[Federal Register Volume 84, Number 195 (Tuesday, October 8, 2019)]
[Proposed Rules]
[Pages 53902-53954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21038]
Vol. 84
Tuesday,
No. 195
October 8, 2019
Part III
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1915 and 1926
Occupational Exposure to Beryllium and Beryllium Compounds in
Construction and Shipyard Sectors; Proposed Rule
Federal Register / Vol. 84 , No. 195 / Tuesday, October 8, 2019 /
Proposed Rules
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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-AD29
Occupational Exposure to Beryllium and Beryllium Compounds in
Construction and Shipyard Sectors
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed rule; request for comments and notice of public
hearing.
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SUMMARY: OSHA is proposing to revise the standards for occupational
exposure to beryllium and beryllium compounds in the construction and
shipyards industries. These proposed changes are designed to accomplish
three goals: To more appropriately tailor the requirements of the
construction and shipyards standards to the particular exposures in
these industries in light of partial overlap between the beryllium
standards' requirements and other OSHA standards; to aid compliance and
enforcement across the beryllium standards by avoiding inconsistency,
where appropriate, between the shipyards and construction standards and
proposed revisions to the general industry standard; and to clarify
certain requirements with respect to materials containing only trace
amounts of beryllium. This proposal would lead to total annualized cost
savings of $2.5 million at a 3 percent discount rate over 10 years; at
a discount rate of 7 percent over 10 years, the annualized cost savings
would be $2.5 million. OSHA has preliminarily determined that these
proposed changes would maintain safety and health protections for
workers, while facilitating compliance with the standards and yielding
some cost savings. This proposal does not affect the general industry
beryllium standard.
DATES: Written Comments: Written comments on this NPRM must be
submitted (postmarked, sent, or received) by November 7, 2019 in Docket
Number OSHA-H005C-2006-0870. Comments on the information collection
determination described in Section VI of the preamble (OMB Review under
the Paperwork Reduction Act of 1995) may be submitted (postmarked,
sent, or received) by December 9, 2019 in Docket Number OSHA-2019-0006.
OSHA will consider comments on the information collection determination
submitted in either docket, but requests that commenters submit
relevant comments to Docket Number OSHA-2019-0006.
Informal Public Hearing: The agency will hold an informal public
hearing on Tuesday, December 3, 2019, in the Frances Perkins Building,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210. The hearing will begin at 9:30 a.m. and OSHA expects the hearing
to last until 5:30 p.m., ET. A schedule will be released prior to the
start of the hearings and may be amended at the discretion of the
presiding administrative law judge (ALJ).
Notice of Intention to Appear at the Hearing: Interested persons
who intend to present testimony or question witnesses at the hearing
must submit (transmit, send, postmark, deliver) a notice of intention
to appear by November 7, 2019 in Docket No. OSHA-H005C-2006-0870.
Hearing Testimony and Documentary Evidence: Interested persons who
request more than 10 minutes to present testimony or intend to submit
documentary evidence at the hearing must submit (transmit, send,
postmark, deliver) the full text of their testimony and all documentary
evidence by November 7, 2019 in Docket No. OSHA-H005C-2006-0870.
ADDRESSES: Written Comments: You may submit written comments, notices
of intention to appear, written hearing testimony, and documentary
evidence, identified by Docket No. OSHA-H005C-2006-0870 for the NPRM
and Docket No. OSHA-2019-0006 for the information collection
determination, by any of the following methods:
Electronically: Submit comments and attachments, as well other
information, electronically at http://www.regulations.gov, which is the
Federal e-Rulemaking Portal. Follow the instructions online for
submitting comments. After accessing ``all documents and comments'' in
the docket (OSHA-H005C-2006-0870 for the NPRM or OSHA-2019-0006 for the
information collection determination), check the ``proposed rule'' box
in the column headed ``Document Type,'' find the document posted on the
date of publication of this document, and click the ``Comment Now''
link. When uploading multiple attachments into Regulations.gov, please
number all of your attachments because www.Regulations.gov will not
automatically number the attachments. This will be very useful in
identifying all attachments in the rule. For example, Attachment 1--
title of your document, Attachment 2--title of your document,
Attachment 3--title of your document. Specific instructions on
uploading all documents are found in the Frequently Asked Questions
portion and the Commenter's Checklist on Regulations.gov.
Facsimile: OSHA allows fax transmission of comments that are 10
pages or fewer in length (including attachments). Fax these documents
to the OSHA Docket Office at (202) 693-1648.
Regular mail, express delivery, hand delivery, and messenger
(courier) service: Submit comments and any additional material to the
OSHA Docket Office, Docket No. OSHA-H005C-2006-0870 for the NPRM or
Docket No. OSHA-2019-0006 for the information collection determination,
Occupational Safety and Health Administration, U.S. Department of
Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210;
telephone: (202) 693-2350. OSHA's TTY number is (877) 889-5627. Contact
the OSHA Docket Office for information about security procedures
concerning delivery of materials by express delivery, hand delivery,
and messenger service. The Docket Office will accept deliveries
(express delivery, hand delivery, messenger service) during the Docket
Office's normal business hours, 10:00 a.m. to 3:00 p.m., ET.
Instructions: All submissions must include the agency name and the
docket number for this rulemaking (Docket No. OSHA-H005C-2006-0870 for
the NPRM or Docket No. OSHA-2019-0006 for the information collection
determination). All comments, including any personal information you
provide, are placed in the public docket without change and may be made
available online at http://www.regulations.gov. Therefore, OSHA
cautions commenters about submitting statements they do not want made
available to the public, or submitting comments that contain personal
information (either about themselves or others), such as Social
Security Numbers, birthdates, and medical data.
Docket: To read or download comments, notices of intention to
appear, and other materials submitted in response to this Federal
Register document, go to Docket No. OSHA-H005C-2006-0870 for the NPRM
or Docket No. OSHA-2019-0006 for the information collection
determination at http://www.regulations.gov or to the OSHA Docket
Office at the above address. All comments and submissions are listed in
the http://www.regulations.gov index; however, some information (e.g.,
copyrighted material) is not publicly available to
read or download through that website. All comments and submissions are
available for inspection and, where permissible, copying at the OSHA
Docket Office.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. Copies also are available from the OSHA
Office of Publications; telephone (202) 693-1888. This document, as
well as news releases and other relevant information, is also available
at OSHA's website at http://www.osha.gov.
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.
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; telephone:
(202) 693-1950; email: perry.bill@dol.gov.
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.
SUPPLEMENTARY INFORMATION:
Table of Content
I. Background
II. Pertinent Legal Authority
III. Summary and Explanation of the Proposed Rule
IV. Preliminary Economic Analysis
V. Economic Feasibility Analysis and Regulatory Flexibility
Certification
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Federalism
VIII. State Plan States
IX. Unfunded Mandates Reform Act
X. Environmental Impacts
XI. Consultation and Coordination With Indian Tribal Governments
Authority and Signature
Amendments to Standards
I. Background
On January 9, 2017, OSHA published the final rule Occupational
Exposure to Beryllium and Beryllium Compounds in the Federal Register
(82 FR 2470-2757). Subsequently, on June 27, 2017, OSHA proposed to
revoke the ancillary provisions for both construction and shipyards
adopted in the January 9, 2017, final rule and to retain 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 discussed in the proposal its consideration of
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
shipyard standards without further notice while the rulemaking was
underway.\2\ OSHA provided a sixty-day comment period and received over
70 unique comments in response to this proposal.
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\1\ For a full 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 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 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 (7/3/18)).
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 an extension of the compliance date 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. At that point OSHA could rely
on its de minimis policy and allow employers the option of complying
with the proposed provisions of the substantive NPRM without risk of a
citation. OSHA adopted the extension of the compliance dates, as
proposed, on August 9, 2018 (83 FR 39351).
On December 11, 2018, OSHA published the 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 that the proposed modifications would provide
clarification and simplify or improve compliance.
In a document published September 30, 2019, OSHA issued a final
rule
extending the compliance dates for the construction and shipyards
ancillary provisions by one year from the publication date of the final
and reaffirming the significant risk findings from the January 9, 2017,
final rule (84 FR 51377). In this notice of proposed rulemaking, OSHA
is considering relevant comments to the June 2017 construction and
shipyards proposal, as well as general industry stakeholder input that
led to the 2018 DFR and 2018 substantive NPRM, to propose revisions to
the ancillary provisions of the construction and shipyard standards
that are tailored to these sectors. While OSHA will consider comments
on the June 2017 proposal to the extent they continue to be relevant in
this rulemaking, OSHA requests that stakeholders, including those who
commented on the June 2017 proposal, also comment on the proposed
revisions to the ancillary provisions in this proposal.
OSHA consulted with the Advisory Committee on Construction Safety &
Health (ACCSH) regarding this proposal on September 9, 2019. ACCSH
recommended that OSHA proceed with the proposal to ``revise the
beryllium standard for construction to ensure that the ancillary
provisions are tailored to the construction industry and align with the
general industry standard, where appropriate,'' and unanimously
recommended that OSHA do so as soon as possible. OSHA will publish
meeting minutes and copies of materials presented to the Committee in
the ACCSH docket at https://www.regulations.gov/docket?D=OSHA-2018-0012.
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 seq., is ``to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources.'' 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate occupational safety and health standards
pursuant to notice and comment rulemaking. 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 also authorizes the Secretary to ``modify'' or ``revoke''
any occupational safety or health standard, 29 U.S.C. 655(b), and under
the Administrative Procedure Act, regulatory agencies generally may
revise their rules if the changes are supported by a reasoned analysis,
see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 42 (1983). ``While the removal of a regulation may not entail
the monetary expenditures and other costs of enacting a new standard,
and accordingly, 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.
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.
665(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 Indus.
Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42
(1980) (plurality opinion) (``Benzene''). OSHA need not make additional
findings on risk for this proposal because OSHA previously determined
that the beryllium standard addresses a significant risk, see 82 FR
2545-52, and reaffirmed that finding in the rule finalizing the 2017
shipyards and construction proposal, the final rule published September
30, 2019. See Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d
1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that OSHA must
``find that each and every aspect of its standard eliminates a
significant risk'').
OSHA standards must also be both technologically and economically
feasible. See United Steelworkers v. Marshall, 647 F.2d 1189, 1248
(D.C. Cir. 1980) (``Lead I''). The Supreme Court has defined
feasibility as ``capable of being done.'' Am. Textile Mfrs. Inst. v.
Donovan, 452 U.S. 490, 509-10 (1981) (``Cotton Dust''). 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
[standard] 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).
OSHA exercises significant discretion in carrying out its
responsibilities under the Act. 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. See
Lead I, 647 F.2d at 1230. Thus, where OSHA has chosen some measures to
address a significant risk over other measures, those challenging the
OSHA standard must ``identify evidence that their proposals would be
feasible and generate more than a de minimis benefit to worker
health.'' N. Am.'s Bldg. Trades Unions v. OSHA, 878 F.3d 271, 282 (D.C.
Cir. 2017).
Although OSHA is required to set standards ``on the basis of the
best available evidence,'' 29 U.S.C. 655(b)(5), its determinations are
``conclusive'' if supported by ``substantial evidence in the record
considered as a whole,'' 29 U.S.C. 655(f). Similarly, as the Supreme
Court noted in Benzene, OSHA must look to ``a body of reputable
scientific thought'' in making determinations, but a reviewing court
must ``give OSHA some leeway where its findings must be made on the
frontiers of scientific knowledge.'' Benzene, 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.
Tyson, 796 F.2d at 1500. The ``possibility of drawing two inconsistent
conclusions from the evidence does not prevent the agency's finding
from being supported by substantial evidence.'' N. Am.'s Bldg. Trades
Unions, 878 F.3dat 291 (quoting Cotton Dust, 452 U.S. at 523)
(alterations omitted). 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. Tyson, 796 F.2d at 1500.
Finally, because section 6(b)(5) of the Act explicitly requires
OSHA to set health standards that eliminate risk ``to the extent
feasible,'' OSHA uses feasibility analysis rather than cost-benefit
analysis to make standards-setting decisions dealing with toxic
materials or harmful physical agents (29
U.S.C. 655(b)(5)). An OSHA standard in this area must be
technologically and economically feasible--and also 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 for workers' health simply because it is less
costly. See Int'l Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir.
1994); see also Cotton Dust, 452 U.S. at 514 n.32. In Cotton Dust, the
Court explained that Congress itself defined the basic relationship
between costs and benefits, by placing the ``benefit'' of worker health
above all other considerations save those making attainment of this
``benefit'' unachievable. The court further stated that any standard
based on a balancing of costs and benefits by the Secretary that
strikes a different balance than that struck by Congress would be
inconsistent with the command set forth in section 6(b)(5). Cotton
Dust, 452 U.S. at 509. Thus, while OSHA estimates the costs and
benefits of its proposed and final rules, partly in accordance with
Executive Orders 12866 and 13771, these calculations do not form the
basis for the agency's regulatory decisions.
III. Summary and Explanation of the Proposed Rule
The following discussion summarizes and explains the changes OSHA
is proposing to the beryllium standards for construction and shipyards
and the rationale for each proposed change.
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), each
contains a comprehensive set of protections, 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 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 the publication of the 2017 final rule, OSHA has sought to
revise the beryllium standards in a number of separate rulemakings.
Those bearing on this proposal include: (1) The June 27, 2017,
construction and shipyards proposal (82 FR at 29182); (2) the May 7,
2018, general industry DFR (83 FR at 19936); and (3) the December 11,
2018, general industry proposal (83 FR at 63746) (see Section I,
Background, above for more details). In light of the comments OSHA
received on these rulemakings, and other information the agency
received following the publication of the 2017 final rule, OSHA is
proposing revisions to several paragraphs of the beryllium standards
for construction and shipyards.
OSHA has preliminarily determined that, taken together, the limited
exposures in the construction and shipyards industries and the partial
overlap between the beryllium standards and other OSHA standards make
revisions to both the construction and shipyards beryllium standards
appropriate. The rationales for these proposed revisions fall into
three categories. First, OSHA is proposing to remove or modify some
provisions which--although appropriate in the general industry
context--may be unnecessary or require revision to appropriately
protect employees in the construction and shipyards industries. As will
be explained further below, operations with beryllium exposure in the
construction and shipyards industries are significantly less varied and
employees are exposed to materials with significantly lower content
beryllium than in the general industry sector. In addition, employees
in these industries receive the protections of several other OSHA
standards, as the agency explained both in the June 27, 2017,
construction and shipyards proposal and in the final rule published
September 30, 2019.
Second, OSHA is proposing to revise some provisions of the
construction and shipyard standards to avoid inconsistencies with the
clarifying changes the agency proposed in the December 11, 2018,
general industry proposal. OSHA seeks to align these standards to the
extent possible because the agency believes that, where there is no
substantive difference among industries with respect to a particular
provision, applying similar requirements across industries aids both
compliance and enforcement.
Conversely, applying different requirements to identical situations
may lead to confusion. While most of the proposed changes in the
December 2018 proposed rule were designed specifically for general
industry, OSHA is proposing to align changes to paragraph (b), medical
definitions; paragraph (k), medical surveillance; and paragraph (n),
recordkeeping for workers' Social Security Numbers (SSNs) (83 FR at
63746), because the rationale underlying these proposed changes applies
equally in the construction and shipyards contexts.
Third, OSHA is proposing to revise certain paragraphs of the
construction and shipyard standards to address the application of
provisions related to dermal contact to materials containing beryllium
in trace quantities. In the general industry DFR, OSHA clarified that
provisions triggered by dermal contact with beryllium or beryllium
contamination would apply only for dust, fumes, mists, or solutions
containing beryllium in concentrations greater than or equal to 0.1
percent by weight (83 FR at 19939).
OSHA's rationale regarding this final set of proposed changes dates
back to the agency's August 7, 2015, beryllium NPRM (which led to the
2017 final rule) (80 FR at 47565). Therein, OSHA proposed to exempt
materials containing less than 0.1% beryllium by weight on the premise
that workers exposed only to beryllium as a trace contaminant are not
exposed at levels of concern (80 FR at 47775). However, the agency
noted evidence of high airborne exposures in construction and shipyard
sectors, in particular during blasting operations and cleanup of spent
media (80 FR at 47733). Therefore, OSHA proposed for comment several
regulatory alternatives, including an alternative that would expand the
scope of the proposed standard to also include all operations in
general industry where beryllium exists only as a trace contaminant (80
FR at 47730) and an alternative that would expand the scope to include
employers in the shipyard and maritime sectors (80 FR at 47777).
In the 2017 final rule, after considering stakeholders' comments,
OSHA decided to apply the exemption for materials containing less than
0.1% beryllium by weight only where the employer has objective data
demonstrating that employee exposure to airborne beryllium will remain
below the action level of 0.1 [micro]g/m\3\, measured as an 8-hour TWA,
under any foreseeable conditions (82 FR at 2643). OSHA noted that the
action level exception ensured that workers with airborne exposures of
concern were covered by the standard. OSHA agreed with the many
commenters and hearing testimony expressing concern that hazardous
exposures to beryllium can occur with materials containing trace
amounts of beryllium. While the agency acknowledged concerns expressed
by ABMA and EEI that processing materials with trace amounts of
beryllium may not necessarily produce significant exposures to
beryllium, evidence in the record showed significant exposures in some
operations using materials with trace amounts of beryllium. OSHA
explicitly identified abrasive blasting as one such operation. The
agency determined that preventing airborne exposures at or above the
action level, even to trace amounts of beryllium, reduces the risk of
beryllium-related health effects to workers (82 FR at 2643; see also 82
FR at 2552).
While adopting this limited exemption for trace materials, OSHA
also adopted the regulatory alternative expanding the scope of the rule
to include both construction and shipyards, but recognized that these
sectors had limited operations that generated airborne exposures to
beryllium of concern and issued separate standards for these sectors.
Nonetheless, OSHA applied similar ancillary requirements across the
general industry, construction, and shipyards beryllium standards. At
the same time, the agency acknowledged that different approaches may be
warranted for some provisions in construction and shipyards than for
general industry due to the nature of the materials and work processes
typically used in those industries (82 FR at 2690). Specifically,
exposures to beryllium in construction and shipyards are limited to
only a few operations, primarily abrasive blasting in construction and
shipyards and some welding operations in shipyards (see Document ID
2042, FEA Chapter III, pp. 103-11 and Table III-8e). While the
extremely high airborne exposures during the blasting operation can
expose workers to beryllium in excess of the PEL, the blasting
materials contain only trace amounts of beryllium (materials such as
coal slag normally contain approximately 11[micro]g/g or 0.0001
percent) (Document ID 2042, Chapter IV, Technological Feasibility,
Table IV.69).
Furthermore, the rulemaking record contains evidence of beryllium
exposure during only limited welding operations in shipyards (only 4 of
127 sample results showed detectable levels of airborne beryllium)
(Document ID 2042, Chapter IV, Technological Feasibility, p. IV-580).
As the regulatory history above suggests, OSHA intended to protect
employees working with trace beryllium when those employees experience
significant airborne exposures. OSHA did not intend for provisions
aimed at protecting workers from the effects of dermal contact to apply
in the case of materials containing only trace amounts of beryllium in
the absence of significant airborne beryllium exposure. For this
reason, OSHA clarified in the general industry DFR that provisions
triggered by dermal contact with beryllium or beryllium contamination
would apply only for dust, fumes, mists, or solutions containing
beryllium in concentrations greater than or equal to 0.1 percent by
weight (83 FR at 19939). In construction and shipyards, where beryllium
exposure occurs almost exclusively from materials that contain
beryllium in concentrations less than or equal to 0.1 percent by
weight, OSHA is now proposing to remove provisions triggered by dermal
contact or beryllium contamination entirely.
Additionally, although limited welding operations in shipyards may
include base materials or fume containing more than 0.1 percent
beryllium by weight, OSHA has reason to believe that skin or surface
contamination is not an exposure source of concern in these operations.
A 2007 study by Cole indicated that the beryllium content of beryllium-
aluminum alloy welding fume samples was lower than expected given the
beryllium content of the base metal (see Document ID 0885, p. 685).\3\
OSHA therefore believes the amount of beryllium oxide to form on the
surface of materials being welded in shipyards is likely far lower than
would be expected based solely on the percentage of beryllium in the
base metal. OSHA therefore expects that skin or surface contamination
from beryllium dust, fumes, mists, or solutions in concentrations of
0.1 percent by weight or more is unlikely to result from the welding
operations for beryllium/aluminum alloys sometimes found in shipyards.
While OSHA is proceeding on this assumption for purposes of this
proposal, the agency specifically requests comments and data on the
potential for skin and surface contamination from materials containing
more than 0.1 percent beryllium by weight in shipyard welding
operations.
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\3\ The alloy examined by Cole et al. contained .0007 percent
beryllium. As the study explained, ``[b]ecause of its higher
reactivity, beryllium should readily oxidize and be present in the
weld fume. However, all results from this filler alloy showed
beryllium emissions of <0.2 [micro]g/m\3\ even though the
concentration of particulate matter exceeded 600 mg/m\3\.'' Applying
the 0.0007 percent beryllium content of the alloy to the 600 mg/m\3\
of the particulate generated yields an expected 4.2 [micro]g/m\3\ of
beryllium in the welding fume, about thirty times the observed
quantity of less than 0.2 [micro]g/m\3\. (Document ID 0855, pp. 684-
85).
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Based on the foregoing, OSHA is proposing a number of revisions to
the beryllium standards for construction and shipyards. These revisions
apply to the following: Paragraph (b), definitions; paragraph (f),
methods of compliance; paragraph (g), respiratory protection; paragraph
(h), personal protective equipment (PPE); paragraph (i), hygiene areas
and practices; paragraph (j), housekeeping; paragraph (k), medical
surveillance; paragraph (m), communication of hazards; and paragraph
(n), recordkeeping. The remainder of this summary and explanation
provides detail on these proposed changes, including the agency's
reasoning for each.
Paragraph (b) Definitions
Paragraph (b) of the beryllium standards for both construction and
shipyards provides definitions of terms used in the beryllium
regulatory text. OSHA is proposing to modify several existing
definitions: CBD diagnostic center, chronic beryllium disease (CBD),
and confirmed positive; to add a definition of beryllium sensitization;
and to eliminate the definition of emergency. All proposed changes to
paragraph (b) would apply to both the construction and shipyards
standards.
OSHA is proposing to modify the definitions of CBD diagnostic
center, chronic beryllium disease (CBD), and confirmed positive and add
a definition of beryllium sensitization to align with changes the
agency has proposed to the beryllium standard for general industry.
OSHA proposed these modifications for the general industry standard in
December 2018 to clarify the meaning of the terms used in that standard
(83 FR at 63747). OSHA provided a sixty-day comment period for the
general industry proposal, which closed on Feb. 11, 2019. OSHA's
rationale for including these definitions applies equally in the
construction and shipyards contexts. Accordingly, OSHA will consider
the comments that were submitted in response to the proposed changes to
definitions in the general industry standard along with any comments
received during this rulemaking on the proposed definitions in
determining whether to finalize the proposed definitions in the
construction and shipyards standards. The comments to the general
industry proposal can be found in Docket OSHA-2018-0003 at http://regulations.gov.
Beryllium sensitization. OSHA is proposing to add a definition for
beryllium sensitization that encompasses the following concepts:
That beryllium sensitization is a response in the immune system of a
specific individual who has been exposed to beryllium; that there are
no associated physical or clinical symptoms and no illness or
disability with beryllium sensitization alone, but the response that
occurs through beryllium sensitization can enable the immune system to
recognize and react to beryllium; and finally that while not every
beryllium-sensitized person will develop CBD, beryllium sensitization
is essential for development of CBD. The agency is proposing to add
this definition in order to provide additional clarification of other
provisions in the standard, such as the definitions of chronic
beryllium disease (CBD) and confirmed positive and the provisions for
medical surveillance (paragraph (k)) and hazard communication
(paragraph (m)). This proposed revision is identical to the change
proposed in the December 2018 general industry proposal and serves the
same purpose (see 83 FR at 63747). The proposed addition of a
definition for beryllium sensitization would not change employer
obligations under paragraphs (k) and (m) and would not affect employee
protections.
As OSHA determined in the 2017 final rule, after an individual has
been sensitized, subsequent beryllium exposures via inhalation can
progress to serious lung disease through the formation of granulomas
and fibrosis (82 FR at 2491-98). Since the pathogenesis of CBD involves
a beryllium-specific, cell-mediated immune response, CBD cannot occur
in the absence of sensitization (NAS, 2008, Document ID 1355).
Therefore, the proposed definition explaining that beryllium
sensitization is essential for development of CBD is consistent with
the agency's findings in the final rule.
In response to the December 2018 general industry proposal, several
commenters expressed support for OSHA's inclusion of a definition of
beryllium sensitization in the beryllium general industry standard,
including National Jewish Health (NJH) (Document ID OSHA-2018-0003-
0022, p. 2), the United Steelworkers (USW) (Document ID OSHA-2018-0003-
0033, p. 1), Materion (Document ID OSHA-2018-0003-0038, p.8), the US
Department of Defense (DoD) (Document ID OSHA-2018-0003-0029, p.1), and
Edison Electric Institute (EEI) (Document ID OSHA-2018-0003-0031, p.
2). Two commenters agreed with OSHA's proposed definition with no
changes (Document ID OSHA-2018-0003-0033, p. 1; 0038, p. 2).
While OSHA received no objections to including a definition of
beryllium sensitization in the beryllium standard for general industry,
The National Supplemental Screening Program (NSSP), a U.S. Department
of Energy Former Worker Medical Screening Program and NJH recommended
alternative text for the definitions (Document ID OSHA-2018-0003-0027
p. 1; 0022, p. 2; see also Document ID 0364, pp. 1, 44). Other
commenters had concerns about specific statements in the definition
(Document ID OSHA-2018-0003-0033, p. 1; 0027, p.1). As stated above,
OSHA will consider these comments along with any comments submitted
during this rulemaking in determining whether to finalize the proposed
definition in the construction and shipyards standards.
CBD diagnostic center. OSHA is proposing to amend the definition of
CBD diagnostic center to clarify certain requirements used to qualify
an existing medical facility as a CBD diagnostic center. The proposed
clarification would not change the employer requirement to offer a
follow-up examination at a CBD diagnostic center to employees meeting
the criteria set forth in paragraph (k)(2)(ii). OSHA is proposing CBD
diagnostic center to mean a medical diagnostic center that has a
pulmonologist or pulmonary specialist on staff and on-site facilities
to perform a clinical evaluation for the presence of CBD. The proposed
definition also states that a CBD diagnostic center must have the
capacity to perform pulmonary function testing (as outlined by the
American Thoracic Society criteria), bronchoalveolar lavage (BAL), and
transbronchial biopsy. In the proposed definition, the CBD diagnostic
center must also have the capacity to transfer BAL samples to a
laboratory for appropriate diagnostic testing within 24 hours and the
pulmonologist or pulmonary specialist must be able to interpret the
biopsy pathology and the BAL diagnostic test results.
As discussed in the December 2018 general industry proposal (83 FR
at 63747), the proposed definition includes the following changes to
the current definition of CBD diagnostic center. First, the agency is
proposing changing the language to reflect the agency's intent that
pulmonologists or pulmonary specialists be on staff at a CBD diagnostic
center. Whereas the current definition specifies only that a CBD
diagnostic center must have a pulmonary specialist, OSHA is proposing
to add the term ``pulmonologist'' to clarify that either type of
specialist is qualified to perform a clinical evaluation for the
presence of CBD. Additionally, the current definition states that a CBD
diagnostic center has an on-site specialist. OSHA is proposing to
change the language to state that a CBD diagnostic center must have a
pulmonologist or pulmonary specialist on staff, rather than on site, to
clarify that such specialists need not necessarily be on site at all
times.
An additional proposed change to CBD diagnostic center would
clarify that the diagnostic center must have the capacity to do any of
the listed tests that the examining physician may deem necessary. As
currently written, the definition could be misinterpreted to mean that
any clinical evaluation for CBD performed at a CBD diagnostic center
must include pulmonary testing, bronchoalveolar lavage, and
transbronchial biopsy. The agency's intent is not to dictate what tests
a specialist should include, but to ensure that any facility has the
capacity to perform any of these tests, which are commonly needed to
diagnose CBD. Therefore, the agency is proposing to modify part of the
current definition from ``[t]his evaluation must include pulmonary
function testing . . .'' to ``[t]he CBD diagnostic center must have the
capacity to perform pulmonary function testing. . . .'' These changes
to the definition of CBD diagnostic center are clarifying in nature,
and OSHA expects they would maintain safety and health protections for
workers.
OSHA received comments on this definition during the December 2018
general industry rulemaking. Materion submitted comments supporting
OSHA's intent to specify the required capacities of a CBD diagnostic
center, rather than the contents of a CBD evaluation, in the definition
of CBD diagnostic center (Document ID OSHA-2018-0003-0038, pp. 16-17).
NJH expressed concern that this change to the definition may indicate
that the clinical evaluation for CBD need not include certain aspects
of a CBD evaluation, which NJH, the Association of Occupational and
Environmental Clinics (AOEC), and the ATS recommend should typically
include full pulmonary function testing (lung volumes, spirometry, and
diffusion capacity for carbon monoxide), chest imaging, and
cardiopulmonary exercise testing, and may also include bronchoscopy in
some cases (Document IDs OSHA-2018-0003-0022, p. 3; 0028, p. 2; 0021,
pp. 1-2). OSHA will consider these comments, along with any comments
submitted during this rulemaking, in developing the final beryllium
standards for construction and shipyards.
Chronic beryllium disease (CBD). For the purposes of this standard,
the agency is proposing chronic beryllium
disease to mean a chronic granulomatous lung disease caused by
inhalation of airborne beryllium by an individual who is beryllium-
sensitized. The proposed definition includes several changes to the
current definition of chronic beryllium disease.
First, OSHA proposes to add the term ``granulomatous'' to the
phrase ``lung disease'' to better distinguish CBD from other
occupationally associated chronic pulmonary diseases of inflammatory
origin. A granulomatous lung formation is a focal collection of
inflammatory cells (e.g., T-cells) creating a nodule in the lung
(Ohshimo et al., 2017, Document ID OSHA-H005C-2006-0870-2171, p. 2).
The formation of the type of lung granuloma specific to a beryllium
immune response can only occur in those with CBD (82 FR at 2492-2502).
An additional proposed clarification to the definition of chronic
beryllium disease would change ``associated with airborne exposure to
beryllium'' to ``caused by inhalation of airborne beryllium.'' This
proposed change would be more consistent with the findings in the 2017
final rule that indicate beryllium is the causative agent for CBD and
that CBD only occurs after inhalation of beryllium (82 FR at 2513). A
further proposed change includes the addition of ``by an individual who
is beryllium sensitized.'' This proposed change would clarify OSHA's
finding that beryllium sensitization is essential in the development of
CBD (82 FR at 2492).
