[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Rules and Regulations]
[Pages 19936-19949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09306]
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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: Direct final rule; request for comment.
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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 Direct Final Rule (DFR), OSHA is adopting a number
of clarifying amendments to address the application of the standard to
materials containing trace amounts of beryllium. OSHA believes this
rule will maintain safety and health protections for workers while
reducing the burden to employers of complying with the current rule.
DATES: This DFR will become effective on July 6, 2018 unless
significant adverse comment is submitted (transmitted, postmarked, or
delivered) by June 6, 2018. If DOL receives significant adverse
comment, the Agency will publish a timely withdrawal in the Federal
Register informing the public that this DFR will not take effect (see
Section III, ``Direct Final Rulemaking,'' for more details on this
process). Comments to this DFR, 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 ``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: Direct Final Rule), 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 direct final 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 Changes
V. Legal Considerations
VI. Final 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 [micro]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 [micro]g/m\3\
over a 15-minute sampling period and an action level of 0.1 [micro]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 DFR amends 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 clarifies 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 direct final rule is expected to be an Executive Order (E.O.)
13771 deregulatory action. Details on OSHA's cost/cost savings
estimates for this direct final rule can be found in the rule's
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 direct final 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 direct final 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.
II. Consideration of Comments
OSHA will consider comments on all issues related to this action
including economic or other regulatory impacts of this action on the
regulated community. If OSHA receives no significant adverse comment,
OSHA will publish a Federal Register document confirming the effective
date of this DFR and withdrawing the companion Notice of Proposed
Rulemaking (NPRM). Such confirmation may include minor stylistic or
technical changes to the document. For the purpose of judicial review,
OSHA views the date of confirmation of the effective date of this DFR
as the date of promulgation.
III. Direct Final Rulemaking
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 this 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.
In addition to publishing this DFR, OSHA is publishing a companion
NPRM in the Federal Register. The comment period for the NPRM runs
concurrently with that of the DFR. OSHA will treat comments received on
the companion NPRM as comments also regarding the DFR. Similarly, OSHA
will consider significant adverse comment submitted to the DFR as
comment to the companion NPRM. Therefore, if OSHA receives a
significant adverse comment on either this DFR or the NPRM, it will
withdraw this DFR and proceed with the companion 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 amendment to the standard is clarifying
in nature and does not adversely impact the safety or health of
employees. The amended standard will 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 will also 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 do 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 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 DFR amends 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 DFR does 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 DFR adjusts 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 clarifications are 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 DFR makes changes to certain
housekeeping provisions to ensure they apply in all regulated areas.
Finally, this DFR 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 DFR amends 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 clarifies 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 change to the beryllium work area definition
clarifies 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)).
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\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).
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This DFR 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 DFR'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 DFR accordingly amends 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, states 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, states 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,
states 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 DFR also makes 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 this DFR's revisions, not all regulated
areas will be beryllium work areas, this DFR rearranges 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 DFR defines ``beryllium-
contaminated or contaminated with beryllium'' and adds those terms to
certain provisions in the standard. The DFR defines 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.'' The
DFR adds the terms to certain provisions in the standard's requirements
for hygiene areas and disposal and recycling.
The use of this definition accordingly clarifies 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 DFR 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 applies only where the
contaminating material contains at least 0.1% beryllium by weight. The
amended paragraph (h)(3)(ii) reads 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, the DFR's inclusion of the term ``contaminated with
beryllium'' in paragraphs (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, do not apply where the contaminating
material contains less than 0.1% beryllium by weight.
The DFR's adoption of the definition of ``beryllium-contaminated''
further clarifies 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 clarifies 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 DFR also adds 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 DFR, states 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 DFR, requires 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 DFR also adds a definition for dermal contact with beryllium. This
new definition provides, ``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 definition clarifies 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 also clarifies 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 DFR also clarifies 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 DFR amends 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 clarifies 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 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 DFR clarifies 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 DFR
accordingly limits 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 continues 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 DFR. As
discussed above, this DFR will 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 being made to the
standard. See, e.g., Public Citizen Health Research Group v. Tyson, 796
F.2d 1479, 1502 n.16 (D.C. 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 (D.C. 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 determined
that this DFR is also economically and technologically feasible,
because it does not impose any new requirements or costs.
VI. Final 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 DFR 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 DFR would exceed $100 million in any given year. This
DFR 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 DFR would yield annualized cost
savings of $0.36 million per year for 10 years. At a discount rate of 7
percent, this DFR 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 DFR 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
DFR--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 FEA 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 DFR 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 DFR
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 estimates a net cost savings from this DFR 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 DFR 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 FEA 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 FEA reflect savings only
for provisions covered by the changes in this DFR 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 DFR makes no changes of
substance to those provisions.
a. Beryllium work areas. OSHA is limiting 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 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 DFR 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 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 DFR 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
DFR clarifies 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 will 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 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 DFR's adoption of a definition
for ``contaminated with beryllium'' also reduces 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 revising (B) to incorporate the newly
defined term ``contaminated with beryllium,'' the condition in
paragraph (B) will 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
does 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 DFR for
coal-fired utilities as a result of the modification of the
housekeeping requirements. In the FEA in support of the 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
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 DFR for coal-
fired utilities as a result of the modification of the housekeeping
requirements.
