By A. Scott Hecker, Adam R. YoungPatrick D. Joyce, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: On June 28, 2022, OSHA announced publication of an Advance Notice of Proposed Rulemaking (“ANPRM”) regarding potential revisions to the Agency’s lead standards, lowering permissible blood lead levels.

OSHA’s ANPRM concerning the point at which Blood Lead Levels (“BLLs”) require medical removal seeks public comment on reducing those levels across both the Agency’s general industry (29 CFR 1910.1025) and construction (29 CFR 1926.62) lead standards. The Centers for Disease Control and Prevention have published studies suggesting that the current OSHA Permissible Exposure Limit (“PEL”) for lead may be too high to protect against certain health effects.  Accordingly, OSHA asserts in its ANPRM that this regulatory activity is

based on medical findings since the issuance of OSHA’s lead standards that adverse health effects in adults can occur at [BLLs] . . . lower than the medical removal level . . . and lower than the level required under current standards for an employee to return to their former job status.

Lead exposure can result in “adverse health effects, including but not limited to effects on the reproductive, cardiovascular, neurological, respiratory, and immune systems.” To gather information in an effort to address these negative impacts, the ANPRM seeks input from employers on

OSHA’s triggers for medical removal of workers with elevated BLLs and their return to lead-exposed work; OSHA’s requirements for medical surveillance and management of lead-exposed employees; several additional provisions and compliance protocols that are undergoing public review in State Plans’ ongoing work to update their occupational lead standards; and the costs and effectiveness of lead exposure identification and control strategies.

Agencies issue ANPRM’s before developing more robust proposed rules, so OSHA is early in this rulemaking process. Nonetheless, employers should consider commenting now to ensure they can influence the substantive rulemaking process by making their voices heard. Interested employers have until August 29, 2022 to submit their comments online.

Our previous blog, OSHA “Launches” Rulemaking to Significantly Update and Massively Increase the Number of Chemicals with Permissible Exposure Limits described an Obama-era effort to reduce exposures to hazardous chemicals at work by modernizing OSHA PELs, many of which dated to the passage of the OSH Act in 1971, but that effort did not result in different BLLs, nor did it ultimately come to fruition. OSHA has engaged in other relatively recent PEL battles, including concerning its silica and beryllium standards (see, e.g., Seyfarth blog entries here, here, and here), and we can expect similar conversations to take place regarding the need to protect employees from the adverse health effects of lead exposure as the lead rulemaking progresses.

Please connect with your Seyfarth attorney with questions regarding this or any other workplace safety and environmental issues you may have.