[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Proposed Rules]
[Pages 19989-20001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09307]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2018-0003]
RIN 1218-AB76
Revising the Beryllium Standard for General Industry
AGENCY: Occupational Safety and Health Administration (OSHA);
Department of Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On January 9, 2017, the Occupational Safety and Health
Administration (OSHA) issued a final rule adopting a comprehensive
general industry standard for exposure to beryllium and beryllium
compounds. In this proposed rule, OSHA is proposing to adopt a number
of clarifying amendments to address the application of the standard to
materials containing trace amounts of beryllium. OSHA believes this
proposal will maintain safety and health protections for workers while
reducing the burden to employers of complying with the current rule.
DATES: Comments to this proposal, hearing requests, and other
information must be submitted (transmitted, postmarked, or delivered)
by June 6, 2018. All submissions must bear a postmark or provide other
evidence of the submission date.
ADDRESSES: The public can submit comments, hearing requests, and other
material, identified by Docket No. OSHA-2018-0003, using any of the
following methods:
Electronically: Submit comments and attachments, as well as hearing
requests and other information, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow
the instructions online for submitting comments. Note that this docket
may include several different Federal Register notices involving active
rulemakings, so it is extremely important to select the correct notice
or its ID number when submitting comments for this rulemaking. After
accessing ``all documents and comments'' in the docket (OSHA-2018-
0003), check the ``proposed rule'' box in the column headed ``Document
Type,'' find the document posted on the date of publication of this
document, and click the ``Submit a Comment'' link. Additional
instructions for submitting comments are available from the http://www.regulations.gov homepage.
Facsimile: OSHA allows facsimile transmission of comments that are
10 pages or fewer in length (including attachments). Fax these
documents to the OSHA Docket Office at (202) 693-1648. OSHA does not
require hard copies of these documents. Instead of transmitting
facsimile copies of attachments that supplement these documents (e.g.,
studies, journal articles), commenters must submit these attachments to
the OSHA Docket Office, Docket No. OSHA-2018-0003, Occupational Safety
and Health Administration, U.S. Department of Labor, Room N-3653, 200
Constitution Avenue NW, Washington, DC 20210. These attachments must
clearly identify the sender's name, the date, the subject, and the
docket number (OSHA-2018-0003) so that the Docket Office can attach
them to the appropriate document.
Regular mail, express delivery, hand delivery, and messenger
(courier) service: Submit comments and any additional material to the
OSHA Docket Office, Docket No. OSHA-2018-0003, Occupational Safety and
Health Administration, U.S. Department of Labor, Room N-3653, 200
Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-
2350. (OSHA's TTY number is (877) 889-5627.) Contact the OSHA Docket
Office for information about security procedures concerning delivery of
materials by express delivery, hand delivery, and messenger service.
The Docket Office will accept deliveries (express delivery, hand
delivery, messenger service) during the Docket Office's normal business
hours, 10:00 a.m. to 3:00 p.m., ET.
Instructions: All submissions must include the Agency's name, the
title of the rulemaking (Beryllium Standard: Notice of Proposed
Rulemaking), and the docket number (OSHA-2018-0003). OSHA will place
comments and other material, including any personal information, in the
public docket without revision, and the comments and other material
will be available online at http://www.regulations.gov. Therefore, OSHA
cautions commenters about submitting statements they do not want made
available to the public, or submitting comments that contain personal
information (either about themselves or others), such as Social
Security Numbers, birth dates, and medical data.
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the above address. The electronic docket for this proposed rule
established at http://www.regulations.gov contains most of
the documents in the docket. However, some information (e.g.,
copyrighted material) is not available publicly to read or download
through this website. All submissions, including copyrighted material,
are available for inspection at the OSHA Docket Office. Contact the
OSHA Docket Office for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Mr. Frank Meilinger, OSHA Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor, Room N-3647, 200 Constitution Avenue NW,
Washington, DC 20210; telephone: (202) 693-1999; email:
meilinger.francis2@dol.gov.
General information and technical inquiries: William Perry or
Maureen Ruskin, Directorate of Standards and Guidance, Occupational
Safety and Health Administration, U.S. Department of Labor, Room N-
3718, 200 Constitution Avenue NW, Washington, DC 20210; telephone (202)
693-1950.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Consideration of Comments
III. Direct Final Rulemaking
IV. Discussion of Proposed Changes
V. Legal Considerations
VI. Preliminary Economic Analysis and Regulatory Flexibility Act
Certification
VII. Office of Management and Budget (OMB) Review Under the
Paperwork Reduction Act of 1995
VIII. Federalism
IX. State Plan States
X. Unfunded Mandates Reform Act
I. Background
On January 9, 2017, OSHA published its final rule Occupational
Exposure to Beryllium and Beryllium Compounds in the Federal Register
(82 FR 2470). OSHA concluded that employees exposed to beryllium and
beryllium compounds at the preceding permissible exposure limits (PELs)
were at significant risk of material impairment of health, specifically
chronic beryllium disease and lung cancer. OSHA concluded that the new
8-hour time-weighted average (TWA) PEL of 0.2 [mu]g/m\3\ reduced this
significant risk to the maximum extent feasible. Based on information
submitted to the record, in the final rule OSHA issued three separate
standards--general industry, shipyards, and construction. In addition
to the revised PEL, the final rule established a new short-term
exposure limit (STEL) of 2.0 [mu]g/m\3\ over a 15-minute sampling
period and an action level of 0.1 [mu]g/m\3\ as an 8-hour TWA, along
with a number of 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.
This proposal would amend the text of the beryllium standard for
general industry to clarify OSHA's intent with respect to certain terms
in the standard, including the definition of Beryllium Work Area (BWA),
the definition of emergency, and the meaning of the terms dermal
contact and beryllium contamination. It also would clarify OSHA's
intent with respect to provisions for disposal and recycling and with
respect to provisions that the Agency intends to apply only where skin
can be exposed to materials containing at least 0.1% beryllium by
weight.
This proposed rule is expected to be an Executive Order (E.O.)
13771 deregulatory action. Details on OSHA's cost/cost savings
estimates for this proposed rule can be found in the rule's preliminary
economic analysis. OSHA has estimated that, at a 3 percent discount
rate over 10 years, there are net annual cost savings of $0.36 million
per year for this proposed rule; at a discount rate of 7 percent there
are net annual cost savings of $0.37 million per year. When the
Department uses a perpetual time horizon, the annualized cost savings
of the proposed rule is $0.37 million with 7 percent discounting. While
the 2017 Beryllium Final Rule went into effect on May 20, 2017,
compliance obligations do not begin until May 11, 2018.
OSHA has preliminarily determined that the standard as modified by
this rulemaking would provide equivalent protection to the standard as
promulgated. Accordingly, while this rulemaking is pending, OSHA will
consider compliance with the standard as modified by this proposal to
be a de minimis condition and will not issue a citation or penalty to
employers in compliance with the proposed standard, in accordance with
the Agency's de minimis citation policy.
II. Consideration of Comments
OSHA requests comment on all issues related to this proposed rule.
As discussed more fully below, this proposed rule is the companion
document to a direct final rule published in the ``Rules'' section of
this issue of the Federal Register. If OSHA receives no significant
adverse comment on the proposal or direct final rule, OSHA will publish
a Federal Register document confirming the effective date of the direct
final rule and withdrawing this companion Notice of Proposed Rulemaking
(NPRM). Such confirmation may include minor stylistic or technical
changes to the direct final rule. For the purpose of judicial review,
OSHA views the date of confirmation of the effective date of the direct
final rule as the date of promulgation. If, however, OSHA receives a
significant adverse comment on the direct final rule or proposal, the
Agency will publish a timely withdrawal of the direct final rule and
proceed with the proposed rule, which addresses the same revisions to
the beryllium standard for general industry.
III. Direct Final Rulemaking
As noted above, in addition to publishing this NPRM, OSHA is
concurrently publishing a companion direct final rule (DFR) in the
Federal Register. In direct final rulemaking, an agency publishes a DFR
in the Federal Register, with a statement that the rule will go into
effect unless the agency receives significant adverse comment within a
specified period. The agency may publish an identical concurrent NPRM.
