determination that the employee's blood lead level exceeds 40 ug/dl if the employee's airborne exposure is or may be at or above the action level for more than 30 days a year.
The required examination includes a work history and medical history; a physical examination; determinations of blood lead level (PbB), hematocrit, hemoglobin, peripheral smear morphology and red cell indices; levels of zinc protoporphyrin (ZPP), routine urinalysis (specific gravity, sugar, protein determinations, and microscopic examination), blood urea nitrogen (BUN), and serum creatinine (S-Creat).
Medical consultations, with examinations as appropriate, are required to be provided upon notification by an employee (1) that the employee has developed symptoms commonly associated with lead-related disease, (2) that the employee desires advice concerning the effects of lead on reproductive capacity, and (3) that the employee has demonstrated difficulty in breathing during fit testing or use of a respirator. Additional examinations must be made available when an employee is removed from exposure or otherwise limited under paragraph (k) of the regulation. The content and frequency of these examinations is to be at the discretion of the physician. Upon request of an employee, however, a pregnancy test or male fertility test (at a minimum analyzing sperm number, motility, and morphology) must be provided. These tests will facilitate the protection of reproductive capacity.
The employer must make medical examinations and consultations available to each employee exposed to lead at or above the action level for more than 30 days per year on the following schedule: at least annually for those employees for whom a blood sampling test conducted at any time during the preceding 12 months indicated a blood lead level at or above 40 ug/dl; as soon as possible, upon notification by an employee either that the employee has developed signs or symptoms commonly associated with lead intoxication, that the employee desires medical advice concerning the effects of current or past exposure to lead on the employee's ability to procreate a healthy child, that the employee is pregnant, or that the employee has demonstrated difficulty in breathing during a respirator fitting test or during use; and as medically appropriate for each employee either removed from exposure to lead due to a risk of sustaining material impairment to health, or otherwise limited pursuant to a final medical determination.
The medical surveillance provisions of the final standard contain a multiple physician review mechanism which gives workers an opportunity to obtain a second and possibly third opinion regarding the medical determinations made pursuant to the standard. An employee may designate a second physician to review any findings, determinations or recommendations of an initial physician chosen by the employer. Efforts are to be made to resolve any disagreement which may arise between the two physicians. Should they be unable to agree, a third physician they select will resolve the disagreement.
- OSHA's reasons for the provision of this review process are twofold;
first, to broaden and strengthen the basis for medical determinations in situations where a worker questions the results of the initial examination or consultation provided by the employer; and second, to assure employee confidence in the soundness of medical determinations made pursuant to the standard. OSHA views the multiple physician review mechanism as an important element of the lead standard's medical surveillance program both due to the importance attached to medical surveillance by the Act, and due to the crucial role medical surveillance will play in the operation of the standard's medical removal protection program.
Medical surveillance, as under the HUD Guidelines and OSHA lead standard, must be provided by employers without cost to employees. Since the multiple physician review mechanism will be one means by which medical surveillance is provided to an employee, employers must bear the expense of this mechanism when it is used. In practice, the costs of this mechanism should not be burdensome, particularly since employers will have substantial control over the frequency of its use. Where employers carefully structure and administer medical surveillance programs which engender, merit and maintain worker confidence, workers will see no need to seek a second medical opinion.
The multiple physician review mechanism commences after an initial medical examination or consultation provided by a physician chosen by the employer. OSHA recognizes the value to employers and employees alike of having the mechanism operate in an expeditious fashion, and thus has established explicit criteria for the beginning of the process. After an initial physician conducts an examination or consultation pursuant to the standard, the employer must promptly notify the employee of his or her right to seek a second medical opinion. This notification need be no more than an oral reminder of the existence and content of this multiple physician review mechanism. After this notification has been given, an employer may condition employee participation in, and payment for, the mechanism upon the employee acting within 15 days after receipt of the foregoing notification, or receipt of the physician's written opinion, whichever is later. Before or within this 15-day period the employee must inform the employer (orally or otherwise) that the employee intends to seek a second medical opinion. The employee must also initiate steps within this time to make an appointment with a second physician. These steps would include actually making an appointment or contacting a physician with the request that a referral to a specialist be arranged.
