Labor & Employment Law Daily OSHA proposes to revise beryllium standards for shipyards and construction
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Wednesday, October 9, 2019

OSHA proposes to revise beryllium standards for shipyards and construction

By Pamela Wolf, J.D.

As promised in its September 30, 2019, final rule delaying most compliance deadlines for the beryllium in shipyards and construction standards set forth in its earlier January 2017 final rule, OSHA is proposing to revise those standards in a notice of proposed rulemaking (NPRM) scheduled for publication in the Federal Register October 8. There will be a 30-day public comment window.

The agency also will hold an informal public hearing on the proposed changes on December 3 of this year.

Rulemaking goals. OSHA said that it has proposed to revise its standards for occupational exposure to beryllium and beryllium compounds in the construction and shipyards, in order to:

1. More appropriately tailor the requirements of the construction and shipyards standards to the particular exposures in these industries in light of partial overlap between the beryllium standards’ requirements and other OSHA standards;
2. Aid compliance and enforcement across the beryllium standards by avoiding inconsistency, where appropriate, between the shipyards and construction standards, and proposed revisions to the general industry standard; and
3. Clarify certain requirements with respect to materials containing only trace amounts of beryllium.

OSHA has preliminarily determined that these proposed changes would maintain safety and health protections for workers, while facilitating compliance with the standards and yielding some cost savings. The proposed rule does not affect the general industry beryllium standard.

Compliance deadline delayed. On September 30, 2019, OSHA issued a final rule extending the compliance dates for the construction and shipyards ancillary provisions by one year and reaffirming the significant risk findings from the January 9, 2017, final rule (see Final OSHA rule delays most compliance deadlines for beryllium construction, shipyard standards, September 27, 2019).

Considering prior comments. In this NPRM, OSHA is proposing revisions to the ancillary provisions of the construction and shipyard standards that are tailored to these sectors, taking into account relevant comments to the following:

  • June 2017 construction and shipyards proposal;
  • General industry stakeholder input that led to the agency’s May 7, 2018, direct final rule (DFR) (adopting clarifying amendments to address the application of the beryllium standard for general industry to materials containing trace amounts of beryllium); and
  • December 11, 2018, substantive proposed rule (to modify certain general industry beryllium standard definitions and provisions on methods of compliance, personal protective clothing and equipment, hygiene areas and practices, housekeeping, medical surveillance, communication of hazards, and recordkeeping).

Seeking more comments. OSHA explained that while it considered comments on the June 2017 proposal to the extent they continue to be relevant to this latest rulemaking, it requests that stakeholders, including those who commented on the June 2017 proposal, also comment on the proposed revisions to the ancillary provisions in this proposal.

ACCSH consultation. Last month, the federal health and safety agency consulted with the Advisory Committee on Construction Safety & Health (ACCSH) regarding this NPRM. ACCSH recommended that OSHA proceed with the proposal to “revise the beryllium standard for construction to ensure that the ancillary provisions are tailored to the construction industry and align with the general industry standard, where appropriate,” and unanimously recommended that OSHA do so as soon as possible. OSHA said that it will publish meeting minutes and copies of materials presented to the Committee in the ACCSH docket.

Brief overview. OSHA preliminarily determined that when viewed together, the limited exposures in the construction and shipyards industries and the partial overlap between the beryllium standards and other OSHA standards make it appropriate to revise both the construction and shipyards beryllium standards. The rationales for these proposed revisions fall into three categories.

Unnecessary provisions. First, OSHA is proposing to remove or modify some provisions which—although appropriate in the general industry context—may be unnecessary or require revision to appropriately protect employees in the construction and shipyards industries. Operations with beryllium exposure in the construction and shipyards industries are significantly less varied, and employees are exposed to materials with significantly lower content beryllium than in the general industry sector, the agency said. Further, employees in these industries receive the protections of several other OSHA standards.

Alignment of standards. The agency also proposes to revise some provisions of the construction and shipyard standards to avoid inconsistencies with the clarifying changes the agency proposed in the December 11, 2018, general industry proposal. OSHA wants to align these standards to the extent possible because where there is no substantive difference among industries with respect to a particular provision, applying similar requirements across industries aids both compliance and enforcement. Conversely, applying different requirements to identical situations may lead to confusion.

While most of the proposed changes in the December 2018 proposed rule were designed specifically for general industry, OSHA is proposing to align changes to paragraph (b), medical definitions; paragraph (k), medical surveillance; and paragraph (n), recordkeeping for workers’ Social Security Numbers (SSNs) because the rationale underlying these proposed changes applies equally in the construction and shipyards contexts.

Dermal contact. Finally, OSHA is proposing to revise certain paragraphs of the construction and shipyard standards to address the application of provisions related to dermal contact to materials containing beryllium in trace quantities. In the general industry DFR, OSHA clarified that provisions triggered by dermal contact with beryllium or beryllium contamination would apply only for dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight.

OSHA’s rationale for this final set of proposed changes dates back to the agency’s August 7, 2015, beryllium NPRM (which led to the 2017 final rule). In that 2017 NPRM, OSHA proposed to exempt materials containing less than 0.1 percent beryllium by weight on the premise that workers exposed only to beryllium as a trace contaminant are not exposed at levels of concern.

However, OSHA noted evidence of high airborne exposures in construction and shipyard sectors, particularly during blasting operations and cleanup of spent media. OSHA thus proposed for comment several regulatory alternatives, including an alternative that would expand the scope of the proposed standard to also include all operations in general industry where beryllium exists only as a trace contaminant and an alternative that would expand the scope to include employers in the shipyard and maritime sectors.

Informal public hearing. OSHA will hold an informal public hearing this latest NPRM on December 3, 2019, in the Frances Perkins Building, U. S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210. The hearing will begin at 9:30 a.m. and is expected to last until 5:30 p.m. (ET). A schedule will be released prior to the start of the hearings; it may be amended at the discretion of the presiding administrative law judge.

Interested persons who intend to present testimony or question witnesses at the hearing must submit a notice of intention to appear within 30 days of the NPRM’s publication in the Federal Register. Interested persons who request more than 10 minutes to present testimony or intend to submit documentary evidence at the hearing must submit the full text of their testimony and all documentary evidence by this deadline.

Comments. Comments on the NPRM also must be submitted within 30 days of its publication in the Federal Register.

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