[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
[Rules and Regulations]
[Pages 53910-53999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18017]
[[Page 53909]]
Vol. 85
Monday,
No. 169
August 31, 2020
Part II
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; Final Rule
Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules
and Regulations
[[Page 53910]]
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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: Final rule.
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SUMMARY: OSHA is amending its existing construction and shipyard
standards for occupational exposure to beryllium and beryllium
compounds to clarify certain provisions and simplify or improve
compliance. These 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 recent revisions
to the general industry standard; and to clarify certain requirements
with respect to materials containing only trace amounts of beryllium.
This final rule does not affect the general industry beryllium
standard.
DATES: This rule is effective September 30, 2020.
ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates Mr.
Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety
and Health, to receive petitions for review of the final rule. Contact
the Associate Solicitor at the Office of the Solicitor, Room S-4004,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210; telephone: (202) 693-5445.
Copies of this Federal Register document and news releases:
Electronic copies of these documents are available at OSHA's web page
at https://www.osha.gov.
FOR FURTHER INFORMATION CONTACT: Press inquiries: Mr. Frank Meilinger,
OSHA Office of Communications; telephone: (202) 693-1999; email:
[email protected].
General information and technical inquiries: Ms. Maureen Ruskin,
Directorate of Standards and Guidance; telephone: (202) 693-1950;
email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Pertinent Legal Authority
III. Summary and Explanation of the Final Rule
IV. Final Economic Analysis
V. Economic Feasibility Analysis and Regulatory Flexibility
Certification
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Federalism
VIII. State Plans
IX. Unfunded Mandates Reform Act
X. Environmental Impacts
XI. Consultation and Coordination With Indian Tribal Governments
Authority and Signature
I. Background
On January 9, 2017, OSHA published its final rule Occupational
Exposure to Beryllium and Beryllium Compounds in the Federal Register
(82 FR 2470). The final rule established three comprehensive health
standards to protect workers from occupational exposure to beryllium
and beryllium compounds in the general industry (29 CFR 1910.1024),
construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024)
sectors. In the final rule, OSHA concluded that employees exposed to
beryllium and beryllium compounds at the preceding permissible exposure
limits (PELs) were at significant risk of material impairment of
health, specifically chronic beryllium disease (CBD) and lung cancer.
The agency further determined that limiting employee exposure to an 8-
hour time-weighted average (TWA) PEL of 0.2 [micro]g/m\3\ would reduce
this significant risk to the maximum extent feasible. Therefore, the
2017 final rule adopted a TWA PEL of 0.2 [micro]g/m\3\. In addition to
the revised PEL, the 2017 final rule established a new short-term
exposure limit (STEL) of 2.0 [micro]g/m\3\ over a 15-minute sampling
period and an action level of 0.1 [micro]g/m\3\ as an 8-hour TWA, along
with a number of ancillary provisions intended to provide additional
protections to employees. The ancillary provisions included
requirements for exposure assessment, methods for controlling exposure,
respiratory protection, personal protective clothing and equipment,
housekeeping, medical surveillance, hazard communication, and
recordkeeping that are similar to those found in other OSHA health
standards. The 2017 final rule went into effect on May 20, 2017, and
OSHA began enforcing the PEL and STEL in the construction and shipyard
sectors on May 11, 2018. See Updated Interim Enforcement Guidance for
the Beryllium Standards, available at https://www.osha.gov/laws-regs/standardinterpretations/2018-12-11.
On June 27, 2017, based on stakeholder feedback and a review of
applicable existing standards, OSHA published a notice of proposed
rulemaking (NPRM) proposing to revoke the ancillary provisions for both
the construction and shipyards standards while retaining the new lower
PEL of 0.2 [micro]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for those sectors
(82 FR 29182).\1\ OSHA stated in the proposal that it was also
considering extending the compliance dates in the January 9, 2017,
final rule by a year for the construction and shipyard standards. OSHA
reasoned that this potential extension would give affected employers
additional time to come into compliance with the final rule's
requirements, which could be warranted by the uncertainty created by
the proposal. OSHA also stated in the proposal that it would not
enforce the construction and shipyard standards without further notice
while the rulemaking was underway.\2\
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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 the general industry beryllium
standard to address the application of that standard to materials
containing trace amounts of beryllium (83 FR 19936). The DFR amended
the text of the general industry standard to clarify OSHA's intent with
respect to certain terms in the standard, including the definition of
beryllium work area, the definition of emergency, and the meaning of
the terms dermal contact and beryllium contamination. The DFR also
clarified OSHA's intent with respect to provisions for disposal and
recycling and with respect to provisions that the agency intended to
apply only where skin can be exposed to materials containing at least
0.1 percent 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 1045).
On December 11, 2018, OSHA published another 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,
[[Page 53911]]
housekeeping, medical surveillance, communication of hazards, and
recordkeeping (83 FR 63746). OSHA reasoned in part that the proposed
modifications would provide clarification and simplify or improve
compliance. OSHA recently finalized this proposal in a final rule
published on July 14, 2020 (85 FR 42582).
On September 30, 2019, OSHA issued a final rule in which the agency
declined to revoke the ancillary provisions of the construction and
shipyards standards as proposed in the June 27, 2017 NPRM (84 FR
51377). Based on comments received and the record as a whole, the
agency determined that there is not complete overlap in protections
between the beryllium standards' ancillary provisions and existing
standards applicable to these sectors. Thus, revoking all of the
ancillary provisions and leaving only the PEL and STEL would be
inconsistent with OSHA's statutory mandate to protect workers from the
demonstrated significant risks of material impairment of health
resulting from exposure to beryllium and beryllium compounds. However,
after careful review, OSHA determined that some revisions to the
construction and shipyards standards were appropriate. To give the
agency time to finalize a new proposal with these more limited changes
to the construction and shipyards standards, the final rule delayed the
compliance dates for all ancillary provisions of these standards until
September 30, 2020. The final rule did not impact the PEL or STEL,
which OSHA has been enforcing since May 11, 2018.
On October 8, 2019, OSHA published the proposal being finalized
here (84 FR 53902). In the NPRM, the agency proposed several revisions
to the ancillary provisions of the construction and shipyard standards
to more appropriately tailor the standards to these industries, to
align certain provisions with recent changes to the general industry
standard, and to clarify OSHA's intent with respect to materials
containing trace amounts of beryllium. The NPRM proposed revisions to
the paragraphs for definitions, methods of compliance, respiratory
protection, personal protective clothing and equipment, hygiene areas
and practices, housekeeping, medical surveillance, hazard
communication, and recordkeeping. In developing its proposal, OSHA
considered relevant comments received in response to the June 2017
construction and shipyards proposal, as well as general industry
stakeholder input that led to the 2018 general industry DFR. In
addition, OSHA proposed some revisions to align with changes proposed
in the December 12, 2018 general industry NPRM (83 FR 39351).
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 (see Document ID OSHA-
2018-0012-0125, Tr. 62-67).
OSHA requested comments on the proposed changes and provided
stakeholders 30 days to submit comments. In addition, OSHA held a
public hearing on the proposal on December 3, 2019, where the agency
heard testimony from several stakeholders (see Document ID 2222; 2223).
Participants who filed notices of intention to appear at the hearing
were permitted to submit additional evidence and data relevant to the
proceeding for a 44-day period following the hearing. That period ended
on January 16, 2020. The record remained open for an additional 15
days, until January 31, 2020, for the submission of final briefs,
arguments, and summations. OSHA received twenty-five timely comments
during this rulemaking by the close of the last post hearing comment
period of January 31, 2020.
OSHA estimates that these changes will 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 $2.6 million. OSHA has determined that these
changes will maintain safety and health protections for workers, while
facilitating compliance with the standards and yielding some cost
savings.
This rule is not an Executive Order (E.O.) 13771 regulatory action
because this rule is not significant under E.O. 12866. Pursuant to the
Congressional Review Act (5 U.S.C. 801 et seq.), the Office of
Information and Regulatory Affairs designated this rule not a ``major
rule,'' as defined by 5 U.S.C. 804(2).
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, 5 U.S.C. 551 et seq., 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 beryllium
standards, 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 standards address 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
[[Page 53912]]
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.3d at 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 Final Rule
The following discussion summarizes and explains the changes OSHA
proposed to the beryllium standards for construction and shipyards,
discusses the comments received on the proposal, and explains OSHA's
determination with respect to 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)).
Each of the three standards, which cover general industry (29 CFR
1910.1024), construction (29 CFR 1926.1124), and shipyards (29 CFR
1915.1024), 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 direct final rule (DFR) (83 FR at 19936); (3)
the December 11, 2018, general industry proposal (83 FR at 63746), (4)
the October 8, 2019, construction and shipyards proposal (84 FR at
53902); and (5) the (July 14, 2020) general industry final rule (85 FR
42582) (see Section I, Background, above for more details). In light of
the comments OSHA received on these rulemakings and the evidence in the
record, OSHA is revising several paragraphs of the beryllium standards
for construction and shipyards.
OSHA has 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 revisions fall into three categories. First,
OSHA is removing or modifying 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, 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 in
the June 27, 2017, construction and shipyards proposal, in the final
rule published on September
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30, 2019, and in the subsequent construction and shipyards proposal
published on October 8, 2019.
Second, OSHA is revising some provisions of the construction and
shipyard standards to avoid inconsistencies with the clarifying changes
the agency has made in the (July 14, 2020) general industry final rule.
OSHA is aligning 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 changes in the July 14, 2020,
final rule were designed specifically for general industry, OSHA is
aligning changes to paragraph (b), medical definitions; paragraph (k),
medical surveillance; and paragraph (n), recordkeeping, because the
rationale underlying these changes applies equally in the construction
and shipyards contexts.
Third, OSHA is revising 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). There, OSHA proposed to exempt
materials containing less than 0.1 percent 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 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 percent 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 public 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 the Abrasive Blasting Manufacturing Alliance (ABMA) and
the Edison Electric Institute 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 beryllium
exposures 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 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 only
during 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 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 proposed to remove provisions triggered by dermal contact
or beryllium contamination entirely, except for certain provisions the
agency deemed important to limit airborne exposure (through re-
entrainment of beryllium-containing dust from PPE or other surfaces) to
those workers who have significant airborne exposures (see, e.g., 84 FR
at 53913). 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 (84 FR at 53906).
Based on the foregoing, OSHA proposed and is now finalizing
revisions to the following paragraphs of the beryllium standards for
construction and shipyards: Paragraph (b), definitions; paragraph (f),
methods of compliance; paragraph (g), respiratory protection; paragraph
(h), personal protective clothing and equipment; paragraph (i), hygiene
areas and
[[Page 53914]]
practices; paragraph (j), housekeeping; paragraph (k), medical
surveillance; paragraph (m), communication of hazards; and paragraph
(n), recordkeeping. OSHA is finalizing the standards as proposed,
except for minor modifications to the following paragraphs: (1)
Paragraph (b), specifically, by amending the definition of CBD
diagnostic center and removing the definition of high efficiency
particulate air (HEPA) filter; (2) paragraph (f)(1), the written
exposure control plan; (3) paragraph (h), personal protective clothing
and equipment; and (4) paragraph (k), medical surveillance.
OSHA notes that in response to the October 8, 2019 NPRM, several
industry commenters responded that OSHA's proposed changes to simplify
and better tailor the construction and shipyards standards would not go
far enough, and that none of the beryllium standards' ancillary
provisions are necessary (see, e.g., Document ID 2203, p. 1-2, 11;
2199, p. 3; 2205, p. 2; 2206, pp. 10-13; 2209, pp. 1-2; 2241, pp. 3-4).
For example, the Abrasive Blasting Manufacturing Alliance (ABMA)
claimed that ``[t]here is no evidence that the pre-existing standards
governing abrasive blasting are insufficient to protect employees, and
there is no evidence that exposure to the trace amounts of naturally
occurring beryllium in abrasive blasting (or welding) has resulted in
any material impairment of health to employees in all of the many years
this work has been performed'' (Document ID 2206, p. 11).
Comments suggesting that OSHA entirely eliminate the ancillary
provisions of the construction and shipyards standards are beyond the
scope of this rulemaking and were already addressed in the September
30, 2019, final rule (84 FR 51377). OSHA did not propose in this
rulemaking to remove the standards' ancillary provisions in their
entirety, and in fact, explained in the NPRM that the September 2019
final rule established that removing the ancillary provisions in their
entirety would not sufficiently protect workers in these industries
from airborne exposure to beryllium (84 FR at 51390-97).
After reviewing the comments and evidence in the record, OSHA
determined that beryllium construction and shipyards standards
consisting only of the TWA PEL and STEL would not be sufficiently
protective (84 FR at 51390-91). Other OSHA standards do contain some
requirements that overlap with, or duplicate, the requirements of the
beryllium standards for construction and shipyards. In particular, as
explained below in the Summary and Explanation for the removal of
paragraph (i), OSHA has determined that other OSHA standards overlap
with the previous hygiene requirements of the construction and
shipyards standards. However, for most ancillary provisions, there is
only partial overlap, and for the remainder, there is no overlap at
all. Thus, in the September 30, 2019 final rule, OSHA determined not to
adopt its proposal to remove all ancillary provisions from the
construction and beryllium standards (84 FR at 51390-91). In that final
rule, OSHA also reaffirmed its finding that beryllium exposure presents
a significant risk of material health impairment to workers in the
construction and shipyards sectors (84 FR at 51388-90). Commenters to
the October 8, 2019, proposal have provided no new information
indicating that protections are unnecessary in these sectors, and OSHA
finds that the ancillary provisions that it is retaining in this final
rule are necessary and appropriate to protect workers in the
construction and shipyards industries.
The remainder of this summary and explanation provides detail on
the changes OSHA is finalizing to the beryllium standards for
construction and shipyards, including the agency's review of the
evidence in the record and the reasoning for its determinations.
Paragraph (b) Definitions
Paragraph (b) of the beryllium standards for construction and
shipyards specifies the definitions of terms used in the beryllium
regulatory text. This final rule modifies several definitions of the
2017 standards: CBD diagnostic center, chronic beryllium disease (CBD),
and confirmed positive; adds a definition of beryllium sensitization;
and eliminates the definitions of emergency and high-efficiency
particulate air (HEPA) filter. The revised definitions include several
changes from previous paragraph (b) that OSHA proposed in the October
2019 NPRM, and all of the changes apply to both the construction and
shipyards standards. A discussion of each definition affected by OSHA's
proposed changes to paragraph (b), comments and testimony received on
the proposal, and the final version of each revised definition follows.
OSHA proposed to modify the definitions of CBD diagnostic center,
chronic beryllium disease (CBD), and confirmed positive and add a
definition of beryllium sensitization to align these definitions in the
construction and shipyards standards with changes the agency had
already 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 February 11, 2019. OSHA's
rationale for including these definitions applies equally in the
construction and shipyards contexts. Therefore, as discussed in the
NPRM, in addition to the comments received during this rulemaking OSHA
has considered the comments that were submitted in response to the
proposed changes to definitions in the general industry standard along
with 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. In addition, OSHA proposed to remove references
to the term emergency throughout the construction and shipyards
standards, including the definition in paragraph (b).
Beryllium Sensitization
This final rule defines the term beryllium sensitization as a
response in the immune system of a specific individual who has been
exposed to beryllium. The definition also states that there are no
associated physical or clinical symptoms and no illnesses 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. It further states that while not
every beryllium-sensitized person will develop CBD, beryllium
sensitization is essential for development of CBD. The agency is adding
this definition to clarify other provisions in the standard, such as
the definitions of chronic beryllium disease (CBD) and confirmed
positive, as well as the provisions for medical surveillance in
paragraph (k) and hazard communication in paragraph (m).
As also explained in the 2020 beryllium final rule for general
industry (85 FR 42582), this definition of beryllium sensitization is
identical to the definition proposed in the 2018 NPRM for general
industry and the 2019 NPRM for construction and shipyards, and is
consistent with information provided in the 2017 final beryllium rule
(82 FR at 2470). In the preamble to the 2017 final rule, OSHA found
that individuals sensitized through either the dermal or inhalation
exposure pathways respond to beryllium through
[[Page 53915]]
the formation of a beryllium-protein complex, which then binds to T-
cells stimulating a beryllium-specific immune response (82 FR at 2494).
The formation of the T-cell-beryllium-protein complex that results in
beryllium sensitization rarely manifests in any outward symptoms (such
as coughing or wheezing); most who are sensitized show no symptoms at
all (see 82 FR at 2492, 2527). Once an individual has been sensitized,
any subsequent beryllium exposures via inhalation can progress to
serious lung disease through the formation of granulomas and fibrosis
(see 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 (82 FR at 2492; Document ID 1355).
Therefore, this definition's explanation that beryllium sensitization
is essential for development of CBD is consistent with the agency's
findings in the 2017 final rule (82 FR at 2470).
Several commenters expressed support for the proposed inclusion of
a definition of beryllium sensitization in OSHA's beryllium standards,
including National Jewish Health (NJH) (Document ID 2211, p. 3; 2243 p.
1; OSHA-2018-0003-0022, p. 2), the United Steelworkers (USW) (Document
ID 2222, Tr. 24-25; 2242, p. 2; OSHA-2018-0003-0033, p. 1), and
Materion Brush (Materion) (Document ID 2237, p. 4; OSHA-2018-0003-0038,
p. 8). For example, USW stated that the proposed definition of
sensitization is clear and accurate, and is necessary because the
beryllium standard includes many provisions related to the recognition
of and appropriate response to beryllium sensitization among beryllium-
exposed workers (Document ID OSHA-2018-0003-0033, p. 1). The agency
also received supportive comments in response to the beryllium general
industry NPRM, which proposed an identical definition of beryllium
sensitization, from the U.S. Department of Defense (DOD) (OSHA-2018-
0003-0029, p. 1), and Edison Electric Institute (Document ID OSHA-2018-
0003-0031, p. 2).
Some commenters expressed concerns regarding OSHA's proposed
definition of beryllium sensitization.\3\ First, NJH stated that OSHA's
definition is ``at odds with'' the definition of sensitization included
in the guidelines of the American Thoracic Society (ATS), which, in
2014, published a Statement on Beryllium (ATS Statement) that included
the following definition: ``Beryllium sensitization is a response in
the immune system of an individual who has been exposed to beryllium. A
diagnosis of [beryllium sensitization] can be based on two abnormal
blood BeLPTs, one abnormal and one borderline blood BeLPT, three
borderline BeLPTs, or one abnormal bronchoalveolar lavage (BAL) BeLPT.
Beryllium sensitization is essential for development of CBD'' (Document
ID 2243, p. 2; OSHA-2018-0003-0027 p. 1; OSHA-2018-0003-0022, p. 2;
OSHA-2018-0003-0364, pp. 1, 44).\4\ The American College of
Occupational and Environmental Medicine (ACOEM) similarly stated that
the definition of beryllium sensitization ``has always been two
abnormal, one abnormal and one borderline, or three borderline LPT
results,'' which it characterized as consistent with the research
literature and with how the term ``beryllium sensitization'' is used in
clinical practice and medical surveillance. In contrast, it said,
OSHA's less precise proposed definition for beryllium sensitization
could-together with its use of the term ``confirmed positive'' (see
discussion below)-create confusion in clinical practice (Document ID
2213, p. 2). In response to OSHA's general industry NPRM, the National
Supplemental Screening Program (NSSP) and NJH also recommended that
OSHA's definition of beryllium sensitization should include text based
on the ATS Statement on Beryllium (Document IDs OSHA-2018-0003-0027, p.
1; OSHA-2018-0003-0022, p. 2).
---------------------------------------------------------------------------
\3\ Comments from the U.S. House of Representatives Committee on
Education and Labor (CEL) stated that decoupling the term beryllium
sensitization from OSHA's definition of confirmed positive
(discussed later in this Summary and Explanation) would have
consequences for workers who leave employment already sensitized to
beryllium because their medical records would only state ``confirmed
positive,'' rather than ``beryllium sensitized'' (Document ID 2208,
pp. 4-5). OSHA addresses CEL's comments in the Summary and
Explanation of the definition of confirmed positive.
\4\ NJH also stated that in order for a medical condition to be
covered under Worker's Compensation, it needs to meet the statutory
language requirements. NJH expressed concern that the statement that
there is ``no illness or disability with beryllium sensitization
alone'' in OSHA's proposed definition could preclude workers with
beryllium sensitization from obtaining Workers' Compensation
coverage and medical follow up in some states, including clinical
evaluation for CBD once they leave employment (Document ID 2243, pp.
2-3). At the hearing, NJH further explained that, in light of how
diagnoses of pleural plaque have affected the individuals' ability
to obtain benefits for lung cancer or mesothelioma, OSHA's
definition could adversely affect workers' ability to obtain
benefits for CBD in the future by prematurely triggering the statute
of limitations for such claims. (Document ID 2222, Tr. 39-41).
OSHA intends for the definition of confirmed positive to serve
only as a trigger for certain provisions of the beryllium standard.
How OSHA defines this phrase for purposes of the beryllium standard
in no way limits healthcare professionals' ability or incentive to
diagnose beryllium sensitization.
---------------------------------------------------------------------------
NJH proposed that OSHA should modify its definition of beryllium
sensitization to the following: ``Beryllium sensitization is the result
of a beryllium specific cell-mediated immune response of an individual
who has been exposed to beryllium. A diagnosis of beryllium
sensitization can be based on two abnormal blood BeLPTs, one abnormal
and one borderline blood BeLPT, or one abnormal bronchoalveolar lavage
(BAL) BeLPT. Three borderline BeLPTs may also indicate sensitization''
(Document ID 2211, p. 3; 2243, p.2). NJH believes that its proposed
definition would be more consistent with ATS' definition and would not
preclude follow-up examinations of sensitized workers for CBD under
workers' compensation coverage.
Materion disagreed with NJH's argument, stating that OSHA's
definition of beryllium sensitization and its complementary definition
of confirmed positive (discussed later) ``align well with the ATS
definitions,'' and also stated that the definitions in the beryllium
standards ``should exist to best serve the understanding of employers
and employees, not the medical community'' (Document ID 2237, p. 3).
OSHA has considered the comments submitted by NJH, ACOEM, Materion,
and NSSP, and has concluded that the proposed definition of beryllium
sensitization, when properly read in the context of the standards and
in combination with the definition of confirmed positive, does not
contradict the definitions used by ATS or other organizations, and is
not likely to create confusion in clinical practice. The agency is
providing a definition of beryllium sensitization to give stakeholders,
such as employers and employees, a general understanding of what
beryllium sensitization is and its relationship to CBD.
The definition of confirmed positive explains how the results of
BeLPT testing should be interpreted in the context of the standard's
provisions that benefit beryllium-exposed workers, specifically,
medical surveillance and medical removal protection. The confirmed
positive definition establishes that these benefits should be extended
to workers who have a pattern of BeLPT results, obtained in a three-
year period, consistent with the NJH's recommended definition of
beryllium sensitization.
In their comments on the general industry standard, NSSP objected
to the statement in the definition that no physical or clinical
symptoms, illness,
[[Page 53916]]
or disability are associated with beryllium sensitization alone, but
did not explain the reason for their concern (Document ID OSHA-2018-
0003-0027, p. 1). Materion supported the agency's inclusion of this
information in the definition, stating that ``employees deserve to
understand that beryllium sensitization does not involve symptoms . .
.'' (Document ID OSHA-2018-0003-0038, p. 5). USW also specifically
supported the accuracy of this section of OSHA's proposed definition of
beryllium sensitization (Document ID OSHA-2018-0003-0033, p. 1).
As explained in the Summary and Explanation for paragraph (b) of
the July 14, 2020, final rule revising the general industry standard
(85 FR 42582), OSHA decided to retain the statement that there is no
illness or disability with beryllium sensitization in the definition of
beryllium sensitization because it is important that employers and
employees understand the asymptomatic nature of beryllium sensitization
and the need for specialized testing such as the BeLPT. The statement
is consistent with OSHA's discussion of beryllium sensitization in the
2017 final rule (82 FR at 2492-99). As OSHA discussed in the 2017 final
rule, sensitization through dermal contact has sometimes been
associated with skin granulomas, contact dermatitis, and skin
irritation, but these reactions are rare and those sensitized through
dermal exposure to beryllium typically do not exhibit any outward signs
or symptoms (see 82 FR 2488, 2491-92, 2527). OSHA determined that while
beryllium sensitization rarely leads to any outward signs or symptoms,
beryllium sensitization is an adverse health effect because it is a
change to the immune system that leads to risk of developing CBD (82 FR
at 2498-99). The agency believes that the asymptomatic nature of
beryllium sensitization, especially in the lung, should be conveyed to
employers and employees to emphasize why specialized testing such as
the BeLPT should be provided to workers who may have no symptoms of
illness associated with beryllium exposure. For these reasons, OSHA is
retaining the statement ``[t]here are no associated physical or
clinical symptoms and no illness or disability with beryllium
sensitization alone'' in the definition of beryllium sensitization.
As discussed in greater detail in the beryllium final rule for
general industry (85 FR 42582), the State of Washington Department of
Labor and Industries, Division of Occupational Safety and Health
(DOSH), commented that OSHA's proposed definition of beryllium
sensitization places unnecessary emphasis on the role that beryllium
sensitization plays in the development of CBD. According to DOSH,
``[t]his language may cause confusion with proper diagnosis of CBD and
application of the rule requirements for workers who have developed CBD
without a confirmed beryllium sensitization'' (Document ID OSHA-2018-
0003-0023, p. 1). However, other commenters, including NJH, NSSP, and
USW, supported including the statement that beryllium sensitization is
necessary for the development of CBD in OSHA's definition of beryllium
sensitization (Document ID OSHA-2018-0003-0022, p. 2; OSHA-2018-0003-
0027, p. 1; OSHA-2018-0003-0033, p. 1).
Following consideration of DOSH's comment, OSHA has determined that
this information should remain in the definition of beryllium
sensitization (as well as the definition of chronic beryllium disease,
discussed later). OSHA believes that an understanding of the
relationship between beryllium sensitization and CBD is essential to
workers' and employers' understanding of the beryllium standard. By
including the role that sensitization plays in the development of CBD
in the definition of beryllium sensitization, OSHA intends to make a
number of things clear to workers and employers: That beryllium
sensitization, although not itself a disease, is nevertheless an
adverse health effect that presents a risk for developing CBD and thus
should be prevented; the need to identify beryllium sensitization
through regular medical screening; and why workers who are confirmed
positive should be offered specialized medical evaluation and medical
removal protection. OSHA notes that DOSH does not dispute the factual
accuracy of OSHA's statement regarding the role beryllium sensitization
plays in the development of CBD, which the agency established in the
Health Effects section of the 2017 final standard (82 FR at 2495-96).
OSHA believes that emphasizing the role that beryllium
sensitization plays in the development of CBD provides employers and
employees with important context for understanding the beryllium
standard. At the same time, the agency acknowledges that employees may
be diagnosed with CBD in the absence of a confirmed positive BeLPT, and
the beryllium standard allows for such a diagnosis. In the preamble to
the general industry final rule, OSHA provides additional discussion of
the provisions that allow for referral to a CBD diagnostic center and
diagnosis with CBD in the absence of a confirmed positive blood BeLPT
result (85 FR 42598).
Thus, following consideration of the record of comments on OSHA's
proposed definition of beryllium sensitization (which includes the
comments and response detailed in the beryllium general industry final
rule, 85 FR 42596), OSHA is finalizing the definition as proposed in
the 2019 NPRM. The addition of this definition for beryllium
sensitization does not change employer obligations under paragraphs (k)
and (m) and therefore maintains employee protections under the
construction and shipyards standards for beryllium.
CBD Diagnostic Center
This final rule defines a 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 revised definition also states that a CBD
diagnostic center must have the capacity to perform pulmonary function
testing (as outlined by the American Thoracic Society), bronchoalveolar
lavage (BAL), and transbronchial biopsy. In the revised definition, a
CBD diagnostic center must have the capacity to transfer the 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.
This definition is identical to the definition of CBD diagnostic center
that OSHA proposed in the 2019 NPRM.
The revised definition of CBD diagnostic center differs from the
former definition in a number of ways. First, whereas the 2017 final
rule's definition specified only that a CBD diagnostic center must have
a pulmonary specialist, OSHA is adding the term ``pulmonologist'' to
clarify that either type of specialist is qualified to perform a
clinical evaluation for the presence of CBD. Additionally, the 2017
definition required that a CBD diagnostic center have an on-site
pulmonary specialist. The revised definition states that the CBD
diagnostic center must simply have a pulmonologist or pulmonary
specialist on staff. This clarifies OSHA's intent that a pulmonary
specialist must be available to the CBD diagnostic center, but need not
necessarily be on site at all times.
In their comments on the proposed changes to the definition of CBD
diagnostic center, NJH and ATS recommended that a pulmonologist,
[[Page 53917]]
occupational medicine specialist, or physician with expertise in
beryllium disease conduct the clinical evaluation for CBD, and that a
pulmonologist should be on staff or available to perform the
bronchoscopy (Document ID 2211, pp. 3-4; OSHA-2018-0003-0022, p. 2;
OSHA-2018-0003-0021, p. 2). According to NJH, clinics that regularly
evaluate patients for CBD have physicians with experience in
occupational medicine conduct the clinical evaluation for CBD, in
conjunction with a pulmonologist who performs a bronchoscopy (Document
ID 2211, pp. 3-4; OSHA-2018-0003-0022, pp. 2-3).
OSHA notes that, although the agency is requiring facilities to
have a pulmonologist or pulmonary specialist on staff who is able to
interpret the biopsy pathology and the BAL diagnostic test results,
OSHA does not intend that all aspects of clinical evaluation for CBD
must be performed by a pulmonologist or pulmonary specialist. In the
preamble to the 2017 final rule, OSHA explained that the agency was
defining a CBD diagnostic center as a facility with a pulmonary
specialist ``on-site'' specifically to indicate that the specialist
need not personally perform the BeLPT testing (82 FR at 2645).
Moreover, paragraph (k)(7), which sets out the substantive requirements
for the evaluation at the CBD diagnostic center, refers to
recommendations of the ``examining physician,'' not necessarily the
pulmonologist or pulmonary specialist.
Paragraph (b), in turn, defines physician or other licensed health
care professional (PLHCP) as an individual licensed to provide some or
all of the services required by paragraph (k). As such, some parts of
the evaluation, such as lung function tests, might be performed by a
certified medical professional other than a pulmonologist or pulmonary
specialist. The arrangement that NJH describes as typical for clinics
treating CBD patients, in that physicians with experience in
occupational health conduct the clinical evaluation for CBD in
conjunction with a pulmonologist who performs a bronchoscopy, is
consistent with OSHA's intent for the definition of CBD diagnostic
center and other provisions of the standard related to CBD diagnosis.
Therefore, OSHA has determined that it is not necessary to revise the
definition of CBD diagnostic center to require that the clinical
evaluation for CBD be conducted by a pulmonologist, occupational
medicine specialist, or physician with expertise in beryllium disease.
An additional change to the definition of CBD diagnostic center
clarifies that the diagnostic center must have the capacity to perform
pulmonary function testing (according to ATS criteria), bronchoalveolar
lavage (BAL), and transbronchial biopsy. OSHA has determined that the
former definition--which stated that the evaluation at the diagnostic
center ``must include'' these tests--could have been misinterpreted to
mean that the examining physician was required to perform each of these
tests during every clinical evaluation at a CBD diagnostic center. The
agency is not dictating which tests an evaluation at a CBD diagnostic
center should include, but ensuring that CBD diagnostic centers have
the capacity to perform these tests, which are commonly needed to
diagnose CBD. Therefore, the agency is revising the definition to
clarify that the CBD diagnostic center must simply have the ability to
perform each of these tests when deemed appropriate. These changes
clarify the definition of CBD diagnostic center, and OSHA expects they
will maintain safety and health protections for workers.
NJH expressed concern that the proposed definition does not specify
the tests to be performed at the CBD diagnostic center, but only that
the CBD diagnostic center have the capacity to conduct the tests
(Document ID 2222, Tr. 70-72). NJH commented that by specifying the
required capacities of a CBD diagnostic center, rather than the
contents of a CBD evaluation, OSHA's change to the definition may
indicate that the clinical evaluation for CBD need not include certain
aspects of a CBD evaluation. NJH, the Association of Occupational and
Environmental Clinics (AOEC), and ATS recommended that, at minimum,
examinations should include full pulmonary function testing (including
lung volumes, spirometry and diffusion capacity for carbon monoxide),
chest imaging, and cardiopulmonary exercise testing, and may also
include bronchoscopy in some cases (Document ID 2211, p. 4; OSHA-2018-
0003-0022, p. 3; OSHA-2018-0003-0028, p. 2; OSHA-2018-0003-0021, pp. 1-
2). NJH recommended that OSHA require ATS recommendations for
diagnostic evaluation, which the NJH stated include the BeLPT,
pulmonary function testing and chest imaging; and in some cases
bronchoscopy (Document ID 2211, p. 4; OSHA-2018-0003 0022, p. 3). In
their comments on the general industry NPRM, Materion supported 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).
OSHA believes that the concerns expressed by NJH are already
covered by the standard, as discussed more thoroughly in the Summary
and Explanation for paragraph (k), Medical Surveillance, in this final
rule. First, paragraph (k)(3) sets the requirements for contents of an
examination. For the initial and periodic medical examinations, OSHA
already requires under (k)(3) that employees be offered: A physical
exam with emphasis on the respiratory system and skin rashes; pulmonary
function tests, performed in accordance with established guidelines by
ATS, including forced vital capacity (FVC) and forced expiratory volume
in one second (FEV1); a BeLPT or equivalent test; a low dose
computed tomography (LDCT) scan, if recommended by the PLHCP; and any
other test deemed appropriate by the PLHCP. OSHA believes this
information should be available to the CBD diagnostic center upon
request.
Second, paragraph (k)(7)--which establishes the substantive
requirements for the evaluation at the CBD diagnostic center--also
provides the examining physician at the CBD diagnostic center
flexibility to determine which additional tests are appropriate. As
explained below in the Summary and Explanation of paragraph (k)(7),
OSHA is adding a provision (paragraph (k)(7)(ii)) to make clear that
the employer must offer any tests that the examining physician at the
CBD diagnostic center deems appropriate. The definition of CBD
diagnostic center in paragraph (b) does not alter this requirement. In
light of paragraph (k), the revised definition of CBD diagnostic center
cannot reasonably be read to limit the types of tests available to the
employee (see the summary and explanation for paragraph (k)(7) for a
full discussion of this topic). Thus, after considering these comments,
OSHA has decided to retain the proposed change to the definition of CBD
diagnostic center.
Chronic Beryllium Disease (CBD)
OSHA is also amending the definition of chronic beryllium disease
(CBD). For the purposes of this standard, the agency is using the term
chronic beryllium disease or CBD to mean a chronic granulomatous lung
disease caused by inhalation of beryllium by an individual who is
beryllium sensitized.
OSHA is finalizing the definition as proposed. It includes several
changes to the 2017 final rule's definition of
[[Page 53918]]
chronic beryllium disease, which was ``a chronic lung disease
associated with exposure to airborne beryllium'' (82 FR at 2645-46).
The revisions serve to differentiate CBD from other respiratory
diseases associated with beryllium exposure (e.g., lung cancer) and to
make clear that beryllium sensitization and the presence of beryllium
in the lung are essential in the development of CBD (see 82 FR at
2492).
First, OSHA is adding the term ``granulomatous'' to the definition.
``Granulomatous'' is meant to indicate an infiltration of inflammatory
cells (e.g., T-cells) leading to the focal collection of cells, and
eventual creation of nodules in the lung (Ohshimo et al., 2017,
Document ID 2171, p. 2; Williams and Williams, Document ID 2228, pp.
727-30; ATS, Document ID 0364). The formation of the type of lung
granuloma specific to a beryllium immune response can only occur in
those with CBD (82 FR at 2492-502). Next, OSHA is removing the phrase
``associated with airborne exposure to beryllium'' and replacing it
with ``caused by inhalation of airborne beryllium.'' This change is
more consistent with the findings in the 2017 final rule that beryllium
is the causative agent for CBD and that CBD only occurs after
inhalation of beryllium (82 FR at 2513). Finally, OSHA is clarifying
that CBD is caused by inhalation of airborne beryllium ``by an
individual who is beryllium sensitized.'' Along with the revised
definition of beryllium sensitization discussed above, this revision
emphasizes to employers and employees the role that beryllium
sensitization plays in the development of CBD.
NJH, USW, and Materion agreed that OSHA's definition of CBD should
be clarified (Document ID 2211, p. 4; 2222, Tr. 50-51; Document ID
OSHA-2018-0003-0038, p. 17; Document ID OSHA-2018-0003-0033, p. 5).
Materion supported the changes that OSHA proposed, which it
characterized as a necessary clarification to ensure the definition
provided is specific to chronic beryllium disease (Document ID 2237,
pp. 4-5; OSHA-2018-0003-0038, p. 17). USW similarly supported the
proposed definition, stating that it clarifies the previous definition
which ``could be read to apply to any chronic lung disease caused by
beryllium, including lung cancer'' (Document ID OSHA-2018-00003-0033,
p. 5). These comments reinforce OSHA's determination that adding the
term ``granulomatous'' to the definition will better distinguish CBD
from other occupationally associated chronic pulmonary diseases. As
OSHA explained in the preamble to the 2017 final rule, the formation of
the type of lung granuloma specific to a beryllium immune response can
only occur in those with CBD (82 FR at 2492-502).
Several commenters expressed concern that the proposed definition
of chronic beryllium disease does not provide sufficient information to
guide the diagnosis of CBD, or that aspects of OSHA's proposed
definition of CBD could complicate the diagnosis of CBD. Comments
expressing such concern from NJH, ACOEM, ATS, DOSH, and NSSP are
discussed in detail below. OSHA notes that the standard's definition of
chronic beryllium disease is not intended to provide criteria for the
diagnosis of CBD. The agency's intent is to provide readers who may
have little or no familiarity with CBD with a general understanding of
the term, not to provide diagnostic criteria for healthcare
professionals. This is evident from the broadly written 2017 final rule
definition of chronic beryllium disease: ``a chronic lung disease
associated with exposure to airborne beryllium'' (82 FR at 2645-46).
Due to differences in individual cases and circumstances, medical
specialists may need to apply somewhat different testing regimens and/
or diagnostic criteria to different individuals they evaluate for CBD.