In response to the December 2018 general industry proposal, NJH,
USW, and Materion agreed with OSHA that the 2017 final standard's
definition of chronic beryllium disease should be clarified (Document
ID OSHA-2018-0003-0022, p. 2; 0033, p. 5; 0038, p. 17). However, some
commenters expressed concern that the proposed definition of chronic
beryllium disease does not provide sufficient information to guide
diagnosis of CBD, and specifically that OSHA's emphasis on the role of
sensitization in the development of CBD may confuse diagnostic efforts
(Document ID OSHA-2018-0003-0021, pp. 4-5; 0023, p. 2). Other
commenters suggested alternative language for the definition of CBD
(OSHA-2018-0003-0027, pp. 3-4; 0022, p. 2). OSHA will consider these
comments, along with any comments submitted during this rulemaking, in
developing the final beryllium standards for construction and
shipyards.
Confirmed positive. OSHA is proposing to modify the definition of
confirmed positive to mean that an employee has had two abnormal BeLPT
test results, an abnormal and a borderline test result, or three
borderline test results obtained within the 30 day follow-up test
period required after a first abnormal or borderline BeLPT test result.
It also means the result of a more reliable and accurate test
indicating a person has been identified as having beryllium
sensitization. The proposed definition includes several changes to the
current definition of confirmed positive.
First, OSHA is proposing to remove the phrase ``beryllium
sensitization'' from the first part of the definition, which currently
states that the person tested has beryllium sensitization, as indicated
by two abnormal BeLPT test results, an abnormal and a borderline test
result, or three borderline test results. The proposed change would
emphasize OSHA's intent that confirmed positive should act as a trigger
for continued medical monitoring and surveillance for the purposes of
this standard and is not intended as a scientific or general-purpose
definition of beryllium sensitization.
The term confirmed positive originates from a study that described
the findings from a large-scale interlaboratory testing scheme (Stange
et al., 2004; Document ID 1402). Stange et al. demonstrated that when
samples with abnormal findings from one lab were retested in a second
lab, the reliability of the results increased. As OSHA discussed in the
preamble to the 2017 final rule, individuals who are confirmed positive
through two abnormal BeLPT test results, an abnormal and a borderline,
or three borderlines may be at risk for developing CBD (82 FR at 2646).
OSHA intends the term confirmed positive in the beryllium standards to
identify those individuals who may be at risk for developing CBD and
should therefore be offered continued medical surveillance, an
evaluation at a CBD diagnostic center, and medical removal protection,
regardless of whether they might otherwise be identified as
``sensitized.''
The next proposed change to confirmed positive would include
clarification that the findings of two abnormal, one abnormal and one
borderline, or three borderline results need to occur within the 30-day
follow-up test period required after a first abnormal or borderline
BeLPT test result. After publication of the 2017 final rule,
stakeholders suggested to OSHA that the definition of confirmed
positive could be interpreted as meaning that findings of two abnormal,
one abnormal and one borderline, or three borderline results over any
time period, even as long as 10 years, would result in the employee
being confirmed positive. This was not the agency's intent. Such a
timeframe may lead to false positives and thereby not enhance employee
protections. Therefore, OSHA is proposing a clarification that any
combination of test results specified in the definition must result
from the tests conducted in one 30-day cycle of testing, including the
initial test and the retesting offered when an initial result is a
single abnormal result or borderline, in order to be considered
confirmed positive.
As outlined in paragraph (k)(3)(ii)(E), an employee must be offered
a follow-up BeLPT within 30 days if the initial test result is anything
other than normal, unless the employee has been confirmed positive
(e.g., if the initial BeLPT was performed on a split sample and showed
two abnormal results). Thus, for example, if an employee's initial test
result is abnormal, and the result of the follow-up testing offered to
confirm the initial test result is abnormal or borderline, the employee
would be confirmed positive. But if the result of the follow-up testing
offered to confirm the initial abnormal test result is normal, the
employee would not be confirmed positive. The initial abnormal result
and a single abnormal or borderline result obtained from the next
required BeLPT for that employee (typically, two years later) would not
identify that employee as confirmed positive under the proposed
definition of that term. OSHA requests comments on the appropriateness
of this proposed time period for obtaining BeLPT test samples that
could be used to determine whether an employee is confirmed positive.
Some commenters on the December 2018 general industry NPRM agreed
with OSHA's proposed definition of confirmed positive (OSHA-2018-0003-
0033, p. 5; 0038, p. 17-19), while other commenters expressed concerns
over several aspects of the definition. OSHA received comments on the
removal of the term ``beryllium sensitized'' from the definition
(Document ID OSHA-2018-000-0022; p. 4; 0021, p. 3; 0028, p. 2; 0027, p.
3). OSHA also received several comments regarding OSHA's proposal to
require that the test results specified in the agency's definition of
confirmed positive must occur within a single testing cycle. These
comments focused on several aspects of the proposed timing. First, many
of the comments focused on the logistics of OSHA's proposed change
(Document ID 0038, p. 17; 0022, p. 4; 0021, p. 4; 0024, p.1; 0033, p.
5; 0027, p. 3). Secondly, stakeholders commented on the
appropriateness of limiting the use of the BeLPT from one test cycle in
determining if a worker is confirmed positive (Document ID OSHA 2018-
0003-0022, p. 4; 0021, p. 4; 0023, p. 2; 0027, pp 2-3; and 0024, p. 1).
OSHA will consider these comments, along with any comments submitted
during this rulemaking, in developing the final beryllium standards for
construction and shipyards.
Finally, OSHA is proposing to remove the term emergency from
paragraph (b) of the standards for construction and shipyards. As
discussed later in this section, unlike general industry, OSHA has
preliminarily determined that the construction and shipyards
industries--where beryllium occurs primarily in trace quantities and
exposure occurs during abrasive blasting and welding operations--do not
have emergencies in which exposures to beryllium will differ from the
normal conditions of work. Therefore, OSHA has preliminarily determined
that no requirements should be triggered for emergencies in
construction and shipyards. Accordingly, OSHA is proposing to remove
references to emergencies in provisions such as medical surveillance
and hazard communication (see the summary and explanation of paragraphs
(k) and (m)). Because OSHA is proposing to remove the term emergency
from the standard, the definition is no longer needed. OSHA welcomes
comment on the proposed removal of the definition of emergency from the
beryllium standards for construction and shipyards.
Paragraph (f) Methods of compliance
Paragraph (f) of the beryllium standards for construction and
shipyards, like the corresponding general industry provision (29 CFR
1910.1024(f)), requires that employers implement methods for reducing
employee exposure to beryllium through a detailed 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 plans would ``be instrumental
in ensuring that employers comprehensively and consistently protect
their employees'' (82 FR at 2668). OSHA also concluded that requiring
reliance on engineering and work practice controls is consistent with
good industrial hygiene practice and with OSHA's traditional approach
for health standards (82 FR at 2672).
While extending these provisions to the construction and shipyards
industry in the 2017 final rule, OSHA acknowledged that exposures to
beryllium in these industries are limited to only a few operations;
abrasive blasting in construction and shipyards and some welding
operations in shipyards. With respect to abrasive blasting, while the
extremely high airborne exposures during the blasting operation can
expose workers to beryllium in excess of the PEL, the blasting
materials contain only trace amounts of beryllium (materials such as
coal slag normally contain approximately 11[micro]g/g or 0.0001%)
(Document ID 2042, Chapter IV, Technological Feasibility, Table IV.69).
Moreover, OSHA had evidence of beryllium exposure during only limited
welding operations in shipyards (only 4 of 127 sample results showed
detectable levels of airborne beryllium) (Document ID 2042, Chapter IV,
Technological Feasibility, p. IV-580). Nonetheless, OSHA applied the
same requirements to these industries as to general industry, where the
operations with beryllium exposure are significantly more varied and
employees are exposed to materials with significantly higher beryllium
content.
OSHA is proposing to revise the requirements in paragraph (f) in
light of the very narrow set of affected operations and the limited
extent of beryllium exposure in the construction and shipyards
industries. OSHA believes that some provisions in paragraph (f)--
although appropriate in the general industry context--may be
unnecessary to protect employees in the construction and shipyards
industries. Likewise, as discussed in the introduction of the summary
and explanation section, OSHA has preliminarily determined that
provisions relating solely to dermal contact with beryllium should not
apply in the construction and shipyards industries, where exposures
involve materials containing or producing only trace amounts of
beryllium (see the summary and explanation for paragraph (h), Personal
Protective Clothing and Equipment). Accordingly, OSHA is proposing
several revisions to both paragraph (f)(1) (Written exposure control
plan) and (f)(2) (Engineering and work practice controls) in the
construction and shipyards standards.
Paragraph (f)(1) Written Exposure Control Plan
Paragraph (f)(1) in both the construction and shipyards standards
requires employers to establish, implement, and maintain a written
exposure control plan containing the following: (1) A list of
operations and job titles reasonably expected to involve airborne
exposure to or dermal contact with beryllium (paragraph (f)(1)(i)(A));
(2) A list of operations and job titles reasonably expected to involve
airborne exposure at or above the action level (paragraph
(f)(1)(i)(B)); (3) A list of operations and job titles reasonably
expected to involve airborne exposure above the TWA PEL or STEL
(paragraph (f)(1)(i)(C)); (4) Procedures for minimizing cross-
contamination (paragraph (f)(1)(i)(D)); (5) Procedures for minimizing
the migration of beryllium within or to locations outside the workplace
(paragraph (f)(1)(i)(E)); (6) A list of engineering controls, work
practices, and respiratory protection required by paragraph (f)(2) of
the standard (paragraph (f)(1)(i)(F)); (7) A list of personal
protective clothing and equipment required by paragraph (h) of the
standard (paragraph (f)(1)(i)(G)); and (8) Procedures for removing,
laundering, storing, cleaning, repairing, and disposing of beryllium-
contaminated personal protective clothing and equipment, including
respirators (paragraph (f)(1)(i)(H)). Written exposure control plans in
construction additionally must contain procedures used to restrict
access to work areas when airborne exposures are, or can reasonably be
expected to be, above the TWA PEL or STEL, to minimize the number of
employees exposed to airborne beryllium and their level of exposure,
including exposures generated by other employers or sole proprietors
(paragraph (f)(1)(i)(I)).
OSHA is proposing several revisions to paragraph (f)(1). First,
OSHA proposes to revise paragraph (f)(1)(i)(A) by removing the words
``airborne'' and ``or dermal contact with'' as qualifiers for exposure
to beryllium. As revised, the provision would require simply a list of
operations and job titles reasonably expected to involve exposure to
beryllium, which would include abrasive blasting and welding operations
where exposures at or above the action level are reasonably foreseeable
based on objective data, in accordance with paragraph (a)(3), Scope. At
the same time, OSHA is proposing to revoke paragraphs (f)(1)(i)(B) and
(C), which require additional lists of operations and job titles
involving exposure above the action level and above the TWA PEL or
STEL, respectively. Given the small number of operations with beryllium
exposure in these industries, the operations and job titles in these
categories would be largely the same as those for which exposure to
beryllium is reasonably expected. OSHA therefore believes that it is
sufficient that an
employer identify those operations and job titles that result in
exposure to beryllium in any form and that fall within the scope of the
standards, and that any additional lists would be unnecessary and
redundant.
OSHA is also proposing to revoke the requirements that the written
exposure control plan must include procedures for minimizing cross-
contamination (paragraph (f)(1)(i)(D)) and procedures for minimizing
the migration of beryllium within or to locations outside the workplace
(paragraph (f)(1)(i)(E)). The purpose of these requirements was to
ensure that workers not involved in beryllium-related operations would
not be unintentionally exposed to beryllium in excess of the PELs.
Instead, for the construction standard, OSHA is retaining the
requirement for the written plan to include procedures to restrict
access to work areas where exposures to beryllium could reasonably be
expected to exceed the TWA PEL or STEL (renumbered as paragraph
(f)(1)(i)(D)), and the requirement that these procedures are to be
implemented by a competent person (paragraph (e)(2)). For the shipyard
standard, OSHA is retaining requirements for regulated areas (paragraph
(e)), which require that employers designate areas where exposures to
beryllium could exceed the PELs and limit access to authorized
employees. In addition, OSHA is also proposing to add a new paragraph
in both the construction ((f)(1)(i)(E)) and shipyards ((f)(1)(i)(D))
standards to require that the written exposure control plan include
procedures used to ensure the integrity of each containment (such as
tarps or structures used to keep sandblasting debris within an enclosed
area) used to minimize exposures to employees outside the containment.
The purpose of this proposed revision is to ensure that any containment
used is not compromised such that employees outside of the containment
are potentially exposed to beryllium at levels above the TWA PEL or
STEL. OSHA believes that these requirements will adequately ensure that
workers not directly involved in beryllium-related work are not exposed
to beryllium in excess of the TWA PEL or STEL.
OSHA is further proposing to remove the requirement for written
plans to contain procedures for removing, laundering, storing,
cleaning, repairing, and disposing of beryllium-contaminated personal
protective clothing and equipment, including respirators (paragraph
(f)(1)(i)(H)). As discussed below, OSHA is proposing to remove
requirements in paragraph (h)(2) of the construction and shipyard
standards that relate to removing, storing, maintaining, cleaning, and
disposing of PPE (see the summary and explanation for paragraph (h),
Personal Protective Clothing and Equipment); therefore, OSHA believes
that it is not necessary to include such procedures in the written
plan.
Paragraph (f) retains the requirements that the written exposure
control plan include a list of engineering controls, work practices,
and respiratory protection required by paragraph (f)(2) and a list of
personal protective clothing and equipment required by paragraph (h),
renumbered as paragraphs (f)(1)(i)(B) and (C), respectively. Likewise,
the standards retain paragraphs (f)(1)(ii) and (iii), which provide the
requirements for maintaining, reviewing, and evaluating the written
exposure control plan and providing access to the plan to each employee
who can reasonably be exposed to airborne beryllium. OSHA is proposing
only one change in these requirements, to revise paragraph
(f)(1)(ii)(B) to refer simply to ``exposure'' rather than ``airborne
exposure to or dermal contact with.'' This change is consistent with
other paragraphs where OSHA is proposing to simplify the language in a
similar manner (e.g., paragraph (f)(1)(i)(A), Written exposure control
plan; paragraphs (k)(3)(ii)(A) and (k)(4)(i), Medical surveillance).
Paragraph (f)(2) Engineering and Work Practice Controls
Paragraph (f)(2) of the construction and shipyards standards lists
the requirements for the use of engineering and work practice controls
to reduce and maintain employee airborne exposure below the TWA PEL and
STEL. Paragraph (f)(2)(i) requires that, where exposures are, or can
reasonably be expected to be, at or above the action level, the
employer must ensure that at least one of the following is in place to
reduce airborne exposure: (1) Material and/or process substitution
(paragraph (f)(2)(i)(A)); (2) isolation, such as ventilated partial or
full enclosures (paragraph (f)(2)(i)(B)); (3) local exhaust
ventilation, such as at the points of operation, material handling, and
transfer (paragraph (f)(2)(i)(C)); or (4) process control, such as wet
methods and automation (paragraph (f)(2)(i)(D)). Paragraph (f)(2)(ii)
exempts an employer from this requirement to the extent that the
employer can establish that the controls are infeasible or that
airborne exposure is below the action level, using no fewer than two
representative personal breathing zone samples taken at least 7 days
apart, for each affected operation.
If, after implementing the controls required by paragraph
(f)(2)(i), airborne exposures still exceed the TWA PEL or STEL,
paragraph (f)(2)(iii) requires the employer to implement additional or
enhanced engineering and work practice controls to reduce exposure
below these limits. Finally, if the employer demonstrates that it is
not feasible to reduce exposures below the TWA PEL and STEL through
engineering and work practice controls, paragraph (f)(2)(iv) requires
the employer to implement controls to reduce exposure to the extent
feasible and supplement the controls through the use of respirators in
accordance with paragraph (g) of the standard.
In this rulemaking, OSHA is proposing to remove the requirement to
implement the controls currently listed in paragraph (f)(2)(i) where
exposures are or can reasonably be expected to meet or exceed the
action level. This requirement in the construction and shipyard
standards was derived from the general industry standard, which
requires that employers establish beryllium work areas where operations
could release airborne beryllium and that employers implement at least
one type of engineering control where exposures could reasonably be
expected to exceed the action level within the work area. In
reconsidering this requirement, OSHA believes that requiring
implementation of engineering controls where exposures exceed the
action level may not be reasonably appropriate for construction and
shipyard operations. In the 2017 final rule, OSHA acknowledged that
this approach to engineering and work practice controls was ``not
typical for OSHA standards'' in that OSHA health standards usually
require such controls to be implemented where exposures exceed the PEL
(82 FR at 2673). Furthermore, OSHA's analysis of the technological
feasibility of the PELs concluded that workers performing open-air
blasting with mineral grit would ``routinely'' experience exposures in
excess of the PEL even after implementing engineering controls, thus
triggering requirements for respirator use (82 FR at 2584). Therefore,
OSHA is proposing to rescind the requirement to trigger use of
engineering and work practice controls by the action level.
Paragraph (f)(2) continues to require employers to implement
engineering or work practice controls if needed to reduce airborne
exposures to or below the TWA PEL of 0.2 [mu]g/m\3\ and STEL of 2.0
[mu]g/m\3\ unless the employer can demonstrate that such controls are
not feasible. Where it is not feasible to
implement engineering and work practice controls to comply with the
exposure limits, paragraph (f)(2) requires the employer to implement
and maintain engineering and work practice controls to reduce airborne
exposure to the lowest levels feasible and supplement these controls by
using respiratory protection in accordance with paragraph (g) of the
proposed standard. These are the same requirements currently found in
paragraphs (f)(2)(iii) and (iv) of the standards. Accordingly, OSHA is
proposing to condense the portions of paragraphs (f)(2)(i)-(iv) that it
proposes to retain into a single paragraph (f)(2), which would not have
any subparagraphs or items.
The requirement to implement engineering and work practice controls
is consistent with several other standards in both construction and
shipyards that require the use of engineering controls to minimize
toxic dust. For example, the ventilation standard in construction (29
CFR 1926.57(f)(2)(ii)) requires ``[t]he concentration of respirable
dust or fume in the breathing zone of the abrasive-blasting operator or
any other worker'' to remain ``below the levels specified in Sec.
1926.55.'' Similarly, the use of ventilation in shipyards is required
under other OSHA standards such as the Ventilation standard for
abrasive blasting (29 CFR 1910.94(a)), which also applies to abrasive
blasting in shipyards.
The reliance of proposed paragraph (f)(2) on the hierarchy of
controls likewise reflects OSHA's approach in other standards covering
welding in shipyards. For example, 29 CFR 1915.51 requires that
ventilation be used to keep welding fumes and smoke within safe limits,
and 29 CFR 1915.51(d)(2)(iv) specifically covers welding involving
beryllium, and states that ``[b]ecause of its high toxicity, work
involving beryllium shall be done with both local exhaust ventilation
and air line respirators.''
In response to the 2017 proposal to rescind the ancillary
provisions of the construction and shipyard standards, OSHA received
comments from AFL-CIO on the importance of maintaining the hierarchy of
controls and that primary reliance on PPE absent a specific requirement
would not address bystander exposure to beryllium (Document ID 2140, p.
8). AFL-CIO also pointed out that the National Institute for
Occupational Safety and Health (NIOSH) stresses the importance of
reducing exposures to carcinogens first through engineering controls
(including elimination and substitution) and work practices prior to
the use of respirators in a recently updated chemical carcinogen policy
(Document ID 2140, p. 8). OSHA agrees with AFL-CIO that it is important
that the hierarchy of controls be followed to ensure that exposures are
minimized, not only to abrasive blasting operators and welders, but
also to bystanders or other workers nearby. Therefore, to ensure that
employers apply the hierarchy principle to reduce exposures to or below
the PELs for beryllium, and to ensure that all potentially affected
workers are appropriately so protected, OSHA is proposing to retain a
specific requirement for construction and shipyard employers to
implement engineering and work practice controls to achieve compliance
with the PEL and STEL, as OSHA has required in all of its other health
standards.
OSHA notes this proposal retains, without revision, paragraph
(f)(3) of both the construction and shipyards standards, which
prohibits employers from rotating employees to different jobs in order
to achieve compliance with the PELs. OSHA continues to believe, as it
found in the 2017 final rule, that it is important to prohibit this
practice to ensure that employers do not expose more people than
necessary to the hazards of beryllium solely to achieve the PEL instead
of using engineering controls or work practices to reduce exposures (82
FR at 2675).
Paragraph (g) Respiratory Protection
Paragraph (g) in the beryllium standards for both construction and
shipyards, like the corresponding general industry standard, requires
the provision and use of respiratory protection from exposures to
beryllium under specific conditions. 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 a powered air-
purifying respirator (PAPR) when an employee entitled to a respirator
under the beryllium standard requests one, as long as the PAPR provides
adequate protection.
Paragraph (g)(1) requires employers to provide respiratory
protection at no cost to employees and ensure that employees utilize
such protection in five circumstances: (i) 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)); (ii) 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)); (iii) 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)); (iv) during emergencies (paragraph (g)(1)(iv)); and (v)
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)).
In this rulemaking, OSHA is proposing to remove paragraph
(g)(1)(iv), which requires the use of respiratory protection during
emergencies.\4\ OSHA has preliminarily determined that this amendment
is justified because other respiratory protection requirements make it
likely that construction and shipyard workers will be using respiratory
protection during normal tasks or activities (i.e., prior to any
emergency), and thus provide adequate protections in the absence of the
paragraph addressing respiratory protection in emergency situations.
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\4\ As a result, OSHA is also proposing to renumber paragraph
(g)(1)(v) as (g)(1)(iv) in both standards.
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An emergency is currently defined in paragraph (b) of both the
construction and shipyards standards as ``any uncontrolled release of
airborne beryllium.'' As explained above in the summary and explanation
of paragraph (b), OSHA is proposing to remove this definition entirely
from the construction and shipyards standards because the agency
expects that, in these industries, an uncontrolled release of airborne
beryllium (such as a release resulting from a failure of the blasting
control equipment or a spill of the abrasive blasting media) would
occur only during the performance of routine tasks already associated
with the airborne release of beryllium--i.e., during abrasive blasting
or welding processes. During these processes, OSHA anticipates that
employees working in the immediate vicinity of an uncontrolled release
of airborne beryllium would already be using respiratory protection
required by paragraph (g) of the standards (because, for example,
controls are not sufficient to reduce airborne exposure to or below the
TWA PEL or STEL (paragraph (g)(1)(iii))).
Although OSHA is not proposing to remove any of the other
respiratory
protection requirements in paragraph (g), the agency recognizes that
other provisions in the beryllium standards and in other OSHA standards
may address respiratory protection in the construction and shipyards
sectors. For example, current paragraph (j)(2)(iv) in the beryllium
standards for construction and shipyards, renumbered as paragraph
(j)(1)(iii) in this proposal, requires respirators where employees use
dry sweeping, brushing, or compressed air to clean. Other potentially
applicable standards in construction include the Ventilation standard
(29 CFR 1926.57(f)(5)), the Personal Protective and Life Saving
Equipment standard (29 CFR 1926.95), and the general Respiratory
Protection standards (29 CFR 1910.134, 1926.103). In shipyards, other
standards addressing respiratory protection include the Mechanical
Paint Removers standard (29 CFR 1915.34(c)(3)), the Confined and
Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment
standards (29 CFR 1915.12(c)(4)(ii)), the Welding, Cutting, and Heating
standards for shipyards (29 CFR 1915.51(d)(2)(iv)), as well as the
general Respiratory Protection standards (29 CFR 1910.134, 1915.154).
In response to the 2017 NPRM, some commenters expressed concern
about the degree of protection afforded by other OSHA standards
(Document ID 2135, p. 7; 2118, p. 5). For example, NABTU ``strongly
disagree[d]'' with the notion that baseline usage of respirators and
PPE ``is far higher in construction and shipyards'' than it is in other
sectors (Document ID 2135, p. 7). Likewise, BHSC questioned the degree
of protection afforded by the other OSHA standards to workers near
abrasive blasting operations, stating that the estimated 100 percent
PPE use for those workers ``does not have supporting evidence of
consistent and standard use across pot tenders and cleanup activities
supporting abrasive blasting'' (Document ID 2118, p. 5).
OSHA requests comments both on its proposal to delete paragraph
(g)(1)(iv) and on whether it is necessary to maintain the other general
provisions for respiratory protections in the beryllium standards in
light of protections afforded by other OSHA standards.
Paragraph (h) Personal Protective Equipment
Paragraph (h) of the beryllium standards for the construction and
shipyards industries (29 CFR 1926.1124(h) and 1915.1024(h),
respectively) requires employers to provide and ensure the use of
personal protective clothing and equipment (PPE) where employees have
actual or reasonably expected dermal exposure or high levels of
airborne exposure 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).
Specifically, paragraph (h)(1) requires employers to provide and
ensure that each employee uses appropriate PPE in accordance with the
written exposure control plan and OSHA's general PPE standards for the
construction and shipyards industries (29 CFR part 1926, subpart E, and
part 1915, subpart I), in two situations: (1) Where airborne exposure
exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL
(paragraph (h)(1)(i)), and (2) where there is a reasonable expectation
of dermal contact with beryllium (paragraph (h)(1)(ii)).
Paragraphs (h)(2) and (3) of the construction and shipyards
beryllium standards provide requirements for removal, storage,
cleaning, and replacement of the PPE required by paragraph (h)(1).
Paragraph (h)(2)(i) requires employers to ensure that each employee
removes all beryllium-contaminated PPE at the end of the work shift, at
the completion of tasks involving beryllium, or when PPE becomes
visibly contaminated with beryllium, whichever comes first. Paragraph
(h)(2)(ii) requires employees to remove PPE consistent with the written
exposure control plan required by paragraph (f)(1), and paragraph
(h)(2)(iii) requires employers to ensure both that protective clothing
is kept separate from employees' street clothing, and that storage
facilities prevent cross-contamination as specified in the written
exposure control plan. Paragraph (h)(2)(iv) requires employers to
ensure that beryllium-contaminated PPE is only removed from the
workplace by employees who are authorized to do so for the purpose of
laundering, cleaning, maintaining, or disposing of such PPE, and
paragraph (h)(2)(v) requires that PPE removed from the workplace for
laundering, cleaning, maintenance, or disposal be placed in closed,
impermeable, and appropriately labeled bags or containers.
Paragraph (h)(3) of the standards establishes several requirements
with respect to cleaning and replacement of PPE. Paragraph (h)(3)(i)
requires employers to ensure that all reusable PPE is appropriately
cleaned, laundered, repaired, and replaced as needed to maintain its
effectiveness, while paragraph (h)(3)(ii) mandates that employers
ensure that beryllium is not removed from PPE by blowing, shaking or
any other means that disperses beryllium into the air. Paragraph
(h)(3)(iii) requires employers to inform in writing the persons or the
business entities who launder, clean, or repair the PPE used to comply
with paragraph (h) of the potentially harmful effects of airborne
exposure to and dermal contact with beryllium, and that the PPE must be
must be handled in accordance with the beryllium standard.
In the 2017 NPRM, OSHA identified several other 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. Additionally, subsequent to the 2017 final
rule, OSHA clarified in the general industry DFR that the agency only
intended to regulate contact with trace beryllium to the extent that it
caused airborne exposures of concern. OSHA never intended for
provisions aimed at protecting workers from the effects of dermal
contact to apply in the case of materials containing only trace amounts
of beryllium absent significant airborne exposures (83 FR at 19938).
In response to the 2017 proposal, commenters criticized OSHA's
estimates regarding the existing use of PPE in the affected
construction and shipyard operations. NABTU ``strongly disagree[d]''
with OSHA's statement in the 2017 NPRM (82 FR at 29216) that
``[b]aseline usage of respirator and PPE is far higher in construction
and shipyards'' than in general industry (Document ID 2135, p. 7).
Members of Congress commented that OSHA's preliminary estimate that all
affected employees already use full PPE 100 percent of the time (see 82
FR at 29197) did ``not appear to be supported by testimony from the
hearing, which 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). BHSC also
expressed concern about the degree of protection afforded by the other
OSHA standards to workers near abrasive blasting operations, stating
that the estimated 100 percent PPE use for those workers ``does not
have supporting evidence of consistent and standard use across pot
tenders and cleanup activities supporting abrasive blasting'' (Document
ID 2118, p. 5). Commenters
also noted that generalized PPE requirements do not always signal to
employers and employees that PPE is needed to protect against beryllium
(see, e.g., Document ID 2124, pp. 10-11; 2129, p. 7; 2129, pp. 9-10;
2135, pp. 5-6).
In light of these comments and its review of existing standards,
OSHA determined in the rule finalizing the 2017 proposal (the final
rule published September 30, 2019) that existing OSHA standards
applicable to construction and shipyards do not provide complete
overlap with the PPE provisions of the beryllium standards for
construction and shipyards. Consistent with OSHA's usual approach to
regulating employee exposure to other harmful substances (see, e.g., 52
FR 46168, 46271-72 (Dec. 4, 1987) (discussing the PPE provisions in the
formaldehyde standard)), OSHA expects a specific PPE requirement in the
beryllium standards will provide a valuable supplement to the
generally-applicable PPE standards by clearly explaining when PPE is
necessary to protect employees from beryllium exposure. OSHA believes
it is necessary to retain the provisions that are aimed at protecting
employees who are exposed at airborne levels of concern from inhalation
of re-entrained beryllium-containing dust, including the requirement to
provide and use appropriate PPE when airborne exposure exceeds, or can
be reasonably expected to exceed, the TWA PEL or STEL, as well as some
requirements pertaining to removal, storage, cleaning, and replacement
of PPE. As NABTU commented in response to the 2017 proposal, PPE
requirements are necessary because they address the risk of exposure
during the PPE removal process and the risk of additional inhalation
exposure from accumulation on clothing, shoes, and equipment (Document
ID 2129, p. 7 (citing 82 FR at 2678)).
At the same time, in light of the clarifications in the DFR and
other comments on the 2017 proposal, OSHA has preliminarily determined
that some revisions to paragraph (h) in the beryllium standards for the
construction and shipyards industries are warranted. Accordingly, OSHA
is proposing a number of changes to paragraph (h) of the construction
and shipyards standards.
First, OSHA is proposing to remove the requirement to provide and
ensure the use of PPE when there is reasonably expected dermal contact
with beryllium (paragraph (h)(1)(ii)). OSHA clarified in the 2018 DFR
for general industry that it did not intend to require employers who
only work with materials containing trace amounts of beryllium to
protect employees or other individuals against dermal contact with
beryllium absent significant airborne exposures. As discussed above, in
the construction and shipyards sectors, the operations that cause
airborne exposure to beryllium that can exceed the TWA PEL or STEL are
either blasting operations that involve materials or generate
particulate matter containing less than 0.1 percent beryllium by weight
or are welding operations in shipyards where there is minimal or no
skin contamination. Accordingly, OSHA is proposing to remove the
requirement to provide and ensure the use of PPE when there is
reasonably expected dermal contact with beryllium because it is not
aware of any operations in the construction or shipyard sectors in
which dermal contact with beryllium would occur at levels above trace
amounts, making such a provision unnecessary.\5\
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\5\ As a result of the proposed elimination of paragraph
(h)(1)(ii), OSHA is also proposing to collapse paragraph (h)(1)(i)
into paragraph (h)(1), which would have no subparagraphs or items.
