Compliance Alert: Every Foundry Faces Impact From Major New Lead Rules
Lead is one of the most highly regulated materials in the U.S, but changes of seismic proportion to the standards that regulate lead in the workplace are about to shake both the ferrous and nonferrous segments of the metalcasting industry in California. In fact, numerous other sectors will also be affected, including companies that have never needed to implement compliance programs.
Since 2016, Cal OSHA has been under a statutory mandate to complete an updated rule by September 2020––the agency was delayed in fulfilling that directive by COVID-19-related lockdowns, but in November 2022 it submitted revisions to the state’s Occupational Safety and Health Standards Board. Public release of the proposed rule has been anticipated in the first quarter of this year.
Drastically altered requirements for that state’s allowable airborne lead––the Action Level (AL) and Permissible Exposure Limit (PEL)––as well as limits for worker Blood Lead Levels (BLL) were about to be published as Modern Casting went to press February 24. But two additional problems are riding on the back of what will certainly become a brand-new regulatory burden for foundries:
(1) The soon-to-be published proposed rule in California might contain language that will make it effective immediately on the day Cal OSHA adopts it following a 60- to 90-day comments period. The original draft proposal had no implementation/phase-in timetable to allow industry to comply.
Battery Council International, an association representing the battery industry, has a lot of skin in the lead regulation game, and has been entrenched in Cal OSHA’s doings since before its 2016 mandate to revise the state’s standard. Executive Vice President and General Counsel Roger Miksad said the absence of an implementation schedule would have serious repercussions for all the industries that don’t comply with the proposed changes.
“Every prior time the lead rule and other similar rules requiring significant facility changes have been implemented at a federal level and even in California, there’s been a phase-in period,” Miksad said. “For requirements like engineering controls, which can require a complete renovation of a facility, they’ll usually put that date three to five years out to give people time to come into compliance. I don’t know why Cal OSHA isn’t contemplating doing that this time. We’ve been asking them to include an implementation schedule since the beginning in 2012, but it’s never been included in the drafts. Until the proposed rule comes out, you don’t know exactly what their final proposal is, but certainly it’s problematic if they don’t.”
(2) Federal OSHA is simultaneously starting its own revision process to the national lead standard originally created in 1978—the agency conducted a 61-question, multi-industry survey last June as part of its Advance Notice of Proposed Rulemaking. The questions revealed OSHA intends to expand its early plans to focus only on blood lead levels much further into a host of other areas. AFS and its coalition partners have good reason to believe that the federal OSHA may well adopt many if not all requirements in California’s final rule.
Precedents exist at both state and federal levels to adopt regulations launched by California. Kay Rowntree, owner of Industrial Hygiene Sciences LLC, said it’s likely federal OSHA will use that state’s work on lead as a platform for a future national standard, despite the fact that Michigan’s OSHA recently adopted much more temperate changes.
Speculation that Cal OSHA’s standard will serve as a federal baseline is further supported by the work history of federal OSHA’s assistant secretary of labor, Doug Parker, who is the former head of Cal OSHA. Though he’ll certainly do his job, he is well-versed and comfortable with what Cal OSHA has been crafting, sources indicated.
Cal OSHA Specifics
The big changes in California’s draft revisions, which represent major departures from the federal standard, call for:
- The AL to become 2 micrograms per meter cubed (µg/m3) as a TWA (Time Weighted Average) for more than 10 days/year––whereas the current federal OSHA AL is 30 µg/m3 for more than 30 days/year.
- The PEL to become 10 µg/m3 as an 8-hour TWA––whereas federal OSHA’s standard is 50 µg/m3.
- The Medical Removal Protections to become 20/30 µg/dL (micrograms of lead per deciliter of blood)––whereas federal OSHA’s standard is 50/60 µg/dL (the first number is the six-month average, and the second number refers to a one-time test result).
- The Return to Work BLL becomes 15 µg/dL—whereas federal OSHA’s standard is 40 µg/dL.
Rowntree, who serves on the AFS EHS Committee and has many foundry clients, affirms that maintaining low BLLs is where regulators should remain focused rather than dictating how to achieve low BLLs. Many in the industry, she asserts, have shown they are capable of keeping employee BLLs low with existing engineering controls, housekeeping, and personal hygiene measures and PPE.
