A Proposed Rule for Beryllium

OSHA has published a new proposed rule on beryllium exposure that rolls back some requirements for the construction and maritime industries found in the final rule initially issued in January 2017.

On Jan. 9, OSHA issued a final rule that established new protections for workers who are exposed to beryllium in general industry, construction and shipyards. Beryllium is a lightweight metal used primarily in specialty alloys and beryllium oxide ceramics. It also is present as a trace material in metal slags.

OSHA on June 23 announced a new proposed rule that would modify the agency’s recent beryllium standards for the construction and shipyard sectors. The proposal for shipyards and construction would maintain the requirements for exposure limits (permissible exposure limit of 0.2 μg/m3 and short-term exposure limit of 2.0 μg/m3), which will continue to protect workers from a serious beryllium-related lung disease known as chronic beryllium disease. However, it revises the application of what it called “ancillary” provisions such as housekeeping, medical surveillance and personal protective equipment (PPE) found in the January 2017 final standards for the construction and shipyard industries.

The United Steelworkers (USW) on June 23 blasted the administration’s proposal to cancel what it called “important protections” for shipyard and construction workers exposed to beryllium. According to the USW, under the new proposal released by OSHA, “employers would no longer have to measure beryllium levels in the workplace or provide medical testing to workers at risk of fatal lung disease. In addition, workers would not have the right to wear protective clothing or to shower at the end of the work shift, making it possible for beryllium to be taken home and exposed to spouses and children.”

Some stakeholders, as well as members of Congress, see it differently. They allegedly raised concerns that they had not had an opportunity to comment on the application of the rule to their industries when the rule was developed in 2015-16.

In a statement, the Abrasive Blasting Manufacturers Alliance, makes a distinction between beryllium alloy and the mineral form of beryllium, which is found in trace amounts in abrasive blasting. “Exposure to beryllium alloy and other processed forms of beryllium have indeed been found to lead to illness in some cases,” the ABMA conceded, adding, “However, there have been no known cases of exposure to airborne beryllium in abrasive blasting leading to illness. Scientific studies suggest that these may be the result of several factors, one of which may be a different immune response triggered by processed beryllium, which may cause chronic beryllium disease, and other forms of beryllium, which may not. It is misleading to compare two very different forms of beryllium, and counterproductive to regulate them the same way.”

As of May 16, $60,000 has been spent on lobbying – presumably against requirements found in the January 2017 final rule for beryllium – by the ABMA, which was formed by companies that sell a byproduct – known as coal slag – that is created by the burning of coal by utility companies. Coal slag is used for sandblasting activities and contains trace levels of beryllium.

According to OSHA, the new proposal provides an “opportunity to comment” for the construction and shipyard industries and the public. The new proposal makes changes to the rule only for the shipyard and construction sectors. The general industry standard is unaffected by the proposal. A number of interested parties, including ABMA, participated during the comment period for the January 2017 rule for beryllium. ABMA sent a 24-page document to OSHA dated Nov. 5, 2015 that listed its concerns about the proposed rule.

In a statement, Jessica Martinez, co-executive director of the National Council for Occupational Safety and Health (National COSH), appears to take issue with claims that OSHA did not properly vet the beryllium standard before including the construction and shipyard industries. She pointed out that OSHA “spent more than a decade on the rulemaking process for the standard that would be severely weakened by the proposal… It is well documented that shipyard and construction workers can be exposed to beryllium. They need the same protections as other workers – including monitoring and assessing exposure to potential harm and taking steps to eliminate hazards which can lead to life-threatening diseases.”

According to a press release sent out by the agency, “OSHA has evidence that exposure in these industries is limited to a few operations and has information suggesting that requiring the ancillary provisions broadly may not improve worker protection and be redundant with overlapping protections in other standards. Accordingly, OSHA is seeking comment on, among other things, whether existing standards covering abrasive blasting in construction, abrasive blasting in shipyards and welding in shipyards provide adequate protection for workers engaged in these operations.”

In a letter sent to the Department of Labor, the Office of Management and Budget and the Solicitor of Labor dated March 16, Rep. Robert C. “Bobby” Scott, ranking member of the U.S. House Committee on Education and the Workforce, shared his displeasure with the initial delay of the beryllium standard, and took particular issue with several reasons given for the initial delay in the standard’s effective date, among them:

• OSHA provided no scientific evidence that the occupational exposure to beryllium in the construction or shipyard industries presents an identifiable or measurable health risk;
• The beryllium rule, as applied to construction and shipyards imposes onerous requirements, is unnecessary and could jeopardize the health of workers who already are protected against targeted risks; and
• There was not adequate notice of OSHA’s intent to include construction and shipyard sectors in a final beryllium rule and that stakeholders did not have a meaningful opportunity to debate the economic and technological feasibility of the requirements applicable to those industries.

“There is support from industry, labor and the public for this rule,” wrote Scott, who included a number of examples of testimony from impacted stakeholders in his letter. “The only companies who vehemently object to this rule do not even employ abrasive blasters in the construction or shipyard industries. Rather, the objectives come from a coalition of companies who oppose more stringent safety protections for their customers, because they are fearful that their customers may reduce coal slag consumption by, perhaps, using less harmful substitutes. Their commercial interests should not trump the health and safety protections of workers employed in construction and shipyards.”

The Notice of Proposed Rulemaking for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors will be published in the Federal Register on June 27. OSHA encourages the public to participate in this rulemaking by submitting comments during the 60-day comment period. Click here for information on submitting comments on the proposed rule and requesting public hearings.

OSHA also announced it will not enforce the Jan. 9, 2017, construction and shipyard standards without further notice while determining whether to amend the Jan. 9 rule.

The USW, which represents 850,000 workers across the country, said it represents workers in both the maritime and construction industries, including workers at the Newport News shipyard who build nuclear aircraft carriers and submarines for the Navy.

“No worker should have to die from chronic beryllium disease,” said Michael Wright, the USW’s Director of Health, Safety and Environment,” and the administration has no business discriminating against any group of workers just because they happen to be in the wrong industry.”