[Federal Register Volume 84, Number 189 (Monday, September 30, 2019)]
[Rules and Regulations]
[Pages 51377-51400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21037]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1915 and 1926
[Docket No. OSHA-H005C-2006-0870]
RIN 1218-AD21
Occupational Exposure to Beryllium and Beryllium Compounds in
Construction and Shipyard Sectors
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is finalizing the proposed rule on occupational exposure
to beryllium and beryllium compounds in construction and shipyards by
delaying the compliance deadlines for nearly all provisions of the
standards to September 30, 2020. The one exception to the September 30,
2020 compliance deadline is for the permissible exposure limit (PEL)
and the short-term exposure limit (STEL), which OSHA has been enforcing
since May 11, 2018. This rule confirms that the exposure limits remain
in effect. OSHA is not adopting the portion of the proposed rule that
would have revised OSHA's existing beryllium standards for construction
and shipyards to revoke the ancillary provisions. OSHA finds that other
OSHA standards do not duplicate the requirements of the ancillary
provisions in the beryllium standards for construction and shipyards in
their entirety. Thus revoking all of the ancillary provisions and
leaving only the PEL and STEL would be inconsistent with OSHA's
statutory mandate to protect workers from the demonstrated significant
risks of material impairment of health resulting from exposure to
beryllium and beryllium compounds. OSHA will publish a new proposal for
the construction and shipyards beryllium standards, to seek comment on
different changes OSHA is considering.
DATES: This rule is effective September 30, 2019.
ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates Edmund C.
Baird, Associate Solicitor of Labor for Occupational Safety and Health,
to receive petitions for review of the final rule. Contact the
Associate Solicitor at the Office of the Solicitor, Room S-4004, U.S.
Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210;
telephone: (202) 693-5445.
Copies of this Federal Register document and news releases:
Electronic copies of these documents are available at OSHA's web page
at https://www.osha.gov.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Mr. Frank Meilinger, OSHA Office of
Communications; telephone: (202) 693-1999; email:
meilinger.francis2@dol.gov.
General information and technical inquiries: Mr. William Perry or
Ms. Maureen Ruskin, Directorate of Standards and Guidance, Occupational
Safety and Health Administration; telephone: (202) 693-1950; email:
perry.bill@dol.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Pertinent Legal Authority
III. Events Leading to the Final Rule
IV. Final Economic Analysis
V. OMB Review Under the Paperwork Reduction Act of 1995
VI. Federalism
VII. State Plan States
VIII. Unfunded Mandates Reform Act
IX. Environmental Impacts
X. Consultation and Coordination With Indian Tribal Governments
XI. Health and Risk
XII. Summary and Explanation of the Final Rule
Authority and Signature
Amendments to Standards
Citation Method
In the docket for the beryllium rulemaking, found at http://www.regulations.gov, every submission
was assigned a document identification (ID) number that consists of the
docket number (OSHA-H005C-2006-0870) followed by an additional four-
digit number. For example, the document ID number for OSHA's
Preliminary Economic Analysis and Initial Regulatory Flexibility
Analysis is OSHA-H005C-2006-0870-0426. Some document ID numbers include
one or more attachments (see, e.g., Document ID OSHA-H005C-2006-0870-
2142).
When citing exhibits in the docket, OSHA includes the term
``Document ID'' followed by the last four digits of the document ID
number, the attachment number or other attachment identifier, if
necessary for clarity, and page numbers (designated ``p.'' or ``Tr.''
for pages from a hearing transcript). In a citation that contains two
or more document ID numbers, the document ID numbers are separated by
semicolons.
I. Executive Summary
On June 27, 2017, OSHA published a proposed rule on Occupational
Exposure to Beryllium and Beryllium Compounds in Construction and
Shipyards (82 FR 29182). In it, OSHA proposed revoking the ancillary
provisions in the beryllium standards for construction (29 CFR
1926.1124) and shipyards (29 CFR 1915.1024), while retaining the PEL of
0.2 ug/m\3\ and the STEL of 2.0 ug/m\3\. The basis for the proposal was
that other OSHA standards apply to the primary operations in which
exposures to beryllium occur in construction (abrasive blasting) and
shipyards (abrasive blasting and welding), and that those other
standards might adequately protect workers from exposure to beryllium
in those operations. OSHA asked for comment on whether such an approach
would provide adequate protection, and whether OSHA should retain any
or all of the ancillary provisions (82 FR at 29183). OSHA also
requested comment on whether OSHA should retain the medical
surveillance provisions in particular (82 FR at 29183). Finally, OSHA
stated that it was considering extending the compliance dates for the
construction and shipyards standards for a year in order to ``give
affected employers additional time to come into compliance with its
requirements, which could be warranted by the uncertainty created by
this proposal'' (82 FR at 29183).
OSHA has decided not to proceed with the proposed revocation of the
construction and shipyards standards' ancillary provisions. As
discussed herein, the agency has determined that there is not complete
overlap in protections between the standards' ancillary provisions and
other OSHA standards. Therefore, because of its statutory
responsibility to protect workers who face significant risk of material
impairment of health from beryllium exposure, the agency cannot issue a
final rule revoking all of the ancillary provisions in the standards.
To the extent there is overlap between specific requirements within the
ancillary provisions and other OSHA standards, OSHA will account for
that overlap in the new proposal. In that rulemaking, OSHA will provide
the public with notice of the more limited changes the agency believes
may be appropriate, either because there is some measure of overlap
with other OSHA standards or for separate reasons, such as to make the
standards more consistent with the changes OSHA has made, or proposed
to make, to the general industry standard for beryllium (see 83 FR
31045; 83 FR 63746) in the period since OSHA issued the construction
and shipyards proposal in June 2017.
After careful consideration of the comments and information
received in response to the proposal, OSHA is delaying the compliance
dates for all ancillary provisions of the construction and shipyards
standards for beryllium until September 30, 2020. This final rule has
no effect on compliance with the PEL and STEL requirements of the
standards, which have been enforced since May 2018. OSHA's decision to
delay compliance obligations for the ancillary provisions reflects the
agency's determination that it would be unreasonable to expect
employers to comply by the dates in the 2017 final rule given the
agency's decisions to retain all ancillary provisions in this final
rule and proceed with a separate rulemaking to propose different
amendments to the standards. The uncertainty inherent in this
regulatory posture makes additional time essential. Requiring
compliance with the 2017 final rule, or even requiring employers to
expend time and money to determine how to comply with the 2017 final
rule, would make little sense when the standards may ultimately be
amended via the forthcoming rulemaking.
II. Pertinent Legal Authority
The purpose of the Occupational Safety and Health Act of 1970
(``the OSH Act'' or ``the Act''), 29 U.S.C. 651 et al., 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 occupational safety and health standards
pursuant to notice and comment (see 29 U.S.C. 655(b)).
An occupational safety or health standard is a standard ``which
requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment'' (29 U.S.C. 652(8)). The Act provides that in promulgating
health standards dealing with toxic materials or harmful physical
agents, such as the January 9, 2017, final rule regulating occupational
exposure to beryllium, the Secretary must set the standard which most
adequately assures, to the extent feasible, on the basis of the best
available evidence that no employee will suffer material impairment of
health or functional capacity even if such employee has regular
exposure to the hazard dealt with by such standard for the period of
his working life (29 U.S.C. 655(b)(5)).
The Supreme Court has held that before the Secretary can promulgate
any permanent health or safety standard, he must make a threshold
finding that significant risk is present and that such risk can be
eliminated or lessened by a change in practices (see Industrial Union
Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42 (1980)
(plurality opinion) (``Benzene'')). Thus, section 6(b)(5) of the Act
requires health standards to reduce significant risk to the extent
feasible (see id.).
The Court further observed that what constitutes ``significant
risk'' is ``not a mathematical straitjacket'' and must be ``based
largely on policy considerations'' (Id. at 655, 655 n.62). OSHA
retains:
great discretion . . . under Section 3(8) [of the Act], especially
in an area where scientific certainty is impossible. In the first
instance, it is the agency itself that determines the existence of a
``significant'' risk. . . . In making the difficult judgment as to
what level of harm is unacceptable, the agency may rely on its own
sound ``considerations of policy'' as well as hard factual data. . .
.
(United Steelworkers v. Marshall, 647 F.2d 1189, 1248 (D.C. Cir. 1980)
(``Lead I'') (internal citations omitted)). When evaluating such
considerations, OSHA exercises its discretion and its ``delegated power
to make within certain limits decisions that Congress normally makes
itself'' (Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 475
(D.C. Cir. 1974)). Accordingly, OSHA's discretionary authority under
the Act is broad (see Lead I, 647 F.2d at 1230). Indeed, a number of
terms of the statute give
OSHA wide discretion to devise means to achieve the congressionally
mandated goal of ensuring worker safety and health (Id.). Once OSHA
makes its significant risk finding, the standard must be ``reasonably
necessary or appropriate'' to reduce or eliminate that risk within the
meaning of section 3(8) of the Act, 29 U.S.C. 652(8), and Benzene, 448
U.S. at 642 (see Bldg. and Constr. Trades Dep't v. Brock, 838 F.2d
1258, 1269 (D.C. Cir. 1988) (``Asbestos II'')). In choosing among
regulatory alternatives, however, ``[t]he determination that [one
standard] is appropriate, as opposed to a marginally [more or less
protective] standard, is a technical decision entrusted to the
expertise of the agency'' (Nat'l Mining Ass'n v. Mine Safety and Health
Admin., 116 F.3d 520, 528 (D.C. Cir. 1997) (analyzing a Mine Safety and
Health Administration standard under the Benzene significant risk
standard)). Where there is significant risk below the PEL, OSHA should
use its regulatory authority to impose additional requirements on
employers when those requirements will result in a greater than de
minimis incremental benefit to workers' health (see Asbestos II, 838
F.2d at 1274).
The Act also authorizes the Secretary to modify any occupational
safety or health standard. 29 U.S.C. 655(b). The Supreme Court has
acknowledged that regulatory agencies do not establish rules of conduct
to last forever, and agencies may revise their rules if supported by a
reasoned analysis for the change (see Motor Vehicle Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). While ``it may
be easier for an agency to justify a deregulatory action, the direction
in which an agency chooses to move does not alter the standard of
judicial review established by law'' (Id. at 43).
OSHA is required to set standards ``on the basis of the best
available evidence,'' 29 U.S.C. 655(b)(5), and its determinations are
``conclusive'' if supported by ``substantial evidence in the record
considered as a whole,'' 29 U.S.C. 655(f). As noted above, the Supreme
Court, in Benzene, explained that OSHA must look to ``a body of
reputable scientific thought'' in making its determinations, while
noting that a reviewing court must ``give OSHA some leeway where its
findings must be made on the frontiers of scientific knowledge'' (448
U.S. at 656). When there is disputed scientific evidence in the record,
OSHA must review the evidence on both sides and ``reasonably resolve''
the dispute (Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479,
1500 (D.C. Cir. 1986)). As the D.C. Circuit has noted, where ``OSHA has
the expertise we lack and it has exercised that expertise by carefully
reviewing the scientific data,'' a dispute within the scientific
community is not occasion for the reviewing court to take sides about
which view is correct (Id.).
OSHA standards must be both technologically and economically
feasible (see Lead I, 647 F.2d at 1264). 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'')). The 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, the courts have held that ``a
standard is feasible if it does not threaten massive dislocation to or
imperil the existence of the industry'' (Id. at 1265 (internal
quotation marks and citations omitted)). A court must examine the cost
of compliance with an OSHA standard:
in relation to the financial health and profitability of the
industry and the likely effect of such costs on unit consumer prices
. . . . [T]he practical question is whether the standard threatens
the competitive stability of an industry, . . . or whether any
intra-industry or inter-industry discrimination in the standard
might wreck such stability or lead to undue concentration.
(Id. (internal citations omitted)). The courts have further observed
that granting companies reasonable time to comply with new PELs may
enhance economic feasibility (see Id.).
Because section 6(b)(5) of the Act explicitly imposes the ``to the
extent feasible'' limitation on the setting of health standards, OSHA
is not permitted to use cost-benefit analysis to make its standards-
setting decisions (29 U.S.C. 655(b)(5)). An OSHA standard must be cost
effective, which means that the protective measures it requires are the
least costly of the available alternatives that achieve the same level
of protection, but OSHA cannot choose an alternative that provides a
lower level of protection because it is less costly (see Int'l Union,
UAW v. OSHA, 37 F.3d 655, 668 (D.C. Cir. 1994); see also Cotton Dust,
452 U.S. at 514 n.32).
III. Events Leading to the Final Rule
On January 9, 2017, OSHA published its final rule Occupational
Exposure to Beryllium and Beryllium Compounds in the Federal Register
(82 FR 2470-2757). OSHA issued three separate standards for general
industry (29 CFR 1910.1024), construction (29 CFR 1926.1124), and
shipyards (29 CFR 1915.1024). Each standard contained a new, lower PEL
of 0.2 [mu]g/m\3\ and a STEL of 2.0 [mu]g/m\3\, along with ancillary
provisions to augment the protection provided by the new exposure
limits. The ancillary provisions included requirements for exposure
assessment, methods for controlling exposure, respiratory protection,
personal protective clothing and equipment (PPE), housekeeping, medical
surveillance, hazard communication, and recordkeeping.
