DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. H-004 E, F, G, H, I, and J]

Occupational Exposure to Lead

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Amendments to final rule.

SUMMARY: This document embodies a determination by OSHA that it is economically feasible for the brass and bronze ingot manufacturing industry as a whole to achieve an air lead limit of 75 ug/m(3) within six years by means of engineering and work practice controls. It amends Table I of paragraph (e)(1), the compliance Implementation Schedule, of the final rule on occupational exposure to lead, 29 CFR 1910.1025, to reflect that determination. This document also amends that Table based on the lifting of a judicial stay on March 8, 1990 and July 19, 1991, for other, specific industries. The stay had been in effect with respect to compliance requirements set forth in paragraph (e)(1) of the lead standard. Accordingly, lead industries affected by the lifting of the stay must implement engineering and work practice controls in accordance with paragraph (e)(1) of the lead standard by the date specified for the particular industry in Table I of paragraph (e)(1), as amended.

In addition, this document makes technical changes and corrections to the standard, amending portions of the standard that are unclear, obsolete or inconsistent with current compliance requirements. It also amends certain information in the Appendices to 29 CFR 1910.1025 that may have been misleading.

EFFECTIVE DATE: October 11, 1995. The compliance dates for industries identified herein are set forth in Table I of paragraph (e)(1), below.

FOR FURTHER INFORMATION CONTACT: Ms. Anne Cyr, Acting Director of Information and Consumer Affairs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, NW, Washington, DC 20010, telephone: (202) 219-8151.

SUPPLEMENTARY INFORMATION:

Background

On November 14, 1978, OSHA promulgated the lead standard (29 CFR 1910.1025), which established a permissible exposure limit (PEL) of 50 ug/m(3) based on an 8-hour time-weighted-average (TWA) (43 FR 52952; and see 43 FR 54354, November 21, 1978). Paragraph (e)(1) of the standard requires that, to the extent feasible, employers achieve the PEL of 50 ug/m(3) solely by means of engineering and work practice controls.

The standard was challenged by both industry and labor, with all cases transferred to the U. S. Court of Appeals for the District of Columbia. In United Steelworkers of America v. Marshall, 647 F. 2d 1189 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981), the Court affirmed most aspects of the regulation covering worker exposure to airborne lead. The Court also upheld OSHA's findings of feasibility for ten industries: primary lead production, secondary lead production, can manufacturing, lead acid battery manufacturing, paints and coatings manufacturing, ink manufacturing, wallpaper manufacturing, electronics, printing, and grey-iron foundries. However, the Court further found that OSHA had failed to present adequate evidence of feasibility for 38 lead industries.

The Court remanded the record to OSHA for reconsideration of the technological and economic feasibility of paragraph (e)(1) and stayed enforcement of paragraph (e)(1) for those industries. Nonetheless, the Court held that the 38 industries were required to meet the PEL by a combination of engineering controls, work practices, and respiratory protection. Accordingly, the entire lead standard was in effect with two exceptions: (1) the requirement for the 38 remand industries that the PEL be achieved by engineering and work practice controls; and (2) the requirement that high efficiency filters be used in respirators, which had been stayed administratively by OSHA in 1979 (44 FR 5445).

In December 1981, OSHA published (46 FR 60758) and filed with the Court its statement of reasons that compliance with paragraph (e)(1) is feasible for all but nine of the remand industries, which, after recategorizing and adding other industries to the list, totaled 45 industries. The nine industries were: brass and bronze ingot manufacturing/production; collection and processing of scrap (including independent battery breaking); lead chemicals; lead chromate pigments; leaded steel; nonferrous foundries; secondary copper smelting; shipbuilding and ship repairing; and stevedoring. OSHA requested that the record for these nine be remanded again to the Agency for further consideration of economic and technological feasibility. In March 1987, the Court remanded the record to OSHA for these industries.

