Document YjqmZJ5vejwbOGNKKYQM04jqV

riLtiuri '/ Lead Industries Association, Inc. 292 Madison Avenue New York, N. Y. 10017 * Telephone: (212) 532-2373 Environmental Health Department September 30, 1980 TO: Official Members - LIA LIA Environmental Health Committee RROM: Jerome F. Cole SUBJECT: Occupational Exposure to Lead; Limited Reopening of Rulemaking Record As you may know, OSHA has scheduled hearings on November 5, 6 and 7, 1980 to "complete its reassessment of the feasibility issue" for all of the lead indus tries for which the new Standard was remanded by the Court of Appeals. OSHA's supplemental rulemaking notice, a copy of which is enclosed, applies to all lead industries except primary smelting, secondary smelting, printing, gray-iron found ries, and battery, can, paint, ink, electronics and wallpapering manufacturing. All comments and notices of intention to appear must be received by OSHA by Oct ober 27, 1980. LIA plans to participate in the hearings and to present testimony. In order to make our presentation as effective as possible, it is imperative that the enclosed confidential questionnaire be returned as soon as possible (but in no case later than October 17). We realize that the shortness of time may require you to approx imate answers, but please provide us with your best and most accurate estimates. The information that you provide us will be kept confidential and will not be dis closed (except "in"sunroary fonn,'along with data from others) without your permission. to ensure confidentiality, the completed questionnaire should be returned directly to LIA's attorney, Standish F. Medina, Jr., Debevoise, Plimpton, Lyons & Gates, 299 Park Avenue, New York, New York 10017. Please call Standish Medina (212-752-6400) or me (212-532-2373) if you have any questions. Although LIA plans to participate, we urge you and all other interested industry companies to appear at the hearings and to present evidence directly. The D.C. Court of Appeals has in effect stated (erroneously, we believe) that "best available evi dence" in the OSHA Act simply means whatever evidence happens to be in the record, good or bad, and hence OSHA is unlikely to submit very much evidence at the hearing. Unless every company does its best to provide accurate and reliable engineering, cost and monitoring data (even if it is necessary to estimate), the agency will un doubtedly reissue the Standard as to all of the "remand industries" in the very near future. Consequently, it is very important for individual companies, including yours, to participate. Enclosures LI AC 32 93 N 3709 9-24-80 VoL 45 No. 187 Pages 63261-68878 Wednesday September 24, 1980 Highlights i Briefings on How To Use the Federal Register-- For details on the resumption of briefings in Washington, D.C., see announcement in the Reader Aids section at the end of this issue. 83478 Occupational Safety and Health Labor/OSHA reopens rulemaking record for lead standard; comments by 10-27-80; hearings on 11-5,11-6 and 11-7-80 (Part IV of this issue) 63462 Wage and Price Controls CWPS extends secondyear price standards: effective 10-1-60; comments by 10-20-80 (Part 01 of this issue) 63263 Excise Taxes Treasury/IRS issues interim rule and proposes rule for determining base prices for tier 2 and tier 3 oil; effective with respect to oil removed after 2-29-80; comments by 11-24-80 (2 documents) 63295 Truth in Lending FRS proposes staff interpretation regarding security interest disclosures in closed end credit transactions; comments by 10-20-80 63410 Treasury Notes Treasury/Sec'y announces the interest rate on Series W--1982 will be 11% percent 63326 Football Helmets CPSC denies petition requesting issuance of standards CONTIMUCO MSIDC LIAC3294 N 3709.01 63476 Federal Register / VoL 45. No. 187 / Wednesday. September 24,1980 / Propoeed Rules DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 {Docket No. H-Q04E1 Occupational Exposure to Lead; Limited Reopening of Rulemaking Record; Notice of Comment Period and informal Pubfic Hearing agency: Occupational Safety and Health Administration (OSHA), Labor. action: Notice of reopening of the lead rulemaking record; notice of comment period and informal public hearing. summary: This notice reopens the rulemaking record for the lead standard (29 CFR 1910.1025) to receive specific information relating to the feasibility of meeting the permissible exposure limit (PEL) specified in the lead standard through engineering controls and work practices in certain industries. The notice is published pursuant to a Court Appeals remand of the feasibility question as to certain specified industries. This notice also schedules a period for receipt of written comments and an informal public hearing on the question of feasibility. dates: Written comments will be received until October 27,1980. An informal public hearing will be held on November 5.6, and 7,1980. All notices of intention to appear at the public hearing and all written testimony and documentary evidence which will be introduced into the hearing record must be received by October 27, I960. address: Comments should be sent to: Docket Officer. Docket H-004E, Room S6212. U.S. Department of Labor, Washington, D.C. 20210. Notices of intention to appear and written testimony should be sent to: Mr. Clarence Page. OSHA, Division of Consumer Affairs. Room N3635, U.S. Department of Labor, Washington. D.C 20210. The public bearing will be held in the Auditorium, Frances Perkins Labor Department Building. 