March 16, 2001

Dr. Bernard Appleman
Executive Director
The Society for Protective Coatings
40 24th Street, 6th Floor
Pittsburgh, Pennsylvania 15222-4656

Dear Dr. Appleman:

Thank you for your letter of September 27, 1999, to the Occupational Safety and Health Administration's (OSHA's) Directorate of Compliance Programs (DCP). You requested clarification regarding OSHA's position on what constitutes feasible engineering controls under the lead in construction standard, 29 CFR 1926.62 (e)(1). We apologize for this long delay in response. Please be aware, however, that your request generated considerable discussion and has received careful consideration from several Offices and Directorates within the Agency.

In your letter, you proposed that OSHA issue a policy memorandum recognizing that the design, installation, and maintenance of mechanical ventilation systems achieving targeted air flows of 60 feet per minute when operated in a down-draft mode or 100 feet per minute when operated in a cross-draft mode, demonstrate compliance with paragraph (e)(1) of the standard.

OSHA's Field Inspection Reference Manual (FIRM, Chapter III, C.3.) prohibits the imposition of specific volumes of air in controlling employee exposures to contaminants. OSHA believes that setting an across-the board, minimum ventilation level would be inconsistent with the requirements of the standard. Further, it is OSHA's position that the "rule of thumb" of 60 feet per minute when operated in downdraft and 100 feet per minute when operated in a cross-draft mode are design parameters for operator visibility and are not suitable for control of dust hazards. Attached is a memorandum dated March 27, 1995, from Charles E. Adkins, Director, Directorate of Technical Support on this subject.

Included with your letter was an attachment in which you state that "Contractors...continue to be cited for failure to install engineering controls to reduce exposure to as low as feasible....This occurs irrespective of the measured worker exposure levels in that the CSHO's argue that the airborne concentrations could have been lower." You also state that this enforcement approach is contrary to observations made by OSHA in the Preamble to the Interim Final Rule, Section III.E., Methods of Compliance:

"OSHA thus continues to maintain its preference for engineering and work practice controls in this standard. However, in the construction industry generally based on available data, OSHA is unable to show for the purposes of this interim final rule that the PEL can be achieved by engineering and work practice controls in most operations most of the time. Consequently, as Congress anticipated, OSHA expects employers to place broader reliance on respirators than in General Industry."

As stated above, OSHA recognizes a reliance on respirators in the construction industry; however, the Preamble clearly demonstrates a preference for engineering and work practice controls, "to the extent feasible to reduce exposures to or below the PEL (see first paragraph in Section III.E., Methods of Compliance)." This language is also stated in paragraph (e)(1) of the standard and requires each employer to "implement engineering and work practices controls, including administrative controls, to reduce and maintain employee exposures to lead to or below the permissible exposure limit to the extent that such controls are feasible."

As discussed in the compliance directive CPL 2-2.58, Lead Exposure in Construction; Interim Final Rule Inspection Compliance Procedures, the Compliance Safety and Health Officer's (CSHO's) assessment of feasibility must be made on a case by case basis. Some factors that the CSHO will use to determine compliance include site conditions, scale of the job and the effectiveness of the method in completing the planned job. In situations where paragraph (e)(1) is cited, the CSHO has determined that feasible engineering controls have not been instituted to the extent feasible, and the CSHO has determined that ventilation systems which provide a greater degree of protection are available and could have been used by the employer.

OSHA's Technical Manual, Section IV, Chapter 3, provides information on various engineering controls, such as the installation of mini-enclosures and the use of methods which are less dusty, such as vacuum-blast cleaning, dry-ice blasting, chemical stripping, etc. (a copy of this section of the Technical Manual is enclosed for your convenience). Additionally, considerable information is available in the literature regarding ventilation controls in abrasive blasting enclosures. For instance, we have enclosed an industrial hygiene report entitled, Recycling Lead Paint While Protecting Workers and the Environment at the Ferndale Tank. This report presents an example of one type of ventilation system used for an abrasive blasting enclosure which significantly lowered employee exposures. Noteworthy elements of the approach documented in this report were 1) isolating the work areas with mini-enclosures and 2) ventilating the mini-enclosures with a computer-designed ventilation system.

As this report demonstrates, feasible engineering controls which lower employee exposure may be available for full-containment abrasive blasting operations. All containment structures should be designed to optimize air flow to reduce employee exposure. CSHO's are not to cite paragraph (e)(1) of the standard unless they know of containment design or other controls which could have been implemented by the employer but were not. The CSHO will be happy to discuss with the employer what additional feasible controls are available for the particular job being inspected which serve as the basis for the citation. OSHA believes, therefore, that issuance of a policy which sets minimum levels of airflow as demonstration of compliance with paragraph (e)(1) of the standard is simply not practical, since the amount of airflow that is feasible varies to a significant extent in each situation.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions. Please feel free to contact the Office of Health Compliance Assistance at (202) 693-2190.

Sincerely,

Richard E. Fairfax, Director
Directorate of Compliance Programs

Enclosures