Furthermore, the diagnostic tools and criteria available to medical
specialists may change over time. As discussed in the summary and
explanation for paragraph (k)(7), OSHA believes that the physician at
the CBD diagnostic center should have the latitude to use any tests he
or she deems appropriate for the purpose of diagnosing or otherwise
evaluating CBD in a patient, and has revised paragraph (k)(7) to make
this clear. Therefore, OSHA has determined that it is neither necessary
nor appropriate to specify diagnostic criteria in the beryllium
standard's definition of chronic beryllium disease. Instead, OSHA has
decided to retain a definition that provides the reader with a general
understanding of the term.
NJH and ATS commented that OSHA should adopt a definition of
chronic beryllium disease based on the previously-mentioned 2014 ATS
document on diagnosis and management of beryllium sensitization and CBD
(Document ID 2211, p. 4; 2222, Tr. 50; OSHA-2018-0003-0021, p. 5). NJH
suggested the following definition: ``Chronic beryllium disease (CBD)
is a granulomatous inflammatory response in the lungs of an individual
who is beryllium sensitized'' (Document ID 2211, p. 4).\5\ In the
beryllium informal hearing, they appeared to object to the term
``granulomatous inflammation'' and to prefer the term ``granuloma
inflammatory process'' (Document ID 2222, Tr. 50). NJH stated that OSHA
should adopt a definition based on the ATS beryllium statement ``that
says, `Chronic beryllium disease is a granuloma inflammatory process,'
and note that this is different than granulomatous inflammation or
granulomas. . . chronic beryllium disease is a granulomatous
inflammatory process in the lungs of an individual who is beryllium
sensitized'' (Document ID 2222, Tr. 50). NJH further stated that their
proposed definition ``allows for some flexibility'' in diagnosing CBD
(Document ID 2222, Tr. 50). OSHA notes that the ATS statement primarily
discusses CBD as a granulomatous inflammatory response in the lungs
(Document ID 0364).
---------------------------------------------------------------------------
\5\ In their comments on the general industry NPRM, NJH
previously suggested that the agency define chronic beryllium
disease as a disease ``characterized by evidence of granulomatous
lung inflammation in an individual who is sensitized to beryllium.''
According to NJH, this definition would allow for diagnosis based on
different combinations of clinical evaluation results as detailed in
the ATS Statement (Document ID OSHA-2018-0003-0022, p. 3). OSHA's
response to NJH's new suggested definition also pertains to this
previously suggested definition.
---------------------------------------------------------------------------
As discussed above, OSHA has determined that it is neither
necessary nor appropriate to provide diagnostic criteria in the
beryllium standard's definition of chronic beryllium disease. Instead,
OSHA has decided to retain a definition that provides the reader with a
general understanding of the term. OSHA believes that the definition
the agency proposed--a chronic granulomatous lung disease caused by
inhalation of airborne beryllium by an individual who is beryllium-
sensitized--adequately conveys that CBD is granulomatous in nature, and
that it is not necessary for the agency's purposes to further specify
that it is an inflammatory process. OSHA has therefore decided not to
adopt the definition that NJH suggested.
ACOEM objected to the inclusion of the term ``granulomatous'' in
the definition of chronic beryllium disease (Document ID 2213, p. 3).
ACOEM contended that CBD does not always include the presence of
granulomas and the lung pathology is more consistent with ``mononuclear
cell interstitial infiltrates.'' According to ACOEM, it is established
in the medical literature that the lung pathology found in CBD does not
always include granulomas; lung biopsies may not detect granulomas,
either due to practical limitations of the
[[Page 53919]]
test or because the patient's stage of disease is too early (i.e., the
cells of the immune system that form granulomas have accumulated in the
lungs, but have not yet formed into clusters) (Document ID 2213, p.3).
ACOEM expressed concern that, if OSHA's [a]ddition of the term
``granulomatous'' to the definition excludes cases where granulomas are
not present, it ``may result in some workers being unnecessarily
excluded from appropriate medical care under the OSHA rule, and may
affect their ability to receive workers' compensation, due to the
overly narrow definition'' (Document ID 2213 p. 3). ACOEM further noted
that the presence of beryllium sensitization ``lends specificity to the
diagnosis''; therefore, it is not necessary to use the term
``granulomatous'' for the sake of specificity in the definition.
OSHA disagrees with ACOEM's contention that including the term
``granulomatous'' in the agency's definition of chronic beryllium
disease would be inaccurate or overly narrow, and could thereby prevent
workers from obtaining appropriate medical care or benefits for CBD. To
begin with, OSHA's definitions in paragraph (b) of the standard are
intended only to clarify the meaning of terms that appear in the
standard. The definition of chronic beryllium disease is written with
the goal of providing readers of the standard, who may have little or
no familiarity with CBD, with a general understanding of the term. The
definition does not provide diagnostic criteria for healthcare
professionals to follow when diagnosing and addressing CBD.
Moreover, ACOEM's concerns are unfounded because including the term
``granulomatous'' does not exclude cases of CBD where granulomas have
not yet formed or are not detected by lung pathology. OSHA agrees with
ACOEM that CBD includes mononuclear cell infiltrates and can be
diagnosed in the absence of lung pathology findings of granulomas in
the lung. As described in the Health Effects section of the 2017 final
rule, CBD is a pathological continuum which results from lung exposure
to beryllium. The continuum consists of an asymptomatic early response
with the recruitment of inflammatory T-cells and other mononuclear
cells through to the formation of granulomas and frank, chronic disease
(82 FR at 2491-2502). However, the term ``granulomatous'' does not
refer only to the presence of granulomas; the term ``granulomatous''
inflammation is described in the literature as beginning with chronic
inflammation predominated by mononuclear phagocyte cells leading to the
eventual aggregation of these cells into focal lesions called
granulomas (ATS, Document ID 0364; Ohshimo et al., 2017, Document ID
2171, p. 2; Williams and Williams, 1983, Document ID 2198). OSHA finds
that adding the term ``granulomatous'' to the definition of CBD,
contrary to the concerns raised by ACOEM, does not imply that CBD
cannot be diagnosed where granulomas have not yet formed or are not
detected by lung pathology.
ACOEM also noted that ``the presence of beryllium sensitization (as
measured in BeLPT using either blood or lung cells) lends specificity
to the diagnosis,'' which makes including the term ``granulomatous''
unnecessary (Document ID 2213, p. 3). OSHA disagrees. First, including
the term ``granulomatous'' is consistent with the ATS statement ``the
diagnosis of CBD is based on the demonstration of both BeS and
granulomatous inflammation on lung biopsy.'' (Document ID 0364, p. e35,
e43-e45, e55). Based on the ATS statement, NJH also recommended a
definition of chronic beryllium disease that included a reference to
``granulomatous inflammation'' (Document ID 2211, p. 4).
Second, as noted in the summary and explanation section for the
2020 general industry beryllium final rule (85 FR 42598), OSHA
acknowledges that it may not always be possible to identify a worker
for beryllium sensitization using the BeLPT as part of a diagnosis of
CBD because the BeLPT can yield false-negative results in some
individuals (see Document ID 0399). This means some individuals may
actually be sensitized to beryllium even though they have a negative
BeLPT result; therefore, there is value to adding the term
``granulomatous'' to lend further specificity. An examining physician
should have the latitude to diagnose CBD even in the absence of a
``confirmed positive'' pattern of BeLPT results 85 FR 42598), for
example, in the presence of lung inflammation. The latitude and
flexibility provided under these standards affords physicians the
discretion to diagnose CBD in patients that may not have the classic
hallmarks of sensitization or CBD (e.g. positive BeLPT or granuloma),
but have a work history of exposure to beryllium and an undiagnosed
health issue. However, OSHA emphasizes that the definition of chronic
beryllium disease is to inform the general reader of this preamble and
final rule, and is not intended to guide physician diagnosis of CBD.
In their comments on the 2018 general industry NPRM, ATS
recommended including diagnostic criteria in the definition, such as
confirmation of an immune response to beryllium and granulomatous lung
inflammation using lung biopsy, and that the definition emphasize the
various approaches which may be used ``[d]epending on the clinical
setting, feasibility of certain diagnostic tests, and degree of
diagnostic certainty needed'' (Document ID OSHA-2018-0003-0021, p. 5).
ATS also expressed concern that OSHA's proposed changes to the
definition of chronic beryllium disease could create confusion in the
diagnosis of CBD because, ``[w]hile beryllium sensitization is
essential to the development of CBD, demonstrating beryllium
sensitization, as well as granulomatous lung disease on lung pathology,
can be challenging in certain settings'' (Document ID 0021, p. 5). DOSH
stated that the proposed definition ``emphasizes beryllium
sensitization as a factor in chronic beryllium disease in a manner that
may be misleading'' and emphasized that individuals may be diagnosed
with CBD without a confirmed positive BeLPT result. DOSH advocated that
the definition of chronic beryllium disease ``ensure employers and
medical providers are given a clear expectation of how beryllium
conditions are properly identified'' (Document ID OSHA-2018-0003-0023,
p. 2).
Although OSHA agrees with ATS and DOSH that diagnosing CBD does not
always require confirmation of beryllium sensitization, the agency does
not believe that references to sensitization should be excluded from
the definition of chronic beryllium disease. OSHA first notes that
neither DOSH nor ATS contend that OSHA's definition is inaccurate.
Furthermore, as OSHA explained previously in its discussion of the
beryllium sensitization definition, the agency believes that a correct
understanding of the relationship between beryllium sensitization and
CBD is key to workers' and employers' understanding of many provisions
of the beryllium standard. By stating the role that sensitization plays
in the development of CBD in the standard's definition of chronic
beryllium disease, OSHA intends to convey clearly to the regulated
community why protecting workers from becoming beryllium-sensitized is
key to the prevention of CBD and why workers who are confirmed positive
for beryllium sensitization should be offered both a clinical
evaluation for CBD and medical removal protection.
OSHA acknowledges that it is not always necessary to identify a
worker as confirmed positive for beryllium sensitization using the
BeLPT as part of
[[Page 53920]]
a diagnosis of CBD and that the BeLPT can yield false-negative results
in some individuals. For this reason, an examining physician should
have the latitude to diagnose CBD even in the absence of a ``confirmed
positive'' pattern of BeLPT results. As explained in the summary and
explanation of paragraph (k)(7) of the beryllium final rule (2017),
that provision gives the examining physician this latitude (82 FR at
2704, 2709). Because the substantive provisions of the standard leave
the examining physician discretion in diagnosing CBD, OSHA does not
agree that acknowledging the role of beryllium sensitization in the
development of CBD will result in diagnostic confusion. As stated
above, the agency does not intend for the definition to be used for
diagnostic criteria, but rather to add clarity to the standard and
provide readers who may have little or no familiarity with CBD with a
general understanding of the term.
NSSP recommended the following addition to OSHA's proposed
definition of chronic beryllium disease: ``The presence of interstitial
mononuclear cell (T cell) infiltrates (lymphocytosis) is characteristic
of chronic beryllium disease'' (Document ID 0027, pp. 3-4). NSSP argued
that the presence of these infiltrates on lung biopsy indicates the
presence of chronic beryllium disease, and should therefore be included
in the standard's definition (Document ID 0027, p. 4). OSHA disagrees.
The agency believes that the term ``granulomatous'' sufficiently
addresses the presence of T-cell infiltrates, which occur at an early
stage in the development of granulomas (82 FR at 2492-2502). As
discussed previously, OSHA's intent in defining chronic beryllium
disease is to provide the reader a general understanding of what CBD
is, rather than provide a technical definition for diagnostic use. The
suggested addition is not necessary to describe the nature of CBD in
general terms. With the addition of the term ``granulomatous,'' the
definition is sufficiently specific for OSHA's purposes in the context
of paragraph (b).
In summary, for the purposes of this standard OSHA is defining
chronic beryllium disease as a chronic granulomatous lung disease
caused by inhalation of airborne beryllium by an individual who is
beryllium sensitized. This definition is identical to the definition of
chronic beryllium disease OSHA proposed in 2019 and includes only minor
changes from the definition included in the 2017 final standard. OSHA
is providing this definition to enhance stakeholders' general
understanding of the beryllium standard; it is neither intended nor
suitable to provide guidance to medical professionals on the diagnosis
of CBD. OSHA expects these changes to the 2017 definition of chronic
beryllium disease will clarify the standard, and will therefore
maintain safety and health protections for workers. After considering
these comments and after reviewing the record as a whole (which
includes the comments and responses detailed in the July 14, 2020,
general industry final rule (82 FR 42602)), OSHA has decided to amend
the definition of chronic beryllium disease (CBD) as proposed.
Confirmed Positive
This final rule defines confirmed positive to mean (1) the person
tested has had two abnormal BeLPT test results, an abnormal and a
borderline test result, or three borderline test results, obtained
within a three-year period; or (2) the result of a more reliable and
accurate test indicating a person has been identified as having
beryllium sensitization. The revised definition includes several
changes to the 2017 definition of confirmed positive and one change
from the definition of confirmed positive that OSHA proposed in the
2019 NPRM.
First, the agency is removing the phrase ``beryllium
sensitization'' from the first sentence of the definition, which
previously stated that a person is confirmed positive if that person
has beryllium sensitization, as indicated by two abnormal BeLPT test
results, an abnormal and a borderline test result, or three borderline
test results. OSHA intends that the term confirmed positive act only as
a trigger for requirements in the standards, such as continued medical
monitoring and surveillance for the purposes of these standards, and
not as a general-purpose definition of beryllium sensitization. By
removing the phrase ``beryllium sensitization'' from the first sentence
of the definition, the agency hopes to avoid confusion resulting from
scientific disagreements over whether certain test results, such as
three borderlines, necessarily prove that sensitization has occurred.
For purposes of the beryllium standards, any worker with the BeLPT test
results specified in the definition of confirmed positive should be
offered an evaluation for CBD with continued medical surveillance as
well as the option of medical removal protection, even though some
small percentage of workers who are confirmed positive by this
definition may not in fact be sensitized to beryllium, as is the case
for any diagnostic test (Middleton, et. al., 2008, Document ID 0480, p.
4).\6\
---------------------------------------------------------------------------
\6\ In the preamble to the 2017 final rule, OSHA found that
three borderline BeLPT results recognize a change in a person's
immune system with respect to beryllium exposure based on Middleton
et al.'s 2011 finding that three borderline BeLPT results have a
positive predictive value (PPV) of over 90 percent (82 FR at 2501),
and therefore the agency included three borderline results in the
criteria for confirmed positive (82 FR at 2646). While Materion
contests the findings of the Middleton et al study (2011) regarding
three borderline BeLPTs, Materion was generally supportive of
removing sensitization from the definition, stating that the agency
``wisely splits[s] the definition of beryllium sensitization, which
is a medical determinant, from confirmed positive, which is a
testing regimen outcome'' (Document ID 2237, pp. 3-4).
---------------------------------------------------------------------------
Both USW and Materion supported this proposed revision. USW
supported removing the phrase beryllium sensitization because,
``[w]hile it is true that a confirmed positive result of BeLPT testing
currently leads to a diagnosis of sensitization, linking the two in the
same definition could lead to unintended hardships for beryllium
workers'' (Document ID 2242, p. 3). At the December 3, 2019 public
hearing, USW also explained that a finding of beryllium sensitization
could, in some states, trigger a statute of limitations under laws
governing claims for compensation for other adverse health effects
(Document ID 2222, Tr. 24-25). According to USW, ``the word
`sensitized' is more likely to trigger a statute-of-repose deadline for
filing a tort suit than the words `confirmed positive,''' and should
that happen, ``the worker would not be able to receive adequate
compensation if they later developed chronic beryllium disease''
(Document ID 2242, p. 3). Materion commented that ``OSHA's separation
of beryllium sensitization from confirmed positive can increase the
number of employees eligible to accept further medical testing by
institutions such as NJH or to seek OSHA's medical removal option,'' as
well as the number of employees ``who may choose to be medically
monitored on a more routine basis at institutions such as NJH''
(Document ID 2237, p. 4).
In its comments on the general industry NPRM, USW also commented
that the former definition of confirmed positive had acted ``as a de
facto definition of sensitization'' and that removing the phrase
``beryllium sensitization'' from this portion of the definition ensures
that a finding of confirmed positive will trigger medical surveillance
and medical removal protection, ``without an intermediate stop at a
finding of sensitization'' (Document ID OSHA-2018-0003-0033, p. 5).
Similarly, Materion commented in their response to the general industry
[[Page 53921]]
NPRM that the revised definition allows individuals with three
borderline BeLPT results to obtain the protections of the standard,
including evaluation for CBD and medical removal protection, without
necessarily being ``declared sensitized'' (Document ID OSHA-2018-0003-
0038, p. 18). Materion further asserted that the change enhances
employee protection by increasing the number of persons eligible to go
on to further testing (Document ID OSHA-2018-0003-0038, p. 19).
Several commenters disagreed with OSHA's proposal to remove the
phrase ``beryllium sensitization'' from the definition of confirmed
positive. NSSP generally expressed disagreement with OSHA's proposal to
remove ``beryllium sensitization'' from the first part of the confirmed
positive definition, but did not state the reasons for its concern
(Document ID OSHA-2018-0003-0027, p. 3).
Several commenters expressed concern that OSHA's proposed revision
would create confusion. NJH stated that removal of ``beryllium
sensitization'' would cause confusion as to what the term ``confirmed
positive'' refers, and stated that workers need to understand that, if
they are confirmed positive, they have a specific T-cell mediated
response to beryllium that can result in development of CBD (Document
ID 2222, Tr. 64; 2211, p. 5). ACOEM commented that ``[s]eparating the
definition of `confirmed positive' from the definition of beryllium
sensitization is confusing, unnecessary, and contradicts the accepted
terminology and definitions employed in the fields of immunology,
beryllium medical research, and clinical practice . . .'' ACOEM further
stated that, ``[i]n clinical practice, [the change] will add
significant confusion, to the detriment of workers and patients,''
because ``[t]he medical community is not accustomed to diagnosing a
patient's medical condition as `confirmed positive,' '' and instead
refers to patients as being ``beryllium sensitized'' based on ``the
presence of confirmed positive BeLPTs.'' \7\ (Document ID 2213, p. 2).
---------------------------------------------------------------------------
\7\ ACOEM also stated that the proposed change would create
confusion by creating ``misalignment with existing legislation,
including the Energy Employee Occupational Illness Compensation
Program Act (1999) and the U.S. Department of Energy's beryllium
rule (Document ID 2213, p. 2). To the extent that ACOEM suggests
that OSHA is obliged to adopt definitions that match those used in
other statutes of federal regulations for the same or similar terms,
ACOEM is mistaken. OSHA has discretion to adopt appropriate
definitions for the terms in its beryllium standards, including the
definition of confirmed positive, which serves as a trigger for
certain provisions of the beryllium standards. As explained further
below, OSHA does not agree that the definition of confirmed positive
that it is adopting in this rule will result in confusion.
---------------------------------------------------------------------------
ATS and AOEC also expressed concern that, because the medically-
accepted interpretation of BeLPT testing results is that they indicate
beryllium sensitization, removing the phrase ``beryllium
sensitization'' from the definition of confirmed positive may cause
confusion about the condition to which confirmed positive refers
(Document ID OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-0028, p. 2). CEL
cited to, and expressed support for, ATS' and AOEC's comments regarding
this change, and also expressed concern that, after a worker leaves
employment, their medical record might only state that they were
``confirmed positive,'' rather than ``beryllium sensitized,'' which
could create confusion for medical personnel who may later evaluate or
treat the worker (Document ID 2208, p. 5).
Commenters also expressed concern that removing ``beryllium
sensitization'' from the definition could negatively affect workers'
ability to obtain workplace protections and other benefits. NJH stated
that removing ``beryllium sensitized'' from the definition of confirmed
positive, in conjunction with OSHA's proposal to place a time
constraint on confirmation testing results in the definition (discussed
below), might reduce workers' ability to obtain medical testing and
workplace protections that are required by the rule (Document ID 2243,
p. 3). NJH also opposed the revised definition in their comments on the
2018 general industry NPRM, asserting that the removal of the phrase
``beryllium sensitized'' could prevent individuals who meet the
definition of being confirmed positive from being identified as
sensitized (Document ID OSHA-2018-0003-0022, p. 4). ATS also stated
(without explanation) that removing the term ``beryllium
sensitization'' from the definition of confirmed positive would reduce
worker protections (Document ID OSHA-2018-0003-0021, p. 3).
Additionally, NJH, ATS, and CEL expressed concern that removing
``beryllium sensitization'' from the definition of confirmed positive
would adversely affect workers' ability to obtain workers compensation
benefits. NJH commented that the proposed change, in conjunction with
OSHA's proposal to place a time constraint on confirmation testing
results (discussed below), would prevent individuals from being
diagnosed with beryllium sensitization, which is medically compensable
under workers' compensation programs in many states (Document ID 2243,
p. 3). CEL cited to ATS's stated concern that removing the phrase
``beryllium sensitization'' would reduce workers' right to file for
worker's compensation (Document ID 2208, p. 5 (citing 0021, p. 3)).
Commenters also expressed concern that the proposed revision of the
confirmed positive definition was inconsistent with other parts of the
standard. CEL and ACOEM claimed that the change would create an
inconsistency with the definition of Chronic Beryllium Disease (CBD),
which defines CBD as ``a chronic granulomatous lung disease caused by
inhalation of airborne beryllium by an individual who is beryllium-
sensitized'' (emphasis added) (Document ID 2208, p. 5; 2213, p. 2). CEL
also expressed concern that ``the definition of beryllium sensitized no
longer refers to the definition of `confirmed positive,' which defines
the criteria for being determined beryllium sensitized.'' Additionally,
CEL noted that, paragraph (k)(5)(i)(A) of the rule, which articulates
the necessary contents of the written medical report given to the
employee under the standard's medical surveillance requirements,
``equates `beryllium sensitization' with an employee's status as
`confirmed positive' which is consistent with the original 2017
standards, but not consistent with the decoupling of these terms in the
current proposal'' (Document ID 2208, p. 5).
Following consideration of the concerns raised by these
organizations, OSHA disagrees that removing the phrase ``beryllium
sensitization'' from the first sentence of the definition of confirmed
positive will create confusion, reduce worker protections, or conflict
with other aspects of the regulatory text. The provisions of the
standards intended to benefit workers who may be sensitized
(specifically, evaluation at a CBD diagnostic center and medical
removal protection) are available to all workers who meet the
definition of confirmed positive. Therefore, removing the term
``beryllium sensitized'' from the first sentence of the definition will
not change the access to these benefits for any workers. By removing
the term ``beryllium sensitized'' from the first sentence of the
definition, OSHA seeks to ensure that workers with three borderline
BeLPT results (or other patterns of test results that some PLHCPs may
consider ambiguous) will receive the benefits of the standard
regardless of whether their PLHCP views their results as firm evidence
of
[[Page 53922]]
sensitization.\8\ Furthermore, OSHA disagrees that removing the
reference to ``beryllium sensitized'' will lead to confusion about what
the BeLPT results are supposed to indicate because the second sentence
of the definition of confirmed positive makes clear that a worker who
has been diagnosed with beryllium sensitization would also meet the
definition of confirmed positive: ``It [i.e., confirmed positive] also
means the result of a more reliable and accurate test indicating a
person has been identified as having beryllium sensitization.''
---------------------------------------------------------------------------
\8\ OSHA is also unpersuaded by the comments expressing concern
that OSHA's revision of the definition of confirmed positive in the
beryllium standards would affect workers' ability to obtain workers
compensation benefits. ATS's comment did not explain how the
definition of confirmed positive in the beryllium standard could
affect worker's compensation claims, but at least one other
commenter questioned the ATS's assertion (see Document ID 0038, p.
19). NJH expressed concern that the change would prevent individuals
from being diagnosed with beryllium sensitization, which would
trigger their eligibility for benefits under some states' workers
compensation programs (Document ID 2243, p. 3). OSHA intends for the
definition of confirmed positive in paragraph (b) to serve only as a
trigger for certain provisions of the beryllium standards. How OSHA
defines this phrase for purposes of the beryllium standards in no
way limits healthcare professionals' ability or incentive to
diagnose beryllium sensitization.
---------------------------------------------------------------------------
OSHA also disagrees with the commenters' concern that the proposed
definition will create inconsistencies within the standard. CEL's
concern that removing the term ``beryllium sensitized'' from the first
sentence of confirmed positive will create an inconsistency with
paragraph (k)(5)(i)(A) because that provision ``equates `beryllium
sensitization' with an employee's status as `confirmed positive' is
misplaced. Paragraph (k)(5)(i)(A), which is not being changed in this
final rule, requires that the licensed physician's written medical
report for the employee include any detected medical condition, such as
CBD or beryllium sensitization (i.e., the employee is confirmed
positive, as defined in paragraph (b) of the standard), that may place
the employee at increased risk from further airborne exposure. As
explained above, the purpose of the agency's definition of confirmed
positive is to establish the test results that trigger the benefits in
the standards aimed at protecting potentially beryllium-sensitized
individuals (specifically, an evaluation for CBD with continued medical
surveillance, and the option of medical removal protection). The
phrasing of the confirmed positive definition does not affect the
relevant detectable medical conditions that physicians are instructed
to include in their written reports under paragraph (k)(5)(i)(A). The
reference to confirmed positive in paragraph (k)(5)(i)(A) is intended
to signal that, where a physician has identified a worker as having
beryllium sensitization, that individual also satisfies the definition
of confirmed positive.
Nor does removing the reference to ``beryllium sensitized'' from
the definition of confirmed positive create an inconsistency with the
standards' definitions of chronic beryllium disease or beryllium
sensitization. As discussed above, the definition of confirmed positive
explains the test results that, in the context of these beryllium
standards, triggers the benefits intended to protect individuals who
may be beryllium-sensitized. Such results include both employees who
are identified as having beryllium sensitization, and employees who
have three borderline BeLPT results (or other patterns of test results
that some PLHCPs may consider ambiguous) but may not be affirmatively
identified by the physician as beryllium-sensitized. The definitions of
beryllium sensitization and chronic beryllium disease (CBD) are
informational definitions that do not trigger any specific protections
in the standards, and are solely included to help readers generally
understand those terms. The definition of chronic beryllium disease
(CBD) clarifies that individuals that have CBD have beryllium
sensitization, and the definition of beryllium sensitization explains
that ``[w]hile not every beryllium-sensitized person will develop CBD,
beryllium sensitization is essential for development of CBD.'' OSHA
finds no conflict between these definitions and the definition of
confirmed positive.
An additional change to the definition of confirmed positive
provides that the findings of two abnormal, one abnormal and one
borderline, or three borderline results need to occur from BeLPTs
conducted within a three-year period. This change in the definition of
confirmed positive differs from the proposal and is based on comments
submitted to the record following publication of the 2018 NPRM for
general industry and the 2019 NPRM for construction and shipyards.
The 2017 final rule did not specify a time limit within which the
BeLPT tests that contribute toward a finding of ``confirmed positive''
must occur. 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 and automatically referred to a CBD diagnostic center for
evaluation. As discussed in the preamble to the 2017 standard, clinical
evaluation for CBD involves bronchoalveolar lavage and biopsy (82 FR at
2497) which, like all invasive medical procedures, carry risks of
infection and other complications.\9\ Given such risks, and the
possibility that some repeat abnormal or borderline results obtained
over a long period of time could be false positives, it was not the
agency's intent that workers with rarely recurring abnormal or
borderline BeLPT results should necessarily proceed to evaluation at a
CBD diagnostic center unless recommended to do so by their examining
physician. At the same time, OSHA notes that under paragraph
(k)(5)(iii), the licensed physician performing the BeLPT testing
retains the discretion to refer an employee to a CBD diagnostic center
if the licensed physician deems it appropriate, regardless of the BeLPT
result.
---------------------------------------------------------------------------
\9\ Bronchoalveolar lavage is a method of ``washing'' the lungs
with fluid inserted via a flexible fiberoptic instrument known as a
bronchoscope, removing the fluid and analyzing the content for the
inclusion of immune cells reactive to beryllium exposure (82 FR at
2497).
---------------------------------------------------------------------------
In the 2019 NPRM, OSHA proposed that any combination of test
results specified in the definition of confirmed positive must result
from the tests conducted in one cycle of testing, including the initial
BeLPT and the follow-up retesting offered within 30 days of an abnormal
or borderline result (paragraph (k)(3)(ii)(E)). As outlined in proposed
paragraph (k)(3)(ii)(E), an employee would be offered a follow-up BeLPT
within 30 days if the initial test result is anything other than
normal, unless the employee had 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 was
abnormal, and the result of the follow-up testing offered to confirm
the initial test result was abnormal or borderline, the employee would
be confirmed positive. Alternatively, if the result of the follow-up
testing offered to confirm the initial abnormal test result was normal,
the employee would not be confirmed positive. Any additional abnormal
or borderline results obtained from the next required BeLPT for that
employee (typically, two years later) would not identify that employee
as confirmed positive under the proposed modification to confirmed
positive.
[[Page 53923]]
OSHA requested comments on the appropriateness of this proposed time
period.
Several stakeholders, including Materion, NJH, ACOEM, AFL-CIO, CEL,
and USW, submitted 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. OSHA also received
comments from Materion, NJH, ATS, DOSH, NSSP, USW, and AOEC on this
proposed revision in the 2018 NPRM for general industry.
Commenters focused on several aspects of the proposed timing.
First, many of the comments focused on the logistics of OSHA's proposed
change. NJH, ACOEM, AFL-CIO, USW, ATS, DOSH, AOEC, and NSSP all
indicated that requiring results with a 30-day testing cycle could
create logistical challenges, for example due to repeat testing
requirements or for businesses in remote areas with access to limited
healthcare facilities (Document ID 2211, pp. 5-7; 2213, pp. 2-3; 2244,
pp. 17-18; OSHA-2018-0003-0033, p. 5; OSHA-2018-0003-0022, p. 4; OSHA-
2018-0003-0021, p. 4; OSHA-2018-0003-0024, p. 1; OSHA-2018-0003-0027,
p. 3). Materion agreed with these commenters that ``the 30 day initial
testing period may not allow enough time to complete retesting of
workers due to issues beyond the control of the employer or employee''
(Document ID 2237, p. 5).\10\
---------------------------------------------------------------------------
\10\ In their comments on the 2018 general industry NPRM,
Materion supported the proposed definition of confirmed positive,
stating that a 30-day allowance for follow-up testing after a first
abnormal or borderline BeLPT result is appropriate to ensure that
testing is completed in a timely manner (Document ID OSHA-2018-0003-
0038, p. 17).
---------------------------------------------------------------------------
In this final rule and preamble, OSHA clarifies that it did not
intend that the initial and follow-up tests had to be completed and
interpreted within 30 days. OSHA intended that the test results used to
determine if a worker is confirmed positive be obtained during one
cycle of testing (i.e., an initial or periodic examination), including
follow-up testing conducted within 30 days of an abnormal or borderline
result.
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. Commenters from public health organizations raised
concerns that limiting test results to one test cycle would affect the
ability to identify workers who should be referred for a CBD evaluation
and receive other protections under the standard. NJH stated that
OSHA's proposal to place a time constraint on confirmation testing
results would reduce workers' ability to obtain medical testing and
workplace protections that are required by the rule.\11\ NJH proposed
the following definition be used: ``Confirmed positive means the person
tested has beryllium sensitization as demonstrated by two abnormal
BeLPT test results, an abnormal and a borderline test result, three
borderline test results or the result of a more reliable and accurate
test for sensitization'' (Document ID 2243, p. 3).
---------------------------------------------------------------------------
\11\ As discussed above, NJH expressed concern that OSHA's
proposed definition of confirmed positive could prevent individuals
from being diagnosed with beryllium sensitization, and thereby
prevent them from receiving workers' compensation benefits (Document
ID 2243, p. 3). OSHA intends the definition of confirmed positive to
serve only as a trigger for certain provisions of the beryllium
standards. How OSHA defines this phrase for purposes of the
beryllium standards in no way limits healthcare professionals'
ability or incentive to diagnose beryllium sensitization.
---------------------------------------------------------------------------
Other public health organizations, including ACOEM, DOSH, ATS,
NSSP, AOEC, and CEL, agreed with NJH that workers who are sensitized to
beryllium may show varying test results over time, and restricting the
time period for determining ``confirmed positive'' status to 30 days
would cause sensitized individuals to go undetected (Document ID 2213,
pp. 2-3; 2208, pp. 3-4; OSHA-2018-0003-0023, p. 2; OSHA-2018-0003-0021,
p. 2; OSHA-2018-0003-0027, p. 3; OSHA-2018-0003-0028, p. 2). ACOEM
commented that the 30-day cycle would exclude workers who might have
confirmatory tests several years after the initial first positive
result, and stated that there is potential for confirmatory results
could take up to 10 years to occur. ACOEM also stated that ``[t]here is
no justification or need for a restrictive time limit for the
occurrence of confirmatory tests,'' but if OSHA determined that a time
limit was needed as a practical matter, ACOEM stated that at least
three years should be permitted for repeat testing to identify
confirmed positive results (Document ID 2213, p. 2).
ATS and AOEC recommended that results from tests performed up to at
least three years after the initial abnormal or borderline test result
should be used to determine whether the person is confirmed positive
for beryllium sensitization (Document ID OSHA-2018-0003-0021, p. 2;
OSHA-2018-0003-0028, p. 2). ATS stated that a timeframe of at least
three years, which encompasses two rounds of regularly scheduled
testing required biennially by the beryllium standard, would adequately
address its concerns regarding logistical feasibility, would improve
diagnostic accuracy, and would help ensure that sensitized workers are
identified (Document ID OSHA-2018-0003-0021, p. 4). The ATS Statement
on beryllium sensitization recommends a three-year testing cycle to
confirm beryllium sensitization (Document ID 0364, p. e35). AOEC agreed
that consideration of BeLPT test results obtained during a time period
of at least three years ``will increase the potential that workers are
accurately diagnosed with beryllium sensitization [and] will receive
the necessary care'' (Document ID OSHA-2018-0003-0028 p. 2). NABTU
noted that the Department of Energy's (DOE) Building Trades Screening
Program also uses a three year testing cycle to confirm workers
positive for sensitization (Document ID 2236, p. 2). CEL also commented
that ``OSHA should significantly lengthen the period allowed between
initial and confirmatory testing and develop a testing protocol that is
both practicable and based on science'' (Document ID 2208, p. 4).
The approaches recommended by the ATS and the AOEC are similar to
the approach used by NJH in providing medical surveillance consultation
to workforces that use beryllium. NJH stated that, if an individual's
BeLPT results are abnormal and normal on their initial round of BeLPT
testing, they will usually request another BeLPT within a month. If the
result of that test is normal, they do not request further testing
until the next regularly scheduled BeLPT. If the result of the next
regularly scheduled BeLPT comes back abnormal, they refer the worker
for clinical evaluation even though the tests are separated by the two-
year testing cycle (Document ID OSHA-2018-0003-0022, p. 5).
NJH submitted new, unpublished evidence to the record supporting
the appropriateness of extending the test period to at least three
years (Document ID 2243, p. 5). NJH's unpublished data was collected
from patients that were ultimately diagnosed with CBD by either NJH or
Oak Ridge Associated Universities (ORAU). The data (as reported in
Tables 1 and 2 below) shows the timeframe from the initial abnormal
BeLPT to the second abnormal BeLPT that is required to trigger a
clinical evaluation for CBD (Document ID 2243, p. 5).
[[Page 53924]]
Table 1--NJH Days To Confirmed Positive
------------------------------------------------------------------------
Number Percent
Number of days confirmed confirmed
------------------------------------------------------------------------
30...................................... 44 23
60...................................... 93 48
90...................................... 122 63
120..................................... 136 70
150..................................... 144 74
180..................................... 155 80
1 year.................................. 169 87
2 years................................. 181 93
3 years................................. 186 96
> 3 years............................... 194 100
------------------------------------------------------------------------
Table 2--ORAU Days To Confirmed Positive
------------------------------------------------------------------------
Number Percent
Number of days confirmed confirmed
------------------------------------------------------------------------
30...................................... 42 17
60...................................... 107 44
90...................................... 126 52
120..................................... 139 58
150..................................... 147 61
180..................................... 148 61
1 year.................................. 182 76
2 years................................. 201 83
3 years................................. 206 85
> 3 years............................... 241 100
------------------------------------------------------------------------
Tables 1 & 2 adapted from Document ID 2243, p. 5.
As indicated by the evidence in Tables 1 and 2, many workers who
develop CBD have abnormal or borderline results that do not immediately
repeat upon retesting. To the contrary, many CBD patients have a series
of tests which alternate between normal and abnormal. BeLPT data from
Table 1, based on NJH's extensive experience, show that the BeLPT does
not yield consistently abnormal results among CBD patients. Of 194
patients diagnosed with CBD at NJH, the length of time between abnormal
results ranged from 14 days to 5.8 years, with a 95th percentile of 2.9
years. In this group, 150 patients (or 77 percent) would not have been
evaluated for CBD if two abnormal BeLPT results were required to occur
within a 30-day testing cycle (Document ID 2243, p. 5; OSHA-2018-0003-
0022, p. 5). Similar findings are shown in Table 2 (BeLPT data from
ORAU, also submitted by NJH (Document ID 2238, p. 5)). Data from Table
2 indicates that 83 percent (199 patients) of individuals who went on
to develop CBD would not have been evaluated for CBD if two abnormal
BeLPT results were required to occur within a 30-day testing cycle
(Document ID 2243, p. 5).
Although the information NJH submitted to the record is
unpublished, their findings are consistent with published studies.
Kreiss et al. (1997) reported that nine individuals had initial
abnormal BeLPT results followed by two normal tests; six of those
individuals were re-tested approximately one year later and four were
confirmed positive for beryllium sensitization based on abnormal BeLPT
results (Document ID 1360, pp. 610-12). These findings suggest a high
rate of false-negative results and are consistent with results reported
in a study by Stange et al. (2004). That study found an average false-
positive rate of 1.09 percent, and a false-negative rate of 27.7
percent for the BeLPT (Document ID 1402, p. 459).
Stakeholders provided similar comments, in response to OSHA's
proposed definition of confirmed positive in the 2018 general industry
NPRM, which was identical to the revised definition of confirmed
positive proposed in the 2019 NPRM for construction and shipyards. For
example, NSSP cited ORAU data (the same data submitted by NJH and shown
in Table 2) from healthcare providers to demonstrate that a 30-day
testing cycle is insufficient to properly identify sensitized workers.