On July 11, 1989, after public hearings, OSHA published its determination that compliance with paragraph (e)(1) was both technologically and economically feasible for eight of the nine industries (54 FR 29142). For the ninth industry, nonferrous foundries, OSHA distinguished between large foundries (those with 20 or more employees) and small foundries (those with fewer than 20 employees). OSHA concluded that paragraph (e)(1) was feasible for large nonferrous foundries but was not economically feasible for small nonferrous foundries. On January 30, 1990, OSHA published its determination that achieving an airborne lead concentration of 75 ug/m(3) was economically feasible for small foundries (55 FR 3146).

On March 8, 1990, in response to OSHA's statement of reasons regarding the feasibility of paragraph (e)(1), the U.S. Court of Appeals for the D.C. Circuit lifted the judicial stay for all remand industries except the six that contested OSHA's feasibility findings. The 39 industries for which the stay was lifted are: agricultural pesticides; aluminum smelting; ammunition manufacturing; artificial pearl processing; book binding; brick manufacturing; cable coating; cutlery; diamond processing; electroplating; explosives manufacturing; gasoline additive manufacturing; glass manufacturing; jewelry manufacturing; lamp manufacturing; lead burning; lead chromate pigments; leather manufacturing; machining; miscellaneous lead products; nickel smelting; pipe galvanizing; plastics and rubber manufacturing; plumbing; pottery and ceramics; primary and secondary smelting of gold, silver, and platinum; primary copper smelting; sheet metal manufacturing; shipbuilding and ship repair; solder manufacturing; soldering; spray painting; steel manufacturing (excluding leaded steel manufacturing); stevedoring; terne metal; textiles; telecommunications; tin rolling and plating; and zinc smelting. These industries were given two and one-half years (46 FR 60758, Dec. 11, 1981), from the date the stay was lifted, until September 8, 1992, to comply with the PEL by means of engineering and work practice controls.

The stay was continued for the six industries that asserted challenges to OSHA's feasibility findings. These industries are: nonferrous foundries; secondary copper smelting; brass and bronze ingot manufacturing; collection and processing of scrap (including independent battery breaking); leaded steel manufacturing; and lead chemicals manufacturing. On July 19, 1991, in AISI v. OSHA, 939 F.2d 975 (D.C. Cir. 1991), the Court affirmed OSHA's findings of technological and economic feasibility for all industries except the finding of economic feasibility for brass and bronze ingot manufacturing. Accordingly, the Court lifted the judicial stay for the other five industries.

Secondary copper smelters, lead chemical manufacturing, and large nonferrous foundries were allowed five years from July 19, 1991, the date of the Court's decision, to implement engineering and work practice controls to achieve the PEL of 50 ug/m3. Small nonferrous foundries were allowed five years from that date to achieve an airborne lead concentration of 75 ug/m3.

As to the sixth industry, brass and bronze ingot manufacturing, the stay remained in effect. The Court upheld OSHA's finding of technological feasibility for that industry but remanded the record to OSHA for further consideration of economic feasibility. For all other lead industries the requirement to comply with paragraph (e)(1) is currently in effect.

In response to the remand, OSHA has reconsidered the record and has concluded that an airborne lead concentration of 75 ug/m3, measured as an 8-hour TWA, is the lowest, economically feasible level that can be achieved by the brass and bronze ingot manufacturing industry as a whole by engineering and work practice controls. Employers in the industry are required, therefore, to reduce airborne concentrations of lead to that level. The industry will have six years from the date the court lifts the existing stay to do so.

OSHA reached this conclusion based upon the evidence in the record as discussed and analyzed at 57 FR 29150-29162 (July 11, 1989). In particular, OSHA relied upon reliable data from OSHA's contractor JACA, showing that nearly three-quarters of all employees in ingot production were already exposed below 50 ug/m3 years ago. Data from recent OSHA inspections are similar. These data show that most employees are exposed below 50 ug/m3 and that 90% are exposed below 100 ug/m3. Taken together, these data suggest that only very limited costs will be incurred in reducing exposure levels in most operations, most of the time to lead in air concentrations at or below 75 ug/m3.

