OSHA Beryllium Rule Maintains “Ancillary” Protections for Construction, Shipyards
A final rule published in the Federal Register on September 30 maintains “ancillary” protections for workers in OSHA’s beryllium standard for the construction and shipyard industries. The rule does not affect requirements to comply with OSHA’s permissible exposure limit of 0.2 µg/m3 and short-term exposure limit of 2 µg/m3 for beryllium. OSHA had previously proposed removing the ancillary provisions—which include requirements for exposure assessment, control methods, respiratory protection, personal protective equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping—because, according to the agency, they overlapped with requirements in other OSHA standards and were therefore unnecessary. The final rule backs off that assessment. “OSHA finds that other OSHA standards do not duplicate the requirements of the ancillary provisions in the beryllium standards for construction and shipyards in their entirety,” the rule reads. “Thus revoking all of the ancillary provisions and leaving only the PEL and STEL would be inconsistent with OSHA's statutory mandate to protect workers from the demonstrated significant risks of material impairment of health resulting from exposure to beryllium and beryllium compounds.”
Employers in the construction and shipyard industries have until Sept. 30, 2020, to comply with the ancillary provisions. Few occupational hazards in recent years have received as much regulatory attention in the United States as beryllium. The current PEL and STEL were adopted in a final standard published in January 2017, near the end of the Obama administration. The standard included three separate rules for general industry, construction, and shipyards. In June 2017, OSHA, as part of the Trump administration, issued a proposed rule to revoke the ancillary provisions for construction and shipyards while retaining the PEL and STEL for those sectors. During a sixty-day public comment period, the agency received more than seventy comments on the proposal. The following year, OSHA issued a final rule that contained clarifications to the standard for general industry regarding provisions related to dermal contact, as well as disposal and recycling of materials containing beryllium. That rule became effective in July 2018. The agency then published a notice of proposed rulemaking, or NPRM, that would modify several definitions related to beryllium in the general industry standard. OSHA is still working on this rule. On October 7, one week after finalizing the rule that maintained the ancillary protections for construction and shipyards, OSHA proposed a new rule that “more appropriately tailor[s] the requirements” of the beryllium standards to the construction and shipyard industries, according to an OSHA press release. The agency stated that the proposed rule would “ensure consistency” with the standard for general industry regarding materials with “trace amounts” of beryllium, which is defined as materials that contain less than 0.1 percent beryllium by weight. For these materials, the beryllium standard does not apply provided the employer has data demonstrating that employee exposure will remain below the action level. The proposed rule would revise paragraphs in the standards for construction and shipyards that address methods of compliance, respiratory protection, PPE, housekeeping, medical surveillance, hazard communication, and recordkeeping, OSHA said. The agency is accepting comments on the proposal until Nov. 7. Both the Sept. 30 final rule and the Oct. 7 proposed rule are available in the Federal Register.
Employers in the construction and shipyard industries have until Sept. 30, 2020, to comply with the ancillary provisions.