If the agency receives no significant adverse comment in response to
the DFR, the rule goes into effect. OSHA typically confirms the
effective date of a DFR through a separate Federal Register document.
If the agency receives a significant adverse comment, the agency
withdraws the DFR and treats such comment as a response to the NPRM. An
agency typically uses direct final rulemaking when an agency
anticipates that a rule will not be controversial.
For purposes of the DFR, a significant adverse comment is one that
explains why the amendments to OSHA's beryllium standard would be
inappropriate. In determining whether a comment necessitates withdrawal
of the DFR, OSHA will consider whether the comment raises an issue
serious enough to warrant a substantive response in a notice-and-
comment process. OSHA will not consider a comment recommending an
additional amendment to this rule to be a significant adverse comment
unless the comment states why the DFR would be ineffective without the
addition.
The comment period for this NPRM runs concurrently with that of the
DFR. OSHA will treat comments received on the NPRM as comments also
regarding the companion DFR. Similarly, OSHA will consider significant
adverse comment submitted to the companion DFR as comment to the NPRM.
Therefore, if OSHA receives a
significant adverse comment on either the DFR or this NPRM, it will
withdraw the companion DFR and proceed with the NPRM. In the event OSHA
withdraws the DFR because of significant adverse comment, OSHA will
consider all timely comments received in response to the DFR when it
continues with the NPRM. After carefully considering all comments to
the DFR and the NPRM, OSHA will decide whether to publish a new final
rule.
OSHA determined that the subject of this rulemaking is suitable for
direct final rulemaking. This proposed amendment to the standard is
clarifying in nature and does not adversely impact the safety or health
of employees. The amended standard would clarify OSHA's intent
regarding certain terms in the standard, including the definition of
Beryllium Work Area (BWA), the definition of emergency, and the meaning
of the terms dermal contact and beryllium contamination. It also would
clarify OSHA's intent with respect to provisions for disposal and
recycling and with respect to provisions that the Agency intends to
apply only where skin can be exposed to materials containing at least
0.1% beryllium by weight. The revisions would not impose any new costs
or duties. For these reasons, OSHA does not anticipate objections from
the public to this rulemaking action.
IV. Discussion of Proposed Changes
On January 9, 2017, OSHA adopted comprehensive standards addressing
exposure to beryllium and beryllium compounds in general industry,
construction, and shipyards. 82 FR 2470. Beryllium ``occurs naturally
in rocks, soil, coal, and volcanic dust,'' but can cause harm to
workers through exposure in the workplace. 80 FR 47579. OSHA has thus
set a general industry exposure limit for beryllium and beryllium
compounds since 1971, modified most recently in 2017. See 80 FR 47578-
47579; 82 FR 2471. This proposal would amend that 2017 general industry
beryllium standard (codified at 29 CFR 1910.1024) to clarify its
applicability to materials containing trace amounts of beryllium and to
make related changes. This proposal would not affect the construction
and shipyard standards, which are being addressed in a separate
rulemaking. See 82 FR 29182.
During the last rulemaking, OSHA addressed the issue of trace
amounts of beryllium. In its notice of proposed rulemaking, OSHA
proposed to exempt from its beryllium standard materials containing
less than 0.1% beryllium by weight on the premise that workers in
exempted industries are not exposed at levels of concern, 80 FR 47775,
but noted evidence of high airborne exposures in some of those
industries, in particular the primary aluminum production and coal-
fired power generation industries. 80 FR 47776. Therefore, OSHA
proposed for comment several regulatory alternatives, including an
alternative that would ``expand the scope of the proposed standard to
also include all operations in general industry where beryllium exists
only as a trace contaminant.'' 80 FR 47730. After receiving comment,
OSHA adopted in the final rule an alternative limiting the exemption
for materials containing less than 0.1% beryllium by weight to where
the employer has objective data demonstrating that employee exposure to
airborne beryllium will remain below the action level (AL) of 0.1
[micro]g/m\3\, measured as an 8-hour TWA, under any foreseeable
conditions. 29 CFR 1910.1024(a)(2). In doing so, OSHA noted that the AL
exception ensured that workers with airborne exposures of concern were
covered by the standard:
OSHA agrees with the many commenters and testimony expressing
concern that materials containing trace amounts of beryllium (less
than 0.1 percent by weight) can result in hazardous [airborne]
exposures to beryllium. We disagree, however, with those who
supported completely eliminating the exemption because this could
have unintended consequences of expanding the scope to cover minute
amounts of naturally occurring beryllium (Ex 1756 Tr. 55). Instead,
we believe that alternative #1b--essentially as proposed by Materion
and USW [United Steelworkers] and acknowledging that workers can
have significant [airborne] beryllium exposures even with materials
containing less than 0.1%--is the most appropriate approach.
Therefore, in the final standard, it is exempting from the
standard's application materials containing less than 0.1% beryllium
by weight only where the employer has objective data demonstrating
that employee [airborne] exposure to beryllium will remain below the
action level as an 8-hour TWA under any foreseeable conditions. 82
FR 2643.
As the regulatory history makes clear, OSHA intended to protect
employees working with trace beryllium only when it caused airborne
exposures of concern. OSHA did not intend for provisions aimed at
protecting workers from the effects of dermal contact to apply in the
case of materials containing only trace amounts of beryllium. Since the
publication of the final rule, however, stakeholders have suggested
that an unintended consequence of the final rule's revision of the
trace exemption is that provisions designed to protect workers from
dermal contact with beryllium-contaminated material could be read as
applying to materials with only trace amounts of beryllium.
This proposal would adjust the regulatory text of the general
industry beryllium standard to clarify that OSHA does not intend for
requirements that primarily address dermal contact to apply in
processes, operations, or areas involving only materials containing
less than 0.1% beryllium by weight. These proposed clarifications would
be made through changes to the definition of beryllium work area; the
addition of definitions of dermal contact, beryllium-contaminated, and
contaminated with beryllium; clarifications of certain hygiene
provisions with respect to beryllium contamination; and the
clarifications to provisions for disposal and recycling. In addition,
because under these changes it is possible to have a regulated area
that is not a beryllium work area, this proposal would make changes to
certain housekeeping provisions to ensure they apply in all regulated
areas. Finally, this proposal also includes a change to the definition
of ``emergency'', adding detail to the definition so as to clarify the
nature of the circumstances OSHA intends to be considered an emergency
for the purposes of the standard.
Definition of beryllium work area. Paragraph (b) of the beryllium
standard published in January 2017 defined a beryllium work area as any
work area containing a process or operation that can release beryllium
where employees are, or can reasonably be expected to be, exposed to
airborne beryllium at any level or where there is the potential for
dermal contact with beryllium. This proposal would amend the definition
as follows: ``Beryllium work area means any work area: (1) Containing a
process or operation that can release beryllium and that involves
materials that contain at least 0.1% beryllium by weight; and (2) where
employees are, or can reasonably be expected to be, exposed to airborne
beryllium at any level or where there is the potential for dermal
contact with beryllium.'' This change would clarify OSHA's intent that
many of the provisions associated with beryllium work areas should only
apply to areas where there are processes or operations involving
materials at least 0.1% beryllium by weight.
Specifically, this proposed change to the beryllium work area
definition would clarify OSHA's intent that the following provisions
associated with beryllium work areas do not apply where processes and
operations involve only materials containing trace amounts of beryllium
(less than 0.1% beryllium by weight): Establishing and
demarcating beryllium work areas (paragraphs (e)(1)(i) and (e)(2)(i));
including procedures for minimizing cross-contamination within
(paragraph (f)(1)(i)(D)) or minimizing migration of beryllium out of
(paragraph (f)(1)(i)(F)) such areas in the written exposure control
plan; ensuring that at least one engineering or process control is in
place to reduce beryllium exposure where airborne beryllium levels meet
or exceed the AL (revised paragraph (f)(2)(ii)).\1\ Additionally, for
areas where beryllium is only present in materials at concentrations of
less than 0.1% beryllium by weight, unless that area is also a
regulated area, employers are not required to ensure that all surfaces
in such areas are as free as practicable of beryllium (paragraph
(j)(1)(i)); ensure that all surfaces in such areas are cleaned by HEPA-
filtered vacuuming or other methods that minimize the likelihood and
level of airborne exposure (paragraph (j)(2)(i)); or prohibit dry
sweeping or brushing for cleaning surfaces in such areas (paragraph
(j)(2)(ii)).