Where airborne exposure exceeds, or can reasonably be expected to
exceed, the TWA PEL or STEL, proposed paragraph (h)(1) would require
employers to provide at no cost, and ensure that each employee uses,
appropriate personal protective clothing and equipment in accordance
with the written exposure control plan required under paragraph
(f)(1) of this standard and OSHA's Personal Protective and Life
Saving Equipment standards for construction (29 CFR part 1926,
subpart E).
---------------------------------------------------------------------------
OSHA proposes to modify the PPE removal and storage provisions of
paragraph (h)(2). OSHA is proposing to modify paragraph (h)(2)(i) by
removing the requirement that PPE be removed when it becomes visibly
contaminated with beryllium. OSHA is also proposing to revise (h)(2)(i)
to remove the qualifier of ``beryllium-contaminated'' and add
``required by this standard'' so that the provision would apply to all
PPE required by the beryllium construction and shipyard standards. The
2018 DFR modified the general industry beryllium standard to define
contaminated with beryllium and beryllium-contaminated as
``contaminated with dust, fumes, mists, or solutions containing
beryllium in concentrations greater than or equal to 0.1 percent by
weight'' (83 FR at 19939). As explained above, OSHA believes there are
no operations covered by the construction or shipyard beryllium
standards that would create such a beryllium-contaminated surface. In
fact, the vast majority of the operations (abrasive blasting) involve
beryllium in concentrations of less than 0.1 percent by weight. In
blasting operations, the requirement to remove PPE visibly contaminated
with beryllium would thus rarely, if ever, be triggered. Likewise,
there would be no beryllium-contaminated PPE at any of these covered
worksites. OSHA has preliminarily determined, however, that if workers
are using PPE because they are working with trace amounts of beryllium
but nevertheless have the potential for airborne exposure above the TWA
PEL or STEL, they are likely in highly dusty environments and
accumulating large amounts of dust on their PPE. OSHA therefore
believes it is necessary to continue to require employees to remove
their PPE at the end of the work shift or all tasks involving beryllium
because otherwise, this highly dusty PPE could be re-entrained into the
air and contribute to the airborne exposure of workers who already are,
or can reasonably be expected to be, exposed above the TWA PEL or STEL.
OSHA is proposing to modify paragraph (h)(2)(ii) to ensure that PPE
is not removed in a manner that disperses beryllium into the air. This
can be accomplished by cleaning the PPE prior to removal or carefully
removing the PPE so as not to disturb the dust. OSHA is proposing to
remove the requirement for employers to ensure that employees remove
PPE in accordance with the written exposure control plan because, as
explained above in the summary and explanation of paragraph (f)(1),
OSHA is proposing to remove the requirement in the written exposure
control plan (paragraph (f)(1)(i)(H)) to include procedures for
doffing, laundering, storing, cleaning, repairing, and disposing of
beryllium-contaminated PPE, including respirators. This proposed
language is similar to that in paragraph (h)(3)(ii), which addresses
the cleaning of PPE rather than the removal of PPE.
OSHA is proposing to remove paragraphs (h)(2)(iii) and (iv) from
the construction and shipyard standards. Paragraph (h)(2)(iii) requires
the employer to ensure that each employee stores and keeps beryllium-
contaminated personal protective clothing and equipment separate from
street clothing and that storage facilities prevent cross-contamination
as specified in the written exposure control plan required by paragraph
(f)(1) of this standard. Paragraph (h)(2)(iv) requires employers to
ensure that beryllium-contaminated PPE is only removed from the
workplace by employees who are authorized to do so for the purpose of
laundering, cleaning, maintaining, or disposing of such PPE. As
explained in the 2018 general industry DFR, OSHA defined ``beryllium-
contaminated'' as
contaminated with dust, fumes, mists, or solutions containing beryllium
in concentrations greater than or equal to 0.1 percent by weight
because the agency never intended for provisions aimed at protecting
workers from the effects of dermal contact with beryllium to apply in
the case of materials containing only trace amounts of beryllium.
Because OSHA believes there are no operations covered by the
construction or shipyard beryllium standards involving beryllium dust,
fumes, mists, or solutions in more than trace amounts, the requirements
pertaining to beryllium-contaminated PPE in the construction and
shipyard standards would never be triggered and are unnecessary.
With regard to the cleaning and replacement procedures in paragraph
(h)(3) of the standards, OSHA is proposing to clarify that paragraph
(h)(3)(ii) applies to PPE required by the beryllium standard. This
proposed change would assure employers that if dust containing trace
amounts of beryllium migrates to the PPE of employees who are not
reasonably expected to have airborne exposure to beryllium above the
TWA PEL or STEL, the beryllium standard allows the employer to provide
employees the opportunity to clean their PPE in a manner that disperses
that dust into the air. This proposed change is consistent with OSHA's
goal of protecting employees who are already exposed at airborne levels
of concern from inhalation of re-entrained beryllium-containing dust.
OSHA is proposing to remove paragraphs (h)(2)(v) and (h)(3)(iii)
from the standards. Paragraph (h)(2)(v) requires that PPE removed from
the workplace for laundering, cleaning, maintenance, or disposal be
placed in closed, impermeable bags or containers labeled in accordance
with paragraph (m)(2) of the construction standard and paragraph (m)(3)
of the shipyards standard, as well as the Hazard Communication
standard. Paragraph (h)(3)(iii) requires employers to inform, in
writing, any person or business entity who launders, cleans, or repairs
PPE required by the standards of the potentially harmful effects of
exposure to airborne beryllium and dermal contact with beryllium, and
of the need to handle the PPE in accordance with the standards. These
provisions are in place to protect individuals who later handle
beryllium-contaminated items (82 FR at 2683). Because, as explained in
the 2018 general industry DFR, OSHA never intended for provisions aimed
at protecting workers from the effects of dermal contact with beryllium
to apply in the case of materials containing only trace amounts of
beryllium, OSHA has preliminarily determined that it is not necessary
to protect downstream handlers of PPE that have only come in contact
with dust containing beryllium in trace amounts. OSHA has no reason to
expect these downstream handlers are engaging in tasks that generate
airborne exposures of concern such that re-entrainment of the dust
would exacerbate an already-significant lung burden. OSHA therefore
proposes to remove these two paragraphs from the construction and
shipyard beryllium standards.
The agency welcomes comment on these proposed revisions to
paragraph (h).
Paragraph (i) Hygiene Areas and Practices
Paragraph (i) of the 2017 final rule established requirements for
hygiene areas and practices in general industry (29 CFR 1910.1024),
construction (29 CFR 1926.1024), and shipyards (29 CFR 1915.1024). As
promulgated, paragraph (i) requires employers in all three industries
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
general industry (29 CFR 1910.41), 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). While extending these provisions to the construction and
shipyards industry in the 2017 final rule, OSHA acknowledged that
exposures to beryllium in these industries are limited to only a few
operations. OSHA further acknowledged this overlap in the FEA for the
2017 final rule, stating that employers of abrasive blasters exposed to
beryllium in construction and shipyards are typically already required
to provide readily accessible washing facilities to comply with other
OSHA standards (see 82 FR at 2609). Nonetheless, OSHA applied similar
requirements to these industries as to general industry, where the
operations with beryllium exposure are significantly more varied and
employees are often exposed to materials with significantly higher
beryllium content and where dermal contact can be of particular
concern.
After publishing the 2017 final rule, OSHA clarified in the general
industry DFR that the agency only intended to regulate contact with
trace beryllium to the extent that it causes airborne exposures of
concern. OSHA did not intend for provisions aimed at protecting workers
from the effects of dermal contact to apply in the case of materials
containing only trace amounts of beryllium (83 FR at 19938). Unlike in
general industry, where processes involving exposure to beryllium are
varied and employees are exposed to a large variety of materials that
can contain high concentrations of beryllium, exposures in the
construction and shipyards industries are limited to abrasive blasting
operations in construction and shipyards and a small number of welding
operations in shipyards (Document ID 2042, FEA Chapter III, pp. 103-11
and Table III-8e). While the extremely high airborne exposures during
abrasive blasting operations can expose workers to beryllium in excess
of the PEL, the blasting materials contain only trace amounts of
beryllium (Document ID 2042, FEA Chapter IV, p. 612). Moreover, the
record before the agency contains evidence of beryllium exposure during
only limited welding operations in shipyards (Document ID 2042, FEA
Chapter III, Table III-8e) and as discussed above, OSHA has
preliminarily determined that for these limited welding operations the
exposure of concern is exposure to airborne beryllium and not dermal
contact.
Unlike the general industry standard, which triggers PPE as well as
other provisions on both the PELs and the potential for dermal contact
or beryllium-contaminated surfaces,
construction and shipyards activities under this standard do not have
operations where skin contact is the exposure of concern. In light of
the existing OSHA standards providing many of the same protections as
the beryllium standards, the limited operations where beryllium
exposure may occur in construction and shipyards, and the trace
quantities of beryllium present in these operations, OSHA now believes
that the requirements for hygiene areas and practices in the 2017
beryllium standards for construction and shipyards may be unnecessary
to protect employees in these industries. Accordingly, the agency is
proposing to remove paragraph (i) from the construction and shipyard
standards.
In response to the 2017 NPRM proposing to revoke the ancillary
provisions from the shipyards and construction standards, 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, the Abrasive Blasting Manufacturers Alliance
(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. 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. Though not a requirement, they also cite OSHA's 2006
guidance on abrasive blasting for shipyards, which recommends good
hygiene practices (Document ID 2142, pp. 9-10; 2124 attachment 1, p.
6).
OSHA agrees with both commenters: beryllium-exposed workers should
have access to washing facilities, and existing standards require the
use of washing facilities for those workers in construction and
shipyards. In addition, the sanitation standard for construction (29
CFR 1926.51(f)) requires employers to provide adequate washing
facilities maintained in a sanitary condition for employees engaged in
operations where contaminants may be harmful to the employees. It also
requires that these washing facilities must be in proximity to the
worksite and must be so equipped as to enable employees to remove such
substances. Lavatories are also required at all places of employment
and must be equipped with hot and cold running water, or tepid running
water. Hand soap or similar cleansing agents must be provided along
with hand towels, air blowers, or clean continuous cloth toweling,
convenient to the lavatories.
The sanitation standard for shipyards (29 CFR 1915.88(e)) similarly
requires employers to provide handwashing facilities at or adjacent to
each toilet facility. The criteria for these handwashing facilities are
similar to the construction industry in that they must be equipped with
hot and cold running water or tepid running water, soap, or skin
cleansing agents capable of disinfection or neutralizing the
contaminant, and drying materials and methods. This standard further
requires the employer to inform each employee engaged in operations in
which hazardous or toxic substances can be ingested or absorbed about
the need for removing surface contaminants from their skin's surface by
thoroughly washing their hands and face at the end of the work shift
and prior to eating, drinking, or smoking (see 29 CFR 1915.88(e)(3)).
Even though the sanitation standards do not specifically mention
beryllium, the use of the terms harmful substances in the construction
sanitation standard and hazardous or toxic substance in the shipyard
sanitation standard encompass beryllium exposure where airborne
exposure exceeds, or can reasonably be expected to exceed, the TWA PEL
or STEL. With respect to abrasive blasting, the sanitation standards'
washing facilities requirements are triggered by the use of blasting
media; either due to contaminants in the blasting media (which may
include beryllium, lead, hexavalent chromium, cadmium, and arsenic) or
contamination from the substrate or coatings on the substrate.
Similarly, in the limited welding operations involving beryllium
exposure, workers will likely be exposed to other hazardous chemicals
(including hexavalent chromium, lead, and cadmium) (see https://www.osha.gov/SLTC/weldingcuttingbrazing/chemicals.html), triggering the
requirements of the sanitation standards. Accordingly, the sanitation
standards provide comparable protections to the washing facilities
requirements that OSHA is proposing to remove from both the
construction and shipyard standards (paragraphs (i)(1)(i) and (ii)).
OSHA is also proposing to remove the requirement for employers to
provide change rooms where employees are required to remove their
personal clothing (paragraph (i)(2)), because the sanitation standards
already provide comparable protections. The sanitation standard for
construction (29 CFR 1926.51(i)) requires employers to provide change
rooms if a particular standard requires employees to wear protective
clothing because of the possibility of contamination with toxic
materials. The change rooms must be equipped with storage facilities
for street clothes and separate storage facilities for the protective
clothing shall be provided.
Similarly, the sanitation standard for shipyards (Sec. 1915.88(g))
requires change rooms when the employer provides protective clothing to
prevent employee exposure to hazardous or toxic substances.
Furthermore, the employer must provide change rooms that provide
privacy and storage facilities for street clothes, as well as separate
storage facilities for protective clothing. Because these proposed
beryllium standards would require PPE where exposures may exceed the
TWA PEL or STEL, employers would be required to provide change rooms
under the sanitation standards (if employees were required to remove
their personal clothing),\6\ just as they would have been required by
the beryllium standards.
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\6\ Through interpretive guidance, OSHA has explained that the
sanitation standards require the provision of change rooms only
where employees must change their clothes (i.e., remove their street
clothes) (see OSHA, Letter of Interpretation, Feb. 22 1996,
available at https://www.osha.gov/laws-regs/standardinterpretations/1996-02-22-1).
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OSHA is further proposing to remove paragraph (i)(3), which
establishes provisions for eating and drinking areas, from the
construction and shipyard standards. The provisions in the sanitation
standards for construction (Sec. 1926.51(g)) and shipyards (Sec.
1915.88(h)) already require employers to ensure that food, beverages,
and tobacco products are not consumed or stored in any area where
employees may be exposed to hazardous or toxic materials.
OSHA is also proposing to remove paragraphs (i)(3)(i) and (ii) of
the construction and shipyards standards, which require that surfaces
in eating and drinking areas be kept as free as practicable of
beryllium (paragraph (i)(3)(i)) and that employees remove or clean
contaminated clothing prior to entering these areas (paragraph
(i)(3)(ii)). These provisions relate to
minimizing dermal contact. However, as explained above, OSHA intends
that provisions meant to reduce dermal contact should typically be
applied to materials containing trace amounts of beryllium only where
there is also the potential for significant airborne exposure. OSHA has
preliminarily determined that the processes in construction and
shipyards creating exposure to beryllium are either processes that
involve materials containing less than 0.1% beryllium by weight or
processes that do not produce surface or skin contamination.
OSHA further believes that other parts of the beryllium standard
will reduce the potential for airborne beryllium in eating and drinking
areas. For example, when employees are cleaning up dust resulting from
operations that cause, or can reasonably be expected to cause airborne
exposures over the TWA PEL or STEL, the employer must ensure the use of
methods that minimize the likelihood and level of airborne exposure.
And under proposed paragraph (h)(2)(ii), employers must ensure that PPE
required by the standard is not removed in a manner that disperses
beryllium into the air. Given that construction and shipyard operations
primarily involve only trace amounts of beryllium, and other provisions
of the beryllium standard such as engineering controls and housekeeping
requirements serve to minimize airborne exposures, OSHA believes that
existing standards adequately protect employees in eating and drinking
areas.
OSHA is also proposing to remove the reference in paragraph
(i)(3)(iii) requiring that eating and drinking facilities provided by
the employer must be in accordance with the sanitation standards. OSHA
does not believe it is necessary to maintain this reference, as this
would be the only requirement remaining in paragraph (i) and employers
are required to comply with the sanitation standards regardless.
Finally, OSHA is proposing to remove paragraph (i)(4), concerning
prohibited activities, which requires the employer to ensure that no
employees eat, drink, smoke, chew tobacco or gum, or apply cosmetics in
work areas where there is a reasonable expectation of exposure above
the TWA PEL or STEL. The sanitation standards prohibit consuming food
or beverages in areas exposed to toxic material and therefore provides
the appropriate protections for areas where exposures are above the
PEL. The sanitation standards are substantially similar to paragraph
(i)(4) and provide appropriate protections for areas where exposures
are above the PEL.
In summary, for the reasons discussed above, OSHA is proposing to
remove paragraph (i), hygiene areas and practices, from the beryllium
standards for construction and shipyards. OSHA requests comment on the
proposed removal of paragraph (i). OSHA particularly welcomes comments
and data on the use of wash facilities and changes rooms in
construction and shipyards for operations that would be covered by the
beryllium standards.
Paragraph (j) Housekeeping
The 2017 final beryllium rule includes provisions for housekeeping.
It 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. Good housekeeping measures are a cost-effective way to
control worker exposures by removing settled beryllium that could
otherwise become re-entrained into the surrounding atmosphere by
physical disturbances or air currents and could enter an employee's
breathing zone and increase potential dermal contact (82 FR at 2689).
OSHA also acknowledged that different approaches may be warranted
for the housekeeping provisions for construction and shipyards than for
general industry due to the nature of the materials and work processes
typically used in construction and shipyards (82 FR at 2690). As
discussed previously with respect to paragraph (f), although OSHA
extended these provisions to the construction and shipyards industry in
the 2017 final rule, OSHA also recognized that beryllium exposure in
these industries is mainly limited to abrasive blasting in construction
and shipyards and a small number of welding operations in shipyards
(Document ID 2042, FEA Chapter III, pp. 103-11 and Table III-8e). While
the extremely high airborne exposures during abrasive blasting
operations can expose workers to beryllium in excess of the PEL, the
blasting materials contain only trace amounts of beryllium (Document ID
2042, FEA Chapter IV, p. 612). Moreover, the record before the agency
contains evidence of beryllium exposure during only limited welding
operations in shipyards (Document ID 2042, FEA Chapter III, Table III-
8e). Nonetheless, OSHA applied most of the same requirements to these
industries as to general industry,\7\ where the operations with
beryllium exposure are significantly more varied and employees are
exposed to materials with significantly higher content beryllium.
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\7\ Due to the transient nature of the work processes in
construction and shipyards and the fact that most of the work occurs
outside, OSHA decided not to require employers in these industries
to maintain all surfaces as free as practicable of beryllium, as it
had done in general industry. Rather, the agency required employers
in these industries to follow their written exposure control plan
when cleaning beryllium-contaminated areas (82 FR at 2690).
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OSHA is reconsidering this approach in the construction and
shipyards industries. In June 2017, OSHA proposed to rescind the
ancillary provisions for the construction and shipyard beryllium
standards, citing previously-existing OSHA standards that the agency
surmised could duplicate some provisions of the 2017 standards. OSHA
cited the construction ventilation standard, which requires that dust
not be allowed to accumulate outside abrasive blasting enclosures and
that spills be cleaned up promptly (29 CFR 1926.57(f)(7)). Likewise,
certain provisions of OSHA's general ventilation standard for abrasive
blasting (29 CFR 1910.94(a)) also apply to shipyards. Similar to the
construction ventilation standard, the general ventilation standard
contains the following requirements for abrasive blasting: ``[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. . . .'' (29 CFR 1910.94(a)(7)).
While some comments OSHA received on the proposed revocation of
paragraph (j) supported revocation on the basis of overlapping and
duplicative provisions (e.g., ABMA, Document ID 2142), several
commenters argued that the 2017 provisions offer beryllium-exposed
workers significant additional protection. For example, NABTU indicated
that the ventilation standard does not prohibit dry sweeping or
brushing, which are prohibited by the 2017 beryllium standards except
in rare circumstances (Document ID 2129, p. 7). AFL-CIO similarly
commented that the use of dry sweeping and compressed air increase
exposures in workers' breathing zone, and should be prohibited
(Document ID 2140, p. 8).
In light of these comments and the agency's review of existing
standards, OSHA acknowledged in the rule finalizing the 2017 proposal,
published
on September 30, 2019, that existing standards do not duplicate all of
the protections provided by paragraph (j). OSHA believes that some of
these beryllium-specific provisions remain necessary to protect workers
in the construction and shipyards industries. At the same time, given
the very narrow set of affected operations and the existence of some
overlap between the 2017 standards and already-existing rules, OSHA
also believes that some provisions in paragraph (j)--although
appropriate in the general industry context--may be unnecessary to
protect employees in the construction and shipyards industries.
Moreover, as discussed above in the Introduction, after publishing
the 2017 final rule, OSHA clarified in the general industry DFR that
the agency only intended to regulate contact with trace beryllium to
the extent that it caused airborne exposures of concern. OSHA never
intended for provisions aimed at protecting workers from the effects of
dermal contact to apply in the case of materials containing only trace
amounts of beryllium (83 FR at 19938). OSHA also discusses in the
Introduction that the agency has preliminarily determined that the
limited welding processes in shipyards create only a trace amount of
surface contamination. Because exposures in the construction and
shipyards industries are limited almost entirely to abrasive blasting
with materials containing trace amounts of beryllium or welding on
materials where surface contamination is not a source of exposure, OSHA
believes additional revisions to paragraph (j) may be warranted. For
these reasons, OSHA is proposing several revisions to paragraph (j) in
both the construction and shipyards standards.
First, OSHA is proposing to remove paragraph (j)(1) (general
requirements for housekeeping) from the construction and shipyards
standards. This provision currently requires employers to follow the
written exposure control plan when cleaning beryllium-contaminated
areas (paragraph (j)(1)(1)) and to ensure that spills and emergency
releases of beryllium are cleaned up promptly (paragraph (j)(1)(2)). As
discussed above, the ventilation standard for construction (29 CFR
1926.57(f)(7)) and OSHA's general ventilation standard (29 CFR
1910.94(a)) require prompt cleanup of spills during abrasive blasting
in construction and shipyards, the primary sources of beryllium
exposure in these industries. OSHA believes that routine general
housekeeping and housekeeping related to spills are adequately covered
by the existing ventilation standards in these sectors, and is
proposing to eliminate paragraph (j)(1) of the final standards.
Additionally, because the housekeeping provisions are triggered by only
one operation (abrasive blasting) in construction and shipyards, this
operation uses materials with only trace quantities of beryllium, and
the main objective of these provisions is to minimize airborne
exposure, OSHA has preliminarily determined that a unique written plan
for how to clean is unnecessary in this context. OSHA notes that this
is in contrast to general industry, where there is the concern for
protecting from both dermal contact and airborne exposures over a
variety of materials and processes and where employers may need to have
more complicated or unique cleaning procedures to adequately protect
workers.
With respect to cleaning methods currently required by paragraph
(j)(2), OSHA agrees with comments submitted by NABTU and AFL-CIO in
response to the 2017 NPRM that the cleaning provisions in existing
ventilation standards (29 CFR 1926.57(f)(7) and 29 CFR 1910.94(a)) do
not provide the additional protections of prohibiting methods of
cleaning that are likely to increase exposure in the breathing zone of
the workers. Therefore, OSHA is retaining the existing requirements in
the following paragraphs, renumbered in this proposal: Paragraph
(j)(1), with revision (requiring the use of cleaning methods that
minimize the likelihood and level of airborne exposure); (j)(2)
(prohibiting dry sweeping or brushing unless other methods are not safe
or effective); (j)(3), with revision (limiting the use of compressed
air for cleaning); (j)(4), with revision (requiring respirator use and
PPE where employees use dry sweeping, brushing, or compressed air to
clean); and (j)(5) (requiring cleaning equipment to be handled and
maintained so as to reduce airborne exposure and re-entrainment of
airborne beryllium). Specific proposed revisions to these paragraphs
are discussed below.
First, OSHA is proposing to revise paragraph (j)(2)(i), renumbered
as paragraph (j)(1), to remove the reference to ``HEPA filtered
vacuuming.'' In the unique context of abrasive blasting, where
operations produce copious amounts of dust, the use of HEPA vacuums may
be problematic due to filter overload and clogging which in fact may
cause additional exposures. This, too, is in contrast to general
industry, where the content and amount of beryllium-containing dust or
debris are varied and where HEPA filters can minimize the amount of
beryllium that is re-entrained into the air.
Next, OSHA is proposing to revise both paragraphs (j)(2)(i) and
(ii)--renumbered as paragraphs (j)(1) and (2), respectively--to remove
the phrase ``beryllium-contaminated areas.'' Proposed paragraph (j)(1)
would now require the use of methods that minimize the likelihood and
level of airborne exposure when cleaning up dust resulting from
operations that cause, or can reasonably be expected to cause, airborne
exposure above the TWA PEL or STEL. Similarly, proposed paragraph
(j)(2) would prohibit dry sweeping or brushing for cleaning dust
resulting from operations that cause, or can reasonably be expected to
cause, airborne exposure above the TWA PEL or STEL, unless methods that
minimize the likelihood and level of airborne exposure are not safe and
effective.
OSHA intends for these provisions to still apply where workers are
either working in regulated areas in shipyards or in areas with
exposures above the TWA PEL or STEL in construction. In the 2018 DFR,
OSHA modified the general industry beryllium standard to define
``contaminated with beryllium'' and ``beryllium-contaminated'' as
contaminated with dust, fumes, mists, or solutions containing beryllium
in concentrations greater than or equal to 0.1 percent by weight (83 FR
at 19939-40). As explained above, OSHA believes there are no operations
covered by the construction or shipyard beryllium standards that would
create such a beryllium-contaminated surface. In fact, the vast
majority of the operations (abrasive blasting) involve beryllium in
concentrations of less than 0.1 percent by weight. If OSHA maintained
the term ``beryllium-contaminated,'' the requirements for when and how
employers can use dry sweeping, brushing, or compressed air would
rarely, if ever, be triggered and workers already exposed could have
additional exposures.
Accordingly, OSHA is instead proposing to trigger the requirements
in paragraphs (j)(1) and (2) on the presence of dust produced by
operations that cause, or can reasonably be expected to cause, airborne
exposure above the TWA PEL or STEL to ensure that beryllium is not re-
entrained in areas where there are already high exposures. By
referencing the presence of dust produced by these operations, rather
than the operation itself, OSHA intends for these requirements to apply
regardless of whether the operation is ongoing (i.e. whether abrasive
blasting is taking place at the time of the cleaning).
Similarly, OSHA is proposing to revise paragraph (j)(2)(iii),
renumbered
as paragraph (j)(3), to remove the reference to ``beryllium-
contaminated areas'' and to prohibit the use of compressed air for
cleaning where the use of compressed air causes, or can reasonably be
expected to cause, airborne exposure above the TWA PEL or STEL. This is
a change from the existing requirement, which prohibits the use of
compressed air ``unless the compressed air is used in conjunction with
a ventilation system designed to capture the particulates made airborne
by the use of compressed air.'' This change limits when an employer can
use compressed air for cleaning under these standards. In the 2017
final rule, OSHA determined that the use of compressed air might
occasionally be necessary in general industry (82 FR at 2693).
Similarly, for construction and shipyards, OSHA intended to prohibit
the use of compressed air during cleaning of beryllium contaminated
areas or materials designated for recycling or disposal unless used in
conjunction with a ventilation system. This is similar to other
construction standards such as lead (29 CFR 1926.62) and silica (29 CFR
1926.1153).
However, OSHA has reconsidered whether the use of ventilation with
compressed air is practical when cleaning areas with copious amounts of
dust produced during abrasive blasting. Therefore, OSHA is proposing a
practical measure for when the use of compressed air for cleaning is
allowed. OSHA is proposing to limit the use of compressed air to
circumstances in which there is a limited quantity of dust which, if
re-entrained, would not result in exposures above the TWA PEL or STEL.
OSHA requests comment on whether compressed air is used in construction
for cleaning abrasive blasting areas and the feasibility or
practicality of the use of ventilation systems under these conditions.
The agency is next proposing to revise paragraph (j)(2)(iv),
renumbered as paragraph (j)(4), to remove the phrase ``in beryllium-
contaminated areas,'' for the reasons already discussed. Because under
this proposal, the rest of paragraph (j) would no longer reference
beryllium-contaminated areas, OSHA is proposing to remove the reference
from paragraph (j)(4) and to require the use of respiratory protection
and PPE in accordance with paragraphs (g) and (h) whenever employees
use dry sweeping, brushing, or compressed air.\8\
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\8\ This proposal retains existing paragraph (j)(2)(v) without
any changes, but renumbers it as paragraph (j)(5). Also, OSHA is
proposing to remove the heading for ``Cleaning Methods'' and refer
to these requirements only as ``Housekeeping,'' as is its usual
treatment of such requirements in health standards.
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Next, OSHA is proposing to remove paragraph (j)(3) of the
standards, which requires that, when transferring beryllium-containing
materials to another party for use or disposal, employers provide the
recipient a copy of the warning label currently required by paragraph
(m). As part of this proposal, OSHA is also proposing to remove the
labeling requirement in paragraph (m). As noted above, all beryllium-
containing materials in the shipyard and construction industries
contain or produce only trace amounts of beryllium. Accordingly, this
proposed revision is consistent with OSHA's intention, explained in the
May 2018 general industry DFR, that provisions aimed at protecting
workers from the effects of dermal contact do not apply to materials
containing only trace amounts of beryllium, such as abrasive blasting
media, unless those workers are also exposed to airborne beryllium at
or above the action level (83 FR at 19940). It also aligns with the
housekeeping provisions of the general industry rule (as modified by
the DFR), which do not require labeling for materials which contain
only trace quantities of beryllium and are designated for disposal,
recycling, or reuse.
In response to the July 2017 NPRM, Materion commented that labeling
requirements found in the Hazard Communication standard (29 CFR
1910.1200) are an appropriate standard to apply under these
circumstances (Document ID 2145, p. 40). OSHA preliminarily agrees with
Materion that the HCS requirements provide the appropriate information
for spent abrasive blasting media containing only trace amounts of
beryllium, where the material may be contaminated with several toxic
chemicals such as hexavalent chromium or lead from the blasted
substrate or coating on the substrate (see OSHA Fact Sheet, Protecting
Workers from the Hazards of Abrasive Blasting Materials, available at
https://www.osha.gov/Publications/OSHA3697.pdf). OSHA is concerned that
providing warnings specific to beryllium for materials that contain
trace beryllium and where airborne exposures are not anticipated to be
significant might overshadow or dilute other hazard warnings (e.g.,
lead). Therefore, OSHA is proposing to remove the specific labeling
requirements for beryllium. However, OSHA continues to require that
these materials be labeled according to the Hazard Communication
standard and that, if appropriate, the hazards of beryllium must be
addressed on the label and Safety Data Sheet (SDS).
The agency welcomes comment on these proposed revisions to
paragraph (j). In particular, OSHA is interested in methods employers
are using to clean abrasive blasting areas and how they minimize
workers' exposures.
