[Federal Register Volume 70, Number 107 (Monday, June 6, 2005)]
[Proposed Rules]
[Pages 32739-32742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11149]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. H023]
RIN 1218-AC18


Notice of a Regulatory Flexibility Act Review of Lead in 
Construction

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Notice of a section 610 review; request for comments.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
conducting a review of the lead in construction standard under section 
610 of the Regulatory Flexibility Act and section 5 of Executive Order 
12866 on Regulatory Planning and Review. In 1993, in response to a 
statutory mandate to adopt a standard to protect construction workers 
from lead exposures, OSHA promulgated a standard that requires testing 
of construction sites for lead exposures, provisions to protect workers 
from exposure where lead is present, and medical monitoring of exposed 
workers. The purpose of this review is to determine whether there are 
ways to modify this standard to make implementation more practical, to 
reduce regulatory burden on small business, and to improve its 
effectiveness, while still protecting worker health. OSHA solicits 
comments from the public on these and other relevant issues.

DATES: Written comments to OSHA must be sent or postmarked by September 
6, 2005.

ADDRESSES: You may submit three copies of your written comments to the 
OSHA Docket Office, Docket No. H023, Technical Data Center, Room N-
2625, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone (202) 693-2350. If your written 
comments are 10 pages or fewer, you may fax them to the OSHA Docket 
Office at (202) 693-1648. You do not have to send OSHA a hard copy of 
your faxed comments. Supplemental information such as studies and 
journal articles cannot be attached. Instead, three copies of each 
study, article, or other supplemental document must be sent to the OSHA 
Docket Office at the address above. These materials must clearly 
identify the associated comments to which they will be attached in the 
docket by the following information: Name of person submitting 
comments; date of comment submission; subject of comments; and docket 
number to which comments belong.
    You may submit comments electronically at either of the following:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     OSHA Web Site: http://ecomments.osha.gov. Follow the 
instructions for submitting comments on OSHA's Web page.

Please note that you may not attach materials such as studies or 
journal articles to your electronic comments. If you wish to include 
such materials, you must submit three copies of the material to the 
OSHA Docket Office at the above address. When submitting such material 
to the OSHA Docket Office, you must clearly identify your electronic 
comments by name, date, subject, and docket number so that the Docket 
Office can attach the materials to your electronic comments.
    Note that security-related problems may result in significant 
delays in receiving comments and other materials by regular mail. 
Telephone the OSHA Docket Office at (202) 693-2350 for information 
regarding security procedures concerning delivery of materials by 
express delivery, hand delivery, and messenger service.
    All comments and submissions will be available for inspection and 
copying in the OSHA Docket Office at the address above. Most comments 
and submissions will be posted on OSHA's Web page (http://www.osha.gov). Contact the OSHA Docket Office at (202) 693-2350 for 
information about materials not available on the OSHA Web page and for 
assistance in using this Web page to locate docket submissions. Because 
comments sent to the docket or to OSHA's Web page are available for 
public inspection, the Agency cautions interested parties against 
including in these comments personal information, such as social 
security numbers and birth dates.

FOR FURTHER INFORMATION CONTACT: Joanna Dizikes Friedrich, Directorate 
of Evaluation and Analysis, Occupational Safety and Health 
Administration, Room N-3641, 200 Constitution Avenue, NW., Washington, 
DC 20210, Telephone (202) 693-1939, Fax (202) 693-1641.

SUPPLEMENTARY INFORMATION:

