Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On October 8, 2019, the Occupational Safety and Health Administration (OSHA) issued a new Notice of Proposed Rulemaking on Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, 84 Fed. Reg. 53902 (Oct. 8, 2019). The proposed rule represents the latest in OSHA’s multi-year effort to attempt to regulate beryllium outside of general industry workplaces, where exposure to beryllium primarily exists. OSHA provided the public a 30-day period to submit written comments on the proposal, which ended on November 7, 2019. OSHA also held an informal public hearing on the proposed rule on December 3, 2019. Hearing participants have until January 16, 2020 to submit additional evidence and data on the proposal and until January 31, 2020 to submit final briefs and summations.
Regulatory History on Beryllium Exposure
OSHA’s recent history regarding its attempt to regulate beryllium began in 2015, when OSHA issued its original proposed rule to comprehensively regulate beryllium in general industry. That proposal did not include construction and shipyards within its scope. This was expected, as the evidence OSHA examined regarding adverse health effects from beryllium exposure was outside of the construction and shipyard industries.
Despite OSHA’s limited proposal, on January 9, 2017 – at the very end of President Obama’s second term – OSHA issued its first final beryllium rule, which included the construction and shipyard industries within its scope. The 2017 final rule adopted a comprehensive approach to addressing beryllium in construction. In addition to the lowered permissible exposure limit (PEL) and the adoption of the short-term exposure limit (STEL), OSHA implemented a number of ancillary provisions, typical of OSHA health standards: (1) assessing employees’ exposure to airborne beryllium; (2) establishing beryllium-regulated areas (and competent persons); (3) developing a written exposure control plan; (4) providing personal protective work clothing and equipment; (5) establishing surveillance; (6) providing medical removal for employees who have developed Chronic Beryllium Disease or been confirmed positive for beryllium sensitization; and (7) providing appropriate training.
As it relates to construction and shipyards, OSHA’s first final rule was short-lived, as the current administration quickly proposed to scale back the rule as it applied to those industries and only mandate a reduced PEL and STEL, but no ancillary provisions. After further consideration, OSHA determined that these ancillary provisions might not be necessary given protections to construction employees from other OSHA standards.
OSHA spent two years reviewing comments from this second proposal. In a somewhat surprising move, in September 2019, the Agency determined not to adopt the second proposal. Instead, it reversed course and re-adopted the ancillary provisions from the 2017 final rule. However, OSHA stated that it wanted to issue yet another proposed rule to further narrow the ancillary provisions, and thus delayed the compliance dates for this second final rule until September 30, 2020. This would allow the Agency time to develop a new proposal to revise or remove specific provisions.
October 8, 2019 Proposed Rule
It is with this regulatory history that OSHA issued this latest Proposed Rule. The October 8, 2019 proposal would continue to maintain the reduced PEL and STEL, but also make revisions to the ancillary provisions, short of removing them altogether.
Under the Proposed Rule, OSHA would require employers to develop written exposure control plans that list operations and job titles reasonably expected to involve exposure to beryllium. The provisions would also require employers to establish procedures for restricted access work areas where exposure to beryllium could reasonably exceed the PEL or STEL as well as procedures to ensure the integrity of each containment in the employer’s written exposure control plan. Under the proposal, employers would also be prohibited from rotating employees to different jobs in order to achieve compliance with the PEL. Finally, the revised provisions would permit the use of compressed air for cleaning without a ventilation system in circumstances where there is a limited quantity of dust.
OSHA’s rulemaking is ongoing. Participants at the December 3, 2019 hearing who filed notices of intention to appear may submit additional evidence and data relevant to the hearing up until January 16, 2020. After which, there will be an additional 15-day period, until January 31, 2020, for submission of final briefs, arguments, and summations.
Construction and shipyard employers are encouraged to continue tracking this rulemaking as the final standard may result in significant burdens and the need to assess a variety of work activities for potential beryllium exposures.