Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors
Final rule.
CFR Part: "29 CFR Parts 1915 and 1926"
RIN Number: "RIN 1218-AD21"
Citation: "84 FR 51377"
Document Number: "Docket No. OSHA-H005C-2006-0870"
Page Number: "51377"
"Rules and Regulations"
Agency: "
SUMMARY: OSHA is finalizing the proposed rule on occupational exposure to beryllium and beryllium compounds in construction and shipyards by delaying the compliance deadlines for nearly all provisions of the standards to
DATES:
This rule is effective
ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates
Copies of thisFederal Register> document and news releases: Electronic copies of these documents are available at OSHA's web page at https://www.osha.gov.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Mr.
General information and technical inquiries: Mr.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II.
III. Events Leading to the Final Rule
IV. Final Economic Analysis
V. OMB Review Under the Paperwork Reduction Act of 1995
VI. Federalism
VII. State Plan States
VIII. Unfunded Mandates Reform Act
IX. Environmental Impacts
X. Consultation and Coordination With Indian Tribal Governments
XI. Health and Risk
XII. Summary and Explanation of the Final Rule
Authority and Signature
Amendments to Standards
Citation Method In the docket for the beryllium rulemaking, found at http://www.regulations.gov, every submission was assigned a document identification (ID) number that consists of the docket number (OSHA-H005C-2006-0870) followed by an additional four-digit number. For example, the document ID number for OSHA's Preliminary Economic Analysis and Initial Regulatory Flexibility Analysis is OSHA-H005C-2006-0870-0426. Some document ID numbers include one or more attachments (see, e.g., Document ID OSHA-H005C-2006-0870-2142).
When citing exhibits in the docket, OSHA includes the term "Document ID" followed by the last four digits of the document ID number, the attachment number or other attachment identifier, if necessary for clarity, and page numbers (designated "p." or "Tr." for pages from a hearing transcript). In a citation that contains two or more document ID numbers, the document ID numbers are separated by semicolons.
I. Executive Summary
On
OSHA has decided not to proceed with the proposed revocation of the construction and shipyards standards' ancillary provisions. As discussed herein, the agency has determined that there is not complete overlap in protections between the standards' ancillary provisions and other OSHA standards. Therefore, because of its statutory responsibility to protect workers who face significant risk of material impairment of health from beryllium exposure, the agency cannot issue a final rule revoking all of the ancillary provisions in the standards. To the extent there is overlap between specific requirements within the ancillary provisions and other OSHA standards, OSHA will account for that overlap in the new proposal. In that rulemaking, OSHA will provide the public with notice of the more limited changes the agency believes may be appropriate, either because there is some measure of overlap with other OSHA standards or for separate reasons, such as to make the standards more consistent with the changes OSHA has made, or proposed to make, to the general industry standard for beryllium (see 83 FR 31045; 83 FR 63746) in the period since OSHA issued the construction and shipyards proposal in
After careful consideration of the comments and information received in response to the proposal, OSHA is delaying the compliance dates for all ancillary provisions of the construction and shipyards standards for beryllium until
II.
The purpose of the Occupational Safety and Health Act of 1970 ("the OSH Act" or "the Act"), 29 U.S.C.
An occupational safety or health standard is a standard "which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment" (29 U.S.C. 652(8)). The Act provides that in promulgating health standards dealing with toxic materials or harmful physical agents, such as the
The
The Court further observed that what constitutes "significant risk" is "not a mathematical straitjacket" and must be "based largely on policy considerations" (Id. at 655, 655 n.62). OSHA retains:
great discretion . . . under Section 3(8) [of the Act], especially in an area where scientific certainty is impossible. In the first instance, it is the agency itself that determines the existence of a "significant" risk. . . . In making the difficult judgment as to what level of harm is unacceptable, the agency may rely on its own sound "considerations of policy" as well as hard factual data. . . .
(
The Act also authorizes the Secretary to modify any occupational safety or health standard. 29 U.S.C. 655(b). The
OSHA is required to set standards "on the basis of the best available evidence," 29 U.S.C. 655(b)(5), and its determinations are "conclusive" if supported by "substantial evidence in the record considered as a whole," 29 U.S.C. 655(f). As noted above, the
OSHA standards must be both technologically and economically feasible (see Lead I, 647 F.2d at 1264). The
With respect to economic feasibility, the courts have held that "a standard is feasible if it does not threaten massive dislocation to or imperil the existence of the industry" (Id. at 1265 (internal quotation marks and citations omitted)). A court must examine the cost of compliance with an OSHA standard:
in relation to the financial health and profitability of the industry and the likely effect of such costs on unit consumer prices . . . . [T]he practical question is whether the standard threatens the competitive stability of an industry, . . . or whether any intra-industry or inter-industry discrimination in the standard might wreck such stability or lead to undue concentration.
(Id. (internal citations omitted)). The courts have further observed that granting companies reasonable time to comply with new PELs may enhance economic feasibility (see Id.).
Because section 6(b)(5) of the Act explicitly imposes the "to the extent feasible" limitation on the setting of health standards, OSHA is not permitted to use cost-benefit analysis to make its standards-setting decisions (29 U.S.C. 655(b)(5)). An OSHA standard must be cost effective, which means that the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection, but OSHA cannot choose an alternative that provides a lower level of protection because it is less costly (see Int'l Union, UAW v. OSHA, 37 F.3d 655, 668 (
III. Events Leading to the Final Rule
On
On
FOOTNOTE 1 For a more comprehensive discussion of the events leading to the proposed rule, see the preamble to the 2017 NPRM (82 FR at 29185-88). END FOOTNOTE
FOOTNOTE 2 Subsequently, in
On
On
On
IV. Final Economic Analysis
A. Summary of Economic Impact
OMB has determined that this final rule is not economically significant. The rule revises 29 CFR 1915.1024(o)(2) and 29 CFR 1926.1124(o)(2) to extend the deadline for compliance with certain provisions of the construction and shipyards beryllium standards until
B. Final Economic Analysis and Regulatory Flexibility Certification
Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the effects of certain rules that OSHA promulgates. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
This final rule is not an "economically significant regulatory action" under E.O. 12866 or UMRA, or a "major rule" under the Congressional Review Act (5 U.S.C.
At a discount rate of 3 percent, this final compliance-date extension yields annualized cost savings of
1. Changes to the Baseline: Updating to 2018 Dollars and Removing Familiarization Costs; Discussion of Overhead Costs
Because more than two years have elapsed since promulgation of the beryllium standards on
FOOTNOTE 3 In the 2017 NPRM, the agency estimated no cost savings for familiarization with the new beryllium standards because it believed all rule familiarization costs had already been incurred (82 FR at 29209). The agency received no comments disagreeing with this estimate. END FOOTNOTE
OSHA notes that it did not include an overhead labor cost in the 2017 analysis and has not accounted for such costs in this FEA. There is not one broadly accepted overhead rate, and the use of overhead to estimate the marginal costs of labor raises a number of issues that should be addressed before applying overhead costs to analyze the cost implications of any specific regulation. There are several ways to look at the cost elements that fit the definition of overhead, and there is a range of overhead estimates currently used within the federal government--for example, the
FOOTNOTE 4 Cody Rice,
FOOTNOTE 5
If OSHA had included an overhead rate when estimating the marginal cost of labor, without further analyzing an appropriate quantitative adjustment, and adopted for these purposes an overhead rate of 17 percent on base wages, the cost savings of this final rule would increase to approximately
FOOTNOTE 6 OSHA used an overhead rate of 17 percent on base wages in a sensitivity analysis in the FEA (OSHA-2010-0034-4247, p. VII-65) in support of the
2. Changes to the Standard: Extension of the Compliance Date to
The construction and shipyards beryllium standards went into effect on
OSHA estimated the cost savings of the final rule relative to baseline costs, where baseline costs reflect the costs of compliance without the final rule's changes to the compliance dates. This final rule extends the compliance dates for all provisions except the PEL and STEL to one year after the publication date of this final rule. In the 2017 final economic analysis, the cost of compliance with the PEL and STEL was calculated as the cost of respiratory protection for employees exposed over the PEL and STEL because until the compliance date for the engineering controls provision, employers were permitted to use respirators to comply with the PEL and STEL. Hence, there are no cost savings due to respirators. Because the exact publication date of this final rule was uncertain at the time this FEA was being prepared but was expected to be in
This results in the following extensions:
* For engineering controls, the compliance date will be extended by 0.5 years.