Background

    In 1971, in accordance with section 6(a) of the Occupational Safety 
and Health Act (OSH Act), OSHA adopted standards incorporating a 
permissible exposure limit (PEL) of 200 [mu]g/m\3\ to regulate 
occupational exposure to lead in general industry, 29 CFR 1910.1000, 
and in the construction industry, 29 CFR 1926.55. In both standards, 
the PEL had to be achieved by engineering and work practice controls, 
where feasible. In 1978, after a section 6(b) rulemaking, OSHA 
promulgated a final lead standard for general industry which lowered 
its PEL to 50 [mu]g/m\3\, and included requirements for medical 
surveillance, monitoring, and other provisions, 29 CFR 1910.1025. The 
1978 lead standard in paragraph (a) excluded the construction industry 
from its coverage. OSHA, in the preamble, explained that it had 
exempted the industry because of insufficient information in the record 
to resolve issues specific to conditions in the construction industry. 
Therefore, after 1978, there was a less stringent lead standard for 
employees in the construction industry than for employees in general 
industry.
    OSHA, in the fall of 1990, announced it would develop a proposal 
for a comprehensive standard regulating occupational lead exposure in 
construction. To expedite that rulemaking, in October 1992, Congress 
passed sections 1031 and 1032 of Title X of the Housing and Community 
Development Act of 1992 (``the Act,''

[[Page 32740]]

Pub. L. 102-550). In those sections, Congress provided that:
    (1) No later than 180 days after enactment (April 26, 1993), the 
Secretary of Labor must issue an interim final lead standard covering 
the construction industry.
    (2) The standard must be as protective as the worker protection 
guidelines for identification and abatement of lead-based paint (LBP) 
in public and Indian housing issued by the Department of Housing and 
Urban Development (HUD) (Revised Chapter 8, ``HUD Guidelines; (55 FR 
38973, August 1991).
    (3) The interim final standard is to take effect upon ``issuance,'' 
except that the standard may include a reasonable delay in the 
effective date.
    (4) The standard will have the effect of an OSH Act standard and 
will apply until a final standard becomes effective under section 6 of 
the OSH Act.
    (5) The Secretary of Labor in developing this standard must consult 
and coordinate with the Environmental Protection Agency (EPA) to 
achieve maximum enforcement of the Toxic Substances Control Act (TSCA) 
and the OSH Act while minimizing duplication.
    Congress indicated that OSHA was to include medical surveillance, a 
preference for engineering controls, housekeeping, air monitoring, 
recordkeeping, and hazard communication provisions similar to those in 
the Guidelines and general industry lead standard, except insofar as it 
was necessary to adapt requirements of the interim final to conditions 
in the construction industry. OSHA promulgated, as an interim final 
rule, Sec.  1926.62, the lead in construction standard on May 4, 1993 
(58 FR 26590), which included these and other requirements. The final 
rule became effective June 3, 1993.

Regulatory Review

    In 2002, the Office of Management and Budget (OMB) solicited 
suggestions from the public for regulations that should be reviewed to 
determine if the regulations were still needed or could be revised to 
mitigate the burden imposed. The National Association of Home Builders 
recommended that OSHA review the lead in construction standard to 
determine whether it has become unnecessary, to seek stakeholder input, 
and to assess the economic impact on small entities. In response, OSHA 
is reviewing the lead in construction standard under section 610 of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and section 5 of 
Executive Order 12866 (59 FR 51739, October 4, 1993).
    The purpose of a review under section 610 of the Regulatory 
Flexibility Act: (S)hall be to determine whether such rule should be 
continued without change, or should be rescinded, or amended consistent 
with the stated objectives of applicable statutes to minimize any 
significant impact of the rule on a substantial number of small 
entities.
    The Agency shall consider the following factors:
    (1) The continued need for the rule;
    (2) The nature of complaints or comments received concerning the 
rule from the public;
    (3) The complexity of the rule;
    (4) The extent to which the rule overlaps, duplicates or conflicts 
with other Federal rules; and, to the extent feasible, with State and 
local governmental rules; and
    (5) The length of time since the rule has been evaluated or the 
degree to which technology, economic conditions, or other factors have 
changed in the areas affected by the rule.
    The review requirements of section 5 of Executive Order 12866 
require agencies:
    To reduce the regulatory burden on the American people, their 
families, their communities, their State, local and tribal governments, 
and their industries; to determine whether regulations promulgated by 
the [Agency] have become unjustified or unnecessary as a result of 
changed circumstances; to confirm that regulations are both compatible 
with each other and not duplicative or inappropriately burdensome in 
the aggregate; to ensure that all regulations are consistent with the 
President's priorities and the principles set forth in this Executive 
Order, within applicable law; and to otherwise improve the 
effectiveness of existing regulations.
    An important step in the review process involves the gathering and 
analysis of information from affected persons about their experience 
with the rule and any material changes in circumstances since issuance 
of the rule. This notice requests written comments on the continuing 
need for the lead in construction standard, its adequacy or inadequacy, 
its effectiveness in protecting construction workers, its small 
business impacts, and all other issues raised by section 610 of the 
Regulatory Flexibility Act and section 5 of the Executive Order. It 
would be particularly helpful for commenters to address how the 
applicability or requirements could be changed or tailored to reduce 
the burden on employers whose employees rarely, if ever, are exposed to 
lead while continuing to protect workers who are exposed during 
construction projects.