The rule clarification also means that employers in primary
aluminum production facilities will 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 FEA, OSHA removed
housekeeping costs for all employees exposed below the PEL in its
exposure profile. This 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 will 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 determined that establishments will
need to spend time familiarizing themselves with this DFR. As the
affected provisions in this DFR 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 DFR. 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 DFR primarily
serves to clarify OSHA's intent with respect to certain terms and
requirements in OSHA's 2017 beryllium general industry standard. These
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 are
unchanged by this DFR. Similarly, the revised definition of
``emergency'' in this DFR would not affect the costs estimated for the
other provisions in the standard.
---------------------------------------------------------------------------
\8\ While the 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 DFR does not
impose any new requirements and has the net impact of removing a small
amount of cost, so OSHA has determined that this final rule is also
economically and technologically feasible.
5. Effects on Benefits
This DFR clarifies 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 DFR
makes 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 DFR, which are focused on dermal
contact, do not have any impact on OSHA's previous benefit estimates.
6. Regulatory Flexibility Act Certification
This DFR will 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 certifies that this direct final rule
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 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 DFR 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 Final 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 Final 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 -9,404......... 0 0 12,913 0 0 0 35,023 415 323,664 0 362,610
Industry
Subtotal.
Construction 0.............. 0 0 0 0 0 0 0 0 0 0 0
Subtotal.
Maritime 0.............. 0 0 0 0 0 0 0 0 0 0 0
Subtotal.
Total, All -9,404......... 0 0 12,913 0 0 0 35,023 415 323,664 0 362,610
Industries.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3--Annualized Net Cost Savings of Program Requirements for Industries Affected by the Final Beryllium Standard by Sector and Six-Digit NAICS Industry
[In 2017 dollars using a 7 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 -$291 $0 $0 $3,205 $0 $0 $0 $35,023 $415 $330,324 $0 $368,675
Refining and
Primary
Aluminum
Production.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Coal Fired Utilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
221112........... Fossil Fuel -7,541 0 0 9,822 0 0 0 0 0 0 0 2,281
Electric Power
Generation.
311221........... Wet Corn -342 0 0 315 0 0 0 0 0 0 0 -27
Milling.
311313........... Beet Sugar -428 0 0 368 0 0 0 0 0 0 0 -60
Manufacturing.
311942........... Spice and -50 0 0 53 0 0 0 0 0 0 0 3
Extract
Manufacturing.
312120........... Breweries...... -66 0 0 53 0 0 0 0 0 0 0 -13
321219........... Reconstituted -24 0 0 26 0 0 0 0 0 0 0 3
Wood Product
Manufacturing.
322110........... Pulp Mills..... -39 0 0 26 0 0 0 0 0 0 0 -12
322121........... Paper (except -531 0 0 289 0 0 0 0 0 0 0 -242
Newsprint)
Mills.
322122........... Newsprint Mills -856 0 0 631 0 0 0 0 0 0 0 -225
322130........... Paperboard -543 0 0 421 0 0 0 0 0 0 0 -123
Mills.
325211........... Plastics -103 0 0 105 0 0 0 0 0 0 0 2
Material and
Resin
Manufacturing.
325611........... Soap and Other -28 0 0 26 0 0 0 0 0 0 0 -2
Detergent
Manufacturing.
327310........... Cement -48 0 0 53 0 0 0 0 0 0 0 5
Manufacturing.
333111b.......... Farm Machinery -29 0 0 26 0 0 0 0 0 0 0 -3
and Equipment
Manufacturing.
336510b.......... Railroad -31 0 0 26 0 0 0 0 0 0 0 -5
Rolling Stock
Manufacturing.
611310........... Colleges, -471 0 0 237 0 0 0 0 0 0 0 -234
Universities,
and
Professional
Schools.
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Total:
General -11,421........ 0 0 15,682 0 0 0 35,023 415 330,324 0 370,022
Industry
Subtotal.
Construction 0.............. 0 0 0 0 0 0 0 0 0 0 0
Subtotal.
Maritime 0.............. 0 0 0 0 0 0 0 0 0 0 0
Subtotal.
Total, All -11,421........ 0 0 15,682 0 0 0 35,023 415 330,324 0 370,022
Industries.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
VII. OMB Review Under the Paperwork Reduction Act of 1995
This rule 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 DFR 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 DFR 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 DFR would limit State
policy options in the same manner as every standard promulgated by
OSHA. In States with OSHA approved State Plans, this rulemaking does
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 DFR clarifies requirements and addresses the unintended
consequences associated with provisions intended to address the effects
of dermal contact with beryllium as applied to trace beryllium. It
imposes 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 revisions.
X. Unfunded Mandates Reform Act
OSHA reviewed this DFR 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 determined that this DFR does not impose significant additional
costs on any private- or public-sector entity. Accordingly, this DFR
does 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 DFR 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 DFR does 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.
Amendments to Standards
For the reasons stated in the preamble, OSHA amends 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. 2018-09306 Filed 5-4-18; 8:45 am]
BILLING CODE 4510-26-P