OSHA is assured of the economic feasibility of 75 ug/m3 for three additional reasons. First, OSHA recognizes that in the two most difficult operations to control to 75 ug/m3 by engineering and work practice controls, briquetting and baghouse maintenance, achieving that airborne concentration limit probably is not economically feasible for the industry as a whole. OSHA therefore is not seeking to prove economic feasibility for, or to impose the presumption of economic feasibility on, those operations. Second, in recognition of the economic constraints on the industry, OSHA is allowing employers six years from the date the court lifts the stay on paragraph (e) of the lead standard before employers have to come into compliance with the airborne concentration limit of 75 ug/m3. Employers, thus, can spread the costs of compliance over that time period. And finally, although OSHA did not rely upon it in determining economic feasibility, the fact that industry representatives recognize that 75 ug/m3 is economically feasible is strong confirmation of the accuracy of that determination.

This recognition by the industry is reflected in the settlement agreement signed on June 27, 1995 by OSHA and the Institute of Scrap Recycling Industries ("ISRI") and the Brass and Bronze Ingot Manufacturers, Inc. ("BBIM"), representing the brass and bronze ingot manufacturing industry. OSHA will incorporate the detailed terms of that agreement into a compliance directive applicable to the industry.

The new compliance dates that result from the stay being lifted, OSHA's determination of economic feasibility, and the settlement agreement are reflected in the Implementation Schedule (Table I) of paragraph (e)(1) of the standard, as amended.

Explanation of Technical Amendments and Corrections

1. Paragraph (e). Methods of compliance -- (1) Engineering and work practice controls. The Implementation Schedule (Table I) of paragraph (e)(1) is being revised to reflect the current status of compliance dates for the engineering and work practice requirements for the lead industries as a result of the lifting of the stay on enforcement of paragraph (e)(1) for all of the remaining remand lead industries except brass and bronze ingot manufacturers. The revision of Table I also reflects OSHA's determination regarding economic feasibility for that industry and the settlement agreement between representatives of OSHA and the industry. In addition, reference to interim levels, which are now obsolete, is deleted.

2. Paragraph (e)(4). Bypass of interim level. Paragraph (e) (4) is deleted from 29 CFR 1910.1025 as the interim levels established in this paragraph at the time of promulgation of the lead standard are no longer relevant. To avoid confusion for readers and to maintain continuity of the regulatory text, paragraphs (e)(5) and (e)(6) are redesignated as paragraphs (e)(4) and (e)(5), respectively.

3. Paragraph (f) -- Respiratory protection. Paragraph (f)(1)(i) is revised to delete the entire clause beginning with the word "except," which is based on interim levels that are no longer relevant.

4. Paragraph (j). Medical Surveillance. -- Paragraph (j)(2)(ii) is revised to clarify that the requirement for follow-up blood sampling tests applies only to the 60 ug/100 g removal trigger and does not apply to the 50 ug/100 g trigger, which already involves an average rather than a single result to be confirmed.

5. Paragraph (k). Medical removal protection -- (1) Temporary medical removal and return of an employee -- (i) Temporary removal due to elevated blood lead levels. Paragraphs (k)(1)(i)(A) and (B) are deleted in their entirety as they reference a phase-in schedule for medical removal protection that is no longer relevant. Paragraphs (k)(1)(i)(C) and (D) are revised to maintain consistency with current requirements and are redesignated as paragraphs (k)(1)(i)(A) and (B), respectively, to maintain continuity of the regulatory text.

Paragraphs (k)(1)(iii)(A)(1) and (2) are deleted since they reference interim levels that no longer apply, and paragraphs (k)(1)(iii)(A)(3) and (4) are redesignated as paragraphs (k)(1)(iii)(A)(1) and (2), respectively, to maintain continuity of the regulatory text.

6. This document also corrects several inadvertent errors and updates information in Appendix B and revises certain language in Appendix C which might otherwise be misleading.