3rd Street and Constitution Avenue. NW,, Washington. D.C. 20210. FOR FURTHER INFORMATION CONTACT: Dr. Robert P. Beliles, Occupational Safety and Health Administration. Room N3718. U.S. Department of Labor. Washington. D.C 20210.202-523-7061. SUPPLEMENTARY INFORMATION: On October 3.1975. OSHA proposed a standard for occupational exposure to lead (40 FR 45934) to replace the permissible exposure limit which had been adopted from a national consensus standard pursuant to 16(a) of the can manufacturing: battery Occupational Safety and Health Act manufacturing; paint and coatings (ACT). A lengthy hearing in manufacturing; ink manufacturing: Washington, D.C. and two regional wallpaper manufacturing; electronics bearings in SL Louis, Missouri and San manufacturing; and gray-iron foundries. Francisco. California, were held in tha The Court also found that: Spring of 1977. In the fall of the same year, hearings were held for the receipt of additional information on certain "OSHA fatted to present substantial evidence or adequate reason* to support the feasibility of the standard for the following specific issues, including medical removal protection. The hearing record was closed in January of 1978. On November 14.1978. a final standard was published in the Federal Registar ((43 FR 52952); supplemental attachmets published November 21.1978, (43 FR 54354)) which limited occupational exposure to airborne concentrations of lead to 50 pg/m* (micrograms per cubic industries: nonferrous foundries; pigment manufacture: shipbuilding; auto manufacture; solder manufacture; wire pateating: pottery; brick manufacture, agricultural pesticide* manufacture; leather manufacture; pipe galvanizing: gasoline additives manufacture; haoleum-rubber-plastics manufacture; paint spraying; ammunition manufacture; smelting and refining of zinc, silver, gold, platinum, copper, end aluminum; machining; lead burning glass manufacture; textile meter) based on an eight-hour time weighted average (TWA). Additional protective provisions included environmental monitoring, recordkeeping, employee education and training, medical surveillance, medical removal protection, hygiene facilities, and other requirements. Immediately after promulgation, the lead standard was challenged by both industry and labor, in several UJk Courts of Appeals. All cases were transferred and consolidated in the US. manufacture; book binding; steel alloy manufacture, feme metal manufacture; glaa* polishing and spinning; cutlery manufacture; diamond processing plumbing; Jewelry manufacture, pearl processing; casting; cable coating; electroplating; explosives manufacture; lamp manufacture; sheet metal manufacture; tin ratling; telecommunications; and Independent collecting and processing of scrap lead (excluding collecting and processing that is part of a secondary smelting operation)." (United Steelworkers of America v. Marshall No. 79-1048 (D.C Cir. Aug. IS. 1080), slip opinion, pg. 245.) Court of Appeals for the District of The Court did not vacate any portion Columbia Circuit. Simultaneously, various parties sought administrative of the lead standard. Rather, it stayed the enforcement of 29 CFR reconsideration and stays of the 1910.1025(e)(1) (requiring compliance regulation, one of which was granted. with the PEL through engineering On March 1,1979, the D.C Cirouit controls and work practices) for those partially stayed the lead standard by industries for which OSHA failed to delaying the requirement for installing present substantial evidence or engineering controls and instituting adequate reasons to support the work practices. However, enforcement feasibility of the standard. The Court of the PEL and provisions for gave OSHA six months in which to environmental monitoring, complete its reassessment of the recordkeeping, employee education and feasibility issue. training, medical surveillance, and medical removal protection was Accordingly, OSHA hereby reopens tiie lead record for the limited and permitted to begin on March 1.1980. r express purpose of soliciting and In a lengthy opinion issued on August receiving additional information 15. I960, the United States Court of pertaining to the technological and Appeab for the District of Columbia economic feasibility, including the time Circuit per Chief Judge Wright upheld necessary for meeting the 50 jig/m* PEL the validity of OSHA's lead standard in solely by engineering controls and work most respects. However, the Court found practices for those industries for which that OSHA failed to present substantial the Court ruled OSHA had not evidence or adequate reasons to support adequately