On June 27, 2017, OSHA published an NPRM proposing to revoke the
ancillary provisions for both the construction and shipyards standards
while retaining the new lower PEL of 0.2 [micro]g/m\3\ and STEL of 2.0
[mu]g/m\3\ for those sectors (82 FR 29182).\1\ OSHA stated in the
proposal that it was also considering extending the compliance dates in
the January 9, 2017, final rule by a year for the construction and
shipyard standards. OSHA reasoned that this potential extension would
give affected employers additional time to come into compliance with
the final rule's requirements, which could be warranted by the
uncertainty created by the proposal. OSHA also stated in the proposal
that it would not enforce the construction and shipyards standards
without further notice while the rulemaking was underway.\2\ OSHA gave
the public 60 days to comment on the proposal, and received about 70
unique comments, which OSHA carefully reviewed in developing this final
rule.
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\1\ For a more comprehensive discussion of the events leading to
the proposed rule, see the preamble to the 2017 NPRM (82 FR at
29185-88).
\2\ Subsequently, in March 2018, OSHA stated that it would begin
enforcing the PEL and STEL on May 11, 2018 (see Memorandum for
Regional Administrators, Delay of Enforcement of the Beryllium
Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR
1926.1124, Mar. 2, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02).
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On May 7, 2018, OSHA issued a direct final rule (DFR) adopting a
number of clarifying amendments to the general industry standard to
address the application of that standard to materials containing trace
amounts of beryllium (83 FR 19936). The DFR amended the text of the
general industry standard to clarify OSHA's intent with respect to
certain terms in the standard, including the definition of beryllium
work area, the definition of emergency, and the meaning of the terms
dermal contact and beryllium contamination. The DFR also clarified
OSHA's intent with respect to provisions for disposal and recycling and
with respect to provisions
that the agency intended to apply only where skin can be exposed to
materials containing at least 0.1% beryllium by weight. The DFR became
effective on July 6, 2018, because OSHA did not receive significant
adverse comment in response to the DFR (see 83 FR 31045).
On June 1, 2018, OSHA published a proposal to extend the compliance
date for certain ancillary requirements of the general industry
beryllium standard, from March 12, 2018, to December 12, 2018 (83 FR
25536). OSHA proposed to delay the compliance dates for the following
provisions in the general industry standard: Beryllium work areas and
regulated areas (paragraph (e)), written exposure control plans
(paragraph (f)(1)), personal protective clothing and equipment
(paragraph (h)), hygiene areas and practices (paragraph (i) except for
change rooms and showers), housekeeping (paragraph (j)), communication
of hazards (paragraph (m)), and recordkeeping (paragraph (n)). OSHA
reasoned that: (1) It planned to propose modifications to ancillary
provisions of the beryllium general industry standard in response to
stakeholder questions and concerns; (2) it would be undesirable for
both the agency and the regulated community to begin enforcement of the
ancillary provisions of the standard that would be affected by the
upcoming rulemaking; (3) enforcing compliance with the relevant
ancillary requirements, as currently written, before publishing the
agreed-upon proposal, would likely result in employers taking
unnecessary measures to comply with provisions that OSHA intended to
clarify; and (4) the proposed compliance date extension would give OSHA
time to prepare and publish the planned substantive general industry
NPRM to amend the standard before employers were required to comply
with the affected provisions of the rule. OSHA adopted the extension of
the compliance dates, as proposed, on August 9, 2018 (83 FR 39351).
On December 11, 2018, OSHA published a substantive NPRM to modify
several of the general industry beryllium standard's definitions, along
with the provisions for methods of compliance, personal protective
clothing and equipment, hygiene areas and practices, housekeeping,
medical surveillance, communication of hazards, and recordkeeping (83
FR 63746). OSHA reasoned in part that the proposed modifications would
provide clarification and simplify or improve compliance.
IV. Final Economic Analysis
A. Summary of Economic Impact
OMB has determined that this final rule is not economically
significant. The rule revises 29 CFR 1915.1024(o)(2) and 29 CFR
1926.1124(o)(2) to extend the deadline for compliance with certain
provisions of the construction and shipyards beryllium standards until
September 30, 2020. OSHA's final economic analysis shows that this
compliance date extension will result in a net cost savings for the
affected industries. At a 3 percent discount rate over 10 years, the
extension will result in net annual cost savings of $0.36 million per
year; at a discount rate of 7 percent over 10 years, the net annual
cost savings is $0.85 million per year. When the Department uses a
perpetual time horizon, the annualized cost savings of the final rule
is $0.42 million with a 7 percent discount rate. The rule is an
Executive Order (E.O.) 13771 deregulatory action.
B. Final Economic Analysis and Regulatory Flexibility Certification
Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C.
1532(a)) require that OSHA estimate the benefits, costs, and net
benefits of regulations, and analyze the effects of certain rules that
OSHA promulgates. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
This final rule is not an ``economically significant regulatory
action'' under E.O. 12866 or UMRA, or a ``major rule'' under the
Congressional Review Act (5 U.S.C. 801 et seq.). Neither the benefits
nor the costs of this final rule would exceed $100 million in any given
year. This final rule to extend the compliance dates for the ancillary
provisions in the construction and shipyards beryllium standards
results in cost savings. Cost savings arise in this context because a
delay in incurred costs for employers would allow them to invest the
funds (and earn an expected return at the going interest rate) that
would otherwise have been spent to comply with those provisions.
At a discount rate of 3 percent, this final compliance-date
extension yields annualized cost savings of $0.36 million per year for
10 years. At a discount rate of 7 percent, this final rule yields an
annualized cost savings of $0.85 million per year for 10 years. When
the Department uses a perpetual time horizon to allow for cost
comparisons under E.O. 13771 (82 FR 9339, Jan. 30, 2017), the
annualized cost savings of this final compliance date extension are
$0.42 million at a discount rate of 7 percent.
1. Changes to the Baseline: Updating to 2018 Dollars and Removing
Familiarization Costs; Discussion of Overhead Costs
Because more than two years have elapsed since promulgation of the
beryllium standards on January 9, 2017, OSHA has updated the projected
costs for construction and shipyards contained in the final economic
analysis that accompanied the rule from 2015 to 2018 dollars using the
latest Occupational Employment Statistics (OES) wage data (for 2018).
Additionally, although familiarization costs were included in the cost
estimates developed in the 2017 final economic analysis, OSHA expects
that those costs have already been incurred by affected employers,\3\
and is excluding them from its analysis of the cost savings associated
with this extension of compliance dates. Thus, baseline costs for this
final economic analysis (FEA) are the projected costs from the 2017
final economic analysis, updated to 2018 dollars, less familiarization
costs.
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\3\ In the 2017 NPRM, the agency estimated no cost savings for
familiarization with the new beryllium standards because it believed
all rule familiarization costs had already been incurred (82 FR at
29209). The agency received no comments disagreeing with this
estimate.
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OSHA notes that it did not include an overhead labor cost in the
2017 analysis and has not accounted for such costs in this FEA. There
is not one broadly accepted overhead rate, and the use of overhead to
estimate the marginal costs of labor raises a number of issues that
should be addressed before applying overhead costs to analyze the cost
implications of any specific regulation. There are several ways to look
at the cost elements that fit the definition of overhead, and there is
a range of overhead estimates currently used within the federal
government--for example, the Environmental Protection Agency has used
17 percent,\4\ and government contractors have reportedly used 50
percent for on-site (i.e. company site) overhead.\5\ 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.
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\4\ Cody Rice, U.S. Environmental Protection Agency, ``Wage
Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002 (Document ID 2025). 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.
\5\ Grant Thornton LLP, 2017 Government Contractor Survey,
https://www.grantthornton.com/-/media/content-page-files/public-sector/pdfs/surveys/2018/2017-government-contractor-survey.
According to Grant Thornton's 2017 Government Contractor Survey, on-
site rates are generally higher than off-site rates, because the on-
site overhead pool includes the facility-related expenses incurred
by the company to house the employee, while no such expenses are
incurred or allocated to the labor costs of direct charging
personnel who work at the customer site. For further examples of
overhead cost estimates, see the Employee Benefits Security
Administration's guidance at https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-july-2017.pdf.
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If OSHA had included an overhead rate when estimating the marginal
cost of labor, without further analyzing an appropriate quantitative
adjustment, and adopted for these purposes an overhead rate of 17
percent on base wages, the cost savings of this final rule would
increase to approximately $0.37 million per year, at a discount rate of
3 percent, or to approximately $0.87 million per year, at a discount
rate of 7 percent.\6\ The addition of 17 percent overhead on base wages
would therefore increase cost savings by approximately 3.5 percent
above the primary estimate at either discount rate.
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\6\ OSHA used an overhead rate of 17 percent on base wages in a
sensitivity analysis in the FEA (OSHA-2010-0034-4247, p. VII-65) in
support of the March 25, 2016, final respirable crystalline silica
standards (81 FR 16286) and in the PEA in support of the June 27,
2017, beryllium proposal for the construction and shipyard sectors
(82 FR at 29201).
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2. Changes to the Standard: Extension of the Compliance Date to
September 30, 2020
The construction and shipyards beryllium standards went into effect
on May 20, 2017, with most compliance obligations set to begin on March
12, 2018. The requirement in the shipyards standard to provide change
rooms was set to commence on March 11, 2019, and engineering controls
under paragraph (f) expected to be implemented by March 10, 2020. In
the June 2017 construction and shipyards proposal, OSHA stated that it
would ``not enforce the January 9, 2017, shipyard and construction
standards without further notice while this new rulemaking is
underway'' (82 FR at 29182, 29223). Subsequently, in March 2018, OSHA
stated that it would begin enforcing the PEL and STEL on May 11, 2018
(see Memorandum for Regional Administrators, Delay of Enforcement of
the Beryllium Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and
29 CFR 1926.1124, Mar. 2, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02). OSHA clarified in a May
9, 2018, interim enforcement memorandum that it would begin enforcing
the construction and shipyards beryllium standards' PEL and STEL on May
11, 2018, but would not enforce any other provisions of those standards
absent further notice (see Interim Enforcement Memorandum and Notice of
Delay in Enforcement for Certain Provisions of the Beryllium Standards,
May 9, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09). This final rule delays the
compliance date for most ancillary provisions by one year from the date
of publication of this rule and delays the requirement to implement
engineering controls by half a year. This delay provides time for OSHA
to issue a revised proposal and final rule modifying the ancillary
provisions of the construction and shipyard standards and will allow
employers to avoid the undue costs of complying with standards that may
change in the near future. Note that the PEL and STEL compliance dates
will not be extended as those requirements have already gone into
effect and are being enforced.
OSHA estimated the cost savings of the final rule relative to
baseline costs, where baseline costs reflect the costs of compliance
without the final rule's changes to the compliance dates. This final
rule extends the compliance dates for all provisions except the PEL and
STEL to one year after the publication date of this final rule. In the
2017 final economic analysis, the cost of compliance with the PEL and
STEL was calculated as the cost of respiratory protection for employees
exposed over the PEL and STEL because until the compliance date for the
engineering controls provision, employers were permitted to use
respirators to comply with the PEL and STEL. Hence, there are no cost
savings due to respirators. Because the exact publication date of this
final rule was uncertain at the time this FEA was being prepared but
was expected to be in September 2019, OSHA rounded the baseline and
compliance dates to March and September, rather than calendar days.
This results in the following extensions:
For engineering controls, the compliance date will be
extended by 0.5 years.
For all ancillary provisions, the compliance date will be
extended by 1 year from the date of publication of this rule.\7\
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\7\ For the purposes of this FEA, respirators are not considered
to be among the ancillary provisions because employers are permitted
to use respirators to comply with the PEL and STEL until the
engineering controls provision becomes enforceable; OSHA therefore
attributed the cost of respirators to compliance with the PEL and
STEL.
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OSHA commonly estimates annualized costs over a ten-year period and
will do so here. For the baseline, OSHA estimates 10 years of costs,
starting in March of 2020 for engineering controls and in September of
2019 for all ancillary provision costs. OSHA then calculates the
present values of these costs as of September of 2019 using the
appropriate discount rate. Similarly, to calculate the cost of the
construction and shipyard beryllium standards as modified by this date
extension final rule, OSHA estimates 10 years of costs for all
ancillary provisions starting in September of 2020 and again creates
present values as of September of 2019. The difference between the
present values across the two cases gives total cost savings of this
final rule. Annualizing the present value of cost savings over ten
years, the result is an annualized cost savings of $0.36 million per
year at a discount rate of 3 percent, or $0.85 million per year at a
discount rate of 7 percent. When the Department uses a perpetual time
horizon to allow for cost comparisons under E.O. 13771, the annualized
cost savings of this compliance date extension is $0.42 million at a
discount rate of 7 percent.
The cost savings for the baseline and compliance date extension by
provision and year are presented below in Table 1 at undiscounted, 3
percent, and 7 percent values. As shown in Table 1, and described
elsewhere in this final rule, the cost savings described in this FEA
reflect savings only for provisions covered by the compliance date
extension. The present value of costs for each provision by period and
discount rate are shown below in Table 2 and the present value of costs
for each provision by period, discount rate, and industry are shown in
Table 3.
3. Economic and Technological Feasibility
In the final economic analysis for the 2017 construction and
shipyards
beryllium standards, OSHA concluded that the standards were
technologically feasible. OSHA has determined that the standards as
modified by this final rule are also technologically feasible because
the rule does not change any of the standards' substantive requirements
and simply gives employers more time to comply with the standards'
requirements. Furthermore, OSHA previously concluded that the beryllium
standards were economically feasible. As this final rule does not
impose any new substantive requirements, and results in cost savings,
OSHA has concluded that the standards as modified by this final rule
are also economically feasible.
4. Effects on Benefits
This final rule delays the compliance date for most ancillary
provisions by one year and delays the requirement to implement
engineering controls by half a year. This delay provides time for OSHA
to issue a revised proposal modifying the ancillary provisions of the
construction and shipyard standards and allows employers to avoid the
undue costs of complying with standards that may change in the near
future.