With the exception of the amendments to Table I and the determination of economic feasibility for the brass and bronze ingot manufacturing industry, which were the subject of additional fact finding and a settlement agreement, the amendments and corrections described above are minor and not controversial. OSHA does not believe that there is a need to subject these technical amendments and corrections in which the public is not particularly interested to rulemaking or other public procedures (see 29 CFR 1911.5). Good cause is hereby found to dispense with such procedures in this instance. For the same reason, good cause is also found to make these changes effective immediately.

Authority and Signature

This document was prepared under the direction of Joseph A. Dear, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue, N.W., Washington, DC 20210.

This action is taken pursuant to sections 6(b) and 8(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1593, 1597, 1599, 29 U.S.C 653, 655, 657), Secretary of Labor's Order No. 1-90 (55 FR 9033) and 29 CFR part 1911 and 33 U.S.C 941. Part 1910, Title 29, Code of Federal Regulations, is hereby amended as set forth below.

List of Subjects in 29 CFR Part 1910

Lead, Occupational Safety and Health.

Signed at Washington, D.C., this 2nd day of October, 1995.

Joseph A. Dear,
Assistant Secretary of Labor.

Part 1910 of Title 29 of the Code of Federal Regulations is hereby amended as set forth below:

PART 1910 -- [AMENDED]

1. The authority citation for Subpart Z of Part 1910 continues to read as follows:

Authority: Secs. 6, 8 Occupational Safety and Health Act, 29 U.S.C. 655, 657; Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as applicable; and 29 CFR Part 1911.

All of subpart Z issued under section 6(b) of the Occupational Safety and Health Act, except those substances which have exposure limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 1910.1000. The latter were issued under section 6(a) (29 U.S.C. 655(a)).

Section 1910.1000 Tables Z-1, Z-2, Z-3 also issued under 5 U.S.C. 553. Section 1910.1000, Table Z-1, Z-2, and Z-3 not issued under 29 CFR part 1911 except for the arsenic (organic compounds), benzene, and cotton dust listings.

Section 1910.1001 also issued under Sec. 107 of Contract Work Hours and Safety Standards Act, 40 U.S.C. 333 and 5 U.S.C. 553.

Section 1910.1002 not issued under 29 U.S.C. 655 or 29 CFR Part 1911; also issued under 5 U.S.C. 553.

Section 1910.1003 through 1910.1018 also issued under 29 U.S.C. 653. Section 1910.1025 also issued under 29 U.S.C. 653 and 5 U.S.C. 553. Section 1910.1028 also issued under 29 U.S.C. 653. Section 1910.1030 also issued under 29 U.S.C. 653. Section 1910.1043 also issued under 5 U.S.C. 551 et seq. Sections 1910.1045 and 1910.1047 also issued under 29 U.S.C. 653. Section 1910.1048 also issued under 29 U.S.C. 653. Sections 1910.1200, 1910.1499 and 1910.1500 also issued under 5 U.S.C.

553.

Section 1910.1450 is also issued under secs. 6(b), 8(c) and 8(g)(2), Pub. L. 91-596, 84 Stat. 1593, 1955, 1600; 29 U.S.C. 655, 657.

2. Section 1910.1025 is amended by revising Table I in paragraph (e)(1)(ii), and paragraphs (f)(1)(i), (j)(2)(ii), and (k)(1)(i);

3. By removing paragraph (e)(4) and redesignating paragraphs (e)(5) and (6) as paragraphs (e)(4) and (5);

4. By removing paragraphs (k)(1)(i)(A) and (B) and redesignating paragraphs (k)(1)(i)(C) and (D) as (k)(1)(i)(A) and (B); and

5. By removing paragraphs (k)(1)(iii)(A)(1) and (2), and redesignating paragraphs (k)(1)(iii)(A)(3) and (4) as paragraphs (k)(1)(iii)(A)(1) and (2).