* For all ancillary provisions, the compliance date will be extended by 1 year from the date of publication of this rule. /7/
FOOTNOTE 7 For the purposes of this FEA, respirators are not considered to be among the ancillary provisions because employers are permitted to use respirators to comply with the PEL and STEL until the engineering controls provision becomes enforceable; OSHA therefore attributed the cost of respirators to compliance with the PEL and STEL. END FOOTNOTE
OSHA commonly estimates annualized costs over a ten-year period and will do so here. For the baseline, OSHA estimates 10 years of costs, starting in March of 2020 for engineering controls and in September of 2019 for all ancillary provision costs. OSHA then calculates the present values of these costs as of September of 2019 using the appropriate discount rate. Similarly, to calculate the cost of the construction and shipyard beryllium standards as modified by this date extension final rule, OSHA estimates 10 years of costs for all ancillary provisions starting in September of 2020 and again creates present values as of September of 2019. The difference between the present values across the two cases gives total cost savings of this final rule. Annualizing the present value of cost savings over ten years, the result is an annualized cost savings of
The cost savings for the baseline and compliance date extension by provision and year are presented below in Table 1 at undiscounted, 3 percent, and 7 percent values. As shown in Table 1, and described elsewhere in this final rule, the cost savings described in this FEA reflect savings only for provisions covered by the compliance date extension. The present value of costs for each provision by period and discount rate are shown below in Table 2 and the present value of costs for each provision by period, discount rate, and industry are shown in Table 3.
3. Economic and Technological Feasibility
In the final economic analysis for the 2017 construction and shipyards beryllium standards, OSHA concluded that the standards were technologically feasible. OSHA has determined that the standards as modified by this final rule are also technologically feasible because the rule does not change any of the standards' substantive requirements and simply gives employers more time to comply with the standards' requirements. Furthermore, OSHA previously concluded that the beryllium standards were economically feasible. As this final rule does not impose any new substantive requirements, and results in cost savings, OSHA has concluded that the standards as modified by this final rule are also economically feasible.
4. Effects on Benefits
This final rule delays the compliance date for most ancillary provisions by one year and delays the requirement to implement engineering controls by half a year. This delay provides time for OSHA to issue a revised proposal modifying the ancillary provisions of the construction and shipyard standards and allows employers to avoid the undue costs of complying with standards that may change in the near future.
In the 2017 construction and shipyards proposal, OSHA explained it believed that it had underestimated baseline compliance with the ancillary provisions in the 2017 final rule. As such, OSHA stated it believed there would be limited to no benefits, in terms of reduced cases of chronic beryllium disease (CBD), attributable to the ancillary provisions, and thus limited to no foregone benefits if the ancillary provisions were to be revoked. However, many commenters pointed out that other existing standards did not provide protection identical to the ancillary provisions of the beryllium standards, so baseline compliance was not actually as high as OSHA believed in the 2017 proposal to revoke the ancillary provisions. For example, the
In light of these and other similar comments, OSHA recognizes that, while it is possible that baseline compliance is higher for some provisions than was estimated in the 2017 final rule, baseline compliance with other provisions may not be as high as it believed in the 2017 proposal. OSHA has decided not to revoke all of the ancillary provisions in the construction and shipyard sectors so that it may issue a new proposal for these sectors with a revised collection of ancillary provisions that is appropriate for those sectors. OSHA expects this revised collection of ancillary provisions to maintain the protections and benefits of the 2017 final rule, and will make it more likely that the regulated community will realize the full benefits of the rule, as estimated in the 2017 final economic analysis. OSHA believes that any short-term loss of benefits associated with this extension of compliance dates will be offset in the long term by the benefits resulting from the agency's proposed rulemaking.
5. Certification of no Significant Impact on a Substantial Number of Small Entities
This final rule will result in cost savings for affected employers, and those savings fall below levels that would have a significant positive economic impact on a substantial number of small entities. /8/ Therefore, OSHA certifies that this final rule does not have a significant impact on a substantial number of small entities.
FOOTNOTE 8 OSHA investigated whether the projected cost savings would exceed its threshold of 1 percent of revenues or 5 percent of profits for small entities and very small entities for every industry. To determine if this was the case, OSHA returned to its original regulatory flexibility analysis (in the 2017 FEA) for small entities and very small entities. OSHA found that the cost savings of this final rule are such a small percentage of revenues and profits for every affected industry that OSHA's threshold would not be exceeded for any industry. END FOOTNOTE
BILLING CODE 4510-26-P
See illustration in Original Document.
See illustration in Original Document.
See illustration in Original Document.
See illustration in Original Document.
See illustration in Original Document.
BILLING CODE 4510-26-C
V. OMB Review Under the Paperwork Reduction Act of 1995
The current beryllium standards for occupational exposure to beryllium--general industry (29 CFR 1910.1024), construction (29 CFR 1926.1124), and shipyard (29 CFR 1915.1024)--contain collection of information (paperwork) requirements that have been approved by the
In OSHA's
VI. Federalism
OSHA reviewed this final rule in accordance with the Executive Order on Federalism (E.O. 13132, 64 FR 43255 (
Under Section 18 of the OSH Act (29 U.S.C.
OSHA previously concluded from its analysis that promulgation of the beryllium standard complies with E.O. 13132 (82 FR at 2633). In states without an OSHA-approved State Plan, this final rule limits state policy options in the same manner as every standard promulgated by OSHA. For State Plan States, Section 18 of the OSH Act, as noted in the previous paragraph, permits State Plan States to develop and enforce their own beryllium standards provided these requirements are at least as effective in providing safe and healthful employment and places of employment as the requirements specified in this final rule.
VII. State Plan States
When Federal OSHA promulgates a new standard or a more stringent amendment to an existing standard, State Plans must amend their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary, e.g., because an existing state standard covering this area is "at least as effective" as the new Federal standard or amendment (29 CFR 1953.5(a)). The state standard must be at least as effective as the final Federal rule. State Plans must adopt the Federal standard or complete their own standard within six months of the promulgation date of the final Federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, State Plans do not have to amend their standards, although OSHA may encourage them to do so. The 21 states and 1 U.S. territory with OSHA-approved occupational safety and health plans covering the private sector and state and local governments are:
The new amendments to OSHA's beryllium rule do not impose any new requirements on employers. Accordingly, State Plans do not have to amend their standards to extend the compliance dates for their beryllium rules, but they may do so within the limits of this final rule.
VIII. Unfunded Mandates Reform Act
When OSHA issued the 2017 final rule establishing standards for occupational exposure to beryllium, it reviewed the rule according to the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C.