Lead Use in Construction

    In 2001, the construction industry had 691,000 firms employing 
about 6.5 million workers, about 5 million of whom were construction 
workers.\1\ In addition, the construction industry includes about 2 
million self-employed independent contractors.\2\ At the end of 2002, 
there were 697,514 construction firms employing 6,953,001 workers.\3\ 
Assuming that the ratio of construction workers to the total number of 
employees in the construction industry is the same as in 2001, there 
were approximately 5.4 million construction worker employees in 2002. 
In addition, there were approximately 2,071,317 self-employed 
construction workers in 2002.\4\ Furthermore, according to the Bureau 
of Labor Statistics (BLS), there were 6.965 million employees and 5.3 
million production workers in construction in 2004.\5\
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    \1\ United States Census Bureau, Economic Survey 2001.
    \2\ Ibid.
    \3\ United States Census Bureau, Economic Census 2002.
    \4\ Ibid.
    \5\ United States Department of Labor, Bureau of Labor 
Statistics, Employment Statistics 2004.
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    For the purpose of industrial classification, the construction 
industry is divided into construction of buildings, heavy and civil 
engineering construction, and specialty trade contractors. For the 
purpose of considering the lead in construction standard; however, it 
is more useful to focus on activities where lead exposures are most 
likely to occur: paint removal, building and bridge renovation, 
plumbing and water system repair and replacement. The use of lead-based 
paint (LBP) in residences and other buildings where consumers could be 
exposed was banned in 1978; the use of lead solder and piping in public 
water systems and buildings was banned in 1988.

Health Effects

    As detailed in Appendix A to Sec.  1926.62, lead is a potent 
systemic poison. A short-term acute dose of lead can lead to acute 
encephalopathy, seizures, coma, and death. Chronic overexposure to lead 
may result in severe damage to the blood-forming, nervous, urinary and 
reproductive systems. Chronic overexposure to lead also impairs the 
reproductive systems of both men and women. Children born of parents, 
either one of whom were exposed to excess lead levels, are more likely 
to have birth defects, mental

[[Page 32741]]

retardation, behavioral disorders, or die during the first year of 
childhood.\6\
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    \6\ 29 CFR 1926.62, Appendix A, Section II.
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    Exposures to lead in construction work have resulted in high blood 
lead levels (BLLs) in employees. According to the Centers for Disease 
Control and Prevention, clinical symptoms of lead poisoning usually 
occur when BLLs exceed 40 [mu]g/dL, though lower levels may have 
adverse effects. In 1988, OSHA found that five of nine workers employed 
to demolish a bridge had BLLs from 58 [mu]g/dL to 160 [mu]g/dL.\7\ Four 
workers at a 1992 bridge demolition in Georgia where exposures were 
measured at 10 times the permissible limit had BLLs that ranged from 59 
[mu]g/dL to 93 [mu]g/dL.\8\ In 1994, eight workers who had been 
sandblasting the interior of 100-year-old Texas building were found to 
have BLLs that ranged from 15 [mu]g/dL to 245 [mu]g/dL (the worker with 
the 15 [mu]g/dL had been at the site for only a week).\9\ A 1994 
physicians monitoring database that tracked 373 bridge workers found 
that nine percent of the workers had BLLs above 50 [mu]g/dL.\10\ An EPA 
study in the late 1990s on residential renovation and remodeling 
workers found less evidence of elevated BLLs among these workers, which 
may be the result of the subjects' relatively short-term and infrequent 
exposure to high levels of lead dust.\11\
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    \7\ CDC, ``Lead Poisoning in Bridge Demolition Workers--
Massachusetts,'' MMWR, October 13, 1989/38)40): 687-688, 693-694.
    \8\ CDC, ``Lead Poisoning in Bridge Demolition Workers--Georgia, 
1992,'' MMWR, May 28, 1993/42(20); 388-390.
    \9\ CDC, ``Epidemiological Notes and Reports Lead Poisoning 
Among Sandblasting Workers--Galveston, Texas, March 1994,'' MMWR, 
January 27, 1995/44(03); 44-45.
    \10\ CDC, ``Current Trends Controlling Lead Toxicity in Bridge 
Workers--Connecticut, 1991-1994,'' MMWR, February 3, 1995/44(04); 
76-79.
    \11\ ``Lead Exposure Associated with Renovation and Remodeling 
Activities, Final Summary Report,'' EPA 747-S-00-001, January 2000.
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Prevalence of Lead