---------------------------------------------------------------------------
\1\ As explained in the preamble to the January 2017 rule, in
industries that process or handle materials with only trace amounts
of beryllium and that encounter exposures to beryllium above the
action level, the PEL would ``be exceeded only during operations
that generate [an] excessive amount of visible airborne dust.'' 82
FR 2583. OSHA therefore expects that if exposures in such a facility
are below the PEL but above the AL, there is already at least one
engineering or process control in place, so this requirement had no
effect on primary aluminum production or coal-fired utilities. The
2017 FEA explained that this provision would only require additional
controls in two job categories in two application groups, neither of
which are in primary aluminum production or coal-fired utilities.
(Document ID OSHA-H005C-2006-0870-2042, p. V-12).
---------------------------------------------------------------------------
This proposal also includes conforming changes to maintain the
January 2017 rule's requirements for housekeeping in regulated areas.
Because all regulated areas were also beryllium work areas under the
January 2017 beryllium standard, OSHA did not specify whether
requirements for beryllium work areas should also apply in regulated
areas (areas in which airborne beryllium exposure meets or exceeds the
TWA PEL or STEL). This proposal's clarification to the definition of
beryllium work area, however, means that it is possible for a work area
to be a regulated area, but not a beryllium work area. This would occur
when processes that involve only materials containing less than 0.1%
beryllium by weight nevertheless create airborne beryllium exposures at
or above the TWA PEL or STEL. 82 FR 2583.
It is thus important to clarify that housekeeping (paragraph (j))
requirements continue to apply in regulated areas, even if the
processes or operations in these areas involve materials with only
trace beryllium. Operations or processes involving trace beryllium
materials must generate extremely high dust levels in order to exceed
the TWA PEL or STEL. Following the housekeeping methods required by
paragraph (j) will help to protect workers against resuspension of
surface beryllium accumulations from extremely dusty operations and
limit workers' airborne exposure to beryllium.
The proposal accordingly would amend paragraphs (j)(1)(i),
(j)(2)(i), and (j)(2)(ii) to state explicitly that they apply to
regulated areas, as follows. Paragraph (j)(1)(i), as amended, would
state that ``[t]he employer must maintain all surfaces in beryllium
work areas and regulated areas as free as practicable of beryllium and
in accordance with the written exposure control plan required under
paragraph (f)(1) and the cleaning methods required under paragraph
(j)(2) of this standard.'' Paragraph (j)(2)(i), as amended, would state
that ``[t]he employer must ensure that surfaces in beryllium work areas
and regulated areas are cleaned by HEPA-filtered vacuuming or other
methods that minimize the likelihood and level of airborne exposure.''
Paragraph (j)(2)(ii), as amended, would state that ``[t]he employer
must not allow dry sweeping or brushing for cleaning surfaces in
beryllium work areas or regulated areas unless HEPA-filtered vacuuming
or other methods that minimize the likelihood and level of airborne
exposure are not safe or effective.''
This proposal would also make conforming changes to the engineering
controls requirements to ensure that the hierarchy of controls
continues to apply in all regulated areas. Paragraph (f)(2) of the
January 2017 beryllium standard provided that, if airborne exposures
still exceed the PEL or STEL after implementing at least one control
for each operation in a beryllium work area that releases airborne
beryllium, the employer must implement additional or enhanced
engineering and work practice controls to reduce airborne exposure to
or below the limit exceeded. OSHA intended this provision to apply to
all operations within the scope of the standard that can release
airborne beryllium. 82 FR 2671-72. Because, under these proposed
revisions, not all regulated areas would be beryllium work areas, this
proposal would rearrange the regulatory text of paragraph (f)(2) to
make clear that the hierarchy of controls will continue to apply in
regulated areas that are not beryllium work areas.
Definitions related to beryllium contamination. To further clarify
OSHA's intent that the standard's requirements aimed at reducing the
effect of dermal contact with beryllium should not apply to areas where
there are no processes or operations involving materials containing at
least 0.1% beryllium by weight, this proposal would define ``beryllium-
contaminated or contaminated with beryllium'' and add those terms to
certain provisions in the standard. This proposal would define those
terms as follows: ``Contaminated with beryllium and beryllium-
contaminated mean contaminated with dust, fumes, mists, or solutions
containing beryllium in concentrations greater than or equal to 0.1
percent by weight.'' This proposal would add the terms to certain
provisions in the standard's requirements for hygiene areas and
disposal and recycling.
The use of this proposed definition accordingly would clarify
OSHA's intent that the following provisions, which apply where
clothing, hair, skin, or work surfaces are beryllium-contaminated, do
not apply where the contaminating material contains less than 0.1%
beryllium by weight: Paragraph (h)(2)(i) and paragraph (h)(2)(ii),
which require the employer to ensure that each employee removes all
beryllium-contaminated personal protective clothing and equipment at
the appropriate time and as specified in the written exposure control
plan required by paragraph (f)(1); and paragraph (h)(2)(iii) and
paragraph (h)(2)(iv), which require the employer to ensure that
measures to prevent cross contamination between beryllium-contaminated
personal protective clothing and equipment and street clothing are
observed and that beryllium-contaminated personal protective clothing
and equipment are not removed from the workplace. This proposal would
also amends paragraph (h)(3)(ii), which requires the employer to ensure
that beryllium is properly removed from PPE, by adding the term
``beryllium-contaminated'' so that this requirement would apply only
where the contaminating material contains at least 0.1% beryllium by
weight. The amended paragraph (h)(3)(ii) would read as follows: ``The
employer must ensure that beryllium is not removed from beryllium-
contaminated personal protective clothing and equipment by blowing,
shaking, or any other means that disperses beryllium into the air.''
Similarly, this proposal's inclusion of the term ``contaminated
with beryllium'' in (i)(3)(i)(B) and (i)(3)(ii)(B) clarifies OSHA's
intent that those provisions,
which require employers to provide and ensure use of showers where
employees' hair or body parts other than hands, face, and neck can
reasonably be expected to become contaminated with beryllium, would not
apply where the contaminating material contains less than 0.1%
beryllium by weight.
The proposed adoption of the definition of ``beryllium-
contaminated'' would further clarify the application of certain
requirements that are meant to minimize re-entrainment of airborne
beryllium and reduce the effect of dermal contact with beryllium.
Specifically, it would clarify that paragraph (j)(2)(iii), which
prohibits the use of compressed air for cleaning beryllium-contaminated
surfaces except where used in conjunction with an appropriate
ventilation system, and paragraph (j)(2)(iv), which requires the use of
respiratory protection and PPE in accordance with paragraphs (g) and
(h) of the standard when dry sweeping, brushing, or compressed air are
used to clean beryllium-contaminated surfaces, do not apply where the
contaminating material contains less than 0.1% beryllium by weight.
OSHA does not expect the additional airborne exposure from dry
brushing, sweeping, or using compressed air to significantly increase
the levels of airborne exposure outside regulated areas when working
with trace beryllium. This is because for trace beryllium to generate
airborne exposures of concern, excessive amounts of dust would need to
be generated, and this would not happen outside of regulated areas.
This proposal would also add the term ``beryllium-contaminated'' to
certain requirements pertaining to eating and drinking areas to clarify
that hygiene requirements in these areas apply only where materials
containing more than 0.1% beryllium by weight may contaminate such
areas. Paragraph (i)(4)(i), as amended by this proposal, would state
that wherever the employer allows employees to consume food or
beverages at a worksite where beryllium is present, the employer must
ensure that ``[b]eryllium-contaminated surfaces in eating and drinking
areas are as free as practicable of beryllium.'' Paragraph (i)(4)(ii),
as amended by this proposal, would require employers to ensure that
``[n]o employees enter any eating or drinking area with beryllium-
contaminated 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.''