As discussed above in Section IV of this preamble, OSHA has determined that the extension of the compliance dates in this final rule does not impose any costs on private-sector employers beyond those costs already identified in the 2017 final rule for beryllium. Because OSHA reviewed the total costs of the 2017 beryllium rule under UMRA, no further review of those costs is necessary. Therefore, for purposes of UMRA, OSHA certifies that this final rule does not mandate that state, local, or tribal governments adopt new, unfunded regulatory obligations of, or increase expenditures by the private sector by, more than
IX. Environmental Impacts
OSHA has reviewed this final beryllium rule according to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the regulations of the
X. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with E.O. 13175 (65 FR 67249) and determined that it does not have "tribal implications" as defined in that order. This rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
XI. Health and Risk
As part of the 2017 final rule, OSHA concluded that employees exposed to beryllium and beryllium compounds at the preceding PELs were at significant risk of material impairment of health, specifically CBD and lung cancer. OSHA also reviewed the exposure data for workers exposed to beryllium in abrasive blasting in construction and shipyards and welding in shipyards, and determined, based on the exposure levels observed, that there is a significant risk to those workers of CBD and lung cancer (82 FR at 29183). In the 2017 construction and shipyards NPRM, OSHA described its previous findings and invited further comment and data "on the risks of sensitization, CBD, and lung cancer among workers involved in abrasive blasting and welding operations in shipyards and construction" (82 FR at 29221). After reviewing the comments and information received in response to this invitation, OSHA reaffirms its finding that the best available evidence indicates that there is a significant risk of material impairment of health for workers exposed to beryllium in construction and shipyards. /9/
FOOTNOTE 9 Many commenters also expressed concern about the provisions of the standards related to dermal contact with beryllium. While OSHA does not address these comments in this final rule, the forthcoming rulemaking will propose changes related to dermal contact with beryllium. END FOOTNOTE
Some commenters, including the
For example, ABMA previously asserted that their members are unaware of any occurrence of beryllium sensitization, CBD, or lung cancer due to beryllium exposure among their employees or their customers' employees (Document ID 1673, p. 9). OSHA addressed such comments in the preamble to the 2017 final rule, finding that ABMA had not presented the agency with any studies or rigorous scientific evidence to support their statements (82 FR at 2641-42). OSHA noted in the
As CISC acknowledged, however, "OSHA does not need to perform an industry-by-industry assessment of significant risk when promulgating health standards" (Document ID 2125, p. 14). OSHA's 2017 final rule risk assessment showed that there is a significant risk of beryllium sensitization and CBD for workers exposed to beryllium at exposure levels of 0.1 ug/m /3 and above. ABMA, CISC, and others attempt to rebut this finding by claiming a lack of disease in their industries without providing any evidence of testing for these conditions among construction and shipyards workers.10/ Information on testing rates in an industry is necessary before any conclusions about disease prevalence can be made. This is particularly so in operations like abrasive blasting, where treating physicians may be unaware of the potential for beryllium exposure. Medical professionals would likely not order a Beryllium Lymphocyte Proliferation Test (BeLPT) unless they know a worker has been exposed to beryllium, and without such a test, CBD is often misdiagnosed. (Document ID 2091; 82 FR 2499, 2705). As the
FOOTNOTE 10 Furthermore, the literature review submitted by ABMA (SOMA) did not identify any studies examining sensitization and CBD in these sectors (Document ID 2142, Attachment 2, pp. 6-7). END FOOTNOTE
Some commenters further argued that OSHA should address possible variability in risk depending on the specific chemical compound or physical form (e.g., particle size) of beryllium. CISC commented that OSHA did not adequately account for "differences in toxicity with the variety of forms of beryllium" (Document ID 2125, pp. 14-18). ABMA and
OSHA also reviewed the Deubner et al. study that
FOOTNOTE 11 Of the 75 workers surveyed for sensitization with the BeLPT, three were identified as sensitized by an abnormal BeLPT result. One of those found to be sensitized was diagnosed with CBD. A follow-up study by Stefaniak et al. (2008) found that beryllium was present at the mill in three forms: Mineral, poorly crystalline beryllium oxide, and beryllium hydroxide (Document ID 1543). END FOOTNOTE
OSHA also acknowledged uncertainty in its risk estimates for lung cancer in the 2017 final rule, stating that the lung cancer risks should be regarded as less certain than its risk estimates for CBD and sensitization (82 FR at 2552). OSHA continues to acknowledge that the solubility of beryllium may affect the risk of lung cancer it poses to exposed workers.
In summary, the comments submitted by ABMA, CISC,
OSHA maintains its conclusion from the 2017 final rule that employees in construction and shipyards are exposed to beryllium at levels above the new action level and PEL, primarily from abrasive blasting activities, and that employees exposed to those levels are at significant risk of developing adverse health effects (82 FR at 2637).
XII. Summary and Explanation of the Final Rule
This section of the preamble explains the final changes that OSHA is making to the beryllium standards for construction and shipyards, as well as the agency's rationales for making the changes and for not adopting its proposal to revoke all ancillary provisions from the beryllium standards for construction and shipyards.
A. Introduction
The 2017 final rule promulgated three standards designed to protect workers from the serious health effects caused by occupational exposure to beryllium and beryllium compounds (see 82 FR 2470 (
Since publication of the 2017 final rule, OSHA has undertaken several additional rulemaking efforts affecting the beryllium standards. On
On
Finally, on
As mentioned above, paragraphs (d) through (n) of the construction and shipyards standards for beryllium contain the ancillary provisions, which augment the exposure limits in paragraph (c). OSHA's 2017 NPRM proposed revoking all ancillary provisions for the construction and shipyards standards while retaining the new PEL of 0.2 [mu]g/m3 and the STEL of 2.0 [mu]g/m3 for those sectors (82 FR 29182). The primary rationale behind the proposal to revoke these provisions was that other OSHA standards might already require equivalent protections. In the 2017 NPRM, OSHA pointed to a number of OSHA standards that already apply to the primary operations involving beryllium exposure in construction and shipyards, which are abrasive blasting in construction and abrasive blasting and welding in shipyards (82 FR at 29183). These standards included the ventilation standard (29 CFR 1926.57) and the mechanical paint removers standard (29 CFR 1915.34), among others. OSHA requested comment on whether standards consisting only of the new, lower PEL and STEL would provide adequate protection to construction and shipyards workers, considering the other standards that apply. The agency also requested comment on whether OSHA should retain any or all of the ancillary provisions and, more particularly, on whether OSHA should retain the medical surveillance provisions (82 FR at 29183).
Some commenters agreed with OSHA's primary rationale for proposing to revoke all ancillary provisions in the construction and shipyards standards (see, e.g., Document ID 2120; 2122; 2142), while others disagreed with that rationale (see, e.g., Document ID 2121; 2124; 2129; 2132; 2133; 2134; 2140). For example, the
Having carefully reviewed the comments and evidence in the record, OSHA has determined that beryllium construction and shipyards standards consisting only of the PEL and STEL would not be sufficiently protective. Other OSHA standards do contain some requirements that overlap with, or duplicate, the requirements of the beryllium standards for construction and shipyards. However, for most ancillary provisions, there is only partial overlap, and for the remainder, there is no overlap at all. This conclusion refutes OSHA's primary rationale for issuing the proposal. Thus, OSHA has determined not to adopt its proposal to remove all ancillary provisions from the construction and beryllium standards.
In its analysis below, OSHA discusses only whether other OSHA standards overlap with each of the beryllium standards' ancillary provisions, and whether OSHA should revoke those provisions on the basis of overlap with existing standards. Other issues, such as whether discrete requirements in the standards are necessary, will be addressed in the forthcoming proposal. OSHA takes this approach because it recognizes that there is not complete overlap between the standards' ancillary provisions and other OSHA standards, and that therefore it cannot issue a final rule revoking all the construction and shipyard ancillary provisions on that basis.
OSHA has also decided not to revoke, in this final rule, discrete portions of ancillary provisions that overlap with other OSHA standards, while retaining parts of other provisions, to ensure that stakeholders have a full opportunity to comment on this action. This is particularly important here, where several commenters emphasized that the ancillary provisions of the beryllium standards are interrelated and cannot be practically and effectively implemented in isolation (see Document ID 2129, p. 8; 3130, p. 2; 2134, p. 3; 2140, p. 4). In addition, in the forthcoming proposal, OSHA intends to propose a number of changes to specific ancillary provisions for issues not addressed by the
The following discussion addresses each ancillary provision, along with the comments in the record regarding overlap or duplication with other OSHA requirements. /12/
FOOTNOTE 12 For a detailed, provision-by-provision explanation of the beryllium standards promulgated in the 2017 final rule, including information on compliance with the requirements of the standards, please see Section XVI, Summary and Explanation of the Standards, in the final rule (82 FR at 2635-2735). END FOOTNOTE
Exposure Assessment, Paragraph (d)
Paragraph (d) of the beryllium standards for construction and shipyards (29 CFR 1926.1124(d) and 1915.1024(d)) requires employers to assess the airborne beryllium exposure of each employee using either a scheduled monitoring approach or a performance option. Reassessment is required when certain changes in the workplace occur. The provision establishes specific methods of sample analysis and requires employers to both provide affected employees the opportunity to observe the exposure monitoring and notify them of the assessment results. In the preamble to the 2017 final rule, OSHA found that this approach to exposure assessment was a "well-recognized and accepted risk management tool" and was "necessary and protective" for beryllium-exposed workers (82 FR at 2619, 2651).
