December 16, 1994

MEMORANDUM FOR: PATRICIA K. CLARK

THROUGH: JOHN B. MILES, JR., DIRECTOR DIRECTORATE OF COMPLIANCE PROGRAMS

FROM: RUTH E. MCCULLY, DIRECTOR OFFICE OF HEALTH COMPLIANCE ASSISTANCE

SUBJECT: REQUEST FOR INTERPRETATION OF THE INTERIM FINAL LEAD IN CONSTRUCTION STANDARD

This letter is in response to your memorandum of June 23, requesting an interpretation of the Interim Final Lead in Construction standard as it relates to welding on painted surfaces. We apologize for the delay in responding to you.

Your correspondence raised a number of interesting points between the 1926.354 and 1926.62 standards. The scope of the standard in 1926.62(a) states in part that:

"This section applies to all construction work where an employee may be occupationally exposed to lead."

In reviewing the scope and preamble to 1926.62, we believe that the interim final lead in construction standard must be treated as a vertical standard and take precedence over the related sections in 1926.353 and .354. Concerning the issue of feasibility, where workers are exposed to lead above the permissible exposure limit, the employer must reduce worker exposure levels. Under the standard, the employer is required to utilize engineering and work practice controls including administrative controls to achieve compliance.

The abatement controls must be implemented by the employer to the extent feasible to reduce employee exposure to lead. Where feasible controls fail to reduce the exposure to below the permissible exposure limit the employer then must use appropriate respiratory protection as described in 1926.62(f). Feasible engineering controls, among other methods, can include stripping back the painted surface as described in 1926.353 and .354. The rationale for an employer's exposure abatement method should be described in their written compliance program.

Based upon this, the issue of feasibility must be addressed on a case-by-case basis. For example, where a steel I-beam section must be cut, the use of an extended cutting torch described in Mr. Borg's letter has been shown in some instances to reduce the exposure to lead. This method could be used in place of stripping back if it provided equivalent or better worker protection. When considering whether or not to strip back a painted surface prior to cutting or welding, the rationale must be based upon the work conditions and which method provides the greatest worker protection.

We expect this addresses your concerns. Should you have any comments or questions, please call us at 202-219-8036.

Enclosure

cc: Regional Administrators OSHA Training Institute

June 23, 1994

MEMORANDUM FOR: John B. Miles, Jr., Director

FROM: Patricia Clark Acting Regional Administrator

ATTENTION: Ruth McCully, Director Office of Health Compliance Assistance

SUBJECT: Request for Interpretation

Attached, please find a letter which we received from Mr. William D. Bord, Safety Director for the Associated General Contractors Association of America, New York State Chapter. Mr. Bord is requesting an interpretation of 1926.62 as it applies to removing lead containing coatings or paint from surfaces prior to conducting burning or welding operations on such surfaces. The interpretation which is generated in response to this request may have an impact on earlier interpretations relating to 1926.354 which were issued by the National Office Accordingly, I am forwarding this request to you for response.

Additionally, upon discussing this issue with individuals within OSHA, it has become apparent that there are differing interpretations of 1926.354(c) and (d) which may lead to inconsistent enforcement. Some interpret 1926.354(d), which requires stripping back of coatings, as applying to all painted surfaces which are subject to burning or welding, and therefore, as applying to operations which also fall under the scope of 1926.62. Still others feel that 1926.62 is the vertical standard that applies in these cases and only 1926.354(c) (which is the only 1926.354 standard which deals with toxic preservative coatings) may be cited and grouped with the appropriate 1926.62 standard which deals with work practice controls.

If the second interpretation is determined to be correct, stripping back of coatings would be one of the work practice controls employers can utilize to reduce exposure to lead, however, the question of feasibility often arises. The question we are being asked is; when is stripping back of coatings considered feasible or infeasible economically? This question arises repeatedly, especially in heavy highway construction. The added cost of stripping back coatings can significantly increase the cost and time it takes to complete a bridge demolition or similar project. We realize this issue must be dealt with on a case by case basis, however, in order to facilitate consistent enforcement on this issue, we are requesting any guidance which may be useful in determining feasibility of stripping back coatings in the heavy highway construction industry.

Also I think it is appropriate to point out two other factors which beg consideration when contemplating the answers to the above questions. First, one could argue that there may be a greater hazard posed to employees who have the duty of removing lead containing coatings from surfaces before they are subjected to welding or burning. Coatings are normally removed from bridges etc., via sandblasting in this industry. Due to EPA regulations, sandblasting must be conducted in an enclosure which typically creates high lead exposures (in many cases greater than 3000 ug/m(3)) even with the use of local exhaust ventilation.

Secondly, one could also argue that the lead in construction standard was meant to protect employees who are welding and burning on surfaces which are not stripped back because of the task specific requirements in 1926.62(d)(2)(iv) for welding and burning on structures where lead containing coatings or paint are present.

As per the standard, lead exposures can be controlled while performing this task through a number of methods including engineering and workpractice controls. Since the standard is performance oriented with regard to reducing exposure to employees, one may interpret this as meaning that stripping back lead containing preservative coatings is not absolutely necessary if:

1. exposure reduction is reduced to acceptable levels through other means;

2. stripping back coatings is not feasible;

3. stripping back coatings will create a similar or greater hazard (i.e. sandblasting).

Finally, I have included a copy of an interpretation which is on CD ROM relating to 1926.354(d). We would like a clarification of the interpretation of 1926.354(d) because we feel it does not address the actual hazards created by burning and welding on surfaces which are coated with nonflammable, non-toxic coatings which would necessitate the stripping back of these coatings prior to welding and burning operations.

If you have any questions regarding this matter please contact Mr. Kris Hoffman at (212) 337-2341.

May 25, 1994

OSHA Ms. Patricia K. Clark Regional Administrator 201 Varick St. Room 670 New York, NY 10014

Dear Ms. Clark:

The Heavy Highway Construction Industry in New York State has a very serious problem with OSHA's different interpretation of the 1926.62 Lead Standard. The problem is the 1926.62(e)(1) engineering controls. Most of the area offices interpret this as removing paint prior to any burning or welding. Other area directors have stated that an extended burning torch, a proper respirator and standing up wind is sufficient for engineering controls. Our contractors are confused. Do we remove the paint or can we cut through the paint using an extended torch? The standard 1926.62 does not state that paint must be removed prior to cutting or welding.

This item is very significant to our contractors in determining how to bid a project. The contractors do not care which interpretation is used as long as it is consistent throughout the state.

I spoke with Chris Hoffman on this problem and he said your office had received other complaints and suggested that I write to you.

I would like to know if your office could distribute a directive instructing all the OSHA offices in New York State on which interpretation they should be using?

It is very important to the construction industry that this problem be addressed as quickly as possible.

If you have any questions on this issue please contact me at 1-800-866-9242 or 518-456-1134.

Sincerely,

William D. Bord Safety Director for Associated General Contractors New York State Chapter