NSSP noted that, in over 20 years of conducting BeLPTs in worker
populations, ORAU observed approximate median times of 45 days (range
of 3 days to 16 years) between first and second abnormal tests, 1.5
years (range of 30 days to 11 years) for the abnormal/borderline test
combination and 1 year (range of 30 days to 11 years) for three
borderlines (Document ID OSHA-2018-0003-0027, p. 3). Under the proposed
30-day requirement, the NSSP stated that the majority of workers who
have been identified as sensitized in the past would not meet the
proposed definition of confirmed positive (Document ID OSHA-2018-0003-
0027, p. 3).
Following consideration of the comments and of the new evidence
submitted to the record following the proposal, OSHA is convinced that
some workers who are ultimately found to be sensitized to beryllium or
diagnosed with CBD may have alternating abnormal and normal BeLPT
results, and that the time period for abnormal or borderline results to
repeat can be months or years. OSHA is also convinced that requiring
two abnormal, an abnormal and borderline, or three borderline results
to occur in one cycle of an initial or periodic exam before an employee
can be confirmed positive could result in beryllium sensitization or
CBD going undetected in many employees. This is demonstrated by the
unpublished data submitted by NJH showing that a substantial percentage
of individuals with CBD (77 percent) may not have been referred for
further testing based on results obtained within a 30-day cycle of
testing and is confirmed by the data from ORAU that NSSP presented in
response to the 2018 general industry NPRM (85 FR42605). Therefore,
OSHA finds that its proposed change would have the unintended and
unacceptable consequence of reducing employee protections because some
employees who are sensitized or have CBD would be deprived of the
benefits available through the standard, such as a timely evaluation at
a CBD diagnostic center. In addition, requiring that results be
obtained in one test cycle is not consistent with the approaches
currently applied or supported by the medical community.
For these reasons, OSHA is revising the definition of confirmed
positive to specify that the findings of two abnormal, one abnormal and
one borderline, or three borderline results must be obtained from
BeLPTs conducted within a three-year period. OSHA agrees with the ATS
and the AOEC that a three-year period will facilitate the
identification of sensitized workers enrolled in medical surveillance
(see Document ID OSHA-2018-0003-0022, p. 5; OSHA-2018-0003-0028, p. 2;
Document ID 0364, p. e35). In addition, this approach is consistent
with the practices and recommendations from the public health
community, including NJH and DOE, which provides beryllium-related
medical surveillance consultation. OSHA believes that allowing a worker
to be confirmed positive based on BeLPT results obtained over a three-
year time period strikes a reasonable balance that would allow a timely
evaluation for CBD, while at the same time, maintaining OSHA's original
intent that a confirmed positive finding not be based on results
obtained over an indefinite time period.
OSHA emphasizes that this revision does not modify the requirements
of paragraph (k)(3)(ii)(E). Under that paragraph, if the results of the
BeLPT are other than normal, a follow-up BeLPT must be offered within
30 days of receiving the results, unless the employee has been
confirmed positive. Only other than normal BeLPT results must be
followed up within 30 days of the same test cycle (i.e., an initial or
periodic medical examination).
As an example, an employee who receives a borderline result during
one periodic examination conducted in 2020 would be retested within 30
days, and if the follow-up test is normal, testing would stop. That
employee would be offered another BeLPT at the next
[[Page 53925]]
periodic examination conducted in 2022. However, if the result of the
2022 test is borderline, the employee would be retested within 30 days
of that test result receipt, and if the follow-up test is borderline,
the employee would be confirmed positive because of receiving three
borderline tests within three years. A three-year period for the
employee to be confirmed positive would ensure sufficient time for such
follow-up tests that may need to be conducted over two cycles of
medical examinations.
In their comments on the 2018 NPRM for general industry, the U.S.
Department of Defense (DOD) recommended changing the term ``confirmed
positive'' to another term such as ``confirmed non-negative,''
``confirmed finding of concern,'' or ``pattern of concern.'' According
to the DOD, the term ``confirmed positive'' typically ``implies an
initial positive test that was repeated with another test or another,
more sensitive test, which confirms the initial positive test result''
(Document ID OSHA-2018-0003-0029, p. 2). As OSHA explained in the
general industry final rule Summary and Explanation (85 FR 42606),
however, the CBD literature, commonly treats individuals as confirmed
positive for sensitization through sequentially conducted BeLPTs (see,
for example, the ATS Statement on Diagnosis and Management of Beryllium
Sensitivity and Chronic Beryllium Disease, ATS 2014, Document ID 0364,
p. e41; see also Document ID 1543, 0603, 0398, 1403, 1449).
Additionally, OSHA again emphasizes that terms defined in the beryllium
standards are defined only for purposes of the standard and are not
intended as diagnostic, scientific, or all-purpose definitions. OSHA
believes that its definition of confirmed positive clearly indicates
what that term means for purposes of the beryllium standards and
therefore disagrees with DOD's concern that the term may cause
confusion. Accordingly, OSHA is retaining the term ``confirmed
positive'' in this final standard.
Emergency
Finally, OSHA proposed to remove references to the term emergency
throughout the construction and shipyards standards, including the
definition in paragraph (b). The agency explained that, unlike in
general industry, the construction and shipyards industries--where
exposure to beryllium is almost exclusively limited to trace quantities
from abrasive blasting and welding operations--do not have emergencies
in which exposures to beryllium will differ from the normal conditions
of work. Specifically, OSHA reasoned that an uncontrolled release of
airborne beryllium in these industries (such as a release resulting
from a failure of the blasting control equipment, a spill of the
abrasive blasting media, or failure of the ventilation system for
welding operations) would occur only during the performance of routine
tasks already associated with the airborne release of beryllium; that
is, during abrasive blasting or welding processes. The agency explained
that it anticipates employees working in the immediate vicinity of an
uncontrolled release of airborne beryllium in these contexts would
already be protected from exposure by the standards' existing
requirements for respiratory protection (paragraph (g)), medical
surveillance (paragraph (k)), and hazard communication (paragraph (m))
due to their existing exposure to airborne beryllium (84 FR at 53909;
see also id. at 53912, 53918-20).
Accordingly, OSHA preliminarily determined that no requirements
should be triggered for emergencies in construction and shipyards and
proposed to remove references to emergencies in provisions related to
respiratory protection (paragraph (g)), medical surveillance (paragraph
(k)), and hazard communication (paragraph (m)). The agency also
preliminarily determined that without these provisions it would be
unnecessary to define the term emergency in paragraph (b) (84 FR
53909).
Some commenters objected to the proposed removal of provisions
relating to emergencies. Specifically, these commenters took issue with
OSHA's determination that an uncontrolled release of beryllium in the
construction and shipyards industries would not create exposures that
differ from normal operations. For a full discussion of these comments
and the agency's response, see the summary and explanation for
paragraph (g). In short, the agency is not persuaded that the types of
uncontrolled releases that necessitated emergency provisions in the
general industry standard are present in the construction and shipyards
industries. Accordingly, OSHA is finalizing its proposal to remove all
references to ``emergency'' or ``emergencies'' throughout the
construction and shipyards standards. Because those terms no longer
appear in the standards' requirements, OSHA is also finalizing its
proposal to remove the definition of the term ``emergency'' from
paragraph (b).
This final rule makes one additional revision to paragraph (b) in
both standards. As explained in the Summary and Explanation for
paragraph (j), OSHA is removing the reference to HEPA-filtered
vacuuming in the housekeeping requirements of revised paragraphs (j)(1)
and (2). In the NPRM, OSHA neglected to remove the definition for high-
efficiency particulate air (HEPA) filter in paragraph (b), despite the
fact that there are no longer any provisions in either standard that
reference HEPA-filters. OSHA has removed this definition in this final
rule. This change has no substantive effect on any requirements in the
standards and OSHA considers this a technical correction.
Paragraph (f) Methods of Compliance
Paragraph (f) of the beryllium standards for construction and
shipyards requires employers to 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, rather than on
respirator use, is consistent with good industrial hygiene practice and
with OSHA's traditional approach to 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 primarily to a few
operations, abrasive blasting in construction and shipyards and some
welding operations in shipyards (82 FR at 2637-38). With respect to
abrasive blasting, while the extremely high exposures to airborne
particulate 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 0.11 [micro]g/g or 0.00001%) (see 2017 FEA,
Document ID 2042, p. IV-632, Table IV.69; 82 FR at 2638). 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) (see 2017 FEA, Document ID 2042, 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
[[Page 53926]]
are exposed to materials with significantly higher beryllium content.
In the 2019 NPRM, OSHA proposed 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 explained 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 (84 FR at 53909-10). Likewise, OSHA preliminarily determined
that provisions relating solely to dermal contact with beryllium should
not apply in the construction and shipyards industries, where exposures
primarily involve materials containing only trace amounts of beryllium
(84 FR at 53909) or, in the case of welding, where OSHA believes the
process and materials do not present a dermal contact risk (see 84 FR
at 53906). Accordingly, OSHA proposed several revisions to both
paragraph (f)(1) (Written exposure control plan) and (2) (Engineering
and work practice controls) in the construction and shipyards
standards.
For both the construction and shipyards beryllium standards,
paragraph (f)(1) in this final rule requires the employer to establish,
implement, and maintain a written exposure control plan that includes:
a list of operations and job titles reasonably expected to involve
exposure to beryllium; 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)
(see paragraphs (f)(1)(i)(A), (B) and (C), respectively). For the
construction standard, the written plan must also include procedures to
restrict access to work areas where exposures to beryllium could
reasonably be expected to exceed the TWA PEL or STEL (paragraph
(f)(1)(i)(D)). Both the construction (paragraph (f)(1)(i)(E)) and
shipyards (paragraph (f)(1)(i)(D)) standards require the employer to
include procedures to ensure the integrity of each containment used to
minimize exposures to employees outside of containments (such as tarps
or structures used to keep sandblasting debris within an enclosed area
during abrasive blasting operations). Paragraphs (f)(1)(ii) and (iii)
further provide requirements for maintaining, reviewing, and evaluating
the written exposure control plan and providing access to the plan to
each employee who is, or can reasonably be expected to be, exposed to
airborne beryllium. In the construction standard, the written exposure
control plan must be implemented by a competent person, as defined by
paragraph (b) (paragraph (e)(2)).
Paragraph (f)(1) in this final rule contains several changes from
the prior standards, as proposed in the December 2019 NPRM. First, OSHA
proposed to revise paragraph (f)(1)(i)(A) by removing the words
``airborne'' and ``or dermal contact with'' as qualifiers for exposure
to beryllium, so as to require simply a list of operations and job
titles reasonably expected to involve exposure to beryllium. Second,
OSHA proposed to revoke paragraphs (f)(1)(i)(B) and (C), which required
additional lists of operations and job titles involving exposure at or
above the action level and above the TWA PEL or STEL, respectively.
OSHA reasoned that, given the small number of operations with beryllium
exposure in construction and shipyards, the list of operations and job
titles in these categories would be the same as those required by
paragraph (f)(1)(i)(A). As such, any additional lists would be
unnecessary and redundant (84 FR at 53910-11).
OSHA also proposed to revoke the requirements that the employer
include in the written exposure control plan 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)) (84 FR at 53910). OSHA explained
that the original intent 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 PEL. With respect
to the construction standard, OSHA reasoned that the requirement to
include procedures in the written exposure control plan to restrict
access to work areas where exposures to beryllium could reasonably be
expected to exceed the TWA PEL or STEL (formerly paragraph (f)(i)(E),
renumbered as (f)(i)(D)), along with the requirement that these
procedures be implemented by a competent person (paragraph (e)(2)),
would be sufficient to control cross-contamination and migration of
beryllium from abrasive blasting operations. For the shipyard standard,
OSHA retained 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. To
further limit cross-contamination and migration, OSHA proposed 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 to ensure the integrity of each containment
used to minimize exposures to employees outside the containment (such
as tarps or structures used to keep sandblasting debris within an
enclosed area during abrasive blasting operations).
OSHA next proposed to remove the requirement that the employer
include in the written exposure control plan procedures for removing,
laundering, storing, cleaning, repairing, and disposing of beryllium-
contaminated personal protective clothing and equipment, including
respirators (paragraph (f)(1)(i)(H)), because the agency had also
proposed to remove several requirements pertaining to such procedures
(84 FR at 53911). Specifically, OSHA proposed to remove the
requirements that the employer ensure that: Beryllium-contaminated PPE
is stored and kept separate from street clothes and that storage
facilities prevent cross-contamination as specified in the written
exposure control plan (paragraph (h)(2)(iii)); 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 (paragraph (h)(2)(iv)); PPE removed from the
workplace for laundering, cleaning, maintenance, or disposal be placed
in closed, impermeable bags or containers and labeled appropriately
(paragraph (h)(2)(v)); and any person or business entity who launders,
cleans or repairs PPE required by the standards be informed, in
writing, of the potentially harmful effects of beryllium and of the
need to handle the PPE in accordance with OSHA's beryllium standards
(paragraph (h)(3)(iii)). With the proposed removal of those paragraphs,
the remaining requirements that would relate to paragraph (f)(1)(i)(H)
include paragraphs (h)(2)(i) and (ii), pertaining to removal of PPE;
paragraph (h)(3)(i), pertaining to cleaning and maintenance of PPE; and
paragraph (h)(3)(ii), pertaining to methods of removing beryllium from
PPE. In light of the proposed removal of several of the requirements
for removing, laundering, storing, cleaning, repairing, and disposing
of beryllium-contaminated PPE, OSHA stated that it believed it
unnecessary to include such procedures in the written plan (84 FR at
53911).
Finally, as with paragraph (f)(1)(i)(A), OSHA proposed to revise
paragraph (f)(1)(ii)(B) to refer simply to ``exposure to'' rather than
``airborne exposure to or dermal contact with'' beryllium (84 FR
[[Page 53927]]
at 53911).\12\ OSHA's proposal to revise this paragraph, which
previously required the employer to review, evaluate, and update the
written exposure control plan, as necessary, when notified that an
employee shows signs or symptoms associated with airborne exposure to
or dermal contact with beryllium, is consistent with other paragraphs
where the agency is simplifying the language in a similar manner (e.g.,
paragraphs (k)(3)(ii)(A) and (k)(4)(i), Medical surveillance) and is
not intended to alter the meaning of the provision. OSHA received a
number of comments on its proposed revisions to paragraph (f). These
comments and OSHA's final determinations are discussed below.
---------------------------------------------------------------------------
\12\ In the Amendments to Standards section of the NPRM (84 FR
at 53951-54), which identifies precisely how the proposal would
amend the Code of Federal Regulations, OSHA inadvertently failed to
remove the word ``airborne'' as a qualifier for ``exposure'' in
paragraph (f)(1)(ii)(B) of both standards. However, the summary and
explanation of paragraph (f) clearly identified OSHA's intent to
remove both ``airborne'' and ``dermal contact with'' from the
provision and leave simply ``exposure to beryllium'' (see 84 FR at
53911). The only commenter to address the change referred to the
correct language (NJH, Document ID 2211, p. 9). Accordingly, OSHA
considers this a harmless error and has corrected the appropriate
language in the Amendments to Standards section of this final rule.
---------------------------------------------------------------------------
Comments on the Nature and Extent of Beryllium Exposure in the
Construction and Shipyards Industries
A primary issue raised by several commenters, both with respect to
the proposed changes to paragraph (f) and to the rest of the proposal,
involved whether OSHA has appropriately characterized the jobs and
operations in the construction and shipyards industries that present
beryllium exposures of concern. On the one hand, the National
Electrical Contractors Association (NECA), the National Demolition
Association (NDA), and the Construction Industry Safety Coalition
(CISC) argued that a written exposure control plan is unnecessary in
the construction industry in light of the limited operations that
create exposures of concern. Specifically, NECA contended that
beryllium exposure in construction is limited to abrasive blasting, and
therefore ``promulgating a rule that would require all employers to
document and implement a written exposure control plan for beryllium
creates additional and undue burdens on employers and employees in the
construction industry'' (Document ID 2209, p. 1). CISC and NDA both
stated that, in order to create a written exposure control plan,
construction employers ``will be required to assess all workplace
exposures, jobs, tasks, and work to be performed to determine whether
beryllium is present in trace amounts'' (Document ID 2203, p. 16; 2205,
p. 2). According to CISC, this is a particular problem in the
construction industry because of the ``range of exposures that could
exist as a result of naturally occurring beryllium or airborne
exposures of beryllium from aggregate or other components of
construction material containing trace amounts of beryllium'' (Document
ID 2203, p. 2). Like NECA, CISC argued that it would be inappropriate
to require employers to engage in the ``daunting task'' of analyzing
beryllium exposures on their worksites, given that OSHA has not
identified exposures of concern in construction outside of abrasive
blasting with certain media (Document ID 2203, p. 16). NDA echoed CISC,
asserting that this would be an ``unnecessary burden'' and
``inappropriate'' in the construction industry (Document ID 2203, p.
2).
CISC suggested that, instead of including a written exposure
control plan provision in the beryllium standard for construction, OSHA
should consider adding new requirements to paragraph (f) of the
ventilation standard for construction (29 CFR 1926.57) that set forth
additional protective measures to be used when abrasive blasting with
media containing <0.1 percent by weight of beryllium. These new
provisions, CISC stated, could include the requirements of written
exposure control plans, regulated areas, specified PPE, and other
provisions to protect workers in and around such abrasive blasting
(Document ID 2203, p. 16). While industry representatives NECA, NDA,
and CISC argued that OSHA's approach to the written exposure control
plan is too broad, other commenters representing unions and public
health organizations argued that the proposal is too narrow.
Specifically, these commenters took issue with OSHA's focus on abrasive
blasters and welders. Several commenters suggested potential exposure
sources apart from abrasive blasting and welding operations and argued
that some of these exposures could involve beryllium in greater than
trace amounts. For example, NJH contended that there are ``other
operations, jobs and tasks that can generate beryllium exposure in the
construction and shipyard sectors, not limited to abrasive blasting and
welding'' (Document ID 2211, p. 7). NJH cited studies involving
demolition operations at an Army site in Ohio (https://www.lrb.usace.army.mil/Missions/HTRW/FUSRAP/Luckey-Site); construction
trades workers exposed to beryllium in DOE facilities (Welch et al.,
2004 & 2013); workers performing clean-up of beryllium-using sites
(Sackett et al., 2004); workers grinding beryllium-composite tools
(Kreiss et al., 1993); and workers resurfacing copper-beryllium tools
(Mikulski et al, 2011) (Document ID 2211, p. 7) (see detailed
discussion of studies later in this section). NJH also noted,
anecdotally, that it has diagnosed CBD in contract construction workers
who worked in primary beryllium and beryllium manufacturing facilities
(Document ID 2211, p. 7).
AFL-CIO similarly indicated that construction workers such as
laborers, welders, carpenters, surveyors, and electricians involved in
demolition, renovation, maintenance, repair, and construction projects
performed in general industry sites where beryllium was previously
used, as well as those who may use non-sparking tools, could be exposed
to beryllium (Document ID 2210, p. 5; 2239, p. 1). ACOEM likewise
argued that workers in the construction industry can be exposed from
decommissioning and demolition work (Document ID 2213, p. 3). Some
members of Congress also identified the maintenance of non-sparking
tools and working with unspecified beryllium alloys in high-tech naval
vessels as activities that expose workers to materials containing
beryllium above trace levels (Document ID 2208, p. 6).
Relying largely on studies performed at Department of Energy
nuclear weapon sites (some of the same studies cited by NJH), NABTU
commented that workers performing maintenance, renovation, repair, and
demolition in beryllium processing facilities may be exposed to
residual beryllium in ventilation systems, floors, insulation
materials, and in floor crevices (Document ID 2202, p. 2; 2240, p. 3).
Referencing OSHA's decision in the 2017 final rule to apply the
construction standard to all occupational exposures to beryllium,
rather than limiting the requirements to abrasive blasting operations,
NABTU contended that OSHA's proposal departs from the agency's prior
conclusions without explaining this supposed departure. According to
NABTU, OSHA has abandoned its position that the construction standard
should ``cover all occupational exposures to beryllium'' and instead
``decided only to address the `primary' means of exposure'' (Document
ID 2240, pp. 2-5).
In addition to potential exposures from existing operations, USW
contended that the proposed revisions to the construction and shipyard
standards fail to account for ``all future operations'' that might use
beryllium. By tailoring the standards to the specific exposures in
abrasive blasting and
[[Page 53928]]
welding operations, USW contends that OSHA is making a ``dangerous
assumption'' that it makes ``in no other health standard'' (Document ID
2212, p. 2). According to USW: ``If a new chemical product is
synthesized from 1,3-butadiene, the 1,3-butadiene standard will apply
in its entirety. If arsenic finds a new use in semiconductors, the
employer will be expected to comply with the entire arsenic standard. .
. . However, under the OSHA proposal, if metallic beryllium, a
beryllium alloy, ceramic or other compound is someday used on a
construction site or in a shipyard, exposed workers will lack important
protections enjoyed by their counterparts in general industry''
(Document ID 2212, p. 2). USW echoed NABTU's assertion that OSHA's
proposal neglects workers beyond abrasive blasters and welders and
concluded that ``[o]nly by including all the general industry
protections in the shipyard and construction standards can OSHA fulfill
[its] mandate'' to protect all workers (Document ID 2212, p. 4).
Those commenters who participated in the public hearing also raised
these concerns in their testimony. Specifically, both NJH and USW again
identified potential exposures from beryllium-containing non-sparking
tools (Document ID 2222, Tr. 17-19, 48) and NJH discussed their
organization's past diagnoses of CBD in contract construction workers
in the primary beryllium and manufacturing industries (Document ID
2222, Tr. 48). USW again expressed concern about possible future
applications of beryllium-containing materials in construction and
shipyard work (Document ID 2222, Tr. 17-19). NABTU and AFL-CIO both
reiterated their position that construction workers are exposed through
activities other than abrasive blasting, particularly demolition,
renovation, cleanup, and similar work in facilities that make and use
beryllium-containing alloys (Document ID 2222, Tr. 84, 114-15). NABTU
concluded that construction workers operating in facilities that use
beryllium ``are not only potentially exposed to beryllium, but also,
they will have dermal exposure to dust and debris that can contain
beryllium at greater than trace amounts'' (Document ID 2222, Tr. 84-
85).
On the whole, these commenters contend that, because there are work
processes other than abrasive blasting and welding that could expose
construction and shipyard workers to beryllium, OSHA should not remove
or modify provisions of the beryllium standards--such as the written
exposure control plan requirements--to tailor the standards to abrasive
blasting and welding operations.
After reviewing all of these comments and the record as a whole,
OSHA has determined that the record continues to lack sufficient data
for the agency to characterize the nature, locations, or extent of
beryllium exposure in application groups in current-day construction
and shipyards sectors other than abrasive blasting and certain welding
operations. Further, although OSHA continues to recognize the
possibility of exposures beyond abrasive blasting and welding, the
agency has reason to believe concerns regarding construction workers'
dermal exposure to more than trace beryllium at general industry sites,
although potentially justified in the past, likely do not reflect
current exposures in these contexts.
As a result, OSHA finds that it is appropriate to follow through
with its proposal to tailor certain provisions of the beryllium
standards for construction and shipyards--including the written
exposure control plan requirements--to those operations for which the
agency has data. At the same time, OSHA disagrees with NECA, NDA, and
CISC that the agency should strictly limit application of the beryllium
standards to abrasive blasting and welding operations. Accordingly,
both standards will continue to cover all occupational exposures to
beryllium in these industries that meet the requirements of paragraph
(a). OSHA's reasoning and the agency's response to each of the comments
received on these topics is explained below.
OSHA's Analysis of the Record With Respect to Beryllium Exposures in
the Construction and Shipyards Sectors
In the 2017 final rule, OSHA based its assessment of applications
involving beryllium exposure, including its determination that abrasive
blasting and welding are the only known sources of beryllium exposure
in construction and shipyards, on the best evidence available in the
record. This included a comprehensive review of the industrial hygiene
literature; National Institute for Occupational Safety and Health
(NIOSH) Health Hazard Evaluations and case studies of beryllium
exposure; site visits conducted by an OSHA contractor (Eastern Research
Group (ERG)); inspection data from OSHA's Integrated Management
Information System (IMIS) and OSHA's Information System (OIS); and
information submitted to the rulemaking docket in response to the
notice of proposed rulemaking and informal public hearings, such as a
comprehensive data set submitted by the Navy of beryllium sampling in a
wide variety of operations (see 82 FR at 2583; 2017 FEA, Document ID
2042, pp. IV-17 to IV-22; Document ID 0144, 0145).
This review also included comments and testimony on potential
exposure from sources other than abrasive blasting and welding (82 FR
2636-40). At the time, several commenters identified many of the same
jobs and operations as those identified in this rulemaking. NIOSH
commented that construction workers may be exposed to beryllium when
demolishing buildings or building equipment, based on a study of
workers demolishing oil-fired boilers (Document ID 1671, Attachment 1,
pp. 5, 15; 1671, Attachment 21). At the initial public hearing in 2016,
NJH testified that numerous studies had documented beryllium exposure,
sensitization, and CBD in construction workers performing demolition
and decommissioning and among workers who use non-sparking tools
(Document ID 1756, Tr. 98). USW also testified that workers in the
maritime industry use and may sharpen or grind beryllium-containing
non-sparking tools and that shipyards might use beryllium for other
tasks in the future. USW further stated that beryllium is a high-tech
material and that exposure from beryllium containing alloys cannot be
ruled out in high-tech operations such as aircraft carrier or submarine
production (Document ID 1756, Tr. 270).
After reviewing the record, OSHA determined in the 2017 final rule
that it did not have sufficient data on beryllium exposures in the
construction and shipyard industries to characterize exposures in
application groups other than abrasive blasting with beryllium-
containing slags and certain welding operations in shipyards, and that
it could not develop exposure profiles for construction and shipyard
workers engaged in activities involving non-sparking tools, demolition
of beryllium-contaminated buildings or equipment, or work with
beryllium-containing alloys (82 FR at 2639). Even so, OSHA acknowledged
USW's concerns about future beryllium use and found ``that there is
potential for exposure to beryllium in construction and shipyards
operations other than abrasive blasting.'' OSHA concluded that workers
engaged in any such operations are exposed to the same hazard of
developing CBD and other beryllium related disease (82 FR at 2639).
Thus, OSHA chose to cover all occupational exposures to beryllium in
those industries in order to ensure that the standards are broadly
effective and address all potentially harmful beryllium exposures (82
FR at 2639).
[[Page 53929]]
While extending comprehensive beryllium standards to construction
and shipyards and broadly aligning the ancillary provisions across the
three sectors, OSHA also identified evidence in the record
demonstrating meaningful distinctions between the sectors, and
therefore promulgated different requirements for some ancillary
provisions. For example, OSHA included requirements pertaining to
beryllium work areas (BWAs) \13\ in the standard for general industry
but did not include such requirements in the standards for construction
and shipyards. OSHA explained that commenters such as Newport News
Shipbuilding (NNS) (Document ID 1657) and NIOSH (Document ID 1725, p.
30; 1755, Tr. 21) had brought to its attention difficulties in
establishing and maintaining BWAs in an operation such as abrasive
blasting (82 FR at 2660-61). NNS specifically highlighted the
difficulty of such a requirement where beryllium is encountered in
trace concentrations (82 FR at 2661; Document ID 1657, pp. 1-2).
---------------------------------------------------------------------------
\13\ As originally promulgated, the beryllium standard for
general industry required employers to establish a beryllium work
area in any area that (1) contains a process or operation that can
release beryllium, and (2) where employees are, or can reasonably be
expected to be, exposed to airborne beryllium at any level or where
there is the potential for dermal contact with beryllium (82 FR at
2736). BWAs must be demarcated by signs or other methods that
establish and inform each employee of the boundaries of the area (29
CFR 1910.1024(e)(2)). Through the May 7, 2018 DFR, OSHA later
revised the definition of a BWA so that the requirements apply only
where the process or operation involves material containing at least
0.1 percent beryllium by weight (83 FR at 19938).
---------------------------------------------------------------------------
Recognizing that the known exposures in construction and shipyards
are to trace beryllium, and further recognizing the difficulties
involved in establishing and maintaining BWA requirements in that
context, OSHA decided not to require employers in construction and
shipyards to establish and maintain BWAs (82 FR 2660-61). In this way,
OSHA differentiated the construction and shipyards standards from the
general industry standard and tailored portions of the former to the
particular exposures in abrasive blasting operations. OSHA thereby made
the standards more workable to implement in those sectors while
maintaining an overall framework of protections broadly similar to
those in general industry.
After publication of the 2017 final rule, on May 7, 2018, OSHA
published a direct final rule (DFR) to clarify certain provisions of
the beryllium standard for general industry as they related to
materials containing trace amounts of beryllium (84 FR 19936).
Specifically, the DFR 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
made clear that the agency only intended to regulate contact with trace
beryllium to the extent that it caused airborne exposures of concern
(83 FR at 19938).
In the 2019 NPRM, OSHA sought to more fully tailor the construction
and shipyards standards to the known exposures in these sectors; that
is, to abrasive blasting and welding operations. OSHA recognized that,
in applying some provisions developed for general industry into the
construction and shipyards standards in the 2017 final rule, the agency
may have not fully accounted for the trace levels of beryllium in these
operations. At the same time, the agency remained open to considering
additional sources of exposure. In the NPRM and multiple times at the
public hearing, OSHA requested information and data on any additional
application groups (industries, occupations, processes, etc.) with
potential exposure to beryllium in the construction and shipyards
sectors beyond abrasive blasters and welders (84 FR at 53922; Document
ID 2222, Tr. 33-35; 44-45; 75-76; 95-96; 125-26).
Although a number of commenters responded to OSHA's request, as
outlined above, their comments in many cases relied on anecdotal or
unverifiable assertions about additional exposure sources. For example,
NABTU and AFL-CIO listed several jobs that they contend could involve
exposure to beryllium, but provided nothing documenting current
exposures in these operations. Likewise, NJH indicated anecdotally that
they had diagnosed beryllium sensitization and CBD in contractors who
had performed work at a primary beryllium facility, but due to the
restrictions under the Health Insurance Portability and Accountability
Act (HIPAA), they did not disclose any further information about these
cases (Document ID 2238, p. 1; 2222, Tr. 65). Such information provides
little on which the agency can rely to evaluate these suggested
exposure sources.
While commenters did provide some evidence in the form of studies,
OSHA believes the studies referenced have limited value in analyzing
current exposures to workers in these industries. NABTU (Document ID
2240), AFL-CIO (Document ID 2239, 2244), and NJH (Document ID 2211,
2238) cited a number of studies that they contend demonstrate workers
in the construction trades are at risk of exposure to beryllium in
greater than trace quantities through work at general industry sites
that process or previously processed beryllium. Several of these
studies examined beryllium sensitization and CBD among construction
trades workers and others who had worked at DOE nuclear weapons
facilities. Two studies involved exposures at private facilities. Of
the studies submitted, OSHA had previously reviewed Kreiss et al.
(1993) and Stange et al. (2001) in the Health Effects section of the
preamble to the 2017 final rule (82 FR 2506; 2510).
Kreiss et al. (1993) conducted a screening of current and former
workers at a plant that manufactured beryllium ceramics between 1958
and 1975, and then transitioned to metalizing circuitry onto beryllium
ceramics produced elsewhere (Kreiss et al. (1993), ``Beryllium Disease
Screening in the Ceramics Industry'' (Document ID 1478)). Five hundred
and five of the plant's then-current and retired workers who had not
previously been diagnosed with CBD or sarcoidosis participated,
including 377 current and 128 former workers. Workers' airborne
beryllium exposure was not estimated in this survey, and potential for
skin contact with beryllium was not explicitly discussed. Surveillance
for CBD was conducted on this population in 1989-1990 (Document ID
1478, p. 270).
Kreiss et al. (1993) reported nine newly identified cases of CBD
(Document ID 1478, p. 257). The individuals diagnosed with CBD had
begun work at the facility between September 1946 and June 1983, with
most (7 of 9) hired between 1956 and 1973 (Document ID 1478, Table 2,
p. 270). Two cases (11.1 percent) of newly diagnosed CBD occurred among
18 workers who performed ventilation maintenance (Document ID 1478,
Table 7, p. 273).\14\ However, the authors noted that all workers with
CBD who reported work in ventilation maintenance had also reported work
in dry pressing and/or process development, job categories which also
had particularly high prevalence of CBD (15.8 percent and 13.6 percent,
respectively) (Document ID 1478, p. 272; Table 7, p. 273). Moreover,
the authors stated that ``persons who had worked at dusty tasks in
which [beryllium] exposures were harder to control or unlikely to be
monitored, such as dry pressing and
[[Page 53930]]
beryllia process development/engineering, had beryllium disease rates
between 11 percent and 16 percent,'' rates that ``are higher than those
described historically in other beryllium industries'' (Document ID
1478, p. 273). The authors also noted one case of CBD in an employee
who had begun employment eight years after beryllium production ended
(a ``dust disturber'' case) who recalled regularly dry-sweeping for a
period of 6 months in 1983 in an area that was later shown to be
contaminated by beryllium dust and had no other known source of
beryllium exposure (Document ID 1478, p. 271). NJH cited Kreiss et al.
(1993) as evidence that cleanup workers and tool grinders at general
industry sites can face risk from beryllium exposures (Document ID
2211, p. 7).
---------------------------------------------------------------------------
\14\ The authors did not provide detail on this ventilation
maintenance activity and it is unclear whether such work represents
a typical construction activity or a routine general industry
maintenance activity.
---------------------------------------------------------------------------
Virji et al. (2019) published a study of short-term workers
employed at a primary beryllium manufacturing facility that processed
beryllium salts, beryllium metal and alloys, and beryllium oxide (Virji
et al. (2019), ``Associations of Metrics of Peak Inhalation Exposure
and Skin Exposure Indices with Beryllium Sensitization at a Beryllium
Manufacturing Facility'' (Document ID 2239)). This study examined a
group of 264 short-term workers who were hired after January 1, 1994,
and who participated in testing for beryllium sensitization in 1999.
The authors used exposure data such as personal full-shift exposure
sampling, task and area exposure measurements, and glove measurements
to create qualitative and quantitative peak inhalation metrics and skin
exposure indices (Document ID 2239, pp. 858-9). The authors reported
that their data represent ``historical workplace conditions, before the
implementation of a redesigned comprehensive prevention program'' which
included measures to reduce both inhalation and skin exposure through
improvements in engineering controls and use of personal protective
equipment and clothing; improved housekeeping; measures to minimize
migration of beryllium from work areas; and improved health and safety
and work practice training, beginning in 2000 (Document ID 2239, pp.
863, 866).
Twenty-six of the study participants (9.8 percent) were beryllium-
sensitized, of whom six were also diagnosed with CBD. The authors noted
that maintenance work was associated with the highest rate of beryllium
sensitization (0.154 per person-year of work in the maintenance
category, which had 52.1 person-years of work in total) (Document ID
2239, Table 4, p. 865). The authors found that peak inhalation metrics,
indices, and other evidence of skin exposure, and use of material
containing beryllium salts were significantly associated with beryllium
sensitization (Document ID 2239, p. 865). It was not possible to
distinguish the effects of skin exposure from inhalation exposure
because these exposures tended to occur together (Document ID 2239, p.
867). The authors concluded that multiple beryllium exposure pathways
and types were associated with sensitization and that efforts to
prevent beryllium sensitization should focus on controlling airborne
beryllium exposures with particular attention to exposure peaks;
process characteristics (the likelihood of upset conditions, which can
lead to high short-term exposures); and minimizing skin exposure to
beryllium particles, in particular, eliminating skin contact with
beryllium salts (Document ID 2239, p. 867).
NABTU and AFL-CIO referenced Virji et al. (2019) in support of
their objection to OSHA's proposed removal of dermal protections in the
construction and shipyard standards (Document ID 2239, p. 2; 2240, pp.
5-6). NABTU noted that some workers at the beryllium producing facility
who were not directly involved in beryllium-related operations
nevertheless became sensitized to beryllium; that maintenance work
(including shutdown maintenance, as is performed by contract
construction workers) was associated with the highest rates of
beryllium sensitization; and that the study authors found a strong
association between dermal exposure and beryllium sensitization
(Document ID 2240, pp. 5-6). NABTU concluded that Virji et al.'s study
``lends further support to the need to ensure workers handle their
clothing and other personal protective equipment in ways that minimize
the potential that either they, their family members or others who may
handle the PPE are incidentally exposed.'' Furthermore, ``despite the
importance of the required procedures to restrict access to work areas
where exposures may exceed the PEL and the presence of a competent
person--provisions NABTU fully supports--those protections do not
adequately compensate for the potential that beryllium will migrate
into other work areas'' (Document ID 2240, pp. 5-6). AFL-CIO also
commented that Virji et al. showed the importance of controlling skin
exposure to beryllium in order to prevent beryllium sensitization
(Document ID 2239, p. 2).
Several of the studies cited by NABTU, AFL-CIO, and NJH examined
beryllium sensitization and CBD among construction trades workers and
others who had worked at DOE nuclear weapons facilities, including
Stange et al. (2001), Sackett et al. (2004), Welch et al. (2004), and
Welch et al. (2013). The commenters cited these studies as evidence
that construction trades people can be exposed to greater than trace
amounts of beryllium while conducting cleanup, demolition, and
deconstruction activities in buildings where beryllium was previously
released and accumulated in settled dust.
Stange et al. (2001) examined the prevalence of beryllium
sensitization and CBD by job category among 5,713 individuals tested in
the Rocky Flats Beryllium Health Surveillance Program, which offered
surveillance for any current or former employee who believed they may
have been exposed to beryllium at the Rocky Flats Environmental
Technology Site (Stange, et al. (2001), ``Beryllium sensitization and
chronic beryllium disease at a former nuclear weapons facility''
(Document ID 1403)).\15\ Eighty-one cases of CBD and an additional 154
cases of beryllium sensitization were identified among workers for whom
job and location (building) histories could be verified (Document ID
1403, p. 408). The prevalence of beryllium sensitization was found to
be highest among beryllium machinists (11.4 percent) and health physics
technicians (11.9 percent) (Document ID 1403, Table III, p. 410). Cases
were also identified among custodial employees (5.64 percent) and other
job titles that were thought to have only minimal potential for
exposure to beryllium (Document ID 1403, pp. 405, 410). AFL-CIO and NJH
have referenced Stange et al.'s (2001) findings as evidence that
construction work at beryllium-using facilities can involve risk from
beryllium exposures (Document ID 2244, p. 3; 0155, p. 3).
