Proposed changes issued by OSHA June 23 clear the way for the construction and maritime industries to avoid new regulatory requirements that drew criticism from makers of coal slag abrasives.
The proposed rule, which is scheduled for publication in the Federal Register June 27, revokes the “ancillary provisions” for the construction and maritime sectors, but maintains the regulation’s lower permissible exposure limit (PEL) of 0.2 microgram per cubic meter of air over an eight-hour time-weighted average.
In a statement June 23, OSHA cited concerns by industry organizations and GOP members of Congress who “raised concerns that they had not had a meaningful opportunity to comment on the application of the rule to their industries” during the Obama administration’s development of the regulation.
The beryllium rule for general industry will remain, but OSHA had originally planned to extend it to construction and maritime industries several years after the initial rule.
Opponents of the change warned removing the provisions from the construction and maritime standards would have a substantial impact on the rule’s utility.
“If they go ahead with the final standard based on this proposal, then we’ll see them in court,” Michael Wright, health and safety director for the United Steelworkers union, told Bloomberg BNA June 23.
Wright said OSHA had provided insufficient justification why shipyard and construction workers should not receive the same protections from beryllium as workers in other industries.
Most Provisions Effective in January
Most of the provisions for general industry take effect in January 2018, but some provisions are not required until 2019 and 2020. OSHA may also consider delaying compliance dates for the construction and maritime sectors PEL mandate and short-term exposure limit by an additional year to account for the new changes and will not enforce the old regulation on these sectors during its review, the proposed rule said.
The proposed rule states that OSHA has evidence that beryllium exposure in these operations is “limited to” abrasive blasting in construction and welding in shipyards, and other OSHA standards already cover parts of these operations.
If finalized, the rule would remove requirements these sectors conduct exposure monitoring, perform a written exposure control plan, provide personal protective equipment and work clothing, housekeeping, medical surveillance, medical removal and worker training.
Removing these provisions means affected workers are less likely to know they have been sensitized to beryllium and are at risk for chronic beryllium disease, Wright said, and not providing protective clothing and showers increases the chances workers expose their spouses and children to beryllium when they return home.
“If this proposal to weaken the beryllium rule goes into effect, construction and shipyard workers will die and be permanently disabled as a result,” Emily Gardner, worker health and safety advocate for Public Citizen’s Congress Watch division, said in a statement June 23.
Industry Organization Pushed Changes
The changes to the beryllium regulation ( RIN:1218-AB76), which the Obama administration finalized Jan. 6, come in response to criticism from industry organizations such as the Abrasive Blasting Manufacturers Alliance.
The group, which represents manufacturers of coal slag, warned that the standard was unreasonable and burdensome to the industry and ignored risks posed by other abrasives.
The White House met with the alliance May 15. The group shares an address with Harsco Corp., the largest vendor of coal slag.
Had it taken effect, companies that manufacture materials used in blasting operations that contain beryllium could have a harder time selling their products if end users were required to take new precautions when using the materials.
The Abrasive Blasting Manufacturers Alliance said in a statement to Bloomberg BNA June 23 that the rollback will help companies.
“OSHA’s proposed updated beryllium rule would be a significant improvement as it would eliminate construction and maritime industries regulations which would be very costly and complex, with no benefit to employee safety and health,” the group said.
At the same time, the group said OSHA erred by failing to raise the permissible exposure limit for beryllium.
“We are hopeful that given the body of evidence, the agency will differentiate between different forms of beryllium and conclude that the mineral form, found in trace amounts in abrasive blasting, should not be subject to the exposure levels set forth in this proposed rule,” the group said.
Bronce Henderson, the manager of EHS Abrasives LLC in Norfolk, Va., told Bloomberg BNA June 23 modifying plant operations to use materials such as recycled glass instead of coal slag is not difficult.
Henderson said EHS Abrasives converted the facility of a company it recently acquired to use recycled glass. The process took “about an hour to make the conversion with no additional equipment and no additional cost,” Henderson said.
While other companies might fear the regulation causes a loss of jobs, Henderson said, “It’s just not true. We hired additional people to make the recycled glass.”
Christie Miller, a spokeswoman for Huntington Ingalls Industries, which operates Newport News Shipbuilding, the largest U.S. shipyard, said in an email to Bloomberg BNA June 23 the company is continuing to evaluate alternatives to coal slag.
“This will continue regardless of the regulatory outcome on beryllium because it’s the right thing to do,” Miller said.
Critics Pan Decision
Opponents of the beryllium rule rollback said OSHA’s reasoning is lacking, leaving the change vulnerable to legal challenge.
The agency did not argue that a reduced risk of beryllium exposure exists in the construction and maritime sectors, nor did it properly account for the benefits of the regulation, advocates contend.
The proposed rule does not dispute that OSHA’s original determination that beryllium regulation is warranted, or that the permissible exposure limit should be raised, both arguments that could reduce the scope of the rule.
Former OSHA Director David Michaels said in an email to Bloomberg BNA June 23 the rollback appears to him as “a favor to companies that sell beryllium-contaminated coal slag.”
“The Department of Labor shouldn’t be picking winners and losers among competing businesses — it should stick to protecting the health and safety of the nation’s workers,” Michaels said. The proposal will be subject to a 60-day public comment period once it appears in the Federal Register. OSHA will also hold a public hearing if requested during the comment period, the agency said.
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It took almost four decades to set in place a safer standard for workplace beryllium exposure, a mineral found it blasting compounds in construction and shipyards that is linked to chronic beryllium disease (CBD), a disabling and potentially fatal lung ailment according to OSHA's Safety and Health Topics/Beryllium webpage.
The final rule adopted January 9, 2017 provided ancillary provisions intended to provide additional protections to employees, such as requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping similar to those found in other OSHA health standards.
However, due to the Trump administration's “Regulatory Freeze Pending Review”, OSHA has set back enforcement of the final rule that established new protections for construction workers who are exposed to beryllium. Compliance obligations for the new rule were to begin March 12, 2018 but OSHA will not enforce the standards while the amended rule makes its way through regulatory actions.
In the new OSHA proposal, due for publication in the Federal Register June 27, the agency is seeking public comment and review based on claims by the Abrasive Blasting Manufacturers Alliance and other industry groups who maintain the ancillary provisions aren't necessary, specifically medical surveillance requirements for workers.
The OSHA proposal Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors is available here and at https://federalregister.gov/d/2017-12871 on Tuesday.
Anthony Greco. Photo via LinkedIn. 
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