Definition of dermal contact with beryllium. To clarify OSHA's
intent that requirements of the standard associated with dermal contact
with beryllium should not apply to areas where there are no processes
or operations involving materials at least 0.1% beryllium by weight,
this proposal would also add a definition for dermal contact with
beryllium. This new definition would provide: ``Dermal contact with
beryllium means skin exposure to: (1) Soluble beryllium compounds
containing beryllium in concentrations greater than or equal to 0.1
percent by weight; (2) solutions containing beryllium in concentrations
greater than or equal to 0.1 percent by weight; or (3) dust, fumes, or
mists containing beryllium in concentrations greater than or equal to
0.1 percent by weight.'' Accordingly, the proposed definition would
clarify that paragraph (h)(1)(ii), which requires an employer to
provide and ensure the use of personal protective clothing and
equipment where there is a reasonable expectation of dermal contact
with beryllium, applies only where contact may occur with materials
containing at least 0.1% beryllium by weight. This definition would
also clarify that the requirements related to dermal contact in the
written exposure control plan, washing facilities, medical
examinations, and training provisions only apply where contact may
occur with materials containing at least 0.1% beryllium by weight.
Definition of emergency. This proposal also would clarify the
definition of ``emergency'' in paragraph (b) of the beryllium standard
published in January 2017. That paragraph defined an emergency as ``any
uncontrolled release of airborne beryllium.'' This proposal would amend
the definition as follows: ``Emergency means any occurrence such as,
but not limited to, equipment failure, rupture of containers, or
failure of control equipment, which may or does result in an
uncontrolled and unintended release of airborne beryllium that presents
a significant hazard.'' This change would clarify the circumstances
under which the provisions associated with emergencies should apply,
including the requirements that employers provide and ensure employee
use of respirators and that employers provide medical surveillance to
employees exposed in an emergency. This proposed change is consistent
with OSHA's intent as explained in the preamble to the 2017 final rule.
82 FR 2690 (``An emergency could result from equipment failure, rupture
of containers, or failure of control equipment, among other causes.'').
These examples show OSHA's intent to define an ``emergency'' as
something unintended as well as uncontrolled, and including the
examples in the new definition make that clear. It is also consistent
with other OSHA standards, such as methylenedianiline (1910.1050),
vinyl chloride (1910.1017), acrylonitrile (1910.1045), benzene
(1910.1028), and ethylene oxide (1910.1047).
Disposal and recycling. Finally, this proposal would clarify the
application of the disposal and recycling provisions. Paragraph (j)(3)
of the beryllium standard published in January 2017 required employers
to ensure that materials designated for disposal that contain or are
contaminated with beryllium are disposed of in sealed, impermeable
enclosures, such as bags or containers, that are labeled in accordance
with paragraph (m)(3) of the standard. It also required that materials
designated for recycling which contain or are contaminated with
beryllium are cleaned to be as free as practicable of surface beryllium
contamination and labeled in accordance with paragraph (m)(3) of the
standard, or placed in sealed, impermeable enclosures, such as bags or
containers, that are labeled in accordance with paragraph (m)(3) of the
standard. These provisions were designed to protect workers from dermal
contact with beryllium dust generated during processing, where there is
a risk of beryllium sensitization. See 82 FR 2694, 2695. This proposal
accordingly would limit those requirements to ``materials that contain
beryllium in concentrations of 0.1 percent by weight or more or are
contaminated with beryllium,'' consistent with OSHA's intention that
provisions aimed at protecting workers from the effects of dermal
contact do not apply in the case of materials containing only trace
amounts of beryllium The hazard communication standard would continue
to apply according to its terms. See 29 CFR 1910.1200.
V. Legal Considerations
The purpose of the Occupational Safety and Health Act of 1970)
(``OSH Act''; 29 U.S.C. 651 et seq.) is ``to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To
achieve this goal, Congress authorized the Secretary of Labor to
promulgate and enforce occupational safety and health standards. 29
U.S.C. 655(b), 658. A safety or health standard is a standard that
``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). A
standard is reasonably necessary or appropriate when a significant risk
of material harm exists in the workplace and the standard would
substantially reduce or eliminate that workplace risk. See Industrial
Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42
(1980) (plurality opinion).
OSHA need not make additional findings on risk for this proposal.
As discussed above, this proposal would not diminish the employee
protections put into place by the standard being amended. And because
OSHA previously determined that the beryllium standard substantially
reduces a significant risk (82 FR 2545-52), it is unnecessary for the
Agency to make additional findings on risk for the minor changes and
clarifications proposed by this rulemaking. See, e.g., Public Citizen
Health Research Group v. Tyson, 796 F.2d 1479, 1502 n.16 (DC Cir. 1986)
(rejecting the argument that OSHA must ``find that each and every
aspect of its standard eliminates a significant risk.'').
OSHA has determined that these minor changes and clarifications are
technologically and economically feasible. All OSHA standards must be
both technologically and economically feasible. See United Steelworkers
v. Marshall, 647 F.2d 1189, 1264 (DC Cir. 1980) (``Lead I''). The
Supreme Court has defined feasibility as ``capable of being done.'' Am.
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-10 (1981) (``Cotton
Dust''). Courts have further clarified that a standard is
technologically feasible if OSHA proves a reasonable possibility,
``within the limits of the best available evidence . . . that the
typical firm will be able to develop and install engineering and work
practice controls that can meet the PEL in most of its operations.''
Lead I, 647 F.2d at 1272. With respect to economic feasibility, 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). In the final economic
analysis (FEA) for the 2017 beryllium rule, OSHA concluded that the
rule was economically and technologically feasible. OSHA has
preliminarily determined that this proposal is also economically and
technologically feasible, because it does not impose any new
requirements or costs.
VI. Preliminary Economic Analysis and Regulatory Flexibility Act
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 impacts of certain rules that
OSHA promulgates. E.O. 13563 emphasizes the importance of quantifying
both costs and benefits, reducing costs, harmonizing rules, and
promoting flexibility.
This proposal is not an ``economically significant regulatory
action'' under Executive Order 12866, or a ``major rule'' under the
Congressional Review Act (5 U.S.C. 801 et seq.), and its impacts do not
trigger the analytical requirements of UMRA. Neither the benefits nor
the costs of this proposal would exceed $100 million in any given year.
This proposal would, however, result in a net cost savings for
employers in primary aluminum production and coal-fired utilities,
which are the only industries in General Industry covered by the 2017
Beryllium Final Rule that OSHA identified with operations involving
materials containing only trace beryllium (less than 0.1% beryllium by
weight).
Several calculations illustrate the expected cost savings. At a
discount rate of 3 percent, this proposal would yield annualized cost
savings of $0.36 million per year for 10 years. At a discount rate of 7
percent, this proposal would yield an annualized cost savings of $0.37
million per year for 10 years. These net cost savings amount to
approximately 0.6 percent of the original estimated cost of the 2017
Beryllium Final Rule for General Industry at discount rates of either 3
or 7 percent; to approximately 5.3 percent of the original estimated
cost of the 2017 Beryllium Final Rule for primary aluminum production
and coal-fired utilities only at a discount rate of 3 percent and 5.2
percent of the original estimated cost of the 2017 Beryllium Final Rule
for primary aluminum production and coal-fired utilities only at a
discount rate of 7 percent.\2\ Under a perpetual time horizon, the
annualized cost savings of this proposal is $0.37 million at a discount
rate of 7 percent.
---------------------------------------------------------------------------
\2\ The original estimated cost of the 2017 beryllium final rule
for General Industry, and separately for primary aluminum production
and coal-fired utilities, was updated to 2017 dollars and
additionally adjusted and corrected, as subsequently explained in
the text.