In the 2017 construction and shipyards proposal, OSHA explained it
believed that it had underestimated baseline compliance with the
ancillary provisions in the 2017 final rule. As such, OSHA stated it
believed there would be limited to no benefits, in terms of reduced
cases of chronic beryllium disease (CBD), attributable to the ancillary
provisions, and thus limited to no foregone benefits if the ancillary
provisions were to be revoked. However, many commenters pointed out
that other existing standards did not provide protection identical to
the ancillary provisions of the beryllium standards, so baseline
compliance was not actually as high as OSHA believed in the 2017
proposal to revoke the ancillary provisions. For example, the United
Steelworkers (USW) commented that the shipyard employer at which its
members work as abrasive blasters ``does not have a system in place to
monitor for exposure to beryllium in the air or monitor the health of
their co-workers'' (Document ID 2124, p. 2). The American Federation of
Labor and Congress of Industrial Organizations (AFL-CIO) commented that
medical surveillance and hazard communication are necessary because
beryllium-related diseases are often misdiagnosed as other respiratory
diseases, and medical surveillance under the beryllium standards would
address this by specifically screening for beryllium-related disease,
while hazard communication and training under the beryllium standards
would educate workers who often do not know they are exposed on how to
handle and use beryllium more safely. (Document ID 2140, pp. 8-9). This
means that while other OSHA standards may require some medical
screening and training, there is not complete overlap--and therefore
not 100% baseline compliance--with the beryllium medical surveillance
provisions or the training requirements specific to beryllium.
In light of these and other similar comments, OSHA recognizes that,
while it is possible that baseline compliance is higher for some
provisions than was estimated in the 2017 final rule, baseline
compliance with other provisions may not be as high as it believed in
the 2017 proposal. OSHA has decided not to revoke all of the ancillary
provisions in the construction and shipyard sectors so that it may
issue a new proposal for these sectors with a revised collection of
ancillary provisions that is appropriate for those sectors. OSHA
expects this revised collection of ancillary provisions to maintain the
protections and benefits of the 2017 final rule, and will make it more
likely that the regulated community will realize the full benefits of
the rule, as estimated in the 2017 final economic analysis. OSHA
believes that any short-term loss of benefits associated with this
extension of compliance dates will be offset in the long term by the
benefits resulting from the agency's proposed rulemaking.
5. Certification of no Significant Impact on a Substantial Number of
Small Entities
This final rule will result in cost savings for affected employers,
and those savings fall below levels that would have a significant
positive economic impact on a substantial number of small entities.\8\
Therefore, OSHA certifies that this final rule does not have a
significant impact on a substantial number of small entities.
---------------------------------------------------------------------------
\8\ OSHA investigated whether the projected cost savings would
exceed its threshold of 1 percent of revenues or 5 percent of
profits for small entities and very small entities for every
industry. To determine if this was the case, OSHA returned to its
original regulatory flexibility analysis (in the 2017 FEA) for small
entities and very small entities. OSHA found that the cost savings
of this final rule are such a small percentage of revenues and
profits for every affected industry that OSHA's threshold would not
be exceeded for any industry.
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V. OMB Review Under the Paperwork Reduction Act of 1995
The current beryllium standards for occupational exposure to
beryllium--general industry (29 CFR 1910.1024), construction (29 CFR
1926.1124), and shipyard (29 CFR 1915.1024)--contain collection of
information (paperwork) requirements that have been approved by the
Office of Management and Budget (OMB) under the Paperwork Reduction Act
of 1995 (PRA), and approved under OMB Control number 1218-0267. The PRA
defines ``collection of information'' to mean ``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'' (44 U.S.C. 3502(3)(A)). Under the PRA, a
Federal agency cannot conduct or sponsor a collection of information
unless OMB approves it, and the agency displays a currently valid OMB
control number (44 U.S.C. 3507). Also, notwithstanding any other
provision of law, no employer shall be subject to penalty for failing
to comply with a collection of information if the collection of
information does not display a currently valid OMB control number (44
U.S.C. 3512).
In OSHA's June 27, 2017 proposed rule, OSHA proposed to revoke the
ancillary provisions of the beryllium standards, and their collection
of information requirements, in both the construction and shipyards
sectors, while retaining the new lower PEL of 0.2 [mu]g/m\3\ and STEL
of 2.0 [mu]g/m\3\ for those sectors (82 FR 29182). In this final rule,
OSHA has decided not to adopt the proposal to revoke the ancillary
requirements in the construction and shipyard standards. Instead, OSHA
is extending the compliance dates for the ancillary provisions of the
construction and shipyard standards. The final rule does not change the
information collections already approved by the OMB under OMB Control
Number 1218-0267.
VI. Federalism
OSHA reviewed this final rule in accordance with the Executive
Order on Federalism (E.O. 13132, 64 FR 43255 (Aug. 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 authority exists and the problem is
national in scope. E.O. 13132 provides for preemption of state law only
with the express consent of Congress. Federal agencies must limit any
such preemption to the extent possible.
Under Section 18 of the OSH Act (29 U.S.C. 651 et seq.), Congress
expressly provides that states and U.S. territories may adopt, with
Federal approval, a plan for the development and enforcement of
occupational safety and health standards. OSHA refers to such states
and territories as ``State Plan States.'' 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 (29 U.S.C. 667). Subject to these
requirements, State Plan States are free to develop and enforce under
state law their own requirements for safety and health standards.
OSHA previously concluded from its analysis that promulgation of
the beryllium standard complies with E.O. 13132 (82 FR at 2633). In
states without an OSHA-approved State Plan, this final rule limits
state policy options in the same manner as every standard promulgated
by OSHA. For State Plan States, Section 18 of the OSH Act, as noted in
the previous paragraph, permits State Plan States to develop and
enforce their own beryllium standards provided these requirements are
at least as effective in providing safe and healthful employment and
places of employment as the requirements specified in this final rule.
VII. State Plan States
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, State Plans must amend their
standards to reflect the new standard or amendment, or show OSHA why
such action is unnecessary, e.g., because an existing state standard
covering this area is ``at least as effective'' as the new Federal
standard or amendment (29 CFR
1953.5(a)). The state standard must be at least as effective as the
final Federal rule. State Plans must adopt the Federal standard or
complete their own standard within six months of the promulgation date
of the final Federal rule. When OSHA promulgates a new standard or
amendment that does not impose additional or more stringent
requirements than an existing standard, State Plans do not have to
amend their standards, although OSHA may encourage them to do so. The
21 states and 1 U.S. territory with OSHA-approved occupational safety
and health plans covering the private sector and state and local
governments are: 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.
The new amendments to OSHA's beryllium rule do not impose any new
requirements on employers. Accordingly, State Plans do not have to
amend their standards to extend the compliance dates for their
beryllium rules, but they may do so within the limits of this final
rule.
VIII. Unfunded Mandates Reform Act
When OSHA issued the 2017 final rule establishing standards for
occupational exposure to beryllium, it reviewed the rule according to
the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.)
and E.O. 13132 (64 FR 43255 (Aug. 10, 1999)). OSHA concluded that the
2017 final rule did not meet the definition of a ``Federal
intergovernmental mandate'' under the UMRA because OSHA standards do
not apply to state or local governments except in states that
voluntarily adopt State Plans. OSHA further noted that the rule did not
impose costs of over $100 million per year on the private sector (82 FR
at 2634).
As discussed above in Section IV of this preamble, OSHA has
determined that the extension of the compliance dates in this final
rule does not impose any costs on private-sector employers beyond those
costs already identified in the 2017 final rule for beryllium. Because
OSHA reviewed the total costs of the 2017 beryllium rule under UMRA, no
further review of those costs is necessary. Therefore, for purposes of
UMRA, OSHA certifies that this final rule does not mandate that state,
local, or tribal governments adopt new, unfunded regulatory obligations
of, or increase expenditures by the private sector by, more than $100
million in any year.
IX. Environmental Impacts
OSHA has reviewed this final beryllium rule according to the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq.), the regulations of the Council on Environmental Quality (40 CFR
part 1500), and the Department of Labor's NEPA procedures (29 CFR part
11). OSHA has made a determination that this final rule would have no
significant impact on air, water, or soil quality; plant or animal
life; or the use of land or aspects of the external environment.
X. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with E.O. 13175 (65 FR
67249) and determined that it does not have ``tribal implications'' as
defined in that order. This rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
XI. Health and Risk
As part of the 2017 final rule, OSHA concluded that employees
exposed to beryllium and beryllium compounds at the preceding PELs were
at significant risk of material impairment of health, specifically CBD
and lung cancer. OSHA also reviewed the exposure data for workers
exposed to beryllium in abrasive blasting in construction and shipyards
and welding in shipyards, and determined, based on the exposure levels
observed, that there is a significant risk to those workers of CBD and
lung cancer (82 FR at 29183). In the 2017 construction and shipyards
NPRM, OSHA described its previous findings and invited further comment
and data ``on the risks of sensitization, CBD, and lung cancer among
workers involved in abrasive blasting and welding operations in
shipyards and construction'' (82 FR at 29221). After reviewing the
comments and information received in response to this invitation, OSHA
reaffirms its finding that the best available evidence indicates that
there is a significant risk of material impairment of health for
workers exposed to beryllium in construction and shipyards.\9\
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\9\ Many commenters also expressed concern about the provisions
of the standards related to dermal contact with beryllium. While
OSHA does not address these comments in this final rule, the
forthcoming rulemaking will propose changes related to dermal
contact with beryllium.
---------------------------------------------------------------------------
Some commenters, including the Abrasive Blasting Manufacturers
Alliance (ABMA), the Construction Industry Safety Coalition (CISC),
Materion Brush Inc. (Materion), and the National Association of Home
Builders, argued that OSHA failed to show significant risk for lung
cancer or CBD in construction and shipyards (Document ID 2142, pp. 3,
12-14; 2125, p. 23; 2145, pp. 1, 27; 2128, pp. 3-4). For example, CISC
pointed out that OSHA's risk assessment for the 2017 final rule is
based on studies from general industry workplaces and complained of a
``lack of data suggesting any cases of CBD or other associated disease
outcomes in construction'' (Document ID 2125, pp. 12-13, 24). ABMA also
asserted, based on reasoning similar to CISC's, that there is no
evidence of health effects from beryllium exposure in construction and
shipyards (Document ID 2142, Comments, pp. 12-13). A review
commissioned and submitted by ABMA found that there are no
epidemiological studies establishing causation between beryllium
exposure as a result of abrasive blasting and CBD (Document ID 2142,
Attachment 2, p. 7). Materion noted that OSHA's risk analysis is based
on studies that do not examine the prevalence of disease specifically
among workers exposed to abrasive blast media in construction and
shipyards, while acknowledging that abrasive blasting can lead to
beryllium exposures over the new action level of 0.1 ug/m\3\ (Document
ID 2145, Comments, p. 6). All of these comments are substantively
similar to previous comments on OSHA's 2015 NPRM.
For example, ABMA previously asserted that their members are
unaware of any occurrence of beryllium sensitization, CBD, or lung
cancer due to beryllium exposure among their employees or their
customers' employees (Document ID 1673, p. 9). OSHA addressed such
comments in the preamble to the 2017 final rule, finding that ABMA had
not presented the agency with any studies or rigorous scientific
evidence to support their statements (82 FR at 2641-42). OSHA noted in
the January 9, 2017, final rule that such statements were not
compelling evidence, especially considering that no surveillance
programs were in place to detect beryllium sensitization or CBD among
workers exposed to beryllium among ABMA's members (82 FR at 2642; see
also 82 FR at 29221). ABMA's comments submitted in response to the 2017
NPRM complain that OSHA often considers anecdotal evidence from
employees and is shifting the burden to the regulated community to show
the absence of risk (Document ID 2142, Comments, p. 13). Similarly,
CISC complains that OSHA's approach did not include data examining the
prevalence of CBD or other beryllium-related disease endpoints in the
construction industry before in determining that construction and
shipyard employees also faced a significant risk of material impairment
of health (Document ID 2125, pp. 13-14).
As CISC acknowledged, however, ``OSHA does not need to perform an
industry-by-industry assessment of significant risk when promulgating
health standards'' (Document ID 2125, p. 14). OSHA's 2017 final rule
risk assessment showed that there is a significant risk of beryllium
sensitization and CBD for workers exposed to beryllium at exposure
levels of 0.1 ug/m\3\ and above. ABMA, CISC, and others attempt to
rebut this finding by claiming a lack of disease in their industries
without providing any evidence of testing for these conditions among
construction and shipyards workers.\10\ Information on testing rates in
an industry is necessary before any conclusions about disease
prevalence can be made. This is particularly so in operations like
abrasive blasting, where treating physicians may be unaware of the
potential for beryllium exposure. Medical professionals would likely
not order a Beryllium Lymphocyte Proliferation Test (BeLPT) unless they
know a worker has been exposed to beryllium, and without such a test,
CBD is often misdiagnosed. (Document ID 2091; 82 FR 2499, 2705). As the
National Employment Law Project (NELP) commented, OSHA cannot
``withhold or revoke feasible protections from comparably at-risk
workers just because their toxic exposures occur in different
industries.'' (Document ID 2106, p. 5). On this record, OSHA has no
reason to believe that airborne exposure to beryllium impacts
construction and shipyard employees differently from general industry
employees and reaffirms its previous finding: That reports from
employers in these industries who have not provided their workers with
medical surveillance specific to beryllium-related health effects do
not constitute evidence against OSHA's determination of significant
risk at exposure levels of 0.1 ug/m\3\ and above.