All the commenters who specifically addressed the proposed removal of paragraph (d) opposed it (e.g., Document ID 2109; 2118, p. 1; 2119, p. 2; 2129, p. 5; 2130, p. 2; 2134, p. 2; 2135, pp. 3-4; 2140, p. 7). For example, members of
As indicated by the comments, no other standards duplicate the specific requirements in paragraph (d), such as the requirements to perform assessments at specified intervals and when there are changes in the workplace, along with the requirement for employee notification of results. This is true despite the fact that employers must currently perform some assessment of exposure to comply with the standards' PEL and STEL (which, again, OSHA is currently enforcing). The conclusion that there is no overlap with respect to paragraph (d) supports OSHA's determination not to revoke the standard's ancillary provisions in this final rule.
Regulated Areas (Shipyards) and Competent Person (Construction), Paragraph (e)
Paragraph (e) of the beryllium standard for shipyards (29 CFR 1915.1024(e)) requires employers to establish, maintain, demarcate, and limit access to "regulated areas," which are demarcated areas where airborne beryllium exposure levels are above the PEL or STEL. Employees who enter regulated areas must use respiratory protection and PPE. Paragraph (e) of the beryllium standard for construction (29 CFR 1926.1124(e)), on the other hand, requires employers to designate a "competent person" where airborne exposure to beryllium exceeds the PEL or STEL. The competent person must make frequent and regular inspections of job sites, materials, and equipment, and perform other duties to ensure the proper implementation of the standard and protection of employees. OSHA determined in the 2017 final rule that paragraph (e) is necessary, among other reasons, to limit employee access to areas of the workplace with high levels of beryllium exposure and to ensure that employees who access such areas are properly protected against beryllium exposure (82 FR at 2658-59).
In the 2017 NPRM, OSHA noted that the construction ventilation standard, 29 CFR 1926.57(f), requires certain measures that would limit exposure of workers (82 FR at 29221). Specifically, 29 CFR 1926.57(f)(7) requires that dust not be allowed to accumulate outside abrasive blasting enclosures and that spills be cleaned up promptly (Id.). Furthermore, 29 CFR 1926.57(f)(3) and (4) require ventilation and dust collection and removal systems in abrasive blasting operations (Id.). OSHA stated that compliance with these measures during abrasive blasting should reduce the amount of beryllium-containing dust to be cleaned, thereby protecting workers who clean spent abrasive blasting media after operations are completed (Id.). Additionally, OSHA emphasized the requirement to train employees to recognize and avoid unsafe conditions, 29 CFR 1926.21 (Id.), as a means of helping minimize exposures of workers proximal to abrasive blasting operations.
For shipyards, OSHA placed emphasis on the mechanical paint removers standard (Id. at 29222), which requires, at 29 CFR 1915.34(c)(3)(iii), that employees other than blasters wear eye and respiratory protection when working in areas where there are unsafe concentrations of abrasive material and dusts. In addition, OSHA noted that OSHA's ventilation standard applies to shipyards and requires, at 29 CFR 1910.94(a)(4), that blast cleaning enclosures have sufficient ventilation, in part, to prevent leakage of dust outside the enclosure. Such leakage could create exposures for employees not involved in blasting operations (Id.). OSHA also stated that abrasive blasting sometimes occurs in confined spaces at shipyard workplaces, and noted that OSHA's shipyard standard regulating work in confined and enclosed spaces requires demarcation of, and limitation of employee access to, such spaces (Id. (discussing 29 CFR 1915.12)).
OSHA requested information on the prevalence of abrasive blasting in confined or enclosed spaces in shipyards, but did not receive responsive comments establishing how often abrasive blasting operations in shipyards fall within the scope of 29 CFR 1915.12. However, even if it is assumed that most abrasive blasting operations at shipyards occur in confined spaces, 29 CFR 1915.12 would not substitute for the protections provided by paragraph (e). This is because paragraph (e) of the beryllium standard applies to all affected shipyards employees, not just those working in confined spaces. Employees protected by paragraph (e) but not by the confined spaces standard include those engaged in abrasive blasting in non-confined spaces and other employees who work near blasting operations, such as clean-up helpers.
None of the comments that OSHA received provided a specific rationale or data that would support removing paragraph (e) from either standard, while multiple comments supported OSHA's determination in the 2017 final rule that the requirements of paragraph (e) are essential to the effectiveness of the construction and shipyards beryllium standards. For example,
After considering these comments, OSHA finds that other standards do not completely overlap the standards' regulated areas (shipyards) and competent person (construction) requirements. Particularly, the other applicable OSHA standards discussed above do not replicate the requirements in paragraph (e) that ensure that employee access to areas with reasonably expected airborne exposure to beryllium is limited and appropriately managed. This conclusion supports OSHA's determination not to revoke the standards' ancillary provisions in this final rule.
Methods of Compliance, Paragraph (f)
Paragraph (f) of the beryllium standards for construction and shipyards requires that employers implement methods for reducing employee exposure to beryllium through a written exposure control plan, engineering and work practice controls, and a prohibition on rotating employees to achieve compliance with the PEL. In the 2017 final rule, OSHA determined that written exposure control plans are instrumental for protection of workers because "[r]equiring employers to articulate where exposures occur and how those exposures will be controlled will help to ensure that they have a complete understanding" of how to comply with the standards (82 FR at 2668). OSHA also concluded that requiring primary reliance on engineering and work practice controls to control exposures is consistent with good industrial hygiene practice and with OSHA's traditional approach for health standards (82 FR at 2672).
In response to the NPRM, Public Citizen noted that, "[s]hould OSHA rescind the ancillary provisions for construction and shipyard workers, employers in those industries would not be required, by any regulation, to . . . maintain a written plan to control beryllium exposures [or] institute engineering and work practice controls. . . ." (Document ID 2134, p. 2). The
These comments and OSHA's review of the record indicate that other OSHA standards do not provide equivalent worker protections. In the absence of paragraph (f), employers would not be required to establish and implement a written exposure control plan specific to beryllium, and shipyards workers would not receive the benefits of the hierarchy of controls, as required by paragraph (f). /13/ This conclusion supports OSHA's determination not to revoke the standard's ancillary provisions in this final rule.
FOOTNOTE 13 Note that under a PEL- and STEL-only beryllium standard, construction employers would be required to comply with the new beryllium exposure limits under 29 CFR 1926.55(b), which independently requires the hierarchy of controls. The shipyards air contaminants standard however, does not contain a comparable requirement to implement engineering and work practice controls (see 29 CFR 1915.1000). END FOOTNOTE
Respiratory Protection, Paragraph (g)
Paragraph (g) in the beryllium standards for both construction and shipyards requires the provision and use of respiratory protection from exposures to beryllium: (1) During periods necessary to install or implement feasible engineering and work practice controls where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL (paragraph (g)(1)(i)); (2) during operations, including maintenance and repair activities and non-routine tasks, when engineering and work practice controls are not feasible and airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL (paragraph (g)(1)(ii)); (3) during operations for which an employer has implemented all feasible engineering and work practice controls when such controls are not sufficient to reduce airborne exposure to or below the TWA PEL or STEL (paragraph (g)(1)(iii)); (4) during emergencies (paragraph (g)(1)(iv)); and (5) when an employee who is eligible for medical removal under the standard chooses to remain in a job with airborne exposure at or above the action level (paragraph (g)(1)(v)). Paragraph (g) also provides that required respiratory protection must be selected and used in accordance with OSHA's general Respiratory Protection standard at 29 CFR 1910.134. Finally, paragraph (g) requires employers to provide powered air-purifying respirators (PAPR) when an employee entitled to a respirator under the beryllium standard requests one, as long as the PAPR provides adequate protection.
In the 2017 final rule, OSHA recognized that workers who perform open-air abrasive blasting using mineral grit (i.e., coal slag) will routinely be exposed to levels above the PEL of 0.2 [mu]g/m3 (even after the installation of feasible engineering and work practice controls), and therefore, these workers will also be required to wear respiratory protection (82 FR at 2584). OSHA also found that requiring the provision and use of respiratory protection when an employee who is eligible for medical removal chooses to remain in a job with airborne exposure at or above the action level "has the potential to delay or avoid the onset of CBD in sensitized individuals and to mitigate or retard the effects of CBD in employees who are in the early stages of CBD" (82 FR at 2676). Finally, OSHA found that "provision of PAPRs at the employee's request will provide employees necessary protection beyond that found in provisions of the Respiratory Protection standard, where provision of a PAPR for reasons of fit, comfort and reliability is at the employer's discretion" (82 FR at 2676).