Paragraph (k) Medical Surveillance
The 2017 final beryllium rule includes provisions for medical
surveillance. 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 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 standard 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 light of information the agency received following the
publication of the 2017 final rule, including comments submitted in
response to the 2017 NPRM and through the general industry rulemaking,
OSHA is proposing several revisions to paragraph (k). First, OSHA is
proposing to remove paragraph (k)(1)(i)(C), which requires employers to
make medical surveillance required by this paragraph available to each
employee who is exposed to beryllium during an emergency. As discussed
previously in the summary and explanation for paragraph (g), OSHA is
proposing to remove references to emergencies in the shipyards and
construction standards because OSHA expects that any emergency in these
industries (such as a release resulting from a failure of the blasting
control equipment, a spill of the abrasive blasting media or the
failure of the ventilation system during welding
operations in shipyards) would occur only during the performance of
routine tasks already associated with the airborne release of
beryllium; i.e., during the abrasive blasting or welding process (see
the summary and explanation for paragraph (g)). Therefore, employees
would already be protected from exposure in such circumstances.
Accordingly, OSHA is proposing to remove emergencies as a trigger for
all provisions of the construction and shipyards standards, including
medical surveillance (paragraph (k)(1)(i)(C)).\9\
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\9\ Due to the proposed removal of paragraph (k)(1)(i)(C), OSHA
is also proposing to add the word ``or'' at the end of paragraph
(k)(1)(i)(B) (following the semi-colon), remove a reference to
paragraph (k)(1)(i)(C) from paragraph (k)(2)(i)(B), and redesignate
paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C). In addition, to
correspond with that redesignation, OSHA is proposing to replace the
reference to paragraph (k)(1)(i)(D) in paragraph (k)(2)(ii) with a
reference to proposed paragraph (k)(1)(i)(C).
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Second, OSHA is proposing minor changes to paragraph (k)(3)(ii)(A),
which currently requires the employer to ensure that the employee is
offered a medical examination that includes a medical and work history,
with emphasis on, among other things, past and present airborne
exposure to or dermal contact with beryllium, and paragraph (k)(4)(i),
which currently requires the employer to ensure that the examining
physician or other licensed health care professional (PLHCP) (and the
agreed upon CBD diagnostic center, if an evaluation is required under
paragraph (k)(7) of this standard) has certain information, including a
description of the employee's former and current duties that relate to
the employee's airborne exposure to and dermal contact with beryllium,
if known. Specifically, OSHA is proposing to clarify these provisions
by replacing the phrase ``airborne exposure to and dermal contact with
beryllium'' in these provisions with the simpler phrase ``exposure to
beryllium.'' OSHA reasons that employees with beryllium exposure of any
kind should have access to records of their exposure, and this
information should also be made available to an examining PLHCP and CBD
diagnostic center, if applicable. OSHA intends for this proposed change
to alleviate any unnecessary confusion created by the use of the term
``dermal contact,'' which is defined in the general industry standard,
but not in the construction and shipyards standards.
Third, OSHA is proposing two revisions to paragraph (k)(7)(i) of
the construction and shipyards standards, which currently requires the
employer to provide, at no cost to the employee, an evaluation at a CBD
diagnostic center that is mutually agreed upon by the employee and
employer within 30 days of the employer receiving one of the types of
documentation listed in paragraph (k)(7)(i)(A) or (B). These proposed
changes are consistent with changes the agency proposed to paragraph
(k)(7)(i) of the beryllium standard for general industry in December
2018.
The first change relates to a proposed change to the definition of
the term CBD diagnostic center. As discussed in more detail above, the
current definition of that term in the construction and shipyards
standards requires that the evaluation at the CBD diagnostic center
include a pulmonary function test as outlined by American Thoracic
Society (ATS) criteria, bronchoalveolar lavage (BAL), and
transbronchial biopsy. OSHA proposes amending that definition to
indicate that a CBD diagnostic center must be capable of performing
those tests, but need not necessarily perform all the tests during all
evaluations. OSHA intended for the employer to provide those tests if
deemed appropriate by the examining physician at the CBD diagnostic
center. Therefore, the agency proposes expanding paragraph (k)(7)(i) to
require that the employer provide, at no cost to the employee and
within a reasonable time after consultation with the CBD diagnostic
center, any of the following tests if deemed appropriate by the
examining physician at the CBD diagnostic center: A pulmonary function
test as outlined by ATS criteria; BAL; and transbronchial biopsy. The
proposed changes would ensure the employee receives those tests if
recommended by the examining physician and receives them at no cost and
within a reasonable time (83 FR at 63764). In addition, the revision
would clarify its original intent that, instead of requiring all of
those tests to be conducted after referral to a CBD diagnostic center,
the standard would allow the examining physician at the CBD diagnostic
center the discretion to select one or more of those tests as
appropriate.
The second proposed change relates to the timing of the evaluation
at the CBD diagnostic center. In the proposal for the 2017 final rule
(the 2015 NPRM), OSHA proposed to require a consultation between the
employee and the licensed physician within 30 days of the employee
being confirmed positive to discuss a referral to a CBD diagnostic
center, but there was no time limit for the employer to provide the
evaluation at the CBD diagnostic center (80 FR 47800, Summary and
Explanation for proposed paragraphs (k)(6)(i) and (ii)). In the final
rule, OSHA altered this requirement, now in paragraph (k)(7)(i), to
require that the examination at the CBD diagnostic center be provided
within 30 days of the employer receiving one of the types of
documentation listed in paragraph (k)(7)(i)(A) or (B).
Following the publication of the 2017 final rule, stakeholders
raised concerns that scheduling the appropriate tests with an examining
physician at the CBD diagnostic center may take longer than 30 days,
making compliance with this provision difficult. In the 2018 general
industry NPRM, OSHA addressed this concern by proposing to revise
paragraph (k)(7)(i) of the general industry standard to require that
the employer provide an initial consultation with the CBD diagnostic
center, rather than the full evaluation, within 30 days of the employer
receiving one of the types of documentation listed in paragraph
(k)(7)(i)(A) or (B). OSHA is proposing an identical change in this
rule.
As explained in the 2018 general industry NPRM, OSHA believes that
such a consultation could be scheduled with a physician within 30 days
and could be provided by telephone or by virtual conferencing methods
(83 FR at 63758). Providing a consultation before the full examination
at the CBD diagnostic center demonstrates that the employer made an
effort to begin the process for a medical examination. It also allows
(1) the employee to consult with a physician to discuss concerns and
ask questions while waiting for a medical examination, and (2) the
physician to explain the types of tests that are recommended based on
medical findings about the employee and the risks and benefits of
undergoing such testing. Although this proposed change would allow the
employer more time to provide the full evaluation, the proposed
requirement to provide any recommended tests within a reasonable time
after the initial consultation would also ensure that the employer
secured an appointment for the evaluation in a timely manner. This
proposed change would not prohibit the employer from providing both the
consultation and the full evaluation at the same appointment, as long
as the appointment is within 30 days of the employer receiving one of
the types of documentation listed in paragraph (k)(7)(i)(A) or (B).
OSHA received several comments on the proposed changes to the
medical surveillance provisions discussed above from American Thoracic
Society (ATS), NJH, Department of Defense (DoD), and Materion (Document
ID OSHA-2018-
003-0021, p. 3; 0022, p. 3-6; 0029, p. 2; 0038, p. 34). Materion agreed
with OSHA's proposed changes (Document ID OSHA-2018-003-0038, p. 34).
Other commenters including ATS, NJH and DoD expressed some concerns.
ATS and NJH also commented that an examination at the CBD diagnostic
center should not be required to occur within 30 days of the referral
because it may take weeks or months before the CBD diagnostic center
has an opening for an evaluation. However, they opposed the proposed
requirement for a consultation that can be performed via telephone or
virtual conferencing within 30 days of the employer receiving
documentation, commenting that it would just add cost and logistics to
scheduling and is not necessary (Document ID OSHA-2018-003-0022, p. 6;
0021, p. 3). DoD opposed the proposed change for a telephone or virtual
consultation, arguing that an ill worker should be examined immediately
(Document ID 0029, p. 2). As stated above, OSHA will consider these
comments, along with any comments submitted during this rulemaking, in
developing the final beryllium standards for construction and
shipyards. The agency welcomes comment on these proposed revisions to
paragraph (k).
Paragraph (m) Communication of Hazards
Paragraph (m) of the beryllium standards for construction and
shipyards 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 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.
OSHA intended for the hazard communication requirements in the 2017
final rule to be consistent with the HCS, while including additional
specific requirements needed to protect employees exposed to beryllium
to ensure that they have access to the relevant information concerning
the hazards to which they are exposed. While incorporating the
requirements of the HCS in the beryllium standards, OSHA further
required that employers not only incorporate information about
beryllium into their hazard communication programs and training but
also provide training specifically on the hazards associated with
beryllium on an annual basis.
OSHA is proposing three changes to paragraph (m) in both the
construction and shipyard standards to align with proposed changes to
other provisions in these standards. First, OSHA is proposing to remove
the paragraph (m) provisions that require specific language for warning
labels applied to materials designated for disposal or PPE when removed
from the workplace (paragraph (m)(2) in construction and paragraph
(m)(3) in shipyards).\10\ This is consistent with OSHA's proposal to
remove the corresponding requirements to provide such warning labels.
As explained above with regard to paragraphs (h)(2)(v) and (j)(3), OSHA
is proposing to remove the requirements in both standards to label PPE
removed from the workplace for laundering, cleaning, maintenance, or
disposal and beryllium-containing material destined for disposal. The
agency is proposing these changes to reflect its intent that provisions
aimed at protecting workers from the effects of dermal contact do not
apply to materials containing only trace amounts of beryllium--like all
beryllium-containing material used in abrasive blasting in the
construction and shipyards industries--unless those workers are also
exposed to airborne beryllium at or above the action level. Similarly,
for the limited welding operations in shipyards, OSHA has evidence that
at best only trace amounts of particulate beryllium will form (see the
summary and explanation for paragraphs (h)(2)(v) and (j)(3)). Without
these underlying requirements to provide labels, the provisions of
paragraph (m) mandating specific language for such labels become
unnecessary.
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\10\ As a result, OSHA is also proposing to renumber paragraph
(m)(4) in the shipyards standard (29 CFR 1915.1024) as paragraph
(m)(3), renumber paragraph (m)(3) in the construction standard (29
CFR 1926.1124) as paragraph (m)(2), and revise the references in
paragraph (m)(1)(ii) of both standards accordingly.
---------------------------------------------------------------------------
Second, OSHA is proposing to revise the provisions of paragraph (m)
for employee information and training related to emergency procedures
(paragraph (m)(3)(ii)(D) in construction and paragraph (m)(4)(ii)(D) in
shipyards) \11\ and personal hygiene practices (paragraph (m)(3)(ii)(E)
in construction and paragraph (m)(4)(ii)(E) in shipyards), for
consistency with OSHA's proposed removal of emergency procedures and
personal hygiene practices from the construction and shipyard
standards. As discussed previously with respect to paragraph (g), OSHA
is proposing to remove references to emergencies in the shipyards and
construction standards because OSHA expects that any emergency in these
industries (such as a release resulting from a failure of the blasting
control equipment, a spill of the abrasive blasting media, or the
failure of the ventilation system for welding operations in shipyards)
would occur only during the performance of routine tasks already
associated with the airborne release of beryllium; i.e., during the
abrasive blasting or welding process (see the summary and explanation
for paragraph (g)). As such, employees would already be protected
through the use of respiratory protection from exposure in such
circumstances. OSHA is also proposing to remove the hygiene provisions
due to overlap with existing OSHA standards, the limited operations
where beryllium exposure may occur in construction and shipyards, and
the trace quantities of beryllium present in these operations (see the
summary and explanation for paragraph (i)). As with the labeling
requirement, the removal of these provisions renders the correlating
training requirements unnecessary. OSHA requests comment on these
proposed changes. OSHA specifically requests comment on the proposed
removal of the requirement to train employees on personal hygiene
practices and whether the agency should instead require training on the
hygiene requirements of the relevant sanitation standard (29 CFR
1926.51 for construction and 29 CFR 1915.88 for shipyards).
---------------------------------------------------------------------------
\11\ OSHA is also proposing to renumber the provisions of
paragraph (m)(3)(ii) in construction and paragraph (m)(4)(ii) in
shipyards to reflect the removal of this paragraph.
---------------------------------------------------------------------------
OSHA is also proposing to revise paragraph (m)(3)(i) in
construction and paragraph (m)(4)(i) in shipyards--renumbered as
paragraphs (m)(2)(i) and (m)(3)(i), respectively--to remove
dermal contact as a trigger for training. Again, OSHA clarified in the
2018 DFR for general industry that it did not intend for provisions
aimed at protecting workers from the effects of dermal contact to apply
in the case of materials containing only trace amounts of beryllium,
absent significant airborne exposures (83 FR at 19938). In the 2017
final rule, OSHA recognized that beryllium exposure in construction and
shipyard industries is narrowly limited to trace quantities contained
in certain abrasive blasting media and to exposure during some welding
operations in shipyards (82 FR at 2690; Document ID 2042 III-66).
Therefore, OSHA has preliminarily determined that training in shipyards
and construction should be provided to each employee who has, or can
reasonably be expected to have, airborne exposure to beryllium, without
regard to dermal contact. OSHA notes that both standards already exempt
materials containing less than 0.1% beryllium by weight where the
employer has objective data demonstrating that employee exposure to
beryllium will remain below the action level as an 8-hour TWA under any
foreseeable conditions (see 29 CFR 1926.1124(a)(3) (construction) and
29 CFR 1915(a)(3) (shipyards)). Therefore, OSHA anticipates that the
training requirements in proposed paragraph (m)(2) for construction and
proposed paragraph (m)(3) for shipyards will continue to apply to all
employees that are covered under these standards.
OSHA is also proposing to revise paragraph (m)(2)(ii)(A) in the
construction standard and paragraph (m)(3)(ii)(A) in the shipyards
standard to require training on the health hazards associated with
``exposure to beryllium.'' Likewise, OSHA is proposing to revise
paragraph (m)(2)(ii)(D) in the construction standard and paragraph
(m)(3)(ii)(D) in the shipyards standard to require training on measures
employees can take to protect themselves from ``exposure to
beryllium.'' OSHA intends for this phrase to encompass both airborne
and skin exposure to beryllium. These revisions would resolve an
inconsistency between the shipyards and construction standards with
respect to references to dermal contact and would simplify these
provisions.
The agency welcomes comment on these proposed revisions to
paragraph (m) for the construction and shipyards sectors.
Paragraph (n) Recordkeeping
Paragraph (n) of the beryllium standards for construction and
shipyards requires employers to make and maintain records of air
monitoring data, objective data, medical surveillance, and training. It
also requires employers to make all required records available to
employees, their designated representatives, the Assistant Secretary,
and the Director of NIOSH, in accordance with OSHA's records access
standard, 29 CFR 1910.1020.
OSHA proposes to revise paragraphs (n)(1)(ii)(F), (n)(3)(ii)(A),
and (n)(4)(i) of both the construction and shipyards standards to
remove requirements for workers' Social Security Numbers (SSNs) in air
monitoring, medical surveillance, and training records. As promulgated
in the 2017 final rule, paragraph (n)(1)(ii)(F) requires employers to
include employees' SSNs in exposure measurement records. Paragraph
(n)(3)(ii)(A) similarly requires SSNs in medical surveillance records.
Finally, paragraph (n)(4)(i) requires SSNs in training records.
OSHA is proposing to remove the requirements for SSNs in these
records in order to make the beryllium standards for shipyards and
construction consistent with OSHA's other health standards. After
promulgating the 2017 final rule, OSHA finalized Phase IV of its
Standards Improvement Project (SIP-IV), which removed from OSHA
standards all requirements for employee SSNs in employer records (84 FR
21416, 21439-40 (May 14, 2019)).\12\ As OSHA explained in the SIP-IV
final rule, removing requirements for SSNs results in additional
flexibility for employers and allows employers to develop systems that
best work for their unique situations (84 FR at 21440). OSHA also
explained that the change would protect employee privacy and lower the
risk of identity theft (84 FR at 21439-40).
---------------------------------------------------------------------------
\12\ Eliminating requirements to include SSNs in records is also
responsive to a directive from OMB that calls for federal agencies
to identify and eliminate unnecessary collection and use of SSNs in
agency systems and programs (see Memorandum from Clay Johnson III,
Deputy Director for Management, Office of Management and Budget, to
the Heads of Executive Departments and Agencies Regarding
Safeguarding Against and Responding to the Breach of Personally
Identifiable Information (M-07-16), May 22, 2007 (available at:
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-16.pdf)).
---------------------------------------------------------------------------
Removing requirements for SSNs from the construction and shipyard
standards, as proposed, would not require employers to delete SSNs from
existing records or prohibit employers from using SSNs on records if
they wish to do so. OSHA believes that compliance with the
recordkeeping provisions in the proposed beryllium standards would be
straightforward for construction and shipyard employers that already
comply with other OSHA standards that no longer contain requirements
for SSNs.
OSHA welcomes comments on its proposal to revise paragraphs
(n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i) to remove requirements for
SSNs in air monitoring, medical surveillance, and training records.
IV. Preliminary Economic Analysis
A. Introduction
This Preliminary Economic Analysis (PEA) addresses issues related
to the profile of affected application groups, establishments, and
employees; the cost savings and the benefits of OSHA's proposal to
modify several construction and shipyard ancillary provisions. The
proposal makes no changes to the 2017 final rule's TWA PEL and STEL for
the shipyard and construction industries. Relative to the estimated
costs in the Final Economic Analysis (2017 FEA) in support of the
January 9, 2017, beryllium final rule (Document ID 2042), this NPRM
would lead to total annualized cost savings of $2.5 million in 2018
dollars at a 3 percent discount rate over 10 years; at a discount rate
of 7 percent over 10 years, the annualized cost savings are
approximately the same at $2.5 million. When the Department uses a
perpetual time horizon, the annualized cost savings of the proposal
would be $2.3 million in 2016 dollars at a 7 percent discount rate.
The proposal is not an ``economically significant regulatory
action'' under Executive Order 12866 or UMRA; nor, if finalized as
proposed, is it a ``major rule'' under the Congressional Review Act (5
U.S.C. 801 et seq.). Neither the benefits nor the costs of this
proposal exceed $100 million. In addition, they do not meet any of the
other criteria specified by UMRA for a significant regulatory action or
the Congressional Review Act for a major rule.
OSHA is proposing changes to several provisions. These proposed
changes are designed to accomplish three goals: (1) To more
appropriately tailor the requirements of the construction and shipyards
standards to the particular exposures in these industries in light of
partial overlap between the beryllium standards' requirements and other
OSHA standards; (2) to aid compliance and enforcement across the
beryllium standards by avoiding inconsistency, where appropriate,
between the shipyards and construction standards and proposed revisions
to the general industry standard; and (3) to clarify certain
requirements with respect to
materials containing only trace amounts of beryllium.
This PEA provides OSHA's preliminary assessment of how this NPRM
would affect the costs and benefits of complying with the various
proposed beryllium provisions, including costs adjustments to reflect
changes in exposure rates and baseline compliance rates. All costs are
estimated in 2018 dollars. Costs reported in 2018 dollars were applied
directly in this PEA; wage data were updated to 2018 dollars using BLS
data (BLS, 2018a); and all other costs reported for years earlier than
2018 were updated to 2018 dollars using the GDP implicit price deflator
(BEA, 2019).
This introduction to the PEA is followed by:
Section B: Profile of Affected Application Groups,
Establishments, and Employees.
Section C: Technological Feasibility Summary.
Section D: Cost Savings.
Section E: Benefits.
B. Profile of Affected Application Groups, Establishments, and
Employees
Introduction
In this section, OSHA presents the preliminary profile of
industries affected by this proposal to modify certain ancillary
provisions for the shipyard and construction sectors. The profile data
in this section are drawn from the industry profiles in Chapter III and
exposure profiles and data in Chapter IV of the 2017 FEA, as well as
the PEA in the June 27, 2017, beryllium proposal (2017 PEA; Document ID
2076). Where this analysis discusses comments, those comments were
received in response to this 2017 PEA.
In the 2017 FEA, OSHA first identified the North American
Industrial Classification System (NAICS) industries, both in the
shipyard and construction sectors, with potential worker exposure to
beryllium. Next, OSHA provided statistical information on the affected
industries, including the number of affected entities and
establishments, the number of workers whose exposure to beryllium could
result in disease or death (``at-risk workers''), and the average
revenue and profits for affected entities and establishments by six-
digit NAICS industry.\13\ This information was provided for each
affected industry as a whole, as well as for small entities, as defined
by the Small Business Administration (SBA), and for ``very small''
entities, defined by OSHA as those with fewer than 20 employees, in
each affected industry (U.S. Census Bureau, 2014). For each industry
sector identified, the agency described the uses of beryllium and
estimated the number of establishments and employees that potentially
would be affected by this rulemaking. Employee exposure to beryllium
can also occur as a result of certain processes (such as welding) that
are found in many industries. This analysis will use the term
``application group'' to refer to a cross-industry group with a common
process. OSHA requests comment, including data, on other potentially
affected industries and occupations in the construction and shipyard
sectors.
---------------------------------------------------------------------------
\13\ The Census Bureau defines an establishment as a single
physical location at which business is conducted or services or
industrial operations are performed. The Census Bureau defines a
business firm or entity as a business organization consisting of one
or more domestic establishments in the same state and industry that
are specified under common ownership or control. The firm and the
establishment are the same for single-establishment firms. For each
multi-establishment firm, establishments in the same industry within
a state will be counted as one firm; the firm employment and annual
payroll are summed from the associated establishments. (U.S. Census
Bureau, Statistics of U.S. Businesses, Glossary, 2017, https://www.census.gov/programs-surveys/susb/about/glossary.html (Accessed
March 3, 2017)).
---------------------------------------------------------------------------
In Chapter III of the 2017 FEA, OSHA described each application
group; identified the processes and occupations with beryllium
exposure, including available sampling exposure measurements; and
explained how OSHA estimated the number of establishments working with
beryllium and the number of employees exposed to beryllium. Those
estimates and the exposure profiles for abrasive blasting in
construction and shipyards, and welding in shipyards,\14\ are presented
in this section, along with a brief description of the application
groups and an explanation of the derivation of the revised exposure
profiles. For additional information about these data and the
application groups, please see Chapter III of the 2017 FEA.\15\
Finally, this section discusses wage data, the hire rate, and current
industry practices.
---------------------------------------------------------------------------
\14\ The exposure profile used for welding in shipyards in this
PEA, and in the 2017 PEA, differs from the exposure profile used in
Chapter III the 2017 FEA because OSHA is now using maritime-specific
data pulled from the appendices to Chapter IV of the 2017 FEA. See
82 FR 29195.
\15\ OSHA contractor Eastern Research Group (ERG) provided
support for the 2017 FEA.
---------------------------------------------------------------------------
Affected Application Groups
OSHA's 2017 FEA identified one affected application group in the
construction sector and two application groups in the shipyard sector
with potential beryllium exposure. Both the shipyard and construction
sectors have affected employees in the abrasive blasting application
group, and the shipyard sector has affected employees in the welding
application group. OSHA's understanding of the affected application
groups has not changed so for a description of these application
groups, please see Chapter III of the 2017 FEA and section V.B. of the
2017 construction and shipyards NPRM, the Profile of Affected
Application Groups, Establishments, and Employees within the
Preliminary Economic Analysis (82 FR 29189-29200). The agency requests
comment on whether there are any other application groups in the
construction and shipyard sectors with potential beryllium exposure.
Exposure Profile
This section summarizes the data from the 2017 FEA (see Document ID
2042, FEA Chapter IV--Technological Feasibility). It is presented here
for informational purposes only. The information in this section is
drawn entirely from the 2017 FEA and contains no new information.
Abrasive Blasting in Construction and Shipyards
The primary abrasive blasting job categories include the abrasive
blasting operator (blaster) and pot tender (blaster's helper or
assistant) during open blasting projects. Support personnel such as pot
tenders or abrasive media cleanup workers might also be employed to
clean up (e.g., by vacuuming or sweeping) and recycle spent abrasive
and to set up, dismantle, and move containment systems and supplies
(NIOSH, 1976, Document ID 0779; NIOSH, 1993, 0777; NIOSH, 1995, 0773;
NIOSH, 2007, 0770; Flynn and Susi, 2004, 1608; Meeker et al., 2005,
0699).
Section 15 of Chapter IV of the 2017 FEA included a detailed
discussion of exposure data and analysis for the development of the
exposure profile for workers in abrasive blasting operations. Because
OSHA addressed general industry abrasive blasting operations in other
general industry sections where appropriate, such as in the nonferrous
foundries industry, the exposure profile in Section 15 addressed only
exposure data from construction and shipyard tasks. The exposure
profile for abrasive blasters, pot tenders/helpers, and abrasive media
cleanup workers was based on two National Institute for Occupational
Safety and Health (NIOSH) evaluations of beryllium exposure from
abrasive blasting with coal slag, unpublished sampling results for
abrasive blasting operations from four U.S. shipyards, and data
submitted by the U.S. Navy (NIOSH, 1983,
Document ID 0696; NIOSH, 2007, 0770; OSHA, 2005, 1166; U.S. Navy, 2003,
0145).
Welding in Shipyards
Similar to the profile for abrasive blasting activities, OSHA used
exposure data from the 2017 FEA to develop the exposure profile for
welding in shipyards. OSHA used the exposure data from Chapter IV-10
Appendices 2 and 3 and combined the aluminum base metal and non-
aluminum or unknown base material data. OSHA removed shorter duration
samples that appeared in Appendix 3 of FEA chapter IV-10. Seven
maritime welding samples from Appendix 3, Table IV-10.6 with sampling
durations of 240 minutes or greater were used in this profile to
represent the 8-hour TWA samples.
Compared to Chapter III of the 2017 FEA, this caused a change in
the exposure profile for welders in shipyards. The exposure profile for
welding in shipyards is based on data presented in appendices 2 and 3
of Section 10.6 of Chapter IV, and again is more fully summarized in
Section IV of the 2017 PEA. Those data measure exposures of shipyard-
based welders, and OSHA has preliminarily determined that it is a more
suitable data set on which to base the exposure profile of welders in
shipyards than the data used in the 2017 FEA, which were based on
general industry welding exposures.
Tables IV-1 and IV-2 summarize, from the exposure profiles, the
number of workers at risk of beryllium exposure and the distribution of
8-hour TWA beryllium exposures by affected application group and job
category. Exposures are grouped into ranges (e.g., > 0.05 [mu]g/m\3\
and < 0.1 [mu]g/m\3\) to show the percentages of employees in each job
category and sector exposed at levels within the indicated range.
Table IV-3 presents data by NAICS code on the estimated number of
workers at risk of beryllium exposure for each of the same exposure
ranges, based on the exposure profile data and the estimated number of
workers in each job category and application group. As shown, an
estimated 2,168 workers have beryllium exposures above the TWA PEL of
0.2 [mu]g/m\3\.
Table IV-1--Distribution of Beryllium Exposures by Application Group and Job Category or Activity
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exposure level ([mu]g/m\3\)
-----------------------------------------------------------------------------------------------------------------------------------------
Job category/activity 0 to <=0.05 >0.05 to <=0.1 >0.1 to <=0.2 >0.2 to <=0.25 >0.25 to <=0.5 >0.5 to <=1.0 >1.0 to <=2.0
(%) (%) (%) (%) (%) (%) (%) >2.0 (%) Total (%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster...................................... 15.2 15.2 25.7 2.5 12.4 4.7 5.4 18.9 100.0
Pot Tender............................................ 28.1 28.1 43.8 0.0 0.0 0.0 0.0 0.0 100.0
Cleanup............................................... 33.3 33.3 26.7 0.0 0.0 0.0 3.3 3.3 100.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster...................................... 15.2 15.2 25.7 2.5 12.4 4.7 5.4 18.9 100.0
Pot Tender............................................ 28.1 28.1 43.8 0.0 0.0 0.0 0.0 0.0 100.0
Cleanup............................................... 33.3 33.3 26.7 0.0 0.0 0.0 3.3 3.3 100.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welder................................................ 47.4 47.4 1.5 0.0 0.0 3.0 0.7 0.0 100.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding.
\a\ The lowest exposure range in OSHA's technological feasibility analysis is <=0.1 [mu]g/m\3\ (see Chapter IV-02, Limits of Detection for Beryllium Data, in the 2017 FEA (Document ID 2042) in
support of the new beryllium standards). Because OSHA lacked information on the distribution of worker exposures in this range, the agency evenly divided the workforce exposed at or below
0.1 [mu]g/m\3\ into the two categories shown in this table and in the columns with identical headers in Tables IV-2 and IV-3 of this PEA. OSHA recognizes that this simplifying assumption may
overestimate exposure in these lower exposure ranges.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: Table V-7, 2017 beryllium proposal (82 FR at 29195).
Table IV-2--Number of Workers Exposed to Beryllium by Affected Application Group, Job Category, and Exposure Range (mg/m\3\)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exposure level ([mu]g/m\3\)
-----------------------------------------------------------------------------------------------------------------------------------------
Application group/job category 0 to <=0.05 >0.05 to <=0.1 >0.1 to <=0.2 >0.2 to <=0.25 >0.25 to <=0.5 >0.5 to <=1.0 >1.0 to <=2.0
(%) (%) (%) (%) (%) (%) (%) >2.0 (%) Total (%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster...................................... 511 511 863 83 416 159 182 636 3,360
Pot Tender............................................ 945 945 1,470 0 0 0 0 0 3,360
Cleanup............................................... 560 560 448 0 0 0 56 56 1,680
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster...................................... 186 186 314 30 152 58 66 232 1,224
Pot Tender............................................ 344 344 536 0 0 0 0 0 1,224
Cleanup............................................... 204 204 163 0 0 0 20 20 612
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Welding--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welder................................................ 13 13 1 0 0 1 1 0 26
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal................................. 2,016 2,016 2,781 83 416 159 238 692 8,400
Maritime Subtotal..................................... 747 747 1,013 30 152 59 87 252 3,086
Total, All Industries................................. 2,763 2,763 3,794 114 568 218 324 944 11,486
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding. Figures with actual values representing less than one person have been rounded up to one (person).
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: Table V-8, 2017 beryllium proposal (82 FR at 29196).
Table IV-3--Number of Workers Exposed to Beryllium by Affected Industry and Exposure Level (mg/m\3\)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exposure level ([mu]g/m\3\)
-------------------------------------------------------------------------------------------------------------------------------------
Application group/NAICS Industry 0 to <=0.05 >0.05 to <=0.1 >0.1 to <=0.2 >0.2 to <=0.25 >0.25 to <=0.5 >0.5 to <=1.0 >1.0 to <=2.0 Total
(%) (%) (%) (%) (%) (%) (%) >2.0 (%) (%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
238320............................. Painting and Wall 1,046 1,046 1,443 43 216 82 123 359 4,360
Covering Contractors.