determined feasibility or for the feasibility of the standard, with respect to certain industries, and any other industries not ruled upon in the Court's decision. OSHA also expects remanded the standard to the Agency to pot into the record tome additional for reconsideration of the question of the evidence concerning these issues. technological and economic feasibility Evidence previously submitted on these of die standard for those industries. issues will be considered along with any With respect to the following new evidence, and need not be industries, the Court found OSHA's resubmitted. Information is not analysis of the feasibility of the requested concerning the ten industries standard to be adequate and upheld the validity of the entire standard: Prirr .: v smelting; secondary smelting: prinii j, for which the standard's feasibility has been upheld or pertaining to issues other than feasibility. 5032q5 Ll Federal Register / VoL 45. No. 187 / Wednesday. September 24, 1980 / Proposed Rule# 63477 The following questions are considered relevant in determining the feasibility of the PEL for a given industry. Persons possessing or having access to information pertinent to any of the following questions are requested to submit it to OSHA: 1. In which industries, other than those identified above, do exposures to lead occur? In which standard industrial classification (SIC) codes are these industries located? 2. What are the size, age, economic life (plant and equipment), location and number of firms and plants in each of these industries? 3. How many employees are exposed to lead in each of the industries? 4. In what processes do lead exposures occur? What are the sources of exposure? 5. What job classifications or position descriptions are used to describe employees exposed to lead in these processes? 6. What are the chemical and physical characteristics of the lead to which these employees are exposed (e.g,, name of compound, aerosol size, solubility)? 7. Does exposure result from the inhalation or ingestion of lead, or both? 8. What is the nature of exposure (air concentrations, duration and frequency}? 9. How many workers are exposed to Ies than 30 pg/ma of lead as an eight hour TWA? 10- How many workers are exposed to greater than 30 pg/m'but less than 50 pg/m'TWA? 11. How many workers are exposed in excess of 50 jig/m'TWA? 12. W'hat are the blood .lead levels for employees exposed in (9). (10). and (11)? Are there any other medical indicators which are useful in assessing environmental conditions? > 13. Are there examples of operations or processes where control of exposure to lead to 50 p.g/ma has been achieved? Please describe. 14. If control has not been achieved in the industry, which of the following methods are available to achieve such control? Please provide a detailed discussion of the use of these controls and also the time necessary for implementation. a. Engineering controls---ventilation/ collection, isolation/containment, substitution of product or process, modification of process or equipment (e.g,, booths, islands, cabs), other. b. Work practices--housekeeping, administrative controls--employee .o'atior. or scheduling of work ~ aerations, other. \S. Are there any unique conditions in he industry which would preclude the use of engineering controls and work practices to reduce exposures? 18.In what operations should personal protective equipment (including respirators) be required? 17. What regulatory activities of State agencies or other Federal agencies afreet worker exposure to lead in the industry? 18. Are there other OSHA standards that require the use of engineering controls which would also effect airborne exposure levels to lead? 19. Have there been technological improvements or changes in the industry for the purpose of improving productivity or product quality which have also resulted in reductions in lead exposures? 20. What are the availability, price, and serviceability of substitutes? 21. What were the total annual volume and dollar value of productions, shipments, and inventories for at least the last 5 years? 22. What were the total annual investments categorized as replacement expansion, modernization, and environmental health and safety related expenditures for at least the last 5 years? 23. What were the retained earnings, after tax income, total assets, stockholders' equity, net worth, debtequity ratios, and depreciation charges for at least the last 5 years? 24. What were the rates of return on assets, equity or net worth for the at the least the last 5 years? 25. W'hat is the degree of market concentration in the industry? (Please give special attention to the role of small businesses and approximate numbers of firms in the industry each year.) 28. What is the geographic dispersion of the industry and its customers? 27. W'hat were the annual volume and dollar value or imports and exports for at least the last 5 years? 