The standard contains no more limitation upon an employee's choice of a second physician than the standard places on an employer's choice of the initial physician. The second physician, like the initial physician, need only be licensed to practice medicine. There is no subspecialty of medicine solely concerned with lead-related diseases, and since lead- related diseases affect numerous systems of the body, it would not be appropriate to limit the choice of doctors to any one specialty. It is certainly to an employee's advantage to choose a competent physician, thus OSHA relies on this self-interest to assure the value of the second opinion. For example, where an employee's difference with the initial physician revolves around a particular body system -- e.g., nervous system -- it is likely that the employee will choose a specialist in that body system -- e.g., a neurologist. Where, however, the dispute revolves around several body systems, or the employee cannot identify one specific system, the employee will likely choose the general practitioner or internist most familiar with the employee's medical history or current health status.
The standard provides that the second physician shall review any findings, determinations or recommendations of the initial physician, and may conduct such examinations, consultations and laboratory tests as the second physician deems necessary to facilitate this review. An additional provision in the standard requires the employer to supply the same information to the second physician upon request that must be supplied to an initial physician. The second physician, therefore, is provided an opportunity to fully assess the employee's health status with access to the same background information supplied to the initial physician.
If the second physician's findings, determinations and recommendations are the same as those of the initial physician, then the multiple physician review process comes to an end. If, however, the opinions of the two physicians are in conflict, then the standard provides that the employer and the employee shall assure that efforts are made for the two physicians to communicate with each other to resolve their differences. This professional interaction among peers should in most cases resolve any differences between the two physicians. The preceding elements of the multiple physician review mechanism assure that if differences of opinion remain, these differences are likely to be genuine and substantial.
Where the first two physicians have been unable to quickly resolve any differences of opinion with respect to an employee, then it is necessary for a third qualified physician to resolve the dispute. It is important that this third physician be competent to resolve the dispute, thus the standard provides that the third physician shall be designated by the employer and the employee jointly through their respective physicians. It is the responsibility of the employer and the employee to assure that a third physician is selected, but the selection is to be made by the two prior physicians.
The standard provides the third physician with full opportunity to review the findings, determinations, and recommendations of the prior physicians by conducting such examinations, consultations, and laboratory tests as the third physician deems necessary. The standard incorporates the expectation that the third physician will consult with the two prior physician, and upon request, the employer must supply the same information to the third physician given to the initial physicians. The third physician is required to provide a written medical opinion to the employer, which will operate to resolve the disagreement between the earlier physicians. The standard finally requires the employer to act in a manner consistent with the findings, determinations, and recommendations of the third physician, unless the employer and the employee reach an agreement which is otherwise consistent with the recommendations of at least one of the three physicians.
The medical surveillance section of the standard includes a provision stating that the employer and employee or authorized employee representative may agree upon the use of any alternate physician determination mechanism in lieu of the multiple physician review mechanism. The only conditions are that the alternate mechanism be as expeditious and protective as the multiple physician review mechanism. For example, the parties might decide, in cases of dispute, for an employee to go directly from an initial physician chosen by the employer to an agreed upon final physician -- thus dispensing with the need for a second physician. Alternately, a mutually agreed upon physician might be used in the first instance without recourse to other physicians. Or, an employee might be given the opportunity to choose this final physician. OSHA desires to encourage employers and employees to adopt medical determination procedures in which all parties have trust and confidence.