---------------------------------------------------------------------------
\15\ In 1991, the Beryllium Health Surveillance Program (BHSP)
was established at the Rocky Flats Nuclear Weapons Facility to offer
BeLPT screening to current and former employees who may have been
exposed to beryllium (Stange et al. (1996), Document ID 0206).
---------------------------------------------------------------------------
Sackett et al. (2004) examined BeLPT results and medical
evaluations of 2,221 workers employed at a nuclear weapons facility
during decontamination and decommissioning (Sackett et al. (2004),
``Beryllium medical surveillance at a former nuclear weapons facility
during cleanup operations'' (Document ID 1811, Att. 13)). Workers'
airborne beryllium exposure was not estimated in the study, and
potential for skin contact with beryllium was not explicitly discussed.
The authors found
[[Page 53931]]
19 cases of beryllium sensitization. Of eight sensitized individuals
who underwent full clinical evaluation for CBD, two were diagnosed with
CBD. Seven beryllium-sensitized workers were hired after the start of
decontamination and decommissioning (Document ID 1811, Att. 13, p.
953). AFL-CIO, quoting a previously submitted comment from the Colorado
School of Public Health (Document ID 2136), stated that Sackett et
al.'s study showed ``that beryllium can cause harm to workers during
this process [of decontamination and decommissioning], even when
workers have been provided, certified, and trained in the appropriate
use of PPE'' (Document ID 2244, p. 9). NJH similarly commented that
this study demonstrates the potential for exposure during cleanup of
beryllium-using sites (Document ID 2211, p. 7).
Welch et al. (2004) presented BeLPT surveillance results among
construction trades workers who had formerly been employed at three DOE
sites where beryllium was present (Hanford Nuclear Reservation in
Richland, Washington; the Oak Ridge Reservation in Oak Ridge,
Tennessee; and the Savannah River Site in Aiken, South Carolina) (Welch
et al. (2004), ``Screening for Beryllium Disease Among Construction
Trade Workers at Department of Energy Nuclear Sites'' (Document ID
1815, Attachment 58, p. 207)). Beryllium at these sites had been
present in fuel fabrication and R&D (Hanford); from nuclear waste
disposal, an antimony-beryllium source rod reactor failure, copper-
beryllium tools, chipping of beryllium in glove-box operations, and
possible beryllium machining (Savannah River Site); and from assembly
and disassembly of nuclear weapons and machining, grinding, and forming
of beryllium compounds and alloys (Oak Ridge) (Document ID 1815,
Attachment 58, p. 208). The authors examined sensitization among 3842
former workers who completed at least one BeLPT from the screening
program's beginning (1996) through September 30, 2002 (Document ID
1815, Attachment 58, pp. 208, 212; Welch et al (2013), Document ID
2238, Attachment 8, p. 1). Workers' airborne beryllium exposure was not
estimated in the study, nor were surface concentrations of beryllium
reported. Welch et al. noted that their study population was ``quite
different'' from previous studies involving concurrently exposed
workers in production facilities, ``in that the participants are
construction workers, and had to have left construction employment at
the site to be eligible. Many had left employment years before the
examination took place'' (Document ID 1815, Attachment 58, p. 214).
Moreover, approximately 70 percent of the study population (2,759/
3,842) had been hired more than 20 years prior to BeLPT testing
(Document ID 1815, Attachment 58, Table VI, p. 214), placing the hire
date for the majority of the study population prior to September 30,
1982.
The authors found 54 cases of beryllium sensitization (defined as
two abnormal BeLPT results) among the 3,842 tested workers (1.4
percent), and further reported finding a 2.2 percent prevalence of
possible sensitization (85 former workers with one or more abnormal
BeLPT results). Possible cases occurred among machinists (5.6 percent;
6/107), plumbers/steam fitters (4.1 percent; 5/123), millwrights (3.2
percent; 7/214), sheetmetal workers (2.5 percent; 5/199), carpenters
(2.0 percent; 7/250), pipefitters (2.0 percent; 14/690), electricians
(1.8 percent; 13/707), and laborers (1.2 percent; 7/603) (Document ID
1815, Attachment 58, Table IV, p. 213). Five workers were diagnosed
with CBD (Document ID 1815, Attachment 58, p. 215).
Welch et al. (2013) published another study of former construction
trades workers who had worked at DOE sites, using BeLPT results from
DOE's updated screening program, which had been expanded to 27 sites
after the publication of Welch et al (2004) (Welch et al. (2013),
``Beryllium Disease Among Construction Trade Workers at Department of
Energy Nuclear Sites'' (Document ID 2238, Attachment 8)). Workers'
airborne beryllium exposure was not estimated in the study, nor were
surface concentrations of beryllium reported. Welch et al. (2013) did
not present information on all study participants' dates of hire or
employment, but did report that the mean year of first employment at a
DOE site was 1,973 for workers diagnosed with CBD and 1,976 for
sensitized workers who were not diagnosed with CBD (Document ID 2238,
Attachment 8, Table II, p. 7).
Among 13,810 former construction workers tested as part of the
screening program between 1998 and 2010, Welch et al. (2013) identified
189 cases of beryllium sensitization and reported that 28 (0.2 percent)
were diagnosed with CBD (of 86 who were medically evaluated) (p. 5).
They noted that prevalence of sensitization greater than 2 percent
occurred among sheet metal workers (2.4 percent; 19/786), roofers (2.8
percent; 3/108) and boilermakers (2.9 percent: 8/274) (Document ID
2238, Attachment 8, Table IV, p. 8; p. 10).
The authors reported that the 2013 results showed patterns similar
to those of the 2004 study in that both the overall rate of beryllium
sensitization (1.4 percent) and the prevalence of CBD found among
beryllium-sensitized workers were ``lower than those reported in a
number of other populations, such as currently exposed workers in
production facilities.'' They attributed these findings to the
participants' indirect exposure to beryllium via skin contact with
beryllium-contaminated surfaces and with inhalation of re-entrained
beryllium dust, rather than from working directly with beryllium in
operations such as machining (Document ID 2238, Attachment 8, p. 6).
The authors emphasized that their surveillance of construction workers
had helped DOE personnel to identity and mitigate those exposures which
still exist at the facility and helped focus attention on the risk for
beryllium exposure among current demolition workers at these facilities
(Document ID 2238, Attachment 8, p. 10). NJH and AFL-CIO pointed to the
Welch et al.'s findings in both the 2004 and 2013 studies as evidence
that construction trades workers doing contract work in beryllium-using
industries face a risk from beryllium exposure (Document ID 2211, p. 7;
2244, p. 9).
OSHA has reviewed each of the studies submitted by the commenters.
Each of the studies support OSHA's determination that beryllium
exposure presents a serious risk of material health impairment to
workers. However, OSHA finds that the studies are of limited value in
determining current exposures faced by those construction and shipyards
workers covered by the beryllium standards for two reasons. First, as
acknowledged by NJH (Document ID 2238, p. 1), the studies do not
contain relevant exposure data. Such data would be needed to
characterize the airborne and/or dermal exposures of workers in those
studies, to evaluate with reasonable accuracy the processes and
operations where significant beryllium exposures may have led to cases
of beryllium sensitization and CBD, and to determine whether those same
processes and operations would be likely to contribute to workers' risk
in current-day facilities. This was the same reason that OSHA
determined in the 2017 final rule that it could not develop exposure
profiles for some of these same operations (see 82 FR at 2639).
Perhaps more importantly, OSHA doubts that these studies reflect
current conditions in general industry facilities. The studies appear
to primarily involve
[[Page 53932]]
populations with many members exposed before the 1990s, when the use of
the BeLPT in screening for CBD led both DOE and some private firms to
adopt and increasingly strengthen beryllium exposure control
strategies.\16\ The studies evaluating former construction trades
workers largely involve populations who were first exposed before DOE
and private industry sites--such as those studied by Kreiss et al
(1993) and Virji et al. (2019)--began to strengthen exposure controls
in the mid-1990s, and long before OSHA issued comprehensive beryllium
standards in 2017. As noted above, approximately 70 percent of the
study population (2,759/3,842) had been hired more than 20 years prior
to BeLPT testing (Document ID 2238, Attachment 8, Table VI, p. 214),
placing the hire date for the majority of the study population prior to
September 30, 1982.
---------------------------------------------------------------------------
\16\ In DOE and in private industry, general awareness of
beryllium-related risks at airborne levels lower than the previous
OSHA PEL of 2 ug/m\3\ was low until the early 1990s, when use of the
BeLPT by researchers such as Kreiss et al. brought greater
understanding of the need to better control beryllium exposures. By
1993, beryllium had been identified as a significant source of
occupational disease risk within the DOE complex, and by 1996, DOE
had established an interim Chronic Beryllium Disease Prevention
Program rule, which was finalized in 1999 (Document ID 2238,
Attachment 8, pp. 1-2).
---------------------------------------------------------------------------
Importantly, these studies do not account for the effect of OSHA's
beryllium standard for general industry (29 CFR 1910.1024), which
addresses the primary sources of exposure in these studies--
insufficiently controlled beryllium-releasing processes and settled or
re-entrained dust containing beryllium--and is designed to drastically
reduce beryllium exposures in general industry facilities. To comply
with its obligations under the general industry standard, the host
employer at a general industry site today will have implemented
beryllium work areas or regulated areas around processes that create
beryllium exposures of concern (29 CFR 1910.1024(e)), will have
instituted engineering controls and work practices to control exposures
(29 CFR 1910.1024(f)), and will have implemented housekeeping measures
that will prevent the accumulation or re-entrainment of settled dust
containing beryllium (29 CFR 1910.1024(j)). These measures, combined
with the general industry employer's duty under the hazard
communication standard to inform any construction employer entering the
area of the potential for hazardous beryllium exposure and the
precautionary measures needed to protect employees (29 CFR
1910.1024(m); 29 CFR 1910.1200(e)(2)), are designed to ensure that
construction employees entering the general industry site are not
exposed to active beryllium-releasing processes or accumulated
beryllium in the work area and are able to avoid any remaining risk of
beryllium exposure.
In sum, the most that these studies can tell us is that in the
past, construction employees at general industry sites with beryllium
exposure from poorly controlled processes became sensitized to
beryllium and, in some cases, developed CBD. This information supports
OSHA's determination that beryllium exposure presents a serious health
risk. It does not, however, demonstrate that construction employees who
enter a general industry site today--with the engineering and work
practice controls, housekeeping, and other requirements of the
beryllium general industry standard--will be exposed to and require
protection from dermal contact with beryllium in more than trace
amounts.
With respect to potential exposure from the dressing or sharpening
of beryllium-containing non-sparking tools, NJH (Document ID 2211, p.
7; 2238, p. 2) referred OSHA to two studies by Mikulski et al. that
found exposure to beryllium through machining and grinding of copper-
beryllium (Cu-Be) 2 percent alloy tools, even when done only
occasionally, was associated with increased risks of beryllium
sensitization (``Risk of Beryllium Sensitization in a Low-Exposed
Former Nuclear Weapons Cohort from the Cold War Era'' (2011a) (Document
ID 2238, Attachment 4); ``Prevalence of Beryllium Sensitization Among
Department of Defense Conventional Munitions Workers at Low Risk for
Exposure. Journal of Occupational and Environmental Medicine'' (2011b)
(Document ID 2238, Attachment 5)). These studies reported the results
of a DOE program that screened former workers at a nuclear weapons
assembly site for beryllium sensitization as part of that agency's
Former Worker Program established in 1996. The site in question
operated beginning in 1941 as a Load, Assembly and Pack (LAP) facility
for the Department of Defense (DOD) conventional munitions operations;
from 1949 to mid-1975 it was shared with DOE for production of nuclear
weapons; and in 1975 DOE activities ceased at this site (Document ID
2238, Attachment 4, p. 195).
Although OSHA acknowledges the findings of the Mikulski studies,
which involved exposures at a DOD facility prior to 1975, comments and
hearing testimony received in response to the NPRM suggest that the
dressing or sharpening of non-sparking tools is not an exposure source
of concern for workers in the construction and shipyards sectors
covered by the beryllium standards. At the public hearing, NABTU--which
had earlier in the rulemaking process raised concerns about exposure
from such tools (Document ID 2202, p. 19)--indicated that they had
attempted but were not able to find specific examples of construction
trades workers dressing or sharpening non-sparking tools (Document ID
2222, Tr. 88). Likewise, when asked about the prevalence of these tools
in construction, the representative from USW stated that he had
personally used beryllium-containing non-sparking tools on a few
occasions many years ago, but that he could only speculate as to how
often they are used today. He further testified that he did not know
why one would use these tools over other non-sparking tools that do not
contain beryllium (Document ID 2222, Tr. 32-34).
Other commenters raised doubts about the extent of exposure from
non-sparking tools. The SCA identified the use of non-sparking tools in
shipyards, but noted that these are ``infrequently used, and
intermittent'' (Document ID 2204, p. 2). SCA did not identify how often
or by whom these tools are dressed or sharpened, which, as the
representative from USW recognized (Document ID 2222, Tr. 32), is the
process during which beryllium exposure might occur. Materion, while
noting that they do not serve the non-sparking tool market, stated that
the dressing of non-sparking tools could result in exposure to
beryllium above the action level but also noted that the other primary
producer of copper beryllium--which does serve that market--has a
program through which its customers can return their non-sparking tools
for sharpening at no cost (Document ID 2237, p. 3). That exposure from
this source is unlikely is supported by exposure data in the record,
submitted by the Navy and private shipbuilding establishments, showing
that the primary exposure source in shipyards is abrasive blasting with
some additional exposures during welding operations (Document ID 0144,
p. 3-4; 0145; 1166).\17\
---------------------------------------------------------------------------
\17\ Some commenters also stated that potential sources of
beryllium exposure in these sectors include work at landfills that
receive beryllium-containing materials (Document ID 2202, Attachment
1, p. 2); work on high-tech aircraft and submarines (Document ID
2208, p. 6); and work as machinists and surveyors (Document ID 2210,
p. 4). OSHA notes that many of these categories would appear to be
jobs that are not covered by the construction or shipyards
standards, either because they are likely covered by the general
industry standard or because they relate to ``uniquely military
equipment, systems, and operations'' (see Executive Order 12196; 29
CFR 1960.2(i)). Regardless, as with the other operations identified,
the record lacks data from which OSHA could evaluate exposures in
these operations.
---------------------------------------------------------------------------
[[Page 53933]]
OSHA continues to recognize the possibility that some construction
and shipyard workers could be exposed to beryllium through activities
other than abrasive blasting and welding. However, the record continues
to lack key data about these potential exposures, including how often
the exposures occur, who is exposed, the duration of the exposures, the
type and extent of exposure, or any controls that may be in place to
address them. Without this data, OSHA lacks sufficient information to
characterize the nature, locations, or extent of beryllium exposure in
application groups other than abrasive blasting with beryllium-
containing slags and certain welding operations. Importantly, with
respect to commenters' assertion that these additional exposures
include a risk solely from dermal contact with more than trace
beryllium, either from construction work at general industry sites that
handle beryllium or through the use of non-sparking tools, OSHA finds
that the record does not demonstrate that this continues to be a
concern, for the reasons already discussed.
Therefore, the agency finds that it is appropriate at this time to
tailor certain aspects of the final standards--such as the written
exposure control plan requirements--to those operations for which the
agency has sufficient data to demonstrate worker exposure to beryllium
at levels of concern, to properly characterize and evaluate the
exposures, and to develop appropriate measures to address them. By
ensuring that these provisions of the beryllium standards for
construction and shipyards are no more complex or onerous than is
needed to protect workers, OSHA believes the final standards will
improve compliance and thereby more effectively protect these workers.
At the same time, OSHA disagrees with industry commenters who
contend that the protections of the beryllium standards for
construction and shipyards should only apply to abrasive blasters and
welders. OSHA maintains that all beryllium-exposed workers in
construction and shipyards should be afforded protections from
beryllium exposure (see 84 FR at 51377) and, to the extent that
exposures from sources other than abrasive blasting and welding do
occur, the beryllium standards for construction and shipyards continue
to provide these protections. Both standards continue to apply to all
occupational exposure to beryllium that meets the requirements of
paragraph (a). OSHA declines to adopt CISC's suggestion that the agency
simply incorporate new requirements into paragraph (f) of the
ventilation standard for construction (29 CFR 1926.57), so as to apply
them only to abrasive blasters, as this would leave unprotected
employees who might be exposed in operations OSHA has not identified or
in the future. This is consistent with OSHA's typical approach to
substance-specific standards, which generally apply broadly to all
occupational exposure to a substance, rather than to particular
operations (see, e.g., 29 CFR 1926.1126(a)(1) (Chromium (IV)); 29 CFR
1926.1127(a) (Cadmium); 29 CFR 1910.1028(a)(1) (Benzene); 29 CFR
1910.1053(a) (Respirable Crystalline Silica)). With respect to CISC's
assertion that construction employers will have to evaluate every task
and material on their worksite to determine whether beryllium is
present in trace amounts (Document ID 2203, p. 16), the agency
emphasizes that this is not the case. Although the beryllium standard
applies to occupational exposure to beryllium in all forms, compounds,
and mixtures in the construction industry, paragraph (a)(3) exempts
from coverage materials containing less than 0.1 percent beryllium by
weight where the employer has objective data demonstrating that
employee exposure to beryllium will remain below the action level of
0.1 [micro]g/m\3\, as an 8-hour time weighted average, under any
foreseeable conditions. As explained below, apart from certain abrasive
blasting media, those materials at the typical construction site that
the agency has identified as containing beryllium in trace amounts
(i.e. rock, soil, concrete, and brick) are not likely to release
airborne beryllium above the action level under foreseeable conditions
and therefore do not typically trigger the requirements of the
standard. Further, for any additional materials containing comparably
low levels of beryllium, an employer may rely on objective data that
employees will not be exposed above the PEL for total airborne dust to
qualify for the exemption under paragraph (a)(3).
OSHA's analysis of its own sampling data demonstrates that
exposures from rock, soil, and concrete are highly unlikely to exceed
the action level in typical circumstances (see Beryllium Air Samples at
Construction Sites: An Analysis of OSHA OIS Sample Results 2012-2018,
Document ID 2235). This data shows that, given the low levels of
beryllium in rock, soil, and concrete, airborne dust concentrations
would have to be extremely high for exposures to even approach the
beryllium action level. The same is true for brick, which may contain
beryllium in trace amounts comparable to these materials.\18\ These
dust concentrations would typically exceed the PEL for total airborne
dust, or particulates not otherwise classified (PNOC), long before the
beryllium action level is reached. In the case of concrete, the level
of airborne dust required to reach the beryllium action level would
also surpass the PEL for crystalline silica many times over. Thus, the
action level would only be reached under extremely dusty conditions--
such as those produced during abrasive blasting operations--that would
also exceed the PELs for PNOC and crystalline silica.
---------------------------------------------------------------------------
\18\ The beryllium content of soil and rock averages less than 2
ppm while the beryllium content of concrete is typically less than 1
ppm (Document ID 2235, pp. 2, 6). Some bricks may contain up to 50
percent fly ash, which in turn may contain beryllium in trace
amounts (see 2017 FEA, Document ID 2014, pp. IV-651 to IV-652).
---------------------------------------------------------------------------
OSHA considers this data sufficient to demonstrate that exposure to
rock, soil, concrete, and brick at the typical construction site will
not result in beryllium exposure above the action level under
foreseeable conditions. As such, when performing tasks at the typical
construction site, exposure to these materials will not trigger the
requirements of the beryllium standard. Outside of these materials and
certain abrasive blasting media, OSHA is not aware of any other
building materials at the typical construction site that contain
beryllium. However, for any material containing comparable levels of
beryllium, an employer may rely on objective data that exposures in its
operations are consistently below the PEL for PNOC to demonstrate that
exposure from these materials would not exceed the beryllium action
level under foreseeable conditions.
The agency notes that if a construction employer has reason to
believe that the materials at its particular worksite contain beryllium
at levels significantly above average or that a particular process
produces abnormally high levels of dust such that beryllium exposure
might foreseeably reach the action level (e.g., where total dust is
likely to exceed the PEL for PNOC), that employer would be required to
comply with the applicable provisions of the beryllium standard. These
circumstances, however, will not
[[Page 53934]]
be typical of the average construction site.
OSHA also disagrees with commenters such as NABTU (Document ID
2240, p. 2) who suggest that the agency has abandoned its prior
position regarding the coverage of the construction and shipyards
standards. While OSHA acknowledged in the 2017 final rule the
``potential for exposure'' outside of abrasive blasting and welding and
determined that any such exposure should be covered by the beryllium
standards for construction and shipyards (a position the agency
maintains), OSHA made no finding in the 2017 final rule that workers in
the construction industry are currently at risk from dermal contact at
general industry sites or from the dressing or sharpening of non-
sparking tools. On the contrary, the agency was clear that it lacked
data to characterize or quantify exposures from additional sources (82
FR at 2639). The agency's finding in this rulemaking that these
particular sources of exposure are likely not a concern in the
construction and shipyards sector is not a change from its previous
position, as the agency took no position on the issue in the 2017 final
rule. Where OSHA did originally include provisions aimed solely at
dermal contact in the construction and shipyards standards that it now
intends to remove, this was due to the agency borrowing provisions from
the general industry standard without appropriately accounting for the
trace exposures in abrasive blasting and welding as they pertain to
dermal contact.\19\ Inclusion of these provisions was not based on a
finding by OSHA that the provisions were necessary to address exposures
beyond abrasive blasting and welding.
---------------------------------------------------------------------------
\19\ As has been noted, the agency did specifically tailor some
provisions to abrasive blasting; for example, deciding not to extend
the beryllium work area requirements of the general industry
standard to construction and shipyards. In that case, commenters
specifically identified the requirement as unworkable when dealing
with materials containing beryllium in trace amounts (see 82 FR at
2661).
---------------------------------------------------------------------------
At the same time, some commenters misconstrue the agency's focus on
the ``primary'' sources of exposure as the agency ignoring the
possibility of different exposures. This is not the case. Rather, OSHA
finds that the standards as revised will maintain protections in all
likely exposure scenarios while more appropriately addressing the
operations from which exposures regularly occur. This approach is
consistent with the agency's position in the 2017 final rule, as
evidenced by the agency's decision at that time to tailor several
provisions of the standards to abrasive blasting operations, as
discussed above.
With respect to the USW's assertion that OSHA must consider
potential future uses of beryllium that do not currently exist
(Document ID 2222, Tr. 18-19), the agency agrees and again emphasizes
that the beryllium standards for both construction and shipyards
continue to apply to all beryllium exposures, present or future, that
meet the requirements of paragraph (a). At the same time, OSHA declines
to fashion the standards around hypothetical exposures which the agency
cannot quantify or evaluate, rather than around those operations for
which it has data. The agency remains free to further revise the
standard in the future if new processes or uses of beryllium warrant
such a change.
The agency also notes that the inability of stakeholders to provide
relevant data on exposures outside of abrasive blasting and welding,
suggests that such exposures, if they occur, are rare. As such,
acknowledging the possibility of these exposures does not alter OSHA's
previous analysis with respect to the economic and technological
feasibility of the beryllium standards for construction and shipyards.
OSHA has no reason to believe that these rare exposures, if they occur,
would mean that compliance with the PEL can no longer be met in most
operations most of the time or that the beryllium standards will now
imperil the existence of the construction and shipyards industries (see
82 FR at 2583).
In summary, after considering the comments received and the record
as a whole, the agency has determined that it is appropriate to tailor
certain ancillary provisions of the beryllium standards for
construction and shipyards to abrasive blasting and welding operations,
the two operations for which it has relevant data. At the same time,
the agency maintains its position that the construction and shipyards
standards should continue to apply to all occupational exposure to
beryllium in these sectors. Based on the record, OSHA has determined
that the standards, as revised, continue to address the known exposures
of concern in the construction and shipyards sectors, as well as
potential exposures outside of abrasive blasting and welding
operations, and will not result in reduced protections for workers in
these industries. This is true with respect to the proposed revisions
to paragraph (f)(1), as well as to other revisions proposed on the
basis that the primary beryllium exposures in construction and
shipyards take place during abrasive blasting and welding operations.
OSHA remains open to revisiting these issues in the future and
continues to welcome data and information on additional operations with
potential exposure to beryllium in the construction and shipyards
sectors.
In addition to the comments regarding exposure to beryllium in
contexts other than abrasive blasting and welding, one commenter
further challenged the agency's preliminary determination that welding
in shipyards is not likely to produce skin exposures of concern.
Specifically, USW stated, ``OSHA acknowledges that welding with
beryllium-copper rods and wire can expose workers to beryllium, but
dismisses the hazards of dermal contact on the grounds that such
contact with materials exceeding 0.1 percent is unlikely. However
beryllium-copper rods typically contain 2 percent beryllium'' (Document
ID 2212, p. 3).
With respect to the limited welding operations in shipyards, OSHA
explained in the NPRM that, although these operations may involve 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. Specifically, 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 (84 FR at 53906). One commenter, USW
(Document ID 2212), took issue with OSHA's preliminary determination
with respect to welding. However, they did not discuss the Cole study,
nor provide additional evidence to contradict OSHA's position with
respect to skin and surface contamination in this operation.
USW pointed to an information sheet on beryllium copper welding
wire and rods published by U.S. Alloy Company that, it claimed, ``warns
users against grinding, cutting, or polishing [a] weld without proper
protection'' (Document ID 2212, p. 3; Attachment A). According to USW,
``welds are often subjected to the operations the manufacturer warned
against, sometimes by workers other than welders, and there is no
indication that OSHA considered them'' (Document ID 2212, p. 3).
However, the information sheet USW provided nowhere mentions a dermal
contact risk from these welding rods. Rather, it states that ``care
should be taken to avoid inhaling the welding fumes,'' including
``purging the area by drawing off any of the fumes with smoke eaters
and having the operators wear a mask'' (Document 2212, Attachment A).
Importantly, the portion to which USW
[[Page 53935]]
refers reads ``[d]ust or fumes generated by machining, grinding,
sawing, blasting, polishing, buffing, brazing, soldering, welding or
thermal cutting of the casting can produce airborne contaminants that
are hazardous'' (Document 2212, Attachment A) (emphasis in the
original). Rather than demonstrating a dermal contact risk from
beryllium copper welding wire and rod, OSHA finds that the lack of any
mention of such a risk in the manufacturer's information sheet supports
OSHA's finding that such exposures are not a concern in this
context.\20\
---------------------------------------------------------------------------
\20\ NJH also commented that coal slag may contain more than
trace amounts, citing a study by the Center to Protect Workers'
Rights (CPWR) that ``found that beryllium was present at a
concentration of 4 parts per million (ppm) in coal slag samples
analyzed prior to blasting, and measured airborne beryllium
concentrations of up to 9.5 [mu]g/m\3\ during abrasive blasting
tasks, far above trace amounts'' (Document ID 2211, p. 7). OSHA
notes that 4 ppm, or 0.0004 percent by weight, is well under the 0.1
percent beryllium by weight that OSHA treats as ``trace'' for the
purposes of these standards (82 FR at 2610).
---------------------------------------------------------------------------
Comments Specific to Paragraph (f)(1)
In addition to these broader comments about the appropriate
application group in the construction and shipyards sectors, OSHA
received a number of additional comments specifically addressing the
written exposure control plan requirements of paragraph (f)(1). Two
stakeholders commented broadly on the importance of written exposure
control plans. The AFL-CIO and NABTU stated that written exposure
control plans are essential to providing employers with a clear plan
for exposure identification and control (Document ID 2210, p. 6;
Document ID 2202, p. 5). NABTU emphasized the importance of the written
plan's description of engineering controls, work practices, and
substitute materials for each task and a description of how employers
will protect workers not engaged directly in beryllium-exposed tasks,
by limiting access to work areas where beryllium-exposed tasks such as
abrasive blasting occur (Document ID 2202, p. 6). Without a written
plan, both groups asserted, employers are unlikely to adequately
control beryllium exposure (Document ID 2210, p. 6; Document ID 2202,
p. 6). NABTU further emphasized that when planning for worker
protection during tasks involving beryllium, employers must account for
the unique toxicity of beryllium by creating a written exposure control
plan specifically addressing beryllium exposures (Document ID 2202, p.
5).
The remainder of this section details the comments received with
respect to each proposed revision in paragraph (f)(1) and provides
OSHA's final determination.
OSHA's proposed revisions to paragraph (f)(1)(i)(A) received no
comment apart from the general concerns discussed above regarding
OSHA's assessment of beryllium exposures outside of abrasive blasting
and welding. Therefore, OSHA is finalizing its proposal to modify
paragraph (f)(1)(i)(A) to refer simply to ``exposure'' rather than
``airborne exposure to or dermal contact with'' by removing the words
``airborne'' and ``or dermal contact with'' as qualifiers for exposure
to beryllium. OSHA notes that these changes are consistent with other
paragraphs where the agency is simplifying the language in a similar
manner (e.g., paragraphs (k)(3)(ii)(A) and (k)(4)(i), Medical
surveillance), and is not intended to alter the meaning of the
provision.
OSHA is also finalizing its proposal to revoke paragraphs
(f)(1)(i)(B) and (C) of both the construction and shipyards standards,
which previously required lists of operations and job titles involving
exposure above the action level and above the TWA PEL or STEL,
respectively. OSHA's proposals to revoke these paragraphs received
little comment apart from the general concerns discussed above
regarding the potential for exposures in contexts other than abrasive
blasting and welding. As discussed there, OSHA has concluded that it is
appropriate to tailor certain aspects of the beryllium standards for
construction and shipyards to the limited number of operations known to
involve beryllium exposure in construction and shipyards. Given the
small number of operations with known beryllium exposure in these
industries, OSHA maintains that 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 it sufficient
to require 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.
With respect to OSHA's proposal 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 used to minimize exposures
to employees outside the containment, no commenter objected to the
addition of this requirement, while NJH supported it (Document ID 2211,
p. 8). As OSHA explained in the NPRM, this requirement will 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. The need for this requirement is reinforced by
comments from USW identifying issues with gaps and leaks from ``make
shift containment'' (Document ID 2124, page 10) and noting that
beryllium can escape from abrasive blasting containments (Document ID
2222, Tr. 27-28). After considering the comments and the record as a
whole, OSHA is finalizing this provision as proposed.
AFL-CIO disagreed with OSHA's proposal to remove paragraphs
(f)(1)(i)(D) and (E) of the standards, which required the employer to
include in the written exposure control plan procedures for minimizing
cross-contamination and migration of beryllium within or to locations
outside the workplace. AFL-CIO characterized these provisions as
``essential to reduce cumulative exposure to beryllium for workers in
high exposure operations and to protect other workers who do not
perform beryllium tasks but would be exposed to beryllium due to the
lack of cross contamination and migration minimization procedures''
(Document ID 2210, p. 6).
AFL-CIO also argued that OSHA's proposed requirement for written
exposure control plans to include procedures used to ensure the
integrity of each containment used to minimize exposures to employees
outside of containments would be insufficient to control the migration
of beryllium (Document ID 2210, p. 6). AFL-CIO stated that ``OSHA is
requiring containments that would create a higher concentration of
beryllium dust inside the enclosure [and] relying on the protection of
PPE,'' while revising paragraph (f) and paragraphs (h)(2) and (3) to no
longer require employers to use specific procedures to ensure that PPE
is safely doffed. According to AFL-CIO, this will increase the
cumulative exposure risk for abrasive blasters and increase the risk of
cross-contamination and migration of beryllium, thereby exposing
workers with no respiratory or dermal protection (Document ID 2210, p.
7).
OSHA disagrees, firstly, with AFL-CIO's contention that the
proposed requirement for written exposure control plans to include
procedures used to ensure the integrity of each containment would lead
to increased beryllium exposures to workers inside
[[Page 53936]]
the enclosure. This final rule does not require the use of
containments, but rather requires that when an employer chooses to use
a containment, it is used in such a way that employees outside of the
containment are not exposed to beryllium at levels above the TWA PEL or
STEL. In other words, this requirement merely ensures that
containments, when used, accomplish their intended function. Workers
inside the containment continue to receive the protections of the
requirements for use of PPE (paragraph (h)(1)) and respiratory
protection (paragraph (g)(1)(ii)-(iii)), as well as the requirements
that PPE not be removed or cleaned in a manner that releases beryllium
into the air (paragraph (h)(2)(ii), (h)(3)(ii)). For this reason, OSHA
finds that adding a requirement that the written control plan include
such procedures will not lead to increased beryllium exposures to
workers inside such containments.
Furthermore, OSHA disagrees with AFL-CIO's position that the
previous requirements to document procedures for minimizing cross-
contamination and migration in the written exposure control plan are
necessary to protect workers in the context of the specific exposures
in construction and shipyards sectors. In the general industry context,
requirements relating to cross-contamination and migration serve to
address concerns about both airborne and dermal exposures (see 82 FR at
2668-69). At the same time, OSHA has explained that it does not intend
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 (84 FR at 53906).
OSHA maintains that the primary exposures in construction and shipyards
are from abrasive blasting with material containing trace amounts of
beryllium and limited welding operations. Moreover, as explained above,
while the agency recognizes the potential for other exposure sources in
these sectors, the record does not demonstrate that potential exposures
involve a risk of dermal contact to beryllium in more than trace
amounts.
In the 2017 final rule, OSHA tailored portions of the written
exposure control plan requirements in construction and shipyards to the
particular exposures in abrasive blasting operations. Specifically, the
agency chose not to include in the construction and shipyards standards
a requirement that employers keep surfaces as free as practicable of
beryllium, as it had done in the general industry standard, finding
that such a requirement would be impracticable in abrasive blasting
operations (82 FR at 2669). At the same time, the agency applied other
provisions, developed for the general industry context, without
appropriately accounting for the trace amounts of beryllium in the
construction and shipyards sectors. In these sectors, where the record
evidence on dermal exposure in modern-day worksites is limited to trace
amounts of beryllium and where the agency otherwise has reason to
believe dermal contact is not an exposure source of concern, OSHA now
finds that it is appropriate to further tailor these provisions to
focus on ensuring that workers not involved in beryllium-related
operations are not exposed to airborne beryllium in excess of the PELs.
Several provisions of both standards work together to protect
workers near abrasive blasting and welding operations from exposures
above the PELs. In the construction standard, the written exposure
control plan must include procedures to restrict access to work areas
where exposures to beryllium could reasonably be expected to exceed the
TWA PEL or STEL (renumbered in this final rule as paragraph
(f)(1)(i)(D)), and the requirement that these procedures are to be
implemented by a competent person (paragraph (e)(2)). In the shipyard
standard, requirements for regulated areas (paragraph (e)) require that
employers designate areas where exposures to beryllium could exceed the
PELs and limit access to authorized employees. OSHA has retained these
requirements in this final rule. Further, the housekeeping requirements
of both standards (paragraph (j)) require cleaning methods that
minimize the likelihood of re-entrainment of beryllium-containing dust
when cleaning up dust produced by abrasive blasting operations.
In addition, as discussed above, OSHA is finalizing its proposal 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. This requirement will further limit airborne
exposures for employees outside of the containment where an employer
uses a containment. Finally, both standards require the employer to
ensure that personal protective clothing and equipment required by the
standard is not removed in a manner that disperses beryllium into the
air (paragraph (h)(2)(ii)), which will serve to limit migration of
beryllium and reduce airborne exposure from re-entrainment.
With respect to the AFL-CIO's assertion that procedures regarding
the integrity of containments are insufficient to protect workers, OSHA
makes two points. First, comments in the record indicate that
containments can be effective in containing dust during abrasive
blasting, if appropriate procedures are used to ensure their integrity.
As noted by the USW and AFL-CIO, there are times that the abrasive
blasting media can compromise the integrity of the containment
(Document ID 2124, pp. 10-11, 13; 1756, Tr. 246-49; 2210, p. 6).
However, under these circumstances OSHA expects that operations would
be suspended to repair the containment. According to the testimony from
USW during the public hearing for the 2017 final rule, this practice
already takes place in some shipyard operations (Document ID 1756, Tr.
262-63). USW further identified the use of negative pressure with
containments as a feasible and effective way to ensure their integrity;
a method that is already used in the context of bridge repair (Document
ID 1756, Tr. 264).
Second, OSHA reiterates that it does not intend for the added
provision on containments alone to protect workers from exposures
exceeding the PEL. Rather, the agency intends this added provision to
complement the written plan's 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) of the
construction standard), the requirement that these procedures are to be
implemented by a competent person (paragraph (e)(2) of the construction
standard) and requirements for regulated areas (paragraph (e) of the
shipyard standard), to ensure that workers not directly involved in
beryllium-related operations would not be exposed to beryllium above
the PELs.
OSHA has determined that these requirements will adequately ensure
that workers in shipyards and construction not directly involved in
beryllium-related work will not be exposed to beryllium in excess of
the TWA PEL or STEL, and is therefore finalizing its proposal to revoke
the requirements that the employer include in the written exposure
control plan procedures for minimizing cross-contamination (former
paragraph (f)(1)(i)(D)) and procedures for minimizing the migration of
beryllium within or to locations outside the
[[Page 53937]]
workplace (former paragraph (f)(1)(i)(E)).
The AFL-CIO also disagreed with OSHA's proposal to remove paragraph
(f)(1)(i)(H), which in the 2017 rule required employers to document
procedures for removing, laundering, storing, cleaning, repairing, and
disposing of beryllium-contaminated PPE, from the written exposure
control plan. The AFL-CIO argued that these procedures protect workers
from further exposing themselves to beryllium when putting on and
removing PPE and prevent cross-contamination and migration of beryllium
to other areas of the worksite (Document ID 2210, p. 6). NJH similarly
argued that procedures should be in the written exposure control plan
to identify and minimize beryllium exposures to workers involved in
cleaning and maintaining PPE, as well as containments. If exposures are
generated in a process, they stated, then PPE to protect the worker is
contaminated and should be handled as required in the 2017 final rule
(Document ID 2211, p. 9).
