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Lead and construction.

At Congress' direction, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) recently began regulating the exposure of workers to lead-contaminated debris, lead dust, and materials made of lead during construction, renovation, demolition, or repair work. The standards, which were required by Title X of the Housing and Community Development Act of 1992, became effective on June 3, 1993, and are expected to cover nearly 1 million construction workers.

Broad in scope, the standards impose a number of requirements, including periodic exposure assessments, written compliance programs, maximum exposure limits for employees, requirements to provide protective equipment to employees, and housekeeping practices to prevent the spread of lead dust.

In addition, they require employers to develop medical surveillance and monitoring programs for workers and to remove certain affected workers from the workplace, if necessary. Employers must also keep detailed records of implementation of protective practices and must train their workers to deal with lead hazards.

Who is deemed an "employer" under the standards is sometimes a gray area. Generally speaking, if an entity exercises care, custody, and control over the work site, that entity is deemed an employer. Thus, workers hired by a lead-abatement contractor would probably not be considered employees of the building owner. However, permanent maintenance staff of the property whose routine duties expose them to lead would be employees of the building owner.

In addition, building owners and managers should also be concerned about liability exposure as a result of lead-related injuries to non-employees caused by employees' work or by lead-related activities on the premises.

Principal provisions

* Assessment. Any employer who has a workplace covered by the standard must assess whether any employee may be exposed to lead at levels exceeding the permissible exposure limit (PEL) of 50 micrograms per cubic meter of air averaged over an eight-hour period. Additional assessments may be required if the test results exceed 30 micrograms per cubic meter.

* Compliance. Before beginning a task in which the exposure to lead will exceed the PEL, the employer must establish and implement a written compliance program to reduce employee exposure levels to the PEL or below. This plan must be made available for inspection or copying at the work site. It must be updated at least every six months.

The compliance program is meant to be comprehensive and should include, at a minimum, descriptions of all activities that emit lead, specific actions on achieving compliance, information on technology considered to meet the PEL, and air monitoring data. The program must provide for frequent and regular inspections of job sites.

* Respirators and protective clothing. The employer must provide respiratory protection and protective work clothing to employees whenever exposure exceeds 50 micrograms per cubic meter, whenever an employee requests a respirator, or whenever an employee performs a high-risk task, such as sanding or scraping.

* Medical services. The employer must make available a variety of medical services and biological monitoring to employees and must provide certain benefits to employees who are removed because of excess lead exposure.

* Information and training. Employers must provide information on the hazards of lead exposure in accordance with OSHA's Hazard Communication Standard including warning signs and labels, and material safety data sheets. Employers also must provide training to employees on how to minimize exposure risks and use protective measures.

* Recordkeeping. Detailed records must be kept of exposure monitoring and other data related to employee exposure assessments for at least 30 years. Employers must also keep records of employees subject to medical surveillance or medical removal and make these records available to affected and former employees and to OSHA.

The records must be transferred to a successor employee when the employer ceases to do business, or to NIOSH if there is no successor. At the end of the retention period, employers must notify NIOSH three months prior to destroying the records.

Added challenges

In addition to conforming their work practices, building owners will also face the financial challenge of paying for the new requirements. OSHA estimates that one-time start-up costs for the commercial and industrial demolition and remodeling industry will range between $150 and $180 million. This amount will be spent to train employees and pay for medical testing. OSHA estimates that approximately $150 million will be spent annually on recurring costs for affected real estate-related industries.

Another major challenge involves the proper disposal of lead-contaminated debris, which is considered a hazardous waste requiring special handling if lead content exceeds 5 parts per million. Moreover, a number of safety protocols must be followed in handling the debris both on and off the work site. For additional information see Lead in Construction, published by OSHA, as well as OSHA Fact Sheets Numbers 93-47 through 93-52.

Suzette Brooks is an attorney at Berle, Kass & Case, an environmental law firm in New York City.
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Author:Suzette, Brooks
Publication:Journal of Property Management
Date:Jul 1, 1994
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