OSHA Instruction CPL 2-2.47 January 5, 1989 Office of Health Compliance Assistance

Subject: Compliance Dates for the Lead Standard 29 CFR 1910.1025, with Clarification of the Implementation Schedule

A. Purpose. This instruction provides current compliance dates for the lead standard, with clarification of the implementation schedule for the engineering and work practice control provisions in 29 CFR 1910.1025(e)(1), Table 1.

B. Scope. This instruction applies OSHA-wide.

C. Action. Regional Administrators and Area Directors shall ensure that the compliance dates established in this instruction are followed during the effective time period of this instruction.

D. Federal Program Change. This instruction describes a Federal Program change which affects State programs. Each Regional Administrator shall:

1. Ensure that this change is forwarded to each State designee.

2. Explain the technical content of the change to the State designee as requested.

3. Advise the State designees that this instruction provides the current compliance dates for the lead standard and clarifies the implementation schedule for the engineering and work practice control provisions in 29 CFR 1910.1025(e)(1), for ensuring that the compliance dates are followed.

4. Ensure that State designees acknowledge receipt of this Federal program change in writing, within 30 days of notification, to the Regional Administrator. The State's acknowledgment letter should indicate (1) that the implementation schedule in the State's equivalent to 29 CFR 1910.1025(e)(1) has established compliance dates earlier than the current dates set out in this instruction for compliance with the Federal standard; or, (2) in response to this instruction, will establish an implementation schedule in accordance with F. and Appendix A of this instruction. The State's acknowledgment letter should also indicate whether the State has stayed enforcement of 29 CFR 1910.1025(e)(1) for the industries listed in Appendix A of this instruction.

5. Review policies, instructions and guidelines issued by the State to determine if this change has been communicated to State program personnel.

E. Background.

1. The effective date of the engineering controls provisions of the lead standard is considered to be June 29, 1981, since this is the date on which the Supreme Court denied certiorari on the appeal of the decision of the U.S. Court of Appeals for the D.C. Circuit.

2. On August 15, 1980, the United States Court of Appeals for the District of Columbia Circuit upheld the validity of the entire lead standard for the following industry sectors: primary and secondary lead smelting, can manufacturing, battery manufacturing, printing, ink manufacturing, wallpaper manufacturing, electronics manufacturing, paint and coating manufacturing, and gray-iron foundries. However, for several industry sectors (see Appendix A), the Court stayed the enforcement of 29 CFR 1910.1025(e)(1), which requires compliance with the PEL through engineering and work practice controls. The stay has not yet been lifted.

3. On December 11, 1981, OSHA issued a revised Supplemental Statement of Reasons regarding the feasibility of complying with the lead standard for certain industries. At that time, Table 1 was amended "to extend the compliance deadline for the other industries to two and one-half years to allow sufficient time for the design and installation of controls and to prevent inequities to the affected industries as a result of the Secretary's reconsideration of the standard" (46 FR 60758).

4. It is OSHA's belief that the compliance dates for "all other industries" will be 2 1/2 years from the date that the stay is lifted, with the exception of auto manufacture/solder grinding industry which will be 7 years from that date.

5. In the same Revised Supplemental Statement of Reasons of December 11, 1981, OSHA also amended the lead standard in three important aspects. The first amendment was to exempt employers from the requirement to implement engineering and work practice controls to achieve 50 ug/m3 for employees who are exposed above the PEL for 30 days or less annually. The employer shall still be required to implement engineering controls to reduce exposures to 200 ug/m3, but thereafter may implement any combination of engineering and work practice controls (including administrative) and respiratory controls to reduce employee exposure to or below 50 ug/m3.

6. The second amendment was the change in the language of paragraph (e)(1) to reflect OSHA's past compliance policy by incorporating the concept of feasibility of engineering and work practice controls so that employers may use effective respiratory equipment to achieve compliance with the standard once they have demonstrated the infeasibility of such controls.

7. The third amendment was OSHA's request of the Court to remand the record for nine industry sectors for further administrative proceedings. These nine industry sectors are lead pigments manufacture, lead chemicals manufacture, leaded steel production, shipbuilding and repair, nonferrous foundries, secondary copper smelting, brass and bronze ingot production, battery breaking (when not part of secondary lead smelting operation), and stevedoring.

8. On March 31, 1987, the Court of Appeals for the District of Columbia granted OSHA's request of December 11, 1981, to remand the record to OSHA for further administrative proceedings to determine the feasibility of paragraph (e)(1) of the lead standard in the nine industry sectors listed above and ordered OSHA to return the record on or before October 1, 1987. On July 31, 1987, the Court granted OSHA's motion to extend to January 1, 1988, for return of the record.

a. A public hearing was held in Washington, D.C. from November 3-6, 1987. On December 16, 1987, the Court granted OSHA's request to extend the deadline for return of the record until July 15, 1988.

b. On July 15 and again on November 30, 1988, OSHA filed for extension to complete its economical and technological feasibility analyses for all nine industry sectors concerning Paragraph (e)(1). The Court's decision is pending.