---------------------------------------------------------------------------
\10\ Furthermore, the literature review submitted by ABMA (SOMA)
did not identify any studies examining sensitization and CBD in
these sectors (Document ID 2142, Attachment 2, pp. 6-7).
---------------------------------------------------------------------------
Some commenters further argued that OSHA should address possible
variability in risk depending on the specific chemical compound or
physical form (e.g., particle size) of beryllium. CISC commented that
OSHA did not adequately account for ``differences in toxicity with the
variety of forms of beryllium'' (Document ID 2125, pp. 14-18). ABMA and
Materion observed that OSHA's 2017 health and risk analysis relied on
studies of exposure to beryllium alloys or processed beryllium, which
they believe to be irrelevant to the construction industry (Document ID
2142, Comments, pp. 12, 17; 2145, Comments, p. 6). Citing Deubner et
al.'s 2001 study of 75 workers exposed in a beryllium mining and
extraction facility who were primarily exposed to beryllium ore and
salts (Document ID 1543), Materion stated that ``a case of CBD has
never been identified in any patient that has been linked only to
exposures to natural beryllium containing materials associated with the
construction industry'' (Document ID 2145, Comments, p. 6).
OSHA also reviewed the Deubner et al. study that Materion cited and
discussed it in the 2017 final rule.\11\ Because there was no
sensitization or CBD detected among those whose only beryllium exposure
came from working with bertrandite ore, Deubner et al. concluded that
beryllium ore and salts may pose less of a hazard than beryllium metal
and beryllium hydroxide. OSHA noted in the 2017 final rule preamble
that these results are consistent with some of the literature on animal
studies examining solubility and particle size (82 FR at 2502).
However, the Duebner et al. study population of 75 workers is too small
to demonstrate that beryllium ore and salts pose no hazard of
sensitization and CBD. OSHA acknowledged some uncertainty regarding
possible differences in risk depending on the chemical or physical form
of beryllium (82 FR at 2545), but determined that there is insufficient
information to support a quantitative risk analysis differentiating
between chemical and physical forms of beryllium (82 FR at 2529).
Comments submitted on the 2017 construction and shipyards NPRM did not
provide any additional data or information that OSHA could use to
evaluate risk of sensitization or CBD associated with various chemical
or physical forms of beryllium. Therefore, OSHA reaffirms its
determination of significant risk of material impairments of health at
airborne beryllium exposure levels of 0.1 ug/m\3\ and above, regardless
of the chemical or physical form of the beryllium.
---------------------------------------------------------------------------
\11\ Of the 75 workers surveyed for sensitization with the
BeLPT, three were identified as sensitized by an abnormal BeLPT
result. One of those found to be sensitized was diagnosed with CBD.
A follow-up study by Stefaniak et al. (2008) found that beryllium
was present at the mill in three forms: Mineral, poorly crystalline
beryllium oxide, and beryllium hydroxide (Document ID 1543).
---------------------------------------------------------------------------
OSHA also acknowledged uncertainty in its risk estimates for lung
cancer in the 2017 final rule, stating that the lung cancer risks
should be regarded as less certain than its risk estimates for CBD and
sensitization (82 FR at 2552). OSHA continues to acknowledge that the
solubility of beryllium may affect the risk of lung cancer it poses to
exposed workers. Materion provided extensive commentary suggesting that
OSHA's 2017 determination that beryllium exposure can cause lung cancer
should not apply to beryllium in insoluble forms (Document ID 2145, pp.
12-20). Materion supplemented their comments with an analysis they
commissioned to evaluate OSHA's 2017 lung cancer risk assessment (Crump
and Proctor, Document ID 2145, Attachment 5); a publication that
updated a previous lung cancer study by Boffetta et al. (Document ID
2145, Attachment 3); and a group of animal testing results that
Materion cited as evidence that exposure to beryllium metal is unlikely
to cause cancer (Document ID 2145, Comments, pp. 18-20; Attachments 8-
18). However, the agency determined in 2017 that the epidemiological
literature on beryllium sensitization and CBD clearly shows sufficient
occurrence of sensitization and CBD to be considered significant within
the meaning of the OSH Act (82 FR at 2545). Uncertainty with respect to
the lung cancer risk attributable to beryllium exposure in construction
and shipyards does not undermine OSHA's finding of significant risk
wherever there is beryllium exposure at the action level or above,
which rests upon strong evidence that such exposure can cause CBD.
In summary, the comments submitted by ABMA, CISC, Materion, and
others regarding OSHA's 2017 risk assessment merely recapitulate
arguments that were previously presented in response to the 2015 NPRM,
and which OSHA addressed in the 2017 final rule. OSHA has reviewed the
comments, analyses, and studies submitted to the record, and finds no
information that would cause the agency to reconsider its significant
risk determination for airborne beryllium exposure at and above the
action level in construction and shipyards.
OSHA maintains its conclusion from the 2017 final rule that
employees in construction and shipyards are exposed to beryllium at
levels above the new action level and PEL, primarily from abrasive
blasting activities, and that employees exposed to those levels are at
significant risk of developing adverse health effects (82 FR at 2637).
XII. Summary and Explanation of the Final Rule
This section of the preamble explains the final changes that OSHA
is making to the beryllium standards for construction and shipyards, as
well as the agency's rationales for making the changes and for not
adopting its proposal to revoke all ancillary provisions from the
beryllium standards for construction and shipyards.
A. Introduction
The 2017 final rule promulgated three standards designed to protect
workers from the serious health effects caused by occupational exposure
to beryllium and beryllium compounds (see 82 FR 2470 (Jan. 9, 2017)).
The three standards, which cover general industry (29 CFR 1910.1024),
construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024),
contain a comprehensive set of protections against beryllium exposure,
consisting of the exposure limits in paragraph (c) and a number of
ancillary provisions, typical of OSHA health standards, in paragraphs
(d) through (n) (see 82 FR at 2476). The ancillary provisions of the
construction and shipyards standards encompass requirements for
exposure assessment, competent person (construction) or regulated areas
(shipyards), methods of compliance, respiratory protection, personal
protective clothing and equipment, hygiene, housekeeping, medical
surveillance and medical removal, communication of hazards, and
recordkeeping (29 CFR 1915.1024(d)-(n); 29 CFR 1926.1124(d)-(n)).
Since publication of the 2017 final rule, OSHA has undertaken
several additional rulemaking efforts affecting the beryllium
standards. On June 27, 2017, OSHA proposed revoking the ancillary
provisions for the construction and shipyards standards while retaining
the new, lower PEL of 0.2 [mu]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for
those sectors (82 FR 29182). Subsequently, on May 7, 2018, OSHA issued
a DFR adopting a number of clarifying amendments to address the
application of the beryllium standard for general industry to materials
containing trace amounts of beryllium (83 FR 19936). The DFR amended
the text of the general industry standard to clarify certain terms in
the standard, including the definition of beryllium work area, the
definition of emergency, and the meaning of the terms dermal contact
and beryllium contamination. The DFR also clarified provisions for
disposal and recycling and provisions that the agency intended to apply
only where skin can be exposed to materials containing at least 0.1%
beryllium by weight. OSHA did not receive significant adverse comment
in response to the DFR, and therefore the rule became effective on July
6, 2018 (see 83 FR 31045 (July 3, 2018)).
On June 1, 2018, OSHA published a proposal to extend the compliance
date for certain ancillary requirements of the general industry
beryllium standard, from March 12, 2018 to December 12, 2018 (83 FR
25536). OSHA reasoned that: (1) It planned to propose modifications to
ancillary provisions of the beryllium general industry standard in
response to stakeholder questions and concerns; (2) it would be
undesirable for both the agency and the regulated community to begin
enforcement of the ancillary provisions of the standard that would be
affected by the upcoming rulemaking; (3) enforcing compliance with the
relevant ancillary requirements, as currently written, before
publishing the agreed-upon proposal, would likely result in employers
taking unnecessary measures to comply with provisions that OSHA
intended to clarify; and (4) the proposed compliance date extension
would give OSHA time to prepare and publish the planned substantive
general industry NPRM to amend the standard before employers were
required to comply with the affected provisions of the rule. OSHA
adopted the extension of the compliance dates, as proposed, on August
9, 2018 (83 FR 39351).
Finally, on December 11, 2018, OSHA published a proposal to modify
several of the general industry beryllium standard's definitions, along
with the provisions for methods of compliance, personal protective
clothing and equipment, hygiene areas and practices, housekeeping,
medical surveillance, communication of hazards, and recordkeeping (83
FR 63746). OSHA proposed the modifications, in part, to provide
clarification and simplify or improve compliance. The agency is working
to finalize the proposal at this time.
B. OSHA's Decision Not To Revoke All Ancillary Provisions
As mentioned above, paragraphs (d) through (n) of the construction
and shipyards standards for beryllium contain the ancillary provisions,
which augment the exposure limits in paragraph (c). OSHA's 2017 NPRM
proposed revoking all ancillary provisions for the construction and
shipyards standards while retaining the new PEL of 0.2 [mu]g/m\3\ and
the STEL of 2.0 [mu]g/m\3\ for those sectors (82 FR 29182). The primary
rationale behind the proposal to revoke these provisions was that other
OSHA standards might already require equivalent protections. In the
2017 NPRM, OSHA pointed to a number of OSHA standards that already
apply to the primary operations involving beryllium exposure in
construction and shipyards, which are abrasive blasting in construction
and abrasive blasting and welding in shipyards (82 FR at 29183). These
standards included the ventilation standard (29 CFR 1926.57) and the
mechanical paint removers standard (29 CFR 1915.34), among others. OSHA
requested comment on whether standards consisting only of the new,
lower PEL and STEL would provide adequate protection to construction
and shipyards workers, considering the other standards that apply. The
agency also requested comment on whether OSHA should retain any or all
of the ancillary provisions and, more particularly, on whether OSHA
should retain the medical surveillance provisions (82 FR at 29183).
Some commenters agreed with OSHA's primary rationale for proposing
to revoke all ancillary provisions in the construction and shipyards
standards (see, e.g., Document ID 2120; 2122; 2142), while others
disagreed with that rationale (see, e.g., Document ID 2121; 2124; 2129;
2132; 2133; 2134; 2140). For example, the U.S. Small Business
Administration, Office of Advocacy (SBA) commented that ``employees
performing abrasive blasting and welding in these sectors are already
protected by OSHA standards and industry practices that provide for
ventilation, personal protective equipment, and respiratory
protection'' (Document ID 2120, p. 6). On the other hand, Public
Citizen's Health Research Group (Public Citizen) commented that ``it is
simply untrue . . . that all of the ancillary beryllium provisions
overlap with existing OSHA regulations and that workers therefore will
achieve no additional protections from the dangers of beryllium with
the implementation of the ancillary provisions of the rule'' (Document
ID 2134, p. 2).
Having carefully reviewed the comments and evidence in the record,
OSHA has determined that beryllium construction and shipyards standards
consisting only of the PEL and STEL would not be sufficiently
protective. Other OSHA standards do contain some requirements that
overlap with, or duplicate, the requirements of the beryllium standards
for construction and shipyards. However, for most ancillary provisions,
there is only partial overlap, and for the remainder, there is no
overlap at all. This conclusion refutes OSHA's primary rationale for
issuing the proposal. Thus, OSHA has determined not to adopt its
proposal to remove all ancillary provisions from the construction and
beryllium standards.
In its analysis below, OSHA discusses only whether other OSHA
standards overlap with each of the beryllium standards' ancillary
provisions, and whether OSHA should revoke those provisions on the
basis of overlap with existing standards. Other issues, such as whether
discrete requirements in the standards are necessary, will be addressed
in the forthcoming proposal. OSHA takes this approach because it
recognizes that there is not complete overlap between the standards'
ancillary provisions and other OSHA standards, and that therefore it
cannot issue a final rule revoking all the construction and shipyard
ancillary provisions on that basis.
OSHA has also decided not to revoke, in this final rule, discrete
portions of ancillary provisions that overlap with other OSHA
standards, while retaining parts of other provisions, to ensure that
stakeholders have a full opportunity to comment on this action. This is
particularly important here, where several commenters emphasized that
the ancillary provisions of the beryllium standards are interrelated
and cannot be practically and effectively implemented in isolation (see
Document ID 2129, p. 8; 3130, p. 2; 2134, p. 3; 2140, p. 4). In
addition, in the forthcoming proposal, OSHA intends to propose a number
of changes to specific ancillary provisions for issues not addressed by
the June 27, 2017 NPRM. For example, OSHA will propose changes to the
construction and shipyard beryllium standards that reflect changes OSHA
has proposed to the general industry standard (83 FR 63746). These
changes may themselves impact conclusions about the necessity of a
particular ancillary provision. OSHA therefore has decided to proceed
with a new proposal, which will ensure that the record is fully
developed.
The following discussion addresses each ancillary provision, along
with the comments in the record regarding overlap or duplication with
other OSHA requirements.\12\
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\12\ For a detailed, provision-by-provision explanation of the
beryllium standards promulgated in the 2017 final rule, including
information on compliance with the requirements of the standards,
please see Section XVI, Summary and Explanation of the Standards, in
the final rule (82 FR at 2635-2735).