---------------------------------------------------------------------------
1. Changes to the Baseline: Updating to 2017 Dollars and Removing
Familiarization Costs
Because baseline costs typically reflect the costs of compliance
without the changes set forth in an agency's action--in this case, the
proposal-- OSHA has revised the baseline costs, as displayed in the FEA
in support of the beryllium standard of January 9, 2017, in two ways.
First, OSHA updated the projected costs for general industry contained
in the FEA that accompanied the rule from 2015 to 2017 dollars, using
the latest Occupational Employment Statistics (OES) wage data (for
2016) and inflating them to 2017 dollars. Second, OSHA excluded certain
familiarization costs, included in the cost estimates developed in the
beryllium FEA for the 2017 Beryllium Final Rule, because OSHA expects
that those costs have already been incurred by affected employers.
Thus, the baseline costs for this Preliminary Economic Analysis (PEA)
are the projected costs from the 2017 FEA, updated to 2017 dollars,
less familiarization costs in the 2017 beryllium final rule (but
including some new familiarization costs for employers to become
familiar with the revised provisions). Throughout this analysis of
costs and cost savings, the context is limited to employers in primary
aluminum production and coal-fired utilities.
2. Discussion of Overhead Costs
As in the 2017 FEA, OSHA has not accounted for overhead labor costs
in its analysis of the cost savings for this proposal due to concerns
about consistency. 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 Environmental Protection Agency has used 17 percent,\3\ and
government contractors have been reported to use an average of 77
percent.\4\ Some overhead costs, such as
advertising and marketing, may be more closely correlated with output
than with labor. Other overhead costs vary with the number of new
employees. For example, rent or payroll processing costs may change
little with the addition of 1 employee in a 500-employee firm, but may
change substantially with the addition of 100 employees. If an employer
is able to rearrange current employees' duties to implement a rule,
then the marginal share of overhead costs, such as rent, insurance, and
major office equipment (e.g., computers, printers, copiers) would be
very difficult to measure with accuracy.
---------------------------------------------------------------------------
\3\ See Grant Thornton LLP. 2015 Government Contractor Survey
(Document ID OSHA-H005C-2006-0870-2153). The application of this
overhead rate was based on an approach used by the Environmental
Protection Agency, as described in EPA's ``Wage Rates for Economic
Analyses of the Toxics Release Inventory Program,'' June 10, 2002.
This analysis itself was based on a survey of several large chemical
manufacturing plants: Heiden Associates, Final Report: A Study of
Industry Compliance Costs Under the Final Comprehensive Assessment
Information Rule, Prepared for the Chemical Manufacturers
Association, December 14, 1989.
\4\ For further examples of overhead cost estimates, please see
the Employee Benefits Security Administration's guidance at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
---------------------------------------------------------------------------
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 proposal would increase
to approximately $0.39 million per year, at discount rates of either 3
percent or 7 percent.\5\ The addition of 17 percent overhead on base
wages would therefore increase cost savings by approximately 7 percent
above the primary estimate at either discount rate.
---------------------------------------------------------------------------
\5\ 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 March 25, 2016 final respirable crystalline silica
standards (81 FR 16286) and in the PEA in support of the June 27,
2017 proposed beryllium standards in construction and shipyard
sectors (82 FR 29201).
---------------------------------------------------------------------------
3. Cost Impact of the Changes to the Standard
OSHA preliminarily estimates a net cost savings from this proposal
for employers at primary aluminum production and coal-fired utilities,
which again are the only two industries identified in the 2017 FEA as
having costs associated with exposure to trace beryllium materials.\6\
Annualizing the present value of net cost savings over ten years, the
result is an annualized net cost savings of $0.36 million per year at a
discount rate of 3 percent, or $0.37 million per year at a discount
rate of 7 percent. When the Department uses a perpetual time horizon,
the annualized net cost savings of this proposal is $0.37 million at a
discount rate of 7 percent.
---------------------------------------------------------------------------
\6\ As noted in Section IV of this preamble, coverage of dermal
contact with trace beryllium materials was an unintended consequence
of OSHA's decision to cover airborne exposures to beryllium above
the action level caused by operations that generate excessive
amounts of dust from trace beryllium materials. Likewise, in the
2017 FEA supporting OSHA's Beryllium Final Rule, through an
oversight, OSHA made no distinction between trace and non-trace
beryllium materials when determining the cost of requirements
triggered by dermal contact with beryllium. The cost savings
generated by this PEA are a result of correcting these oversights.
---------------------------------------------------------------------------
The undiscounted cost savings by provision and year are presented
below in Table 1, and the cost savings by provision and discount rate
are shown below in Tables 2 and 3. As described elsewhere in this
document, the cost savings described in this PEA reflect savings only
for provisions covered by the changes in this proposal as well as added
familiarization costs. OSHA estimated no cost savings for the PEL,
respiratory protection, exposure assessment, regulated areas, medical
surveillance, medical removal protection, written exposure control
plan, or training provisions because the proposal would make no changes
of substance to those provisions.
a. Beryllium work areas. OSHA is proposing to limit the definition
of ``beryllium work area'' to any work area containing a process or
operation ``that involves materials that contain at least 0.1%
beryllium by weight. . . .'' OSHA has preliminarily determined that
affected establishments in primary aluminum production and coal-fired
utilities would thus no longer need to designate and demarcate
beryllium work areas because their materials would not meet that
threshold outside of the ``regulated areas'' in primary aluminum
production where employee exposures to airborne beryllium would exceed
the PEL. In its previous economic analysis, OSHA had estimated that
each of the establishments in these categories required beryllium work
areas in addition to ``regulated areas,'' which were costed separately.
The removal of these beryllium work area designations results in an
annualized cost savings of $12,913 using a 3 percent discount rate and
$15,682 using a 7 percent discount rate. Annualized costs by provision
and discount rate can be seen below in Tables 2 and 3.
b. Protective work clothing and equipment. OSHA is recognizing no
cost savings in this proposal for the elimination of PPE requirements
associated with dermal contact in coal-fired utilities. In its 2017
FEA, OSHA listed the PPE compliance rate for utility workers at coal-
fired utilities at 75 percent and therefore estimated PPE costs for the
residual 25 percent of utility workers in the industry (where airborne
exposures exceed the PEL or STEL or where there is dermal contact with
beryllium). But upon further review, OSHA has preliminarily determined
that it should not have included those costs because affected employers
in coal-fired utilities were already required to wear PPE under 29 CFR
1910.1018(j) to prevent skin and eye irritation from exposure to trace
inorganic arsenic found in coal ash. As OSHA noted in its technological
feasibility analysis, inorganic arsenic is often found in coal fly ash
in ``concentrations 10 to 1,000 times greater than beryllium,'' fly ash
is the primary source of beryllium exposure for employees in coal-fired
utilities, and employers in this application group indicated that they
were already following a majority of the provisions of the rule to
comply with OSHA requirements for other hazardous substances, such as
arsenic (p. IV-652). Thus, in all of the areas within a facility in
which employees are likely to be exposed to beryllium, they are also
likely to be exposed to concentrations of arsenic significantly high so
as to trigger the arsenic PPE requirements. Accordingly, coal-fired
utility compliance rates with the PPE requirement for affected workers
should have been 100 percent in the prior FEA, and no costs for PPE for
these workers should have been included in OSHA's cost estimates.
Because OSHA should not have included new beryllium PPE costs for this
group, OSHA is recognizing no cost savings in this proposal for the
elimination of PPE requirements associated with dermal contact in coal-
fired utilities.
