[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Rules and Regulations]
[Pages 52856-52859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25067]
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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.
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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 g/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
[[Page 52857]]
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
g/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 g/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 g/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
[[Page 52858]]
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.
[[Page 52859]]
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).
Sec. 1910.1025 Lead.
* * * * *
(e) Methods of compliance--(1) Engineering and work practice
controls. (ii) * * *
Table I
------------------------------------------------------------------------
Compliance dates:1 (50 g/m\3\)
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Lead chemicals, secondary copper smelting July 19, 1996.
Nonferrous foundries..................... July 19, 1996.\2\
Brass and bronze ingot manufacture....... 6 years.\3\
------------------------------------------------------------------------
\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
g/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 g/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 g/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
g/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
g/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 g/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
g/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:
* * * * *
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 . .
.''
* * * * *
[FR Doc. 95-25067 Filed 10-10-95; 8:45 am]
BILLING CODE 4510-26-P