“The biggest impact [of Cal OSHA’s proposed changes] is the lowering of the airborne lead exposures,” said Rowntree. “You’re going from a current number of 50 down to 10 as your PEL. It’s an enormous drop. That alone will trigger all kinds of foundries to having to comply with a standard they’ve never had to comply with before.
“[Cal OSHA is] hanging its hat on these airborne numbers,” she added. “I think the focus should be, ‘Are we controlling your blood leads?’ And if the answer is yes, it’s less relevant as to how you got there; the fact is, you got there. I just wish OSHA could take more of that approach. If our goal is to control blood leads, which has always been the goal of all of the lead programs, let’s have flexibility in how we get to that point, and not get so hung up on this prescriptive way of how to get there.”
But because state and federal OSHAs widen their scope far beyond BLL alone, and Cal OSHA severely so, many more businesses will be gathered into the crosshairs of the revised standard.
“What it means for nonferrous foundries [which may intentionally add lead to some alloys for its material properties in castings],” she continued, “is that lots of areas in the foundry that you never had in your lead program before are going to now be part of your lead program. And in the case of ferrous foundries that typically have not had to have a lead program, they will have to create one.”
That will be especially true if the Cal OSHA rule is duplicated nationally in any significant way.
“For industries that have been exempt from the OSHA lead rule for 40 years, this will come as a surprise,” said Miksad. “There are EHS professionals in metals industries who have known they’re exempt from the lead rules for their entire careers, and that is no longer going to be the case. The requirements are being tightened, and there are going to be a lot of industries that are newly subject to the stringent rules.
“All I can say is, don’t assume you’re still exempt,” he added, “because if federal OSHA adopts the California model, everyone’s in.”
Counting the Cost
While the industry waits for the release of Cal OSHA’s proposed new rule and for federal OSHA to parse the comments it received for drafting its revisions, AFS will be working to gather both lead data from member foundries as well as tabulating estimates of just how much compliance with California’s airborne lead levels will cost.
“All we know is that OSHA almost always underestimates the cost of standards,” said Rowntree. “We ran into that with the silica standard––what engineering controls were going to cost––and they weren’t even in the ballpark. I have no reason to think it’s going to be any different for lead than it was for silica; in fact, it might be worse for lead, because it’s a hazardous material. That triggers all kinds of environmental issues that silica doesn’t, so it’s very complex.”
Besides the potential need for revamping ventilation (including ductwork), make-up/in-take air, and baghouse systems, additional engineering controls might consist of enclosing a process or isolating it to reduce the number of people who might be exposed to lead, according to Rowntree. The biggest risk of exposure in a ferrous/steel foundry, she said, is in the melting and pouring operations. Whatever your scrap provider tells you, she asserted, there’s always lead present in ferrous and steel scrap, and lead is emitted into the air during these fundamental casting operations. Isolation isn’t always practical in these areas, but automation may be, though it’s expensive and requires planning. Work practice controls, such as job rotation, are allowed by the current federal standard, said Rowntree, but the low threshold of allowable numbers in California’s proposed levels will likely render that strategy moot.
“The bottom line is,” said Rowntree, “it’s going to cost a boatload of money.”
Miksad at BCI added that, depending on the size of the building, overhauling engineering controls can be extravagantly expensive. “In the lead battery industry, we’ve seen $800,000 for a new baghouse at a small facility. And for a big facility, $8 million––it just depends on the facility, the size, and the level of particulate you need to control, because all that changes the airflow.”
Further, when BCI evaluated the economic feasibility of achieving the new PEL in a lead battery manufacturing facility in California about six years ago, it estimated costs would approach 50% of annual profits every year for 10 years.
“Then you also have the technical feasibility of permits and construction,” Miksad added. “If Cal OSHA makes the rule effective on Day 1, this would ignore the fact that you can’t build an $8 million new baghouse and ventilation system overnight, and you also can’t get permits to do it in California in any sort of reasonable timeframe to achieve an overnight reduction in the PEL … I don’t know how California justifies it, but that’s the reality.”