In the NPRM, OSHA relied on several of its standards requiring the provision and use of respirators to explain its proposal to revoke the ancillary provisions of the 2017 construction and shipyard rules (82 FR at 29221-22). First, OSHA relied on the construction ventilation standard, 29 CFR 1926.57, which requires workers performing abrasive blasting to wear extensive PPE, including respirators, under certain conditions, including where beryllium concentrations dispersed by blasting may exceed the PEL and the operator is not already physically separated from the nozzle and blast material (29 CFR 1926.57(f)(5)(ii)). Second, OSHA relied on the general industry respiratory protection standard, 29 CFR 1910.134, which applies to both construction and shipyards, because it requires employers to provide a respirator to each employee when necessary to protect the employee's health. Third, OSHA relied on the mechanical paint removers standard, 29 CFR 1915.34, which applies to abrasive blasting in shipyards, and "requires respiratory protection and other appropriate personal protective equipment in abrasive blasting operations for both abrasive blasting operators and helpers working in the area" (29 CFR 1915.34(c)(3)). Finally, OSHA relied on the standard covering confined and enclosed spaces in shipyard employment, which prohibits employees from entering a space whose atmosphere exceeds a PEL except for emergency rescue, or for a short duration for installation of ventilation equipment, provided that the atmosphere in the space is monitored continuously and respiratory protection and other necessary and appropriate PPE and clothing are provided (29 CFR 1915.12).
A number of commenters focused specifically on the degree of overlap between the construction and shipyards standards' respiratory protection requirements and the respiratory protection requirements in other OSHA standards. Some agreed with OSHA's preliminary determination that the respiratory protection provisions contained in paragraph (g) of the standards were unnecessary because the workers were adequately protected by other applicable standards. For example, the ABMA stated that OSHA's preliminary determination was "absolutely correct" (Document ID 2142, p. 9). In support of its statement, ABMA submitted a report prepared for it by Exponent (Document ID 2142, Attachment 1), which stated that the rules governing abrasive blasting currently in effect for both the construction and shipyards industries already require engineering and administrative controls and PPE, including an air supply respirator and a hood or blasting helmet (Document ID 2142, Attachment 1, pp. 5-6, 11). SBA similarly noted its "understanding" that employees performing abrasive blasting and welding in the construction and shipyard sectors are already protected by OSHA standards and industry practices that provide for ventilation, PPE, and respiratory protection (Document ID 2120, p. 6).
Other commenters objected to the proposed removal of paragraph (g) (see, e.g., Document ID 2124; 2129; 2135; 2140). Some argued that existing respiratory protection requirements in other standards are not sufficient to protect all of the employees exposed to beryllium in construction and shipyards, especially employees who are exposed due to abrasive blasting. For example, NABTU commented that the ventilation standard "does little, if anything, for [construction] workers other than the blasting operators" (Document ID 2129, p. 9). Specifically, NABTU observed that the ventilation standard "does not require respiratory protection for pot tenders, helpers, or bystanders, instead simply stating that dust-filter respirators 'may be used' for operations such as clean up, loading, or unloading" (Document ID 2129, p. 9).
USW expressed similar concerns in its comments (Document ID 2124, pp. 2, 10-11).
After considering the comments, OSHA concludes that there is partial, but not complete, overlap between other OSHA standards and paragraph (g) of the final construction and shipyards rules. It is true that paragraph (g) requires respiratory protection to be selected and used in accordance with OSHA's general respiratory protection standard, 29 CFR 1910.134, and that the general industry respiratory protection standard is independently applicable to the construction and shipyards sectors (see 29 CFR 1926.103, 1915.154). However, other standards on which OSHA relied in the NPRM do not apply to all situations or tasks in which workers covered by the construction or shipyards beryllium standards might engage.
Moreover, the construction and shipyards standards contain requirements that go beyond the baseline requirements in other OSHA standards, including the general industry respiratory protection standard. Unlike the beryllium standards, none of the standards on which OSHA relied in the NPRM require respiratory protection for an employee who is eligible for medical removal under the standard but chooses to remain in a job with airborne exposure at or above the action level, or require employers to provide PAPRs when an employee entitled to a respirator under the beryllium standard requests one. Indeed, in the 2017 final rule, OSHA specifically recognized that the PAPR provision went beyond the baseline provisions of the respiratory protection standard (82 FR at 2678).
Therefore, other standards do not completely overlap the standards' respiratory protection requirements. This conclusion supports OSHA's determination not to revoke the standards' ancillary provisions in this final rule.
Personal Protective Clothing and Equipment, Paragraph (h)
Paragraph (h) requires employers to provide and ensure the use of PPE for employees exposed to beryllium, and also contains provisions pertaining to the removal, storage, cleaning, and replacement of the PPE. To comply with paragraph (h), employers are expected to choose the appropriate type of PPE for their employees based on the results of the employer's hazard assessment (82 FR at 2682). In the 2017 final rule, OSHA stated that the PPE requirements are intended to protect employees by preventing the accumulation of airborne beryllium on clothing, shoes, and equipment, which can result in additional inhalation exposure. The PPE requirements also protect employees in other work areas, as well as employees and other individuals outside the workplace, from exposures that could occur if contaminated clothing were to transfer beryllium to those areas (82 FR at 2678).
In the 2017 NPRM, OSHA identified several OSHA standards that require employees engaged in abrasive blasting operations (in construction and shipyards) and welding operations (in shipyards) to use PPE during their work (82 FR at 29197). OSHA stated that, in construction, 29 CFR 1926.57(f)(5)(v) requires abrasive blasting operators to wear full PPE, including respirators, gloves, safety shoes, and eye protection. Similarly, 29 CFR 1915.34(c)(3) requires full PPE for abrasive blaster operators performing mechanical paint removal in shipyards (82 FR at 29197). In addition, OSHA noted that gloves are required by 29 CFR 1915.57(a) to protect welders in shipyards, and that "relevant PPE is required by the existing personal protective equipment standard (1926.95) and the existing hand and body protection standard (1915.157) to protect blasting helpers in construction and shipyards, respectively, from dermal exposure to beryllium dust" (82 FR at 29197). Given the other standards' PPE requirements, OSHA preliminarily estimated that affected employees are required to be equipped with PPE 100 percent of the time when exposed to beryllium (82 FR at 29197).
In response to the 2017 proposal, NELP stated that the requirements in paragraph (h), which state "clearly and specifically when and what type of PPE is required," do not exist in other OSHA standards and that, without paragraph (h) of the beryllium standards, "employees will clearly not receive these protections" (Document ID 2106, p. 6). Other commenters criticized OSHA's estimates regarding the existing use of PPE in the affected construction and shipyard operations. NABTU strongly disagreed with OSHA's statement in the 2017 NPRM that "[b]aseline usage of . . . PPE is far higher in construction and shipyards (82 FR at 29216)" (Document ID 2129, p. 7). Members of
After reviewing the comments, OSHA is persuaded that other OSHA standards only partially overlap with the requirements of paragraph (h). Some workers exposed to beryllium in construction and shipyards, such as abrasive blasting helpers, would not be fully protected if OSHA revoked the requirements for PPE in their entirety. In addition, the overlapping PPE standards that OSHA cited in the NPRM do not contain any removal, storage, cleaning, and replacement requirements that would minimize cross-contamination and migration of beryllium dust. These provisions are necessary to protect workers who are wearing the PPE from additional inhalation exposure that could come from improper removal of the PPE.
Therefore, other standards do not completely overlap with or duplicate the standards' PPE requirements. This conclusion supports OSHA's determination not to revoke the standards' ancillary provisions in this final rule.
Hygiene Areas and Practices, Paragraph (i)
Paragraph (i) contains requirements for hygiene areas and practices. Paragraph (i) requires employers to: (1) Provide readily accessible washing facilities to remove beryllium from the hands, face, and neck (paragraph (i)(1)(i)); (2) ensure that employees who have dermal contact with beryllium wash any exposed skin (paragraph (i)(1)(ii)); (3) provide change rooms if employees are required to use personal protective clothing and are required to remove their personal clothing (paragraph (i)(2)); (4) ensure that employees take certain steps to minimize exposure in eating and drinking areas (paragraph (i)(3)); and (5) ensure that employees do not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in areas where there is a reasonable expectation of exposure above the TWA PEL or STEL (paragraph (i)(4)).