28. W'hat were die total annual employment and labor turnover for the industry for at least the last 5 years? Each employer who has employees exposed to lead is requested to provide specific information related to the above questions concerning his firm or plant. Additionally, the following information should also be provided: 1. Since 1971. what engineering controls and work practices have been implemented to control lead exposure? Provide copies of engineering feasibility studies, cost estimates, exposure records (especially those required to be kept by the new standard) blood lead determinations, cost estimates (capital and operating) and time necessary for implementation. 2. Were any benefits other than reduced lead exposure derived from the implementation of engineering controls and work practices such as increased productivity; product improvement or reductions in absenteeism? Public Participation OSHA is aware of the limited period of time this notice provides for the filing of information and notices of intention to appear. However, the Court of Appeals, in its remand, has given OSHA a timetable of six months to reassess the feasibility issue. OSHA believes that an expedited supplementary rulemaking, with comment period and public hearing, is the most fair and effective means to gather and evaluate the necessary information in so short a period. Accordingly. OSHA cannot grant any requests for extensions. ----- -- in addition to the request for written information, which should be submitted to the Docket Office, OSHA is providing an opportunity under section 6(b)(3) of the Act and 29 CFR Part 1911. to submit oral testimony concerning the hearing issues at an informal hearing scheduled to begin at 9:30 e.m., November 5, I960, in the Auditorium, Frances Perkins Labor Department Building, 3rd Street and Constitution Avenue, NW, Washington, D.C. 20210. Notice of Intention To Appear and Written Comments Persons desiring to participate at the hearing must file a notice of intention to appear by October 27, I960, with Mr. Clarence Page, OSHA. Division of Consumer Affairs, Room N3635, U.S. Department of Labor, 3rd Street and Constitution Avenue, NW. Washington. D.C 20210. Telephone (202) 523-8024. Persons who do not intend to appear at the hearing may submit written comments on the specified issues, by October 27,1980, to the Docket Office. Room S-6212, Docket H-004E, U.S. Department of Labor, Washington, D.C 20210. Telephone (202) 523-7894. The notices of intention to appear, which will be available for inspection and copying at the OSHA Docket Office during business hours, must contain the following information: 1. The name, address, and telephone number of each person to appear, 2. The capacity in which the person will appear; 3. The approximate amount of time required for the presentation: 4. The specific issues that will be addressed; 5. A detailed statement of the position that will be taken with respect to each issue addressed; and 6. Whether the party intends to submit documentary evidence, and if so, a LI*032^fc 63478 Federal Ragbtor / VoL 45. Na 187 / Wtdnetdiy, September 24,1880 / Proposed Rales detailed summary of the evidence to be adduced in support of the position. fi&ng of Testimony and Evidence Before Hearing AAny party requesting more than 15 minutes for presentation at the hearing or submitting documentary evidence, must provide, in quadruplicate, the complete text of its testimony, including aD documentary evidence to be presented at the hearing, to the OSHA Division of Consumer Affairs, where they wil] be available for inspection and copying. This material must be received by October 27.1980. Each submission will be reviewed in light of the amount of time requested in the notice of intention to appear and in light of the very limited time available for the public hearings. In instances where the information contained in the submission does not justify the amount of time requested, a more appropriate amount of time will be allocated and the participant will be notified of that fact Conduct of the Hearings The hearings will commence at 9-JO a.HU, November 5,1980, with the resolution of any procedural matters rotating to the proceeding. The hearing will be presided over by an Administrative Law Judge who will have all the powers necessary and appropriate to conduct a full and fair informal hearing as provided in 29 CFR Part 1911. including the powers: 1. To regulate the course of the proceedings: 2. To dispose of procedural requests, objections, and comparable matters; 3. To confine the presentation to the matters pertinent to the issues raised; 4. To regulate the conduct of those present at the hearing by appropriate means; 5. In the Judge's discretion, to question and permit questioning of any witness; and 6. In the Judge's discretion, to keep the record open for a reasonable stated time to receive written information and additional data, views, and arguments from any person who has participated in the oral proceeding. Following the close of the Hearing, the presiding Administrative Law Judge will certify the record of the hearing to the Assistant Secretary of Labor for Occupational Safety and Health. The question of the feasibility of achieving the PEL through engineering controls and work practices for the industries indicated above will be reviewed in light of all testimony and written submissions received as part of this record, including information previously submitted, and a decision wil] be forthcoming. This notice was prepared under the direction of Eula Bingham. Assistant Secretary of Labor for Occupational Safety and Health. Frances Perkins Labor Department Building. 