    Although lead based paint (LBP) was not banned at the national 
level until 1978, its use was not widespread on residential interiors 
after 1940. Use of LBP was more common on exteriors. Overall, between 
21 percent to 25 percent of U.S. housing stock of about 120 million 
units has some LBP, but there is considerable regional variation 
primarily related to age of the housing stock. A HUD study of pre-1999 
housing reported that in the Northeast and Midwest 36 percent of that 
housing has LBP hazards compared with about 16 percent of the housing 
in South and West. The study indicated that there is no difference 
between large urban and small urban and rural areas, but low-income 
housing is more likely to have LBP hazards (35 percent) than middle to 
upper income housing (19 percent).\12\
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    \12\ Jacobs, David E., et al., ``The Prevalence of Lead-Based 
Paint Hazards in U.S. Housing,'' Environmental Health Perspectives, 
110: A599-A606 (2002).
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    The prevalence of LBP in the housing stock is relevant because 
construction workers engaged in renovation and remodeling work may be 
exposed to lead. This is particularly true for painters, the specialty 
trade most likely to be disturbing significant amounts of LBP. A 
painting contractor's employees could work on a substantial number of 
separate projects in a year. In some areas, most of the projects may 
not involve potential LBP exposures, but in other areas many projects 
could expose workers to lead.
    In some industrial construction, the likelihood of lead exposures 
is greater. The U.S. has about 200,000 structural steel bridges; 
bridges built prior to the 1970s generally had lead-based paint 
coatings. When these bridges are cleaned and repainted the LBP is 
removed, which is usually done by abrasive blasting that produces high 
concentrations of lead. Similarly there are thousands of water and 
chemical storage tanks that were painted with LBP and require LBP 
removal before repainting. Exposed steel structures, such as sports 
stadiums, and pipelines also may require LBP removal. These projects 
share the characteristic of involving potential exposure to high levels 
of lead over months. Repair and renovation of older municipal water 
supply systems may result in lead exposure because lead piping was 
often used.

Other Regulations

    Other factors OSHA must consider in this lookback are the 
requirements imposed by other Federal agencies on lead abatement and 
lead pollution. Both the EPA \13\ and HUD \14\ have programs that 
address lead abatement to limit the exposure of residents, particularly 
children, who are susceptible to illness from lead exposure. EPA \15\ 
and the states also bar the release of lead to water, which affects 
construction projects over or next to waterways.
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    \13\ 40 CFR part 745.
    \14\ 24 CFR part 35.
    \15\ 40 CFR 141.43; 40 CFR part 141, subpart I.
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Request for Comments

    OSHA is seeking comments and information on the following questions 
and all other issues raised by section 610 of the Regulatory 
Flexibility Act and section 5 of the Executive Order. Specific data on 
the issues, questions, and relevant projects are particularly helpful. 
OSHA understands that in many cases, commenters may be able to provide 
only anecdotal evidence and welcomes that information as well. OSHA 
also requests comments on current lead exposures of construction 
workers, current health data, and the effectiveness of current controls 
in protecting workers.
    The following questions are arranged by topic. Your answers should 
be keyed to the topics and, where possible, the specific question.