AFS and its members are committed to the safety and well-being of all employees, said Vice President of Government Affairs Stephanie Salmon, and AFS foundries work hard to comply with all OSHA standards to protect their people. The difficulty is, industry wants to be certain any revised standards are based on a solid scientific foundation. The second difficulty is, only a limited number of experts are qualified to have those scientific conversations.
The substantial plummet in AL and PEL numbers that Cal OSHA is about to recommend begs the question, where did the numbers come from? What’s the science behind the move from air lead levels of 30 micrograms per meter cube to 2, for example?
According to Miksad, about 10 years ago Cal OSHA worked with the state’s Office of Environmental Health Hazard Assessment (OEHHA) to develop a model intended to estimate the blood lead levels that would result from an employee’s exposure to a given air lead level without respiratory protection. Named the
“Leggett +” model for its creator, the model was used to determine what air lead level would lead to OEHHA’s desired blood lead level of 5–10; the model said 2.
“There are some significant flaws in the Leggett + model, which we’ve previously identified to both Cal OSHA and Cal OEHHA, to which they haven’t responded, and they’ve never implemented changes,” Miksad said. “When we look at real-world data, the model does not reflect what is observed in workers in actual production facilities.”
That real-world data is emerging from an ongoing industry-sponsored study supervised by an academic group that’s looking at worker blood leads and the health effects observed in workers at a North American battery manufacturing facility. With a dozen peer-reviewed, published papers, investigators are seeing that the health effects predicted in population-wide studies estimating blood lead are not observable in the worker population they’re studying.
“I leave it to the health scientists to figure out what that means,” said Miksad, “but it does suggest that there’s more to the science than [the Leggett + model] offers.” He added that the findings of the study have been submitted to Cal OSHA and will be re-submitted during the impending comment period this spring.
The Big 5
Overwhelming as the foreboding Cal OSHA rule may seem, foundry owners can take positive action. First, says Salmon at AFS in Washington, get vocal with your state OSHA agencies. AFS will alert the membership as soon as California releases its proposed rule; if you’re in that state, participate in the comment period. Know too that draft rulemaking is also underway in Washington state, and on several points promises to be even more onerous than California. Foundries in all states are strongly encouraged to participate in upcoming AFS endeavors to collect lead and cost data, which the association will use to defend the industry from unreasonable requirements.
Rowntree also urges foundries to fully assess all operation/production areas of every facility and make certain you’re in compliance with current federal and state OSHA standards.
She offers five additional takeaways all U.S. foundries should consider as the lead issue comes roaring back to life:
- Foundry charge material contains lead, she reasserted, no matter what the scrap dealer says. Assume it’s there, and get some air sampling data.
- Obtain baseline exposure data in the melting and pouring operations, particularly in ferrous operations, she said. “I’ve been surprised over the last several years, when we’ve done air sampling on melt decks in ferrous foundries, virtually all of them have lead,” Rowntree said, “and that currently triggers the need for employee training and blood lead testing. Get air sampling data now––it’ll only become more important in the future.”
- Lead ingestion matters. Even if airborne exposures are well controlled, employees may still come into contact with settled lead dust on surfaces. Rowntree said transfer of lead from hands to mouth will result in higher BLLs. Foundries need to establish rigorous hygiene protocols in employee lunchrooms, and prohibiting food and beverage in production areas is also advised. OSHA’s expectations for surface cleanliness can be difficult to meet, she added.
- Other jobs/tasks in your operations may have significant lead exposure. Rowntree said machining and deburring of lead-containing castings may create low airborne lead exposures, which, even if they are below current OSHA PEL or AL, could exceed proposed limits in California and Washington state. Maintenance of equipment and contracted duct cleaning work are other areas the foundry should pay attention to.
- Bottom line, OSHA already thinks lead is a big deal, and inspectors have been aggressively enforcing the current lead standard in nonferrous foundries. Minimally, make sure you’re in compliance with the current standard, Rowntree emphasized. “Review your current program and shore it up.”
Update: Cal/OSHA’s Occupational Safety and Health Standards Board released its proposed rule to update the General Industry and Construction standards for occupational lead on March 6. Cal/OSHA has set a 45-Day comment period, with comments due to the agency no later than April 20, 2023. The text released is largely the same as the rule’s draft form this article is based on.