The interim final standard prohibits prophylactic chelation of any employee by any person the employer employs, retains, supervises, or controls, and requires the employer to assure that any therapeutic or diagnostic chelation, if administered, is done under the supervision of a licensed physician in a clinical setting with thorough and appropriate medical monitoring. In cases where the examining physician determines that chelation is appropriate, the employee must be notified of this fact before such treatment. This is to inform the employee that chelation can be a potentially harmful treatment, and will afford the employee the opportunity to seek the review of this determination by another physician.
K. Medical Removal Protection: Paragraph (k)
The employer is required to remove an employee from work having an exposure to lead at or above the action level on each occasion that a periodic and a follow-up blood sampling test indicate that the employee's blood lead level is at or above 50 ug/dl. Although OSHA's General Industry Standard (1910.1025) requires removal based on the average of three blood tests indicating blood leads in excess of 50 ug/dl, OSHA believes that the length of time associated with taking these three tests (up to four months) would not be appropriate for activities in construction which often will not last 4 months. The provisions for blood testing under this construction standard to determine whether removal is necessary, would be accomplished within a much shorter period (e.g., a periodic test revealing blood lead above 50 ug/dl requires a follow-up test within 2-weeks). OSHA further believes that this more stringent requirement for removal based on fewer blood tests is warranted in view of the high airborne lead exposures that construction workers have been permissibly exposed to (e.g., 200 ug/m(3)).
The employer must also remove an employee from work having an exposure to lead at or above the action level on each occasion that a final medical determination results in a medical finding, determination, or opinion that the employee has a detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead. The phrase "final medical determination" means the written medical opinion on the employee's health status by the examining physician or, where relevant, the outcome of the multiple physician review mechanism or alternate medical determination mechanism.
Where a final medical determination results in any recommended special protective measures for an employee, or limitations on an employee's exposure to lead, the employer must implement and act consistent with the recommendation.
For an employee removed from exposure to lead at or above the action level due to a blood lead level at or above 50 ug/dl the employer may return that employee to former job status when two consecutive blood sampling tests indicate that the employee's blood level is at or below 40 ug/dl. For an employee removed from exposure to lead due to a final medical determination, the employee must be returned when a subsequent final medical determination results in a medical finding, determination, or opinion that the employee no longer has a detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead.
The requirement that an employer return an employee to his or her former job status is not intended to expand upon or restrict any rights an employee has or would have had, absent temporary medical removal, to a specific job classification or position under the terms of a collective bargaining agreement.
Thus, for example, where an employee's job is concluded while the employee is on medical removal, the employee is not entitled to continuing MRP benefits or to the job since, if the employee had not been removed, the employment would have ended in any case.
The employer shall remove any limitations placed on an employee or end any special protective measures provided to an employee pursuant to a final medical determination when a subsequent final medical determination indicates that the limitations or special protective measures are no longer necessary.
Where the multiple physician review mechanism, or alternate medical determination mechanism used pursuant to the medical surveillance provisions has not yet resulted in a final medical determination with respect to an employee, the employer may either remove the employee from exposure to lead, provide special protective measures to the employee, or place limitations upon the employee, consistent with the medical findings, determinations, or recommendations of any of the physicians who have reviewed the employee's health status. In such circumstances, the employer may return the employee to his or her former job status, end any special protective measures provided to the employee, and remove any limitations placed upon the employee, consistent with the medical findings, determinations, or recommendations of any of the physicians who have reviewed the employee's health status, unless the initial removal, special protection, or limitation of the employee resulted from a final medical determination which differed from the findings, determinations, or recommendations of the initial physician or the employee has been on removal status for the preceding eighteen months due to an elevated blood lead level.
If a removed employee files a claim for workers' compensation payments for a lead-related disability, then the employer must continue to provide medical removal protection benefits pending disposition of the claim. To the extent that an award is made to the employee for earnings lost during the period of removal, the employer's medical removal protection obligation may be reduced by such amount. The employer may not receive credit for workers' compensation payments received by the employee for treatment related expenses. The employer's obligation to provide medical removal protection benefits to a removed employee may be reduced to the extent that the employee receives compensation for earnings lost during the period of removal either from a publicly or employer-funded compensation program, or receives income from employment with another employer made possible by virtue of the employee's removal.