There are, however, some small PPE cost savings for primary
aluminum production. The January 2017 rule requires employers to
provide PPE in two situations: (1) Where airborne exposure exceeds, or
can reasonably be expected to exceed, the TWA PEL or STEL; and (2)
where there is a reasonable expectation of dermal contact with
beryllium. 29 CFR 1910.1024(h)(1). It is the second of these two
situations which OSHA believes will trigger cost savings. Because this
proposal would clarify that ``dermal contact with beryllium'' does not
include contact with beryllium in concentrations less than 0.1%
beryllium by weight, gloves and other PPE requirements would be
triggered by a reasonable expectation of dermal contact only with
materials containing more than 0.1% beryllium by weight. In primary
aluminum production, there is no dermal contact with materials
containing beryllium above this threshold. As a result, the Agency has
preliminarily determined that in primary aluminum production,
additional PPE is only necessary for workers exposed over the PEL. This
change results in an annualized cost savings for employers in primary
aluminum production of $35,023 using
a 3 or 7 percent discount rate. Annualized costs by provision and
discount rate can be seen below in Tables 2 and 3.
c. Hygiene areas and practices. The proposed adoption of a
definition for ``contaminated with beryllium'' would also reduce the
costs of complying with the Hygiene Areas and Practices provision in
primary aluminum production (the costs for coal-fired utilities would
not be affected). The 2017 Final Beryllium Rule requires employers to
provide showers where both of two conditions are met:
(A) Airborne exposure exceeds, or can reasonably be expected to
exceed, the TWA PEL or STEL; and
(B) Beryllium can reasonably be expected to contaminate
employees' hair or body parts other than hands, face, and neck.
29 CFR 1910.1024(i)(3)(i). By proposing to revise (B) to
incorporate the newly defined term ``contaminated with beryllium,'' the
condition in paragraph (B) would not be met in primary aluminum
production because no employees in this application group can
reasonably be expected to become ``contaminated with beryllium.'' Thus,
the beryllium standard would not require employers in this application
group to provide showers. Similarly, employers need not provide the
estimated lower-cost alternative of head coverings, discussed in the
2017 FEA.\7\ Removing the cost of head coverings for workers in this
application group results in an annualized cost savings for employers
in primary aluminum production of $415 using a 3 or 7 percent discount
rate. Annualized costs by provision and discount rate can be seen below
in Tables 2 and 3.
---------------------------------------------------------------------------
\7\ In the previous FEA, OSHA had included costs for head
coverings in lieu of showers, reasoning that employees could avoid
the need for showers because the head coverings and other PPE would
prevent their hair or body parts from becoming contaminated with
beryllium.
---------------------------------------------------------------------------
d. Housekeeping. Similar to the above discussion about PPE in coal-
fired utilities, OSHA is recognizing no cost savings in this proposal
for coal-fired utilities as a result of the modification of the
housekeeping requirements. In the FEA in support of 2017 Beryllium
Final Rule, the Agency listed the housekeeping compliance rate for
affected workers at coal-fired utilities at 75 percent and therefore
estimated housekeeping costs for the residual 25 percent of utility
workers in a beryllium work area. But upon further review, OSHA has
preliminarily determined that affected employers in coal-fired
utilities were already required to perform comparable housekeeping
duties under 29 CFR 1910.1018(k) to prevent accumulations of inorganic
arsenic found in coal ash. Accordingly, coal-fired utility compliance
rates with the housekeeping requirements for affected workers should
have been 100 percent in the prior FEA, and no costs for housekeeping
for these workers should have been included in OSHA's cost estimates.
Consequently, OSHA is recognizing no cost savings in this proposal for
coal-fired utilities as a result of the modification of the
housekeeping requirements.
The proposed rule clarification also means that employers in
primary aluminum production facilities would typically only be required
to comply with the beryllium housekeeping provisions in ``regulated
areas,'' which for cost purposes OSHA identified as employees exposed
over the PEL in its exposure profile. There are several exceptions,
none of which have a quantifiable impact on costs: employers in this
industry would still need to follow the housekeeping requirements when
cleaning up spills and emergency releases of beryllium (paragraph
(j)(1)(ii)), handling and maintaining cleaning equipment (paragraph
(j)(2)(v)), and when necessary to reduce some workers exposures below
the PEL (serving as an engineering control to prevent over-exposure to
beryllium within regulated areas or the need for regulated areas). OSHA
did not identify separate costs in its prior FEA for this use of
housekeeping as a form of engineering control and does not do so here.
Thus, for cost calculation purposes in this new PEA, OSHA removed
housekeeping costs for all employees exposed below the PEL in its
exposure profile. This proposed change results in an annualized cost
savings for employers in primary aluminum production of $323,664 using
a 3 percent discount rate and $330,324 using a 7 percent discount rate.
Annualized costs by provision and discount rate can be seen below in
Tables 2 and 3. OSHA believes that these estimated cost savings might
be slightly overstated to the extent that some housekeeping outside of
the regulated areas would still be needed to perform an engineering-
control function in some facilities, but the Agency is unable to
quantify them now because of the variability among facilities and
controls that employers may implement to comply with the standard.
e. Additional familiarization. In the FEA in support of OSHA's 2017
Beryllium Final Rule, the Agency determined that employers would need
to spend time familiarizing themselves with the rule and allocated 4,
8, and 40 hours, depending on establishment size (fewer than 20
employees, between 20 and 499 employees, and 500 or more employees,
respectively). OSHA has similarly preliminarily determined that
establishments would need to spend time familiarizing themselves with
this proposal. As the affected provisions in this proposal are only a
fraction of all the provisions in the 2017 final rule and would not
require any new actions on the part of employers, the Agency has
estimated familiarization time of 2, 4, and 20 hours per employer,
depending on establishment size, for a supervisor to review the changes
to the beryllium rule reflected in this proposal. This results in an
annualized cost of $9,404 using a 3 percent discount rate and $11,421
using a 7 percent discount rate. Annualized costs by provision and
discount rate--3 and 7 percent--can be seen below in Tables 2 and 3,
respectively.
f. Unchanged provisions. As discussed earlier, this proposal would
primarily serve to clarify OSHA's intent with respect to certain terms
and requirements in OSHA's 2017 beryllium general industry standard.
These proposed changes largely deal with clarifying the application of
various requirements to trace beryllium. The triggers for most
provisions in the standard--the PEL, respiratory protection, exposure
assessment, regulated areas, medical surveillance, medical removal
protection, written exposure control plan, and training provisions
\8\--are determined by factors other than beryllium concentration and
would be unchanged by this proposal. Similarly, the revised definition
of ``emergency'' in this proposal would not affect the costs estimated
for the other provisions in the standard.
---------------------------------------------------------------------------
\8\ While the proposed changes in the standard do not mandate
any additional employee training, OSHA notes that it had previously
accounted for costs of annual re-training required by the standard
(Document ID OSHA-H005C-2006-0870-2042, p. V-221).
---------------------------------------------------------------------------
4. Economic and Technological Feasibility
In the FEA for the 2017 beryllium standard, OSHA concluded that the
rule was economically and technologically feasible. This proposal would
not impose any new requirements and has the net impact of removing a
small amount of cost, so OSHA has preliminarily determined that this
proposed rule is also economically and technologically feasible.
5. Effects on Benefits
This proposal would clarify aspects of the 2017 general industry
beryllium standard to address unintended
consequences regarding the applicability of provisions designed to
protect workers from dermal contact with beryllium-containing materials
and trace amounts of beryllium. This proposal would make clear that
OSHA did not, and does not, intend to apply the provisions aimed at
protecting workers from the effects of dermal contact to industries
that only work with beryllium in trace amounts where there is limited
or no airborne exposure. In the prior FEA, OSHA did not identify any
quantifiable benefits from avoiding beryllium sensitization from dermal
contact (see discussion at p. VII-16 through VII-18). Thus, the
revisions in this proposal, which are focused on dermal contact, would
not have any impact on OSHA's previous benefit estimates.
6. Regulatory Flexibility Act Certification
This proposal would result in cost savings for affected small
entities, and those savings fall below levels that could be said to
have a significant positive economic impact on a substantial number of
small entities.\9\ Therefore, OSHA preliminarily certifies that this
proposal would not have a significant impact on a substantial number of
small entities.
---------------------------------------------------------------------------
\9\ OSHA investigated whether the projected cost savings would
exceed 1 percent of revenues or 5 percent of profits for small
entities and very small entities for every industry. To
preliminarily 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 proposal are such a small percentage of revenues and profits
for every affected industry that OSHA's criteria would not be
exceeded for any industry.