OSHA disagrees with the AFL-CIO and NJH that all of the 2017 final
rule's requirements for removing, laundering, storing, cleaning,
repairing, and disposing of beryllium-contaminated PPE are necessary in
the construction and shipyards context. As OSHA explains in the summary
and explanation for paragraph (h), Personal Protective Clothing and
Equipment, OSHA has determined that it is appropriate to remove certain
requirements pertaining to laundering, storing, and disposal of PPE
from the construction and shipyard standards. Specifically, OSHA is
removing three provisions from paragraphs (h)(2) and (3): The
requirement to ensure that each employee stores and keeps beryllium-
contaminated PPE separate from street clothing and that storage
facilities prevent cross-contamination as specified in the written
exposure control plan (paragraph (h)(2)(iii)); to ensure that PPE
removed from the workplace for laundering, cleaning, maintenance, or
disposal be placed in closed, impermeable bags or containers labeled in
accordance with the standards' employee information and training
requirements and the Hazard Communication standard (paragraph
(h)(2)(v)); and 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 (paragraph (h)(3)(iii)). OSHA is removing
paragraph (h)(2)(iii) because it applies only to ``beryllium
contaminated'' PPE (i.e., contaminated with beryllium in concentrations
greater than or equal to 0.1 percent by weight), and thus would never
be triggered by the operations to which OSHA is tailoring these
standards and because the sanitation standards applicable to
construction and shipyards provide the necessary protections for the
storage of PPE (see further discussion below in the summary and
explanation for paragraph (i)). OSHA is removing paragraphs (h)(2)(v)
and (h)(3)(iii) because they protect downstream handlers of PPE who (to
OSHA's knowledge) are not engaged in any tasks that could generate
airborne exposures at levels of concern. Accordingly, OSHA has
determined these provisions are unnecessary and should be removed.
In light of OSHA's decision to eliminate several of the
requirements in paragraph (h), OSHA believes that it is unnecessary to
require the employer to document all of the procedures that were
previously included in paragraph (f)(1)(i)(H). However, OSHA finds that
it is appropriate to retain those requirements of paragraph (f)(1) that
pertain to provisions that OSHA has not eliminated. Specifically, the
construction and shipyards standards still require the employer to
ensure that PPE required by the standard is not removed in a manner
that disperses beryllium into the air (paragraph (h)(2)(ii)). Both
standards still require the employer to ensure that all reusable
personal protective clothing and equipment required by this standard is
cleaned, laundered, repaired, and replaced as needed to maintain its
effectiveness (paragraph (h)(3)(i)). And, both standards still require
the employer to ensure that beryllium is not removed from PPE required
by the standard by blowing, shaking or any other means that disperses
beryllium into the air (paragraph (h)(3)(ii)). In addition, OSHA has
decided to revise former paragraph (h)(2)(iv) (renumbered as
(h)(2)(iii)) to require that the employer ensure that no employee with
reasonably expected exposure above the TWA PEL or STEL removes personal
protective clothing or equipment from the worksite unless it is first
cleaned in accordance with paragraph (h)(3) (see the Summary and
Explanation for paragraph (h)).
OSHA's 2017 final rule would have required employers in
construction and shipyards to include information pertaining to these
provisions in their written exposure control plans. For these
provisions, OSHA agrees with the aforementioned commenters that
paragraph (f)(1) should retain the documentation requirements that were
promulgated in the 2017 final rule. Therefore, OSHA is adding a
requirement for employers to include, in their written exposure control
plans, procedures for removing, cleaning, and maintaining personal
protective clothing and equipment in accordance with paragraph (h) of
this standard. Specifically, OSHA is finalizing its proposal to remove
paragraph (f)(1)(i)(H), and is adding a new paragraph (f)(i)(F) to each
standard, instructing employers that their written exposure control
plans must include such procedures.
NABTU also expressed its belief that OSHA must retain the
standards' procedures for minimizing cross-contamination and migration
of beryllium, and urged OSHA to retain paragraph (f)(1)(i)(H) (Document
ID 2240, pp. 5-6). In support, NABTU noted that some workers at a
beryllium producing facility studied by Virji et al. (2019) who were
not directly involved in beryllium-related operations nevertheless
became sensitized to beryllium, including some involved in shutdown
maintenance, and that the study authors found a strong association
between dermal exposure and beryllium sensitization (Document ID 2240,
pp. 5-6). As discussed above in this Summary and Explanation for
paragraph (f)(1), OSHA does not agree that the Virji study indicates
that employees in the construction and shipyards industries are
currently exposed to dermal contact with beryllium in greater-than-
trace concentrations. OSHA has determined that it is appropriate to
tailor these standards to abrasive blasting and welding operations, and
preventing cross-contamination and migration of beryllium-containing
dust in such operations, where the dust contains only trace amounts of
beryllium, is only necessary to prevent beryllium-containing dust from
being re-entrained and creating an additional inhalation risk to
workers who already have airborne exposure to beryllium at levels of
concern (e.g., workers in and around beryllium-releasing operations,
rather than workers in distant areas of the worksite or downstream from
beryllium-releasing operations).
OSHA received one comment on its proposal to revise paragraph
(f)(1)(ii)(B) to refer simply to ``exposure to'' rather than ``airborne
exposure to or dermal contact with'' beryllium (84 FR at 53911),
consistent with other paragraphs in which OSHA proposed to simplify the
language in a similar manner (e.g., paragraph (f)(1)(i)(A), Written
exposure control plan;
[[Page 53938]]
paragraphs (k)(3)(ii)(A) and (k)(4)(i), Medical surveillance). As
revised, the paragraph requires the employer to review and evaluate the
effectiveness of each written exposure control plan and update it, as
necessary, when notified an employee shows signs or symptoms associated
with exposure to beryllium. NJH agreed that the proposed change would
simplify the reading of the standard (Document ID 2211, p. 9). Having
received no comments opposing this change, OSHA is finalizing this
provision as proposed.
NJH also suggested that if OSHA makes this change, the agency
should also provide a definition of the term ``exposure'' (Document ID
2211, p. 9). OSHA disagrees. The term ``exposure'' and closely related
terms such as ``exposed'' appear in nearly every paragraph of the
standard, referring variously to airborne exposure, dermal exposure, or
both. OSHA has carefully written the regulatory text and the
accompanying summary and explanation to clearly indicate which meaning
of exposure is intended in each instance, typically by including a
qualifier such as ``airborne'' or ``dermal'' when a specific type of
exposure is involved. Because the intended meaning of the term varies
somewhat from instance to instance, the agency finds that adding a
definition of ``exposure'' to the standard may lead to confusion and
misunderstanding regarding many provisions of the standard, and
maintains that explaining the agency's meaning in each instance of the
term is appropriate. With respect to paragraph (f)(1)(ii)(B), by
including no qualifier for the term exposure, OSHA ensures that the
provision will be triggered whenever an employee shows signs or
symptoms associated with any type of exposure to beryllium.
Paragraph (f)(2) Engineering and Work Practice Controls
Paragraph (f)(2) of this final rule requires employers to use
engineering and work practice controls to reduce and maintain employee
airborne exposure to beryllium to or below the TWA PEL and STEL, unless
they can demonstrate that such controls are not feasible. If an
employer demonstrates that it is not feasible to reduce airborne
exposure to or below the PELs through 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.
Paragraph (f)(2) of the 2017 construction and shipyards standards
also required the implementation of engineering and work practice
controls to limit employee airborne exposure to beryllium. However, in
addition to the requirement to implement controls where exposures
exceed the TWA PEL or STEL, the 2017 standards required employers to
implement at least one engineering or work practice control whenever
exposures exceeded the action level. Specifically, paragraph (f)(2)(i)
of the 2017 standards required that where exposures are, or can
reasonably be expected to be, at or above the action level, employers
were to implement at least one of the following control measures 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)
exempted an employer from this requirement if 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 seven days apart, for
each affected operation. Additionally, if after implementing at least
one of the controls required by paragraph (f)(2)(i), airborne exposures
still exceeded the PEL or STEL, paragraph (f)(2)(iii) required the
employer to implement additional engineering and work practice controls
to reduce exposure below these limits. If the employer demonstrated
that it is not feasible to reduce exposures below the TWA PEL and STEL
through engineering and work practice controls, paragraph (f)(2)(iv)
required the employer to implement controls to reduce exposure to the
lowest feasible level and supplement the controls through the use of
respirator protection in accordance with paragraph (g) of the standard.
In the 2019 NPRM, OSHA proposed two changes to paragraph (f)(2) of
the construction and shipyards standards. First, OSHA proposed to
remove the requirement that employers implement engineering and work
practice controls at the action level and instead to require such
controls only for operations where exposures exceed, or can reasonably
be expected to exceed, the PEL or STEL. Second, OSHA proposed to
combine the remaining provisions of paragraphs (f)(2)(i) through (iv)
into a single paragraph (f)(2).
The requirement to implement controls at or above the action level
in the 2017 construction and shipyard standards was derived from the
general industry standard, which requires that employers implement at
least one type of engineering control for each operation in a beryllium
work area that releases airborne beryllium, unless the employer can
demonstrate that airborne exposure is below the action level or that
the controls are infeasible. In the 2017 final rule, OSHA found that
the action level was a ``reasonable and administratively convenient
benchmark'' when attempting to address significant risk below the PELs
while not unnecessarily burdening employers where controls would
provide little or no benefit (82 FR at 2674). At the same time, the
agency recognized that OSHA health standards usually require
engineering controls only where exposures exceed the PELs (82 FR at
2673).
In this rulemaking, OSHA has reconsidered this approach to
engineering and work practice controls in the construction and
shipyards contexts. Because exposure to beryllium in construction and
shipyards is almost exclusively limited to abrasive blasting and
welding, OSHA preliminarily determined in the 2019 NPRM that requiring
engineering controls where exposures are between the action level and
the PEL is not reasonably appropriate for these industries. OSHA
reasoned that the technological feasibility analysis for the 2017 final
rule showed abrasive blasting with mineral grit typically generates
airborne beryllium exceeding the PEL even after implementing
engineering controls, thus triggering requirements for respirator use
for employees where exposures remain above the PEL (82 FR at 2584).
Furthermore, welders in shipyards are already required to use local
exhaust ventilation as well as air-line respirators (84 FR at 53910-
11). Thus, in the context of abrasive blasting and welding, the
previous requirement to implement one engineering control where
exposure are between the action level and the PEL will not result in
any additional protection to workers. Accordingly, OSHA proposed to
require engineering and work practice controls in construction and
shipyards only where exposures exceed the TWA PEL or STEL. As
acknowledged in the 2017 final rule, this approach is consistent with
OSHA's typical approach to health standards (84 FR at 53910).
OSHA received several comments on this proposed change. NABTU
stated
[[Page 53939]]
generally that OSHA should retain the 2017 standards' protections
against airborne exposures in paragraph (f)(2) (Document ID 2240, p. 6)
and NJH commented that they ``agree with OSHA that it is important to
retain the requirement to implement engineering and work practice
controls to achieve compliance with the PEL and STEL'' (Document ID
2211, p. 9). AFL-CIO specifically urged OSHA to retain the requirement
to require engineering and work practice controls at the action level,
arguing that the construction standard should require the same level of
protection as the general industry standard to avoid creating a ``two-
tiered protection system'' (Document ID 2210, p. 7). They argued that
not requiring engineering controls at the action level ``places any
potentially exposed workers between the action level and the PEL at
risk . . . by not requiring the hierarchy of controls for these
workers'' \21\ (Document ID 2210, p. 7). In post-hearing comments, they
further argued that ``[t]he hierarchy of controls is the most effective
way to reduce exposures by controlling releases at the source, rather
than near the worker,'' as the 2017 final rule required wherever
beryllium exposures meet or exceed the action level (Document ID 2244,
p. 15).
---------------------------------------------------------------------------
\21\ The ``hierarchy of controls'' refers to the policy of
requiring employers to install and implement all feasible
engineering and work practice controls before relying on respirator
use to protect employees (see 82 FR at 2476).
---------------------------------------------------------------------------
AFL-CIO additionally cited USW's comments on the 2015 beryllium
NPRM for the proposition that engineering and work practice controls
should be required ``at the earliest, yet feasible time'' (Document ID
2244, p. 15). In the cited comments, USW had argued for requiring
engineering or work practice controls for any operation generating
airborne beryllium particulate, as USW and Materion had jointly
recommended for general industry, noting that such a requirement ``is
entirely feasible, and would reduce a risk OSHA has shown to be
significant'' (Document ID 1681, p. 11).
OSHA disagrees with AFL-CIO's assertion that triggering controls on
the PELs will reduce protection for workers in the construction and
shipyards industries. As explained in the 2019 NPRM, OSHA's
technological feasibility analysis concluded that workers performing
abrasive blasting with mineral grit would typically experience
exposures in excess of the TWA PEL even after implementing engineering
controls (84 FR at 53910; 82 FR at 2584). Therefore, in the case of
abrasive blasting, the requirement to implement at least one
engineering or work practice control where exposure meets or exceeds
the action level would achieve no further protections than the proposed
requirement to implement engineering and work practice controls only
when exposure exceeds the PEL. Similarly, in the case of welding, the
welding standard for shipyards already requires the use of local
exhaust ventilation and air line respirators when welding with
beryllium-containing base or filler metals (29 CFR 1915.51(d)(2)(iv)).
Therefore, the previous requirement would likewise not provide any
further protections for employees exposed to beryllium through welding;
work practice controls are already being used regardless of level of
exposure.
As explained above in the Summary and Explanation for paragraph
(f)(1), OSHA has determined, based on the record, that beryllium
exposures in construction and shipyards are limited almost exclusively
to abrasive blasting and a limited number of welding operations in
shipyards, and that it is appropriate to tailor certain provisions of
the beryllium standards to these operations. Because in these
operations the requirement to implement engineering and work practice
controls where exposures are between the action level and PEL would
provide no additional protection to workers, OSHA has determined it is
appropriate to remove this requirement from the construction and
shipyards standards.
At the same time, OSHA agrees with AFL-CIO and NJH that reliance on
the hierarchy of controls remains important for protecting employees in
the construction and shipyards sector. That is why the agency has
retained a specific requirement in paragraph (f)(2) for construction
and shipyard employers to implement engineering and work practice
controls where feasible to achieve compliance with the PEL and STEL, as
OSHA has required in other health standards. Where it is not feasible
to reduce exposures to or below the PELs, paragraph (f)(2) continues to
require employers 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 standard. This approach is
consistent with OSHA's application of the hierarchy of controls to all
other standards applicable to 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 the 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 29 CFR 1926.55.
After reviewing the comments received and the record as a whole,
OSHA is finalizing its proposal to revise paragraph (f)(2) to remove
the requirement that employers implement engineering and work practice
controls wherever exposures are between the action level and PEL. OSHA
received no comments on its additional proposal to combine the
remaining provisions of paragraphs (f)(2)(i) through (iv) into a single
paragraph (f)(2) and is therefore finalizing paragraph (f)(2) as
proposed.
Paragraph (g) Respiratory Protection
Paragraph (g) of this final rule requires the provision and use of
respiratory protection under several conditions to protect against
exposure to beryllium. Paragraph (g)(1) requires employers to provide
respiratory protection at no cost to employees and to ensure that
employees utilize such protection in the following 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)); and (iv) 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)(iv)).
This final rule includes one change from paragraph (g)(1) as
promulgated in the 2017 final rule. In the NPRM, OSHA proposed removing
previous paragraph (g)(1)(iv), which required the use of respiratory
protection during emergencies, from both the construction and shipyards
standards.\22\ As explained previously in this preamble in the summary
and explanation for paragraph (b), OSHA also proposed removing the
definition of ``emergency''--defined as ``any uncontrolled release of
airborne
[[Page 53940]]
beryllium''--from both standards. OSHA reasoned that any uncontrolled
release of airborne beryllium in these industries, such as from the
failure of blasting control equipment or a spill of abrasive blasting
media, would only occur during the performance of routine tasks--i.e.,
abrasive blasting and welding--that are already associated with the
airborne release of beryllium (84 FR at 53911). 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 pursuant to the other provisions in paragraph
(g)(1).
---------------------------------------------------------------------------
\22\ As a result, OSHA also proposed to renumber paragraph
(g)(1)(v) as (g)(1)(iv) in both standards.
---------------------------------------------------------------------------
Three commenters addressed OSHA's proposal to strike paragraph
(g)(1)(iv). In both their pre-hearing comments and at the public
hearing, the AFL-CIO argued that OSHA ``makes the faulty assumption''
that all types of worksites and emergencies--i.e., fires, floods,
chemical releases--will create the same conditions and warrant the same
type of response to beryllium exposure (Document ID 2210, Comments, p.
5; Tr., Document ID 2222, p. 119). They further commented that although
workers with the highest beryllium exposures (i.e., abrasive blasters)
may use full protective equipment, other workers that do not typically
wear such equipment might be exposed in the case of an emergency or
even during normal working conditions (Document ID 2210, Comments, p.
5). Finally, they argued that it is important to tailor emergency
procedures to the specific type of work environment (Document ID 2210,
Comments, p. 5).
North America's Building Trade Unions (NABTU) likewise commented
that breaches in abrasive blasting containments could expose workers to
beryllium who are not otherwise typically exposed (Tr., Document ID
2222, pp. 86, 91-92; Document ID 2240, pp. 7-8). NABTU conceded that,
with respect to abrasive blasters and welders, the only type of
emergency it could envision was a breach in the abrasive blasting
containment (Tr., Document ID 2222, pp. 102-03). However, in their
post-hearing brief, NABTU argued that OSHA's proposal ignores workers
who perform shut-down maintenance, decontamination, and clean-up work
in beryllium processing facilities (Document ID 2240, pp. 7-8). The
union cited records from a primary beryllium facility indicating that
the facility had experienced leaks, spills, and evacuations due to
events such as fires, which could result in the unexpected release of
beryllium. NABTU argued that the removal of emergency provisions in the
construction standard would result in different protective measures
being applied for general industry and construction employees in these
facilities. Finally, NABTU urged the importance of including exposures
from emergencies in medical and work histories ``to ensure that
pertinent information about potential exposures is not overlooked.''
NJH agreed with OSHA that abrasive blasting and welding operations
may not result in emergencies (Document ID 2211, p. 6). However, NJH
further stated that, because the uncontrolled release of beryllium can
occur at any time during operations such as abrasive blasting, ``all
workers should be put in respirators and they should be cleaned and
maintained as detailed in the beryllium standard for general industry''
(Document ID 2211, p. 9). NJH also commented that, although they agree
the term ``emergency'' can be struck from the standards, any exposure
above the PEL should trigger medical surveillance that was previously
provided after an emergency--that is, without regard to the requirement
in paragraph (k)(1)(i)(B) that employees be exposed above the action
level for more than 30 days per year (Document ID 2211, p. 6-7; Tr.,
Document ID 2222, pp. 56-7).
After considering these comments and the record as a whole, OSHA is
finalizing its proposal to eliminate the emergency provision from
paragraph (g). With respect to some commenters' concerns that OSHA is
overlooking workers or operations outside of abrasive blasters and
welders, the agency makes several observations. First, paragraph
(g)(1)(ii) requires employees engaged in maintenance, repair
activities, and non-routine tasks to wear respiratory protection 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. This provision would apply in scenarios such as breached
containments or spills that create a risk of airborne exposure.
Moreover, paragraph (g)(1)(iii) requires respirator use during
operations where feasible engineering and work practice controls are
not sufficient to reduce airborne exposure to or below the TWA PEL or
STEL. As OSHA has previously noted, any employees who are not abrasive
blasters or welders but who are in the vicinity of such operations--
such as pot tenders or cleanup workers--are already required to wear
respiratory protection because of their proximity to operations known
to create airborne beryllium exposures above the TWA PEL or STEL (see
84 FR at 53920).\23\
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\23\ In the 2017 Final Rule, OSHA found that pot tender and
cleanup work are usually remote from the abrasive blasting operation
or occur prior to or after the operation is complete (82 FR at 2686-
87). As such, OSHA notes that only a subset of these workers (those
performing their tasks during and adjacent to the abrasive blasting
operation) would potentially be exposed during an event such as a
containment rupture.
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Second, as with other areas of the proposal, the commenters suggest
that OSHA is ignoring construction and shipyards workers in operations
outside of abrasive blasting and welding who may be exposed to
beryllium. The commenters primarily point to workers who perform
construction work at general industry sites that process beryllium and
workers who dress non-sparking tools (see, e.g., Document ID 2210,
Comments, pp. 4-5; 2240, pp. 7-8). As explained previously in this
preamble, OSHA repeatedly requested information and data on application
groups outside of abrasive blasting and welding, but no commenters have
provided data sufficient for OSHA to draw any conclusions about
exposures in these contexts. For the same reason, OSHA lacks any
information on potential exposures from ``unexpected releases of a
chemical, fires, [or] floods'' in these contexts (see AFL-CIO, Document
ID 2210, Comments, p. 5). For the reasons already stated, OSHA had
determined that, given this lack of data, it is appropriate to tailor
the construction and shipyards beryllium standards to those operations
for which the agency has sufficient data to demonstrate worker exposure
to beryllium at levels of concern, to properly characterize and
evaluate the exposures, and to develop appropriate measures to address
them. Moreover, as discussed previously, OSHA expects that beryllium
exposures during processes outside of abrasive blasting and welding, if
they occur, are rare. Given the rarity of these exposures during normal
processes, the agency expects that emergency exposures in these
contexts would be exceedingly rare, to the point of not being
reasonably foreseeable. For a full discussion of OSHA's reasoning on
these points, see the summary and explanation of paragraph (f)(1).
In the operations for which OSHA does have sufficient data (i.e.,
abrasive blasting and welding operations), the agency has determined
that it is unnecessary to trigger respiratory protection requirements
on the occurrence of an emergency. As OSHA noted in the NPRM, and as at
least one commenter agreed (Document ID 2211,
[[Page 53941]]
p. 6), any uncontrolled release of beryllium in these operations will
not create exposures that differ from the normal conditions of work and
workers should already be protected by the other provisions of
paragraph (g). Accordingly, OSHA is finalizing its proposal to remove
paragraph (g)(1)(iv) from the beryllium standards for construction and
shipyards.\24\
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\24\ As to NJH's suggestion that, in light of the removal of
emergency triggers in the standards, OSHA should amend paragraph (k)
to require medical surveillance for any exposure above the action
level or PEL, rather than for those exposed over the action level
for 30 days, OSHA addresses this in the summary and explanation of
paragraph (k). Likewise, with respect to NABTU's comment that
exposures during emergencies should be included in employees'
medical and work histories, OSHA addresses this comment in the
summary and explanation for paragraph (k)(4). Finally, NJH's comment
that all respirators should be cleaned as required in general
industry is addressed in the summary and explanation of paragraphs
(h).
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Paragraph (h) Personal Protective Clothing and Equipment
Paragraph (h) of the beryllium standards for the construction and
shipyards industries (29 CFR 1926.1124(h) and 1915.1024(h),
respectively) provides requirements relating to personal protective
clothing and equipment (PPE). Paragraph (h)(1) requires employers to
provide and ensure the use of PPE 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) where airborne exposure
exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL.
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), and the employer must list in the written exposure control
plan the PPE that is required under paragraph (h)(1) (see paragraph
(f)(1)(i)(C)). Paragraph (h)(2) governs the removal of PPE,\25\ and
requires employers to ensure that each employee removes PPE required by
this standard at the end of the work shift or at the completion of all
tasks involving beryllium, whichever comes first, and that PPE is not
removed in a manner that disperses beryllium into the air.
Additionally, under the PPE cleaning and replacement provisions in
paragraph (h)(3), employers must ensure that all reusable PPE required
by the standard is cleaned, laundered, repaired, and replaced as needed
to maintain its effectiveness, and that beryllium is not removed from
PPE by blowing, shaking or any other means that disperses beryllium
into the air.
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\25\ Paragraph (h)(2) of the construction and shipyards
beryllium standards was titled ``Removal and storage.'' As explained
below, OSHA is removing the provisions in paragraph (h)(2) that
pertain to the storage of PPE. Accordingly, OSHA has revised the
title of paragraph (h)(2) to read ``Removal of PPE.''
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This rule finalizes the proposed changes to paragraph (h) in the
2019 NPRM, including OSHA's proposal to remove the requirement,
formerly designated paragraph (h)(1)(ii), to provide and ensure the use
of PPE when there is reasonably expected dermal contact with beryllium
(see 84 FR at 53913). As explained in the NPRM, OSHA did not intend for
the standards' provisions aimed at protecting workers from the effects
of dermal contact with beryllium to apply to operations that involve
materials containing only trace amounts of beryllium absent significant
airborne exposures (84 FR at 53912 (citing 83 FR at 19938); see also 84
FR at 53905-06). In the construction and shipyards sectors, the
operations that cause airborne exposure to beryllium that can exceed
the TWA PEL or STEL are either abrasive blasting operations, which
involve materials or generate particulate matter containing less than
0.1 percent beryllium by weight, or welding operations in shipyards,
where the process and materials do not present a dermal contact risk.
OSHA thus proposed to remove the requirement to provide and ensure the
use of PPE when there is reasonably expected dermal contact with
beryllium because it was 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.
OSHA received comments challenging the underlying premise that
abrasive blasting operations and welding operations in shipyards would
not result in dermal contact with beryllium at levels above trace
amounts. Specifically, NJH, citing a study indicating that beryllium
was ``present at a concentration of 4 parts per million (ppm) in coal
slag samples analyzed prior to blasting, and measured airborne
beryllium concentrations of up to 9.5 [mu]g/m3 during abrasive blasting
tasks,'' questioned OSHA's determination that abrasive blasting
operations only contain or produce materials containing trace
concentrations of beryllium (Document ID 2211, p. 7). Additionally, USW
contested OSHA's statement that skin or surface contamination is not
likely to result from welding operations in shipyards, stating that
``beryllium-copper rods typically contain 2 percent beryllium and at
least one manufacturer warns users against grinding, cutting or
polishing the weld without proper protection,'' and alleging that
``welds are often subjected to the operations the manufacturer warned
against, sometimes by workers other than welders'' (Document ID 2212,
p. 3; see also Document ID 2222, Tr. 31 (USW stating that it believes
that welding rods containing up to 2 percent are sometimes used, but
USW does not know how often)). In support, USW pointed to an
information sheet on beryllium copper welding wire and rods published
by U.S. Alloy Company (Document ID 2212, Attachment A).
OSHA responded to these comments in the summary and explanation
section for paragraph (f). In short, NJH's concern is misplaced because
the 4 ppm of beryllium documented in the coal slag samples in the study
that NJH cited, which would amount to 0.0004 percent by weight, is a
trace amount within OSHA's usage of that term (0.1 percent beryllium by
weight or less). So too is USW's concern about skin contamination
during welding operation. As OSHA explained in the NPRM, the agency's
understanding that 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 is based on a study by Cole, 2007 (84 FR at 53906; see Document
ID 0885, p. 685). USW's comment does not discuss this study, nor does
it offer evidence to undermine the conclusions that OSHA has drawn from
it (see above, Summary and Explanation for paragraph (f)(1)). The
information sheet from U.S. Alloy Company that USW included with its
comment makes no mention of a dermal contact risk from the welding rods
used in the operation, and instead warns that action ``should be taken
to avoid inhaling the welding fumes'' (Document 2212, Attachment A).
OSHA finds that the lack of any mention of a risk of dermal contact
with beryllium in the information sheet supports OSHA's determination
that dermal exposures are not a concern in welding operations.
OSHA also received several comments expressing concern that, by
removing from the standards the provisions that are solely aimed at
preventing dermal contact with beryllium (including paragraph
(h)(1)(ii)), OSHA would expose workers to a significant risk of harm,
and would be abandoning its position in the 2017 final rule that all
construction and shipyard industry employees within the scope of the
standards need protection against dermal contact with beryllium
(Document ID 2210, p. 4, 7; 2212, p. 4;
[[Page 53942]]
2239, p. 1; 2240, p. 5; 2244, pp. 8-10; see also Document ID 2222, Tr.
117-18). Relatedly, commenters expressed concern that OSHA's proposed
revisions would not sufficiently protect workers who may be exposed to
dermal contact with dust, fumes, or mists containing beryllium in
greater-than-trace concentrations in operations other than abrasive
blasting and welding, such as maintenance, renovation, repair and
demolition operations at locations where beryllium operations were
performed; maintenance of non-sparking tools; or, in new operations
that construction and shipyards employers may undertake in the future
(Document ID 2202, p. 2; 2208, pp. 6-7; 2210, pp. 4-5, 7; 2211, pp. 1,
7-8, 10; 2212, pp. 2-4; 2213, pp. 3-4; 2239, pp. 1-2; 2240, pp. 3-5;
2242, pp. 2-3; 2244, p. 13; see also Document ID 2222, Tr. 17-19, 32,
47-48, 84-87, 114-15, 131).
OSHA also fully responded to these comments in the Summary and
Explanation for paragraph (f). In short, OSHA has not changed its
position on the employees who require protection from dermal contact
with beryllium in the construction and shipyards sectors, nor has it
changed its position that all employers with operations that fall
within the scope of the standards must comply with their terms. OSHA
has not changed (or proposed to change) the scope of the standards,
which are broadly drawn to cover all occupational exposure to beryllium
in all forms, compounds, and mixtures in construction, except those
articles and materials specifically exempted. The standards continue to
require employers to apply provisions related to dermal contact,
through the provision of PPE and other measures, when airborne
exposures exceed the TWA PEL or STEL. OSHA's removal of the provisions
solely aimed at preventing dermal contact with beryllium without
airborne exposures furthers the agency's intent to tailor the
construction and shipyards beryllium standards to the specific
operations on which it has data documenting significant exposures of
concern (i.e., abrasive blasting operations and welding operations in
shipyards).
When the agency applied some of the ancillary provisions that it
developed for general industry employers into the construction and
shipyards standards in the 2017 final rule (such as the provisions
triggered on dermal contact with beryllium or beryllium contamination),
OSHA did not fully account for the trace levels of beryllium involved
in construction and shipyards operations. As OSHA clarified in the 2018
general industry DFR (83 FR at 19938-39), OSHA only intended the
provisions triggered by dermal contact with beryllium or beryllium
contamination to apply to dust, fumes, mists, or solutions containing
beryllium in concentrations greater than or equal to 0.1 percent by
weight. The agency did not intend to regulate contact with trace
beryllium absent significant airborne exposures. Given that abrasive
blasting operations do not involve materials containing beryllium in
more than trace concentrations, and the welding operations in shipyards
that create airborne exposures of concerns do not pose a risk of skin
contamination, OSHA recognized in the 2019 NPRM that the provisions in
the construction and shipyards beryllium standards triggered on dermal
contact with beryllium or beryllium contamination (such as paragraph
(h)(i)(ii)) would never be triggered (see, e.g., 84 FR at 53906,
53913).\26\
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\26\ OSHA notes that the term ``beryllium contamination'' is not
defined in the construction and shipyards standards. In the DFR for
general industry, to clarify OSHA's intent that the standard's
requirements aimed at reducing the effect of dermal contact with
beryllium should not apply to areas where there are no processes or
operations involving materials containing at least 0.1% beryllium by
weight, the DFR defined ``beryllium-contaminated or contaminated
with beryllium'' and added those terms to certain provisions in the
standard. The DFR defined those terms as follows: ``Contaminated
with beryllium and beryllium-contaminated mean contaminated with
dust, fumes, mists, or solutions containing beryllium in
concentrations greater than or equal to 0.1 percent by weight'' (83
FR at 19939).
---------------------------------------------------------------------------
The comments received in response to the NPRM have not convinced
OSHA otherwise. Although OSHA continues to recognize the possibility
that some construction and shipyards workers could be exposed to
beryllium through activities other than abrasive blasting and welding,
the record still lacks key data about these potential additional
sources of exposure, including how often they occur, who is exposed,
the duration of the exposures, the type and extent of exposure, or any
controls that may be in place to address them. Specifically, as
discussed below, OSHA finds that the record lacks evidence that
exposures in any construction or shipyards operation would involve a
risk of dermal contact with beryllium in greater-than-trace amounts.
As explained more fully in the Summary and Explanation for
paragraph (f), a number of commenters responded to OSHA's request for
information on any additional application groups (industries,
occupations, processes, etc.) with potential exposure to beryllium in
the construction and shipyards sectors beyond abrasive blasting and
welding operations (see 84 FR at 53922; Document ID 2222, Tr. 33-35;
44-45; 75-76; 95-96; 125-26), but their comments in many cases relied
on anecdotal or unverifiable assertions about additional exposure
sources. Some commenters submitted studies regarding operations that,
in the commenter's view, could expose employees to greater-than-trace
concentrations of beryllium at general industry facilities.\27\ But the
studies do not contain relevant exposure data, nor do they reflect the
conditions that employees are likely to encounter at general industry
workplaces today. Although some commenters alleged that construction
and shipyards workers could be exposed to beryllium in greater-than-
trace concentrations during the dressing or sharpening of beryllium-
containing non-sparking tools, other comments and hearing testimony
more persuasively indicated that the dressing or sharpening of non-
sparking tools is not an exposure source of concern for workers in the
construction and shipyards sectors covered by the beryllium standards.
For example, at the public hearing, a representative from NABTU,
indicated that although non-sparking tools are used in the
petrochemical industry, NABTU could not find examples of tradespeople
dressing and sharpening the tools (Document ID 2222, Tr. 88). Indeed,
Materion commented that at least one supplier of beryllium containing
non-sparking tools offers tool sharpening as a free service to its
customers (Document ID 2237, p. 3).
---------------------------------------------------------------------------
\27\ OSHA also asked AFL-CIO and NABTU at the hearing whether
workers needed to be protected against dermal contact with only
trace concentrations of beryllium (see Document ID 2222, Tr. 94-95,
121-22). As Materion and CISC pointed out in their post-hearing
submissions (Document IDs 2237, p. 1; 2241, p. 8), neither party
directly responded to OSHA's question.
---------------------------------------------------------------------------
Accordingly, OSHA is tailoring certain aspects of the final
construction and shipyards beryllium standards to the operations for
which the agency has sufficient data to demonstrate worker exposure to
beryllium at levels of concern, to properly characterize and evaluate
the exposures, and to develop appropriate measures to address them
(i.e., abrasive blasting operations and limited welding operations in
shipyards). Tailoring the construction and shipyards beryllium
standards to these operations ensures that the standards are no more
complex or onerous than is needed to protect workers, which OSHA
believes will improve compliance and thereby better protect workers.
[[Page 53943]]
Removing the provisions triggered on dermal contact with beryllium
(such as former paragraph (h)(1)(ii)) reflects OSHA's intent to
regulate contact with trace beryllium only when it causes airborne
exposures of concern. OSHA acknowledged in the 2017 final rule that
there is ``potential for exposure'' in operations other than abrasive
blasting and welding (and fashioned the scope of the standards
accordingly), but never determined that workers in the construction
industry are currently at risk of dermal contact with greater-than-
trace amounts of beryllium when working at general industry worksites,
or when dressing or sharpening non-sparking tools. Where OSHA did
originally include provisions aimed solely at dermal contact in the
construction and shipyards standards that it now intends to remove,
including paragraph (h)(i)(ii), it was due to the agency borrowing
provisions from the general industry standard without appropriately
accounting for the trace exposures in abrasive blasting and welding as
they pertain to dermal contact. Inclusion of these provisions was not
based on a finding by OSHA that the provisions were necessary to
address exposures beyond abrasive blasting and welding. OSHA finds that
the standards as revised will maintain protections in all likely
exposure scenarios while more appropriately addressing the operations
from which exposures regularly occur.
Multiple commenters also expressed concern that OSHA's proposed
removal of the provisions that target dermal contact with beryllium
would result in insufficient protection for employees who work near, or
in support of, abrasive blasting operations, such as pot tenders and
clean-up helpers (see Document ID 2210, p. 4; 2211, p. 8; 2239, p. 3).
Particularly, AFL-CIO commented that previously-submitted evidence in
the record indicates that ``bystander'' workers are not typically
protected against exposure to beryllium to the same extent as workers
directly involved in abrasive blasting operations, and claimed that
OSHA has ``proposed to revoke protections that would protect against an
increased risk of cumulative inhalation and skin exposures even when
there are significant airborne exposures, especially among those
working near operations with significant airborne exposures'' (Document
ID 2210, p. 4 (citing Document IDs 2118, 2129, and 2135); see also
Document ID 2222, Tr. 117-18, 122-23). AFL-CIO also claimed that
``[r]espirators and other PPE do nothing to address bystander exposure
and leave wide variability in the times they are worn'' (Document ID
2239, p. 3). USW also commented at the hearing that ``even though the
blasters, the people who were actually engaged in an operation may be
well protected, there may be bystanders who may be exposed to things
that escape from containment or that are left over after the
containment's removed'' (Document ID 2222, Tr. 45).
OSHA has always intended for the construction and shipyards
beryllium standards to protect workers who support, or are bystanders
to, abrasive blasting operations, and OSHA's beryllium standards
protect such workers through various mechanisms, including the
requirement for such workers to wear PPE when they have reasonably
expected airborne exposure to beryllium. When the agency promulgated
the standards in 2017, OSHA concluded that ``pot tenders/helpers, and
cleanup workers have the potential for significant airborne beryllium
exposure during abrasive blasting operations and during cleanup of
spent abrasive material'' and thus ``require protection under the
beryllium standards'' (82 FR at 2638). Additionally, OSHA determined in
the 2019 final rule that, despite partial overlap between the
requirements of the beryllium standards and other existing OSHA
standards, OSHA could not revoke paragraph (h) in its entirety because
``[s]ome workers exposed to beryllium in construction and shipyards,
such as abrasive blasting helpers, would not be fully protected if OSHA
revoked the requirements for PPE in their entirety.'' 84 FR 51394. OSHA
has not wavered from its position that abrasive blasting support and
bystander workers must be protected against potential airborne exposure
to beryllium.
Paragraph (h)(1) requires employers to provide and to ensure the
use of PPE for abrasive blasting support workers and other bystanders
when those employees are reasonably expected to have airborne exposure
to beryllium at levels above the TWA PEL or STEL. Whether or not such
workers have tended to wear PPE with the same consistency as abrasive
blasting operators, these standards expressly require such workers to
use appropriate PPE whenever they have reasonable expected airborne
exposure to beryllium above the TWA PEL or STEL. This protects abrasive
blasting support workers and bystanders from the incremental additional
beryllium load caused by re-entrainment of trace beryllium where there
is already significant airborne exposure, while maintaining OSHA's
intent that dermal contact with trace beryllium alone did not require
protections (84 FR at 53912 (citing 83 FR at 19938); see also 84 FR at
53905-06).
