Notice of Availability of the Regulatory Flexibility Act Review of the Occupational Safety Standard for Lead in Construction, 54826-54830 [E7-19096]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 72, Number 187 (Thursday, September 27, 2007)]
[Rules and Regulations]
[Pages 54826-54830]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-19096]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. OSHA-2007-0068]
RIN 1218-AC18


Notice of Availability of the Regulatory Flexibility Act Review 
of the Occupational Safety Standard for Lead in Construction

AGENCY: Occupational Safety and Health Administration, Department of 
Labor.

ACTION: Notice of availability.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) has 
completed a review of its Lead in Construction Standard pursuant to 
section 610 of the Regulatory Flexibility Act and Section 5 of 
Executive Order 12866 on Regulatory Planning and Review. OSHA issued 
its Lead in Construction Standard in 1993 pursuant to a statutory 
directive to protect construction workers from lead related

[[Page 54827]]

diseases such as neurological and kidney disease and negative 
cardiovascular effects. The review found that the standard has reduced 
blood lead levels in construction workers thereby reducing lead-related 
disease. It also found that the standard has not had a negative 
economic impact on business, including small businesses in virtually 
all sectors affected, is not overly complex and does not conflict with 
other regulations. OSHA concludes it is necessary to retain the 
standard but will consider improving outreach materials and increasing 
their dissemination, and will consult with HUD and EPA about developing 
a unified training curriculum and further integrate initial assessment 
interpretations to reduce cost and simplify requirements for small 
businesses.

ADDRESSES: Copies of the entire report may be obtained from the OSHA 
Publication Office, Room N-3101, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone (202) 693-1888: Fax (202) 693-2498. The 
full report, comments, and referenced documents are available for 
review at the OSHA Docket Office, New Docket No. OSHA-2007-0068, Old 
Docket No. H-023 Room N-2625, 200 Constitution Avenue, NW., Washington, 
DC 20210: telephone (202) 693-2350 (OSHA's TTY number is (877) 889-
5627). OSHA's Docket Office hours of operation are 8:15 a.m. to 4:45 
p.m., EST. The main text of the report, this Federal Register Notice 
and any news release will become available on the OSHA Web page at 
https://www.OSHA.gov. Electronic copies of this Federal Register 
Document, the full text of the report, comments and referenced 
documents are or will become available at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: General Information: Joanna Dizikes 
Friedrich, OSHA Directorate of Evaluation and Analysis, Room N-36412, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-1939. Technical inquiries about the Lead in 
Construction Standard: Maureen Ruskin, OSHA, Directorate of Standards 
and Guidance, Room N-3718, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210: telephone (202) 693-1955. Press 
inquiries: Kevin Ropp, OSHA Office of Communications, N-3637, 200 
Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-
1999.