Cost Issues

    1. What does a lead testing and protection program cost 
construction employers? (This includes, for example, the costs for 
monitoring, medical surveillance, respirators, and the other costs 
required by the Standard.) Which elements impose the highest/lowest 
costs? Indicate the type of construction project.
    2. How much does compliance with the OSHA standard affect the cost 
of a project for the consumer? Indicate the type of construction 
project.
    3. Does lead abatement affect the value of a housing unit? If so, 
by how much or what percentage?

Compliance Issues

    4. How do employers determine whether LBP is present at a site? How 
often is the site tested for lead prior to the start of a project? On 
what basis is the decision to test made? Please identify the type of 
site.
    5. How much time does it take for initial site testing results to 
be known?
    6. How often is LBP identified? At what percentage of sites is LBP 
identified?
    7. When LBP is found, how widespread is it? Which parts of housing 
units are most likely to have LBP and deteriorated LBP?
    8. How often are the action levels of the OSHA standard exceeded?
    9. Do you measure worker blood lead levels? If so, please submit 
data.
    10. Are there confusing, conflicting, or duplicative requirements 
in the OSHA, EPA, and HUD programs that could be clarified?

Renovation/Remodeling Industry Structure Issues

    11. How much time do your renovation/remodeling and painting 
projects typically take?
    12. How many separate projects (separate residential/commercial 
units) do you complete in a year?
    13. Where there is deteriorated paint, how much time does it 
normally take you to prepare the surface for

[[Page 32742]]

repainting? What percentage of the total project is this?
    14. What is the annual rate of your employee turnover?
    15. What is the average age of the units on which you have worked?
    16. Are there sources of lead exposure in construction other than 
LBP and older plumbing, piping, and solder?
    17. If your firm specializes in lead abatement, what are its 
characteristics (e.g., number of employees, size, total revenue, 
percent of business that performs lead abatement, etc.)?
    18. Do you know of data or studies on the extent to which older 
structures have already been renovated (e.g., window change-out)? If 
so, please submit the information.

Industrial Construction Issues

    19. Where is LBP being used and on what structures?
    20. What is the average length of time for your project? What is 
the length of your shortest project? What is the length of your longest 
project?
    21. What is the annual rate of employee turnover? How many 
employees do you have, and what are your annual revenues?
    22. Are there elements of the standard that pose particular 
compliance problems?
    23. Have there been technological changes or improvements that 
facilitate lead removal and compliance? If so, what impact have they 
had on the cost of lead removal and employee exposure levels?
    24. Are there areas where additional employee protections are 
needed?

Health Issues

    25. Can you provide data or studies subsequent to the 1993 Lead in 
Construction Standard that provide both air lead exposure and blood 
lead levels for construction workers?
    26. Can you provide data or studies subsequent to the 1993 Lead in 
Construction Standard that address the short-term and long-term health 
effects of intermittent and/or continuing exposures to lead?
    27. Are current monitoring, respirator, engineering controls, and 
medical surveillance requirements protecting workers from lead 
exposures?

Compliance Assistance

    28. Is there additional compliance assistance or outreach that OSHA 
could provide to help employers and workers understand and comply with 
the Standard?
    Comments must be mailed or submitted by September 6, 2005. Comments 
should be submitted to the addresses and in the manner specified at the 
beginning of this notice.

    Authority: This document was prepared under the direction of 
Jonathan L. Snare, Acting Assistant Secretary of Labor for 
Occupational Safety and Health, 200 Constitution Avenue, NW., 
Washington, DC 20210. It is issued under section 610 of the 
Regulatory Flexibility Act (5 U.S.C. 610) and section 5 of Executive 
Order 12866 (59 FR 51724, October 4 1993).

    Signed in Washington, DC, this 27th day of May, 2005.
Jonathan L. Snare,
Acting Assistant Secretary, Occupational Safety and Health 
Administration.
[FR Doc. 05-11149 Filed 6-3-05; 8:45 am]
BILLING CODE 4510-26-P