Table 1--Total Undiscounted Net Cost Savings of the Proposed Beryllium Standard by Year
[2017 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year
Application Group -------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Aluminum Production....................... $613,367 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053
Coal Fired Utilities...................... 9,461 0 0 0 0 0 0 0 0 0
-------------------------------------------------------------------------------------------------------------
Total................................. 622,828 328,053 328,053 328,053 328,053 328,053 328,053 328,053 328,053 328,053
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2--Annualized Net Cost Savings of Program Requirements for Industries Affected by the Proposed Beryllium Standard by Sector and Six-Digit NAICS Industry
[In 2017 dollars using a 3 percent discount rate]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Written Protective
Application group/ Rule Exposure Regulated Beryllium Medical Medical exposure work Hygiene Total
NAICS Industry familiarization assessment areas work areas surveillance removal control clothing & areas and Housekeeping Training program
provision plan equipment practices costs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Aluminum Production
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
331313........... Alumina -$240 $0 $0 $2,639 $0 $0 $0 $35,023 $415 $323,664 $0 $361,500
Refining and
Primary
Aluminum
Production.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Coal Fired Utilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
221112........... Fossil Fuel -6,209 0 0 8,087 0 0 0 0 0 0 0 1,878
Electric Power
Generation.
311221........... Wet Corn -282 0 0 260 0 0 0 0 0 0 0 -22
Milling.
311313........... Beet Sugar -353 0 0 303 0 0 0 0 0 0 0 -49
Manufacturing.
311942........... Spice and -41 0 0 43 0 0 0 0 0 0 0 2
Extract
Manufacturing.
312120........... Breweries...... -54 0 0 43 0 0 0 0 0 0 0 -11
321219........... Reconstituted -20 0 0 22 0 0 0 0 0 0 0 2
Wood Product
Manufacturing.
322110........... Pulp Mills..... -32 0 0 22 0 0 0 0 0 0 0 -10
322121........... Paper (except -437 0 0 238 0 0 0 0 0 0 0 -199
Newsprint)
Mills.
322122........... Newsprint Mills -705 0 0 519 0 0 0 0 0 0 0 -186
322130........... Paperboard -447 0 0 346 0 0 0 0 0 0 0 -101
Mills.
325211........... Plastics -85 0 0 87 0 0 0 0 0 0 0 2
Material and
Resin
Manufacturing.
325611........... Soap and Other -23 0 0 22 0 0 0 0 0 0 0 -1
Detergent
Manufacturing.
327310........... Cement -39 0 0 43 0 0 0 0 0 0 0 4
Manufacturing.
333111b.......... Farm Machinery -24 0 0 22 0 0 0 0 0 0 0 -2
and Equipment
Manufacturing.
336510b.......... Railroad -26 0 0 22 0 0 0 0 0 0 0 -4
Rolling Stock
Manufacturing.
611310........... Colleges, -387 0 0 195 0 0 0 0 0 0 0 -193
Universities,
and
Professional
Schools.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total:
General Industry Subtotal. -9,404 0 0 12,913 0 0 0 35,023 415 323,664 0 362,610
Construction Subtotal..... 0 0 0 0 0 0 0 0 0 0 0 0
Maritime Subtotal......... 0 0 0 0 0 0 0 0 0 0 0 0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries. -9,404 0 0 12,913 0 0 0 35,023 415 323,664 0 362,610
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3--Annualized Net Cost Savings of Program Requirements for Industries Affected by the Proposed Beryllium Standard by Sector and Six-Digit NAICS Industry
[In 2017 dollars using a 7 percent discount rate]
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Written Protective
Rule Exposure Regulated Beryllium Medical Medical exposure work Hygiene Total
Application group/NAICS Industry familiarization assessment areas work areas surveillance removal control clothing & areas and Housekeeping Training program
provision plan equipment practices costs
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Aluminum Production
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
331313................................ Alumina Refining and Primary -$291 $0 $0 $3,205 $0 $0 $0 $35,023 $415 $330,324 $0 $368,675
Aluminum Production.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Coal Fired Utilities
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
221112................................ Fossil Fuel Electric Power -7,541 0 0 9,822 0 0 0 0 0 0 0 2,281
Generation.
311221................................ Wet Corn Milling.................. -342 0 0 315 0 0 0 0 0 0 0 -27
311313................................ Beet Sugar Manufacturing.......... -428 0 0 368 0 0 0 0 0 0 0 -60
311942................................ Spice and Extract Manufacturing... -50 0 0 53 0 0 0 0 0 0 0 3
312120................................ Breweries......................... -66 0 0 53 0 0 0 0 0 0 0 -13
321219................................ Reconstituted Wood Product -24 0 0 26 0 0 0 0 0 0 0 3
Manufacturing.
322110................................ Pulp Mills........................ -39 0 0 26 0 0 0 0 0 0 0 -12
322121................................ Paper (except Newsprint) Mills.... -531 0 0 289 0 0 0 0 0 0 0 -242
322122................................ Newsprint Mills................... -856 0 0 631 0 0 0 0 0 0 0 -225
322130................................ Paperboard Mills.................. -543 0 0 421 0 0 0 0 0 0 0 -123
325211................................ Plastics Material and Resin -103 0 0 105 0 0 0 0 0 0 0 2
Manufacturing.
325611................................ Soap and Other Detergent -28 0 0 26 0 0 0 0 0 0 0 -2
Manufacturing.
327310................................ Cement Manufacturing.............. -48 0 0 53 0 0 0 0 0 0 0 5
333111b............................... Farm Machinery and Equipment -29 0 0 26 0 0 0 0 0 0 0 -3
Manufacturing.
336510b............................... Railroad Rolling Stock -31 0 0 26 0 0 0 0 0 0 0 -5
Manufacturing.
611310................................ Colleges, Universities, and -471 0 0 237 0 0 0 0 0 0 0 -234
Professional Schools.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total:
General Industry Subtotal......................................... -11,421 0 0 15,682 0 0 0 35,023 415 330,324 0 370,022
Construction Subtotal............................................. 0 0 0 0 0 0 0 0 0 0 0 0
Maritime Subtotal................................................. 0 0 0 0 0 0 0 0 0 0 0 0
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries............................................. -11,421 0 0 15,682 0 0 0 35,023 415 330,324 0 370,022
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
VII. OMB Review Under the Paperwork Reduction Act of 1995
This proposal contains no information collection requirements
subject to OMB approval under the Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq., and its implementing regulations at 5
CFR part 1320. The PRA defines a collection of information as the
obtaining, causing to be obtained, soliciting, or requiring the
disclosure to third parties or the public of facts or opinions by or
for an agency regardless of form or format. See 44 U.S.C. 3502(3)(A).
While not affected by this rulemaking, the Department has cleared
information collections related to occupational exposure to beryllium
standards--general industry, 29 CFR 1910.1024; construction, 29 CFR
1926.1124; and shipyards, 29 CFR 1915.1024--under control number 1218-
0267. The existing approved information collections are unchanged by
this rulemaking. The Department welcomes comments on this
determination.
VIII. Federalism
OSHA reviewed this proposal in accordance with the Executive Order
on Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which
requires that Federal agencies, to the extent possible, refrain from
limiting State policy options, consult with States prior to taking any
actions that would restrict State policy options, and take such actions
only when clear constitutional and statutory authority exists and the
problem is national in scope. E.O. 13132 provides for preemption of
State law only with the expressed consent of Congress. Any such
preemption is to be limited to the extent possible.
Under Section 18 of the OSH Act, 29 U.S.C. 651 et seq., Congress
expressly provides that States may adopt, with Federal approval, a plan
for the development and enforcement of occupational safety and health
standards; States that obtain Federal approval for such a plan are
referred to as ``State Plan States'' (29 U.S.C. 667). Occupational
safety and health standards developed by State Plan States must be at
least as effective in providing safe and healthful employment and
places of employment as the Federal standards. Subject to these
requirements, State Plan States are free to develop and enforce under
State law their own requirements for safety and health standards.
This proposal complies with E.O. 13132. In States without OSHA
approved State Plans, Congress expressly provides for OSHA standards to
preempt State occupational safety and health standards in areas
addressed by the Federal standards. In these States, this proposal
would limit State policy options in the same manner as every standard
promulgated by OSHA. In States with OSHA approved State Plans, this
rulemaking would not significantly limit State policy options.