For employees removed from exposure to lead due to an elevated blood lead level whose blood lead level has not declined within the past eighteen (18) months of removal to allow the employee to be returned to his or her former job status, the employer must make available to the employee a medical examination to obtain a final medical determination with respect to the employee. The employer must also assure that the final medical determination obtained indicates whether or not the employee may be returned to his or her former job status, and if not, what steps would be taken to protect the employee's health. Further, where the final medical determination has not yet been obtained, or once obtained indicates that the employee may not yet be returned to his or her former job status, the employer must continue to provide medical removal protection benefits to the employee until either the employee is returned to former job status, or a final medical determination is made that the employee is incapable of ever safely returning to his or her former job status.
Finally, where the employer acts pursuant to a final medical determination which permits the return of the employee to his or her former job status despite what would otherwise be an unacceptable blood lead level, later questions concerning removing the employee again must be decided by a final medical determination. The employer, however, need not automatically remove such an employee pursuant to the blood lead level removal criteria provided in the standard.
Where an employer, although not required by this section to do so, removes an employee from exposure to lead or otherwise places limitations on an employee due to the effects of lead exposure on the employee's medical condition, the employee is entitled to full medical removal protection benefits as provided for under the standard.
L. Employee Information and Training: Paragraph (l)
The final standard requires the employer to provide an information and training program for all employees exposed to lead at or above the action level. Information and training are an essential aspect of the overall protection of employees who can do much to protect themselves if they are informed of the nature of the hazards in the workplace. To be effective, an employee education system must apprise the employee of the specific hazards associated with his work environment, protective measures which can be taken, and his rights under the standard.
The provisions under this paragraph also alert employers of their existing obligation to comply with provisions under OSHA's Hazard Communication Standard (20 CFR 1926.59), which currently applies to construction activities. Under the Hazard Communication Standard (HCS) all chemical manufacturers and importers are to assess the hazards of the chemicals they produce or import and are to develop appropriate information about those hazards, which they are required to communicate in various ways to their own exposed employees and to relevant downstream employers, as specified under paragraphs (d)-(h) of the standard. Downstream employers, in turn, are required to communicate the information concerning the hazards of such chemicals in various ways to their own employees. The transmittal of hazard information to employees is to be accomplished by means of comprehensive hazard communication programs, which must include container labeling and other forms of warning, material safety data sheets and employee training.
Employers are also obligated to comply with existing training requirements set forth in 29 CFR 1926.21, Employee training and education.
In paragraph (l)(2), OSHA includes additional particular requirements that are needed to protect employees specifically exposed to lead at or above the action level. The training program required under paragraph (l)(2) must be provided prior to the time of initial job assignment or prior to the start up date for this requirement, whichever comes last, and must be repeated at least annually for covered employees unless exposure at or above the action level will no longer occur.
Paragraph (l)(2) requires that the employer assure that each employee who is exposed at or above the action level is trained in the following:
The content of the standard and its appendices: The specific nature of the operations which could result in exposure to lead above the action level; the purpose, proper selection, fitting, use, and limitations of respirators; the purpose and a description of the medical surveillance program, and the medical removal protection program including information concerning the adverse health effects associated with excessive exposure to lead (with particular attention to the adverse reproductive effects on both males and females and hazards to the fetus and additional precautions for employees who are pregnant); the engineering controls and work practices associated with the employee's job assignment including training of employees to follow relevant good work practices described in Appendix B of this section; the contents of any compliance plan in effect; instructions to employees that chelating agents should not routinely be used to remove lead from their bodies and should not be used at all except under the direction of a licensed physician; and the employee's right of access to records under 29 CFR 1910.20.