9. The stay of enforcement of 29 CFR 1910.1025(e)(1) remains in effect for the industries listed in Appendix A of this instruction. The industries for which (e)(1) is stayed must install engineering controls to meet the 200 ug/m3 level. They may use any combination of engineering, work practice (including administrative controls), and respiratory controls to meet the 50 ug/m3 PEL.

F. Current Implementation Schedule.

1. In accordance with the decision of the U.S. Court of Appeals for the D.C. Circuit, the implementation schedule for 29 CFR 1910.1025(e)(1) should appear as shown in Appendix B of this instruction.

2. Under 29 CFR 1910.1025(j), Medical Surveillance, Paragraph (2)(i), the zinc protoporphyrin (ZPP) test is required as of December 29, 1981.

3. All provisions of the lead standard 29 CFR 1910.1025 are enforceable except for the following:

a. Paragraph (e)(1) [therefore, (e)(3) and (r)(7) as well] for the selected industries listed in Appendix A of this instruction. However, 1910.1025(e)(1) is enforceable insofar as it requires employers in these industries to reduce air lead levels to a level of 200 ug/m3 through the implementation of engineering controls.

b. Paragraph (f)(2)(i), Table II. As published in the January 26, 1979, Federal Register notice (44 FR 5446), OSHA granted 3M's request to reconsider the respirator issue and permitted the continued use of dust, fume, and mist air-purifying respirators for concentrations not in excess of 0.5 mg/m3 in addition to the respirators listed in Table II, pending reconsideration.

John A. Pendergrass Assistant Secretary

DISTRIBUTION: National, Regional, and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers

Industries for Which Stay of Enforcement of 29 CFR 1910.1025(e)(1) Remains in Effect 1/

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Agriculture Pesticides Aluminum Smelting Ammunition Manufacturing Artificial Pearl Processing Auto Manufacturing/Solder Grinding Book Binding Brass and Bronze Ingot Production Brick Manufacture Cable Coating Collection and Processing of Scrap (Battery Breaking) -- when not part of secondary lead smelter operations Copper Smelting Cutlery Diamond Processing Electroplating Explosives Manufacture Gasoline Additive Manufacture Glass Manufacture Gold, Silver, and Platinum Smelting Jewelry Manufacture Lamp Manufacture Lead Burning (Brazing/Welding) Lead Chemicals Manufacture Lead Pigments Manufacture Lead Sheet Metal Manufacture Leather Manufacture Machining Miscellaneous Lead Products Nickel Smelting Nonferrous Foundries Pipe Galvanizing Plastics and Rubber Manufacture Plumbing Pottery and Ceramics Sheet Metal Manufacture Shipbuilding and Repair Solder Manufacture Soldering Spray Painting Steel Manufacture (Leaded Steel) Stevedoring Telecommunications Terne Metal Textiles Tin Rolling and Plating Wine Making Zinc Smelting

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1/ Due to slight inconsistencies in wording and grouping of industries in various Federal Register publications and memorandums, the Agency has decided to use primarily the listing provided in the Federal Register notice of January 21, 1981, (46 FR 6134) In the December 11, 1981, Supplemental Statement (46 FR 69758), OSHA reaffirmed its conclusions that compliance with the PEL was generally feasible for most of these industries but requested the Court to remand the record to OSHA for nine of these industries (listed previously) Paragraph 1910.1025(e)(1) does, however, require the employers in these industries to implement feasible engineering controls to reduce air lead levels to 200 ug/m3.

        Dates to Achieve Compliance with Engineering and
            Work Practice Controls to Specified Level
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Industry.1/                         200 ug/m3 2/   100 ug/m3   50 ug/m3

Primary lead production. 1971 6/29/84 6/29/91

Secondary lead production. 1971 6/29/84 6/29/86

Lead-acid battery manufacturing 1971 6/29/83 6/29/86

Electronics, gray iron foundries, 1971 N/A 6/29/82 ink manufacture, paints and coating manufacture, can manufacture, wall paper manufacture, and printing.

Lead pigment manufacture, 1971 N/A N/A 3/ Lead chemical manufacture, non-ferrous foundries, leaded steel manufacture, ship building and ship repair, battery breaking in the collection and processing of scrap (when not part of secondary lead smelter), secondary copper smelter, and brass and bronze ingot production.

Auto manufacture/Solder grinding. 1971 N/A Stayed4/

All other industries. 1971 N/A Stayed5/

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1/ Includes ancillary activities located on the same work site.

2/ This continues an obligation from Table Z-2 of 29 CFR 1910.1000, which had been in effect since 1971 but which was deleted upon the effectiveness of this section.

3/ The feasibility of achieving the PEL by engineering and work practice controls for these industries have yet to be determined therefore no date has been scheduled.

4/ This date was to be 7 years from the date that the stay is lifted.

5/ The date, which was to be 2 1/2 years, after the effective date for paragraph (e), has been stayed by the U.S. Court of Appeals for the D.C. Circuit, 647 F. 28 1189 (1980).