While emphasizing the importance of hygiene areas and practices in the final rule, OSHA also acknowledged that the sanitation standards in construction (29 CFR 1926.51) and shipyards (29 CFR 1915.88) include provisions similar to some of those in the beryllium standards. For example, the sanitation standards include hygiene provisions requiring the employer to provide change rooms with separate storage facilities for protective clothing whenever employees are required by an OSHA standard to wear protective clothing. The sanitation standards also require employers to provide wash facilities and prohibits storage or consumption of food or beverages in any area where employees are exposed to a toxic material (82 FR at 2684). OSHA pointed out this potential overlap in the NPRM (82 FR at 29205).
In response to the NPRM, OSHA received only two comments that specifically addressed paragraph (i). One comment, from NABTU, expressed the need for hygiene requirements such as washing facilities, change rooms, and eating and drinking areas to prevent the spread of beryllium, noting that "[w]hen beryllium-exposed workers are afforded washing and clean-up areas, all construction workers on the site are protected from exposure" (Document ID 2129, p. 7). On the other hand, ABMA identified a number of existing standards, including the sanitation standards, applicable to employees in construction and shipyards, and argued that these provisions provide adequate protection from exposure to beryllium (Document ID 2142, pp. 9-10). ABMA also indicated that hygiene practices are utilized during abrasive blasting regardless of the beryllium standard due to other substance-specific standards such as lead, hexavalent chromium, cadmium, and arsenic, which require employees who are exposed to these materials through abrasive blasting to wash their hands and face (Document ID 2142, Attachment 1, p. 6).
After considering the comments, OSHA concludes that there is overlap between the sanitation standards for construction and shipyards and paragraph (i) of the beryllium rules for construction and shipyards. However, this overlap is not complete. For example, the sanitation standard for the construction industry prohibits "consum[ing] food or beverages in . . . any area exposed to a toxic material," 29 CFR 1926.51(g), and the sanitation standard for shipyards similarly prohibits the consumption or storage of "food, beverages, and tobacco products . . . in any area where employees may be exposed to hazardous or toxic substances," 29 CFR 1915.88(h). The beryllium standards, on the other hand, contain more exacting requirements that do not overlap with these requirements--specifically, requirements that employers keep "surfaces in eating and drinking areas . . . as free as practicable of beryllium," 29 CFR 1915.1024(i)(3)(i) and 1926.1124(i)(3)(ii), and prohibit "employees [from] enter[ing] any eating or drinking area with personal protective clothing or equipment unless, prior to entry, surface beryllium has been removed from the clothing or equipment by methods that do not disperse beryllium into the air or onto an employee's body," 29 CFR 1915.1024(i)(3)(ii) and 1926.1124(i)(3)(iii).
Thus, other standards do not completely overlap the standards' hygiene area and practices requirements.
Housekeeping, Paragraph (j)
Paragraph (j) requires employers in both construction and shipyards to follow the cleaning procedures in their written exposure control plan, clean up spills and emergency releases promptly, use appropriate cleaning methods, and provide recipients of beryllium containing materials for disposal with a copy of the warnings described in paragraph (m) (82 FR at 2688). In the preamble to the 2017 final rule, OSHA indicated that these provisions are important because they minimize sources of exposure to beryllium that engineering controls do not completely eliminate (82 FR at 2689).
In the NPRM, OSHA identified other OSHA standards that might duplicate some provisions of paragraph (j) (82 FR at 29197). These included the construction ventilation standard, 29 CFR 1926.57(f)(7), which requires that dust not be allowed to accumulate outside abrasive blasting enclosures and that spills be cleaned up promptly. Other standards applicable to abrasive blasting operations in construction, 29 CFR 1926.57(f)(3) and (f)(4), also require exhaust ventilation and dust collection and removal systems. Likewise, certain provisions of OSHA's general ventilation standard for abrasive blasting, 29 CFR 1910.94(a), apply to shipyards. For example, 29 CFR 1910.94(a)(7)) requires that "[d]ust shall not be permitted to accumulate on the floor or on ledges outside of an abrasive-blasting enclosure, and dust spills shall be cleaned up promptly . . ." (82 FR at 29197). OSHA stated that compliance with these provisions "already ensures that employers take some steps during the blasting operations to prevent accumulations of dust sufficient to create exposures exceeding the PEL in clean-up after blasting operations are completed" (82 FR at 29197).
Some commenters supported revocation of paragraph (j) on the basis of overlapping and duplicative provisions (e.g., Document ID 2142, Attachment 1, p. 7 (citing 29 CFR 1926.57(f)(7)). However, other commenters argued that at least some of the beryllium standards' housekeeping provisions are not duplicated by other OSHA standards. For example, NABTU indicated that the ventilation standard does not prohibit dry sweeping and brushing, which are prohibited by the beryllium standards except in limited circumstances (Document ID 2129, p. 9; see also 2140, p. 8). Similarly, the
After reviewing the comments, OSHA is persuaded that other OSHA standards do not completely overlap with, or duplicate the protections of, the construction and shipyards standards' housekeeping requirements. Some workers exposed to beryllium, such as abrasive blasting cleanup workers, would not be adequately protected if OSHA revoked paragraph (j) in its entirety. In addition, the provisions prohibiting dry sweeping, dry brushing, and the use of compressed air except under certain circumstances are not contained in other OSHA standards. OSHA's determination that other standards do not completely overlap with the beryllium standards' housekeeping requirements supports the agency's decision not to revoke the standards' ancillary provisions in this final rule.
Medical Surveillance, Paragraph (k)
Paragraph (k) includes provisions for medical surveillance in connection with occupational exposure to beryllium. It requires employers in both construction and shipyards to offer eligible employees, at no cost to the employee, participation in the medical surveillance program. Paragraph (k) specifies requirements of the medical surveillance program, such as which employees are eligible for medical surveillance, as well as the frequency and content of medical examinations.
As explained in the 2017 final rule, the purposes of medical surveillance for beryllium are: (1) To identify beryllium-related adverse health effects so that appropriate intervention measures can be taken; (2) to determine if an employee has any condition that might make him or her more sensitive to beryllium exposure; and (3) to determine the employee's fitness to use personal protective equipment such as respirators (82 FR at 2696). The inclusion of medical surveillance in the beryllium standards for construction and shipyards is consistent with section 6(b)(7) of the OSH Act (29 U.S.C. 655(b)(7)), which requires that, where appropriate, medical surveillance programs be included in OSHA health standards to aid in determining whether the health of employees is adversely affected by exposure to the hazards addressed by the standard.
In the NPRM, OSHA asked several specific questions regarding whether it should keep all or some of the standard's medical surveillance requirements (82 FR at 29183). While some comments that OSHA received in response to these questions supported revocation (see e.g., Document ID 2142, pp. 3, 16-19), most of the stakeholders that responded to OSHA's request for comment on issues related to medical surveillance argued that the agency should retain the medical surveillance provisions in the construction and shipyards standards (see, Document ID 2117, pp. 1-2; 2140, pp. 5, 8-9; 2130, pp. 1-2; 2132, pp. 1-2; 2118, pp.1-3; 2121, p. 3; 2119, p. 2; 2133, pp. 1-3; 2106, pp. 3, 4, 6, 7; 2129, pp. 1, 3-5, 7-8, 10; 2123, pp. 1-3; 2134, p. 2; 2131, pp. 1-2; 2124, pp. 6, 12; 2136, pp. 1-3; 2135, pp. 2-4).
Of significance to this final rule, several stakeholders noted that no other standards require medical surveillance for beryllium-exposed workers in the shipyard or construction sectors (see, e.g., Document ID 2106, p. 6; 2133, p. 1; 2140, p. 5). OSHA agrees with these comments. OSHA therefore concludes that the beryllium standards' medical surveillance provisions do not overlap with any other OSHA standard. This conclusion supports OSHA's determination not to revoke the standard's ancillary provisions in this final rule.