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Exposure Assessment, Paragraph (d)
Paragraph (d) of the beryllium standards for construction and
shipyards (29 CFR 1926.1124(d) and 1915.1024(d)) requires employers to
assess the airborne beryllium exposure of each employee using either a
scheduled monitoring approach or a performance option. Reassessment is
required when certain changes in the workplace occur. The provision
establishes specific methods of sample analysis and requires employers
to both provide affected employees the opportunity to observe the
exposure monitoring and notify them of the assessment results. In the
preamble to the 2017 final rule, OSHA found that this approach to
exposure assessment was a ``well-recognized and accepted risk
management tool'' and was ``necessary and protective'' for beryllium-
exposed workers (82 FR at 2619, 2651).
All the commenters who specifically addressed the proposed removal
of paragraph (d) opposed it (e.g., Document ID 2109; 2118, p. 1; 2119,
p. 2; 2129, p. 5; 2130, p. 2; 2134, p. 2; 2135, pp. 3-4; 2140, p. 7).
For example, members of Congress noted that the requirement to perform
exposure assessments for beryllium is not contained in any other OSHA
standard. Absent paragraph (d), they argued, there would be no
independent obligation to monitor employees' beryllium exposure at
construction or shipyard workplaces (Document ID 2135, p. 4). Public
Citizen echoed this concern, noting that, without the beryllium
standards' ancillary provisions, employers ``would not be required, by
any regulation, to follow a prescribed schedule for measurement of
airborne beryllium [and] notify employees and maintain written records
of the results of such measurements . . .'' (Document ID 2134, p. 2).
Similarly, the Institute for Policy Integrity at NYU School of Law
stated that, given OSHA's estimate of a 0% baseline compliance rate for
the exposure assessment requirement, employers in the construction and
shipyard industries will not conduct exposure assessments for beryllium
absent paragraph (d) (Document ID 2119, p. 2). USW illustrated this
point, stating that the shipyard employer that employs its members as
abrasive blasters ``does not have a system in place to monitor for
exposure to beryllium in the air'' (Document ID 2124, p. 2).
As indicated by the comments, no other standards duplicate the
specific requirements in paragraph (d), such as the requirements to
perform assessments at specified intervals and when there are changes
in the workplace, along with the requirement for employee notification
of results. This is true despite the fact that employers must currently
perform some assessment of exposure to comply with the standards' PEL
and STEL (which, again, OSHA is currently enforcing). The conclusion
that there is no overlap with respect to paragraph (d) supports OSHA's
determination not to revoke the standard's ancillary provisions in this
final rule.
Regulated Areas (Shipyards) and Competent Person (Construction),
Paragraph (e)
Paragraph (e) of the beryllium standard for shipyards (29 CFR
1915.1024(e)) requires employers to establish, maintain, demarcate, and
limit access to ``regulated areas,'' which are demarcated areas where
airborne beryllium exposure levels are above the PEL or STEL. Employees
who enter regulated areas must use respiratory protection and PPE.
Paragraph (e) of the beryllium standard for construction (29 CFR
1926.1124(e)), on the other hand, requires employers to designate a
``competent person'' where airborne exposure to beryllium exceeds the
PEL or STEL. The competent person must make frequent and regular
inspections of job sites, materials, and equipment, and perform other
duties to ensure the proper implementation of the standard and
protection of employees. OSHA determined in the 2017 final rule that
paragraph (e) is necessary, among other reasons, to limit employee
access to areas of the workplace with high levels of beryllium exposure
and to ensure that employees who access such areas are properly
protected against beryllium exposure (82 FR at 2658-59).
In the 2017 NPRM, OSHA noted that the construction ventilation
standard, 29 CFR 1926.57(f), requires certain measures that would limit
exposure of workers (82 FR at 29221). Specifically, 29 CFR
1926.57(f)(7) requires that dust not be allowed to accumulate outside
abrasive blasting enclosures and that spills be cleaned up promptly
(Id.). Furthermore, 29 CFR 1926.57(f)(3) and (4) require ventilation
and dust collection and removal systems in abrasive blasting operations
(Id.). OSHA
stated that compliance with these measures during abrasive blasting
should reduce the amount of beryllium-containing dust to be cleaned,
thereby protecting workers who clean spent abrasive blasting media
after operations are completed (Id.). Additionally, OSHA emphasized the
requirement to train employees to recognize and avoid unsafe
conditions, 29 CFR 1926.21 (Id.), as a means of helping minimize
exposures of workers proximal to abrasive blasting operations.
For shipyards, OSHA placed emphasis on the mechanical paint
removers standard (Id. at 29222), which requires, at 29 CFR
1915.34(c)(3)(iii), that employees other than blasters wear eye and
respiratory protection when working in areas where there are unsafe
concentrations of abrasive material and dusts. In addition, OSHA noted
that OSHA's ventilation standard applies to shipyards and requires, at
29 CFR 1910.94(a)(4), that blast cleaning enclosures have sufficient
ventilation, in part, to prevent leakage of dust outside the enclosure.
Such leakage could create exposures for employees not involved in
blasting operations (Id.). OSHA also stated that abrasive blasting
sometimes occurs in confined spaces at shipyard workplaces, and noted
that OSHA's shipyard standard regulating work in confined and enclosed
spaces requires demarcation of, and limitation of employee access to,
such spaces (Id. (discussing 29 CFR 1915.12)).
OSHA requested information on the prevalence of abrasive blasting
in confined or enclosed spaces in shipyards, but did not receive
responsive comments establishing how often abrasive blasting operations
in shipyards fall within the scope of 29 CFR 1915.12. However, even if
it is assumed that most abrasive blasting operations at shipyards occur
in confined spaces, 29 CFR 1915.12 would not substitute for the
protections provided by paragraph (e). This is because paragraph (e) of
the beryllium standard applies to all affected shipyards employees, not
just those working in confined spaces. Employees protected by paragraph
(e) but not by the confined spaces standard include those engaged in
abrasive blasting in non-confined spaces and other employees who work
near blasting operations, such as clean-up helpers.
None of the comments that OSHA received provided a specific
rationale or data that would support removing paragraph (e) from either
standard, while multiple comments supported OSHA's determination in the
2017 final rule that the requirements of paragraph (e) are essential to
the effectiveness of the construction and shipyards beryllium
standards. For example, North America's Building Trades Unions (NABTU)
commented that paragraph (e) of the construction industry beryllium
standard is important because construction worksites, unlike fixed
worksites, typically do not have a safety professional on-site, and
that the designation of a competent person ensures that there is an
agent of the employer on-site who has the knowledge and authority to
recognize, evaluate, and correct beryllium hazards (Document ID 2129,
p. 6). NABTU also stated that the competent person requirement helps
ensure that the written exposure control plan is properly implemented
at construction worksites, and noted that OSHA has included a similar
competent person requirement in numerous other health standards
applicable to the construction industry (Id.). USW also submitted a
comment indicating that employers engaged in abrasive blasting
operations in the shipyards industry may not have specific controls in
place to protect helpers or other bystanders from exposure to beryllium
during the operation (Document ID 2124, pp. 9-11).
After considering these comments, OSHA finds that other standards
do not completely overlap the standards' regulated areas (shipyards)
and competent person (construction) requirements. Particularly, the
other applicable OSHA standards discussed above do not replicate the
requirements in paragraph (e) that ensure that employee access to areas
with reasonably expected airborne exposure to beryllium is limited and
appropriately managed. This conclusion supports OSHA's determination
not to revoke the standards' ancillary provisions in this final rule.
Methods of Compliance, Paragraph (f)
Paragraph (f) of the beryllium standards for construction and
shipyards requires that employers implement methods for reducing
employee exposure to beryllium through a written exposure control plan,
engineering and work practice controls, and a prohibition on rotating
employees to achieve compliance with the PEL. In the 2017 final rule,
OSHA determined that written exposure control plans are instrumental
for protection of workers because ``[r]equiring employers to articulate
where exposures occur and how those exposures will be controlled will
help to ensure that they have a complete understanding'' of how to
comply with the standards (82 FR at 2668). OSHA also concluded that
requiring primary reliance on engineering and work practice controls to
control exposures is consistent with good industrial hygiene practice
and with OSHA's traditional approach for health standards (82 FR at
2672).
In response to the NPRM, Public Citizen noted that, ``[s]hould OSHA
rescind the ancillary provisions for construction and shipyard workers,
employers in those industries would not be required, by any regulation,
to . . . maintain a written plan to control beryllium exposures [or]
institute engineering and work practice controls. . . .'' (Document ID
2134, p. 2). The AFL-CIO commented that, without paragraph (f), ``the
rule would ignore the importance of the hierarchy of controls in
addressing workplace chemical exposures'' (Document ID 2140, p. 8).
These comments and OSHA's review of the record indicate that other
OSHA standards do not provide equivalent worker protections. In the
absence of paragraph (f), employers would not be required to establish
and implement a written exposure control plan specific to beryllium,
and shipyards workers would not receive the benefits of the hierarchy
of controls, as required by paragraph (f).\13\ This conclusion supports
OSHA's determination not to revoke the standard's ancillary provisions
in this final rule.
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\13\ Note that under a PEL- and STEL-only beryllium standard,
construction employers would be required to comply with the new
beryllium exposure limits under 29 CFR 1926.55(b), which
independently requires the hierarchy of controls. The shipyards air
contaminants standard however, does not contain a comparable
requirement to implement engineering and work practice controls (see
29 CFR 1915.1000).
---------------------------------------------------------------------------
Respiratory Protection, Paragraph (g)
Paragraph (g) in the beryllium standards for both construction and
shipyards requires the provision and use of respiratory protection from
exposures to beryllium: (1) During periods necessary to install or
implement feasible engineering and work practice controls where
airborne exposure exceeds, or can reasonably be expected to exceed, the
TWA PEL or STEL (paragraph (g)(1)(i)); (2) during operations, including
maintenance and repair activities and non-routine tasks, when
engineering and work practice controls are not feasible and airborne
exposure exceeds, or can reasonably be expected to exceed, the TWA PEL
or STEL (paragraph (g)(1)(ii)); (3) during operations for which an
employer has implemented all feasible engineering and work practice
controls when such
controls are not sufficient to reduce airborne exposure to or below the
TWA PEL or STEL (paragraph (g)(1)(iii)); (4) during emergencies
(paragraph (g)(1)(iv)); and (5) when an employee who is eligible for
medical removal under the standard chooses to remain in a job with
airborne exposure at or above the action level (paragraph (g)(1)(v)).
Paragraph (g) also provides that required respiratory protection must
be selected and used in accordance with OSHA's general Respiratory
Protection standard at 29 CFR 1910.134. Finally, paragraph (g) requires
employers to provide powered air-purifying respirators (PAPR) when an
employee entitled to a respirator under the beryllium standard requests
one, as long as the PAPR provides adequate protection.
In the 2017 final rule, OSHA recognized that workers who perform
open-air abrasive blasting using mineral grit (i.e., coal slag) will
routinely be exposed to levels above the PEL of 0.2 [mu]g/m\3\ (even
after the installation of feasible engineering and work practice
controls), and therefore, these workers will also be required to wear
respiratory protection (82 FR at 2584). OSHA also found that requiring
the provision and use of respiratory protection when an employee who is
eligible for medical removal chooses to remain in a job with airborne
exposure at or above the action level ``has the potential to delay or
avoid the onset of CBD in sensitized individuals and to mitigate or
retard the effects of CBD in employees who are in the early stages of
CBD'' (82 FR at 2676). Finally, OSHA found that ``provision of PAPRs at
the employee's request will provide employees necessary protection
beyond that found in provisions of the Respiratory Protection standard,
where provision of a PAPR for reasons of fit, comfort and reliability
is at the employer's discretion'' (82 FR at 2676).
In the NPRM, OSHA relied on several of its standards requiring the
provision and use of respirators to explain its proposal to revoke the
ancillary provisions of the 2017 construction and shipyard rules (82 FR
at 29221-22). First, OSHA relied on the construction ventilation
standard, 29 CFR 1926.57, which requires workers performing abrasive
blasting to wear extensive PPE, including respirators, under certain
conditions, including where beryllium concentrations dispersed by
blasting may exceed the PEL and the operator is not already physically
separated from the nozzle and blast material (29 CFR
1926.57(f)(5)(ii)). Second, OSHA relied on the general industry
respiratory protection standard, 29 CFR 1910.134, which applies to both
construction and shipyards, because it requires employers to provide a
respirator to each employee when necessary to protect the employee's
health. Third, OSHA relied on the mechanical paint removers standard,
29 CFR 1915.34, which applies to abrasive blasting in shipyards, and
``requires respiratory protection and other appropriate personal
protective equipment in abrasive blasting operations for both abrasive
blasting operators and helpers working in the area'' (29 CFR
1915.34(c)(3)). Finally, OSHA relied on the standard covering confined
and enclosed spaces in shipyard employment, which prohibits employees
from entering a space whose atmosphere exceeds a PEL except for
emergency rescue, or for a short duration for installation of
ventilation equipment, provided that the atmosphere in the space is
monitored continuously and respiratory protection and other necessary
and appropriate PPE and clothing are provided (29 CFR 1915.12).
A number of commenters focused specifically on the degree of
overlap between the construction and shipyards standards' respiratory
protection requirements and the respiratory protection requirements in
other OSHA standards. Some agreed with OSHA's preliminary determination
that the respiratory protection provisions contained in paragraph (g)
of the standards were unnecessary because the workers were adequately
protected by other applicable standards. For example, the ABMA stated
that OSHA's preliminary determination was ``absolutely correct''
(Document ID 2142, p. 9). In support of its statement, ABMA submitted a
report prepared for it by Exponent (Document ID 2142, Attachment 1),
which stated that the rules governing abrasive blasting currently in
effect for both the construction and shipyards industries already
require engineering and administrative controls and PPE, including an
air supply respirator and a hood or blasting helmet (Document ID 2142,
Attachment 1, pp. 5-6, 11). SBA similarly noted its ``understanding''
that employees performing abrasive blasting and welding in the
construction and shipyard sectors are already protected by OSHA
standards and industry practices that provide for ventilation, PPE, and
respiratory protection (Document ID 2120, p. 6).