238990............................. All Other Specialty 970 970 1,337 40 200 76 114 333 4,040
Trade Contractors.
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Abrasive Blasting--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a............................ Ship Building and 734 734 1,013 30 152 58 87 252 3,060
Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b............................ Ship Building and 13 13 1 0 0 1 1 0 26
Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal..................................... 2,016 2,016 2,781 83 416 159 238 692 8,400
Maritime Subtotal......................................... 747 747 1,013 30 152 59 87 252 3,086
Total, All Industries..................................... 2,763 2,763 3,794 114 568 218 324 944 11,486
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding. Figures with actual values representing less than one person have been rounded up to one (person).
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: Table V-9, 2017 beryllium proposal (82 FR at 29196).
Summary of Affected Establishments and Employers
As shown in Table IV-4, OSHA estimates that a total of 11,486
workers in 2,796 establishments will be affected by this proposal. Also
shown are the estimated annual revenues for these entities. Table IV-5
presents the agency's preliminary estimate of affected entities defined
as small by SBA, and Table IV-6 presents OSHA's preliminary estimate of
affected establishments and employees by NAICS industries for the
subset of small entities with fewer than 20 employees.\16\ For the
tables showing the characteristics of small and very small entities,
OSHA generally assumed that beryllium-using small entities and very
small entities would be the same proportion of overall small and very
small entities as the proportion of beryllium-using entities to all
entities as a whole in a NAICS industry. OSHA in the 2017 PEA requested
public comment on the profile data presented in Tables IV-4, IV-5, and
IV-6, and received none. OSHA continues to welcome comment on the
number of affected establishments, entities, and employers.
---------------------------------------------------------------------------
\16\ Tables IV-5 and IV-6 indicate that small entities affected
by the proposed rule contain 2,714 affected establishments
affiliated with entities that are small by SBA standards and 2,365
affected establishments affiliated with entities that employ fewer
than 20 employees. However, the small and very small entity figures
in Tables IV-5 and IV-6 were not used to prepare the cost savings
estimates in Section D of this PEA. For costing purposes in Section
D, OSHA included small establishments owned by larger entities
versus the figures in Tables IV-5 and IV-6 because such
establishments do not qualify as ``small entities'' for the purposes
of a Regulatory Flexibility Analysis. To see the difference in the
number of affected establishments by size for costing purposes,
consider the example of a ``large entity'' with 500 employees,
consisting of 50 ten-employee establishments. In Section B., each of
these 50 establishments would be excluded from Tables IV-5 and IV-6
because they are part of a ``large entity''; in Section D., where
all establishments are included because there is no filter for
entity size, each would be considered a small establishment.
Thus, for purposes of Section D., there are 2,399 affected
establishments with fewer than 20 employees, 369 affected
establishments with between 20 and 499 employees, and 28
establishments with more than 500 employees. Census (2015)
Statistics of US Businesses data suggest there are also a total of
3,464 establishments affiliated with entities in construction and
shipyards employing between 20 and 499 employees, of which
approximately 157 would be affected by the rule.
Table IV-4--Characteristics of Industries Affected by OSHA's Proposed Deregulatory Action for Beryllium--All Entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
Total Total Total Affected Affected Affected revenues Revenues / Revenues /
NAICS code Industry entities a establishments a employees a entities b establishments b employees b ($1,000) a entity a establishment a
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
238320..................... Painting and Wall Covering 31,317 31,376 163,073 1,088 1,090 4,360 $19,595,278 $625,707 $624,531
Contractors.
238990..................... All Other Specialty Trade 28,734 29,072 193,631 998 1,010 4,040 39,396,242 1,371,067 1,355,127
Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a.................... Ship Building and Repairing. 604 689 108,311 604 689 3,060 26,136,187 43,271,832 37,933,508
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b.................... Ship Building and Repairing. 604 689 108,311 6 7 26 26,136,187 43,271,832 37,933,508
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal.................................... 60,051 60,448 356,704 2,086 2,100 8,400 58,991,520 982,357 975,905
Maritime Subtotal........................................ 604 689 108,311 610 696 3,086 26,136,187 43,271,832 37,933,508
Total, All Industries.................................... 60,655 61,137 465,015 2,696 2,796 11,486 85,127,707 1,403,474 1,392,409
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Data may not sum to totals due to rounding. [a] U.S. Census Bureau, Statistics of U.S. Businesses: 2012 (Document ID 2034).
\b\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the
number of affected employees.
Source: Table V-4, 2017 beryllium proposal (82 FR at 29192).
Table IV-5--Characteristics of Construction and Shipyard Industries Affected by OSHA's Proposed Action for Beryllium--Small Entities
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Affected Affected
SBA small Small Establishments small Affected small employees Total revenues
NAICS code Industry business business for small Small entity business establishments for small for small Revenues/small Revenues/small
classification entities entities \b\ employees \b\ entities \c\ entities entities entity establishment
(employees) \a\ \b\ \c\ \c\ ($1,000) \b\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
238320...................................... Painting and Wall 100 31,221 31,243 133,864 1,085 1,085 3,579 $16,552,251 $530,164 $529,791
Covering Contractors.
238990...................................... All Other Specialty Trade 100 28,537 28,605 143,112 991 994 2,986 29,789,492 1,043,890 1,041,409
Contractors.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a..................................... Ship Building and 1,250 585 629 27,170 585 629 768 6,043,893 10,331,440 9,608,732
Repairing.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b..................................... Ship Building and 1,250 585 629 27,170 6 6 7 6,043,893 10,331,440 9,608,732
Repairing.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal.................................................. ................ 59,758 59,848 276,976 2,076 2,079 6,565 46,341,743 775,490 774,324
Maritime Subtotal...................................................... ................ 585 629 27,170 591 635 775 6,043,893 10,331,440 9,608,732
Total, All Industries.................................................. ................ 60,343 60,477 304,146 2,667 2,714 7,340 52,385,636 868,131 866,208
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Data may not sum to totals due to rounding.
\a\ SBA Size Standards, 2016.
\b\ U.S. Census Bureau, Statistics of U.S. Businesses: 2012 (Document ID 2034).
\c\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees.
Source: Table V-5, 2017 beryllium proposal (82 FR at 29194).
Table IV-6--Characteristics of Industries Affected by OSHA's Proposed Deregulatory Action for Beryllium--Entities With Fewer Than 20 Employees
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Affected
Employees Affected Affected employees Total revenues
Entities Establishments for entities establishments for for entities Revenues Revenue per
Application group NAICS Industry with <20 for entities entities with <20 for entities entities with <20 per entity estab. for
employees with <20 with <20 employees with <20 with <20 employees with <20 entities with
\a\ employees \a\ employees \b\ employees \b\ employees ($1,000) \a\ employees <20 Employees
\a\ \b\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction................... 238320 Painting and Wall Covering 29,953 29,957 87,984 1,041 1,041 2,352 $10,632,006 $354,956 $354,909
Contractors.
Abrasive Blasting--Construction................... 238990 All Other Specialty Trade 27,026 27,041 90,82 939 939 1,895 19,232,052 711,613 711,218
Contractors.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards...................... 336611a Ship Building and Repairing.... 380 381 2,215 380 381 381 547,749 1,441,445 1,437,661
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards **
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards.............................. 336611b Ship Building and Repairing.... 380 381 2,215 4 4 4 547,749 1,441,445 1,437,661
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal.............................................................................. 56,979 56,998 178,806 1,980 1,980 4,247 29,864,058 524,124 523,949
Shipyards Subtotal................................................................................. 380 381 2,215 384 385 385 547,749 1,441,445 1,437,661
Total, All Industries.............................................................................. 57,359 57,379 181,021 2,364 2,365 4,632 30,411,807 530,201 530,016
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Data may not sum to totals due to rounding.
\a\ U.S. Census Bureau, Statistics of U.S. Businesses: 2012 (Document ID 2034).
\b\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: Table V-6, 2017 beryllium proposal (82 FR at 29195).
Loaded Wages and New Hire Rate
For this PEA, OSHA updated the 2017 PEA wage estimates from 2016 to
2018 levels using data for base wages by Standard Occupational
Classification (SOC) from the March 2018 Occupational Employment
Statistics survey of the Bureau of Labor Statistics. OSHA applied a
fringe markup (loading factor) of 46.6 percent of base wages (BLS,
2018b, Document ID 2186); \17\ loaded hourly wages by application group
and SOC are shown in Table IV-7. OSHA also updated the new hire rate
for manufacturing from its 2017 PEA estimate of 25.7 percent to a final
estimate of 34.7 percent (BLS, 2018c, Document ID 2173). The agency
applied the updated rate (34.7 percent) in this preliminary profile and
requests public comment on the preliminary wage and hire rates shown in
Table IV-7.
---------------------------------------------------------------------------
\17\ A fringe markup (loading factor) of 46.6 percent was
calculated in the following way. Employer costs for employee
compensation for civilian workers averaged $36.32 per hour worked in
March 2018. Wages and salaries averaged $24.77 per hour worked and
accounted for 68.2 percent of these costs, while benefits averaged
$11.55 and accounted for the remaining 31.8 percent. Therefore, the
fringe markup (loading factor) is $11.55/$24.77, or 45.6 percent.
Total employer compensation costs for private industry workers
averaged $34.17 per hour worked in March 2018 (BLS, 2018b, Document
ID 2186).
---------------------------------------------------------------------------
Baseline Industry Practices and Existing Regulatory Requirements
(``Current Compliance'') on Hazard Controls and Ancillary Provisions
Table IV-8 reflects OSHA's estimate of baseline industry compliance
rates, by application group and job category, for each of the ancillary
provisions that, under the 2017 final rule, would affect the
establishments that are subject to this preliminary deregulatory
action. See Chapter III of the 2017 FEA for additional discussion of
the current baseline compliance rates for each provision, which were
estimated based on site visits, industry contacts, published
literature, and the Final Report of the Small Business Advocacy Review
(SBAR) Panel (SBAR, 2008, Document ID 0345). Note that the compliance
rate is typically the same for all jobs in a given sector.
In the 2017 FEA, OSHA estimated that abrasive blasters in
construction and shipyards had a 75 percent compliance rate with the
PPE requirements in the beryllium standards. The 2017 PEA revised those
estimates to 100 percent compliance based on the belief that 29 CFR
1926.57(f)(5)(v) already required abrasive blasting operators to wear
full PPE, including respirators, gloves, safety shoes, and eye
protection; that 29 CFR 1915.34(c)(3) required full PPE for abrasive
blaster operators performing mechanical paint removal in shipyards; and
that 29 CFR 1915.157(a) required welders in shipyards to wear gloves.
(82 FR 29197). Some commenters disagreed with this estimate for
abrasive blasting operations. NABTU noted that ``with the exception of
abrasive blasting operators wearing type CE respirators, construction
workers' use of PPE during abrasive blasting operations is extremely
limited.'' (Document ID 2129, p. 11). BHSC also expressed concern about
the degree of protection afforded by the other OSHA standards to
workers near abrasive blasting operations, stating that the estimated
100 percent PPE use for those workers ``does not have supporting
evidence of consistent and standard use across pot tenders and cleanup
activities supporting abrasive blasting'' (Document ID 2118, p. 5).
While the agency acknowledges these comments claiming that its
revised 100 percent compliance estimate was too high for abrasive
blasting operations, OSHA is also proposing to remove dermal contact
with beryllium as a trigger for PPE requirements. This clarifies and
limits the activities that would trigger PPE requirements under this
proposal, making a higher baseline compliance estimate more
appropriate. The agency has preliminarily determined that a better
estimate for PPE for abrasive blasting operations is in between the two
previous estimates of 75 percent and 100 percent. OSHA preliminarily
estimates 90% compliance for PPE for areas where exposures exceed, or
can reasonably be expected to exceed, the TWA PEL or STEL, which are
the only areas in which the standards would require PPE under the
proposed revisions. For welders in shipyards, OSHA estimated a 0%
compliance rate in the 2017 FEA and revised that estimate in the 2017
PEA because gloves are required under 29 CFR 1915.157(a) to protect
workers from hazards faced by welders, such as thermal burns. OSHA
continues to estimate a 100% PPE compliance rate for welders in
shipyards in areas where exposures can exceed the TWA PEL or STEL
because of the overlap with 29 CFR 1915.157(a).\18\
---------------------------------------------------------------------------
\18\ In fact, the 0 percent baseline compliance rate for PPE in
shipyard welding in the 2017 FEA was simply a mistake insofar as
baseline compliance rate for PPE for welding in general industry was
100 percent in the same document. 2017 FEA, Ch. III, p. III-188.
---------------------------------------------------------------------------
In the 2017 FEA, for the three occupational groups involved in
abrasive blasting (operators, pot-tenders, and clean-up workers), OSHA
estimated a 75% compliance rate with respirators that met the beryllium
standards' requirements. In the 2017 PEA, operators, but not pot-
tenders or clean-up workers, were revised to 100% compliance due to the
strict existing standards for operators (see Sec. Sec. 1926.57(f) and
1915.34(c)(3)(iv)). This PEA continues to use these baseline compliance
estimates of 100% for operators and 75% for pot tenders and clean-up
workers. For welders in shipyards, the 2017 FEA estimated 0% compliance
with proper respirator use and a 25% compliance rate with the
requirement to establish a respiratory protection program. OSHA is
revising this estimate to 100% in this PEA because in shipyards, other
standards addressing respiratory protection include the Mechanical
Paint Removers standard (29 CFR 1915.34(c)(3)), the Confined and
Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment
standards (29 CFR 1915.12(c)(4)(ii)), the Welding, Cutting, and Heating
standards for shipyards (29 CFR 1915.51(d)(2)(iv)), as well as the
general Respiratory Protection standards (29 CFR 1910.134, 1915.154).
The baseline compliance rates for the housekeeping provisions in
the 2017 FEA were 0% for welders in shipyards and 75% for blasters, pot
tenders, and clean-up workers in abrasive blasting in both construction
and shipyards. In the 2017 PEA, OSHA reviewed existing housekeeping
requirements and updated the estimate from 75% to 100% for abrasive
blasting operations because some housekeeping is required by existing
standards for abrasive blasting operations in construction and
shipyards. The Summary and Explanation for housekeeping for this NPRM
discusses the agency's preliminary finding that existing standards
cover general housekeeping requirements for blasters, pot tenders, and
clean-up workers, though these other standards allow some cleaning
methods that the beryllium standards, and the proposed revisions,
limit, like dry sweeping or brushing and compressed air. Under this
proposal, housekeeping requirements would no longer apply when dust
from trace amounts of beryllium could not be expected to cause airborne
exposures above the TWA PEL and STEL. Hence, these requirements are
estimated to only affect areas where workers are exposed above the TWA
PEL or STEL in the exposure profile. While the proposed revisions will
limit the methods that employers may use to clean up beryllium, OSHA
estimates that cleaning methods that do not disperse
beryllium into the air take approximately the same amount of time as
cleaning methods already in use. For abrasive blasting operations, the
agency therefore maintains from the 2017 PEA its 100% compliance rate
for housekeeping for abrasive blasting operations. OSHA requests
comment on the compliance rate with the proposed housekeeping
provisions in the abrasive blasting industries in construction and
shipyards.
For welders in shipyards, OSHA estimated a 0% compliance rate for
housekeeping in both the 2017 FEA and the 2017 PEA. As explained in the
Summary and Explanation, OSHA has reason to believe that skin or
surface contamination is not an exposure source of concern in welding
in shipyards. The proposed revisions would also limit the circumstances
in which housekeeping is required. OSHA therefore estimates that in
welding in shipyards, employers will not have to engage in additional
housekeeping to comply with the proposed revisions and is revising its
baseline compliance estimate for housekeeping to 100% for welding in
shipyards.
In the 2017 PEA, OSHA treated the compliance rates for vacuums,
bags, and labels separately from the labor costs of housekeeping. OSHA
estimated a 0% compliance rate for all industries in construction and
shipyards for vacuums, bags, and labels because it believed the cost of
such equipment was not covered by other standards. In this PEA, OSHA is
setting the compliance rates under housekeeping for vacuums, bags, and
labels to 100% as this proposal removes those requirements from the
standard.
The baseline compliance rates for the hygiene areas provisions in
the 2017 FEA were 0% for welders in shipyards and 75% for blasters, pot
tenders, and clean-up workers in abrasive blasting in both construction
and shipyards. As explained in the Summary and Explanation section of
this preamble, OSHA is proposing to remove paragraph (i), Hygiene
areas, from the construction and shipyards standards. The standards as
modified by this proposal therefore no longer require employers to
comply with any hygiene-related provisions, and the baseline compliance
is revised to 100% to demonstrate that there will be no cost associated
with hygiene areas under the proposal.
The baseline compliance rate for each of the remaining provisions
was unchanged from the 2017 FEA to the 2017 PEA and remains unchanged
in this PEA. OSHA welcomes comments on the baseline compliance
estimates shown in Table IV-8, particularly with respect to PPE and
housekeeping.
As a final point on baseline industry practices, OSHA acknowledges
the possibility of a future decline in the use of coal slag abrasive
materials and welcomes comment and information on this issue. To the
extent that coal slag abrasives are being replaced, for reasons
unrelated to the implementation of this standard, by other blasting
materials that do not have the potential for beryllium exposures of
concern, the costs and benefits of compliance with the TWA PEL for
abrasive blasting operations would also decrease.
Table IV-7--Loaded Hourly Wages and Hire Rate for Occupations (Jobs) Exposed to Beryllium and Affected by OSHA's Proposed Beryllium Standard
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fringe Loaded
Median markup hourly (or
Provision in the standard Job NAICS SOC \a\ Occupation hourly wage percentage, daily \d\)
total \b\ wage
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monitoring \c\...................... Industrial Hygienist N/A N/A N/A.................... N/A N/A $172.28
Consultant.
Monitoring \d\...................... IH Technician--Initial. ........... ........... ....................... ........... ............ \d\
2,759.73
IH Technician--Additional and ....................... ........... ........... ....................... ........... ............ 1,379.86
Periodic.
Regulated Area/Job Briefing \e\..... Production Worker...... 31-33 51-0000 Production Occupations. $17.37 46.6 25.47
Medical Surveillance \e\............ Human Resources Manager 31-33 11-3121 Human Resources 53.38 46.6% 78.27
Managers.
Exposure Control Plan, Medical Clerical............... 31-33 43-4071 File Clerks............ 16.85 46.6 24.71
Surveillance, and Medical Removal
\e\.
Training \e\........................ Training Instructor.... 31-33 13-1151 Training and 28.99 46.6 42.51
Development
Specialists.
Medical Surveillance \e\............ Physician (Employers' 31-33 29-1062 Family and General 88.95 46.6 130.43
Physician). Practitioners.
Multiple Provisions \f\............. First Line Supervisor.. Various 51-1011 First-Line Supervisors 29.59 46.6 43.39
of Production and
Operating Workers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2019).
\a\ 2010 Standard Occupational Classification System. Bureau of Labor Statistics. http://www.bls.gov/soc/classification.htm.
\b\ BLS, 2018b. 46.6 percent represents fringe as a percentage of base wages. BLS-reported data for fringe as a percentage of total compensation is 31.8
percent.
\c\ ERG estimates based on discussions with affected industries, and inflated to 2018 Dollars.
\d\ Wages used in the economic analysis for the Silica final rule, inflated to 2018 Dollars.
\e\ BLS, 2018a.
\f\ BLS, 2018a; Weighted average for SOC 51-1011 in NAICS 313000, 314000, 315000, 316000, 321000, 322000, 323000, 324000, 325000, 326000, 327000,
335000, 336000, 337000, and 339000.
Table IV-8--Estimated Current Compliance Rates for Industry Sectors Affected by OSHA's Proposed Beryllium Standard
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hygiene Respirators Housekeeping
Exposure Regulated Medical Exposure ------------------------------- --------------------------------------------------------
Application group Job assessment areas/ Medical removal control PPE (%) Training Employee/ Establishment/ Vacuum,
(%) competent surveillance program (%) plan (%) Employees Establishments respirator respirator Labor (%) bags,
person (%) (%) (%) (%) program (%) labels (%)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction Abrasive Blaster. 0 75 75 0 75 90 100 100 75 100 100 100 100
Abrasive Blasting--Construction Pot Tender....... 0 75 75 0 75 90 100 100 75 75 75 100 100
Abrasive Blasting--Construction Cleanup.......... 0 75 75 0 75 90 100 100 75 75 75 100 100
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards... Abrasive Blaster. 0 75 75 0 75 90 100 100 75 100 100 100 100
Abrasive Blasting--Shipyards... Pot Tender....... 0 75 75 0 75 90 100 100 75 75 75 100 100
Abrasive Blasting--Shipyards... Cleanup.......... 0 75 75 0 75 90 100 100 75 75 75 100 100
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards............. Welder........... 0 0 0 0 0 100 100 100 0 100 100 100 100
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2019).
\a\ Estimated compliance rates for medical surveillance do not include medical referrals. OSHA estimates that baseline compliance rates for medical referrals are zero percent for all application groups shown in the table.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasive to etch the surfaces of boats and ships.
** Employers in application group Welding--Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
C. Technological Feasibility Summary
This section summarizes OSHA's technological feasibility findings
made in the 2017 FEA (see Document ID 2042, FEA Chapter IV--
Technological Feasibility). It is presented here for informational
purposes only. The information in this section is drawn entirely from
the 2017 FEA and contains no new information or assessment.
Overall, based on the information discussed in Chapter IV of the
2017 FEA, OSHA determined that the majority of the exposures in
construction and shipyards are either already at or below the new final
PEL, or can be adequately controlled to levels below the final PEL
through the implementation of additional engineering and work practice
controls for most operations most of the time. The one exception is
that OSHA determined that workers who perform open-air abrasive
blasting using mineral grit (i.e., coal slag) will routinely be exposed
to levels above the final PEL even after the installation of feasible
engineering and work practice controls, and therefore, these workers
will also be required to wear respiratory protection. Therefore, OSHA
concluded in the January 9, 2017 final rule that the final PEL of 0.2
[micro]g/m\3\ is technologically feasible in abrasive blasting in
construction and shipyards and in welding in shipyards.
D. Costs of Compliance
Introduction
Throughout this section, OSHA presents cost-saving formulas in the
text, usually in parentheses, to help explain the derivation of cost-
saving estimates for the individual provisions. Because the values used
in the formulas shown in the text are shown only to the second decimal
place, while the spreadsheets supporting the text are not limited to
two decimal places, the calculation using the presented formula will
sometimes differ slightly from the totals presented in the tables.
These estimates of cost savings are largely based on the cost
estimates presented for Regulatory Alternative 2a in the preamble for
the 2017 final rule (82 FR at 2470, 2612-2615), which were in turn
derived from the Costs of Compliance chapter (Chapter V) of the 2017
FEA. OSHA has retained the same calculation methods from the 2017 FEA,
detailed in Chapter V of that document, and has updated all wages and
unit costs to 2018 dollars. All cost savings in this PEA similarly are
expressed in 2018 dollars and were annualized using discount rates of 3
percent and 7 percent, as required by OMB.\19\ Unit costs developed in
this section were multiplied by the number of workers who would have to
comply with the provisions, as identified in Section B of this PEA
(Profile of Affected Application Groups, Establishments, and
Employees). The estimated number of affected workers depends on what
level of exposure triggers a particular provision and the percentage of
those workers already in compliance. In a few cases, costs were
calculated based on the number of firms. As in the 2017 FEA, OSHA is
estimating that the beryllium standards will reduce the number of
workers exposed to beryllium over the PEL by 90 percent. Therefore, for
ancillary provisions that require employers to take action for
employees who continue to be exposed over the PEL, like respiratory
protection and PPE, OSHA estimates the cost based on ten percent of the
number of employees exposed over the PEL in the exposure profiles.
---------------------------------------------------------------------------
\19\ See OMB Memo M-17-21 (April 5, 2017). OSHA included the 3
percent rate in its primary analysis, but Appendix IV-A of this PEA
also presents costs by NAICS industry and establishment size
categories using, as alternatives, a 7 percent discount rate--shown
in Table IV-21--and a 0 percent discount rate--shown in Table IV-22.
---------------------------------------------------------------------------
For purposes of calculating costs, OSHA assumes a 250-day work
year. This is a standard calculation that OSHA and others use, which
assumes employees work 5 days a week with 2 weeks of vacation,
resulting in 250 work days per year (50 weeks x 5 work days a week).
OSHA requests comment on the appropriateness of this estimate for both
the construction and shipyard industries.
Estimated compliance rates are presented in Table IV-8 in Section B
of this preamble. The estimated costs for this beryllium proposal
represent the additional costs necessary for employers to achieve full
compliance with the proposed rule. The costs of complying with the
beryllium proposal's program requirements therefore depend on the
extent to which employers in affected application groups have already
undertaken some of the required actions. A discussion of affected
workers is presented in Section B of this PEA. Complete calculations
are available in the OSHA spreadsheet in support of this PEA (OSHA,
2019). Annualization periods for expenditures on equipment are based on
equipment life, and one-time costs are annualized over a 10-year
period.\20\ The agency first presents costs for the full 2017 final
rule with only updated wages, unit costs, and hiring rates based on
2018 data. All other estimates (compliance rates, exposure profile,
etc.) are the same as the 2017 FEA. This is the baseline from which all
cost savings of the proposal are benchmarked.
---------------------------------------------------------------------------
\20\ Executive Order 13563 directs agencies ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' In addition, OMB
Circular A-4 suggests that analysis should include all future costs
and benefits using a ``rule of reason'' to consider for how long it
can reasonably predict the future and limit its analysis to this
time period. Annualization should not be confused with depreciation
or amortization for tax purposes. Annualization spreads costs out
evenly over the time period (similar to the payments on a mortgage)
to facilitate comparison of costs and benefits across different
years. In cases where costs occur on an annual basis, but do not
change between years, annualization is not necessary, and OSHA may
refer simply to ``annual'' costs.
---------------------------------------------------------------------------
Table IV-9 shows these costs, which total for all occupations in
construction and shipyards to $12.7 million at a discount rate of 3
percent, an increase of 3% from the equivalent cost for the 2017 FEA
($12.3 million).
Table IV-9--Total Annualized Costs of Full 2017 Final Beryllium Rule, by Sector and Six-Digit NAICS Industry;
Results Shown by Size Category
[3 Percent Discount Rate, 2018 Dollars]
----------------------------------------------------------------------------------------------------------------
Very small
Application group/NAICS Industry All Small entities entities (<20
establishments (SBA-defined) employees)
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320............................... Painting and Wall $4,704,939 $3,962,355 $2,775,400
Covering
Contractors.
238990............................... All Other 4,360,056 3,352,464 2,288,751
Specialty Trade
Contractors.
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
----------------------------------------------------------------------------------------------------------------
336611a.............................. Ship Building and 3,531,117 1,131,837 593,268
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding in Shipyards
----------------------------------------------------------------------------------------------------------------
336611b.............................. Ship Building and 74,259 21,743 12,163
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal................ .................. 9,064,995 7,314,819 5,064,151
Maritime Subtotal.................... .................. 3,605,376 1,153,580 605,431
Total, All Industries................ .................. 12,670,371 8,468,399 5,669,582
----------------------------------------------------------------------------------------------------------------
Notes: Figures in rows may not add to totals due to rounding.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
To estimate the cost savings of the proposal, OSHA estimated the
difference between the costs of the 2017 final rule (with updated
wages, prices, and hiring rate), Table IV-9, and the costs of this
proposal. These cost savings are presented and discussed below. Table
IV-10 shows first, by affected application group and six-digit NAICS
code, annualized cost savings for all establishments, for all small
entities (as defined by the Small Business Act and SBA's implementing
regulations; see 15 U.S.C. 632 and 13 CFR 121.201), and for all very
small entities (defined by OSHA as those with fewer than 20 employees).
OSHA estimates that this proposal would yield a total annualized cost
savings of $2.5 million using a 3 percent discount rate across the
shipyard and construction sectors.
The agency notes that it did not include an overhead labor cost
either in the 2017 FEA in support of the January 9, 2017 final
standards, the 2017 PEA, or in this PEA. 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
address before being applying overhead costs to analyze the costs of
any specific regulation. There are several approaches to look at the
cost elements that fit the definition of overhead, and there are a
range of overhead estimates currently used within the federal
government--for example, the Environmental Protection Agency has used
17 percent,\21\ and government contractors have reportedly used an
average 50 percent for on-site (i.e., company site) overhead.\22\ Some
overhead costs, such as advertising and marketing, vary with output
rather than with labor costs. Other overhead costs vary with the number
of new employees. For example, rent or payroll processing costs may
change little with the addition of one employee in a 500-employee firm,
but those costs 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.
---------------------------------------------------------------------------
\21\ 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.
\22\ For a further example of overhead cost estimates, please
see the Employee Benefits Security Administration's guidance at
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, please 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.
---------------------------------------------------------------------------
If OSHA had included an overhead rate when estimating the marginal
cost of labor, without further analyzing an appropriate quantitative
adjustment, and adopted for these purposes an overhead rate of 17
percent on base wages, the cost savings of this proposal would increase
by approximately $237,000 per year, or approximately 10 percent above
the primary estimate of cost savings.
Table IV-10--Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the
Shipyard and Construction Beryllium Standards (by Size Category, 3 Percent Discount Rate, 2018 Dollars)
----------------------------------------------------------------------------------------------------------------
Very small
Application group/NAICS Industry All Small entities entities (<20
establishments (SBA-defined) Employees)
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320........................... Painting and Wall $931,193 $766,473 $507,332
Covering
Contractors.
238990........................... All Other Specialty 862,849 640,416 409,777
Trade Contractors.
----------------------------------
Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------
336611a.......................... Ship Building and 652,718 168,693 84,478
Repairing.
----------------------------------
Welding in Shipyards **
----------------------------------------------------------------------------------------------------------------
336611b.......................... Ship Building and 20,525 5,419 3,007
Repairing.
----------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal.................................. 1,794,042 1,406,889 917,110
Shipyard Subtotal...................................... 673,243 174,112 87,485
Total, All Industries.................................. 2,467,286 1,581,001 1,004,594
----------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use
mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may
do both welding and abrasive blasting.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Program Cost Savings
This subsection presents OSHA's estimated cost savings from this
proposal for each provision individually. Each provision will be
discussed separately below. Where there is either no change from the
2017 final rule or a change that does not alter the underlying
methodology, such as a change in compliance rates or the elimination of
the dermal contact trigger, no underlying methodology or unit cost
estimates are presented as they are the same, updated to 2018 dollars,
as the 2017 FEA. In other cases both the initial methodology and unit
cost estimates are presented. All cost savings by program element,
along with the cost savings for each affected NAICS industry, are shown
in Table IV-15 at the end of this program cost-savings section.