SUMMARY: In 1993, in response to a statutory mandate (Sections 1031 and 
1032 of the Housing and Community Development Act of 1992, Pub. L. 102-
550), OSHA promulgated the Lead in Construction standard (29 CFR 
1926.62) as an interim final rule. Elevated blood lead levels (BLLs) 
can produce irreversible adverse health effects, and studies had shown 
lead disease in construction employees. The goal of the standard is to 
protect construction employees from lead-related diseases, which can 
result from exposure to lead dust or fumes.
    Construction employees are exposed to lead primarily when they 
remove lead-based paint (LBP) from structural steel bridges or 
buildings, engage in demolition of structures with LBP, engage in the 
removal of lead from buildings, or prepare some old residential units 
for painting or remodeling these units. A relatively small number of 
construction employees are exposed to lead when using molten lead to 
seal cables, lead-containing mortar, lead sheeting, repairing old 
plumbing, and performing work on older structures, as well as on 
shielding for ionizing radiation, radioactive materials, and X-rays. In 
1978, LBP was banned for use on residences or other buildings where 
consumers could be exposed; industrial use of LBP was phased out in the 
same period. Lead solder for water pipes was banned in 1988.
    The statute very specifically mandated the provisions in the 
standard. OSHA recognized, as it had when it adopted the general 
industry lead standard, that exposure patterns would vary widely among 
the different types of construction employees. Since the interim final 
rule was published, a number of studies have been conducted that 
document exposure levels and blood lead levels among construction 
employees. Based on the availability of more data and public 
recommendations, OSHA decided to conduct a review of 29 CFR 1926.62 to 
determine whether the standard should continue unchanged or whether it 
is possible to revise the standard to reduce the burden without 
reducing employee protection.
    The risks posed by exposure to lead are well documented. The 2005 
Agency for Toxic Substances and Disease Registry (ASTDR) Draft 
Toxicological Profile for Lead adds to the wealth of information by 
confirming the known health effects of lead and documenting new 
research, such as on the effects of lead when in combination with other 
metals and other toxic substances. Other research, such as the NIOSH 
studies of exposure pathways that can be as significant as inhalation 
thereby furthering employee exposures, indicate that we are continuing 
to uncover evidence that employees need protection from exposure to 
lead. Similarly, the comments identified a number of studies of 
exposure of employees in a variety of workplaces demonstrating the 
continuing need for the protection that the Lead in Construction 
standard provides. Based on the findings in this report and the 
evidence produced during this review process, OSHA concludes that for 
the hazards associated with lead in the construction industry, a 
mandatory standard remains necessary to adequately protect employees.
    During this study, no evidence has been presented to OSHA 
suggesting that employers are having difficulty or are not capable of 
complying with the Lead in Construction standard during most operations 
most of the time. Technologies needed to comply with the standard are 
readily and widely available. This look back study also concludes that 
the Lead in Construction standard has not had a negative economic 
impact on business, including small businesses, in virtually all 
sectors affected. The construction sector overall is growing in terms 
of profits, revenues and employment. OSHA finds that the Lead in 
Construction standard remains economically feasible.
    This regulatory review of the Lead in Construction standard meets 
the requirements of both Section 610 of the Regulatory Flexibility Act 
and Section 5 of Executive Order (EO) 12866. Under Section 610, this 
review examines whether the standard should be continued without 
change, rescinded, or amended to minimize any significant impact on a 
substantial number of small entities, taking into consideration the 
continued need for the rule, comments and complaints received regarding 
the rule, the complexity of the rule, whether the rule is duplicative 
and changes in technology and economic conditions since the issuance of 
the rule. Under Section 5 of EO 12866, this review examines whether the 
standard has become unjustified or unnecessary as a result of changed 
circumstances, and whether the standard is compatible with other 
regulations or is duplicative or inappropriately burdensome in the 
aggregate. This review also ensures that the regulation is consistent 
with the priorities and the principles set forth in EO 12866 within 
applicable law, and examines whether the effectiveness of the standard 
can be improved. To assist OSHA in this review, OSHA requested public 
comments on these issues on June 6, 2005 (70 FR 32739).
    Please note this report uses the phrase ``industrial 
construction,'' ``industrial painting,'' and similar terminology.

[[Page 54828]]