As further discussed below, and in the Summary and Explanation for
paragraph (f), such workers are also protected from exposure to
airborne beryllium by several other provisions, including the PPE
removal and cleaning provisions, the requirements to include certain
procedures in the written exposure control plan (paragraph (f)(1)), and
the housekeeping requirements in paragraph (j). AFL-CIO is thus
incorrect that the revised beryllium standards do not protect abrasive
blasting support workers and bystanders when there are significant
airborne exposures.
This rule also finalizes OSHA's proposed modifications to
paragraphs (h)(2) and (3) of the standards, with two exceptions in
paragraph (h)(2). In the NPRM, OSHA proposed to revise the language of
several provisions in paragraphs (h)(2) and (3) (see 84 FR at 53913-
14). First, OSHA proposed to revise paragraph (h)(2)(i) so that it
requires each employee to remove PPE required by the standards at the
end of the work shift or, at the completion of all tasks involving
beryllium, whichever comes first. To do this, OSHA proposed to remove
the qualifier indicating that workers should remove ``beryllium
contaminated'' PPE, and instead add language indicating that workers
should remove PPE ``required by this standard.'' OSHA also proposed
removing the phrase requiring PPE to be removed when it becomes
``visibly contaminated with beryllium.'' OSHA considers a surface to be
contaminated with beryllium when it has been contaminated with dust,
fumes, mists, or solutions containing beryllium in concentrations
greater than or equal to 0.1 percent by weight, and OSHA explained that
removing the ``beryllium contaminated'' and ``visibly contaminated with
beryllium'' language reflects the agency's understanding that the data-
supported operations that create exposures at levels of concern in
these industries (abrasive blasting and some welding in shipyards) will
not create a beryllium-contaminated surface.
OSHA explained in the NPRM, however, that where employees working
with materials containing trace concentrations of beryllium nonetheless
have the potential for airborne exposure above the TWA PEL or STEL, and
would thus still be required to use PPE under paragraph (h)(1), they
would likely be working in highly dusty environments that could
accumulate large amounts of dust on their PPE (84
[[Page 53944]]
FR at 53913). In those situations, the proposed paragraph (h)(2)(i)
would require employees to remove their PPE at the end of the work
shift or when all tasks involving beryllium have completed, whichever
comes first to prevent the dust on the PPE from being re-entrained into
the air and contributing to the airborne exposure of workers who
already are, or can reasonably be expected to be, exposed above the TWA
PEL or STEL.
For the same reason, OSHA also proposed in the NPRM to replace the
qualifier in paragraph (h)(2)(ii) that PPE be ``beryllium
contaminated,'' and instead add language clarifying that the provision
applies to PPE ``required by the standard.'' The resulting proposed
paragraph (h)(2)(ii) would require employers to ensure that PPE
required by the standard is not removed in a manner that disperses
beryllium into the air, which can be accomplished by cleaning the PPE
prior to removal or carefully removing the PPE so as not to disturb the
dust.
OSHA also proposed to remove the language from paragraph (h)(2)(ii)
requiring employers to ensure that employees remove PPE in accordance
with the written exposure control plan to reflect OSHA's simultaneous
proposal to remove from paragraph (f) the requirement to include
procedures for doffing, laundering, storing, cleaning, repairing, and
disposing of beryllium-contaminated PPE in the written exposure control
plan. However, as discussed in the Summary and Explanation for
paragraph (f), OSHA has determined that written exposure control plans
should continue to include procedures for those PPE requirements that
OSHA did not propose to remove. Accordingly, OSHA is including in
paragraph (f) a requirement that the written exposure control plan
include procedures for removal, cleaning, and maintenance of PPE in
accordance with paragraph (h) (see paragraph (f)(1)(i)(F)). Having
retained these procedures in the written exposure control plan, OSHA is
not finalizing its proposal to remove the reference to the written
exposure control plan from paragraph (h)(2)(ii).
For paragraph (h)(3), OSHA also proposed to add language to clarify
that the requirement that employers ensure that beryllium is not
removed from PPE by blowing, shaking or any other means that disperses
beryllium into the air applies to PPE that is ``required by the
standard.'' OSHA explained in the NPRM that the proposed revision would
assure employers that, if dust containing only 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 standards permit that PPE to be removed and cleaned
in a manner that disperses that dust into the air. The proposed
revision is thus consistent with the agency's goal of protecting
employees who already have reasonably expected airborne exposure to
beryllium at levels of concern from inhaling re-entrained beryllium-
containing dust.
In addition to these proposed revisions to paragraphs (h)(2) and
(3), OSHA proposed to remove four provisions from paragraphs (h)(2) and
(3): The requirement to ensure that each employee stores and keeps
beryllium-contaminated PPE separate from street clothing and that
storage facilities prevent cross-contamination as specified in the
written exposure control plan (paragraph (h)(2)(iii)); 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 (paragraph (h)(2)(iv));
to ensure that PPE removed from the workplace for laundering, cleaning,
maintenance, or disposal be placed in closed, impermeable bags or
containers labeled in accordance with the standards' employee
information and training requirements and the Hazard Communication
standard (paragraph (h)(2)(v)); and, 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 (paragraph (h)(3)(iii)). OSHA
proposed to remove paragraphs (h)(2)(iii) and (iv), which apply only to
``beryllium-contaminated'' PPE, because, as explained above, OSHA has
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 (see 83 FR at 19939), and the data-
supported operations that produce beryllium exposures of concern in the
construction and shipyards industries (abrasive blasting and some
welding in shipyards) will not produce such ``beryllium-contaminated''
PPE. As for the requirements in paragraphs (h)(2)(v) and (h)(3)(iii),
which were included to protect individuals who handle beryllium-
contaminated items after operations involving beryllium have been
completed (82 FR at 2683), OSHA preliminarily determined in the NPRM
that it is unnecessary to protect such downstream handlers of PPE in
this context. Given the operations to which these standards are
tailored, downstream handlers of PPE could only come in contact with
dust that contains beryllium in trace concentrations, and OSHA has no
reason to believe that those individuals would be engaging in tasks
that could generate airborne exposures at levels of concern. In keeping
with OSHA's intent to only regulate contact with trace concentrations
of beryllium when workers are exposed to significant airborne exposure
to beryllium, OSHA proposed that these two provisions targeting
downstream handlers of PPE are unnecessary and should be removed.
OSHA received only a few comments that specifically addressed the
proposed changes to paragraphs (h)(2) and (h)(3). NJH stated that
``[t]he same protections should be in place for shipyards and
constructions as in general industry when using, handling, cleaning and
repairing PPE'' (Document ID 2211, p. 10). Additionally, when
commenting on OSHA's proposed revisions to paragraph (f), NJH stated
that, when workers clean and dismantle containments, ``clothes and PPE
for non-blasting workers are likely to be contaminated with beryllium
particulate and need to be removed, laundered, stored, cleaned,
repaired, and disposed of in a manner similar to that outlined in the
original housekeeping provision'' (Document ID 2211, p. 8). NJH also
argued that the written exposure control plan should include procedures
to identify and minimize beryllium exposures to workers involved in
cleaning and maintaining PPE, and that whenever beryllium exposures are
generated during a process, PPE used during the process should be
handled in the manner outlined in the 2017 final rule (Document ID
2211, p. 9).
OSHA does not agree that it is necessary or appropriate for the
construction and shipyards beryllium standards to contain the exact
same PPE handling requirements as the general industry beryllium
standard. As explained above, OSHA finds it appropriate to tailor the
construction and shipyards beryllium standards to the limited
operations in those sectors for which OSHA has significant evidence of
exposures to beryllium at levels of concern (abrasive blasting
operations and some welding operations in shipyards). Those operations
do not create a risk of dermal contact with dust, fumes, or mists
containing greater-than trace concentrations of beryllium, and
therefore PPE used during such
[[Page 53945]]
operations will not accumulate surface dust with greater-than-trace
concentrations of beryllium. OSHA agrees, however, that it is
beneficial and necessary to require employers to establish and describe
procedures for removing, cleaning, and maintaining PPE in the written
exposure control plan. As discussed in the Summary and Explanation for
paragraph (f), OSHA has included such a requirement in paragraph
(f)(1)(i)(F) of the standards, and as noted above, has retained the
requirement in paragraph (h)(2)(ii) that PPE be removed as specified in
the written exposure control plan.
AFL-CIO commented that the proposed modifications to paragraph
(h)(2) and (3), when combined with OSHA's proposed changes to paragraph
(f), ``increase the cumulative exposure risk for workers wearing'' PPE
and ``the risk of cross-contamination and migration of beryllium
exposing workers with no respiratory or dermal protection'' (Document
ID 2210, p. 7). Particularly, AFL-CIO expressed concern that OSHA's
proposed requirement for written exposure control plans to include
procedures used to ensure the integrity of each containment used to
minimize exposures to employees outside of containments used to limit
bystander exposures (paragraph (f)(1)(i)(E) of the construction
standard and paragraph (f)(1)(i)(D) of the shipyards standard) ``would
create a higher concentration of beryllium dust inside the enclosure,''
while OSHA's proposed revisions to paragraphs (f) and (h)(2) and (3)
would no longer require employers to use specific procedures to ensure
that PPE is safely doffed (Document ID 2210, p. 7).
AFL-CIO also expressed concern that OSHA's proposed modifications
to paragraphs (h)(2) and (3) would not sufficiently protect downstream
handlers of PPE. AFL-CIO stated that, ``by removing provisions to keep
contaminated PPE separate and labelled, as well as, informing those who
will come into contact with the PPE that there is potential of
beryllium exposure,'' OSHA has ``assume[d] without evidence that
downstream handlers of PPE will not generate airborne exposures,''
which leaves ``other employers at risk of exposing their employees to a
carcinogen without their knowledge'' (Document ID 2210, pp. 8, 10).
AFL-CIO similarly stated at the hearing that ``there's no evidence in
the record that shows that [downstream] workers will not generate
airborne exposure and that they should not be informed about the
hazards of beryllium'' (Document ID 2222, Tr. 118-19).
In its post-hearing brief, AFL-CIO further discussed its belief
that preventing cross-contamination and migration of beryllium-
containing dust is essential to protecting workers (see Document ID
2244, pp. 10-15), and cite a 2019 NIOSH publication of a study by Virji
et al. that stressed the importance of minimizing dust migration to
reduce the risk of beryllium sensitization (Document ID 2244, pp. 11-12
(citing Document ID 2239)). AFL-CIO specifically expressed concern that
``[a]brasive blasting, a high dust producing task, is likely to result
in significant dust migration and cross-contamination leading to
increased beryllium inhalation and dermal exposure if the provisions in
the [2017] final rule do not remain in place'' (Document ID 2244, p.
12).
Although specifically directed in response to OSHA's proposed
revisions to paragraph (f), NABTU also expressed its belief that OSHA
must retain the standards' procedures for minimizing cross-
contamination and migration of beryllium-containing dust (Document ID
2240, p. 5). NABTU likewise pointed to the Virji et al. study, stating
that the study indicated ``that workers at a primary beryllium
producing facility who were not directly involved in beryllium-related
operations were still exposed to beryllium in sufficient quantities to
cause beryllium sensitization,'' and therefore provides ``further
support to the need to ensure workers handle their clothing and other
personal protective equipment in ways that minimize the potential that
either they, their family members or others who may handle the PPE are
incidentally exposed'' (Document ID 2240, p. 6).
OSHA disagrees with AFL-CIO and NABTU. The modifications to
paragraphs (h)(2) and (3), when combined with the modifications to
paragraph (f)(1), maintain the necessary protections for workers. As
explained above, the activities to which the construction and shipyards
standards are tailored (abrasive blasting operations and limited
welding operations in shipyards) do not present a risk of dermal
contact with beryllium in greater-than-trace concentrations. In this
context, the purpose of the provisions of paragraphs (h)(2) and (3) is
to prevent workers with significant airborne exposure to beryllium from
the additional inhalation risk that could result if beryllium-
containing dust were to spread and become re-entrained in the air.
OSHA finds that paragraphs (h)(2) and (3) have been appropriately
revised to achieve this purpose. The revised paragraph (h)(2)(i)
requires that employees who have reasonably expected airborne exposure
to beryllium at levels above the TWA PEL or STEL remove their PPE at
the end of the work shift or all tasks involving beryllium, and revised
paragraphs (h)(2)(ii) and (h)(3)(ii) prohibit removing PPE, or
beryllium from PPE, in a manner that would disperse beryllium into the
air. These requirements are supplemented by the requirement in
paragraph (f)(1)(i)(F) for employers to include procedures for
removing, cleaning, and maintaining PPE in the written exposure control
plan, and work in concert with additional provisions that minimize the
potential for beryllium-containing dust to spread in the workplace.
Specifically, that goal is furthered by the standards' requirements to
restrict access to work areas at construction worksites where exposures
to beryllium could reasonably be expected to exceed the TWA PEL or STEL
(paragraphs (f)(1)(i)(D) and (e)(2)) and establish and limit access to
regulated areas at shipyard worksites (paragraph (e)); establish
procedures to ensure the integrity of containments (paragraphs
(f)(1)(i)(E) in construction and (f)(1)(i)(D) in shipyards); \28\
establish engineering and work practice controls (paragraph (f)(2));
and, engage in housekeeping practices that limit the potential for
airborne exposure to beryllium (paragraph (j)).
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\28\ AFL-CIO's concern that these containment integrity
provisions in paragraph (f) will increase the levels of exposure for
employees who are required to wear PPE under the beryllium standards
is mistaken. As discussed in the Summary and Explanation for
paragraph (f), these new provisions do not require employers to use
containments, but rather require that, when an employer chooses to
use a containment (such as a tarp or other structure), the employer
must include in its written exposure control plan specific
procedures for ensuring the integrity of the containment. The
purpose of the paragraphs is to ensure that, when an employer
chooses to use a containment, it is used in such a way that
employees outside of the containment are not inadvertently exposed
to beryllium at levels above the TWA PEL or STEL. Contrary to AFL-
CIO's suggestion, adding these paragraphs to the standards will
merely ensure that containments, when used, accomplish their
intended function.
---------------------------------------------------------------------------
To further prevent beryllium-containing dust from creating an
additional inhalation risk to employees who already have the potential
for airborne exposure above the TWA PEL or STEL, OSHA has decided
against finalizing its proposal to remove former paragraph (h)(2)(iv)
from the standards, and has retained a revised version of that
requirement in the standards. As discussed above, paragraph (h)(2)(iv)
previously required the employer to
[[Page 53946]]
ensure that no employee removes beryllium-contaminated PPE from the
workplace, except for employees authorized to do so for the purposes of
laundering, cleaning, maintaining or disposing of beryllium-
contaminated PPE at an appropriate location or facility away from the
workplace. OSHA proposed to remove this provision because the data-
supported operations that produce beryllium exposures of concern in the
construction and shipyards industries (abrasive blasting and some
welding in shipyards) will not produce ``beryllium-contaminated'' PPE
as OSHA has defined that term (see 83 FR at 19939).
However, upon consideration of commenters' concerns, and
particularly those regarding the risk of cumulative airborne exposure
from contaminated PPE, OSHA has determined that removing this provision
would insufficiently protect employees who already have airborne
exposure above the PEL from the additional inhalation risk that could
occur if they were allowed to remove their PPE from the worksite
without first properly cleaning it. As OSHA explained in the NPRM and
previously in this Summary and Explanation, where employees working
with materials containing trace concentrations of beryllium have
reasonably expected airborne exposure above the TWA PEL or STEL due to
their work activity, and would thus be required to use PPE under
paragraph (h)(1), they will likely be working in highly dusty
environments that could accumulate large amounts of dust on their PPE
(84 FR at 53913). OSHA finds that it is appropriate to ensure that such
workers clean their PPE in accordance with paragraph (h)(3)(ii) prior
to removing it from the worksite to prevent them from being further
exposed to airborne beryllium if the dust on their PPE were to be re-
entrained in their vehicles or homes. Therefore, rather than removing
paragraph (h)(2)(iv) entirely, OSHA is revising the provision (and
renumbering it as (h)(2)(iii)) to require the employer to ensure that
no employee with reasonably expected exposure above the TWA PEL or STEL
removes PPE required by the beryllium standard from the workplace
unless it has been cleaned in accordance with paragraph (h)(3)(ii).
As explained below, the provisions that OSHA is removing in this
final rule from paragraphs (h)(2) and (3) (specifically, former
paragraphs (h)(2)(iii) and (v) and (h)(3)(iii)) do not further the goal
of preventing workers from encountering beryllium-containing dust that
could be re-entrained in the air and exacerbate an already-significant
lung burden. OSHA has therefore determined that the provisions are
unnecessary.
As discussed above, former paragraph (h)(2)(iii) required the
employer to ensure that each employee stores and keeps beryllium-
contaminated PPE 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, but PPE
cannot become ``beryllium-contaminated,'' as OSHA has defined that term
(see 83 FR at 19939), in the operations to which these standards are
being tailored. Moreover, OSHA has determined that it is unnecessary to
retain and revise former paragraphs (h)(2)(iii) so that it applies to
PPE required by the beryllium standards, as OSHA has done for
(h)(2)(ii) and (h)(3)(ii), because such a provision would not provide
protection beyond that already provided by OSHA's sanitation standards
in construction and shipyards.
The sanitation standards for both construction and shipyards
require employers to provide change rooms under certain circumstances.
As explained in the Summary and Explanation of paragraph (i), the
sanitation standard for construction 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 (29 CFR 1926.51(i)). The change rooms must be equipped
with separate storage facilities for street clothes and protective
clothing. Similarly, the sanitation standard for shipyards requires
change rooms when the employer provides protective clothing to prevent
employee exposure to hazardous or toxic substances (29 CFR 1915.88(g)).
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 the beryllium standards require PPE where exposures may
exceed the TWA PEL or STEL, employers are required to provide change
rooms under the sanitation standards where employees can store and keep
PPE separate from street clothing to prevent cross-contamination. OSHA
finds that, combined with the requirements in paragraph (h)(2)(ii) and
(h)(3)(ii) regarding the safe removal and cleaning of PPE, the
requirement in paragraph (f)(1) to include procedures for removing and
cleaning PPE in the written exposure control plan, and the training
requirements of paragraph (m), the sanitation standards' requirement
allowing employees to remove and store their PPE in separate storage
facilities provide the necessary protections for employees in the
construction and shipyards context. Accordingly, OSHA is finalizing its
proposal to revoke former paragraph (h)(2)(iii) in both standards.
As for former paragraphs (h)(2)(v) and (h)(3)(iii), which target
downstream handlers of PPE, OSHA explained in the NPRM that it has no
reason to believe that such individuals have airborne exposure to
beryllium at levels above the TWA PEL or STEL. In response to the NPRM,
no commenters provided the agency with any evidence indicating
otherwise. Accordingly, OSHA finds that downstream handlers of PPE
would not have airborne exposure to beryllium at levels of concern that
could be exacerbated by exposure to any residual dust encountered
during the PPE removal, laundering, cleaning or repair process. And,
given that the operations to which OSHA is tailoring the standards only
involve materials containing trace concentrations of beryllium and/or
do not pose a significant risk of skin contamination, and that OSHA
only intended for the standards to prevent contact with materials
containing trace concentrations of beryllium when there are significant
airborne exposures at levels of concern, former paragraphs (h)(2)(v)
and (h)(3)(iii) are not necessary to protect downstream handlers of PPE
from dermal contact with beryllium.
As for AFL-CIO's criticism that the agency has not produced
evidence to prove that downstream workers are not exposed to airborne
beryllium at levels above the TWA PEL or STEL, OSHA has no obligation
or authority to prescribe remedies for problems for which it has no
evidence of their existence. OSHA did not have evidence of any such
exposure when it promulgated the standards in 2017, and its inclusion
of the protections for downstream handlers of PPE in the 2017 final
rule was due to the agency borrowing provisions from the general
industry standard without appropriately accounting for only trace
exposures to beryllium in abrasive blasting and welding operations as
they pertain to dermal contact.
With the exception of former paragraph (h)(2)(iv) (renumbered as
(h)(2)(iii)), AFL-CIO's and NABTU's comments have not persuaded the
agency that any of the provisions that it proposed to remove from
paragraphs (h)(2) and (3) are necessary to protect workers in
construction and shipyards. Both commenters appear to assume that
workers in the construction and shipyards industries require protection
[[Page 53947]]
against dermal contact with beryllium, but as explained above, the
operations to which OSHA is tailoring the construction and shipyards
standards do not pose a risk of dermal contact with beryllium in
greater-than-trace concentrations, and OSHA never intended to protect
against such contact unless the individual has exposure to airborne
beryllium at levels exceeding the TWA PEL or STEL. Furthermore, as
explained in the Summary and Explanation for paragraph (f), the Virji
et al. study, to which both AFL-CIO and NABTU cite, likely does not
reflect current conditions in general industry facilities, and thus
does not establish that construction employees who enter a general
industry site today would require protection from dermal contact with
beryllium in more than trace amounts. OSHA has determined that, given
the data-supported operations that produce exposures of concern in this
context, the revised paragraphs (h)(2) and (3), working in concert with
other relevant provisions in the standards, provide workers with the
necessary protection against the additional inhalation exposure that
could be posed by the spread of dust containing trace amounts of
beryllium.
Several other commenters responded that OSHA's proposed changes to
paragraph (h) do not go far enough, and that none of the beryllium
standards' ancillary provisions, including the PPE provision, are
necessary (Document ID 2203, p. 1-2, 11; 2199, p. 3; 2205, p. 2; 2206,
pp. 10-13; 2209, pp. 1-2; 2241, pp. 3-4). CISC specifically commented
that, because abrasive blasting employees already wear PPE, OSHA has
not established that requiring the provision and use of PPE when
employees have reasonably expected airborne exposure to beryllium above
the TWA PEL or STEL will significantly reduce the risk of harm
(Document ID 2203, p. 11; 2241, p. 3). ABMA similarly claimed that
``[t]here is no evidence that the pre-existing standards governing
abrasive blasting are insufficient to protect employees, and there is
no evidence that exposure to the trace amounts of naturally occurring
beryllium in abrasive blasting (or welding) has resulted in any
material impairment of health to employees in all of the many years
this work has been performed'' (Document ID 2206, p. 11).
OSHA did not propose in this rulemaking to remove the standards'
PPE requirements in their entirety, and in fact, explained in the NPRM
that it determined in the 2019 final rule that removing paragraph (h)
in its entirety would not sufficiently protect workers from airborne
exposure to beryllium (84 FR at 53913). OSHA acknowledged that other
standards already require some employees engaged in abrasive blasting
and welding operations in the construction and shipyards sectors to use
PPE. However, some workers with known exposure to beryllium in
construction and shipyards, such as abrasive blasting helpers, would
not be fully protected if OSHA revoked the requirements for PPE in
their entirety. In addition, other OSHA standards do not provide
specific PPE removal, cleaning, and maintenance requirements. As
explained above, the PPE removal and cleaning provisions in these
standards are necessary to minimize the spread of beryllium-containing
dust, which, if re-entrained could create additional inhalation
exposures for workers with reasonably expected airborne exposure to
beryllium at levels exceeding the TWA PEL or STEL. Commenters have
provided no new information indicating that such protections are
unnecessary, and OSHA finds that the PPE provisions that it is
promulgating in paragraph (h) are necessary and appropriate to protect
workers in the construction and shipyards industries.
Former Paragraph (i) Hygiene Areas and Practices
In this final rule, OSHA is removing paragraph (i), hygiene areas
and practices, from the beryllium standards for construction and
shipyards. OSHA has acknowledged the importance of hygiene practices
throughout the beryllium rulemaking process (see, e.g., 82 FR at 2684-
85; 84 FR at 53915). However, it has 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 (84 FR at 53914).
In the NPRM, OSHA explained that it was reconsidering the need to
include additional, beryllium-specific hygiene requirement in the
construction and shipyards standards, in light of the specific exposure
sources in these industries; specifically, abrasive blasting operations
involving beryllium in trace amounts and limited welding operations in
which dermal exposure is not a concern (84 FR at 53914-15).
Based on the evidence in the record and after reviewing the
comments and hearing testimony pertaining to hygiene areas and
practices, OSHA has determined that the sanitation standards for
construction (29 CFR 1926.51) and shipyards (29 CFR 1915.88) provide
protections comparable to those in paragraph (i) of the beryllium
standards for construction and shipyards and that additional
requirements will not materially increase protections in these sectors.
Accordingly, OSHA is removing paragraph (i) from the beryllium
standards for construction and shipyards.
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 in 2017, paragraph (i) required 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)).
After publishing the 2017 final rule, OSHA clarified in a direct
final rule (DFR) for general industry that the agency only intended to
regulate contact with trace beryllium to the extent that it causes
airborne exposures of concern (83 FR at 19938). Unlike in general
industry, where processes involving exposure to beryllium are varied
and employees are exposed to a variety of materials that can contain
high concentrations of beryllium, exposures in the construction and
shipyards industries are primarily 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) (see the Summary and Explanation for paragraph (f)(1)
for a discussion of the potential for additional sources of exposure in
these sectors). 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 previously, OSHA has
[[Page 53948]]
determined that for these limited welding operations the exposure of
concern is exposure to airborne beryllium and not dermal contact.
In the NPRM, OSHA preliminarily determined that, based on the trace
beryllium content of blasting materials and the available information
on welding operations, the construction and shipyards sectors do not
have operations where skin or surface contamination in the absence of
significant airborne exposures is an exposure source of concern (84 FR
at 53906, 53914-15). 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
construction and shipyard operations, OSHA preliminarily determined
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 and proposed to remove all
provisions of paragraph (i) from the construction and shipyard
standards (84 FR 53915-16). Accordingly, the agency proposed to remove
paragraph (i) from the construction and shipyard standards (84 FR at
53916). Detailed explanations of each provision and OSHA's reasoning
for removing them are presented below, along with discussion of and
response to comments received on the proposal.
Paragraph (i)(1) of both the construction and shipyards standards
required that, for each employee required to use PPE by the standard,
employers provide readily accessible washing facilities for use in
removing beryllium from the hands, face, and neck (paragraph
(i)(1)(i)), and ensure 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 (paragraph (i)(1)(ii)). OSHA
proposed to remove these provisions because existing standards already
require the use of washing facilities for workers in construction and
shipyards.
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 also proposed to remove paragraph (i)(2), which required
employers to provide change rooms where employees are required to
remove their personal clothing in order to don PPE (paragraph (i)(2)),
because the sanitation standards already provide comparable protections
(84 FR at 53915). 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 must be
provided. Similarly, the sanitation standard for shipyards (29 CFR
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 the beryllium
standards require PPE where exposures may exceed the TWA PEL or STEL,
employers are required to provide change rooms under the sanitation
standards, just as they would have been required by paragraph (i)(2) of
the beryllium standards.
OSHA further proposed to remove paragraph (i)(3) from the
construction and shipyards standards, which established requirements
for eating and drinking areas. Paragraph (i)(3)(i) required that
surfaces in eating and drinking areas be kept as free as practicable of
beryllium and paragraph (i)(3)(ii) required that employees remove or
clean contaminated clothing prior to entering these areas. OSHA
proposed to remove these provisions for two reasons. First, provisions
in the sanitation standards for construction (29 CFR 1926.51(g)) and
shipyards (29 CFR 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.
Second, these provisions relate to minimizing dermal contact.\29\ As
explained in the Summary and Explanation for paragraph (h), OSHA
[[Page 53949]]
intends that provisions aimed at addressing dermal contact should only
apply to materials containing trace amounts of beryllium where there is
also the potential for significant airborne exposure. OSHA
preliminarily determined that the processes in construction and
shipyards creating exposure to beryllium are either processes that
involve materials containing less than 0.1 percent beryllium by weight
or processes that do not produce surface or skin contamination (84 FR
at 53916).
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\29\ In the 2019 construction and shipyards final rule, in which
OSHA declined to revoke all of the ancillary provisions of these
standards, OSHA stated that there was not complete overlap between
the sanitation standards and the eating and drinking area
requirements of paragraph (i)(3) (84 FR at 51395). That rule,
however, did not address whether additional beryllium-specific
requirements were necessary in light of the trace exposures in these
contexts.
---------------------------------------------------------------------------
OSHA further explained that other parts of the beryllium standard
will reduce the potential for airborne beryllium in eating and drinking
areas (84 FR at 53916). Specifically, 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 (see paragraph (j)). 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 the construction and shipyard operations known to
involve beryllium exposure involve only trace amounts of beryllium (or,
in the case of welding, do not pose a dermal contact risk), and that
other provisions of the beryllium standard such as engineering controls
and housekeeping requirements serve to minimize airborne exposures,
OSHA preliminarily determined that existing standards adequately
protect employees in eating and drinking areas (84 FR at 53916).
OSHA also proposed to remove the reference in paragraph (i)(3)(iii)
which required 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 proposed to remove paragraph (i)(4), which required
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. OSHA
preliminarily determined that the sanitation standards are
substantially similar to former paragraph (i)(4) and provide
appropriate protections for areas where exposures are above the PEL (84
FR at 53916).
In the 2019 NPRM, OSHA requested comment on the proposed removal of
paragraph (i), especially comments and data on the use of wash
facilities and change rooms in construction and shipyards for
operations that would be covered by the beryllium standards (84 FR at
53916).
Several commenters disagreed with OSHA that the hygiene provisions
under paragraph (i) should be rescinded. AFL-CIO commented that
removing paragraph (i) will increase workers' risk of cumulative
beryllium exposure and could lead to migration of beryllium to other
areas, resulting in inhalation exposure to other workers (Document ID
2210, p. 8). They argued that the sanitation standards leave gaps in
coverage, in light of ``the significant risk of impairment to worker
health at low exposure limits and the carcinogenicity of beryllium,''
and that other provisions of the beryllium standard addressing airborne
exposure are insufficient to justify removing the hygiene provisions
(Document ID 2210, p. 8). In post-hearing comments, AFL-CIO reiterated
their position and stated that the 2017 final rule found paragraph (i)
``prevents additional airborne and dermal exposure to beryllium,
accidental ingestion of beryllium, spread of beryllium inside and
outside the workplace and reduces significant risk of beryllium
sensitization and CBD'' (Document ID 2239, p. 2).
AFL-CIO did not identify which protections in paragraph (i) are
left unaddressed by the sanitation standards. With respect to increases
in cumulative exposure or migration of beryllium resulting in increased
airborne exposure, OSHA has explained that the sanitation standards for
construction and shipyards contain comparable requirements for change
rooms (29 CFR 1926.51(i); 29 CFR 1915.88(g)) and washing facilities (29
CFR 1926.51(f); 29 CFR 1915.88(e)) and prohibit contamination in eating
and drinking areas (29 CFR 1926.51(g); 29 CFR 1915.88(h)). At the same
time, existing provisions of the beryllium standards further reduce the
potential for airborne exposure by ensuring beryllium-containing dust
is cleaned up by methods that minimize the likelihood and level of such
exposure (paragraph (j)) and that PPE is removed and cleaned in a
manner that does not disperse beryllium into the air (paragraphs (h)(2)
and (3)). Regarding the need for provisions to protect against dermal
contact, OSHA has explained that it does not intend such provisions to
apply where, as here, exposure involves materials containing only trace
amounts of beryllium (see the Summary and Explanation for paragraph
(h)). Ultimately, OSHA disagrees with the AFL-CIO's broad and
unelaborated assertion that these protections are inadequate.
NABTU, resubmitting comments previously entered in the docket,
argued that the hygiene provisions ``provide protections not only for
abrasive blasting workers, but for all construction workers who may be
exposed to beryllium,'' including workers who perform maintenance,
repair, renovation, or demolition of worksites that contain beryllium
(Document ID 2202, 2017 comment, p. 7; see also Document ID 2202, 2015
comment, p. 9). According to NABTU, providing washing and clean-up
facilities to beryllium-exposed workers benefits all workers at the
site, ``especially those who don't perform beryllium-exposing tasks,
who may not be aware of the hazards of beryllium'' (Document ID 2202,
2017 comment, p. 7). At the public hearing, when asked which hygiene
provisions they viewed as important for abrasive blasting operations in
construction, NABTU's representative identified ``handwashing
facilities . . . [and] the ability to change out of clothing that's
contaminated with the dust'' (Document ID 2222, Tr. 105).
In their post-hearing brief, NABTU again emphasized their position
that OSHA should retain provisions related to dermal contact in
construction and argued that the sanitation standard for construction
lacks ``the level of specificity necessary to ensure construction
workers adequate protection'' (Document ID 2240, p. 8). Specifically,
although paragraph (f) of the sanitation standard requires construction
employers to provide washing facilities, NABTU notes that it does not
specify that workers must use these facilities following dermal contact
with beryllium and before ``eating drinking, smoking, chewing tobacco
or gum, applying cosmetics, or using the toilet'' (Document ID 2240, p.
9). And although paragraph (g) prohibits eating or drinking in ``any
area exposed to a toxic material,'' NABTU asserts that it ``does not
address the range of activities covered by the beryllium standard''
(Document ID 2240, p. 9). Finally, they state that the sanitation
standard does not require employees to remove surface beryllium from
their clothing or PPE before taking the equipment into an eating or
drinking area (Document ID 2240, p. 9).
[[Page 53950]]
OSHA agrees with NABTU that washing and clean-up facilities benefit
all workers at a worksite and that all workers with beryllium exposure
should be protected. However, the agency has determined that a
beryllium-specific requirement is not necessary to provide these
protections in the construction context. OSHA has determined that the
sanitation standard for construction provides the same protections as
the beryllium standard with respect to washing facilities (29 CFR
1926.51(f)) and change rooms (29 CFR 1926.51(i)).
OSHA disagrees with NABTU that the sanitation standard for
construction lacks sufficient specificity to protect workers in the
construction industry. First, with respect to the previous requirement
in paragraph (i)(1)(ii) that employees with dermal contact wash exposed
skin prior to ``eating, drinking, smoking, chewing tobacco or gum,
applying cosmetics, or using the toilet,'' this requirement was
triggered on and specifically aimed at addressing dermal contact (82 FR
at 2684).\30\ OSHA has addressed commenters' concerns regarding dermal
contact previously in this preamble (see the Summary and Explanation
for paragraph (f)), and simply notes again its determination that this
is not an exposure source of concern in the construction operations
known to involve beryllium exposure.
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\30\ In the general industry DFR, the agency revised the
definition of ``dermal contact with beryllium'' to apply only to
skin exposure to beryllium ``in concentrations greater than or equal
to 0.1 percent by weight'' (83 FR at 19940). OSHA notes that under
this revised definition of dermal contact, the requirement in
paragraph (i)(1)(ii) would never be triggered in the context of
abrasive blasting operations in construction and shipyards.
---------------------------------------------------------------------------
The same rationale applies to NABTU's concerns regarding the list
of prohibited activities as they appear in paragraph (i)(4). OSHA
initially included these provisions due to the risk of ``beryllium
contaminating the food, drink, tobacco, gum, or cosmetics'' (82 FR at
2688). Having received no comments related to this provision when OSHA
original proposed it for the general industry standard, OSHA extended
``substantively identical'' requirements to the construction and
shipyards standards in the 2017 final rule (82 FR at 2688). In light of
OSHA's determination in this final rule that exposures in the
construction and shipyards sectors are limited to trace amounts of
beryllium, the agency finds that this is no longer a concern in these
sectors. Next, after considering NABTU's assertion that the sanitation
standard does not require employees to remove surface beryllium from
their clothing or PPE before taking the equipment into an eating or
drinking area, OSHA has reviewed the existing requirements of 29 CFR
1926.51 and determined that this is not the case. If an area contains
PPE covered with surface beryllium, such that employees may be exposed
through re-entrainment of the beryllium-containing dust, 29 CFR
1926.51(g) by its terms prohibits employees from consuming or storing
food, beverages, or tobacco products in that area.
NJH commented that, although there is ``likely some overlap''
between the beryllium and sanitation standards, it is important to
ensure that ``special protections'' are in place to protect workers
from beryllium exposures (Document ID 2211, p. 10). NJH specifically
noted that contaminated change rooms may potentially exposure workers
not otherwise working with or exposed to beryllium (Document ID 2211,
p. 10). OSHA notes that paragraph (i)(2) in each of the beryllium
standards required employers to provide change rooms in accordance with
the beryllium standard and the relevant sanitation standard, when an
employee is required to change from street clothes to don PPE (29 CFR
1926.1124(i)(2); 29 CFR 1915.1024(i)(2)). Paragraph (h)(2)(iii) of the
beryllium standards, in turn, required employers to ensure that
beryllium-contaminated PPE is kept separate from street clothes and
that storage facilities prevent cross-contamination (29 CFR
1926.1124(h)(2)(iii); 29 CFR 1915.1024(h)(2)(iii)). However, the
sanitation standards each also require that change rooms contain
separate storage facilities for street clothes and PPE to prevent
cross-contamination (29 CFR 1926.51(i); 29 CFR 1915.88(g)). OSHA finds
that, combined with the requirements in paragraph (h)(2) and (3) of the
beryllium standards regarding the safe removal and cleaning of PPE, the
sanitation standards for construction and shipyards protect against
contamination of required change rooms to the same extent as paragraph
(i).
Finally, one commenter argued that paragraph (i) must be included
for ``implementation and consistency with other comprehensive health
standards'' (Document ID 2197). However, the commenter did not identify
how relying on the sanitation standards would result in implementation
issues. With respect to consistency, although it is true that some
health standards contain substance-specific hygiene requirements, the
breadth and content of the requirements differ by standard. For
example, the hygiene requirements of the methylene chloride standard
(29 CFR 1926.1152) address only the provision of washing facilities,
while the requirements in other standards, such as the cadmium standard
(29 CFR 1926.1127), contain numerous, more detailed requirements. Other
health standards, such as the standards for vinyl chloride (29 CFR
1926.1117), benzene (29 CFR 1926.1128), and respirable crystalline
silica (29 CFR 1926.1153), contain no substance-specific hygiene
requirements at all and rely solely on the general sanitation standard.
Thus, relying on the sanitation standards rather than beryllium-
specific hygiene requirements will not create inconsistency among
OSHA's comprehensive health standards.
OSHA has reviewed these comments and the record as a whole and has
decided to follow through with the proposed removal of paragraph (i).