In addition, the employer is required to make available to all affected employees a copy of this standard and its appendices and must provide, upon request, all materials relating to the employee information and training program to affected employees and their designated representatives, and to the Assistant Secretary and the Director.
M. Signs: Paragraph (M)
The standard requires warning signs to be posted in each work area where employee lead exposure exceeds the PEL.
In light of the serious nature of the hazard of exposure to lead, OSHA believes that sign posting is needed, as well as periodic training, to adequately inform employees of the presence of high levels of lead and the possible need to utilize respirators and other protective equipment when entering the area. Phrases to be placed on the sign include "Warning", "Lead Work Area," "Poison," and "No Smoking or Eating." Signs are to be illuminated and cleaned as necessary so that the legend is readily visible.
N. Recordkeeping: Paragraph (n)
The HUD Guidelines and OSHA's general industry standard mandate the inclusion of provisions requiring employers to maintain accurate biological and environmental monitoring records of employee exposures to potentially toxic materials. It also provides that employees or their representatives have access to such records.
The interim final standard requires records of all exposure monitoring and other data used in conducting the employee exposure assessment to be established and maintained. The records must include the name and job classification of employees monitored, details of the sampling and analytic techniques, results, and type of respiratory protection worn. These records must be kept for 30 years in accordance with OSHA's standard 29 CFR 1910.20, Access to Exposure and Medical records. The standard also requires employers to establish and maintain records of medical surveillance (biological monitoring and medical examination results). These include names of employees, the physician's written opinion, exposure data provided to the physician, and any employee medical complaints associated with lead exposure. In addition, the employer is required to keep or must assure that the examining physician keeps a record of the results of medical examinations, a description of laboratory procedures and a copy of the results of biological monitoring. These records must be kept for at least duration of employment plus 30 years, except that medical records of employees who have worked for less than one (1) year for the employer need not be retained beyond the term of employment if they are provided to the employee upon termination of employment. These retention requirements are in accordance with Section 1910.20 The interim standard contains a limited recordkeeping requirement concerning temporary medical removals effected pursuant to the medical removal protection program. The employer must establish and maintain an accurate record for each employee removed from current exposure to lead. The record is to contain four entries each time an employee is removed. First, the employee must be identified by name and social security number. Second, the date of removal and return must be stated. Third, the employer must briefly explain how each removal was or is being accomplished. This description need be no more detailed than such statements as "Employee X was transferred from position A to position B during the entire period of removal," or "Employee X was laid off for the entire period of removal," or "Employee X is currently working half shifts until a transfer opportunity becomes available." Fourth, the record must indicate whether or not the reason for the removal was an elevated blood lead level. If removal is due to a reason other than an elevated blood lead level, this precise reason should not be stated, so as to prevent disclosure of confidential medical information about the employee. Medical removal records are to be maintained for at least the duration of employment.
The purpose of the foregoing recordkeeping requirement is to enable employees and their authorized representatives, and the Secretary to assess the operation of, and an employer's compliance with the medical removal protection program. The limited but pertinent information contained in these records will, in most cases, enable these assessments to be made without interviewing large numbers of employees or placing undue burdens on employers by requiring further time consuming and burdensome examinations of payroll, production, or confidential medical records--examinations which likely would be necessary in the absence of the standard's limited recordkeeping requirement. Due to the limited purposes to be served by these records, the standard requires an employer to maintain each medical removal record only for so long as the duration of an employee's employment.
A provision for the use of objective data in lieu of initial monitoring for the purpose of assessing employee exposure is included in this standard in paragraph (d)(3)(iv). Objective data are defined in paragraph (n)(4) as information demonstrating that a particular product or material containing lead cannot release dust or fumes in concentrations at or above the action level under any expected conditions of use. Employers might use data from an industry-wide survey to estimate maximum exposure levels that could occur if that survey pertains to workplace conditions that, to the extent relevant and significant, are all very similar to those in the employer's worksite. Employers may also use laboratory product test results to demonstrate that airborne concentrations must be below the action level.