Other commenters objected to the proposed removal of paragraph (g)
(see, e.g., Document ID 2124; 2129; 2135; 2140). Some argued that
existing respiratory protection requirements in other standards are not
sufficient to protect all of the employees exposed to beryllium in
construction and shipyards, especially employees who are exposed due to
abrasive blasting. For example, NABTU commented that the ventilation
standard ``does little, if anything, for [construction] workers other
than the blasting operators'' (Document ID 2129, p. 9). Specifically,
NABTU observed that the ventilation standard ``does not require
respiratory protection for pot tenders, helpers, or bystanders, instead
simply stating that dust-filter respirators `may be used' for
operations such as clean up, loading, or unloading'' (Document ID 2129,
p. 9).
AFL-CIO echoed NABTU's concerns, commenting that the ventilation
standard, 29 CFR 1926.57, and the mechanical paint removers standard,
29 CFR 1915.34, do not protect workers, such as pot tenders, cleanup
workers, demolition workers, machinists, surveyors, maintenance and
repair workers and other bystanders, who are performing other tasks in
operations like abrasive blasting (Document ID 2140, pp. 3, 5). It
argued that these workers are at serious risk from beryllium dust
created by abrasive blasting operations, and, importantly, do not share
the same baseline protections as abrasive blasters and welders
(Document ID 2140, p. 3).
USW expressed similar concerns in its comments (Document ID 2124,
pp. 2, 10-11). Its USW Local Union 8888 safety committee stated that it
knows from on-the-job experience that, even though shipyard abrasive
blasters are required to wear an airline respirator, others on the
blasting crew in shipyards are not required to wear any type of
respiratory protection (Document ID 2124, pp. 2, 11). In support, USW
quoted the testimony of USW Local Union 8888 member Dennis Johnson, who
testified at OSHA's March 2016 public hearing on the 2015 beryllium
proposal that, in his experience in shipyards, ``only the blasters had
the respirators'' (Document ID 2124, p. 10 (quoting Document ID 1756,
Tr. 246-49)). USW noted that this issue is not confined to the shipyard
industry; Mr. Johnson's experience is comparable to USW members'
experience in construction operations (Document ID 2124, p. 11).
After considering the comments, OSHA concludes that there is
partial, but not complete, overlap between other OSHA standards and
paragraph (g) of the final construction and shipyards rules. It is true
that paragraph (g) requires respiratory protection to be selected and
used in accordance with OSHA's general respiratory protection standard,
29 CFR 1910.134, and that the general industry respiratory protection
standard is independently applicable to
the construction and shipyards sectors (see 29 CFR 1926.103, 1915.154).
However, other standards on which OSHA relied in the NPRM do not apply
to all situations or tasks in which workers covered by the construction
or shipyards beryllium standards might engage.
Moreover, the construction and shipyards standards contain
requirements that go beyond the baseline requirements in other OSHA
standards, including the general industry respiratory protection
standard. Unlike the beryllium standards, none of the standards on
which OSHA relied in the NPRM require respiratory protection for an
employee who is eligible for medical removal under the standard but
chooses to remain in a job with airborne exposure at or above the
action level, or require employers to provide PAPRs when an employee
entitled to a respirator under the beryllium standard requests one.
Indeed, in the 2017 final rule, OSHA specifically recognized that the
PAPR provision went beyond the baseline provisions of the respiratory
protection standard (82 FR at 2678).
Therefore, other standards do not completely overlap the standards'
respiratory protection requirements. This conclusion supports OSHA's
determination not to revoke the standards' ancillary provisions in this
final rule.
Personal Protective Clothing and Equipment, Paragraph (h)
Paragraph (h) requires employers to provide and ensure the use of
PPE for employees exposed to beryllium, and also contains provisions
pertaining to the removal, storage, cleaning, and replacement of the
PPE. To comply with paragraph (h), employers are expected to choose the
appropriate type of PPE for their employees based on the results of the
employer's hazard assessment (82 FR at 2682). In the 2017 final rule,
OSHA stated that the PPE requirements are intended to protect employees
by preventing the accumulation of airborne beryllium on clothing,
shoes, and equipment, which can result in additional inhalation
exposure. The PPE requirements also protect employees in other work
areas, as well as employees and other individuals outside the
workplace, from exposures that could occur if contaminated clothing
were to transfer beryllium to those areas (82 FR at 2678).
In the 2017 NPRM, OSHA identified several OSHA standards that
require employees engaged in abrasive blasting operations (in
construction and shipyards) and welding operations (in shipyards) to
use PPE during their work (82 FR at 29197). OSHA stated that, in
construction, 29 CFR 1926.57(f)(5)(v) requires abrasive blasting
operators to wear full PPE, including respirators, gloves, safety
shoes, and eye protection. Similarly, 29 CFR 1915.34(c)(3) requires
full PPE for abrasive blaster operators performing mechanical paint
removal in shipyards (82 FR at 29197). In addition, OSHA noted that
gloves are required by 29 CFR 1915.57(a) to protect welders in
shipyards, and that ``relevant PPE is required by the existing personal
protective equipment standard (1926.95) and the existing hand and body
protection standard (1915.157) to protect blasting helpers in
construction and shipyards, respectively, from dermal exposure to
beryllium dust'' (82 FR at 29197). Given the other standards' PPE
requirements, OSHA preliminarily estimated that affected employees are
required to be equipped with PPE 100 percent of the time when exposed
to beryllium (82 FR at 29197).
In response to the 2017 proposal, NELP stated that the requirements
in paragraph (h), which state ``clearly and specifically when and what
type of PPE is required,'' do not exist in other OSHA standards and
that, without paragraph (h) of the beryllium standards, ``employees
will clearly not receive these protections'' (Document ID 2106, p. 6).
Other commenters criticized OSHA's estimates regarding the existing use
of PPE in the affected construction and shipyard operations. NABTU
strongly disagreed with OSHA's statement in the 2017 NPRM that
``[b]aseline usage of . . . PPE is far higher in construction and
shipyards (82 FR at 29216)'' (Document ID 2129, p. 7). Members of
Congress commented that OSHA's preliminary estimate that there is
already a high level of compliance with other OSHA standards did ``not
appear to be supported by testimony from the hearing'' (Document ID
2135, p. 7). The hearing testimony ``suggests that while the abrasive
blasters may have protections, there is limited or no protection for
many other workers, including bystanders, who are exposed to beryllium-
containing dust under the pre-existing standards'' (Document ID 2135,
p. 7). The Beryllium Health and Safety Committee Task Group also
expressed concern about OSHA's assumption that affected workers are
required to be equipped with PPE 100 percent of the time, stating that
the agency ``does not have supporting evidence of consistent and
standard use across pot tenders and cleanup activities supporting
abrasive blasting'' (Document ID 2118, p. 5).
After reviewing the comments, OSHA is persuaded that other OSHA
standards only partially overlap with the requirements of paragraph
(h). Some workers exposed to beryllium in construction and shipyards,
such as abrasive blasting helpers, would not be fully protected if OSHA
revoked the requirements for PPE in their entirety. In addition, the
overlapping PPE standards that OSHA cited in the NPRM do not contain
any removal, storage, cleaning, and replacement requirements that would
minimize cross-contamination and migration of beryllium dust. These
provisions are necessary to protect workers who are wearing the PPE
from additional inhalation exposure that could come from improper
removal of the PPE.
Therefore, other standards do not completely overlap with or
duplicate the standards' PPE requirements. This conclusion supports
OSHA's determination not to revoke the standards' ancillary provisions
in this final rule.
Hygiene Areas and Practices, Paragraph (i)
Paragraph (i) contains requirements for hygiene areas and
practices. Paragraph (i) requires employers to: (1) Provide readily
accessible washing facilities to remove beryllium from the hands, face,
and neck (paragraph (i)(1)(i)); (2) ensure that employees who have
dermal contact with beryllium wash any exposed skin (paragraph
(i)(1)(ii)); (3) provide change rooms if employees are required to use
personal protective clothing and are required to remove their personal
clothing (paragraph (i)(2)); (4) ensure that employees take certain
steps to minimize exposure in eating and drinking areas (paragraph
(i)(3)); and (5) ensure that employees do not eat, drink, smoke, chew
tobacco or gum, or apply cosmetics in areas where there is a reasonable
expectation of exposure above the TWA PEL or STEL (paragraph (i)(4)).
While emphasizing the importance of hygiene areas and practices in
the final rule, OSHA also acknowledged that the sanitation standards in
construction (29 CFR 1926.51) and shipyards (29 CFR 1915.88) include
provisions similar to some of those in the beryllium standards. For
example, the sanitation standards include hygiene provisions requiring
the employer to provide change rooms with separate storage facilities
for protective clothing whenever employees are required by an OSHA
standard to wear protective clothing. The sanitation standards also
require employers to provide wash
facilities and prohibits storage or consumption of food or beverages in
any area where employees are exposed to a toxic material (82 FR at
2684). OSHA pointed out this potential overlap in the NPRM (82 FR at
29205).
In response to the NPRM, OSHA received only two comments that
specifically addressed paragraph (i). One comment, from NABTU,
expressed the need for hygiene requirements such as washing facilities,
change rooms, and eating and drinking areas to prevent the spread of
beryllium, noting that ``[w]hen beryllium-exposed workers are afforded
washing and clean-up areas, all construction workers on the site are
protected from exposure'' (Document ID 2129, p. 7). On the other hand,
ABMA identified a number of existing standards, including the
sanitation standards, applicable to employees in construction and
shipyards, and argued that these provisions provide adequate protection
from exposure to beryllium (Document ID 2142, pp. 9-10). ABMA also
indicated that hygiene practices are utilized during abrasive blasting
regardless of the beryllium standard due to other substance-specific
standards such as lead, hexavalent chromium, cadmium, and arsenic,
which require employees who are exposed to these materials through
abrasive blasting to wash their hands and face (Document ID 2142,
Attachment 1, p. 6).
After considering the comments, OSHA concludes that there is
overlap between the sanitation standards for construction and shipyards
and paragraph (i) of the beryllium rules for construction and
shipyards. However, this overlap is not complete. For example, the
sanitation standard for the construction industry prohibits
``consum[ing] food or beverages in . . . any area exposed to a toxic
material,'' 29 CFR 1926.51(g), and the sanitation standard for
shipyards similarly prohibits the consumption or storage of ``food,
beverages, and tobacco products . . . in any area where employees may
be exposed to hazardous or toxic substances,'' 29 CFR 1915.88(h). The
beryllium standards, on the other hand, contain more exacting
requirements that do not overlap with these requirements--specifically,
requirements that employers keep ``surfaces in eating and drinking
areas . . . as free as practicable of beryllium,'' 29 CFR
1915.1024(i)(3)(i) and 1926.1124(i)(3)(ii), and prohibit ``employees
[from] enter[ing] any eating or drinking area with personal protective
clothing or equipment unless, prior to entry, surface beryllium has
been removed from the clothing or equipment by methods that do not
disperse beryllium into the air or onto an employee's body,'' 29 CFR
1915.1024(i)(3)(ii) and 1926.1124(i)(3)(iii).
Thus, other standards do not completely overlap the standards'
hygiene area and practices requirements.
Housekeeping, Paragraph (j)
Paragraph (j) requires employers in both construction and shipyards
to follow the cleaning procedures in their written exposure control
plan, clean up spills and emergency releases promptly, use appropriate
cleaning methods, and provide recipients of beryllium containing
materials for disposal with a copy of the warnings described in
paragraph (m) (82 FR at 2688). In the preamble to the 2017 final rule,
OSHA indicated that these provisions are important because they
minimize sources of exposure to beryllium that engineering controls do
not completely eliminate (82 FR at 2689).
In the NPRM, OSHA identified other OSHA standards that might
duplicate some provisions of paragraph (j) (82 FR at 29197). These
included the construction ventilation standard, 29 CFR 1926.57(f)(7),
which requires that dust not be allowed to accumulate outside abrasive
blasting enclosures and that spills be cleaned up promptly. Other
standards applicable to abrasive blasting operations in construction,
29 CFR 1926.57(f)(3) and (f)(4), also require exhaust ventilation and
dust collection and removal systems. Likewise, certain provisions of
OSHA's general ventilation standard for abrasive blasting, 29 CFR
1910.94(a), apply to shipyards. For example, 29 CFR 1910.94(a)(7))
requires that ``[d]ust shall not be permitted to accumulate on the
floor or on ledges outside of an abrasive-blasting enclosure, and dust
spills shall be cleaned up promptly . . .'' (82 FR at 29197). OSHA
stated that compliance with these provisions ``already ensures that
employers take some steps during the blasting operations to prevent
accumulations of dust sufficient to create exposures exceeding the PEL
in clean-up after blasting operations are completed'' (82 FR at 29197).
Some commenters supported revocation of paragraph (j) on the basis
of overlapping and duplicative provisions (e.g., Document ID 2142,
Attachment 1, p. 7 (citing 29 CFR 1926.57(f)(7)). However, other
commenters argued that at least some of the beryllium standards'
housekeeping provisions are not duplicated by other OSHA standards. For
example, NABTU indicated that the ventilation standard does not
prohibit dry sweeping and brushing, which are prohibited by the
beryllium standards except in limited circumstances (Document ID 2129,
p. 9; see also 2140, p. 8). Similarly, the AFL-CIO pointed out that
abrasive blasting cleanup workers who clean and recycle spent abrasive
would not be protected by other OSHA standards when performing these
tasks (Document ID 2140, p. 8).