3rd Street and Constitution Avenue. NW,, Washington, &C. 20210. (Secs. 8.8. M StaL 1593-1598.1599. (29 UAC. 955,657); Secretary of Labor'* Order 8-75 (41 FR 25059); (29 CFR 1911)) Signed at Washington. D.C, this 22nd day of September, 198a Fila IHw|hom[ Assistant Secretary ofLabor. p* Doe. Tltad *] SUMO COOC SIMM! Confidential Questionnaire A. Business. Please identify your company's business or businesses (e.&. , zinc smelter, pigment manufacturer, etc.). ________________ ___________________________________________ B. Plants. Please give the address of each of your plants or factories and state the approximate size and age of each such plant or factory. C. Lead Levels. Please identify each operation in your plant or factory which involves air-lead exposures in excess of 30 micrograms of lead per cubic meter of air (30 ug/m3) and with respect to each such operation, (a) state the approxi mate number of employees working in the operation, (b) state the average or range of air-lead levels experienced at the station and the duration, (c) state whether, if the air-lead levels exceed 50 ug/m3, it is technologically pos sible to reduce air-lead levels to below 50 ug/m3 using engineering controls and, if so, the nature of those .con trols (js.j*. , added ventilation, baghouses, enclosed opera tions, etc.), (d) state the approximate cost and length of time that would have to be spent in order to reduce air-lead levels below 50 ug/m3, and (e) state whether the plant could remain in operation if required to comply with the exposure limit of 50 ug/m3 by engineering controls or work practices. 1. Operation # 1. a. Identity _____________________ b. No. of employees in operation c. Air-lead levels and duration ult032Qe N 3709.02 d. Technological feasibility of 50 ug/m3 e. Cost and time ____________________________ f. Viability of business if PEL enforced 2. Operation #2. a. Identity ____________________________________ b. No. of employees in operation _________ c. Air-lead levels and duration __________ d. Technological feasibility of 50 ug/m3 e. Cost and time ____________________ _________ f. Viability of business if PEL enforced 3. Operation #3. a. Identity ____________________________________ b. No. of employees in operation _________ c. Air-lead levels and duration __________ d. Technological feasibility of 50 ug/m3 e. Cost and time ______________________________ f. Viability of business if PEL enforced 4. Operation #4. a. Identity ____________________________________ b. No. of employees in operation _________ c. Air-lead levels and duration ________' -2- L1&C3299 <3. Technological feasibility of 50 ug/m3 e. Cost and time ______________________________ f. Viability of business if PEL enforced 5. Operation #5. a. Identity b. No. of employees in operation _________ c. Air-lead levels and duration __________ d. Technological feasibility of 50 ug/m3 e. Cost and time ______________________________ f. Viability of business if PEL enforced 6. Operation #6. a. Identity _____________________________________ b. No. of employees in operation _________ c. Air-lead levels and duration __________ d. Technological feasibility of 50 ug/m3 e. Cost and time ______________________________ f. Viability of business if PEL enforced 7. Operation # 7. a. Identity ___________________________ ________ b. No. of employees in operation _________ c. Air-lead levels and duration _________ -3- LIA0330C d. Technological feasibility of 50 ug/m3 e. Cost and time ___________________ ________________________ __ _______ _ f. Viability of business if PEL enforced C. Unique Conditions. Are there any unique conditions in your industry or plant that would preclude the use of engineer ing controls and work practices to reduce exposures below the PEL of 50 ug/m3? If so, please identify them briefly. E. Other OSHA Regs. Are there other OSHA standards which your company is required to meet and which calx for the k use of engineering controls that also affect airborne exposure to lead? If so, please identify the other stan dards and the operations affected by those standards. F. Technology and Productivity. Have there been technological improvements or changes in your industry for the purpose of improving productivity or product quality which have also resulted in reductions in lead exposure? If so, please identify the improvements and the operations affected. G. If you have any information which is responsive to questions 20 through 28 of OSHA's 9/24/80 Federal Register notice (see enclosure) and which can be provided to LIA by October 17, please furnish that information separately. -5- LIfiC 3302