IX. State Plan States
When Federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the 28 States and U.S. Territories
with their own OSHA approved occupational safety and health plans
(``State Plan States'') 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, must be applicable to both the private and public
(State and local government employees) sectors, and must be completed
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 Plan States are not required to amend their standards, although
the Agency may encourage them to do so. The 28 States and U.S.
Territories with OSHA approved occupational safety and health plans
are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky,
Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina,
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont,
Virginia, Washington, and Wyoming; Connecticut, Illinois, Maine, New
Jersey, New York, and the Virgin Islands have OSHA approved State Plans
that apply to State and local government employees only.
This proposal would clarify requirements and address the unintended
consequences associated with provisions intended to address the effects
of dermal contact with beryllium as applied to trace beryllium. It
would impose no new requirements. Therefore, no new State standards
would be required beyond those already required by the promulgation of
the January 2017 beryllium standard for general industry. State-Plan
States may nonetheless choose to conform to these proposed revisions.
X. Unfunded Mandates Reform Act
OSHA reviewed this proposal according to the Unfunded Mandates
Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and Executive
Order 12875 (58 FR 58093). As discussed above in Section VI (``Economic
Analysis and Regulatory Flexibility Certification'') of this preamble,
the Agency preliminarily determined that this proposal would not impose
significant additional costs on any private- or public-sector entity.
Accordingly, this proposal would not require significant additional
expenditures by either public or private employers.
As noted above under Section IX (``State-Plan States''), the
Agency's standards do not apply to State and local governments except
in States that have elected voluntarily to adopt a State Plan approved
by the Agency. Consequently, this proposal does not meet the definition
of a ``Federal intergovernmental mandate'' (see Section 421(5) of the
UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the
Agency certifies that this proposal would not mandate that State,
local, or Tribal governments adopt new, unfunded regulatory
obligations. Further, OSHA concludes that the rule would not impose a
Federal mandate on the private sector in excess of $100 million
(adjusted annually for inflation) in expenditures in any one year.
List of Subjects in 29 CFR Part 1910
Beryllium, General industry, Health, Occupational safety and
health.
Signed at Washington, DC, on April 27, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
Proposed Amendments to Standards
For the reasons stated in the preamble, OSHA proposes to amend 29
CFR part 1910 as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Subpart Z--Toxic and Hazardous Substances
0
1. The authority section for subpart Z of part 1910 continues to read
as follows:
Authority: 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.
Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat.
1901.
Section 1910.1201 also issued under 49 U.S.C. 5101 et seq.
0
2. Amend Sec. 1910.1024 as follows:
0
a. Revise the definition of ``Beryllium work area'' in paragraph (b);
0
b. Add definitions for ``Contaminated with beryllium and beryllium-
contaminated'' and ``Dermal contact with beryllium'' in alphabetical
order in paragraph (b);
0
c. Revise the definition of ``Emergency'' in paragraph (b);
0
d. Revise paragraph (f)(2);
0
e. Revise paragraph (h)(3)(ii);
0
f. Revise paragraphs (i)(3)(i)(B), (i)(3)(ii)(B), (i)(4)(i) and (ii);
and
0
g. Revise paragraphs (j)(1)(i), (j)(2)(i) and (ii), and (j)(3).
The revisions and additions read as follows:
Sec. 1910.1024 Beryllium.
* * * * *
(b) * * *
Beryllium work area means any work area:
(i) Containing a process or operation that can release beryllium
and that involves material that contains at least 0.1 percent beryllium
by weight; and
(ii) Where employees are, or can reasonably be expected to be,
exposed to airborne beryllium at any level or where there is the
potential for dermal contact with beryllium.
* * * * *
Contaminated with beryllium and beryllium-contaminated mean
contaminated with dust, fumes, mists, or solutions containing beryllium
in concentrations greater than or equal to 0.1 percent by weight.
Dermal contact with beryllium means skin exposure to:
(i) Soluble beryllium compounds containing beryllium in
concentrations greater than or equal to 0.1 percent by weight;
(ii) Solutions containing beryllium in concentrations greater than
or equal to 0.1 percent by weight; or
(iii) Dust, fumes, or mists containing beryllium in concentrations
greater than or equal to 0.1 percent by weight.
* * * * *
Emergency means any occurrence such as, but not limited to,
equipment failure, rupture of containers, or failure of control
equipment, which may or does result in an uncontrolled and unintended
release of airborne beryllium that presents a significant hazard.
* * * * *
(f) * * *
(2) Engineering and work practice controls. (i) The employer must
use engineering and work practice controls to reduce and maintain
employee airborne exposure to beryllium to or below the PEL and STEL,
unless the employer can demonstrate that such controls are not
feasible. Wherever the employer demonstrates that it is not feasible to
reduce airborne exposure to or below the PELs with engineering and work
practice controls, the employer must implement and maintain engineering
and work practice controls to reduce airborne exposure to the lowest
levels feasible and supplement these controls using respiratory
protection in accordance with paragraph (g) of this standard.
(ii) For each operation in a beryllium work area that releases
airborne beryllium, the employer must ensure that at least one of the
following is in place to reduce airborne exposure:
(A) Material and/or process substitution;
(B) Isolation, such as ventilated partial or full enclosures;
(C) Local exhaust ventilation, such as at the points of operation,
material handling, and transfer; or
(D) Process control, such as wet methods and automation.
(iii) An employer is exempt from using the controls listed in
paragraph (f)(2)(ii) of this standard to the extent that:
(A) The employer can establish that such controls are not feasible;
or
(B) The employer can demonstrate that airborne exposure is below
the action level, using no fewer than two representative personal
breathing zone samples taken at least 7 days apart, for each affected
operation.
* * * * *
(h) * * *
(3) * * *
(ii) The employer must ensure that beryllium is not removed from
beryllium-contaminated personal protective clothing and equipment by
blowing, shaking, or any other means that disperses beryllium into the
air.
* * * * *
(i) * * *
(3) * * *
(i) * * *
(B) Employee's hair or body parts other than hands, face, and neck
can reasonably be expected to become contaminated with beryllium.
(ii) * * *
(B) The employee's hair or body parts other than hands, face, and
neck could reasonably have become contaminated with beryllium.
(4) * * *
(i) Beryllium-contaminated surfaces in eating and drinking areas
are as free as practicable of beryllium;
(ii) No employees enter any eating or drinking area with beryllium-
contaminated 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; and
* * * * *
(j) * * *
(1) * * *
(i) The employer must maintain all surfaces in beryllium work areas
and regulated areas as free as practicable of beryllium and in
accordance with the written exposure control plan required under
paragraph (f)(1) and the cleaning methods required under paragraph
(j)(2) of this standard; and
* * * * *
(2) * * *
(i) The employer must ensure that surfaces in beryllium work areas
and regulated areas are cleaned by HEPA-filtered vacuuming or other
methods that minimize the likelihood and level of airborne exposure.
(ii) The employer must not allow dry sweeping or brushing for
cleaning surfaces in beryllium work areas or regulated areas unless
HEPA-filtered vacuuming or other methods that minimize the likelihood
and level of airborne exposure are not safe or effective.
* * * * *
(3) Disposal and recycling. For materials that contain beryllium in
concentrations of 0.1 percent by weight or more or are contaminated
with beryllium, the employer must ensure that:
(i) Materials designated for disposal are disposed of in sealed,
impermeable enclosures, such as bags or containers, that are labeled in
accordance with paragraph (m)(3) of this standard; and
(ii) Materials designated for recycling are cleaned to be as free
as practicable of surface beryllium contamination and labeled in
accordance with paragraph (m)(3) of this standard, or place in sealed,
impermeable enclosures, such as bags or containers, that are labeled in
accordance with paragraph (m)(3) of this standard.
* * * * *
[FR Doc. 2018-09307 Filed 5-4-18; 8:45 am]
BILLING CODE 4510-26-P
