December 12, 1990

MEMORANDUM FOR:     MICHAEL G. CONNORS
                   REGIONAL ADMINISTRATOR

THROUGH:            LEO CAREY, DIRECTOR
                   OFFICE OF FIELD PROGRAMS

FROM:               PATRICIA K. CLARK, DIRECTOR
                   DIRECTORATE OF COMPLIANCE PROGRAMS

SUBJECT:            Interpretation of Lead Standard

This is in response to your memorandum of October 9, requesting an interpretation of 29 CFR 1910.1025(j)(2)(ii) as read with 1910.1025(k)(1)(i)(C) and (D).

Paragraph (j)(2)(ii) states that 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), the employer shall provide a second (follow- up) blood sampling test within two weeks after the employer receives the results of the first sampling test.

Paragraph (k)(1)(i)(C) requires medical removal when a periodic and a follow-up blood sample test indicate that the employee's blood lead level is at or above 60 ug/100g of whole blood.

Paragraph (k)(1)(i)(D) requires medical removal when the average of the last three blood sampling tests indicate the employee's blood lead level is at or above 50 ug/100g of whole blood, unless the last blood sampling test indicates a blood lead level at or below 40 ug/100g of whole blood.

It is the Agency's position, upon carefully reading the standard, that a follow-up blood lead level testing is required within two weeks of the receipt of the first blood sampling test which exceeds 60 ug/100 g of whole blood. The follow-up test is intended to assure that no unnecessary removals occur.

In response to your concerns, 29 CFR 1910.1025 paragraph (k)(1)(i)(C) , which references the follow-up test, is therefore applicable. By contrast, paragraph (k)(1)(i)(D) does not reference the follow-up test and requires an average of three tests of 50 ug/100 g of whole blood for medical removal. The lead standard does not require under paragraph (k)(1)(i)(D) any follow-up tests within two weeks. If you need further assistance, please do not hesitate to contact us again.



October 9, 1990

MEMORANDUM FOR:     Patricia K. Clark, Director Designate
                   Directorate of Compliance Programs

THROUGH:            Leo Carey, Director Office of Field Programs

FROM:               Michael G. Connors Regional Administrator

SUBJECT:            REQUEST FOR INTERPRETATION OF LEAD STANDARD

Attached please find a memorandum and supporting documents from our Aurora Area Office in which they request an interpretation of the lead standard by the National Office in order to support a contested case involving Johnson Controls. At issue is the interpretation of 29 CFR 1910.1025(j)(2)(ii) as read with 1910.1025(k)(1)(i)(C) and (D). It is our position that these paragraphs require follow-up blood lead level testing within two weeks of receipt of the first blood sampling test which exceeds 50 ug/100g of whole blood.

We would appreciate any guidance your office can provide to clarify this matter. As the case is currently in litigation, time is somewhat critical. Please feel free to contact Ann Williams of my staff at FTS 353-2220 if additional information is required.

Attachment


 

Date:         October 1, 1990

Reply to Attn of:      Kenneth J. Yotz

To:           Michael G. Connors, Regional Administrator

Attn:         Acting ARA/FSO

Subject:      Johnson Controls--Interpretation of Lead Standard for
             Litigation

The attached memo references our dispute with Johnson Controls in a case which is currently in contest. I believe that 29 CFR 1910.1025(k)(1)(C) and (D) both are applicable. The company chooses to refer only to (C) and thus argues that they are not in violation of (D). We believe that Johnson is now selectively reading the standard for their own purposes and, further, the fact that they are not even in compliance with (C) supports a violation as well as the classification as willful.

We also believe that both (C) and (D) are applicable due to the fact that the heading of each reads, "...and thereafter." In addition, the preamble to the standard FR page 54460, 11/28/78, clearly states that both sections are applicable.

However, the Solicitor's Office has again requested an interpretation from RO/NO. No doubt, they will want us to survey each RO (each AO?) to find out how they are interpreting and enforcing this standard. It is with great reluctance that we approach you for said interpretation since to not do so would provide them with an easy excuse to vacate. I have advised them that the standard and preamble are clear in this respect but they are insistent in further pursuit and information even before the complaint is filed.

DATE:         October 1, 1990

TO:           GARY ANDERSON, Acting ARA for Federal-State Operations

FROM:         KENNETH J. YOTZ Area Director

SUBJECT:      Johnson Controls, Inc - Request For Assistance In Litigation

Enclosed is a copy of citations issued by our office to the subject company for apparent violations of the OSHA lead standard for, in part, failing to conduct subsequent blood lead tests within two weeks of the receipt of any test result which exceeded the applicable numerical criterion for medical removal, which is 50ug/100gm of whole blood.