After reviewing the comments, OSHA is persuaded that other OSHA
standards do not completely overlap with, or duplicate the protections
of, the construction and shipyards standards' housekeeping
requirements. Some workers exposed to beryllium, such as abrasive
blasting cleanup workers, would not be adequately protected if OSHA
revoked paragraph (j) in its entirety. In addition, the provisions
prohibiting dry sweeping, dry brushing, and the use of compressed air
except under certain circumstances are not contained in other OSHA
standards. OSHA's determination that other standards do not completely
overlap with the beryllium standards' housekeeping requirements
supports the agency's decision not to revoke the standards' ancillary
provisions in this final rule.
Medical Surveillance, Paragraph (k)
Paragraph (k) includes provisions for medical surveillance in
connection with occupational exposure to beryllium. It requires
employers in both construction and shipyards to offer eligible
employees, at no cost to the employee, participation in the medical
surveillance program. Paragraph (k) specifies requirements of the
medical surveillance program, such as which employees are eligible for
medical surveillance, as well as the frequency and content of medical
examinations.
As explained in the 2017 final rule, the purposes of medical
surveillance for beryllium are: (1) To identify beryllium-related
adverse health effects so that appropriate intervention measures can be
taken; (2) to determine if an employee has any condition that might
make him or her more sensitive to beryllium exposure; and (3) to
determine the employee's fitness to use personal protective equipment
such as respirators (82 FR at 2696). The inclusion of medical
surveillance in the beryllium standards for construction and shipyards
is consistent with section 6(b)(7) of the OSH Act (29 U.S.C.
655(b)(7)), which requires that, where appropriate, medical
surveillance programs be included in OSHA health standards to aid in
determining whether the health of employees is adversely
affected by exposure to the hazards addressed by the standard.
In the NPRM, OSHA asked several specific questions regarding
whether it should keep all or some of the standard's medical
surveillance requirements (82 FR at 29183). While some comments that
OSHA received in response to these questions supported revocation (see
e.g., Document ID 2142, pp. 3, 16-19), most of the stakeholders that
responded to OSHA's request for comment on issues related to medical
surveillance argued that the agency should retain the medical
surveillance provisions in the construction and shipyards standards
(see, Document ID 2117, pp. 1-2; 2140, pp. 5, 8-9; 2130, pp. 1-2; 2132,
pp. 1-2; 2118, pp.1-3; 2121, p. 3; 2119, p. 2; 2133, pp. 1-3; 2106, pp.
3, 4, 6, 7; 2129, pp. 1, 3-5, 7-8, 10; 2123, pp. 1-3; 2134, p. 2; 2131,
pp. 1-2; 2124, pp. 6, 12; 2136, pp. 1-3; 2135, pp. 2-4).
Of significance to this final rule, several stakeholders noted that
no other standards require medical surveillance for beryllium-exposed
workers in the shipyard or construction sectors (see, e.g., Document ID
2106, p. 6; 2133, p. 1; 2140, p. 5). OSHA agrees with these comments.
OSHA therefore concludes that the beryllium standards' medical
surveillance provisions do not overlap with any other OSHA standard.
This conclusion supports OSHA's determination not to revoke the
standard's ancillary provisions in this final rule.
Medical Removal Protection, Paragraph (l)
Paragraph (l) of the standards establishes requirements for medical
removal, which apply only to a limited category of workers who are
suffering health effects related to their exposure to beryllium.
Medical removal benefits include, at the employee's choice, either
remaining in a job with exposures above the action level while using
respiratory protection or being transferred to a job with exposures
below the action level, along with maintenance of earnings and other
benefits for six months. OSHA determined in the 2017 final rule that
medical removal provisions provide workers with incentives to
participate in the medical surveillance program, and that they also
give workers with sensitization or CBD the opportunity and means to
minimize further exposure to beryllium (82 FR at 2724). Although OSHA
considered in the 2017 NPRM whether other OSHA standards might provide
equivalent protections to affected workers, the agency's review of
existing standards found that no other standards duplicate the
requirements of paragraph (l). Similarly, several commenters stated
that there are no overlapping or duplicative OSHA requirements for
medical removal related to beryllium exposure (see, e.g., Document ID
2106, p. 6; 2134, p. 2), and no commenters pointed to other OSHA
standards that provide overlapping protections. OSHA's conclusion that
there is no overlap supports its determination not to revoke the
standard's ancillary provisions in this final rule.
Communication of Hazards, Paragraph (m)
Paragraph (m) sets forth the employer's obligations to comply with
OSHA's hazard communication standard (HCS) (29 CFR 1910.1200) relative
to beryllium, and to provide warnings and training to employees about
the hazards of beryllium.
In the 2017 final rule, OSHA discussed the importance of the
communication of hazards provision (see 82 FR at 2724-29). The agency
pointed out the need for employees to understand the hazards of
beryllium exposure, the protective measures necessary to minimize
potential health hazards, and the rights afforded them under these
standards. OSHA also noted that the training requirements serve to
explain and reinforce the information available on labels and Safety
Data Sheets (SDSs), which are most effective when employees understand
the information (82 FR at 2724). Because beryllium is a hazardous
chemical with serious and debilitating health effects, it is imperative
that employers ensure that employees can demonstrate that they
understand the training materials and have knowledge of the topics
covered during the training sessions.
In the NPRM, OSHA stated that 29 CFR 1926.21 requires construction
employers to train their employees in the recognition and avoidance of
unsafe conditions, and that, in particular, Sec. 1926.21(b)(3)
requires that employers instruct employees on the safe handling and use
of harmful substances, and make employees aware of the potential
hazards, personal hygiene, and personal protective measures required
(82 FR at 29221). OSHA further stated that the HCS, which applies to
the construction and shipyard industries (29 CFR 1915.1200, 1926.59),
requires training, including training on the hazards of the chemicals
in the work area and the appropriate work practices, emergency
procedures, and personal protective equipment to be used (29 CFR
1910.1200(h)(3)) (Id. at 29221-29222).
Some commenters stated either generally that the ancillary
provisions of the construction and shipyards rules were duplicative of
other OSHA standards, or specifically that adequate hazard
communication protections were already contained in the HCS and OSHA's
abrasive blasting guidance (see, e.g., Document ID 2120, p. 6; 2122, p.
2; 2142 Attachment 1, p. 6). Other commenters stated that, if OSHA
rescinded the standards' ancillary provisions, employers in the
construction and shipyards industry would not be required to conduct
the beryllium-specific training required by the rules (see, e.g.,
Document ID 2121, p. 3; 2129, pp. 4, 10; 2133, p. 2; 2134, p. 2).
After considering the comments, OSHA concludes that there is some,
but not complete, overlap between other OSHA standards and paragraph
(m) of the beryllium standards for construction and shipyards. As OSHA
stated in the 2017 final rule, the beryllium standards' hazard
communication requirements were intended to be ``substantively as
consistent as possible with the HCS,'' but also included ``additional
specific requirements needed to protect employees exposed to
beryllium'' (82 FR at 2724).
First, paragraph (m) of the beryllium standards goes beyond the
requirements of the HCS. For example, paragraph (m)(3)(ii) of the
beryllium standards requires specific training on the signs and
symptoms of CBD, the employer's written exposure control plan, specific
operations that can lead to employee exposure to beryllium, measures
that employees can take to protect themselves from exposure, and the
purpose and description of the medical surveillance and medical removal
protection requirements of the standards. These topics would not
necessarily be covered by training that is required by the hazard
communication standard.
Moreover, the beryllium standards require employers to provide
employees with training on the specific hazards associated with
beryllium exposure; as OSHA stated in the 2017 final rule, ``[w]hile
OSHA agrees that the HCS is designed to cover all chemical hazards in
the workplace[,] . . . OSHA finds that employees need to be trained on
the hazards specifically associated with beryllium, in addition to the
training they receive under the HCS'' (82 FR at 2726). Finally, the
beryllium-specific training required by the construction and shipyards
standards must be provided more often than what the HCS alone would
require; after receiving initial training (as required by paragraph
(h)(1) of the HCS), the beryllium standards require that employees
receive annual retraining on the beryllium hazards (29 CFR
1915.1024(m)(4)(i)(C) and 1926.1124(m)(3)(i)(C)).
Second, paragraph (m) of the beryllium standards goes beyond the
requirements of 29 CFR 1926.21. Compliance with that standard would not
require employers to meet the more exacting requirements of the
beryllium standard, such as the annual retraining requirement.
Therefore, other standards do not completely overlap the beryllium
standards' communication of hazard requirements. This conclusion
supports OSHA's determination not to revoke the standards' ancillary
provisions in this final rule.
Recordkeeping, Paragraph (n)
Paragraph (n) of the construction and shipyards standards for
beryllium requires employers to make and maintain records of air
monitoring data, objective data, medical surveillance, and training.
Employers must maintain the records, and make them available to
employees and their designated representatives, in accordance with
OSHA's records access standard, 29 CFR 1910.1020. In the 2017 final
rule, OSHA pointed out that the requirement to maintain records of
exposure assessments is critical because the records enable employers
to ensure compliance with the exposure assessment provisions, and
ascertain which of the standards' provisions are triggered based on the
assessments (82 FR at 2729-2730). OSHA described the medical
surveillance records requirement as necessary for the protection of
employee health and proper enforcement of the standards (82 FR at
2732). Finally, according to OSHA, the creation and maintenance of
training records under paragraph (n)(4) permits both OSHA and employers
to ensure that the required training occurs on schedule (82 FR at
2733).
In the NPRM, OSHA proposed to remove all recordkeeping requirements
for the construction and shipyards beryllium standards as part of the
proposed removal of all of the standards' ancillary provisions (82 FR
at 29183). Removal of paragraph (n) would have been consistent with the
proposed removal of the other ancillary provisions because the
recordkeeping provisions are dependent on those other provisions; for
example, without the standards' medical surveillance requirements,
there would be no medical surveillance records to create or maintain.
The proposed removal of the ancillary provisions was based on OSHA's
preliminary determination that a number of other OSHA standards apply
to the primary operations involving beryllium exposure in construction
and shipyards, resulting in duplicative protections (82 FR at 29183).
OSHA did not receive any comments that were responsive to the issue
of whether other OSHA standards impose recordkeeping requirements that
overlap with or duplicate the requirements in paragraph (n). OSHA's own
analysis, however, indicates that there is no overlap with other
standards. OSHA's access to employee exposure and medical records
standard, 29 CFR 1910.1020, governs the preservation and maintenance of
employee exposure and medical records, as well as access to those
records for employees and designated representatives. However, the
records access standard does not require the creation of those records.
Instead, paragraph (n) of the beryllium standards contains the
requirements for employers to create records related to beryllium,
including records of exposure assessment, medical surveillance, and
training. It then refers to 29 CFR 1910.1020 for the requirements
governing preservation and maintenance of, and access to, those records
(e.g., paragraph (n)(1)(iii)). Paragraph (n) and 29 CFR 1910.1020 are,
therefore, complementary, rather than overlapping or duplicative.
OSHA has determined that no other OSHA standards contain
recordkeeping requirements that are duplicative of the recordkeeping
requirements in paragraph (n) of the beryllium standards for
construction and shipyards. This conclusion supports OSHA's
determination not to revoke the standard's ancillary provisions in this
final rule.
Conclusion
Based on the discussion above, the agency is not finalizing its
proposed revocation of the ancillary provisions in the construction and
shipyards standards. Instead, OSHA has decided to proceed with a new,
more comprehensive proposal to amend the standards that accounts for
the protections of other OSHA standards, where appropriate, and
maintains a high level of worker protection. The new proposal will also
ensure consistency with the general industry standard, both in terms of
the changes made via the DFR in July 2016 (see 83 FR 31045) and the
additional changes proposed by OSHA in December 2018 (see 83 FR 63746).
C. Changes to the Compliance Dates in Paragraph (o)
Paragraph (o) of the standards for construction and shipyards sets
forth the effective date of the standards as well as the dates for
compliance with their requirements. The 2017 final rule set the
compliance dates as follows: March 12, 2018, for all obligations of the
standards, except for change rooms, which were required to be provided
by March 11, 2019, and engineering controls, which had to be
implemented by March 10, 2020 (29 CFR 1915.1024(o)(2); 29 CFR
1926.1124(o)(2)). In the NPRM, which was published in June 2017, OSHA
announced that it would not enforce the 2017 construction and shipyards
standards ``without further notice while this new rulemaking is
underway'' (82 FR at 29183). Subsequently, in March 2018, OSHA stated
that it would begin enforcing the PEL and STEL on May 11, 2018 (see
Memorandum for Regional Administrators, Delay of Enforcement of the
Beryllium Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29
CFR 1926.1124, Mar. 2, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02). OSHA also clarified in a May
9, 2018, interim enforcement memorandum that it would begin enforcing
the construction and shipyards beryllium standards' PEL and STEL on May
11, 2018, but would not enforce any other provisions of those standards
absent further notice (see Interim Enforcement Memorandum and Notice of
Delay in Enforcement for Certain Provisions of the Beryllium Standards,
May 9, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09). Since May 11, 2018, OSHA has been
enforcing only the exposure limits, which are contained in paragraph
(c) of both standards.