Medical Removal Protection, Paragraph (l)
Paragraph (l) of the standards establishes requirements for medical removal, which apply only to a limited category of workers who are suffering health effects related to their exposure to beryllium. Medical removal benefits include, at the employee's choice, either remaining in a job with exposures above the action level while using respiratory protection or being transferred to a job with exposures below the action level, along with maintenance of earnings and other benefits for six months. OSHA determined in the 2017 final rule that medical removal provisions provide workers with incentives to participate in the medical surveillance program, and that they also give workers with sensitization or CBD the opportunity and means to minimize further exposure to beryllium (82 FR at 2724). Although OSHA considered in the 2017 NPRM whether other OSHA standards might provide equivalent protections to affected workers, the agency's review of existing standards found that no other standards duplicate the requirements of paragraph (l). Similarly, several commenters stated that there are no overlapping or duplicative OSHA requirements for medical removal related to beryllium exposure (see, e.g., Document ID 2106, p. 6; 2134, p. 2), and no commenters pointed to other OSHA standards that provide overlapping protections. OSHA's conclusion that there is no overlap supports its determination not to revoke the standard's ancillary provisions in this final rule.
Communication of Hazards, Paragraph (m)
Paragraph (m) sets forth the employer's obligations to comply with OSHA's hazard communication standard (HCS) (29 CFR 1910.1200) relative to beryllium, and to provide warnings and training to employees about the hazards of beryllium.
In the 2017 final rule, OSHA discussed the importance of the communication of hazards provision (see 82 FR at 2724-29). The agency pointed out the need for employees to understand the hazards of beryllium exposure, the protective measures necessary to minimize potential health hazards, and the rights afforded them under these standards. OSHA also noted that the training requirements serve to explain and reinforce the information available on labels and Safety Data Sheets (SDSs), which are most effective when employees understand the information (82 FR at 2724). Because beryllium is a hazardous chemical with serious and debilitating health effects, it is imperative that employers ensure that employees can demonstrate that they understand the training materials and have knowledge of the topics covered during the training sessions.
In the NPRM, OSHA stated that 29 CFR 1926.21 requires construction employers to train their employees in the recognition and avoidance of unsafe conditions, and that, in particular,
Some commenters stated either generally that the ancillary provisions of the construction and shipyards rules were duplicative of other OSHA standards, or specifically that adequate hazard communication protections were already contained in the HCS and OSHA's abrasive blasting guidance (see, e.g., Document ID 2120, p. 6; 2122, p. 2; 2142 Attachment 1, p. 6). Other commenters stated that, if OSHA rescinded the standards' ancillary provisions, employers in the construction and shipyards industry would not be required to conduct the beryllium-specific training required by the rules (see, e.g., Document ID 2121, p. 3; 2129, pp. 4, 10; 2133, p. 2; 2134, p. 2).
After considering the comments, OSHA concludes that there is some, but not complete, overlap between other OSHA standards and paragraph (m) of the beryllium standards for construction and shipyards. As OSHA stated in the 2017 final rule, the beryllium standards' hazard communication requirements were intended to be "substantively as consistent as possible with the HCS," but also included "additional specific requirements needed to protect employees exposed to beryllium" (82 FR at 2724).
First, paragraph (m) of the beryllium standards goes beyond the requirements of the HCS. For example, paragraph (m)(3)(ii) of the beryllium standards requires specific training on the signs and symptoms of CBD, the employer's written exposure control plan, specific operations that can lead to employee exposure to beryllium, measures that employees can take to protect themselves from exposure, and the purpose and description of the medical surveillance and medical removal protection requirements of the standards. These topics would not necessarily be covered by training that is required by the hazard communication standard.
Moreover, the beryllium standards require employers to provide employees with training on the specific hazards associated with beryllium exposure; as OSHA stated in the 2017 final rule, "[w]hile OSHA agrees that the HCS is designed to cover all chemical hazards in the workplace[,] . . . OSHA finds that employees need to be trained on the hazards specifically associated with beryllium, in addition to the training they receive under the HCS" (82 FR at 2726). Finally, the beryllium-specific training required by the construction and shipyards standards must be provided more often than what the HCS alone would require; after receiving initial training (as required by paragraph (h)(1) of the HCS), the beryllium standards require that employees receive annual retraining on the beryllium hazards (29 CFR 1915.1024(m)(4)(i)(C) and 1926.1124(m)(3)(i)(C)).
Second, paragraph (m) of the beryllium standards goes beyond the requirements of 29 CFR 1926.21. Compliance with that standard would not require employers to meet the more exacting requirements of the beryllium standard, such as the annual retraining requirement.
Therefore, other standards do not completely overlap the beryllium standards' communication of hazard requirements. This conclusion supports OSHA's determination not to revoke the standards' ancillary provisions in this final rule.
Recordkeeping, Paragraph (n)
Paragraph (n) of the construction and shipyards standards for beryllium requires employers to make and maintain records of air monitoring data, objective data, medical surveillance, and training. Employers must maintain the records, and make them available to employees and their designated representatives, in accordance with OSHA's records access standard, 29 CFR 1910.1020. In the 2017 final rule, OSHA pointed out that the requirement to maintain records of exposure assessments is critical because the records enable employers to ensure compliance with the exposure assessment provisions, and ascertain which of the standards' provisions are triggered based on the assessments (82 FR at 2729-2730). OSHA described the medical surveillance records requirement as necessary for the protection of employee health and proper enforcement of the standards (82 FR at 2732). Finally, according to OSHA, the creation and maintenance of training records under paragraph (n)(4) permits both OSHA and employers to ensure that the required training occurs on schedule (82 FR at 2733).
In the NPRM, OSHA proposed to remove all recordkeeping requirements for the construction and shipyards beryllium standards as part of the proposed removal of all of the standards' ancillary provisions (82 FR at 29183). Removal of paragraph (n) would have been consistent with the proposed removal of the other ancillary provisions because the recordkeeping provisions are dependent on those other provisions; for example, without the standards' medical surveillance requirements, there would be no medical surveillance records to create or maintain. The proposed removal of the ancillary provisions was based on OSHA's preliminary determination that a number of other OSHA standards apply to the primary operations involving beryllium exposure in construction and shipyards, resulting in duplicative protections (82 FR at 29183).
OSHA did not receive any comments that were responsive to the issue of whether other OSHA standards impose recordkeeping requirements that overlap with or duplicate the requirements in paragraph (n). OSHA's own analysis, however, indicates that there is no overlap with other standards. OSHA's access to employee exposure and medical records standard, 29 CFR 1910.1020, governs the preservation and maintenance of employee exposure and medical records, as well as access to those records for employees and designated representatives. However, the records access standard does not require the creation of those records. Instead, paragraph (n) of the beryllium standards contains the requirements for employers to create records related to beryllium, including records of exposure assessment, medical surveillance, and training. It then refers to 29 CFR 1910.1020 for the requirements governing preservation and maintenance of, and access to, those records (e.g., paragraph (n)(1)(iii)). Paragraph (n) and 29 CFR 1910.1020 are, therefore, complementary, rather than overlapping or duplicative.
OSHA has determined that no other OSHA standards contain recordkeeping requirements that are duplicative of the recordkeeping requirements in paragraph (n) of the beryllium standards for construction and shipyards. This conclusion supports OSHA's determination not to revoke the standard's ancillary provisions in this final rule.
Conclusion
Based on the discussion above, the agency is not finalizing its proposed revocation of the ancillary provisions in the construction and shipyards standards. Instead, OSHA has decided to proceed with a new, more comprehensive proposal to amend the standards that accounts for the protections of other OSHA standards, where appropriate, and maintains a high level of worker protection. The new proposal will also ensure consistency with the general industry standard, both in terms of the changes made via the DFR in
C. Changes to the Compliance Dates in Paragraph (o)
Paragraph (o) of the standards for construction and shipyards sets forth the effective date of the standards as well as the dates for compliance with their requirements. The 2017 final rule set the compliance dates as follows:
In the NPRM, OSHA requested comment on whether the agency should delay the compliance dates of the construction and shipyards standards for an additional year (see 82 FR at 29183). This delay "would give affected employers additional time to come into compliance with [the standards'] requirements, which could be warranted by the uncertainty created by this proposal" (82 FR at 29183). After careful consideration of the information received in response to this request for comments, and for the reasons set out below, OSHA has determined that it is appropriate to extend the compliance dates for all ancillary provisions of the construction and shipyards standards for beryllium to
OSHA received comments both for and against the proposed delay of the compliance dates for the construction and shipyards standards. Employers and trade associations by and large supported delaying the compliance date by a year (e.g., Document ID 2125, p. 23; 2145, Comments, p. 36; 2141, Comments, pp. 1-2, 11). ABMA stated that, "[s]hould OSHA retain or promulgate any new beryllium standards for construction and shipyards," an additional year would be necessary to allow the industries "sufficient time to prepare for and implement [the] standards" (Document ID 2142, Comments, p. 4). Newport News Shipbuilding stated that additional time was particularly important in order for employers to figure out how to comply with the exposure assessment provisions of the standards for blasting operations (Document ID 2095, p. 1).