A record documenting the relevance of the objective data in assessing employee exposure is required to be established, and maintained for at least 30 years of the objective data relied on. This retention period is consistent with OSHA's Access standard (29 CFR 1910.20) that requires retention of exposure records for at least 30 years.
The interim final standard requires that records be made available to employees and their authorized representatives, physician or other person designated by an employee or former employee in accordance with 29 CFR 1910.20, and to the Director and Assistant Secretary.
The records described above are to be transferred to a successor employer whenever the employer ceases to do business. When there is no successor employer to receive and retain the records these records must be transmitted to the Director of NIOSH.
Upon expiration of the retention period for required records, the employer must notify the Director of NIOSH at least 3 months prior to disposal of such records and must transmit those records to the Director if so requested.
O. Observation of Monitoring: Paragraph (o)
The lead standard for general industry of the Act requires that employers provide employees or their representatives with the opportunity to observe monitoring of employee exposures to toxic materials or harmful physical agents. In accordance with this section and consistent with other OSHA standards, the standard contains provisions for such observation. To insure that this right is meaningful, observers are entitled to an explanation of the measurement procedure, to observe all steps related to the measurement procedure, and to record the results obtained. Since results will not normally be available at the time of monitoring, the standard entitles the observers to receive the results of the monitoring when returned by the laboratory. The observer, whether an employee or designated representative, must be provided with, and is required to use, any personal protective devices required to be worn by employees working in the area that is being monitored, and must comply with all other applicable safety and health procedures.
P. Effective Date: Paragraph (p)
The effective date is June 3, 1993. Congress in Section 1031 of the Housing and Community Development Act directs that this interim final regulation take effect on issuance, but also expressly authorizes OSHA to reasonably delay the effective date. OSHA, therefore sets the effective date 30 days from publication in the FEDERAL REGISTER, which is the shortest time period allowed under the Administrative Procedures Act. Consequently, the regulation becomes effective 30 days after publication in the FEDERAL REGISTER. However, implementation of many provisions of the standard does not appear to be feasible so quickly. Thus, OSHA provides a minimal additional time period before the start-up dates for these provisions. OSHA believes that this is consistent with Congress' intent.
Q. Appendices: Paragraph (q)
The appendices included with the regulation are intended to be purely informational and, unless otherwise expressly stated in this section, are not intended to create any additional obligations not otherwise imposed or to detract or reduce any existing obligations. Appendix D provides mandatory procedures for fit testing of respirators.
R. Startup Dates: Paragraph (r)
All requirements of the interim final rule, except for engineering controls specified in paragraph (e)(1) of the standard, must be complied with as soon as possible, but no later than 60 days from the effective date of this section. Feasible engineering controls specified under paragraph (e)(1) shall also be implemented as soon as possible, but no later than 120 days from the effective date of this section.
OSHA believes that expeditious action by employers to achieve compliance with the provisions of this standard is warranted. Construction employees under the current standard are being exposed to lead at concentrations that present significant risk of adverse health impairment.
Employers must install feasible engineering controls as required under this standard within four (4) months from the effective date of this standard. Compliance with all other provisions of the standard must be accomplished within two (2) months of the effective date of the standard.
Employers performing lead operations in construction to some extent have already instituted protective measures voluntarily or in response to existing OSHA or other regulations, regarding training, engineering controls, compliance plans, respirators, exposure monitoring, work practices, recordkeeping, signs, protective clothing, and hygiene facilities. In addition, the Act of 1992 put the industry on notice that protective requirements like those, would be promptly imposed on employers to protect lead exposed employees in the construction industry. Thus, OSHA believes that it is a reasonable and appropriate judgement that compliance with the new burdens imposed under this interim rule in the time-frames specified is achievable.
- [58 FR 26590, May 4, 1993]
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