In the NPRM, OSHA requested comment on whether the agency should
delay the compliance dates of the construction and shipyards standards
for an additional year (see 82 FR at 29183). This delay ``would give
affected employers additional time to come into compliance with [the
standards'] requirements, which could be warranted by the uncertainty
created by this proposal'' (82 FR at 29183). After careful
consideration of the information received in response to this request
for comments, and for the reasons set out below, OSHA has determined
that it is appropriate to extend the compliance dates for all ancillary
provisions of the construction and shipyards standards for beryllium to
September 30, 2020. This final rule has no effect on
compliance with the requirements of paragraph (c); compliance with the
PEL and STEL has been enforced since May 2018.
OSHA received comments both for and against the proposed delay of
the compliance dates for the construction and shipyards standards.
Employers and trade associations by and large supported delaying the
compliance date by a year (e.g., Document ID 2125, p. 23; 2145,
Comments, p. 36; 2141, Comments, pp. 1-2, 11). ABMA stated that,
``[s]hould OSHA retain or promulgate any new beryllium standards for
construction and shipyards,'' an additional year would be necessary to
allow the industries ``sufficient time to prepare for and implement
[the] standards'' (Document ID 2142, Comments, p. 4). Newport News
Shipbuilding stated that additional time was particularly important in
order for employers to figure out how to comply with the exposure
assessment provisions of the standards for blasting operations
(Document ID 2095, p. 1). The Beryllium Health and Safety Committee
Task Group, which argued that all ancillary provisions should be
retained, nevertheless urged OSHA to implement a one-year compliance
deadline delay (see Document ID 2118, pp. 1-2). The Task Group noted
that the ancillary provisions impose extensive compliance obligations,
and that additional time would be necessary for employers to engage in
research and collaboration on the exposure monitoring provisions and to
incorporate the medical surveillance obligations into their policies
and programs (see Document ID 2118, p. 2). Similarly, several public
health and medical experts who strongly opposed revoking the ancillary
provisions stated they had no objection to the proposal to extend the
compliance dates (see Document ID 2123, p. 3).
The West Virginia Oil and Natural Gas Association argued that the
uncertainty over whether the ancillary provisions of the construction
and shipyards standards would be eventually withdrawn by OSHA makes a
delay of compliance obligations necessary (see Document ID 2122, p. 4;
see also 2145, Comments, p. 36). CISC also cited ``the posture of this
rulemaking and the uncertainty surrounding it'' as reasons that the
regulated industries would need additional time to determine the impact
of any future final rule (Document ID 2125, p. 23). Century Aluminum
Company (Century Aluminum) indicated that a delay of the ``complex and
burdensome'' compliance requirements was necessary so that ``employers
do not spend immense amounts of time and money to comply with
requirements that ultimately are amended or rescinded'' (Document ID
2141, Comments, p. 11; see also 2141, Attachment 3, pp. 9-10 (``if
appropriate revisions to the final Rule cannot be achieved within an
adequate period of time, a stay of the compliance dates may become
necessary to avoid unwarranted burdens'')).
Other commenters, including labor organizations, public interest
groups, and private citizens, firmly opposed OSHA's proposed extension
of the compliance dates (e.g., Document ID 2140, p. 9; 2129, p. 11;
2132, p. 2; 2133, p. 4; 2084). These commenters were primarily
concerned that any further delay in implementing the standards would
prolong workers' exposures to unsafe levels of beryllium, increasing
their risk of beryllium-related health effects (e.g., Document ID 2140,
p. 9). As Dr. Lee S. Newman stated, ``[k]nowing that construction and
shipyard workers are at risk for developing incurable lung disease that
can be prevented by compliance with this standard, it is morally and
ethically indefensible to delay'' (Document ID 2136, p. 4). The Union
of Concerned Scientists emphasized that, until compliance with the
standards is required, ``workers will continue to be exposed to
beryllium at levels clearly known to be unsafe'' (Document ID 2131, p.
2; see also 2130, p. 2). NELP and National Jewish Health also pointed
out that employers were given more than a year to comply with most
provisions of the standards, and over three years for others, making
additional time unnecessary and unwarranted (Document ID 2133, p. 4;
2106, p. 7).
Commenters, furthermore, pointed out that the uncertainty cited by
OSHA as a reason for delaying the compliance deadlines was of OSHA's
own making. As one private citizen stated, ``[t]he government should
not first deliberately create uncertainty about a rule and then cite
that uncertainty as a reason to weaken the rule and endanger workers''
(Document ID 2081; see also 2130, p. 2). Public Citizen noted that, if
OSHA were to finalize the rule as proposed, rescinding the vast
majority of the current standards, compliance with the new PEL- and
STEL-only standards would be easier and there would be even less
justification for the proposed delay (Document ID 2134, p. 4).
Similarly, according to NABTU, because OSHA has ``not even suggested
that it is infeasible for employers to comply with the standard, there
is no basis for any further delay in the compliance date'' (Document ID
2129, p. 11).
After careful consideration of the comments, and in light of OSHA's
intent to propose different amendments to the standards, OSHA has
decided to finalize the proposed delay of the compliance deadlines for
approximately one year in both the construction and shipyards
standards. The effective date of the standards remains unchanged.
Amended paragraph (o)(2)(i) states that employers' obligations under
the exposure limit requirements in paragraph (c) commenced on March 12,
2018. Thus, paragraph (o)(2)(i) reiterates that those obligations went
into effect in conformance with paragraph (o)(2) of the 2017 final
rule. Amended paragraph (o)(2)(ii) reflects the new, delayed compliance
date of September 30, 2020 for all other obligations of the standards.
OSHA's decision to delay compliance until September 30, 2020
reflects the agency's determination that it would be unfair to the
regulated community to expect compliance by the dates in the standards
given the agency's decisions to retain all ancillary provisions in this
final rule and propose different amendments to the standard in a
forthcoming proposal. As argued by CISC, the high level of uncertainty
inherent in this regulatory posture makes additional time essential
(see Document ID 2125, p. 23). In fact, the regulated community is
facing even more uncertainty now than it was in 2017 when the NPRM was
published. Requiring compliance with the 2017 final rule, or even
requiring employers to expend time and money determining how to comply
with 2017 final rule, would make little sense when the standards, as
noted by Century Aluminum and ABMA, may ultimately be amended (see
Document ID 2141, Comments, p. 11; 2142, Comments, p. 4). In finalizing
the proposed compliance date extension but not the proposed revocation
of all ancillary provisions, OSHA concurs with commenters like the
Beryllium Health and Safety Committee Task Group and several public
health and medical experts, all of whom opposed revoking the ancillary
provisions but did not object to a delay of the compliance dates (see
Document ID 2118, pp. 1-2; 2123, p. 3).
In finalizing the compliance delay, the agency is also being
consistent with its 2018 delay of the compliance dates for many of the
ancillary provisions in the beryllium standard for general industry
(see 83 FR 25536 (June 1, 2018) (NPRM); 83 FR 39351 (Aug. 9, 2018)
(final rule)). There, OSHA planned to propose modifications to those
ancillary provisions; the agency reasoned that it would not make sense
for either the
agency or the regulated community for OSHA to begin enforcement of
requirements that would be affected by changes made in the upcoming
rulemaking. Employers would likely have to take unnecessary measures to
comply with provisions that could subsequently be modified, resulting
in wasted resources. Furthermore, the compliance date extension for the
beryllium general industry standard gave OSHA time to prepare and
publish the planned substantive NPRM to amend the standard before
employers were required to comply with the affected provisions of the
rule (see 83 FR 25536). The reasons OSHA gave in 2018 for delaying
compliance with the general industry provisions are applicable to the
agency's current final action in delaying the compliance dates for the
ancillary provisions of the construction and shipyards standards.
Indeed, the rationale has particular force here. Unlike in general
industry, where OSHA planned merely to revise existing requirements in
the standard, OSHA here previously proposed to revoke the ancillary
provisions of the construction and shipyards standards entirely. As
such, employers in these industries likely have not prepared to comply
with any portion of these provisions.
In general industry, OSHA proposed to delay the compliance date for
certain ancillary provisions to allow the agency time to issue a new
proposal and expressed its intention to rely on its de minimis
enforcement policy while the rulemaking was pending so that employers
could comply with the proposed provisions without risk of a citation
(83 FR at 25537). Such an approach was appropriate in the general
industry context, where the agency planned to propose discrete changes
to provisions that employers otherwise expected to go into full effect.
Here, however, OSHA does not believe reliance on its de minimis policy
is appropriate. If finalized as proposed, the 2017 NPRM would have
eliminated any requirement for employers to comply with the ancillary
provisions of the shipyard and construction standards. Given OSHA's
decision not to revoke these provisions in this rulemaking and instead
to propose revisions to the ancillary provisions in a forthcoming
rulemaking action, OSHA believes that it is appropriate to apply a one-
year compliance extension to allow employers to prepare to comply. The
proposed delay was supported by several commenters (Document ID 2125,
p. 23; 2141, p. 11; 2142, p. 4). OSHA also notes that this is
consistent with the agency's approach in the 2017 final rule, where the
agency similarly gave all industries one year before any compliance
obligations began.
OSHA recognizes the comments highlighting the urgent need for these
standards and the effect on workers' health that could occur in the
period before compliance is achieved (e.g., Document ID 2136, p. 4;
2130, p. 2). However, OSHA notes that the comments highlighting the
high levels of exposure that workers would continue to experience
during a compliance delay (e.g. Document ID 2140, p. 9; 2131, p. 2)
were submitted in 2017, before OSHA began to enforce any aspects of the
standards. Since May 2018, the agency has been enforcing the new, lower
exposure limits, providing important protection for workers who were
previously exposed above these limits (see Memorandum for Regional
Administrators, Delay of Enforcement of the Beryllium Standards under
29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR 1926.1124, Mar. 2, 2018,
available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02). OSHA reiterates that employers must continue to comply
with paragraph (c) (the PEL and STEL) as subsequent rulemaking efforts
proceeds (see 29 CFR 1915.1024(o)(2)(i) and 29 CFR 1926.1124(o)(2)(i),
as amended).
Similarly, OSHA acknowledges the comment, from NABTU, that OSHA has
not determined compliance with the 2017 final rule to be infeasible for
construction and shipyard employers, and the comment from Public
Citizen that compliance with the proposed rule (rescinding all
ancillary provisions but retaining the PELs) would have been much
easier to achieve than compliance with the 2017 final rule (see
Document ID 2129, p. 11; 2134, p. 4). OSHA still considers compliance
with the 2017 final rule to be feasible; the agency has not stated
otherwise. Regardless of feasibility, however, it would not make sense
for OSHA to require employers to comply with, or prepare to comply
with, ancillary provisions that are in a state of flux, especially
given that OSHA is enforcing the lower PELs. As for Public Citizen's
comment that compliance with a final rule revoking all ancillary
provisions would have been simpler for employers to comply with (see
Document ID, Attachment 2134, p. 4), OSHA agrees but, as discussed
above, the agency is not finalizing that portion of the NPRM.
Finally, OSHA recognizes the comments, from the American Thoracic
Society and a private citizen, noting that the current regulatory
uncertainty is of OSHA's own making (Document ID 2081; see also
Document ID 2130, p. 2). However, as explained herein, OSHA has
determined that it is more important to proceed apace with a new
proposal than to require compliance with a standard that is subject to
change in the near future. The new proposal will account for regulatory
overlap, where it exists, be consistent with the general industry
beryllium standard, where appropriate, and maintain crucial worker
protections.
List of Subjects in 29 CFR Parts 1915 and 1926
Beryllium, Cancer, Chemicals, Hazardous substances, Health,
Occupational safety and health.
Authority and Signature
This document was prepared under the direction of Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health, U.S. Department of Labor. The agency issues the sections
under the following authorities: 29 U.S.C. 653, 655, 657; 40 U.S.C.
3704; 33 U.S.C. 941; Secretary of Labor's Order 1-2012 (77 FR 3912 (1/
25/2012)); and 29 CFR part 1911.
Signed at Washington, DC, on September 24, 2019.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health.
Amendments to Standards
For the reasons set forth in the preamble, chapter XVII of title
29, parts 1915 and 1926, of the Code of Federal Regulations is amended
as follows:
PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD
EMPLOYMENT
0
1. The authority citation for part 1915 continues to read as follows:
Authority: 33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of
Labor's Order No. 12-71 (36 FR 8754); 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR
55355), or 1-2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553,
as applicable.
0
2. Amend Sec. 1915.1024 by revising paragraph (o)(2) to read as
follows:
Sec. 1915.1024 Beryllium.
* * * * *
(o) * * *
(2) Compliance dates. (i) All obligations contained in paragraph
(c) of this standard commence and become enforceable on March 12, 2018;
and
(ii) All other obligations of this standard commence and become
enforceable on September 30, 2020.
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart Z--Toxic and Hazardous Substances
0
3. The authority citation for subpart Z of part 1926 continues to read
as follows:
Authority: 40 U.S.C. 3704; 29 U.S.C. 653, 655, 657; and
Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-
2010 (75 FR 55355), or 1-2012 (77 FR 3912) as applicable; and 29 CFR
part 1911.
Section 1926.1102 not issued under 29 U.S.C. 655 or 29 CFR part
1911; also issued under 5 U.S.C. 553.
0
2. Amend Sec. 1926.1124 by revising paragraph (o)(2) to read as
follows:
Sec. 1926.1124 Beryllium.
* * * * *
(o) * * *
(2) Compliance dates. (i) All obligations contained in paragraph
(c) of this standard commence and become enforceable on March 12, 2018;
and
(ii) All other obligations of this standard commence and become
enforceable on September 30, 2020.
[FR Doc. 2019-21037 Filed 9-27-19; 8:45 am]
BILLING CODE 4510-26-P