In light of existing OSHA sanitation standards which provide
protections comparable to those in paragraph (i) of the beryllium
standards for construction and shipyards and the trace quantities of
beryllium present in these industries (or, in the case of welding
operations, the lack of skin or surface contamination), OSHA has
determined that additional, beryllium-specific hygiene requirements
will not materially increase protections for workers in these
industries. Accordingly, the agency is removing former paragraph (i)
from the construction and shipyard standards. By doing so, OSHA intends
to tailor the beryllium standards for construction and shipyards to
ensure they are no more complicated or onerous than necessary to
appropriately protect workers, thereby improving compliance.
Paragraph (j) Housekeeping
In this final rule, paragraph (j) of the construction and shipyards
standards mandates several housekeeping requirements aimed at reducing
workers' airborne exposure to beryllium. Paragraph (j)(1) requires
employers to use cleaning methods that minimize the likelihood and
level of airborne exposure to beryllium when cleaning up dust resulting
from operations that cause, or can reasonably be expected to cause,
airborne exposure above the TWA PEL or STEL. Paragraph (j)(2) prohibits
dry sweeping or brushing for cleaning up dust from operations that
cause, or can reasonably be expected to cause, airborne exposure above
the TWA PEL or STEL unless other methods that minimize the likelihood
and level of airborne exposure are not safe or effective. Paragraph
(j)(3) prohibits the use of compressed air for cleaning if its use
[[Page 53951]]
causes, or can reasonably be expected to cause, airborne exposure above
the TWA PEL or STEL. Paragraph (j)(4) requires respirator use and
personal protective clothing and equipment where employees use dry
sweeping, brushing, or compressed air to clean. Finally, paragraph
(j)(5) requires cleaning equipment to be handled and maintained in a
manner that minimizes the likelihood and level of airborne exposure and
re-entrainment of airborne beryllium in the workplace.
This final rule includes several changes from paragraph (j) as
promulgated in the 2017 final rule. As OSHA explained in the proposal,
the agency acknowledged in the 2017 final rule 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 identified work processes with beryllium exposure
in construction and shipyards (82 FR at 2690). OSHA recognized that
beryllium exposure in these industries is limited primarily 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 dust exposures
during abrasive blasting operations can expose workers to beryllium in
excess of the PEL, slag-based abrasive media contains 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, in the 2017 final
rule, OSHA applied most of the same requirements to these industries as
to general industry,\31\ where the operations with beryllium exposure
are significantly more varied and employees are exposed to materials
with significantly higher beryllium content.
---------------------------------------------------------------------------
\31\ 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).
---------------------------------------------------------------------------
Since publication of the 2017 final rule, OSHA has undertaken
several additional rulemaking efforts affecting the beryllium standards
for construction and shipyards. OSHA clarified in the beryllium 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 explained that the agency never intended for provisions
aimed primarily 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 published its 2017 proposal to revoke the ancillary
provisions of the construction and shipyards beryllium standards in
light of overlap with existing OSHA standards applicable to these
sectors (82 FR 29182). With respect to the housekeeping provisions of
paragraph (j), OSHA identified existing standards that at least
partially duplicated the requirements of the beryllium standards.
Specifically, 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)). OSHA also identified certain provisions of OSHA's
general ventilation standard for abrasive blasting (29 CFR 1910.94(a)),
which apply to abrasive blasters in shipyards, and require that dust
must not be permitted to accumulate on the floor or on ledges outside
of an abrasive-blasting enclosure, and dust spills must be cleaned up
promptly. (29 CFR 1910.94(a)(7)). Although OSHA ultimately determined
that existing standards did not duplicate all of the requirements of
paragraph (j), the agency acknowledged that certain revisions may be
appropriate to account for partial overlap in these standards (84 FR at
51378).
In the 2019 NPRM, OSHA announced that it was reconsidering its
approach to the housekeeping provisions in the construction and
shipyards standards based primarily on two rationales. First, OSHA
preliminarily determined that skin or surface contamination in the
absence of significant airborne exposures is not an exposure source of
concern in the operations with known beryllium exposure in the
construction and shipyards sectors; that is, abrasive blasting with
material containing trace quantities of beryllium and limited welding
operations in shipyards. Second, OSHA preliminary determined that
partial overlap between paragraph (j) and existing OSHA standards made
certain revisions to these requirements appropriate (84 FR at 53916-
17). Accordingly, OSHA proposed a number of changes to paragraph (j) in
both standards.
First, OSHA proposed to remove paragraph (j)(1), which required
employers to follow the written exposure control plan in paragraph (f)
when cleaning beryllium-contaminated areas and to ensure that spills
and emergency releases of beryllium are cleaned up promptly and in
accordance with the written exposure control plan (84 FR at 53917).
OSHA explained that routine general housekeeping and housekeeping
related to spills are adequately covered by the existing ventilation
standard for construction (29 CFR 1926.57(f)(7)) and OSHA's general
ventilation standard (29 CFR 1910.94(a)) applicable to shipyards (84 FR
at 53917). OSHA also explained that because the housekeeping provisions
are triggered by only one operation (abrasive blasting) using materials
with trace amounts of beryllium and the main objective of these
provisions is to minimize airborne exposure, a unique written plan for
how to clean is unnecessary in this context. OSHA noted that this is in
contrast to general industry, where there is the concern for protecting
workers from both airborne exposures and dermal contact over a variety
of beryllium-containing materials and processes and where employers may
need to have more complicated or unique cleaning procedures to
adequately protect workers. Finally, with respect to emergency releases
of beryllium, OSHA elsewhere in the proposal preliminarily determined
that the operations with beryllium exposure in the construction and
shipyards sectors do not have emergencies in which exposures differ
from the normal conditions of works (see 84 FR at 53909), rendering
housekeeping procedures specific to emergency releases unnecessary.
OSHA also proposed revising paragraph (j)(2), which addressed the
use of cleaning methods that minimize the likelihood and level of
airborne exposure, the use of dry sweeping, brushing and compressed air
for cleaning, the use of respiratory protection and personal protective
equipment when employing certain types of cleaning methods, and
handling and maintaining cleaning equipment (84 FR at 53917). The first
proposed revision relates to paragraph (j)(2)(i), renumbered as (j)(1),
which required the use of HEPA-filtered vacuuming or other methods that
minimize the likelihood and level of airborne exposure when cleaning in
beryllium-contaminated areas. The second proposed revision relates to
paragraph (j)(2)(ii), renumbered as (j)(2), which prohibited dry
sweeping or brushing for cleaning in beryllium-contaminated areas
unless HEPA-filtered vacuuming or other methods that minimize the
[[Page 53952]]
likelihood and level of airborne exposure are not safe or effective.
In both paragraphs, OSHA proposed replacing the phrase ``cleaning
in beryllium-contaminated area'' with ``cleaning up dust resulting from
operations that cause, or can reasonably be expected to cause, airborne
exposure above the TWA PEL or STEL'' (84 FR at 53917). In the 2018 DFR,
OSHA clarified the general industry beryllium standard by defining
``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; a
condition not applicable to abrasive blasting operations in
construction and shipyards (84 FR at 53917; 83 FR at 19939-40). Because
the agency preliminarily determined that there are no operations
covered by the construction or shipyard beryllium standards that would
create such a beryllium-contaminated surface, the agency proposed to
revise these portions of renumbered paragraphs (j)(1) and (2). OSHA
explained that the agency intends these provisions to apply where
workers are either working in regulated areas in shipyards or in areas
with exposures above the TWA PEL or STEL in construction. As such, OSHA
preliminarily determined that the presence of dust produced by
operations that cause, or can reasonably be expected to cause, airborne
exposure above the TWA PEL or STEL is a more appropriate trigger for
these requirements (84 FR at 53917).
OSHA also proposed to remove the references to ``HEPA-filtered
vacuuming'' in renumbered paragraphs (j)(1) and (2) and instead to
refer simply to methods that minimize the likelihood and level of
airborne exposure. OSHA explained that in abrasive blasting operations,
where large amounts of dust are generated, the use of such vacuums may
be problematic due to filter overload and clogging which may cause
additional exposures (84 FR at 53917). Because the use of HEPA-filtered
vacuums may not be appropriate in abrasive blasting operations, OSHA
proposed to revise paragraph (j) of both standards to remove the
references to such vacuums.
OSHA next proposed to revise paragraph (j)(2)(iii), renumbered as
paragraph (j)(3), which prohibited 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 (84 FR at
53917). OSHA again proposed to remove the reference to ``beryllium-
contaminated areas'' for reasons already discussed. OSHA also proposed
to prohibit the use of compressed air for cleaning where its use
causes, or can reasonably be expected to cause, airborne exposure above
the TWA PEL or STEL, without reference to the use of ventilation. OSHA
explained that in the 2017 final rule, the agency determined that the
use of compressed air might occasionally be necessary in general
industry (84 FR at 53918; see 82 FR at 2693). Similarly, for
construction and shipyards, OSHA intended at the time 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 (84 FR at 53918). In the
proposal, OSHA stated that the agency was now reconsidering the
practicality of using ventilation with compressed air when cleaning
areas with copious amounts of dust produced during abrasive blasting at
construction and shipyard sites. Instead, OSHA proposed 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 (84 FR at 53918).
OSHA next proposed revising paragraph (j)(2)(iv), renumbered as
paragraph (j)(4), which addressed respirator use and personal
protective clothing and equipment where employees use dry sweeping,
brushing, or compressed air to clean in beryllium-contaminated areas.
OSHA again proposed to remove the reference to ``beryllium-contaminated
areas'' for reasons already discussed and to instead simply require the
use of respiratory protection and PPE ``in accordance with paragraphs
(g) and (h)'' when dry sweeping, brushing, or compressed air is used
(84 FR at 53918).
Finally, OSHA proposed removing the disposal provision in paragraph
(j)(3), which required that, when transferring beryllium-containing
materials to another party for use or disposal, employers must provide
the recipient a copy of the warning label required by paragraph (m) (84
FR at 53918). Separately in the proposal, OSHA proposed removing the
labeling requirement in paragraph (m) altogether. OSHA explained that
all beryllium-containing materials in the shipyard and construction
industries contain or produce only trace amounts of beryllium.
Accordingly, OSHA explained, this revision is consistent with OSHA's
intention, explained in the 2018 DFR, that provisions aimed at
protecting workers from the effects of dermal contact should 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 (84 FR at 53918; see 83
FR at 19940). OSHA further explained that the revision aligns with the
housekeeping requirements of the general industry beryllium standard
(as modified by the DFR), which does not require labeling for materials
that contain only trace quantities of beryllium and are designated for
disposal, recycling, or reuse (84 FR at 53918). OSHA emphasized that
these materials must still be labeled according to the Hazard
Communication standard (29 CFR 1910.1200) and, if appropriate, the
hazards of beryllium must be addressed on the label and Safety Data
Sheet (SDS) (84 FR at 53918).\32\ For additional discussion on labeling
requirements, see the Summary and Explanation for paragraph (m).
---------------------------------------------------------------------------
\32\ OSHA also proposed some minor, non-substantive changes to
paragraph (j), including renumbering existing paragraph (j)(2)(v) as
paragraph (j)(5) and removing the heading for ``Cleaning Methods''
to refer to these requirements only as ``Housekeeping'' (84 FR at
53918, FN 8). OSHA received no comments on these changes and is
finalizing them as proposed.
---------------------------------------------------------------------------
Some commenters disagreed with the proposed changes to paragraph
(j) in both comments submitted to the record and in testimony at the
public hearing. Many reiterated in their comments that they believe
that workers in the construction and shipyard industries are exposed
during activities other than abrasive blasting and welding, some of
which may involve beryllium in greater-than-trace amounts. These
commenters included AFL-CIO (Document ID 2210, p. 9), NJH (Document ID
2211, p. 11), NABTU (Document ID 2240, p. 9), ACOEM (Document ID 2213,
p. 3), and certain members of Congress (Document ID 2208, p. 6). As in
other areas of their comments, these commenters identified additional
operations that they believe involve beryllium exposure, primarily the
dressing of non-sparking tools and construction, maintenance,
decommissioning, and demolition work at beryllium-processing
facilities. With respect to the requirements of paragraph (j), some of
these commenters argued that the potential for additional exposures in
these operations counsel against removing any housekeeping
requirements--but particularly those aimed at addressing dermal contact
with beryllium--to tailor these standards to abrasive blasting and
welding operations.
[[Page 53953]]
OSHA has addressed commenters' concerns regarding additional
sources of exposure previously in this preamble in the Summary and
Explanation for paragraph (f) and refers readers to that discussion. To
summarize, although OSHA acknowledges the potential for exposures
beyond abrasive blasting and welding operations, the record continues
to lack sufficient data for the agency to characterize the nature,
locations, or extent of beryllium exposure in application groups other
than abrasive blasting and certain welding operations. Further, the
agency has reason to believe that any additional exposures that may
occur do not present a dermal contact risk in these sectors. As a
result, OSHA finds that it is appropriate to further tailor certain
provisions of the beryllium standards for construction and shipyards--
including the housekeeping requirements--to those operations for which
the agency has data; that is, abrasive blasting operations with
material containing trace amounts of beryllium and limited welding
operations where dermal contact is not an exposure source of concern.
NABTU specifically urged OSHA to retain paragraph (j)(1), which
requires employers to follow their written exposure control plans when
cleaning beryllium-contaminated areas and dealing with spills and
emergency releases. According to NABTU, OSHA's determination that the
only sources of contamination with which employers need be concerned
come from abrasive blasting is incorrect and therefore the ventilation
standard for construction (29 CFR 1926.57(f)(7)) does not provide
adequate coverage (Document ID 2240, p. 9). Similarly, AFL-CIO
disagreed with the proposed removal of this paragraph stating that the
existing ventilation standards for construction and shipyards are not
effective at addressing the toxicity of beryllium (Document ID 2210,
pp. 8-9; 2222, Tr. 116-17).
OSHA has determined that in the context of the known exposures in
construction and shipyards sectors, the previous requirements of
paragraph (j)(1) do not meaningfully increase protections for workers
beyond those provided by existing OSHA standards. As stated above, the
ventilation standards for construction (29 CFR 1926.57(f)(7)) and
general industry (29 CFR 1910.94(a)(7)), applicable to shipyards, both
require that spills must be cleaned up promptly, just as required by
paragraph (j)(1) of the beryllium standards. Further, beyond the
requirements of paragraph (j)(1), these standards specifically require
that the employer not permit dust to accumulate outside of the abrasive
blasting enclosure. These standards, in conjunction with the other
provisions in paragraph (j) that serve to further reduce the potential
for exposures above the PEL or STEL, provide the appropriate level of
protection for workers in these sectors. Further, in light of the
limited operations with beryllium exposure in these sectors, OSHA has
determined that paragraph (j) provides sufficient guidance for
employers on the limited circumstances in which they are allowed to use
cleaning methods such as dry sweeping and compressed air, making a
unique written plan for how to clean unnecessary in this context.
Accordingly, the agency is removing from paragraph (j) the requirement
for employers to follow the written exposure control plan in paragraph
(f) when cleaning beryllium-contaminated areas and to ensure that
spills and emergency releases of beryllium are cleaned up promptly and
in accordance with the written exposure control plan.
AFL-CIO disagreed with what it framed as OSHA's decision to trigger
the use of cleaning methods on exposures above the PEL or STEL instead
of ``a more conservative trigger of beryllium-contamination,'' claiming
the agency is ignoring the risk of health effects at exposures below
the PEL (Document ID 2210, p. 9). First, OSHA notes that AFL-CIO
misstates the revised trigger for paragraph (j)'s cleaning
requirements. OSHA intentionally drafted the requirement to use
cleaning methods that minimize the likelihood and level of airborne
exposure (renumbered paragraph (j)(1)) and the prohibition on dry
sweeping or brushing (renumbered paragraph (j)(2)) to apply whenever an
employer ``cleans up dust resulting from'' operations that cause, or
can reasonably be expected to cause, airborne exposure above the TWA
PEL or STEL. As explained above, OSHA intends these provisions to apply
where workers are either working in regulated areas in shipyards or in
areas with exposures above the TWA PEL or STEL in construction.
However, the requirements apply to cleaning up dust in these areas
regardless of whether the operation that produced the dust is being
performed at the time of the cleaning. In other words, cleaning methods
are tied to the location of operations and are not triggered on active
exposure above the TWA PEL or STEL, as AFL-CIO suggests. And although
revised paragraph (j)(3) prohibits the use of compressed for cleaning
when its use can reasonably be expected to cause airborne exposure
above the PEL or STEL, compressed air would not satisfy paragraph
(j)(1)'s requirement for the use of cleaning methods that minimize
airborne exposure unless other more effective methods were infeasible.
Further, in the general industry DFR, OSHA revised the definitions
of ``contaminated with beryllium'' and ``beryllium-contaminated'' to
clarify that these terms refer to contamination 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). OSHA reiterates
the agency's determination that beryllium contamination, as the agency
defines it, does not occur from the trace quantities of beryllium used
in abrasive blasting. OSHA has likewise determined that welding
operations in shipyards do not produce this sort of skin or surface
contamination. If OSHA maintained the term ``beryllium-contaminated''
in paragraph (j), the requirements for when and how employers can use
dry sweeping, brushing, or compressed air, or when they must employ
cleaning methods that minimize airborne exposure, would likely never be
triggered and workers already exposed would not receive the benefit of
these protections. For this reason, OSHA has determined that it is more
appropriate to trigger these requirements on the presence of dust
produced by an operation that causes, or can reasonably be expected to
cause, airborne exposure above the TWA PEL or STEL.
AFL-CIO also indicated that they opposed OSHA's proposal ``to
remove the requirement for `HEPA filtered vacuuming' '' in renumbered
paragraphs (j)(1) and (2) and questioned the agency's preliminary
determination that such methods may be problematic due to overloading
and clogging of the filters (Document ID 2210, p. 8). AFL-CIO contended
that HEPA-filtered vacuuming is commonly used and required in other
OSHA dust standards and that the record shows this method is the most
effecting and safe way to clean toxic dusts and therefore should be
used (Document ID 2210, pp. 8-9). OSHA disagrees with AFL-CIO's
interpretation that OSHA is removing a requirement to use HEPA-filtered
vacuuming. Paragraph (j) has never required the use of HEPA-filtered
vacuuming, but instead required the use of HEPA-filtered vacuuming ``or
other methods that minimize the likelihood and level of airborne
exposure.'' The proposed change removed the specific reference to HEPA-
filtered vacuuming while maintaining the requirement that employers
utilize cleaning methods that
[[Page 53954]]
minimize the likelihood and level of airborne exposure. OSHA has always
intended this requirement to be performance-oriented (see 82 FR at
2691). Further, in the 2017 final rule, OSHA acknowledged that
``methods that minimize the likelihood and level of airborne exposure
other than HEPA vacuuming may be appropriate for use in construction
and shipyards'' (82 FR at 2693). Alternative methods that are effective
in minimizing the likelihood and level of airborne exposure can include
the use of dust suppressants and wet methods such as wet sweeping or
wet shoveling (see 82 FR at 2693).
Moreover, revised paragraphs (j)(1) and (2) do not preclude the use
of HEPA-filtered vacuuming for cleaning. Removing this reference simply
eliminates any misunderstanding that HEPA-filtered vacuuming is
required (as AFL-CIO misinterpreted), particularly where HEPA-filtered
vacuuming proves problematic for the particular situation involving the
cleanup. Specifically, as OSHA noted in the proposal, abrasive blasting
operations produce large amounts of spent abrasive and particulate and
the use of HEPA vacuums to clean up these materials may result in
continual filter overload and clogging. Constant cleaning of these
filters could in fact cause additional exposures. OSHA has determined
that removing the specific reference to HEPA-filtered vacuuming while
continuing to allow its use is the appropriate approach for the
construction and shipyards sectors.
The CISC expressed concern about OSHA's inclusion of restrictions
on the use of dry sweeping and brushing for cleaning materials that
contain beryllium (Document ID 2203, pp. 16-17). CISC asserted that
employers will need to ``assess the extent of naturally occurring
beryllium in numerous construction materials to determine whether and
how the restriction would apply'' (Document ID 2203, p. 17). OSHA
disagrees with this perceived consequence of prohibiting the use of dry
sweeping and brushing. These restrictions apply only when cleaning up
dust from operations that cause, or can reasonably be expected to
cause, airborne exposure above the TWA PEL or STEL (29 CFR
1926.1124(j)(2)). As explained elsewhere in this preamble, there is no
evidence in the record demonstrating that naturally occurring beryllium
in common construction materials at the typical construction site
create exposures of concern, as CISC suggest. OSHA addresses similar
assertions by CISC regarding trace amounts of naturally occurring
beryllium in the Summary and Explanation for paragraph (f).
After reviewing these comments and considering the record as a
whole, OSHA has determined the proposed changes addressing the use of
cleaning methods and prohibiting dry sweeping or brushing will protect
workers from exposure to beryllium during cleaning operations and bring
clarity to the requirements of these provisions. Therefore, OSHA is
adopting the changes to renumbered paragraphs (j)(1) and (2) as
proposed.
AFL-CIO also raised concerns that revised paragraph (j)(3) only
prohibits the use of compressed air for cleaning when the use causes,
or can reasonably be expected to cause, exposures above the PEL or STEL
(Document ID 2210, p. 9). AFL-CIO stated that it is a significant
deviation from the current provision, which prohibits compressed air
unless combined with a ventilation system. In response to OSHA's
preliminary determination that ventilation may be impractical in very
dusty environments like those created by abrasive blasting operations,
AFL-CIO argued that the agency has not demonstrated that the use of
ventilation is infeasible or that the requirement for engineering
controls should be removed, ``relying only on the use of respirators .
. . , ignoring the hierarchy of controls'' (Document ID 2210, p. 9).
Finally, AFL-CIO states that OSHA previously determined that
prohibiting compressed air unless combined with ventilation was a
practical and feasible approach in dusty environments, and that this
provision is included in other dust standards (Document ID 2210, p. 9).
First, OSHA believes that ALF-CIO has misunderstood the hierarchy
of the housekeeping provisions. The housekeeping requirements in
paragraph (j) are triggered when workers clean up dust resulting from
operations that cause, or are reasonably expected to cause, airborne
exposure above the TWA PEL or STEL. Under paragraph (j)(1), when
cleaning in these areas employers must ensure the use of methods that
minimize the likelihood and level of airborne exposures. As explained
above, the use of compressed air does not satisfy this requirement
unless other more effective measures are infeasible. Following the
hierarchy of controls, only after other methods that minimize exposures
are shown to be ineffective or unsafe can the employer use methods such
as dry sweeping, brushing, or compressed air, and then must provide and
ensure the use of respiratory protection and PPE during these
activities under paragraph (j)(4). Even so, under revised paragraph
(j)(3), compressed air is entirely prohibited when its use causes, or
can reasonably be expected to cause, airborne exposure above the TWA
PEL or STEL.
OSHA further notes that the evidence in the record demonstrates
that abrasive blasting helpers, those responsible for cleaning up spent
abrasive, largely have minimal exposure to beryllium. As explained in
the Technological Feasibility chapter of the 2017 final rule Final
Economic Analysis (FEA), of the 30 abrasive blasting cleanup workers in
the exposure profile of the FEA, two had exposures over the new PEL of
0.2 mg/m\3\. One cleanup worker had an 8-hour TWA sample result of 1.1
mg/m\3\, but blasting took place in the area during this worker's
cleanup task and it is likely that the nearby abrasive blasting
contributed to the sample result. The other cleanup worker had a sample
result of 7.4 mg/m\3\, but that worker's exposure appears to be
associated with the use of compressed air for cleaning in conjunction
with nearby abrasive blasting (82 FR at 29197). This supports OSHA's
determination that the use of compressed air can cause exposure over
the PEL or STEL and, in this case, this activity would have been
prohibited under revised paragraph (j)(3).
After reviewing these comments and considering the record as a
whole, OSHA finds the proposed change prohibiting the use of compressed
air for cleaning where its use causes, or can reasonably be expected to
cause, airborne exposure above the TWA PEL or STEL will limit the use
of compressed air, such as when other methods are not feasible or
effective. Also, by requiring respirator use and personal protective
clothing and equipment where employees use dry sweeping, brushing, or
compressed air to clean will protect workers from exposure to beryllium
in circumstances when there is no feasible, alternative methods for
cleaning. Therefore, OSHA is adopting the changes to paragraphs (j)(3)
and (4) as proposed.
AFL-CIO also disagreed with OSHA's proposal to eliminate former
paragraph (j)(3), which required the employer to provide a copy of the
warning described in paragraph (m)(2) whenever it transferred materials
containing beryllium to another party for use or disposal. AFL-CIO
asserted that removing this provision would result in beryllium
exposure to downstream employers and workers (Document ID 2210, p. 9).
AFL-CIO indicated their belief that OSHA's general hazard
communications standard (HCS) is not sufficient to protect downstream
recipients of waste materials.
[[Page 53955]]
As explained in the Summary Explanation for paragraph (m), OSHA
proposed to remove the labeling requirements in paragraph (m), such as
the label referenced in paragraph (j)(3), to account for the trace
amounts of beryllium encountered in the construction and shipyards
sectors and to align these standards with the general industry
beryllium standard, which does not require the labeling of material
containing less than 0.1 percent beryllium by weight. OSHA reiterates
its finding that the known exposures in these sectors are limited to
materials containing beryllium in trace quantities and do not present a
risk from dermal contact. Further, there is no evidence in the record
that downstream recipients of these materials are at risk of airborne
exposure above the PEL or STEL from the trace amounts of beryllium in
these materials.
Moreover, OSHA explained in the NPRM that abrasive blasting media
is often contaminated with several toxic chemicals such as hexavalent
chromium or lead from the blasted substrate or coating on the substrate
(84 FR at 53918; see OSHA Fact Sheet, Protecting Workers from the
Hazards of Abrasive Blasting Materials, available at https://www.osha.gov/Publications/OSHA3697.pdf). AFL-CIO itself identified
lead, cadmium, and arsenic as hazards associated with abrasive blasting
operations (Document ID 2244, p. 11). OSHA remains concerned that
providing warnings specific to beryllium for materials that contain
trace beryllium and where airborne exposures are not anticipated to be
significant may overshadow or dilute hazard warnings for other
substances that do present a risk in this context. Neither AFL-CIO nor
any other commenter contradicted this concern. OSHA finds that the
general 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 other toxic
substances. Accordingly, OSHA is finalizing its proposal to remove
former paragraph (j)(3) from the construction and shipyards standards.
In conclusion, based on the record as a whole OSHA is finalizing
paragraph (j) as proposed.
Paragraph (k) Medical Surveillance
Paragraph (k) of the beryllium standard for construction and
shipyards addresses medical surveillance requirements. The paragraph
specifies which employees must be offered medical surveillance, as well
as the frequency and content of medical examinations. It also sets
forth the information that must be provided to the employee and
employer. 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. The inclusion of medical
surveillance in the beryllium standards for the construction and
shipyard industries is consistent with Section 6(b)(7) of the OSH Act
(29 U.S.C. 655(b)(7)), which requires that, where appropriate, medical
surveillance programs be included in OSHA health standards to aid in
determining whether the health of employees is adversely affected by
exposure to the hazards addressed by the standard.
In the 2019 NPRM, OSHA proposed several revisions to paragraph (k).
First, OSHA proposed removing paragraph (k)(1)(i)(C), which requires
medical surveillance after exposure to beryllium during an emergency,
to coincide with the removal of the term ``emergency'' from the
standards (84 FR at 53918-19). Second, OSHA proposed minor revisions to
paragraphs (k)(3)(ii)(A) and (k)(4)(i) to replace the phrase ``airborne
exposure to and dermal contact with beryllium'' in these provisions
with the simpler phrase ``exposure to beryllium'' (84 FR at 53919).
Finally, OSHA proposed two revisions to paragraph (k)(7)(i) to make it
consistent with recent changes to the beryllium general industry
standard \33\ (84 FR at 53919).
---------------------------------------------------------------------------
\33\ OSHA also proposed a number of minor, non-substantive edits
to paragraph numbering and references to account for the addition of
a new paragraph (k)(7)(ii).
---------------------------------------------------------------------------
With respect to OSHA's proposal to remove paragraph (k)(1)(i)(C),
as discussed previously in the Summary and Explanation for paragraph
(b), OSHA proposed 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 a 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. Therefore, employees would
already be protected from exposure in such circumstances. Accordingly,
OSHA preliminarily determined that no requirements should be triggered
for emergencies in construction and shipyards and proposed to remove
references to emergencies in provisions related to respiratory
protection, paragraph (g); medical surveillance, paragraph (k); and
hazard communication, paragraph (m). The agency also preliminarily
determined that without these provisions it would be unnecessary to
define the term emergency in paragraph (b) (84 FR at 53909).\34\
---------------------------------------------------------------------------
\34\ Due to the removal of paragraph (k)(1)(i)(C), OSHA is also
adding the word ``or'' at the end of paragraph (k)(1)(i)(B)
(following the semi-colon); removing a reference to paragraph
(k)(1)(i)(C) from paragraph (k)(2)(i)(B); and redesignating
paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C). Consistent with
that redesignation, OSHA is replacing the reference to paragraph
(k)(1)(i)(D) in paragraph (k)(2)(ii) with a reference to paragraph
(k)(1)(i)(C).
---------------------------------------------------------------------------
Some commenters objected to the proposed removal of provisions
relating to emergencies. Specifically, these commenters took issue with
OSHA's preliminary determination that an uncontrolled release of
beryllium in the construction and shipyards industries would not create
exposures that differ from normal operations. For a full discussion of
these comments and the agency's response, see the Summary and
Explanation for paragraph (g). In short, the agency is not persuaded
that the types of uncontrolled releases that necessitated emergency
provisions in the general industry standard are present in the
construction and shipyards industries. Accordingly, OSHA is finalizing
its proposal to remove all references to ``emergency'' or
``emergencies'' throughout the construction and shipyards standards.
Because those terms no longer appear in the standards' requirements,
OSHA is also finalizing its proposal to remove the definition of the
term ``emergency'' from paragraph (b).
AFL-CIO, NABTU, and NJH specifically commented on the proposed
removal of the emergency exposure trigger for a medical examination in
paragraph (k). AFL-CIO opposed the removal of the emergency provisions
and argued that medical surveillance should be required following an
emergency (Document ID 2210, p. 9). NABTU commented that a failure of a
containment used for abrasive blasting would be considered an emergency
(Document ID 2222, Tr. 85-86, 91-92). NABTU also noted situations where
construction workers could experience emergency exposures to beryllium
in manufacturing and processing facilities, and it urged OSHA to retain
the
[[Page 53956]]
definition for emergency and other related protections, such as the
trigger for an emergency examination. (Document ID 2240, p. 7). NABTU
also commented that questions about emergency exposures should ``be
included in the medical and work histories, to ensure that pertinent
information about potential exposures is not overlooked.'' (Document ID
2240, p. 8). In contrast, NJH agreed with OSHA that emergencies might
not occur, but recommended that if the trigger for emergency exposure
is removed, any exposure above the PEL should trigger medical
surveillance (Document ID 2211, p. 11). Specifically, NJH commented:
``Jobs and tasks that would generate beryllium exposure (demolition,
repair, clean up, abrasive blasting, welding, cleaning and grinding of
beryllium containing tools, etc.) may only be done periodically and
meeting the ``30 days over the action level'' in order to qualify for
medical surveillance may not be easy to quantify or may require
extensive recordkeeping as workers move from job to job or contract to
contract. Therefore, any exposures above the PEL should trigger the
medical surveillance and hazard communication provisions.'' (Document
ID 2211, p. 11). Lisa Barker from NJH further testified that persons
who are genetically susceptible can become sensitized from limited
exposures (Document ID 2222, Tr. 56-57).
As explained in the Summary and Explanation for paragraph (g), OSHA
is not reinstating a definition for emergency, and readers should refer
to that section for a complete explanation. In response to NABTU's
comment that emergency exposures should be included in medical and work
histories, OSHA does not specify the individual questions to include in
a medical and work history. Instead, OSHA simply requires that medical
and work histories include ``past and present exposure to beryllium.''
An unexpected exposure, such as would occur with a containment failure,
would therefore be included in the medical and work history for an
employee who undergoes medical surveillance under the beryllium
standard. In addition, paragraph (k)(4)(i) requires the employer to
inform the PLHCP about former and current levels of airborne exposure.
OSHA would expect the employer to inform the PLHCP if the employee
experienced an incident where he or she was exposed to levels of
beryllium that exceeded the employee's typical exposure levels.
In response to NJH's suggestion that, if the emergency provision is
removed, OSHA should require medical surveillance for any exposure
above the PEL, OSHA notes that NJH's position is not limited to
exposures in an emergency but to any exposures any exposures above the
PEL that occur for fewer than 30 days. In other words, NJH asks OSHA to
reconsider the appropriateness of the 30-day exposure-duration trigger
generally. OSHA evaluated the appropriateness of the 30-day trigger in
the 2017 final rule. At that time, NJH and other stakeholders opposed
the 30-day exposure-duration trigger for medical surveillance. After
careful consideration of comments and other evidence in the record,
OSHA decided to maintain the 30-day exposure-duration trigger because
it is consistent with the agency's risk assessment showing increasing
risk of health effects from exposure at increasing cumulative
exposures, which considers both exposure level and duration (82 FR at
2528-40, 2698). OSHA found a 30-day trigger to be a reasonable
benchmark for capturing increasing risk from cumulative effects caused
by repeated exposures. Between that rulemaking and the present, OSHA
has not received any additional evidence demonstrating that this
benchmark is inappropriate. Finally, OSHA notes that the 30-day
exposure-duration trigger is consistent with the general industry
beryllium standard and other OSHA health standards, such as the
standards for chromium (VI) (29 CFR 1910.1026), cadmium (29 CFR
1910.1027), lead (29 CFR 1910.1025), asbestos (29 CFR 1910.1001), and
respirable crystalline silica (29 CFR 1910.1053) (82 FR at 2698).
With respect to NJH's related concern regarding the tracking of
exposures in the construction industry--where tasks may be performed
intermittently at different locations--similar concerns were raised
during the respirable crystalline silica rulemaking. In that
rulemaking, OSHA acknowledged that tracking exposures in construction
can be challenging. However, it pointed to evidence in the record
showing that some construction employers were able to determine which
employees were exposed above the PEL based on employee schedules and
task-based hazard assessments. (81 FR 16285, 16815-16 (March 25,
2016)). Indeed, an employer can determine eligibility for medical
surveillance based on information from exposure assessments for the
various tasks and knowledge about how often the task is performed.
Compliance officers can also determine if employees who were exposed at
or above the action level for 30 or more days a year were not offered
medical surveillance by questioning employees about how often they
perform certain tasks. As such, OSHA finds it is possible to quantify
exposure for employees that are only periodically exposed to beryllium
without extensive recordkeeping. Accordingly, OSHA believes it is
appropriate to maintain the 30-day trigger and that this will not
create undue burdens with respect to recordkeeping.
Moreover, employees experiencing signs or symptoms or other
beryllium-related health effects after intermittent or unexpected
exposures to beryllium can ask for an examination under paragraph
(k)(1)(i)(B). Paragraph (m)(2)(i)(A) requires the employer to provide
information and training in accordance with the Hazard Communication
Standard (HCS), 29 CFR 1910.1200(h), for each employee who has, or can
reasonably be expected to have, airborne exposure to beryllium.
Paragraph (m)(2)(ii) also requires employers to ensure that these
employees can demonstrate knowledge and understanding of a number of
specified topics, including the signs and symptoms of CBD. Thus,
employees who are intermittently exposed should possess the knowledge
necessary to determine whether they should request an examination. In
summary, OSHA has determined that the evidence presented does not
support reinstating triggers for an emergency exposure or reconsidering
the 30-day exposure-duration as a trigger for medical surveillance.
The second set of changes that OSHA proposed were minor revisions
to paragraphs (k)(3)(ii)(A) and (k)(4)(i). Paragraph (k)(3)(ii)(A)
previously required the employer to ensure that the employee is offered
a medical examination that includes a medical and work history, with an
emphasis on, among other things, past and present airborne exposure to
or dermal contact with beryllium. Paragraph (k)(4)(i) previously
required the employer to ensure that the examining PLHCP (and the
agreed upon CBD diagnostic center, if an evaluation is required under
paragraph (k)(7) of this standard) had 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. In the 2019 NPRM, OSHA proposed to clarify these provisions
by replacing the phrase ``airborne exposure to and dermal contact with
beryllium'' with the simpler phrase ``exposure to beryllium'' (84 FR at
53919). OSHA reasoned that employees with beryllium exposure of any
kind should have access to records of their exposure, and this
information should also be made
[[Page 53957]]
available to an examining PLHCP and CBD diagnostic center, if
applicable. OSHA intended 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.
AFL-CIO and NABTU commented on OSHA's proposed changes to
paragraphs (k)(3) and (4). AFL-CIO opposed OSHA's proposed revision to
paragraph (k)(4)(i), arguing that it is important for the physician to
be informed about both airborne and dermal exposures and that removing
that clarification would increase confusion by putting the burden on
the employer and physician to understand OSHA's intent (Document ID
2210, p. 9). In further support of retaining provisions that provide
protection from dermal exposure, AFL-CIO referenced a previous comment
from NABTU stating that the skin should be examined because beryllium
exposure can result in ``skin irritation, skin bumps, and sores that
won't heal.'' (Document ID 2244, pp. 8-9; 1679, Attachment A, p. 1).
NABTU commented that OSHA should retain the ``protections against
airborne exposures'' in paragraph (k)(3) (Document ID 2240, p. 6).
OSHA clarifies that it does not intend to change the requirements
for the type of information provided to the physician, and if the
employee does have the potential for dermal exposure, the employer is
to provide that information to the physician. OSHA proposed this change
not to limit the type of information provided to physicians, but
instead, to make clear that employers and employees should inform
physicians about any type of beryllium exposure. OSHA continues to
believe that the change will reduce confusion by removing terminology--
the reference to dermal contact--that is not used in the construction
and shipyards standard. In addition, the requirement for the PLHCP to
examine the skin for rashes is retained in paragraph (k)(3)(ii)(C).
Consistent with the 2017 final rule, OSHA continues to believe that it
is important to examine the skin for rashes because it could be a sign
that dermal sensitization or exposures that put the employee at risk of
sensitization have occurred (82 FR at 2471). OSHA disagrees with AFL-
CIO that simplifying the language of these provisions will result in
confusion, because the revised text clearly encompasses all exposure to
beryllium. Accordingly, OSHA has decided to finalize the changes to
paragraph (k)(3)(ii)(A) and (k)(4)(i) as proposed.