These phrases refer to construction work at industrial facilities and 
other non-building construction, such as bridges, pipelines, tunnels, 
tanks, etc. The phrases do not include employees in general industry, 
who are not covered by the Lead in Construction standard.
    This review of the Lead in Construction standard under Regulatory 
Flexibility Act section 610 finds the following:
    In 1993, OSHA estimated that 937,000 employees were exposed to lead 
in the construction industry. That included employees exposed below 
levels that would trigger the standard. OSHA estimates that, as of 
2003, there were 649,000 employees exposed at levels that may trigger 
application of the standard.
    OSHA regularly enforces the lead standard in the construction 
industry. Between 1993 and 2003, Federal OSHA and State-Plan States 
made a total of 4,384 inspections in construction that covered lead 
exposure and issued 12,556 citations.
    Less than 25 percent of housing units have lead paint on any 
element. This represents about 20 million housing units. It is not 
known how many commercial and industrial buildings have lead paint, but 
the age distribution of those buildings is similar to that of 
residential buildings. There are about 225,000 structural steel highway 
and railroad bridges in the U.S., and it is estimated that 90,000 have 
lead paint. Other industrial structures, such as tanks, may have lead 
paint. Older plumbing may use lead pipes or lead solder. Lead solder 
still has some uses; lead containing mortar is used in tanks containing 
acid; lead is used for some electric cable splicing, radiation shields, 
and for some other purposes. Construction employees may be exposed to 
lead in these areas.
    There is a continued need for the Occupational Safety and Health 
Administration (OSHA) Lead in Construction standard. This standard, 
mandated by statute, remains both justified and necessary to implement 
the statute's intent; that is, to reduce both lead exposures in 
construction employees and disease resulting from these lead exposures. 
The standard has reduced blood lead levels (BLLs) of exposed employees. 
Retention of the standard is necessary to continue to achieve that goal 
because the study revealed that certain construction jobs still have 
high airborne lead exposures, and compliance data indicate that there 
are still instances of non-compliance with the standard.
    Studies continue to show that elevated BLLs are associated with 
neurological effects, including reduced intelligence, changes in brain 
function, fatigue, impotence, and reductions in nerve conductivity. 
There are also systemic effects from lead exposures, such as changes in 
the level of circulating thyroid hormones and changes in immune system 
parameters. Other effects from lead exposures include reduced kidney 
function, increased blood pressure, gastrointestinal effects, 
cardiovascular effects, and anemia. There is evidence that lead is a 
reproductive toxin. The U.S. Department of Health and Human Services 
(DHHS) has determined that lead and lead compounds are reasonably 
anticipated to be human carcinogens, and the U.S. Environmental 
Protection Agency (EPA) has determined that lead is a probable human 
carcinogen. Furthermore, a recently published study of the general, 
U.S. adult population reports increases in both cardiovascular deaths 
and deaths from all causes at BLLs substantially lower than previously 
reported [i.e., an increase in mortality at BLLs >0.10 [mu]imo1/L 
(>=2[mu]g/dL)].
    A number of jobs in the construction industry create high airborne 
levels of lead. These include bridge repainting and repair, lead 
remediation, remodeling and renovation of older housing and commercial 
buildings, preparation for repainting of residences and other 
structures, repairs of older plumbing, and other jobs. Exposures to 
employees in bridge repainting can be in the 1000's of [mu]g/m,\3\ of 
lead, and paint preparation exposures can be in the 100's of [mu]g/
m,\3\ of lead. National Adult Blood Lead Epidemiology and Surveillance 
(ABLES) data and other studies show that some construction employees 
still have relatively high blood lead levels which may be indicative of 
disease. These data show that the standard has resulted in lower blood 
lead levels for construction employees. Although one study indicates 
that high airborne exposures did not lead to high blood lead levels for 
a group of residential painters, other studies indicate high blood lead 
levels in residential painters. No studies contradict Congress' 
conclusion that this standard is needed to protect construction 
employees.
    The evidence indicates that the Lead in Construction standard has 
not had a negative economic impact on business, including small 
businesses, in virtually all sectors affected. The construction sector 
overall is growing in terms of profits, revenues and employment. Small 
businesses are retaining their share of the business. Bridge painting 
is generally paid for by governmental entities that usually require 
bidders to meet the OSHA standard. Larger projects need to meet EPA 
requirements requiring experienced contractors who follow OSHA 
requirements. Lead remediation projects follow HUD requirements which 
require compliance with the OSHA requirements. Renovation and 
remodeling of older buildings containing lead are usually big enough 
jobs so that the costs of following the OSHA standard are relatively 
small in comparison to total costs.
    In addition to potential exposure to lead in bridge painting 
projects, lead paint is still used in some municipalities for traffic 
paints. However, studies have shown that exposures are minimal because 
of the nature of the equipment used. Substitutes are available and 
widely used through the United States; in fact, several jurisdictions 
prohibit the use of lead chromate paint. Therefore, OSHA expects the 
economic impact to be negligible.
    Residential repainting presents a more complex picture. Lead paint 
was banned after 1978; therefore, the standard has no impact on 
painting new units or repainting units built after 1978. There is 
relatively little lead paint on units built from 1941 to 1978; for most 
repainting jobs on units built between 1941 and 1978, an initial 
assessment that lead exposures are low is all that would be required, 
and therefore, the costs are manageable for small painting contractors. 
For some units built before 1941 and a few built from 1941 to 1978 lead 
exposure levels were high during preparation for repainting. In these 
cases, the standard would impose costs to reduce the hazards to which 
the painters and their families were exposed. For larger and better 
quality jobs, the costs to comply with the standard are manageable for 
small painting contractors. However, for smaller, low quality jobs, a 
self-employed painter not covered by the standard could underbid a 
contractor who followed the standard, and for this limited category of 
jobs, there could be a negative economic impact.
    On Jan. 10, 2006, EPA proposed regulations for all rental 
properties and owner-occupied housing containing children under 6 to 
protect the residents from lead exposure. The practical effect of those 
regulations will be to encourage the hiring of painting contractors who 
obey the OSHA standard, and therefore, those small painting contractors 
who comply with the OSHA Standard will then be more likely to be hired. 
Steps OSHA will be taking to further reduce economic impacts are 
discussed below.