Exposure Assessment
Overview of Regulatory Requirements in the 2017 Final Rule and
Proposed Changes OSHA is not proposing any changes to paragraph (d),
Exposure assessment. OSHA is also not changing any estimates to the
baseline compliance rate with this paragraph. Hence, there are no cost
savings for this provision.
Beryllium Regulated Areas (Shipyards) And Competent Person
(Construction)
OSHA is not proposing any changes to paragraph (e), the regulated
areas provision in shipyards or the competent person provision in
construction, nor are there any changes to compliance rates. Hence,
there are no cost savings for this provision.
Methods of Compliance
Overview of Regulatory Requirements in the 2017 Final Rule
Under the current beryllium standards, employers are required to
establish and maintain a written exposure control plan.
Further, employers must review it at least annually, and must
update the exposure control plan when:
(A) Any change in production processes, materials, equipment,
personnel, work practices, or control methods results or can reasonably
be expected to result in new or additional airborne exposures to
beryllium;
(B) The employer becomes aware that an employee has a beryllium-
related health effect or symptom, or is notified that an employee is
eligible for medical removal; or
(C) The employer has any reason to believe that new or additional
airborne exposures are occurring or will occur.
Finally, the employer must make a copy of the written exposure
control plan accessible to each employee who is, or can reasonably be
expected to be, exposed to airborne beryllium.
Paragraph (f)(2)(i) of the 2017 final standards requires employers
to use at least one engineering or work practice control where
exposures are, or can reasonably be expected to be, above the action
level unless the employer can establish that such controls are not
feasible or that airborne exposure is below the action level. Paragraph
(f)(3) prohibits rotation of workers among jobs to achieve compliance
with the TWA PEL and STEL.
Cost Savings Estimates of This Proposal
For the written exposure control plan, OSHA is proposing several
revisions. First, OSHA proposes to remove the words ``airborne'' and
``or dermal contact with'' as qualifiers for exposure to beryllium.
This would not change coverage of workers for which a written exposure
control plan is needed for these sectors, and would therefore have no
impact on costs. This proposal would reduce the number of elements that
must explicitly be listed in the plan. The elements OSHA is proposing
to eliminate are: Procedures for minimizing cross contamination and the
migration of beryllium within or to locations outside the workplace;
procedures for removing, laundering, cleaning, storing, repairing, and
disposing of beryllium contaminated PPE, including clothing, and
equipment including respirators; a separate listing of operations and
job titles for those that would entail beryllium exposure above action
level; and a separate listing of those that would be above the TWA PEL
or STEL. This streamlined written
control plan would still include a list of operations and job titles
that involve exposure to beryllium; a list of engineering controls,
work practices, and respiratory protection; and procedures for
restricting access to work areas where airborne exposures are, or can
reasonably be expected to be, above the TWA PEL or STEL. OSHA is also
proposing a new requirement to list procedures used to ensure the
integrity of each containment used to minimize exposures to employees
outside the containment.
The agency estimates that the cost for the written exposure control
plan will be cut in half due to the reduced requirements in this
proposal. This estimate includes the additional time needed for the new
paragraph that requires including procedures for containment. OSHA
estimated in the current beryllium standards that the time burden per
establishment for an average-sized firm to develop the initial written
exposure control plan was 8 hours. With the simplified written plan
requirements, the agency thus judges that a manager will need only 4
hours, a reduction of 4 hours, for a per establishment cost savings of
$313.08 at an hourly wage of $78.27 (Human Resources Managers, SOC: 11-
3121), to develop the plan.
In addition, because larger firms with more affected workers will
need to develop more complicated written control plans, OSHA estimated
for the current beryllium standards that the development of a plan
would require an extra thirty minutes of a manager's time per affected
employee. The reduced number of job titles and operations that would
need to be listed in some cases for this proposal, as well as other
elements, will decrease this burden, and the agency has lowered the
time per affected employee to 15 minutes, a reduction of 15 minutes.
The cost savings for 15 minutes less of a manager's time per affected
employee to develop a less complicated plan is $19.57 (0.25 x $78.27)
per affected employee in this PEA.
Because of various triggers under which the employer would have to
update the plan at least annually after the first year, the agency
further estimated that in the current beryllium standards, on average,
managers would need 12 minutes (0.2 hours) per affected employee per
quarter--or 48 minutes (4 x 12), which equals 0.8 hours, per affected
employee per year--to review and update the plan. The streamlined plan
will similarly be simpler to update, and the agency assumes the amount
will be cut in half, from 48 minutes per employee per year to 24
minutes, a reduction of 24 minutes. Thus, the cost savings for managers
to review and update the plan would be $31.31 (0.4 x $78.27 per
affected employee) for years 2-10.
Finally, OSHA estimated 5 minutes of clerical time each year per
employee for providing each employee with a copy of the written
exposure control plan. This will not change under this proposal, so
there are no cost savings for this element. See Table IV-11 for a
summary of these unit cost saving estimates.
Table IV-11--Unit Cost Savings for Written Exposure Control Plan
------------------------------------------------------------------------
Item Value
------------------------------------------------------------------------
Develop Plan
------------------------------------------------------------------------
HR Manager Hour Decrease per Establishment................... 4
HR Manager Hour Decrease per Employee........................ 0.25
HR Manager Wage.............................................. $78.27
Unit Cost Savings per Establishment.......................... $313.08
Unit Cost Savings per Employee............................... $19.57
------------------------------------------------------------------------
Review Plan
------------------------------------------------------------------------
HR Manager Hour Decrease per Employee........................ 0.10
Times Reviewed per Year...................................... 4
HR Manager Wage.............................................. $78.27
Unit Cost Savings per Employee............................... $31.31
------------------------------------------------------------------------
Total
------------------------------------------------------------------------
Unit Cost Savings per Establishment.......................... $313.08
Unit Cost Savings per Employee............................... $50.88
------------------------------------------------------------------------
Sources: BLS, 2019a; BLS, 2018; U.S. DOL, OSHA, Directorate of Standards
and Guidance, Office of Regulatory Analysis.
OSHA estimates that the total annualized cost savings for reducing
the requirements for development and update of a written exposure
control plan is $122,989 for all affected industries in shipyards and
construction.
In addition, OSHA proposes to revise paragraph (f)(2) concerning
engineering and work practice controls by removing the requirement to
implement one engineering or work practice control where exposures are
between the action level and the PEL. However, based on the
technological feasibility analysis presented in Chapter IV of the 2017
FEA, OSHA determined that there were no instances in construction or
shipyards where this provision would apply (see pp. V-11/12 of the 2017
FEA). Thus, this proposed revision has no effect on costs.
OSHA is not proposing to revise paragraph (f)(3), which prohibits
rotation of workers to achieve the TWA PEL and STEL, so there are no
cost savings associated with this provision.
OSHA is not proposing to revise the baseline compliance estimates
for the requirements of paragraph (f), so there are no associated cost
adjustments.
Respiratory Protection
Overview of Regulatory Requirements in the 2017 Final Rule
The employer must provide respiratory protection at no cost to the
employee and ensure that each employee uses respiratory protection:
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; 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;
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;
during emergencies; and when an employee who is eligible for medical
removal under paragraph (l)(1) chooses to remain in a job with airborne
exposure at or above the action level, as permitted by paragraph
(l)(2)(ii) of this standard.
The selection and use of such respiratory protection must be in
accordance with the Respiratory Protection standard (29 CFR 1910.134).
The employer must provide at no cost to the employee a powered air-
purifying respirator (PAPR) instead of a negative pressure respirator
when respiratory protection is required, an employee requests one, and
the PAPR would provide adequate protection to the employee.
Cost Savings Estimates of This Proposal
Proposed Changes
OSHA is proposing to revise paragraph (g) by removing the
requirement to provide respiratory protection during emergencies. In
the 2017 final rule, OSHA stated that emergencies should be rare and
therefore did not account for any respirator costs due to emergencies.
The cost adjustments described in this section are due to revised
baseline compliance estimates and are discussed below.
Updated Baseline Compliance Estimates
As discussed in section IV.B of this NPRM, the compliance rate for
respirator use, for abrasive blast operators only, is estimated to be
100% in this PEA, due to closer analysis of existing standards for
operators. The 2017 FEA estimated compliance rates for respirators for
all abrasive blasting occupations as 75%. Hence, there is a cost
adjustment due to the 25% of operators who will not need to be provided
respirators as estimated under the 2017 final rule. For pot tenders and
helpers, OSHA is not estimating a change in the compliance rate for
respiratory protection. For welders in shipyards, the change in the
exposure profile from the 2017 FEA to the 2017 PEA (as explained above
in section IV.B.), and retained in this PEA, slightly decreased
respirator use as well. The 2017 FEA estimated a 0% compliance rate for
respiratory protection and a 25% compliance rate for setting up a
respiratory protection program, while this PEA estimates a 100%
compliance rate for both. The 2017 FEA estimated 29.7% of welders in
shipyards had beryllium exposures over the new PEL of 0.2 [micro]g/
m\3\. The 2017 PEA and this PEA estimate that only 3.7% of welders in
shipyards have beryllium exposures over the new PEL of 0.2 [micro]g/
m\3\. As in the 2017 FEA, OSHA is estimating that the beryllium
standards will reduce the number of workers with exposures above the
PEL by 90 percent.
The cost method that follows is largely the same as that used in
the 2017 FEA with updated 2018 wage rates, with two exceptions. First,
blasting operators, due to other existing standards (1926.57(f),
1915.34(c)), must use supplied air respirators (SARs) and will not have
the option of requesting a PAPR. Second, no cleaning costs for a PAPR
were estimated in the 2017 FEA. This is revised below because OSHA now
estimates that PAPRs will need to be cleaned periodically.
Unit Cost Estimates
There are five primary costs for respiratory protection. First,
there is a cost per establishment to set up a written respirator
program in accordance with the respiratory protection standard (29 CFR
1910.134). The respiratory protection standard requires written
procedures for the proper selection, use, cleaning, storage, and
maintenance of respirators. OSHA estimates that these procedures will
take a human resources manager 8 hours to develop, at an hourly wage of
$78.27 (Human Resources Managers, SOC: 11-3121), for an initial cost of
$626 (8 x $78.27). Every year thereafter, OSHA estimates that the same
employee will take 2 hours to update the respirator program, for an
annual cost of $157 (2 x $78.27).
The four other major costs of respiratory protection are the per-
employee costs for all aspects of respirator use: equipment, training,
fit testing, and cleaning.
In the 2017 FEA, no respirator cleaning was assumed to be required
for PAPRs. OSHA now believes that despite the fact that PAPRs are
assigned to individual employees, PAPRs, like half-mask respirators,
will need periodic cleaning. This cleaning cost for a PAPR is estimated
to be the same as for a half mask respirator. Periodic cleaning of a
PAPR is estimated to be needed every two days, or 125 times annually
(250/2). Each cleaning is estimated to take 5 minutes, or 0.08 (5/60)
hours, and the wage cost per hour is $25.47 ((Production Occupations,
SOC: 51-0000). Multiplied together, this gives an annual respirator
cleaning cost of $265.30 (125 x 0.08 x $25.47). Summing these costs
together, the total annualized per-employee cost for a full-face
powered air-purifying respirator is $1434.50 ($145.27 + $94.33 +
$929.60 + $265.30).
Cost Savings Estimates
In the 2017 FEA, OSHA estimated that PAPRs would be used 10 percent
of the time in situations where only the APF of 10 provided by a half-
mask negative pressure respirator would normally be required to comply
with the final beryllium TWA PEL and STEL. For the 25% of pot tenders
and clean-up workers who need respirators (accounting for an unchanged
baseline compliance rate of 75%), this amounts to 2.5% of the pot
tenders and clean-up workers who are still exposed over the PEL after
the standards take effect who will use PAPRs. OSHA is therefore
adjusting the costs by including the cost of cleaning PAPRs for that
2.5% of workers.
For the revised compliance rate for abrasive blasting operators,
from 75% in the 2017 FEA to 100% in this PEA, there is a cost
adjustment due to the 25% of overexposed operators after the standards
take effect who should not have had costs taken in the 2017 FEA. Since
the 2017 FEA did not estimate cleaning costs for PAPRs, the cost
savings here will not include such cleaning costs. This cost savings
consists of the cost of PAPRs minus cleaning costs (10% of
respirators), and the cost of half-mask respirators (90% of
respirators).
The cost adjustment due to the change in the exposure profile for
welders discussed in section IV.B of this PEA uses this same
methodology of accounting for savings due to PAPRs (minus cleaning
costs) and half-mask respirators. Furthermore, OSHA notes there is a
change in the exposure profile for welders in shipyards from the 2017
FEA, but because the revised baseline compliance rate for these workers
is 100%, this does not affect the cost adjustment.
The exposure profile (Table IV-2) shows the number of abrasive
blasting operators that are above the 0.2 [micro]g/m\3\ PEL. This PEA
follows the 2017 FEA of estimating 10% of workers will still be above
the PEL after the standards take effect. The compliance rate for
operators went from 75% in the 2017 FEA to 100% in this PEA, so 25% of
operators above the PEL after the rule is in place were assigned costs
in the 2017 FEA that, with the 100% compliance rate, should no longer
be taken. In the 2017
FEA, OSHA estimated the average cost of a respirator for an abrasive
blasting operator as 90% of the cost of a half-mask respirator and 10%
of a PAPR. For the abrasive blasting operators above the PEL, this
gives a total cost adjustment of $40,915.
As discussed above, 2.5% of pot-tenders and clean-up workers still
exposed above the PEL after the standards take effect will be using
PAPRs. The total number of such workers can be found in Table IV-2, and
when multiplied by cleaning costs of PAPRs, this gives the additional
cost adjustment of $12,238 for the revision from the 2017 FEA of
including cleaning costs for PAPRs for these workers.
Welders in shipyards were inadvertently assigned a 0% compliance
rate in the 2017 FEA, revised in the 2017 PEA and this PEA to 100%.
Hence all welders in shipyards, found in Table IV-2, will be affected.
Like all others needing respirators, in the 2017 FEA, 90% were assigned
half-mask respirators and 10% were assigned PAPRs. These two groups of
welders, multiplied by the costs of their respective type of
respirators, but without cleaning costs since cleaning costs were not
included in the 2017 FEA, gives the cost adjustment of $858 for welders
in shipyards.
The reduction in workers needing respirators and needing to
participate in respiratory protection programs due to the update of the
compliance rate for abrasive blasting operators in both construction
and shipyards and welders in shipyards, the extra cleaning costs for
pot-tenders and clean-up workers who opt for PAPRs, and the updated
unit costs give a total cost adjustment of $54,011, as shown in Table
IV-16.
Tables IV-12 and IV-13 summarizes the unit cost estimates for the
two types of respirators.
Table IV-12--Unit Respiratory Protection Cost per Employee
------------------------------------------------------------------------
Value
Item -------------------------------
Half mask PAPR
------------------------------------------------------------------------
Training
------------------------------------------------------------------------
Class size.............................. 4 4
Hours................................... 2 4
Employee wage........................... $25.47 $25.47
Supervisor wage......................... 43.39 43.39
Hourly cost per employee................ 36.32 36.32
Annual Cost Savings per Employee........ 72.63 145.27
------------------------------------------------------------------------
Respirator Cleaning Cost Savings
------------------------------------------------------------------------
Frequency per year...................... 125 125
Employee hours.......................... 0.08 0.08
Employee wage........................... $25.47 $25.47
Annual Cost Savings per Employee........ 265.30 265.30
------------------------------------------------------------------------
Fit Testing
------------------------------------------------------------------------
Testing group size...................... 4.00 2.00
Employee hours.......................... 1.00 2.00
Employee wage........................... $25.47 $25.47
Supervisor wage......................... 43.39 43.39
Annual Cost Savings per Employee........ 36.32 94.33
------------------------------------------------------------------------
Equipment Cost
------------------------------------------------------------------------
Respirator.............................. $33.68 $971.11
Respirator service life (years)......... 2 3
Annualized respirator cost savings (3%). $17.60 $343.32
Annual accessory cost savings........... 210.42 586.29
Total Annualized Equipment Cost Savings 228.02 929.60
(3%)...................................
------------------------------------------------------------------------
Total
------------------------------------------------------------------------
Equipment............................... $228.02 $929.60
Training, cleaning, and fit testing..... $374.26 $504.90
------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Sources: BLS, 2019a; BLS, 2018; Magidglove, 2012; Grainger, 2012e;
Restockit, 2012; Spectrumchemical, 2012; Conney, 2012a; Conney, 2012b;
Zoro Tools, 2012a; Grainger, 2019c; Grainger, 2019d; Advanz Lens
Goggles, 2019; Gemplers, 2012; Buying Direct, 2012; Amazon.com, 2013;
Zoro Tools, 2013; Grainger, 2013b; EnviroSafety Products, 2013; BEA,
2019; U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of
Regulatory Analysis; Grainger, 2019a; Grainger, 2019b.
Table IV-13--Half-Mask and Powered Air Purifying Respirator (PAPR) Unit
Cost
------------------------------------------------------------------------
Half-mask PAPR
------------------------------------------------------------------------
Respirator
------------------------------------------------------------------------
Respirator.............................. $33.68 $971.11
------------------------------------------------------------------------
Annual Costs
------------------------------------------------------------------------
Training................................ $72.63 $145.27
Cleaning................................ $265.30 $265.30
Fit Testing............................. 36.32 94.33
Accessories............................. 210.42 586.29
Annual Subtotal......................... 584.67 1,091.19
------------------------------------------------------------------------
Annualized Costs
------------------------------------------------------------------------
Years................................... 2 3
------------------------------------------------------------------------
Annualized Unit Cost (3%)............... $602.28 $1,434.51
Annualized Unit Cost (7%)............... $603.30 $1,461.23
------------------------------------------------------------------------
Sources: Magidglove, 2012; Grainger, 2012e; Restockit, 2012;
Spectrumchemical, 2012; Conney, 2012a; Conney, 2012b; Zoro Tools,
2012a; Grainger, 2019c; Grainger, 2019d; Advanz Lens Goggles, 2019;
Gemplers, 2012; Buying Direct, 2012; Amazon.com, 2013; Zoro Tools,
2013; Grainger, 2013b; EnviroSafety Products, 2013; Grainger, 2019a;
Grainger, 2019b.
Personal Protective Clothing and Equipment
Overview of Regulatory Requirements in the 2017 Final Rule
Under the 2017 final rule, personal protective clothing and
equipment are required for workers in shipyards and construction where
exposure exceeds or can reasonably be expected to exceed the TWA PEL or
STEL, or where there is a reasonable expectation of dermal contact with
beryllium.
The employer must ensure that each employee removes all beryllium-
contaminated personal protective clothing and equipment at the end of
the work shift or, at the completion of all tasks involving beryllium,
or when personal protective clothing or equipment becomes visibly
contaminated with beryllium, whichever comes first. All such personal
protective clothing and equipment must be removed as specified in the
written exposure control plan. Personal protective clothing and
equipment must be kept separate from street clothing and the employer
must ensure that storage facilities prevent cross-contamination. The
employer must ensure that personal protective clothing and equipment is
not removed from the workplace except by authorized personnel, with
appropriate containers and labels that are in accordance with paragraph
(m)(2). All reusable personal protective clothing and equipment must be
cleaned, laundered, repaired, and replaced as needed.
The employer must ensure that beryllium is not removed from
personal protective clothing and equipment by blowing, shaking, or any
other means that disperses beryllium into the air. The employer must
inform in writing the persons or the business entities who launder,
clean or repair the personal protective clothing or equipment required
by this standard of the potentially harmful effects of airborne
exposure to and dermal contact with beryllium and that the personal
protective clothing and equipment must be handled in accordance with
this standard.
Cost Savings Estimates of This Proposal
OSHA is proposing several revisions to the PPE provisions of the
standards. OSHA proposes to remove the requirements regarding storage
facilities, providing PPE when there is a reasonable expectation of
dermal contact with beryllium, removal of PPE when it becomes visibly
contaminated with beryllium, storing and keeping PPE separate from
employees' street clothing, removal of beryllium-contaminated PPE from
the workplace, and transportation and labeling of PPE that is removed
from the workplace. OSHA is also proposing to remove the qualifier
``beryllium-contaminated'' and replace it with ``required by this
standard.''
Under these proposed changes, the PPE provisions will only apply to
employees who are, or can reasonably be expected to be, exposed over
the TWA PEL or STEL. In the 2017 FEA, OSHA also estimated PPE costs for
the 25% of employees who would be exposed below the PEL but who
nevertheless may have dermal contact with beryllium. OSHA also
estimated ten minutes of clerical time for each establishment with
laundry needs to notify the cleaners in writing of the potentially
harmful effects of beryllium exposure and how the protective clothing
and equipment must be handled in accordance with the beryllium
standard, so the proposed removal of that provision would result in a
cost savings. OSHA did not estimate costs for storage facilities
because it judged that no employers would need them.
As stated in the compliance section in IV.B, above, OSHA
preliminarily estimates a 90% compliance rate for all PPE for workers
who have exposures above the TWA PEL or STEL. This is a change from the
2017 FEA, which estimated a 75% compliance rate for PPE for all
workers, not just those exposed above the TWA PEL or STEL, because of
the proposed change to the PPE provisions that would only require PPE
where exposures can exceed the TWA PEL or STEL. Hence, there is an
adjustment to costs due to the decreased number of workers, from 25% to
10%, with exposures above the TWA PEL or STEL who will need PPE. The
exposure profile (Table IV-2) shows the number of workers who are
exposed above the 0.2 [micro]g/m\3\ PEL. For those above the PEL, the
decrease in the compliance rate from 25% to 10%, or 15%, along with
OSHA's standard calculation that 10% of those workers will continue to
be exposed above the PEL after the standards take effect, means 1.5% of
these workers will no longer need PPE. This number of workers times the
unit costs (discussed below) gives the cost adjustment for this group.
For those workers whose exposures are below the TWA PEL and STEL, there
will also be a cost savings for the 25% that the 2017 FEA estimated did
not have proper PPE, due to the proposed removal of the dermal contact
trigger for PPE. The exposure profile (Table IV-2) shows the number of
workers below the PEL. OSHA is proposing to revise the compliance rate
from 75% to 100%, so 25% will no longer need PPE. This
number of workers times the unit costs (discussed below) gives the cost
adjustment for this group.
The cost savings due to the proposed removal of the requirement to
notify laundries is per-establishment, not per-worker, and the number
of establishments can be found in Table IV-4. The total number of
affected establishments times the cost of clerical time, below, gives
the cost savings for this proposed revision.
In the 2017 FEA, OSHA estimated that employers would rent rather
than purchase PPE. The annual cost for rental would be $53.67 per
employee, inflated from the 2017 FEA estimate of $48.62. The per-
establishment annual cost savings for the ten minutes of clerical time
required to notify laundries is $4.12 ($24.71 hourly wage, File Clerks
SOC 43-4071).
After accounting for the 25% of employees who no longer need PPE
due to the removal of the dermal contact trigger, the change in the
compliance rate from 75% to 90%, and the removal of the ten minutes of
clerical time for notifying laundries, the total annualized cost
savings and adjustment for the proposed revisions to the PPE paragraph
is estimated to be $164,330 at a 3 percent discount rate.
Hygiene Areas and Practices
Overview of Regulatory Requirements in the 2017 Final Rule
The 2017 final rule requires affected shipyard and construction
employers to provide readily accessible washing facilities to remove
beryllium from the hands, face, and neck of each employee exposed to
beryllium; ensure that employees who have dermal contact with beryllium
wash any exposed skin at the end of the activity, process, or work
shift and prior to eating, drinking, smoking, chewing tobacco or gum,
applying cosmetics, or using the toilet; and provide employees required
to use PPE with a designated change room where employees are required
to remove their personal clothing. Wherever the employer allows
employees to consume food or beverages at a worksite where beryllium is
present, the employer must ensure that surfaces in eating and drinking
areas are as free as practicable of beryllium and no employees enter
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. The employer must
also ensure that no employees eat, drink, smoke, chew tobacco or gum,
or apply cosmetics in work areas where there is a reasonable
expectation of exposure above the TWA PEL or STEL.
Cost Savings Estimates in This Proposal
OSHA is proposing to rescind this paragraph in its entirety. Both
washing facilities and change rooms would no longer be directly
required under this proposal. However, because PPE is still required
where airborne beryllium exceeds the TWA PEL or STEL, employers will
still need to provide change rooms where exposures are above the TWA
PEL or STEL pursuant to the sanitation standards.
The 2017 FEA estimated no costs for readily accessible washing
facilities, under the expectation that employers already have such
facilities in place where needed, and this PEA retains this estimate.
Therefore, OSHA is estimating no cost savings from washing facilities
due to this proposal. The 2017 FEA did include costs for disposable
head coverings that would be purchased for processes where hair may
become contaminated by beryllium. OSHA now believes that employers in
construction and shipyards will not incur these costs under the
existing standards because unlike in general industry, there are no
requirements in construction or shipyards to provide showers where hair
can become contaminated with beryllium. OSHA is therefore making a cost
adjustment to account for this. The annual cost for one disposable head
covering per day in 2018 dollars is $30.78 (Grainger, 2013). The number
of workers estimated to need such head coverings in the 2017 FEA is
542; so the total annual cost adjustment is $16,669 ($30.78 x 542).
The agency is not estimating cost savings for the proposed removal
of requirements to add a change room and segregated lockers. The
sanitation standards (29 CFR 1926.51 and 29 CFR 1915.88) require
employers to provide change rooms whenever they require employees to
wear PPE to prevent exposure to hazardous or toxic substances. Under
this proposal, employers would still be required by the sanitation
standards, combined with the PEL requirements in 2017 beryllium final
rule, to provide PPE to employees to prevent exposure to beryllium.
Therefore, no cost savings would arise from this proposed change.
The proposed revisions to the PPE paragraph would remove the need
for employees to change out of PPE, generally at the end of a shift,
for those not exposed to airborne beryllium above the TWA PEL and STEL.
In the 2017 FEA, OSHA included the cost of changing clothes in the
costs for the hygiene provisions rather than the PPE provisions. The
cost for a clothing change is the same as in the 2017 FEA, updated to
2018 dollars. The agency expected that, in many cases, a worker will
simply be adding, and later removing, a layer of clothing (such as a
lab coat, coverall, or shoe covers) at work, which might involve no
more than a couple of minutes a day. However, in other cases, a worker
may need a full clothing change. Taking all these factors into account,
OSHA estimated that a worker using PPE would need 5 minutes per day to
change clothes (Document ID 2042, p. V-185). The annual cost per
employee to change clothes is $530.61. This cost is based on a
production worker earning $25.47 an hour (Production Occupation, SOC:
51-0000) and taking 5 minutes per day to change clothes for 250 days
per year ((5/60) x $25.47 x 250).
OSHA's proposed removal of the eating and drinking areas and
prohibited activities provisions of paragraph (i) have cost
implications only for training, which is discussed later in this cost
section.
The agency estimates the total annualized cost savings of the
proposed removal of paragraph (i) to be $304,052 for all affected
establishments. The breakdown of these cost savings by NAICS code can
be seen in Table IV-15 at the end of this program cost-savings section.
Housekeeping
Overview of Regulatory Requirements in the 2017 Final Rule
The housekeeping provisions require the employer to follow the
written exposure control plan when cleaning beryllium-contaminated
areas, ensure that all spills and emergency releases of beryllium are
cleaned up promptly and in accordance with the written exposure control
plan required under paragraph (f)(1) of this standard. The provisions
require the employer to ensure the use of HEPA-filtered vacuuming or
other methods that minimize the likelihood and level of airborne
exposure when cleaning beryllium-contaminated areas, and prohibit the
employer from allowing dry sweeping or brushing for cleaning in such
areas unless HEPA-filtered vacuuming or other methods that minimize the
likelihood and level of airborne exposure are not safe or effective.
The provisions also prohibit the employer from allowing the use of
compressed air for cleaning in beryllium-contaminated areas unless the
compressed air is used in conjunction with a ventilation system
designed to capture the particulates made airborne
by the use of compressed air. Where employees use dry sweeping,
brushing, or compressed air to clean in beryllium-contaminated areas,
the employer must provide, and ensure that each employee uses,
respiratory protection and personal protective clothing and equipment
in accordance with paragraphs (g) and (h) of the standards. The
employer must also ensure that cleaning equipment is handled and
maintained in a manner that minimizes the likelihood and level of
airborne exposure and the re-entrainment of airborne beryllium in the
workplace. When the employer transfers materials containing beryllium
to another party for use or disposal, the employer must provide the
recipient with the warning required by paragraph (m).
Cost Savings Estimates in this Proposal
OSHA is proposing to remove the requirements to follow the written
exposure control plan when cleaning and to promptly clean up spills and
emergency releases. OSHA is also proposing to revise the cleaning
methods requirements to remove the reference to HEPA-filtered vacuuming
and to trigger these provisions on the presence of dust resulting from
operations that cause, or can reasonably be expected to cause, airborne
exposure above the TWA PEL or STEL, rather than on the presence of a
``beryllium-contaminated area.'' In addition, OSHA is proposing to
remove the qualifier ``in beryllium-contaminated areas'' from the
requirement to provide PPE and respiratory protection in accordance
with other provisions in the standards. Next, OSHA is proposing to
prohibit the use of compressed air for cleaning where the use of
compressed air causes, or can reasonably be expected to cause, airborne
exposure above the TWA PEL or STEL. Finally, OSHA is proposing to
remove the requirement to provide a warning when transferring materials
containing beryllium to another party for use or disposal.
The agency is estimating cost savings for removing the requirement
to use HEPA-filtered vacuums for shipyards and construction and for
removing the need for a warning label when transferring materials
containing beryllium to another party for use or disposal. The other
cost included for this provision is labor time spent doing housekeeping
tasks, and the agency estimates the proposed revisions do not alter its
2017 FEA estimate of an additional 5 minutes per day for each employee.
In the 2017 FEA, OSHA estimated a compliance rate for the
housekeeping provisions of 75% for all workers in abrasive blasting
based on the agency's determination that other standards required some
housekeeping for abrasive blasting in both construction and shipyards.
As discussed above, a further review of other standards has led the
agency to revise its compliance rate for housekeeping to 100%. While
the proposed revisions will limit the methods that employers may use to
clean up beryllium, OSHA estimates that cleaning methods which do not
disperse beryllium into the air take approximately the same amount of
time as cleaning methods already in use. OSHA is making a cost
adjustment in this PEA for the additional 25% of workers in abrasive
blasting operations who are now estimated to be performing housekeeping
tasks. Furthermore, while those areas that are below the TWA PEL and
STEL no longer have any requirements for housekeeping tasks, OSHA is
not estimating an additional cost savings because its revised
compliance estimate is already at 100%. OSHA estimated in the 2017 FEA
that welding in shipyards had a 0% compliance rate for housekeeping.
This has also been changed to 100% compliance in this PEA, as explained
in section B of this PEA. OSHA is also making a cost adjustment for
this change in the compliance rate.