1910.1025 Lead.

* * * * *

(e) Methods of compliance -- (1) Engineering and work practice controls. (ii) * * *

(1) Calculated by counting from the date the stay on implementation of paragraph (e)(1) was lifted by the U.S. Court of Appeals for the District of Columbia, the number of years specified in the 1978 lead standard and subsequent amendments for compliance with the PEL of 50 ug/m(3) for exposure to airborne concentrations of lead levels for the particular industry.

(2) Large nonferrous foundries (20 or more employees) are required to achieve the PEL of 50 ug/m(3) by means of engineering and work practice controls. Small nonferrous foundries (fewer than 20 employees) are required to achieve an 8-hour TWA of 75 ug/m(3) by such controls.

(3) Expressed as the number of years from the date on which the Court lifts the stay on the implementation of paragraph (e)(1) for this industry for employers to achieve a lead in air concentration of 75 ug/m(3). Compliance with paragraph (e) in this industry is determined by a compliance directive that incorporates elements from the settlement agreement between OSHA and representatives of the industry.

* * * * *

(f) Respiratory protection. (1) * * * (i) During the time period necessary to install and implement engineering or work practice controls.

* * * * *

(j) * * * (2) * * * (ii) Follow-up blood sampling tests. Whenever the results of a blood lead level test indicate that an employee's blood lead level exceeds the numerical criterion for medical removal under paragraph (k)(1)(i)(A) of this section, the employer shall provide a second (follow-up) blood sampling test within two weeks after the employer receives the results of the first blood sampling test.

* * * * *

(k) * * * (1) * * * (i) Temporary removal due to elevated blood lead levels. (A) The employer shall 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 conducted pursuant to this section indicate that the employee's blood lead level is at or above 60 ug/100 g of whole blood; and

(B) The employer shall remove an employee from work having an exposure to lead at or above the action level on each occasion that the average of the last three blood sampling tests conducted pursuant to this section (or the average of all blood sampling tests conducted over the previous six (6) months, whichever is longer) indicates that the employee's blood lead level is at or above 50 ug/100 g of whole blood; provided, however, that an employee need not be removed if the last blood sampling test indicates a blood lead level at or below 40 ug/100 g of whole blood.

* * * * *

6. In Sec. 1910.1025, Appendix B is amended as follows:

Section XV, For Additional Information, Part A, and item 9 are revised and new items 10 through 14 are added to read as follows:

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XV. * * * A. Copies of the Standard and explanatory material may be obtained by writing or calling the OSHA Docket Office, U.S. Department of Labor, room N2634, 200 Constitution Avenue, N.W., Washington, DC 20210. Telephone: (202) 219-7894.

* * * * *

9. Revision to the standard and an additional appendix (Appendix D), Federal Register, Vol. 47, pp. 51117-51119, November 12, 1982.

10. Notice of reopening of lead rulemaking for nine remand industry sectors, Federal Register, vol. 53, pp. 11511-11513, April 7, 1988.

11. Statement of reasons, Federal Register, vol. 54, pp. 29142-29275, July 11, 1989.

12. Statement of reasons, Federal Register, vol. 55, pp. 3146-3167, January 30, 1990.

13. Correction to appendix B, Federal Register, vol. 55, pp. 4998-4999, February 13, 1991.

14. Correction to appendices, Federal Register, vol. 56, p. 24686, May 31, 1991.

* * * * *

7. Appendix C to Sec. 1910.1025, Section I. Medical Surveillance and Monitoring Requirements for Workers Exposed to Inorganic Lead, is amended as follows:

a. In the last sentence of the second paragraph, the words "A zinc protoporphyrin (ZPP) measurement is strongly recommended . . ." are revised to read "A zinc protoporphyrin (ZPP) is required . . ."

b. In Table 2, item B, the words "(ZPP is also strongly recommended . . ." are revised to read "(ZPP is also required . . ."

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[FR Doc. 95-25067 Filed 10-10-95; 8:45 am]