[[Page 54829]]

    The standard is not overly complex. It follows the format and 
principles of other OSHA health standards. However, OSHA will review 
its compliance assistance and guidance materials to determine the need 
for enhancements. OSHA also will review the adequacy of how these 
materials are disseminated and additional means for reaching affected 
populations.
    The OSHA Lead in Construction standard does not conflict with other 
regulations. Both EPA and HUD have major regulations regarding lead, 
the EPA to reduce lead in the environment and HUD to reduce lead 
exposure in residences, especially to children. The OSHA and HUD 
regulations tend to be complementary. Following OSHA regulations will 
reduce lead dust in residences which both protects the painter or 
remodeller and the children who live in that unit. The relationship 
with EPA regulations is more complex. For example, EPA requires the use 
of enclosures on bridge painting to prevent the spread of lead to the 
environment. This tends to increase airborne exposures in the 
employee's breathing zone, making rigorous adherence to the OSHA 
standard crucial for protecting the employee.
    Though the HUD and EPA regulations do not conflict with OSHA's 
standard, commenters made two suggestions which OSHA will seriously 
consider and discuss with EPA, HUD, and NIOSH. First, many of the 
commenters suggested that the agencies develop a joint training program 
which would cover the requirements of each of the agencies. Second, 
some commenters suggested that OSHA consider modifying its initial 
assessment monitoring to be more integrated with HUD and EPA 
approaches.
    Several technological changes will make it easier to comply with 
the standard. The reduced use of lead in paint, piping, solder and 
elsewhere will in the long term reduce employee exposure to lead. Low-
volume/high-velocity exhaust systems adapted to portable hand tools can 
increase their effectiveness and reduce their cost of operation. Small 
volumes of air at relatively high velocities are used to control dust. 
Portable trailers with showers and clean change facilities have become 
more available and cheaper to rent, reducing the likelihood that 
employees will contaminate ``clean areas'' of the project (including 
non-lead areas, and sanitary/eating/drinking facilities), themselves, 
and other employees, and reducing the chance that lead would be tracked 
home.
    OSHA received a number of extensive comments which are summarized 
in Chapter 8. Commenters representing NIOSH, HUD, state EPAs, the 
Building and Construction Trades Division of the AFL-CIO, the New York 
State Occupational Health Clinic Network, and a number of public 
interest and environmental protection professional groups stressed the 
need for the standard, the studies demonstrating the negative health 
effects of lead, and the high levels that construction employees can be 
exposed to if they are not properly protected. They suggested ways that 
the standard should be strengthened and expressed how important it is 
that the OSHA, HUD, and EPA regulations all work together.
    The National Association of Home Builders, U.S. Chamber of 
Commerce, and U.S. Small Business Administration suggested that OSHA 
have a rulemaking to reconsider the data and make the standard more 
cost-effective. Congress not only directed OSHA to issue the Lead in 
Construction standard, it also specified in considerable detail what 
should be included in this standard in response to lead poisoning of 
construction employees. Congress did not specifically direct OSHA to 
engage in further rulemaking like it did when it directed OSHA to issue 
the Hazardous Waste standard. The health studies and exposure 
information since the standard was issued do not indicate any less need 
for the standard, and the standard is consistent with other health 
standards. Therefore, a very large-scale, OSHA resource-intensive 
rulemaking for lead in construction, which would most likely result in 
a rule very similar to the rule we have now, does not appear to be a 
wise use of OSHA's limited rulemaking resources.
    Many commenters made suggestions intended to make the standard more 
effective in protecting employees and more cost-effective. These 
include: issuing more extensive outreach and guidance materials, 
including materials in Spanish and other relevant languages; developing 
a joint training curriculum covering OSHA, HUD, and EPA requirements; 
developing a clearer initial assessment approach, to be better 
integrated with HUD and EPA requirements; reducing any duplication 
between regulations; and making the standard more cost-effective for 
small businesses, by encouraging the development of less costly ways to 
meet industrial hygiene requirements, so that lead will not contaminate 
the employees, clean areas of the project (including, for example, non-
lead areas, sanitary/eating/drinking facilities, etc.) and reducing the 
chance that lead would be tracked home. OSHA will review these 
suggestions for possible implementation.
    The Executive Order 12866 review of the Lead in Construction 
standard indicates that:
    The Lead in Construction standard, mandated by statute, remains 
both justified and necessary to implement the statute's intent; that 
is, to reduce both lead exposures in construction employees and disease 
resulting from these lead exposures. The standard has reduced blood 
lead levels of exposed employees. Its retention is necessary to 
continue to achieve that goal because construction jobs still have high 
airborne lead exposures, and compliance data indicate that there are 
continuing violations of the standard. Therefore, the standard is 
consistent with EO 12866.
    The standard is consistent with other OSHA standards. Also, it is 
not in conflict with and is generally consistent with EPA regulations 
to reduce environmental exposures and with HUD regulations to reduce 
lead exposures in children. Indeed, the OSHA standard is often 
complementary to those regulations. As discussed, OSHA will review 
initial assessment requirements to see if a more unified and cost-
effective approach can be developed.
    The standard is not inappropriately burdensome in the aggregate. 
The one narrow area discussed above where there may be some burden 
(i.e., house painters exposed to lead while performing small jobs) will 
be ameliorated by better outreach materials, better guidance on initial 
assessment, and the finalization of new EPA regulations.
    The effectiveness of the Standard could be improved by making 
outreach materials available in Spanish and other relevant languages. 
Also, after consultation with EPA and HUD, OSHA will consider the 
development of unified training materials and exploring a more unified 
approach to initial assessment.