Other commenters, including labor organizations, public interest groups, and private citizens, firmly opposed OSHA's proposed extension of the compliance dates (e.g., Document ID 2140, p. 9; 2129, p. 11; 2132, p. 2; 2133, p. 4; 2084). These commenters were primarily concerned that any further delay in implementing the standards would prolong workers' exposures to unsafe levels of beryllium, increasing their risk of beryllium-related health effects (e.g., Document ID 2140, p. 9). As Dr.
Commenters, furthermore, pointed out that the uncertainty cited by OSHA as a reason for delaying the compliance deadlines was of OSHA's own making. As one private citizen stated, "[t]he government should not first deliberately create uncertainty about a rule and then cite that uncertainty as a reason to weaken the rule and endanger workers" (Document ID 2081; see also 2130, p. 2). Public Citizen noted that, if OSHA were to finalize the rule as proposed, rescinding the vast majority of the current standards, compliance with the new PEL- and STEL-only standards would be easier and there would be even less justification for the proposed delay (Document ID 2134, p. 4). Similarly, according to NABTU, because OSHA has "not even suggested that it is infeasible for employers to comply with the standard, there is no basis for any further delay in the compliance date" (Document ID 2129, p. 11).
After careful consideration of the comments, and in light of OSHA's intent to propose different amendments to the standards, OSHA has decided to finalize the proposed delay of the compliance deadlines for approximately one year in both the construction and shipyards standards. The effective date of the standards remains unchanged. Amended paragraph (o)(2)(i) states that employers' obligations under the exposure limit requirements in paragraph (c) commenced on
OSHA's decision to delay compliance until
In finalizing the compliance delay, the agency is also being consistent with its 2018 delay of the compliance dates for many of the ancillary provisions in the beryllium standard for general industry (see 83 FR 25536 (
In general industry, OSHA proposed to delay the compliance date for certain ancillary provisions to allow the agency time to issue a new proposal and expressed its intention to rely on its de minimis enforcement policy while the rulemaking was pending so that employers could comply with the proposed provisions without risk of a citation (83 FR at 25537). Such an approach was appropriate in the general industry context, where the agency planned to propose discrete changes to provisions that employers otherwise expected to go into full effect. Here, however, OSHA does not believe reliance on its de minimis policy is appropriate. If finalized as proposed, the 2017 NPRM would have eliminated any requirement for employers to comply with the ancillary provisions of the shipyard and construction standards. Given OSHA's decision not to revoke these provisions in this rulemaking and instead to propose revisions to the ancillary provisions in a forthcoming rulemaking action, OSHA believes that it is appropriate to apply a one-year compliance extension to allow employers to prepare to comply. The proposed delay was supported by several commenters (Document ID 2125, p. 23; 2141, p. 11; 2142, p. 4). OSHA also notes that this is consistent with the agency's approach in the 2017 final rule, where the agency similarly gave all industries one year before any compliance obligations began.
OSHA recognizes the comments highlighting the urgent need for these standards and the effect on workers' health that could occur in the period before compliance is achieved (e.g., Document ID 2136, p. 4; 2130, p. 2). However, OSHA notes that the comments highlighting the high levels of exposure that workers would continue to experience during a compliance delay (e.g. Document ID 2140, p. 9; 2131, p. 2) were submitted in 2017, before OSHA began to enforce any aspects of the standards. Since
Similarly, OSHA acknowledges the comment, from NABTU, that OSHA has not determined compliance with the 2017 final rule to be infeasible for construction and shipyard employers, and the comment from Public Citizen that compliance with the proposed rule (rescinding all ancillary provisions but retaining the PELs) would have been much easier to achieve than compliance with the 2017 final rule (see Document ID 2129, p. 11; 2134, p. 4). OSHA still considers compliance with the 2017 final rule to be feasible; the agency has not stated otherwise. Regardless of feasibility, however, it would not make sense for OSHA to require employers to comply with, or prepare to comply with, ancillary provisions that are in a state of flux, especially given that OSHA is enforcing the lower PELs. As for Public Citizen's comment that compliance with a final rule revoking all ancillary provisions would have been simpler for employers to comply with (see Document ID, Attachment 2134, p. 4), OSHA agrees but, as discussed above, the agency is not finalizing that portion of the NPRM.
Finally, OSHA recognizes the comments, from the
List of Subjects in 29 CFR Parts 1915 and 1926 Beryllium, Cancer, Chemicals, Hazardous substances, Health, Occupational safety and health.
Authority and Signature
This document was prepared under the direction of
Signed at
Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons set forth in the preamble, chapter XVII of title 29, parts 1915 and 1926, of the Code of Federal Regulations is amended as follows:
PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD EMPLOYMENT
1. The authority citation for part 1915 continues to read as follows:
Authority:33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 12-71 (36 FR 8754); 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable.
2. Amend
*****
(o) * * *
(2) Compliance dates. (i) All obligations contained in paragraph (c) of this standard commence and become enforceable on
(ii) All other obligations of this standard commence and become enforceable on
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart Z--Toxic and Hazardous Substances
3. The authority citation for subpart Z of part 1926 continues to read as follows:
Authority:40 U.S.C. 3704; 29 U.S.C. 653, 655, 657; and Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912) as applicable; and 29 CFR part 1911.
Section 1926.1102 not issued under 29 U.S.C. 655 or 29 CFR part 1911; also issued under 5 U.S.C. 553.
2. Amend
*****
(o) * * *
(2) Compliance dates. (i) All obligations contained in paragraph (c) of this standard commence and become enforceable on
(ii) All other obligations of this standard commence and become enforceable on
[FR Doc. 2019-21037 Filed 9-27-19;
BILLING CODE 4510-26-P
Host Of New Benefits Await Medicare Advantage Customers
Advisor News
- How advisors can prepare clients for an uncertain retirement landscape
- Investors aren’t waiting out uncertainty
- Transamerica and Advo(k)ate Advisors launch pooled employer plan
- ‘I wish I’d met him sooner:’ Karlan Tucker remembered for integrity, faith
- Why women must be more engaged in investing
More Advisor NewsAnnuity News
- Jackson Financial CEO caps 40-year career with blockbuster Q2
- Lumos Insurance introduces the Immediate Care Plan to help families fund long-term care
- NAIC regulators begin consensus phase on annuity illustration overhaul
- AM Best Revises Outlooks to Negative for Subsidiaries of Group 1001 Insurance Holdings, LLC
- Market-value adjusted annuities: Key considerations for advisors
More Annuity NewsHealth/Employee Benefits News
- Dream of universal health coverage fadingCalifornia nearly achieved universal healthcare. Now, millions are losing coverage
- Medi-Cal is changing. Here's what to do if you're worried about coverageMedi-Cal is changing. Here's what to do if you're worried about coverage
- 1199SEIU, owner of Auburn nursing home agree to new 3-year contract
- Health insurance trust weighs options to pay Blue Cross
- Study Findings on Managed Care Are Outlined in Reports from Lewis Katz School of Medicine (Geographic and Program Size Disparities in Medicare Funding for Graduate Medical Education): Managed Care
More Health/Employee Benefits NewsLife Insurance News
- iA Financial Group Reports Second Quarter Results
- Supporting small businesses starts with smarter benefits conversations
- Judge again tosses Penn Mutual whole life lawsuit alleging tax scam
- Declined by a machine? The end of the unexplainable no
- AM Best Revises Outlooks to Negative for Subsidiaries of Group 1001 Insurance Holdings, LLC
More Life Insurance News