As discussed between Ann Williams of your staff and John Nichols of my staff I am requesting assistance on interpretation of Section 29CFR1910.1025(j)(2)(ii) of the lead standard, which deals with frequency of blood tests, as triggered by the numerical criteria referenced in Section 29CFR1910.1025(k)(1)(i). In a memo from John Secaras to me, a copy of which is enclosed, solicitor Kevin Koplin relates the Respondent's argument that the two-week retesting is triggered by a result above 60ug/100gm whole blood, rather than 50ug, based on the reference in sub-paragraph .1025(k)(1)(i)(c) to the term "follow-up blood sampling test", which term is absent from sub-paragraph .1025(k)(1)(i)(d).

Mr. Koplin considers the company's argument colorable and thus in order to resolve the conflicting interpretations all information on the Agency's position are needed from the Regional and National Offices.

If you have any questions please call John Nichols.

        U.S. Department of Labor
        Office of the Solicitor
        230 South Dearborn Street
        Chicago, Illinois 60604
        Reply to the Attention of: SOL:KK:mm
        Telephone:  312/353-4995

August 31, 1990

MEMORANDUM FOR:    KENNETH YOTZ, Area Director
                  OSHA-Aurora, Illinois
                  Attn: John Nichols, Supervisor

FROM:              JOHN H. SECARAS Regional Solicitor

SUBJECT:           Litigation in Johnson Controls Inc. OSHRC Docket
                  No. 90-2179 SOL #0500-90-28147 Inspection No. 103204459

This is to request your assistance regarding the interpretation of a provision of the lead standard and in obtaining an expert witness regarding the nature and feasibility of engineering controls regarding overexposure to lead in this case. This will also confirm Mr. Koplin's discussion of August 28, 1990 with Mr. Nichols of your staff regarding the grouping of recordkeeping violations contained in Willful Citation No. 4, Item 1 with those cited in Willful Citation No. 4, Item 2.

In Willful Item 4, Citation No. 4, Respondent is charged with a violation of 29 CFR 1910.1025(j)(2)(ii) as a result of conducting follow-up blood sampling tests more than two weeks after receipt of the first test indicating a blood lead level above 50 micrograms. The requirement to resample is triggered by the numerical criteria contained in the medical removal provisions of the lead standard. Respondent first argues that medical removal is required where 1) a periodic test and follow-up test show 60 micrograms or above or 2) where the average of three tests taken in a six month period exceeds 50 micrograms. See 1910.1025(k)(1)(i)(c) and (d) respectively. This contention appears to be supported by the language of the regulation. Respondent then argues that it is a finding of 60 micrograms that triggers a follow up since it is subsection (c) and not (d) which specifically refers to a "follow-up blood sampling test." Subsection (d), which uses a 50 microgram criteria, refers to an average of three tests over a six month period and not to a follow up blood sampling test.

Respondent appears to have a colorable argument regarding the use of 60 micrograms as the criteria for requiring a follow-up test. The conflicting interpretations of OSHA and the Respondent regarding the resampling requirement must be resolved. It is requested that you obtain all information regarding the agency's position on this issue from OSHA's Regional and National Offices. It is also requested that you determine if Respondent has ever been cited for violating the resampling provisions by refusing to re- test on the basis of a 50 micrograms sample. (This is to be distinguished from a violation based on a failure to test after a 60 microgram sample)

Item 3(a) of Willful Citation No. 4 concerns engineering and work practice controls to reduce employment exposure to lead. To successfully litigate this issue it will be necessary to obtain an expert witness regarding the nature and feasibility of engineering controls. Please identify possible expert witnesses within 45 days.

On August 28th, Mr. Koplin's discussed the recordkeeping citation with Mr Nichols of your staff. After reviewing the recordkeeping citations and noting that both deal with unrecorded occupational illness, it is recommended that citation item number 1 be withdrawn and be grouped as part of item two with each test in excess of 50 micrograms listed separately. A single citation identifying unrecorded occupational illnesses is consistent with the BLS guidelines' interpretation of an occupational illness as an abnormal condition.

If you have any questions regarding the matters discussed above, please contact Mr. Koplin of my staff at FTS 353-4995.

Reference:  U.S. Department of Labor
           Occupational Safety and Health Administration
           Citation and Notification of Penalty
           U.S. Department of Labor - OSHA
           344 Smoke Tree Business Park
           North Aurora, IL.  60542

To:         Johnson Controls, Incorporated and its successors
           P.O. Box 270
           Geneva, IL  60134
           Inspection Number - 103204459
           Citation Number 3 page 1 of 1 Citation Number 4 pages 1 - 11