Conclusions and Recommendations

Conclusions

    OSHA concludes that the Lead in Construction standard is necessary 
to protect construction employees from lead disease. Studies continue 
to demonstrate that elevated lead exposures result in disease and that 
some construction jobs involve high airborne lead exposures. The 
standard has resulted in reduced blood lead levels for construction 
employees.
    The Lead in Construction standard is also consistent with the 
Presidential priority ``to eliminate childhood lead

[[Page 54830]]

poisoning in the United States as a major public health problem by the 
year 2010,'' because the standard ``also benefits the children of those 
workers who may have been placed at risk via take-home exposures (such 
as lead dust on work clothing).''

Recommendations

    As a result of this look back review and the comments received from 
participants, OSHA is considering the following actions to improve the 
effectiveness of the standard and make it more cost-effective:

    OSHA will review its compliance assistance materials to 
determine the need for updates. OSHA also will review the adequacy 
of how these materials are disseminated and additional means for 
reaching affected populations.
    OSHA will consult with EPA and HUD to determine the value of a 
unified training curriculum and whether a course can be developed to 
meet the requirements of all three agencies. OSHA also will attempt 
to develop interpretations for its initial assessment requirements 
[29 CFR 1926.62(d)], in order to integrate them better with HUD and 
EPA requirements, reduce duplication, and make better use of 
historical data; these interpretations should help reduce costs and 
simplify the standard's requirements for small businesses.

    Signed at Washington, DC, this 24th day of September, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.
 [FR Doc. E7-19096 Filed 9-26-07; 8:45 am]
BILLING CODE 4510-26-P