OSHA estimated the following costs for the housekeeping provisions
in the 2017 FEA (Document ID 2042, pp. V-187-190, amounts adjusted for
2018 dollars): A one-time annualized cost per worker of a HEPA-filtered
vacuum ($640); the annual cost per worker of the additional time needed
to perform housekeeping ($531); and the annual cost of the warning
labels per worker ($6). The total annual per-employee cost was $1,177
($640 + $531 + $6). This per-employee cost is then multiplied by the
25% of workers in abrasive blasting operations and 100% of the welders
who are now estimated to be in compliance versus the 2017 FEA to
calculate the cost adjustment due to the revised baseline compliance
rates.
The total annualized cost adjustment in this proposal due to
revisions to this ancillary provision are $1,734,022. The breakdown of
these cost savings by NAICS code is shown in Table IV-15 at the end of
this program cost-savings section.
Medical Surveillance
Overview of Regulatory Requirements in the 2017 Final Rule
The 2017 final rule requires affected employers in shipyards and
construction to make medical surveillance available at a reasonable
time and place, and at no cost, to the following employees:
1. Employees who are, or are reasonably expected to be, exposed at
or above the action level for more than 30 days per year;
2. Employees who show signs or symptoms of chronic beryllium
disease (CBD) or signs or symptoms of other beryllium-related health
effects;
3. Employees exposed to beryllium during an emergency; and
4. Employees whose most recent written medical opinion required by
this standard recommends periodic medical surveillance.
The medical surveillance paragraph also specifies the frequency
with which examinations must be provided, the required contents of the
examination, the information that the employer must provide to the
physician or other licensed healthcare provider (PLHCP), the
information that must be contained in the physician's written medical
report for the employee, the information that must be contained in the
physician's written medical opinion for the employer, and procedures
and requirements related to referral to a CBD diagnostic center.
Cost Savings of This Proposal
OSHA is proposing minor changes to the medical surveillance
provision of the 2017 final rule.
First, OSHA proposes to remove the emergency trigger for medical
surveillance. The 2017 FEA did not break out a separate cost for
emergencies, stating that ``a very small number of employees will be
affected by emergencies in a given year'' (p. V-196). The agency
therefore preliminarily concludes that removing the emergency trigger
will result in de minimis cost savings.
OSHA also proposes to replace the phrase ``airborne exposure to and
dermal contact with beryllium'' in these provisions with the simpler
phrase ``exposure to beryllium.'' As explained in the Summary and
Explanation section, this is not a substantive change and has no cost
implications.
One proposed change would clarify the definition of CBD diagnostic
center, that a center has a pulmonologist or pulmonary specialist on
staff and must be capable of performing a variety of tests commonly
used in the diagnosis of CBD, but need not necessarily perform all of
the tests during all CBD evaluations. The 2016 FEA in fact did not
estimate that all tests would be performed during all CBD evaluations,
and so the agency takes no cost savings for this change.
To account for the proposed revision to the definition of CBD
diagnostic center, OSHA is proposing to amend paragraph (k)(7)(i) to
clarify that the employer must provide, at no cost to the employee and
within a reasonable time after consultation with the CBD diagnostic
center, any of the following tests that a CBD diagnostic center must be
capable of performing, if deemed appropriate by the examining physician
at the CBD diagnostic center: a pulmonary function test as outlined by
American Thoracic Society criteria testing, bronchoalveolar lavage
(BAL), and transbronchial biopsy. This proposed change to paragraph
(k)(7) would not change the requirements of the beryllium standard and
therefore would not change the costs of compliance with the standard.
OSHA is also proposing that the employer provide an initial
consultation with the CBD diagnostic center, rather than the full
evaluation, within 30 days of the employer receiving notice that a full
evaluation must be performed. This initial consultation can be done in
conjunction with the tests but it is not required to be. As the initial
consultation may be conducted remotely, by phone or virtual
conferencing, the cost of the consultation would consist only of time
spent by the employee and the PLHCP and would not have to include any
travel or accommodation. In the 2017 FEA, and the 2018 PEA in support
of the proposal to revise the general industry beryllium standard, OSHA
accounted for the cost of both the employee's time and the examining
physician's time for a 15-minute discussion (2017 FEA, p. V-206; 83 FR
at 63764). Because the consultation would replace this initial
discussion, there would be no additional cost. Furthermore, OSHA
expects that allowing more flexibility in scheduling the tests at the
CBD diagnostic center would allow employers to find more economical
travel and accommodation options. As in the 2018 PEA in support of the
proposed revisions to the general industry beryllium standard, the
agency therefore preliminarily concludes these changes would produce
minor, if any, cost savings, and no additional costs.
Another proposed change with potential implications for medical
surveillance costs is a proposed change in the definition of confirmed
positive. OSHA is proposing to clarify that the set of test results
must all be obtained from a single 30-day testing cycle. The exact
effect of this proposed change is uncertain as it is unknown how many
employees would have a series of BeLPT results associated with a
confirmed positive finding (two abnormal results, one abnormal and one
borderline result, or three borderline results) over an unlimited
period of time, but would not have any such combination of results
within a single testing cycle. As in the PEA in support of the 2018
proposed revisions to the general industry standard, OSHA preliminarily
concludes that this proposed change would not increase compliance costs
and would incidentally yield some cost savings by lessening the
likelihood of false positives.
Other proposed changes are to align these standards with the
(proposed) general industry standard and, similar to the economic
analysis there, are also estimated to only have de minimis effects on
costs.
Medical Removal
Overview of Regulatory Requirements in the 2017 Final Rule
OSHA is not proposing any changes to paragraph (l), Medical removal
protection. OSHA is also not proposing any changes to the baseline
compliance rate with this paragraph. Therefore, there are no cost
savings associated with this provision.
Communication of Hazards
Overview of Regulatory Requirements in the 2017 Final Rule
Paragraph (m) of the beryllium standards for construction and
shipyards 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.
Cost Savings in This Proposal
OSHA is proposing three changes to paragraph (m) in both the
construction and shipyards standards. First, OSHA is proposing to
remove the paragraph (m) provisions that require specific language for
warning labels applied to materials designated for disposal or PPE when
removed from the workplace (paragraph (m)(2) in construction and
paragraph (m)(3) in shipyards). This is consistent with OSHA's proposal
to remove the corresponding requirements to provide such warning labels
and any cost implications are accounted for in the sections on those
corresponding provisions.
Second, OSHA is also proposing to revise paragraph (m)(3)(i) in
construction and paragraph (m)(4)(i) in boatyards--renumbered as
paragraphs (m)(2)(i) and (m)(3)(i), respectively--to remove dermal
contact as a trigger for training. This is not a substantive change, so
OSHA expects no cost implications.
Third, OSHA is proposing to revise the provisions of paragraph (m)
for employee information and training related to emergency procedures
(paragraph (m)(3)(ii)(D) in construction and paragraph (m)(4)(ii)(D) in
shipyards) and personal hygiene practices (paragraph (m)(3)(ii)(E) in
construction and paragraph (m)(4)(ii)(E) in shipyards), for consistency
with OSHA's proposed removal of emergency procedures and personal
hygiene practices from the construction and shipyards standards. OSHA
estimates that this proposed change will lead to a cost savings.
Below the agency first presents the methodology for training from
the 2017 final rule with unit cost estimates updated to 2018 dollars,
and then discusses and estimates the cost effects of this proposal.
In the 2017 FEA, OSHA estimated that training, which includes
hazard communication training, would be conducted by in-house safety or
supervisory staff with the use of training modules and videos and would
last, on average, eight hours. (Note that this estimate does not
include the time taken for hazard communication training that is
already required by 29 CFR 1910.1200.) The agency judged that
establishments could purchase sufficient training materials at an
average cost of $2.21 per worker, encompassing the cost of handouts,
video presentations, and training manuals and exercises. For initial
and periodic training, OSHA estimates an average class size of five
workers (each at a wage of $25.47 (updated from Production Occupations,
SOC: 51-0000)) with one instructor (at a wage of $42.51 (Median Wage
for Training and Development Specialists, SOC: 13-1151)) over an eight
hour period. The per-worker cost of initial training is therefore
$273.99 ((8 x $25.47) + (8 x $42.51/5) + $2.21).
Annual retraining of workers is also required by the standards.
OSHA estimates the same unit costs as for initial training, so
retraining would require the same per-worker cost of $273.99.
The first cost savings comes explicitly from the training provision
itself, where the proposal rescinds training about emergency
procedures. The agency estimates that this will decrease training time
by 15 minutes. Other decreases in training time come from rescinded
portions of hygiene requirements, including: Washing areas, change
rooms, eating and drinking areas, and cross-contamination. The agency
estimates that this would decrease needed training by another hour.
Together this would decrease the required per-employee training
from 8 hours to 6.75 hours. Hence, the per-worker cost of initial and
retraining is $231.52 ((6.75 x $25.47) + (6.75 x $42.51/5) + $2.21).
Finally, using these unit cost estimates, as well as accounting for
industry-specific baseline compliance rates (which, as explained in
section IV.B of this PEA, are unchanged from the 2017 FEA), and based
on a 34.7 percent new hire rate (BLS 2018c, using the annual
manufacturing new hire rate, as was done in the 2017 FEA), OSHA
estimates that the proposed revisions to the training requirements in
the standards would result in an annualized total cost savings of
$102,102. The breakdown of these cost savings by NAICS code is shown in
Table IV-15 at the end of this program cost-savings section.
Familiarization Costs
In the 2017 final rule, OSHA included familiarization costs to
account for employers' time to understand the ancillary provisions and
the other new and revised components of the applicable new standard.
The changes that OSHA is proposing to most provisions are not
extensive. Employers would thus only need to spend a brief amount of
time reviewing them. OSHA expects that if this proposal is adopted,
employers would spend one hour per firm reviewing its changed
requirements.
Table IV-14 shows the unit costs, by establishment size, of
reviewing the changes in this proposal. These costs will likely be one-
time costs incurred during the first year after the effective date of a
final rule resulting from this proposal, but the aggregate costs are
annualized for consistency with the other estimates for this proposal.
Based on the unit familiarization (negative) cost savings in Table IV-
14, the total annualized familiarization costs of this proposal are
estimated to be $14,221. The breakdown of these costs by NAICS code is
in Table IV-15 at the end of this program cost-savings section, and
these costs are reflected in the tables as a negative cost savings.
Table IV--14: Familiarization--Construction and Shipyard Assumptions and Unit Cost Savings
----------------------------------------------------------------------------------------------------------------
Establishment size (employees)
-----------------------------------------------
Item Medium (20-
Small (<20) 499) Large (500+)
----------------------------------------------------------------------------------------------------------------
Hours per establishment......................................... 1.0 1.0 1.0
Total cost savings per establishment............................ -$43.39 -$43.39 -$43.39
Annualized Cost Savings (3 Percent)............................. -$5.09 -$5.09 -$5.09
----------------------------------------------------------------------------------------------------------------
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Note: Figures in rows may not add to totals due to rounding.
Table IV-15--Annualized Cost Savings of Program Requirements for Industries Affected by the Re-Proposed Beryllium Standard by Sector and Six-Digit NAICS Industry
[in 2018 Dollars using a 3 Percent Discount Rate]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Regulated Written Protective Total
Rule Exposure areas/ Medical Medical exposure work Hygiene program
Application group/NAICS Industry familiarization assessment competent surveillance Removal control clothing & areas and Housekeeping Training cost
person Provision plan equipment practices savings
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
238320................. Painting and Wall -$5,545 $0 $0 $0 $0 $46,627 $61,974 $115,657 $653,601 $38,490 $910,805
Covering Contractors.
238990................. All Other Specialty -$5,138 0 0 0 0 43,205 57,426 107,168 605,630 35,665 843,957
Trade Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a................ Ship Building and -$3,505 0 0 0 0 32,027 43,418 81,172 458,720 27,014 638,846
Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b................ Ship Building and -$34 0 0 0 0 1,129 1,512 55 16,072 932 19,667
Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal............................ -$10,682 0 0 0 0 89,833 119,400 222,825 1,259,230 74,156 1,754,762
Maritime Subtotal................................ -$3,538 0 0 0 0 33,157 44,930 81,227 474,792 27,946 658,513
Total, All Industries............................ -$14,221 0 0 0 0 122,989 164,330 304,052 1,734,022 102,102 2,413,275
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Total Annualized Cost Savings
As shown in Table IV-16, the total annualized cost savings of this
proposal, using a 3 percent discount rate, is estimated to be about
$2.5 million.
Table IV-16--Annualized Cost Savings to Industries Affected by the Re-Proposed Beryllium Standard, by Sector and
Six-Digit NAICS Industry
[2018 Dollars, 3 percent discount rate]
----------------------------------------------------------------------------------------------------------------
Engineering
controls Respirator Program Total cost
Application group/NAICS Industry and work cost cost savings
practices savings savings
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320.............................. Painting and Wall $0 $20,389 $910,805 $931,193
Covering Contractors.
238990.............................. All Other Specialty $0 $18,892 $843,957 $862,849
Trade Contractors.
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
----------------------------------------------------------------------------------------------------------------
336611a............................. Ship Building and 0 13,873 638,846 652,718
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding--Shipyards
----------------------------------------------------------------------------------------------------------------
336611b............................. Ship Building and 0 858 19,667 20,525
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal....................................... 0 39,281 1,754,762 1,794,042
Maritime Subtotal........................................... 0 14,730 658,513 673,243
Total, All Industries....................................... 0 54,011 2,413,275 2,467,286
----------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Time Distribution of Cost Savings
OSHA analyzed the stream of (un-annualized) compliance cost savings
for the first ten years after the proposed rule would take effect. As
shown in Table IV-17, total compliance cost savings are expected to
decline from year 1 to year 2 by almost half after the initial set of
capital and program start-up expenditure savings has been incurred.
Cost savings are then essentially flat with relatively small variations
for the following years.
Table IV-17--Distribution of Undiscounted Compliance Costs and Cost Savings by Year
[2018 Dollars]
----------------------------------------------------------------------------------------------------------------
Program cost Engineering Rule
Year savings Respirators controls familiarization Total
----------------------------------------------------------------------------------------------------------------
1.............................. $4,215,199 $86,195 $0 -$121,305 $4,180,088
2.............................. 2,178,201 46,071 0 0 2,224,272
3.............................. 2,178,201 47,743 0 0 2,225,944
4.............................. 2,178,201 51,427 0 0 2,229,628
5.............................. 2,178,201 47,743 0 0 2,225,944
6.............................. 2,178,201 46,071 0 0 2,224,272
7.............................. 2,178,201 53,098 0 0 2,231,300
8.............................. 2,178,201 46,071 0 0 2,224,272
9.............................. 2,178,201 47,743 0 0 2,225,944
10............................. 2,178,201 51,427 0 0 2,229,628
----------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Table IV-18 breaks out total cost savings by each application group
for the first ten years. Each application group follows the same
pattern of a sharp decrease in cost savings between years 1 and 2, and
then remains relatively flat for the remaining years.
Table IV-18--Total Undiscounted Cost Savings of the Re-Proposed Beryllium Standard by Year
(2018 Dollars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year
Application group -----------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction. $3,039,516 $1,617,334 $1,618,538 $1,621,189 $1,618,538 $1,617,334 $1,622,392 $1,617,334 $1,618,538 $1,621,189
Abrasive Blasting--Shipyards.... 1,103,334 588,796 589,234 590,200 589,234 588,796 590,639 588,796 589,234 590,200
Welding--Shipyards.............. 37,239 18,142 18,172 18,239 18,172 18,142 18,269 18,142 18,172 18,239
Total....................... 4,180,088 2,224,272 2,225,944 2,229,628 2,225,944 2,224,272 2,231,300 2,224,272 2,225,944 2,229,628
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Appendix IV-A
Summary of Annualized Cost Savings by Entity Size Under Alternative
Discount Rates
In addition to using a 3 percent discount rate in its cost
analysis, OSHA estimated compliance cost savings using alternative
discount rates of 7 percent and 0 percent. Tables IV-19 and IV-20
present--for 7 percent and 0 percent discount rates, respectively--
total annualized cost savings for affected employers by NAICS industry
code and employment size class (all establishments, small entities, and
very small entities).
As shown in these tables, the choice of discount rate has only a
minor effect on total annualized compliance cost savings--for example,
annualized cost savings for all establishments remain flat/slightly
increase to $2.5 million using a 7 percent discount rate, and remain
flat/slightly decrease to $2.5 million using a 0 percent discount rate.
Table IV-19--Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the
Shipyard and Construction Beryllium Standards
[By size category, 7 percent discount rate, 2018 dollars]
----------------------------------------------------------------------------------------------------------------
Very small
Application group/NAICS Industry All establishments Small entities entities (<20
(SBA-defined) employees)
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320....................... Painting and Wall $950,654 $782,690 $518,407
Covering Contractors.
238990....................... All Other Specialty $880,881 $654,058 $418,827
Trade Contractors.
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------
336611a...................... Ship Building and $666,280 $172,674 $86,542
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding in Shipyards **
----------------------------------------------------------------------------------------------------------------
336611b...................... Ship Building and $21,028 $5,583 $3,100
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal............................... $1,831,536 $1,436,748 $937,234
Shipyard Subtotal................................... $687,308 $178,257 $89,641
Total, All Industries............................... $2,518,843 $1,615,005 $1,026,876
----------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use
mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may
do both welding and abrasive blasting.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Table IV-20--Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the
Shipyard and Construction Beryllium Standards
[By size category, 0 percent discount rate, 2018 dollars]
----------------------------------------------------------------------------------------------------------------
Very small
Application group/NAICS Industry All establishments Small entities entities (<20
(SBA-defined) employees)
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320....................... Painting and Wall $929,939 $765,329 $506,383
Covering Contractors.
238990....................... All Other Specialty $861,686 $639,408 $408,952
Trade Contractors.
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------
336611a...................... Ship Building and $651,883 $168,209 $84,196
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding in Shipyards **
----------------------------------------------------------------------------------------------------------------
336611b...................... Ship Building and $20,479 $5,387 $2,988
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal............................... $1,791,625 $1,404,737 $915,335
Shipyard Subtotal................................... $672,362 $173,596 $87,184
Total, All Industries............................... $2,463,987 $1,578,333 $1,002,520
----------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use
mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may
do both welding and abrasive blasting.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Appendix IV-B
Summary of Annualized Cost Savings by Cost Type Under Alternative
Discount Rates
In addition to using a 3 percent discount rate in its cost
analysis, OSHA estimated compliance cost savings using alternative
discount rates of 7 percent and 0 percent. Tables IV-21 and IV-22
present--for 7 percent and 0 percent discount rates, respectively--
total annualized cost savings for affected employers by NAICS industry
code and type of cost savings.
Table IV-21--Annualized Compliance Cost Savings for Employers Affected by the Re-Proposed Beryllium Standard by Sector and Six-Digit NAICS Industry
[7 Percent discount rate, in 2018 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Engineering
Application group/NAICS Industry controls and Respirator cost Program cost Total cost savings
work practices savings savings
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
238320................................... Painting and Wall Covering $0 $20,892 $929,762 $950,654
Contractors.
238990................................... All Other Specialty Trade $0 $19,358 $861,523 $880,881
Contractors.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611a.................................. Ship Building and Repairing...... $0 $14,196 $652,084 $666,280
--------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611b.................................. Ship Building and Repairing...... $0 $873 $20,154 $21,028
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal.................... $0............................... $40,250 $1,791,285 $1,831,536 ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maritime Subtotal........................ $0............................... $15,069 $672,238 $687,308 ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries.................... $0............................... $55,319 $2,463,524 $2,518,843 ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
Table IV-22--Annualized Compliance Cost Savings for Employers Affected by the Re-Proposed Beryllium Standard by Sector and Six-Digit NAICS Industry
[0 Percent discount rate, in 2018 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Engineering
Application group/NAICS Industry controls and work Respirator cost Program cost Total cost savings
practices savings savings
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
238320................................. Painting and Wall Covering $0 $20,334 $909,605 $929,939
Contractors.
238990................................. All Other Specialty Trade 0 18,842 842,845 861,686
Contractors.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611a................................ Ship Building and Repairing.... 0 13,834 638,049 651,883
--------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611b................................ Ship Building and Repairing.... 0 855 19,623 20,479
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal................................................... 0 39,176 1,752,450 1,791,625
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maritime Subtotal....................................................... 0 14,690 657,672 672,362
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries................................................... 0 53,865 2,410,122 2,463,987
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
E. Benefits
The changes proposed in this NPRM are designed to accomplish three
goals: (1) To more appropriately tailor the requirements of the
construction and shipyards standards to the particular exposures in
these industries in light of partial overlap between the beryllium
standards' requirements and other OSHA standards; (2) to aid compliance
and enforcement across the beryllium standards by avoiding
inconsistency, where appropriate, between the shipyards and
construction standards and proposed revisions to the general industry
standard; and (3) to clarify certain requirements with respect to
materials containing only trace amounts of beryllium. As to the first
group of changes, this NPRM clarifies that OSHA did not, and does not,
intend to apply the provisions aimed at protecting workers from the
effects of dermal contact to industries that only work with beryllium
in trace amounts where there is limited or no airborne exposure. In the
prior FEA, OSHA did not isolate any quantifiable benefits from avoiding
beryllium sensitization from dermal contact (see discussion at p. VII-
16 through VII-18). Therefore, OSHA preliminarily concludes that the
proposed revisions in this NPRM that focus on dermal contact will not
have any impact on OSHA's previous benefit estimates for the standards
as a whole.
OSHA also does not expect the second and third groups of proposed
changes, i.e., those intended to more closely tailor the standards'
requirements to the construction and shipyard industries and closely
align them to the general industry standard's requirements, where
appropriate, to result in a reduction in benefits. Rather, as explained
in the Summary and Explanation, OSHA believes that the proposed changes
would maintain safety and health protections for workers while aligning
the standards with the intent behind the 2017 final rule and otherwise
preventing costs that could follow from misinterpretation or
misapplication of the standards. Therefore, OSHA preliminarily
determines that the effect of these proposed revisions on the benefits
of the standards as a whole would be negligible. OSHA invites comment
on this preliminary determination.
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Economic Feasibility Analysis and Regulatory Flexibility Certification
Economic Feasibility Analysis
In the 2017 FEA, OSHA concluded that the beryllium standards for
construction and shipyards were both economically feasible (see 82 FR
at 2471). OSHA is proposing to modify some of the ancillary provisions
in both standards and has preliminarily concluded that the proposed
revisions would, overall, reduce costs for employers in both sectors
(see section D, Costs of Compliance, in this PEA). Because the effect
of this proposed rule is a net reduction in costs, OSHA has
preliminarily determined that this proposal is economically feasible in
both the construction and shipyard sectors.
Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. (as amended), OSHA has examined the regulatory requirements of the
proposal for construction and shipyards to determine whether they would
have a significant economic impact on a substantial number of small
entities. This proposal would modify certain ancillary provisions for
shipyards and
construction, resulting in a reduction of overall costs. Furthermore,
the agency believes that this proposal would not impose any additional
costs on small entities. Accordingly, OSHA certifies that the proposal
would not have a significant economic impact on a substantial number of
small entities.
Executive Order 13771: Reducing Regulation and Controlling Regulatory
Costs
Consistent with Executive Order 13771 (82 FR 9339, February 3,
2017), OSHA has estimated the total annualized cost savings of this
proposed rule, using a 3 percent discount rate, to be about $2.5
million, or using a 7 percent discount rate, to be about $2.5 million.
Therefore, this proposed rule, if finalized, is expected to be an
Executive Order 13771 deregulatory action.
VI. OMB Review Under the Paperwork Reduction Act of 1995
A. Overview
OSHA is proposing to update the beryllium standards for the
construction and shipyards industries, which contain collections of
information that are subject to review by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., and OMB regulations at 5 CFR part 1320. The beryllium
standards for general industry (29 CFR 1910.1024), construction (29 CFR
1926.1124), and shipyards (29 CFR 1915.1024)--contain collection of
information (paperwork) requirements that have been previously approved
by OMB. The requirements of all three standards are currently contained
in the approved information collections request (ICR) under OMB control
number 1218-0267. For purposes of OMB review under the PRA, OSHA is
proposing to separate the collections of information in the beryllium
standards for construction and shipyards from those in the general
industry standard. Therefore, the agency is submitting two ICRs--one
for the construction industry and one for the shipyards sector--and the
agency is requesting two new OMB control numbers 1218-0NEW and 1218-
NEW2. In addition, since OSHA is proposing to separate the collections
of information in the beryllium standards for construction and
shipyards in this proposal, OSHA is also proposing to remove the
collections of information that are related to construction and
shipyards from the collections of information previously approved by
OMB under control number 1218-0267. There is a separate rulemaking that
addresses changes to the collection of information for general industry
under number 1218-0267 (see 83 FR 63746-63770). 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).
B. Solicitation of Comments
OSHA prepared and submitted two revised ICRs to OMB, separating the
collections of information in the shipyards and construction standards
from the existing OMB-approved paperwork package, and proposing to
remove certain collections of information for those industries
currently contained in that paperwork package, in accordance with 44
U.S.C. 3507(d). The agency solicits comments on the removal of these
collection of information requirements and reduction in estimated
burden hours associated with these requirements, including comments on
the following items:
Whether the collections of information are necessary for
the proper performance of the agency's functions, including whether the
information is useful;
The accuracy of OSHA's estimate of the burden (time and
cost) of the collections of information, including the validity of the
methodology and assumptions used;
The quality, utility, and clarity of the information
collected; and
Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information (78 FR at 56438).
C. Proposed Information Collection Requirements
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
following paragraphs provide information about these two ICRs.
Construction (ICR):
1. Title: Occupational Exposure to Beryllium for the Construction
Industry.
2. Description of the ICR: The proposal would separate the
construction standards from the currently approved Beryllium ICR and
remove existing collection of information requirements currently
approved by OMB.
3. Brief Summary of the Information Collection Requirements:
The proposed standard for occupational exposure to beryllium and
beryllium compounds in construction would revise the collection of
information requirements contained in the existing ICR for that
industry, approved under OMB under control number 1218-0267. OSHA is
proposing, first, to separate the construction collection of
information requirements from those of the general industry and
shipyards standards, and requests a new control number specific to the
construction standard (1218-0NEW). Next, OSHA is proposing to update
the new ICR to reflect its proposal to (1) remove provisions in the
construction standard that require employers to collect and record
employees' social security number; (2) revise the contents of the
written exposure control plan; and (3) remove certain requirements
related to written warnings. See Table VI.1.
Table VI.1--Collection of Information Requirements Being Revised in the Beryllium Standard for Construction
----------------------------------------------------------------------------------------------------------------
Currently approved collection of
Section number and title information requirements Proposed action
----------------------------------------------------------------------------------------------------------------
Sec. 1926.1124(f)(1)(i)--Methods of A list of operations and job Remove paragraphs
Compliance--Written Exposure Control titles reasonably expected to involve (f)(1)(i)(B) through (E) and
Plan. airborne exposure to or dermal contact (H), written exposure
with beryllium; control plan.
A list of operations and job Revise paragraph (f)(1)(i)(A)
titles reasonably expected to involve to list operations and job
airborne exposure to or dermal contact titles reasonably expected
with beryllium; to involve exposure to
beryllium.
A list of operations and job Add a new requirement,
titles reasonably expected to involve paragraph (f)(1)(i)(E), to
airborne exposure above the TWA PEL or list procedures used to
STEL; ensure the integrity of each
containment used to minimize
exposures to employees
outside the containment.
Procedures for minimizing cross- .............................
contamination;
Procedures for minimizing the .............................
migration of beryllium within or to
locations outside the workplace;
A list of engineering controls, .............................
work practices, and respiratory
protection required by paragraph (f)(2)
of the standard;
A list of personal protective .............................
clothing and equipment required by
paragraph (h) of the standard;
Procedures for removing, .............................
laundering, storing, cleaning, repairing,
and disposing of beryllium-contaminated
personal protective clothing and
equipment, including respirators;
Procedures used to restrict .............................
access to work areas when airborne
exposures are, or can reasonably be
expected to be, above the TWA PEL or
STEL, to minimize the number of employees
exposed to airborne beryllium and their
level of exposure, including exposures
generated by other employers or sole
proprietors.
Sec. 1926.1124(h)(2)(v)--Personal When personal protective clothing or Remove this labeling
Protective Clothing and Equipment-- equipment required by this standard is requirement from the
Removal and Storage. removed from the workplace for beryllium standard for
laundering, cleaning, maintenance or construction and therefore
disposal, the employer must ensure that from the ICR.
personal protective clothing and
equipment are stored and transported in
sealed bags or other closed containers
that are impermeable and are labeled in
accordance with paragraph (m)(3) of the
standard and the HCS (29 CFR 1910.1200).
Sec. 1926.1124(h)(3)(iii) -- The employer must inform in writing the Remove this requirement from
Personal Protective Clothing and persons or the business entities who the beryllium standard for
Equipment--Cleaning and Replacement. launder, clean or repair the personal construction and therefore
protective clothing or equipment required from the ICR.
by this standard of the potentially
harmful effects of airborne exposure to
and dermal contact with beryllium and
that the personal protective clothing and
equipment must be handled in accordance
with the standard.
Sec. 1926.1124(k)(7)--Medical The employer must provide an evaluation at Add an initial consultation
Surveillance-- Referral to the CBD no cost to the employee at a CBD with the CBD diagnostic
Diagnostic Center. diagnostic center that is mutually agreed center, as follows:
upon by the employer and the employee. The employer must also
The examination must be provided within provide, at no cost to the
30 days of either of the events in employee and within a
paragraph (k)(7)(i)(A) or (B). reasonable time after the
initial consultation with
the CBD diagnostic center,
any of the following tests
if deemed appropriate by the
examining physician at the
CBD diagnostic center:
pulmonary function testing
(as outlined by the American
Thoracic Society criteria),
bronchoalveolar lavage
(BAL), and transbronchial
biopsy. The initial
consultation with the CBD
diagnostic center must be
provided within 30 days of
either of the events in
paragraph (k)(7)(i)(A) or
(B).
Sec. 1926.1124(n)(1)(ii)(F)-- The name, social security number, and job Remove the requirement to
Recordkeeping --Air Monitoring Data. classification of each employee collect and record social
represented by the monitoring, indicating security numbers, as
which employees were actually monitored. follows:
The name and job
classification of each
employee represented by the
monitoring, indicating which
employees were actually
monitored.
Sec. 1926.1124(n)(3) (ii)(A)-- The record must include the following Remove the requirement to
Recordkeeping-- Medical Surveillance. information about the employee: Name, collect and record social
social security number, and job security numbers, as
classification. follows:
.......................................... The record must include the
following information about
the employee: Name and job
classification.
Sec. 1926.1124(n)(4)(i)-- At the completion of any training required Remove the requirement to
Recordkeeping--Training. by the standard, the employer must collect and record social
prepare a record that indicates the name, security numbers, as
social security number, and job follows:
classification of each employee trained,
the date the training was completed, and
the topic of the training.
.......................................... At the completion of any
training required by the
standard, the employer must
prepare a record that
indicates the name and job
classification of each
employee trained, the date
the training was completed,
and the topic of the
training.
----------------------------------------------------------------------------------------------------------------
4. OMB Control Number: 1218-0NEW.
5. Affected Public: Business or other-for-profit. This standard
applies to employers in the construction industry who have employees
that may have occupational exposures to any form of beryllium,
including compounds and mixtures, except those articles and materials
exempted by paragraphs (a)(2) and (3) of the standard.
6. Number of Respondents: 2,520.
7. Frequency of Responses: On occasion; quarterly, semi-annually,
annual; biannual.
8. Number of Reponses: 29,330.
9. Average Time per Response: Various.
10. Estimated Annual Total Burden Hours: 18,075.
11. Estimated Annual Total Cost (Capital-operation and
maintenance): $5,611,902.
Shipyards (ICR):
1. Title: Occupational Exposure to Beryllium for the Shipyards
Sector.
2. Description of the ICR: The proposal would separate the
shipyards standards from the currently approved Beryllium ICR and
remove existing collection of information requirements currently
approved by OMB.
3. Brief Summary of the Information Collection Requirements:
The proposed standard for occupational exposure to beryllium and
beryllium compounds in shipyards would revise the collection of
information requirements contained in the existing ICR for that
industry, approved under OMB under control number 1218-0267. OSHA is
proposing, first, to separate the shipyards collection of information
requirements from those of the general industry and construction
standards, and requests a new control number specific to the shipyards
standard (1218-0NEW2). Next, OSHA is proposing to update the new ICR to
reflect its proposal to (1) remove provisions in the shipyards standard
that require employers to collect and record employees' social security
number; (2) revise the contents of the written exposure control plan;
and (3) remove certain requirements related to written warnings. See
Table VI.2.
Table VI.2--Collection of Information Requirements Being Revised in the Beryllium Standard for Shipyards
----------------------------------------------------------------------------------------------------------------
Currently approved collection of
Section number and title information requirements Proposed action
----------------------------------------------------------------------------------------------------------------
Sec. 1915.1024(f)(1)(i)--Methods of The employer must establish, implement, Remove paragraphs
Compliance--Written Exposure Control and maintain a written exposure control (f)(1)(i)(B) through (E) and
Plan. plan, which must contain: (H), the written exposure
A list of operations and job control plan.
titles reasonably expected to involve Revise paragraph (f)(1)(i)(A)
exposure to or dermal contact with to list operations and job
beryllium; titles reasonably expected
A list of operations and job to involve exposure to
titles reasonably expected to involve beryllium.
airborne exposure at or above the AL; Add a new requirement,
A list of operations and job paragraph (f)(1)(i)(D) to
titles reasonably expected to involve list procedures used to
airborne exposure above the TWA PEL or ensure the integrity of each
STEL; containment used to minimize
Procedures for minimizing cross- exposures to employees
contamination; outside the containment.
Procedures for minimizing the
migration of beryllium within or to
locations outside the workplace;
A list of engineering controls,
work practices, and respiratory
protection required by paragraph (f)(2)
of the standard;
A list of personal protective
clothing and equipment required by
paragraph (h) of the standard; and
Procedures for removing,
laundering, storing, cleaning, repairing,
and disposing of beryllium-contaminated
personal protective clothing and
equipment, including respirators;
Sec. 1915.1024(h)(2)(v)--Personal When personal protective clothing or Remove this labeling
Protective Clothing and Equipment-- equipment required by this standard is requirement from the
Removal and Storage. removed from the workplace for beryllium standard for
laundering, cleaning, maintenance or shipyards and therefore from
disposal, the employer must ensure that the ICR.
personal protective clothing and
equipment are stored and transported in
sealed bags or other closed containers
that are impermeable and are labeled in
accordance with paragraph (m)(3) of the
standard and the HCS (29 CFR 1910.1200).
Sec. 1915.1024(h)(3)(iii) -- The employer must inform in writing the Remove this requirement from
Personal Protective Clothing and persons or the business entities who the beryllium standard for
Equipment--Cleaning and Replacement. launder, clean or repair the personal shipyards and therefore from
protective clothing or equipment required the ICR.
by this standard of the potentially
harmful effects of airborne exposure to
and dermal contact with beryllium and
that the personal protective clothing and
equipment must be handled in accordance
with the standard.
Sec. 1915.1024(k)(7)--Medical The employer must provide an evaluation at Add an initial consultation
Surveillance-- Referral to the CBD no cost to the employee at a CBD with the CBD diagnostic
Diagnostic Center. diagnostic center that is mutually agreed center.
upon by the employer and the employee. Proposing: The employer must
The examination must be provided within provide an evaluation at no
30 days of either the events in paragraph cost to the employee at a
(k)(7)(i)(A) or (B). CBD diagnostic center that
is mutually agreed upon by
the employer and the
employee. The employer must
also provide, at no cost to
the employee and within a
reasonable time after the
initial consultation with
the CBD diagnostic center,
any of the following tests
if deemed appropriate by the
examining physician at the
CBD diagnostic center:
pulmonary function testing
(as outlined by the American
Thoracic Society criteria),
bronchoalveolar lavage
(BAL), and transbronchial
biopsy. The initial
consultation with the CBD
diagnostic center must be
provided within 30 days of
either the events in
paragraph (k)(7)(i)(A) or
(B).
Sec. 1915.1024(n)(1)(ii)(F)-- The name, social security number, and job Remove the requirement to
Recordkeeping --Air Monitoring Data. classification of each employee collect and record social
represented by the monitoring, indicating security numbers, as
which employees were actually monitored. follows:
The name and job
classification of each
employee represented by the
monitoring, indicating which
employees were actually
monitored.
Sec. 1915.1024(n)(3)(ii)(B)-- The record must include the following Remove the requirement to
Recordkeeping-- Medical Surveillance. information about the employee: Name, collect and record of social
social security number, and job security numbers, as
classification. follows: Name and job
classification.
Sec. 1915.1024(n)(4)(i)-- At the completion of any training required Remove the requirement to
Recordkeeping--Training. by this standard, the employer must collect and record social
prepare a record that indicates the name, security numbers, as
social security number, and job follows:
classification of each employee trained, At the completion of any
the date the training was completed, and training required by this
the topic of the training. standard, the employer must
prepare a record that
indicates the name and job
classification of each
employee trained, the date
the training was completed,
and the topic of the
training.
----------------------------------------------------------------------------------------------------------------
4. OMB Control Number: 1218-NEW2.
5. Affected Public: Business or other-for-profit. This standard
applies to employers in the shipyards industry who have employees that
may have occupational exposures to any form of beryllium, including
compounds and mixtures, except those articles and materials exempted by
paragraphs (a)(2) and (3) of the standard.
6. Number of Respondents: 925.
7. Frequency of Responses: On occasion; quarterly, semi-annually,
annual; biannual.
8. Number of Reponses: 10,794.
9. Average Time per Response: Various.
10. Estimated Annual Total Burden Hours: 6,609.
11. Estimated Annual Total Cost (Capital-operation and
maintenance): $2,057,856.
D. Submitting Comments
In addition to the 30 days provided for public comment on this
proposal, OSHA is providing an additional 30 days--for a total of 60
days from the date this document is published in the Federal Register--
for public comment on the information collection requirements contained
in the proposed updates to the beryllium standards for construction and
shipyards, as required by 5 CFR 1320.11(c).
Members of the public who wish to comment on the revisions to the
paperwork requirements in this proposal must send their written
comments to the Office of Information and Regulatory Affairs, Attn: OMB
Desk Officer for the Department of Labor, OSHA (RIN 1218-AD29), Office
of Management and Budget, Room 10235,
Washington, DC 20503, Telephone: 202-395-6929/Fax: 202-395-6881 (these
are not toll-free numbers), email: OIRA_submission@omb.eop.gov. The
agency encourages commenters also to submit their comments on these
paperwork requirements to the rulemaking docket (Docket Number OSHA-
2019-0006), along with their comments on other parts of the proposed
rule. For instructions on submitting these comments to the rulemaking
docket, see the sections of this Federal Register document titled DATES
and ADDRESSES. Comments submitted in response to this document are
public records; therefore, OSHA cautions commenters about submitting
personal information such as Social Security Numbers and dates of
birth.
E. Docket and Inquiries
To access the docket to read or download comments and other
materials related to this paperwork determination, including the
complete ICR (containing the Supporting Statement with attachments
describing the paperwork determinations in detail) use the procedures
described under the section of this document titled ADDRESSES.
You also may obtain an electronic copy of the complete ICR by
visiting the web page at: http://www.reginfo.gov/public/do/PRAMain,
scroll under ``Currently Under Review'' to ``Department of Labor
(DOL)'' to view all of the DOL's ICRs, including those ICRs submitted
for proposed rulemakings. To make inquiries, or to request other
information, contact Ms. Seleda Perryman, Directorate of Standards and
Guidance, telephone (202) 693-2222.
VII. Federalism
OSHA reviewed this proposal in accordance with the Executive Order
on Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which
requires that Federal agencies, to the extent possible, refrain from
limiting State policy options, consult with States prior to taking any
actions that would restrict State policy options, and take such actions
only when clear constitutional and statutory authority exists and the
problem is national in scope. E.O. 13132 provides for preemption of
State law only with the expressed consent of Congress. Any such
preemption is to be limited to the extent possible.
Under Section 18 of the OSH Act, 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'' (29 U.S.C. 667). Occupational safety and health standards
developed by State Plan States must be at least as effective in
providing safe and healthful employment and places of employment as the
Federal standards. Subject to these requirements, State Plan States are
free to develop and enforce under State law their own requirements for
safety and health standards.
OSHA previously concluded that promulgation of the beryllium
standard complies with E.O. 13132 (82 FR at 2633), so this proposal
complies with E.O. 13132. In States without OSHA-approved State Plans,
Congress expressly provides for OSHA standards to preempt State
occupational safety and health standards in areas addressed by the
Federal standards. In these States, this proposal would limit State
policy options in the same manner as every standard promulgated by
OSHA. In States with OSHA-approved State Plans, this rulemaking would
not significantly limit State policy options.
VIII. State Plan States
When Federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the 28 States and U.S. territories
with their own OSHA approved occupational safety and health plans
(``State Plan States'') must amend their standards to reflect the new
standard or amendment, or show OSHA why such action is unnecessary,
e.g., because an existing State standard covering this area is ``at
least as effective'' as the new Federal standard or amendment. 29 CFR
1953.5(a). The State standard must be at least as effective as the
final Federal rule. 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 Plan States are not
required to amend their standards, although the agency may encourage
them to do so. The 28 States and U.S. territories with OSHA-approved
occupational safety and health plans are: Alaska, Arizona, California,
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.
Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin
Islands have OSHA-approved State Plans that apply to State and local
government employees only.
This proposal applies to the construction and shipyards industries.
If adopted as proposed, the revised standards, in conjunction with
other existing OSHA standards, would provide equivalent protection to
the 2017 beryllium standards. Therefore, State Plan States whose
current laws are at least as effective as the 2017 final rule would not
have to revise these laws. State Plan States may nonetheless choose to
conform to these proposed revisions if finalized.
IX. Unfunded Mandates Reform Act
OSHA reviewed this proposal according to the Unfunded Mandates
Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and Executive
Order 12875 (58 FR 58093). As discussed above in Section IV
(``Preliminary Economic Analysis and Regulatory Flexibility
Certification'') of this preamble, the agency preliminarily determined
that this proposal would not impose significant additional costs on any
private- or public-sector entity. Further, OSHA previously concluded
that the rule would not impose a Federal mandate on the private sector
in excess of $100 million (adjusted annually for inflation) in
expenditures in any one year (82 FR at 2634). Accordingly, this
proposal would not require significant additional expenditures by
either public or private employers.
As noted above under Section VII (``State-Plan States''), the
agency's standards do not apply to State and local governments except
in States that have elected voluntarily to adopt a State Plan approved
by the agency. Consequently, this proposal does not meet the definition
of a ``Federal intergovernmental mandate'' (see Section 421(5) of the
UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the
agency certifies that this proposal would not mandate that State,
local, or Tribal governments adopt new, unfunded regulatory obligations
of, or increase expenditures by the private sector by, more than $100
million in any year.
X. Environmental Impacts
OSHA has reviewed this proposed 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 preliminary determination that this proposed rule
would have no significant impact on air,
water, or soil quality; plant or animal life; the use of land; or
aspects of the external environment.
XI. Consultation and Coordination with Indian Tribal Governments
OSHA reviewed this proposed 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 proposal 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.
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, Washington, DC 20210.
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.
[Corrected]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 proposed
to be 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 as follows:
0
a. In paragraph (b):
0
i. Add a definition for ``Beryllium sensitization'' in alphabetical
order;
0
ii. Revise the definitions of ``CBD diagnostic center,'' ``Chronic
beryllium disease (CBD),'' and ``Confirmed positive''; and
0
iii. Remove the definition of ``Emergency'';
0
b. Revise paragraph (f)(1)(i)(A);
0
c. Remove paragraphs (f)(1)(i)(B), (C), (D), (E), and (H);
0
d. Redesignate paragraphs (f)(1)(i)(F) and (G) as paragraphs
(f)(1)(i)(B) and (C);
0
e. Add new paragraph (f)(1)(i)(D);
0
f. Revise paragraphs (f)(1)(ii)(B), (f)(2), and (g)(1)(iii);
0
g. Remove paragraph (g)(1)(iv);
0
h. Redesignate paragraph (g)(1)(v) as paragraph (g)(1)(iv);
0
i. Revise paragraphs (h)(1) introductory text and (h)(2)(i) and (ii);
0
j. Remove paragraphs (h)(2)(iii), (iv), and (v);
0
k. Revise paragraph (h)(3)(ii);
0
l. Remove paragraph (h)(3)(iii);
0
m. Remove and reserve paragraph (i);
0
n. Revise paragraphs (j) and (k)(1)(i)(B);
0
o. Remove paragraph (k)(1)(i)(C);
0
p. Redesignate paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C);
0
q. Revise paragraph (k)(2)(i)(B), (k)(2)(ii), (k)(3)(ii)(A), (k)(4)(i),
(k)(7)(i) introductory text, and (m)(1)(ii);
0
r. Remove paragraph (m)(3);
0
s. Redesignate paragraph (m)(4) as paragraph (m)(3);
0
t. Revise newly redesignated paragraphs (m)(3)(i) introductory text and
(m)(3)(ii)(A);
0
u. Remove newly redesignated paragraph (m)(3)(ii)(D);
0
v. Further redesignate paragraphs (m)(3)(ii)(E) through (I) as
paragraphs (m)(3)(ii)(D) through (H); and
0
w. Revise newly redesignated paragraph (m)(3)(ii)(D) and paragraphs
(n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i).
The revisions and additions read as follows:
Sec. 1915.1024 Beryllium.
* * * * *
(b) * * *
Beryllium sensitization means a response in the immune system of a
specific individual who has been exposed to beryllium. There are no
associated physical or clinical symptoms and no illness or disability
with beryllium sensitization alone, but the response that occurs
through beryllium sensitization can enable the immune system to
recognize and react to beryllium. While not every beryllium-sensitized
person will develop CBD, beryllium sensitization is essential for
development of CBD.
CBD diagnostic center means a medical diagnostic center that has a
pulmonologist or pulmonary specialist on staff and on-site facilities
to perform a clinical evaluation for the presence of chronic beryllium
disease (CBD). The CBD diagnostic center must have the capacity to
perform pulmonary function testing (as outlined by the American
Thoracic Society criteria), bronchoalveolar lavage (BAL), and
transbronchial biopsy. The CBD diagnostic center must also have the
capacity to transfer BAL samples to a laboratory for appropriate
diagnostic testing within 24 hours. The pulmonologist or pulmonary
specialist must be able to interpret the biopsy pathology and the BAL
diagnostic test results.
Chronic beryllium disease (CBD) means a chronic granulomatous lung
disease caused by inhalation of airborne beryllium by an individual who
is beryllium-sensitized.
Confirmed positive means the person tested has had two abnormal
BeLPT test results, an abnormal and a borderline test result, or three
borderline test results obtained within the 30-day follow-up test
period required after a first abnormal or borderline BeLPT test result.
It also means the result of a more reliable and accurate test
indicating a person has been identified as having beryllium
sensitization.
* * * * *
(f) * * *
(1) * * *
(i) * * *
(A) A list of operations and job titles reasonably expected to
involve exposure to beryllium;
* * * * *
(D) Procedures used to ensure the integrity of each containment
used to minimize exposures to employees outside of the containment.
* * * * *
(ii) * * *
(B) The employer is notified that an employee is eligible for
medical removal in accordance with paragraph (l)(1) of this standard,
referred for evaluation at a CBD diagnostic center, or shows signs or
symptoms associated with airborne exposure to beryllium; or
* * * * *
(2) Engineering and work practice controls. The employer must use
engineering and work practice controls to reduce and maintain employee
airborne exposure to beryllium to or below the TWA PEL and STEL, unless
the employer can demonstrate that such controls are not feasible.
Wherever the employer demonstrates that it is not feasible to reduce
airborne exposure to or below the PELs with engineering and work
practice controls, the employer
must implement and maintain engineering and work practice controls to
reduce airborne exposure to the lowest levels feasible and supplement
these controls by using respiratory protection in accordance with
paragraph (g) of this standard.
* * * * *
(g) * * *
(1) * * *
(iii) 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; and
* * * * *
(h) * * *
(1) Provision and use. Where airborne exposure exceeds, or can
reasonably be expected to exceed, the TWA PEL or STEL, the employer
must provide at no cost, and ensure that each employee uses,
appropriate personal protective clothing and equipment in accordance
with the written exposure control plan required under paragraph (f)(1)
of this standard and OSHA's Personal Protective Equipment standards for
shipyards (subpart I of this part):
* * * * *
(2) * * *
(i) The employer must ensure that each employee removes all
personal protective clothing and equipment required by this standard at
the end of the work shift or at the completion of all tasks involving
beryllium, whichever comes first.
(ii) The employer must ensure that personal protective clothing and
equipment required by this standard is not removed in a manner that
disperses beryllium into the air.
(3) * * *
(ii) The employer must ensure that beryllium is not removed from
personal protective clothing and equipment required by this standard by
blowing, shaking or any other means that disperses beryllium into the
air.
* * * * *
(j) Housekeeping. (1) When cleaning dust resulting from operations
that cause, or can reasonably be expected to cause, airborne exposure
above the TWA PEL or STEL, the employer must ensure the use of methods
that minimize the likelihood and level of airborne exposure.
(2) The employer must not allow dry sweeping or brushing for
cleaning up dust resulting from operations that cause, or can
reasonably be expected to cause, airborne exposure above the TWA PEL or
STEL unless methods that minimize the likelihood and level of airborne
exposure are not safe or effective.
(3) The employer must not allow the use of compressed air for
cleaning where the use of compressed air causes, or can reasonably be
expected to cause, airborne exposure above the TWA PEL or STEL.
(4) Where employees use dry sweeping, brushing, or compressed air
to clean, the employer must provide, and ensure that each employee
uses, respiratory protection and personal protective clothing and
equipment in accordance with paragraphs (g) and (h) of this standard.
(5) The employer must ensure that cleaning equipment is handled and
maintained in a manner that minimizes the likelihood and level of
airborne exposure and the re-entrainment of airborne beryllium in the
workplace.
(k) * * *
(1) * * *
(i) * * *
(B) Who shows signs or symptoms of CBD or other beryllium-related
health effects; or
* * * * *
(2) * * *
(i) * * *
(B) An employee meets the criteria of paragraph (k)(1)(i)(B) of
this standard.
(ii) At least every two years thereafter for each employee who
continues to meet the criteria of paragraph (k)(1)(i)(A), (B), or (C)
of this standard.
* * * * *
(3) * * *
(ii) * * *
(A) A medical and work history, with emphasis on past and present
exposure to beryllium, smoking history, and any history of respiratory
system dysfunction;
* * * * *
(4) * * *
(i) A description of the employee's former and current duties that
relate to the employee's exposure to beryllium;
* * * * *
(7) * * *
(i) The employer must provide an evaluation at no cost to the
employee at a CBD diagnostic center that is mutually agreed upon by the
employer and the employee. The employer must also provide, at no cost
to the employee and within a reasonable time after the initial
consultation with the CBD diagnostic center, any of the following tests
if deemed appropriate by the examining physician at the CBD diagnostic
center: pulmonary function testing (as outlined by the American
Thoracic Society criteria), bronchoalveolar lavage (BAL), and
transbronchial biopsy. The initial consultation with the CBD diagnostic
center must be provided within 30 days of:
* * * * *
(m) * * *
(1) * * *
(ii) Employers must include beryllium in the hazard communication
program established to comply with the HCS. Employers must ensure that
each employee has access to labels on containers of beryllium and to
safety data sheets, and is trained in accordance with the requirements
of the HCS (29 CFR 1910.1200) and paragraph (m)(3) of this standard.
* * * * *
(3) * * *
(i) For each employee who has, or can reasonably be expected to
have, airborne exposure to beryllium;
* * * * *
(ii) * * *
(A) The health hazards associated with exposure to beryllium,
including the signs and symptoms of CBD;
* * * * *
(D) Measures employees can take to protect themselves from exposure
to beryllium;
* * * * *
(n) * * *
(1) * * *
(ii) * * *
(F) The name and job classification of each employee represented by
the monitoring, indicating which employees were actually monitored.
* * * * *
(3) * * *
(ii) * * *
(A) Name and job classification;
* * * * *
(4) * * *
(i) At the completion of any training required by this standard,
the employer must prepare a record that indicates the name and job
classification of each employee trained, the date the training was
completed, and the topic of the training.
* * * * *
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
4. Amend Sec. 1926.1124 as follows:
0
a. In paragraph (b):
0
i. Add a definition for ``Beryllium sensitization'' in alphabetical
order;
0
ii. Revise the definitions of ``CBD diagnostic center,'' ``Chronic
beryllium disease (CBD),'' and ``Confirmed positive''; and
0
iii. Remove the definition of ``Emergency'';
0
b. Revise paragraph (f)(1)(i)(A);
0
c. Remove paragraphs (f)(1)(i)(B), (C), (D), (E), and (H);
0
d. Redesignate paragraphs (f)(1)(i)(F), (G), and (I) as paragraphs
(f)(1)(i)(B), (C), and (D);
0
e. Remove the period at the end of newly redesignated paragraph
(f)(1)(i)(D) and adding ``; and'' in its place;
0
f. Add new paragraph (f)(1)(i)(E);
0
g. Revise paragraphs (f)(1)(ii)(B), (f)(2), and (g)(1)(iii);
0
h. Remove paragraph (g)(1)(iv);
0
i. Redesignate paragraph (g)(1)(v) as paragraph (g)(1)(iv);
0
j. Revise paragraphs (h)(1) and (h)(2)(i) and (ii);
0
k. Remove paragraphs (h)(2)(iii), (iv), and (v);
0
l. Revise paragraph (h)(3)(ii);
0
m. Remove paragraph (h)(3)(iii);
0
n. Remove and reserve paragraph (i);
0
o. Revise paragraphs (j) and (k)(1)(i)(B);
0
p. Remove paragraph (k)(1)(i)(C);
0
q. Redesignate paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C);
0
r. Revise paragraphs (k)(2)(i)(B), (k)(2)(ii), (k)(3)(ii)(A),
(k)(4)(i), and (k)(7)(i) introductory text;
0
s. Remove paragraph (m)(2);
0
t. Redesignate paragraph (m)(3) as paragraph (m)(2);
0
u. Revise newly redesignated paragraphs (m)(2)(i) introductory text and
(m)(2)(ii)(A);
0
v. Remove newly redesignated paragraph (m)(2)(ii)(D);
0
w. Further redesignate paragraphs (m)(2)(ii)(E) through (I) as
paragraphs (m)(2)(ii)(D) through (H); and
0
x. Revise newly redesignated paragraph (m)(2)(ii)(D) and paragraphs
(n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i).
The revisions and additions read as follows:
Sec. 1926.1124 Beryllium.
* * * * *
(b) * * *
Beryllium sensitization means a response in the immune system of a
specific individual who has been exposed to beryllium. There are no
associated physical or clinical symptoms and no illness or disability
with beryllium sensitization alone, but the response that occurs
through beryllium sensitization can enable the immune system to
recognize and react to beryllium. While not every beryllium-sensitized
person will develop CBD, beryllium sensitization is essential for
development of CBD.
CBD diagnostic center means a medical diagnostic center that has a
pulmonologist or pulmonary specialist on staff and on-site facilities
to perform a clinical evaluation for the presence of chronic beryllium
disease (CBD). The CBD diagnostic center must have the capacity to
perform pulmonary function testing (as outlined by the American
Thoracic Society criteria), bronchoalveolar lavage (BAL), and
transbronchial biopsy. The CBD diagnostic center must also have the
capacity to transfer BAL samples to a laboratory for appropriate
diagnostic testing within 24 hours. The pulmonologist or pulmonary
specialist must be able to interpret the biopsy pathology and the BAL
diagnostic test results.
Chronic beryllium disease (CBD) means a chronic granulomatous lung
disease caused by inhalation of airborne beryllium by an individual who
is beryllium-sensitized.
* * * * *
Confirmed positive means the person tested has had two abnormal
BeLPT test results, an abnormal and a borderline test result, or three
borderline test results obtained within the 30-day follow-up test
period required after a first abnormal or borderline BeLPT test result.
It also means the result of a more reliable and accurate test
indicating a person has been identified as having beryllium
sensitization.
* * * * *
(f) * * *
(1) * * *
(i) * * *
(A) A list of operations and job titles reasonably expected to
involve exposure to beryllium;
* * * * *
(E) Procedures used to ensure the integrity of each containment
used to minimize exposures to employees outside the containment.
(ii) * * *
(B) The employer is notified that an employee is eligible for
medical removal in accordance with paragraph (l)(1) of this standard,
referred for evaluation at a CBD diagnostic center, or shows signs or
symptoms associated with airborne exposure to beryllium; or
* * * * *
(2) Engineering and work practice controls. The employer must use
engineering and work practice controls to reduce and maintain employee
airborne exposure to beryllium to or below the TWA PEL and STEL, unless
the employer can demonstrate that such controls are not feasible.
Wherever the employer demonstrates that it is not feasible to reduce
airborne exposure to or below the PELs with engineering and work
practice controls, the employer must implement and maintain engineering
and work practice controls to reduce airborne exposure to the lowest
levels feasible and supplement these controls by using respiratory
protection in accordance with paragraph (g) of this standard.
* * * * *
(g) * * *
(1) * * *
(iii) 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; and
* * * * *
(h) * * *
(1) Provision and use. Where airborne exposure exceeds, or can
reasonably be expected to exceed, the TWA PEL or STEL, the employer
must provide at no cost, and ensure that each employee uses,
appropriate personal protective clothing and equipment in accordance
with the written exposure control plan required under paragraph (f)(1)
of this standard and OSHA's Personal Protective and Life Saving
Equipment standards for construction (subpart E of this part).
(2) * * *
(i) The employer must ensure that each employee removes all
personal protective clothing and equipment required by this standard at
the end of the work shift or at the completion of all tasks involving
beryllium, whichever comes first.
(ii) The employer must ensure that personal protective clothing and
equipment required by this standard is not removed in a manner that
disperses beryllium into the air.
(3) * * *
(ii) The employer must ensure that beryllium is not removed from
personal protective clothing and equipment required by this standard by
blowing, shaking or any other means that disperses beryllium into the
air.
* * * * *
(j) Housekeeping. (1) When cleaning up dust resulting from
operations that cause, or can reasonably be expected to cause, airborne
exposure above the
TWA PEL or STEL, the employer must ensure the use of methods that
minimize the likelihood and level of airborne exposure.
(2) The employer must not allow dry sweeping or brushing for
cleaning up dust resulting from operations that cause, or can
reasonably be expected to cause, airborne exposure above the TWA PEL or
STEL unless methods that minimize the likelihood and level of airborne
exposure are not safe or effective.
(3) The employer must not allow the use of compressed air for
cleaning where the use of compressed air causes, or can reasonably be
expected to cause, airborne exposure above the TWA PEL or STEL.
(4) Where employees use dry sweeping, brushing, or compressed air
to clean, the employer must provide, and ensure that each employee
uses, respiratory protection and personal protective clothing and
equipment in accordance with paragraphs (g) and (h) of this standard.
(5) The employer must ensure that cleaning equipment is handled and
maintained in a manner that minimizes the likelihood and level of
airborne exposure and the re-entrainment of airborne beryllium in the
workplace.
(k) * * *
(1) * * *
(i) * * *
(B) Who shows signs or symptoms of CBD or other beryllium-related
health effects; or
* * * * *
(2) * * *
(i) * * *
(B) An employee meets the criteria of paragraph (k)(1)(i)(B) of
this standard.
(ii) At least every two years thereafter for each employee who
continues to meet the criteria of paragraph (k)(1)(i)(A), (B), or (C)
of this standard.
* * * * *
(3) * * *
(ii) * * *
(A) A medical and work history, with emphasis on past and present
exposure to beryllium, smoking history, and any history of respiratory
system dysfunction;
* * * * *
(4) * * *
(i) A description of the employee's former and current duties that
relate to the employee's exposure to beryllium;
* * * * *
(7) * * *
(i) The employer must provide an evaluation at no cost to the
employee at a CBD diagnostic center that is mutually agreed upon by the
employer and the employee. The employer must also provide, at no cost
to the employee and within a reasonable time after the initial
consultation with the CBD diagnostic center, any of the following tests
if deemed appropriate by the examining physician at the CBD diagnostic
center: pulmonary function testing (as outlined by the American
Thoracic Society criteria), bronchoalveolar lavage (BAL), and
transbronchial biopsy. The initial consultation with the CBD diagnostic
center must be provided within 30 days of:
* * * * *
(m) * * *
(2) * * *
(i) For each employee who has, or can reasonably be expected to
have, airborne exposure to beryllium:
* * * * *
(ii) * * *
(A) The health hazards associated with exposure to beryllium,
including the signs and symptoms of CBD;
* * * * *
(D) Measures employees can take to protect themselves from exposure
to beryllium;
* * * * *
(n) * * *
(1) * * *
(ii) * * *
(F) The name and job classification of each employee represented by
the monitoring, indicating which employees were actually monitored.
* * * * *
(3) * * *
(ii) * * *
(A) Name and job classification;
* * * * *
(4) * * *
(i) At the completion of any training required by this standard,
the employer must prepare a record that indicates the name and job
classification of each employee trained, the date the training was
completed, and the topic of the training.
* * * * *
[FR Doc. 2019-21038 Filed 10-7-19; 8:45 am]
BILLING CODE 4510-26-P