The final set of changes that OSHA proposed to the construction and
shipyard standards' medical surveillance requirements is in paragraph
(k)(7), which contains the requirements for an evaluation at a CBD
diagnostic center. In this final rule, OSHA is amending paragraph
(k)(7) in three ways. First, OSHA is revising paragraph (k)(7)(i) to
require that the evaluation be scheduled within 30 days, and occur
within a reasonable time, of the employer receiving one of the types of
documentation listed in paragraph (k)(7)(i)(A) or (B). Second, OSHA is
adding a provision in paragraph (k)(7)(ii), which clarifies that, as
part of the evaluation at the CBD diagnostic center, the employer must
ensure that the employee is offered any tests deemed appropriate by the
examining physician at the CBD diagnostic center, such as pulmonary
function testing (as outlined by the American Thoracic Society
criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The
new provision also states that if any of the tests deemed appropriate
by the examining physician are not available at the CBD diagnostic
center, they may be performed at another location that is mutually
agreed upon by the employer and the employee. Third, OSHA is making a
number of minor, non-substantive revisions to the numbering and cross-
references in paragraph (k)(7) to account for the addition of new
paragraph (k)(7)(ii). Specifically, OSHA is renumbering current
paragraphs (k)(7)(ii), (iii), (iv), and (v) as (k)(7)(iii), (iv), (v),
and (vi), respectively, and is adding a reference to new paragraph
(k)(7)(ii) to the newly renumbered paragraph (k)(7)(vi). 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.
Each of these final revisions differ in some way from the proposed
amendments based on stakeholder feedback. With regard to the first
change concerning the timing of the exam, the previous standard
required employers to provide the examination within 30 days of the
employer receiving one of the types of documentation listed in
paragraph (k)(7)(i)(A) or (B). The purpose of the 30-day requirement
was to ensure that employees receive the examination in a timely
manner. However, since the publication of the 2017 final rule,
stakeholders have raised concerns that it is not always possible to
schedule and complete the examination and any required tests within 30
days (84 FR at 53919).
To address this concern, OSHA proposed that the employer provide an
initial consultation with the CBD diagnostic center, which could occur
via telephone or virtual conferencing methods, 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
explained that providing a consultation before the full examination at
the CBD diagnostic center would demonstrate that the employer made an
effort to begin the process for a medical examination. OSHA also noted
that the proposed change would also (1) allow the employee to consult
with a physician to discuss concerns and ask questions while waiting
for a medical examination, and (2) allow the physician to explain the
types of tests that are recommended based on medical findings about the
employee and explain the risks and benefits of undergoing such testing.
In both the 2019 NPRM for construction and shipyards (84 FR at 53919)
and the 2018 NPRM for general industry (83 FR at 63758), OSHA requested
comments on the appropriateness of providing the initial consultation
within 30 days and on the sufficiency of a consultation via telephone
or virtual conference.
OSHA received several comments on the proposed changes from NJH,
AFL-CIO, and Materion. NJH commented that an examination at the CBD
diagnostic center should not be required to occur within 30 days of the
referral because openings at clinics may not be available within a 30-
day period (Document ID 2211, p. 12). NJH further noted that ``[i]t is
common practice in most diagnostic centers to schedule specialty exams
within a 3-month window due to the need to coordinate worker time away
from work and home, physician visits, pulmonary function testing, chest
imaging, bronchoscopy and other testing for one clinical evaluation
visit'' (Document ID 2211, p. 12). At the public hearing, NJH testified
that an evaluation can take up to three days when an employee undergoes
procedures such as bronchoscopy because the employee has to be cleared
for testing, undergo testing on the following day, and then spend the
night locally to ensure there are no adverse effects before discharge
(Document ID 2222, Tr. 54).\35\ NJH also
[[Page 53958]]
opposed the proposed requirement for a consultation that can be
performed via telephone or virtual conferencing within 30 days of the
employer receiving documentation recommending a referral. NJH
commented: ``A video or phone consultation adds cost and logistics to
scheduling and is not necessary as the PLHCP who sees the employee for
screening provides information on the clinical evaluation. HIPAA
privacy issues of a phone or video conference also exist. A full
clinical evaluation including review of both the available medical and
exposure data and hands-on medical assessment are essential to
providing the best, most efficient care--from a time and financial
perspective.'' (Document ID 2211, pp. 12-13.)
---------------------------------------------------------------------------
\35\ In response to the 2018 NPRM for general industry, OSHA
received similar comments on the proposed timeline for the
evaluation at the CBD Diagnostic Center from ATS, NJH, and Materion
(Document ID OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-0022, pp. 5-
6; OSHA-2018-0003-0038, p. 34). DOD recommended that the evaluation
at the CBD Diagnostic center be scheduled within seven days
(Document ID OSHA-2018-0003-0029, p. 2), but OSHA found that this
would not give employees enough time to consider obligations and
have discussions with family members. The agency also found the 30-
day trigger to be administratively convenient because it is
consistent with other triggers in the beryllium standard (85 FR
42621).
---------------------------------------------------------------------------
Lisa Barker from NJH further testified that workers who are
sensitized but feel well may decide to forgo additional testing
following a video consultation (Document ID 2222, Tr. 54-55). These
workers would miss the opportunity to determine if they have the
disease, and if so, receive treatments to slow progression upon initial
confirmation of sensitization (Document ID 2222, Tr. 54-55). NJH also
expressed concerns related to the expertise and availability of a PLHCP
who might perform the consultation and about workers who may not have a
health care provider to facilitate a phone or video consultation
(Document ID 2243, p. 6).
NJH recommended that the employer be required to schedule the
appointment within 30 days, but that the actual evaluation can take
place beyond 30 days of the confirmed abnormal result (Document ID
2211, p. 13). AFL-CIO agreed with NJH on the proposed timeline for an
evaluation at a CBD diagnostic center (Document ID 2210, p. 9).
Materion agreed with NJH that an evaluation at the CBD diagnostic
center should be scheduled within 30 days after sensitization is
confirmed and documented; however, it noted that employees can withhold
test results from employers (Document ID 2237, p. 5).\36\
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\36\ In response to the NPRM for general industry, Materion
found OSHA's proposed change for a consultation with a CBD
diagnostic center more workable than an evaluation at a CBD
Diagnostic Center within 30 days, but similar to the comments
provided for this construction and shipyards NPRM, ATS and NJH
disagreed with the requirement for a consultation (Document ID OSHA-
2018-0003-0038, p. 34; OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-
0022, pp. 5-6).
---------------------------------------------------------------------------
After considering these comments, OSHA is convinced that scheduling
a phone or virtual consultation with the CDB diagnostic center is an
unnecessary step that adds logistical complications and costs. OSHA
finds that the scheduling approach suggested by NJH addresses both the
logistical difficulties and the timing concerns with respect to the
requirements in the current standard. Moreover, OSHA finds that
employees will have enough information (through trainings under
paragraph (m) and discussions with the PLHCP) to allow them to decide
whether to choose to be evaluated at the CBD diagnostic center without
the need for an additional consultation.\37\ OSHA is therefore amending
paragraph (k)(7)(i) to require that the employer schedule an
examination at a CBD diagnostic center within 30 days of receiving one
of the types of documentation listed in paragraph (k)(7)(i)(A) or (B).
In response to Materion's concern that an employee can choose to
withhold the recommendation for an evaluation at a CBD diagnostic
center from the employer, the paragraph makes clear that the
appointment must be scheduled within 30 days of the ``employer's
receipt'' of the appropriate documentation. That means that the
employer's obligations do not commence until the employer receives the
documentation for an evaluation at a CBD diagnostic center following
the employee's authorization.
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\37\ Under paragraph (k)(6)(i)(D), the employer is to ensure
that the PLHCP explains the results of the medical examination to
the employee, including results of tests conducted and medical
conditions related to airborne beryllium exposure that require
further evaluation or treatment.
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To achieve the intent of the 2017 final rule and the 2019 NPRM that
evaluation at a CBD diagnostic center occurs in a timely manner, OSHA
is adding that the evaluation must occur within a reasonable time.
Requiring that the evaluation occur within a reasonable time ensures
that the evaluation be done as soon as practicable based upon
availability of openings at the CBD diagnostic center and the
employee's preferences. This revision better addresses OSHA's original
intent that the employee be examined within a timely period, while
providing employees and employers with maximum flexibility and
convenience.
The second change that OSHA proposed to paragraph (k)(7)(i) relates
to the contents of the examination at the CBD diagnostic center. As
discussed in more detail above, the former definition of CBD diagnostic
center--which stated that the evaluation at the diagnostic center
``must include'' a pulmonary function test as outlined by American
Thoracic Society criteria, bronchoalveolar lavage (BAL), and
transbronchial biopsy--could have been misinterpreted to mean that the
examining physician was required to perform each of these tests during
every clinical evaluation at a CBD diagnostic center. That was not
OSHA's intent. Rather, the agency merely intended to ensure that any
CBD diagnostic center has the capacity to perform any of these tests,
which are commonly needed to diagnose CBD. Therefore, OSHA proposed
revising the definition to clarify that the CBD diagnostic center must
simply have the ability to perform each of these tests when deemed
appropriate.
To account for that proposed change to the definition of CBD
diagnostic center and to ensure that the employer provides those tests
if deemed appropriate by the examining physician at the CBD diagnostic
center, OSHA proposed 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
three tests mentioned above, if deemed appropriate by the examining
physician at the CBD diagnostic center (84 FR at 53919). OSHA explained
that the revision would also clarify the agency's original intent that,
instead of requiring all three 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 (84 FR at 53919).
OSHA received comments addressing the types of tests that should be
conducted for the evaluation of CBD. NJH commented that at a minimum, a
clinical evaluation for CBD should include ``full pulmonary function
testing (including lung volumes, spirometry and diffusion capacity for
carbon monoxide) and chest imaging'' (Document ID 2211, p. 4); that the
examination should include ``bronchoalveolar lavage and biopsy, whether
or not a person shows signs or symptoms of frank, chronic beryllium
disease'' (Document ID 2222, Tr. 56); and that ``the services should be
available at the center'' (Document ID 2211, p. 12). NJH recommended
that OSHA follow the American Thoracic Society guidelines recommending
that beryllium sensitized individuals undergo ``[Pulmonary function
testing] and chest imaging (either a chest radiograph or chest CT
[computerized tomography] scan,'' with consideration of bronchoscopy,
depending on
[[Page 53959]]
``absence of contraindications, evidence of pulmonary function
abnormalities, evidence of abnormalities on chest imaging, and personal
preference of the patient'' (Document ID 2211, pp. 2, 4, 12).
Similarly, NABTU submitted a description of the Building Trades
National Medical Screening Program recommending that sensitized persons
without clinical signs of CBD undergo pulmonary function testing and a
high resolution chest CT, with lavage or biopsy only if the pulmonary
function tests or CT scans suggest CBD or if the patient prefers to
undergo lavage or biopsy (Document ID 2202, Attachment 4, PDF page 97).
Lisa Barker from NJH testified that if OSHA does not specify such
tests, medical directors may not order some tests because of a lack of
education or information or because the worker feels well and is not
interested in an evaluation (Document ID 2222, Tr. 66-68).\38\
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\38\ Similar comments regarding the need for certain tests to
diagnose CBD were submitted in response to the general industry NPRM
by ATS, NJH, and AOEC (Document ID OSHA-2018-0003-0021, p. 3; OSHA-
2018-0003-0022, p. 3; OSHA-2018-0003-0028, p. 2).
---------------------------------------------------------------------------
After reviewing these comments and the remainder of the record on
this issue, OSHA remains convinced that pulmonary function testing,
BAL, and transbronchial biopsies are important diagnostic tools but
finds that the examining physician at the CBD diagnostic center is in
the best position to determine which diagnostic tests are appropriate
for particular workers. The agency believes that the modified
definition of the term CBD diagnostic center, which requires the
centers to have the capacity to perform these three tests, will serve
to ensure that healthcare providers at the centers are aware of the
importance of and are able to perform these tests.
However, OSHA understands that the proposed provision could be
misinterpreted to mean that the employer does not have to make
available additional tests that the examining physician deems
appropriate for reasons such as diagnosing or determining the severity
of CBD. That was never the agency's intent. In fact, OSHA noted the
potential for other tests, as deemed necessary by the CBD diagnostic
center physician, at several points in the preamble to the 2017 final
rule (see, e.g., 82 FR at 2709, 2714). Similar to paragraph
(k)(3)(ii)(G), which provides that the employer must ensure that the
employee is offered as part of the initial or periodic medical
examination any test deemed appropriate by the PLHCP, OSHA intends for
the employer to ensure the employee is offered any tests deemed
appropriate by the examining physician at the CBD diagnostic center,
including tests for diagnosing CBD, for determining its severity, and
for monitoring progression of CBD following diagnosis. Allowing the
physician at the CBD diagnostic center to order additional tests that
are deemed appropriate is also consistent with most OSHA substance-
specific standards, such as respirable crystalline silica (29 CFR
1910.1053) and chromium (VI) (29 CFR 1910.1026).
To clarify the agency's intent that the physician at the CBD
diagnostic center has discretion to order appropriate tests, and to
further respond to stakeholder concerns regarding the necessity of
pulmonary function testing, BAL, and transbronchial biopsies, OSHA is
adding a new paragraph (k)(7)(ii), which focuses on the content of the
examination. This new provision requires that the evaluation include
any tests deemed appropriate by the examining physician at the CBD
diagnostic center, such as pulmonary function testing (as outlined by
the ATS criteria), BAL, and transbronchial biopsy. OSHA intends for the
new provision to make clear that the employer must provide additional
tests, such as those recommended by NJH, ATS guidelines, and by
Building Trades National Medical Screening Program, at no cost to the
employee, if those tests are deemed necessary by the examining
physician. The agency also believes that explicitly naming the three
examples of tests that may be appropriate will further emphasize their
importance to examining physicians at the CBD diagnostic centers.
Consistent with OSHA's original intent, those tests are only
required to be offered if deemed appropriate by the physician at the
CBD diagnostic center. For example, if lung volume and diffusion tests
were performed according to ATS criteria as part of the periodic
medical examination under paragraph (k)(3), and the physician at the
CBD diagnostic center found them to be of acceptable quality, those
tests would not have to be repeated as part of a CBD evaluation. The
addition of paragraph (k)(7)(ii) clarifies that the employer must,
however, offer any test that the PLHCP deems appropriate. Consistent
with previous health standards and the meaning of the identical phrase
in paragraph (k)(3)(ii)(G), OSHA intends the phrase ``deemed
appropriate'' to mean that additional tests requested by the physician
must be both related to beryllium exposure and medically necessary,
based on the findings of the medical examination (see 82 FR at 2709;
Occupational Exposure to Respirable Crystalline Silica, 81 FR 16286,
16514 (March 25, 2016)). Because of the technical expertise that a
facility must have in order to meet the definition of a CBD diagnostic
center, OSHA is also confident that physicians at those facilities will
have the expertise to identify additional tests that may be useful to
diagnose or assess the severity of CBD.
New paragraph (k)(7)(ii) also addresses the possibility that a test
that is deemed appropriate by the examining physician at the CBD
diagnostic center might not be available at that center. Although
OSHA's intention has been to require any testing to be provided by the
same CBD diagnostic center unless the employer and employee agree to a
different CBD diagnostic center (see 83 FR at 63758), there may be
cases where the CBD diagnostic center does not perform a type of test
deemed appropriate by the examining physician. In such a case, OSHA
wants to ensure that the employee can receive the appropriate test.
Therefore, OSHA is also including in paragraph (k)(7)(ii) a requirement
that if any of those tests deemed appropriate by the physician are not
available at the CBD diagnostic center, they may be performed at
another location that is mutually agreed upon by the employer and the
employee. This other location does not need to be a CBD diagnostic
center as long as it is able to perform tests according to requirements
under paragraph (k).
In summary, final paragraph (k)(7)(i) requires that the employer
provide an evaluation at no cost to the employee at a CBD diagnostic
center that is mutually agreed to by the employer and the employee. The
evaluation must be scheduled within 30 days and must occur within a
reasonable time of the employer receiving one of the types of
documentation listed in paragraph (k)(7)(i)(A) or (B). Final paragraph
(k)(7)(ii) requires that the evaluation include any tests deemed
appropriate by the examining physician at the CBD diagnostic center,
such as pulmonary function testing (as outlined by the ATS criteria),
BAL, and transbronchial biopsy. Paragraph (k)(7)(ii) further requires
that if any of the tests deemed appropriate by the examining physician
are not available at the CBD diagnostic center, they may be performed
at another location that is agreed upon by
[[Page 53960]]
the employer and employee and at no cost to the employee.\39\
---------------------------------------------------------------------------
\39\ OSHA is also making a number of minor, non-substantive
revisions to the numbering and cross-references in paragraph (k)(7)
to account for the addition of new paragraph (k)(7)(ii).
Specifically, OSHA is renumbering current paragraphs (k)(7)(ii)-(v)
as (k)(7)(iii), (iv), (v), and (vi), and is adding a reference to
new paragraph (k)(7)(ii) to the newly renumbered paragraph
(k)(7)(vi).
The addition of paragraph (k)(7)(ii) and consequential
renumbering of current paragraphs (k)(7)(ii)-(v) also affects two
other cross-references in the standard. Paragraphs (l)(1)(i)(B) and
(l)(1)(ii) reference paragraphs (k)(7)(ii) and (k)(7)(iii),
respectively. In this final rule, OSHA is updating those references
to reflect the renumbering in paragraph (k)(7).
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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 take additional steps to warn and train employees
about the hazards of beryllium. Under the HCS, beryllium manufacturers
and importers are required to evaluate the hazards of beryllium and
prepare labels and safety data sheets (SDSs) and provide both documents
to downstream users. Employers whose employees are exposed to beryllium
in their workplace must develop a hazard communication program and
ensure that employees are trained on the hazards of beryllium. These
employers must also ensure that all containers of beryllium are labeled
and that employees are provided access to the SDSs. In addition to the
requirements under the HCS, paragraph (m)(1)(ii) of the beryllium
standards specify certain criteria that must be addressed in
classifying the hazards of beryllium. In the standard for shipyards,
paragraph (m)(2) requires employers to provide and display warning
signs with specified wording at each approach to a regulated area.
Paragraph (m)(3) of the shipyards standard, and paragraph (m)(2) of the
construction standard, details employers' duties to provide information
and training to employees.
In the 2019 NPRM, OSHA proposed three changes to paragraph (m) of
the construction and shipyard standards to align with proposed changes
to other provisions in these standards. First, OSHA proposed to remove
the paragraph (m) provisions that require specific language for warning
labels applied to bags and containers of clothing, equipment, and
materials contaminated with beryllium (paragraph (m)(2) in construction
and paragraph (m)(3) in shipyards).\40\ This is consistent with OSHA's
proposal to remove the corresponding requirements to provide such
warning labels from paragraphs (h)(2)(v) and (j)(3). As explained in
the 2019 NPRM, and earlier in this Summary and Explanation with regard
to paragraphs (h)(2)(v) and (j)(3), OSHA proposed to remove the
requirements in both standards to label PPE removed from the workplace
for laundering, cleaning, maintenance, or disposal and to label
beryllium-containing material destined for disposal in accordance with
the labeling requirements in paragraph (m) of the 2017 final rule. The
agency proposed these changes to reflect its intent that provisions
aimed at protecting workers from the effects of dermal contact need 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--in the absence of significant
airborne exposure. OSHA applied the same rationale to the limited
welding operations in shipyards, where the agency had evidence that at
most only trace amounts of particulate beryllium will form (84 FR at
53906); see also the Summary and Explanation for paragraphs (h) and
(j). Accordingly, the agency preliminarily determined that labels are
not necessary to protect employees in the context of trace beryllium in
construction and shipyards, and, therefore, the provisions of paragraph
(m) mandating specific language for such labels are likewise
unnecessary.
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\40\ As a result, OSHA proposed to renumber paragraph (m)(4) in
the shipyards standard (29 CFR 1915.1024) as (m)(3), renumber
paragraph (m)(3) in the construction standard (29 CFR 1926.1124) as
(m)(2), and revise the references in paragraph (m)(1)(ii) of both
standards accordingly.
---------------------------------------------------------------------------
National Jewish Health (NJH) objected to OSHA's proposal, stating
that all PPE and waste that is contaminated with or contains beryllium
should be labeled as such. ``It is not always the case that the
contamination contains only trace amounts of beryllium. . . . It cannot
be overlooked that workers in the construction industries may be
involved in demolition and disassembly of beryllium contaminated
buildings, machines and materials'' (Document ID 2211, p. 13). NJH
further noted that DOE beryllium training materials state, ``Laundry
workers and personnel who are responsible for the cleaning and
maintenance of respirators have a high potential for being exposed to
airborne beryllium dust'' (Document ID 2211, p. 13; COMMUNICATING
HEALTH RISKS WORKING SAFELY WITH BERYLLIUM: Training Reference for
Beryllium Workers and Managers/Supervisors Facilitator Manual,
Beryllium Health Risk Communication Task Force, DOE, April 2002,
https://www.energy.gov/sites/prod/files/2014/09/f18/communicating_0.pdf). AFL-CIO similarly expressed concern that without
the labeling requirements of the 2017 standard, downstream recipients
of contaminated PPE and scrap materials generated during renovation or
demolition of beryllium manufacturing sites would not be informed of
the potential for airborne beryllium exposure for workers handling
these items (Document ID 2210, pp. 8-9; 2222, pp. 118-19).
AFL-CIO also raised concerns about the removal of labeling
requirements for construction materials that are contaminated with
beryllium that are dumped in landfills (Document ID 2244, pp. 3-4).
AFL-CIO indicated that landfill workers are at risk of exposure to
airborne dust that may be created by their work activities. Without
label information on beryllium-containing waste materials sent from
construction activities, they argue, landfill workers may not don
appropriate PPE to protect themselves from beryllium exposure while
performing their work duties. In their comments, NABTU also included
landfill employees as a group of workers with potential beryllium
exposure from construction activities (Document ID 2202, p. 4).
OSHA has no evidence that laundry or landfill workers who handle
PPE or materials designated for disposal from construction sites or
shipyards would engage in tasks that generate airborne exposure of
concern. First, the agency believes that NJH's reliance on DOE's 2002
instruction manual is misplaced. The manual is directed specifically to
DOE facilities; facilities that processed materials containing
beryllium in more than trace quantities. In fact, for purposes of DOE's
own beryllium regulations, the agency defines beryllium as any
insoluble beryllium compound or alloy containing 0.1 percent beryllium
or greater that may be released as an airborne particulate (10 CFR
850.3). The DOE manual is therefore not relevant to the construction
and shipyards context.
Furthermore, evidence in the record demonstrates that, with respect
to materials containing only trace quantities of beryllium, airborne
dust concentrations must be very high for exposures to approach even
the action level (AL). For dust containing less than 4 ppm beryllium,
airborne dust concentrations would have to exceed 25 mg/m3 to reach the
beryllium AL of 0.1 [mu]g/m\3\. This level of dust would
[[Page 53961]]
significantly exceed the OSHA PEL for nuisance dust, or Particulate Not
Otherwise Classified (PNOC), of 15 mg/m\3\ (see Document ID 2235, p. 2;
FEA for the 2017 Final Rule, Chapter IV, p. IV-640). OSHA has no reason
to suspect that residual dust on PPE and other materials from
construction and shipyards sites is likely to create this level of
airborne dust from laundry or landfill operations. Therefore, the
agency has determined that recipients of PPE or waste from these
worksites are not expected to be exposed at airborne levels of concern
from re-entrainment of trace beryllium from these materials. And, as
explained previously, provisions aimed at protecting workers from the
effects of dermal contact need not apply to materials containing only
trace amounts of beryllium unless those workers are also exposed to
significant airborne beryllium.
OSHA has retained certain provisions that protect construction and
shipyard employees whose work activities involve exposures exceeding
the PEL, such as abrasive blasters, from further airborne exposure via
re-entrainment of beryllium-containing dust from PPE or other surfaces
in the workplace. These include requiring the employer to ensure that
each employee removes 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
(paragraph (h)(2)(i)); requiring the employer to ensure that personal
protective clothing and equipment required by this standard is not
removed in a manner that disperses beryllium into the air (paragraph
(h)(2)(ii)); requiring the employer to ensure that all reusable
personal protective clothing and equipment required by this standard is
cleaned, laundered, repaired, and replaced as needed to maintain its
effectiveness (paragraph (h)(3)(i)); requiring the employer to 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 (paragraph (h)(3)(ii)); and
requiring the employer to include procedures for removing, cleaning,
and maintaining personal protective clothing and equipment in
accordance with paragraph (h) of this standard in their written
exposure control plan(s) (paragraph (f)(1)(i)(F)).
OSHA proposed to remove those provisions which would apply only to
employees whose work activities do not involve airborne exposure above
the PEL, for whom potential exposure to re-entrained beryllium from
materials containing trace amounts is not a significant concern. As
OSHA explained in the Summary and Explanation for paragraphs (h)(2)(v)
and (j)(3), this approach is consistent with the general industry
standard as modified by the DFR, which does not require labeling for
materials that contain only trace quantities of beryllium and are
designated for disposal, recycling, or reuse.
In the case where construction workers are removing materials from
a beryllium manufacturing site covered by the general industry
standard, beryllium-contaminated materials destined for disposal must
be cleaned and labeled by the host employer pursuant to paragraph
(j)(3) of the beryllium standard for general industry. Indeed, even
without the specific requirement in the beryllium standard, OSHA has
had a long-standing interpretation that the HCS requires upstream
suppliers to pass on any information they have regarding known
contaminants of scrap transferred to downstream recipients (see Letter
to Edward L. Merrigan, from John Miles, Jr., Directorate of Field
Operations (May 23, 1986), available at https://www.osha.gov/laws-regs/standardinterpretations/1986-05-23).
Finally, AFL-CIO quoted a comment previously submitted by
Washington Group International (WGI) (see Document ID 0324) which
includes the proposition that ``it is crucial that government/
industrial buildings be screened for beryllium process operations'' and
appears to suggest that, similar to DOE facilities, all facilities
should do air monitoring and wipe sampling and pass this information on
to future facility users (Document ID 2244, p. 4). It is unclear
whether AFL-CIO intended their presentation of WGI's quote to suggest
that all government and industrial buildings should air-monitor and
sample surfaces for the presence of beryllium. OSHA believes that this
approach may be appropriate for DOE, which has a limited number of
sites that are known to have processed beryllium. However, requiring
all government and industrial sites to do air monitoring and wipe
sampling would be of little value since the likelihood of finding
beryllium would be minuscule. Beryllium, unlike lead and asbestos, is
not found in common building materials or coatings (see Document ID
2237, pp. 2-3). Therefore unless a manufacturing site has evidence that
beryllium is present through the review of SDSs, the likelihood that
workers will encounter materials contaminated with beryllium is low.
And, as noted above, where construction workers are removing materials
from a beryllium manufacturing site covered by the general industry
standard, beryllium-contaminated materials destined for disposal must
be cleaned and labeled by the host employer pursuant to paragraph
(j)(3) of the beryllium standard for general industry.
Accordingly, OSHA has determined that the previous labeling
provisions in paragraph (m) (paragraph (m)(2) in construction and
(m)(3) in shipyards) are not necessary in the construction and
shipyards contexts and is finalizing the removal of these provisions as
proposed.
OSHA next proposed to revise the provisions of paragraph (m) for
employee information and training to remove requirements related to
emergency procedures ((m)(3)(ii)(D) in construction and (m)(4)(ii)(D)
in shipyards) \41\ and personal hygiene practices ((m)(3)(ii)(E) in
construction and (m)(4)(ii)(E) in shipyards). These proposed revisions
correspond with OSHA's proposed removal of emergency procedures and
personal hygiene practices from the construction and shipyard
standards. As discussed in the 2019 NPRM and earlier in this Summary
and Explanation, OSHA proposed 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 (84 FR
at 53917; see also the Summary and Explanation for paragraph (g)). As
such, any uncontrolled release of beryllium in these operations would
not create exposures that differ from the normal conditions of work and
workers will already be protected by the other provisions of paragraph
(g). OSHA also proposed to remove the hygiene provisions of the
construction and shipyard standards 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 (84 FR at 53920; see also the Summary
[[Page 53962]]
and Explanation for paragraph (i)). As with the previously discussed
labeling requirement, OSHA reasoned that the removal of these
provisions would render the correlating training requirements
unnecessary.
---------------------------------------------------------------------------
\41\ OSHA proposed to renumber the provisions of paragraph
(m)(3)(ii) in construction and (m)(4)(ii) in shipyards to reflect
the removal of this paragraph.
---------------------------------------------------------------------------
In response to OSHA's proposal to remove the hygiene provisions and
related training requirements from both standards in favor of OSHA's
general sanitation standards, NJH stated that ``beryllium exposure
poses a unique hazard for workers.'' As such, NJH argued that employees
should continue to be trained on beryllium-specific hygiene practices
(Document ID 2211, p. 13). AFL-CIO objected to the removal of
requirements on training for both emergency and hygiene provisions,
though they did not provide any additional explanation of their
opposition (Document ID 2210, p. 10). As stated above, OSHA proposed to
remove the training requirements related to emergencies and hygiene
areas and practices from paragraph (m) because the agency proposed to
remove the underlying requirements from the regulatory text.
With respect to emergencies, OSHA has determined that the
operations with known beryllium exposure in the construction and
shipyards sectors do not have emergencies in which exposures differ
from the normal conditions of work. As such, workers in these
operations are already protected by other provisions of the beryllium
standards and emergency-specific provisions are not necessary (see the
Summary and Explanation for paragraph (g)). OSHA has also determined
that partial overlap between the hygiene requirements of the beryllium
standards for construction and shipyards and those of existing OSHA
standards, combined with the trace quantities of beryllium present in
these industries, make beryllium-specific hygiene requirements
unnecessary in the construction and shipyards standards (see the
Summary and Explanation for paragraph (i)). OSHA is finalizing the
regulatory text as proposed for these provisions. In light of OSHA's
decision to remove these requirements, OSHA finds that it is
unnecessary to maintain the beryllium-specific training requirements
for these provisions. Accordingly, OSHA is finalizing the removal of
training provisions on emergency procedures ((m)(3)(ii)(D) in
construction and (m)(4)(ii)(D) in shipyards) and hygiene areas and
practices ((m)(3)(ii)(E) in construction and (m)(4)(ii)(E) in
shipyards), as proposed.
OSHA also proposed to revise paragraphs (m)(3)(i) in construction
and (m)(4)(i) in shipyards--renumbered in the final standards as
(m)(2)(i) and (m)(3)(i), respectively--to remove dermal contact as a
trigger for training. The 2017 final standards for general industry,
construction, and shipyards originally provided for limited training
for each employee who has, or can reasonably be expected to have,
airborne exposure to or dermal contact with beryllium. Specifically,
paragraph (m)(3)(i)(A) in construction and (m)(4)(i)(A) in shipyards
provided for training for each such employee in accordance with the
requirements of the HCS (29 CFR 1910.1200(h)), including specific
information on beryllium as well as any other hazards addressed in the
workplace hazard communication program.\42\ However, in the 2017 final
rule, OSHA recognized that beryllium exposure in the 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; see also the 2017 FEA, Document
ID 2042, p. III-66). 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 (83 FR at 19938).
Therefore, OSHA preliminarily determined in the 2019 NPRM for
construction and shipyards that training in accordance with the HCS
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 noted that both standards already exempt materials
containing less than 0.1 percent 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 1915.1024(a)(3) (shipyards)). OSHA reasoned that the HCS
training requirements in proposed paragraph (m)(2) for construction and
proposed paragraph (m)(3) for shipyards would continue to apply to all
workers that are covered under these standards, regardless of the
potential for dermal contact (84 FR at 53920-21). OSHA did not receive
any comments on the removal of dermal contact as a trigger for training
in accordance with the HCS and is therefore finalizing it as proposed.
---------------------------------------------------------------------------
\42\ Paragraph (m)(3)(ii) in the 2017 construction standard and
paragraph (m)(4)(ii) in the 2017 shipyard standard required the
employer to ensure that each employee who is or can reasonably be
expected to be exposed to airborne beryllium can demonstrate
knowledge of all nine enumerated categories of information.
---------------------------------------------------------------------------
OSHA also proposed to revise renumbered paragraphs (m)(2)(ii)(A) in
the construction standard and (m)(3)(ii)(A) in the shipyards standard
to remove references to ``airborne exposure'' and ``dermal contact''
and instead to require training on the health hazards associated with
``exposure to beryllium.'' OSHA likewise proposed to revise renumbered
paragraphs (m)(2)(ii)(D) in the construction standard and (m)(3)(ii)(D)
in the shipyards standard to require training on measures employees can
take to protect themselves from ``exposure to beryllium.'' These
revisions, OSHA explained, would maintain OSHA's intent that training
must cover both airborne and skin exposure while both resolving an
inconsistency between the shipyards and construction standards with
respect to references to dermal contact and simplifying the provisions
(84 FR at 53921).
AFL-CIO commented that ``OSHA should not alter the requirement for
employers to train workers on the health hazards associated with
airborne and dermal exposure to beryllium.'' According to the AFL-CIO,
it is important for a worker to be provided with all potential exposure
scenarios, including airborne and dermal exposures, so they can
understand the full risk of exposure (Document ID 2210, p. 10). As the
agency emphasized in the 2019 NPRM, the phrase ``exposure to
beryllium'' is intended to encompass both airborne and skin exposure to
beryllium (84 FR at 53921). Thus, the proposed language maintains the
requirement to train workers on both airborne and dermal exposures. By
resolving an inconsistency in the previous standards regarding dermal
contact, OSHA intends the proposed change to ensure that employers
include dermal contact when training workers on the specific hazards of
beryllium.
In previously submitted comments, NABTU has expressed concern that
they do not see a high level of awareness about hazards related to
beryllium among workers in the construction industry apart from
abrasive blasters and contract workers for DOE, citing a survey the
union performed with trainers in the construction industry (Document ID
2202, Attachment 1, p. 8). OSHA believes that a few factors could
explain this lack of awareness outside DOE and abrasive blasting.
First, as explained earlier in this preamble, abrasive blasting is the
primary source of exposure in the construction industry
[[Page 53963]]
and even the agency has been unable to obtain reliable data about any
additional sources of exposure in the construction industry. This
suggests that exposures in other contexts, if they occur, are rare (see
the summary and explanation for paragraph (f)). Second, OSHA notes that
while DOE has had a specific beryllium standard in place since 1999 (10
CFR part 850) due to the particular risks of exposure in its
facilities, OSHA's comprehensive standards were only promulgated in
2017.
OSHA included hazard communication and training provisions in these
standards specifically to ensure awareness in those industries covered
by the standards. As employers implement the beryllium standards for
general industry, construction, and shipyards, the agency expects this
lack of awareness to dissipate. Furthermore, paragraph (e)(2) of the
HCS (29 CFR 1910.1200) requires employers who produce, use, or store
hazardous chemicals at a workplace to ensure that workers have access
to safety data sheets and to inform workers of any precautionary
measures needed during ``normal operation conditions or foreseeable
emergencies.'' These requirements of the HCS further serve to raise
awareness among potentially exposed workers. OSHA has considered the
comments in the record and, for the reasons explained above, is
finalizing the changes to paragraph (m) as proposed.\43\
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\43\ OSHA is also removing the heading ``Employee Information''
from paragraphs (m)(2)(iv) in the construction standard and
(m)(3)(iv) in the shipyards standard to comply with the Federal
Register's drafting rules. The requirements of these provisions are
unchanged.
---------------------------------------------------------------------------
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, and the Assistant
Secretary in accordance with OSHA's records access standard, 29 CFR
1910.1020. The 2017 final rule required employers to include employees'
Social Security Numbers (SSNs) in air monitoring data ((n)(1)(ii)(F)),
medical surveillance ((n)(3)(ii)(A)), and training ((n)(4)(i)) records.
In the 2019 NPRM, OSHA proposed to revise paragraphs (n)(1)(ii)(F),
(n)(3)(ii)(A), and (n)(4)(i) of both the construction and shipyards
standards to remove those requirements (84 FR at 53921). This final
rule adopts the proposed revisions, eliminating the requirements to
include employee SSNs in monitoring data, medical surveillance, and
training records.
In the 2015 beryllium NPRM which led to the 2017 final rule, OSHA
proposed to require inclusion of employee SSNs in records related to
air monitoring, medical surveillance, and training, as it had done in
several existing substance-specific health standards (80 FR 47566,
47806 (August 7, 2015)). In their comments, some stakeholders objected
to the proposed requirements based on concerns about employee privacy
and the risk of identity theft (82 FR at 2730). In the 2017 final rule,
OSHA acknowledged these concerns, but concluded that, due to the
agency's past consistent practice of requiring an employee's SSN on
records, any change to such requirements should be comprehensive and
apply to all OSHA standards, not just the standards for beryllium (82
FR at 2730).
After OSHA published the 2015 beryllium proposal but before issuing
the 2017 final beryllium rule, OSHA published its Standards Improvement
Project-Phase IV (SIP-IV) proposed rule (81 FR 68504, 68526-28 (October
4, 2016)), in which the agency proposed to delete all requirements for
employers to include employee SSNs in records required by the agency's
substance-specific standards. Because the beryllium standards had not
yet been finalized, they were not included in the SIP-IV proposal.
Accordingly, the 2017 final rule for beryllium included the SSN
requirements. However, OSHA acknowledged in the preamble that the SIP-
IV rulemaking was ongoing and stated that it would revisit its decision
to require employers to include SSNs in beryllium records in light of
the SIP-IV rulemaking, if appropriate (82 FR at 2730).
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)).\44\ 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). Consistent with the SIP-IV
final rule, OSHA proposed in the 2019 NPRM to modify the beryllium
standards for construction and shipyards by removing the requirements
to include SSNs in the recordkeeping provisions in paragraphs
(n)(1)(ii)(F) (air monitoring data), (n)(3)(ii)(A) (medical
surveillance) and (n)(4)(i) (training) (84 FR at 53921).
---------------------------------------------------------------------------
\44\ 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).
---------------------------------------------------------------------------
Two commenters, the AFL-CIO (Document ID 2210, p. 10) and NJH
(Document ID 2211, p. 14), expressed general support for the proposed
removal of the requirements to include employees' SSNs in these three
sets of records. No commenter opposed the proposed revisions. However,
after stating their support for the change, NJH noted that ``it is
important that there is an identifying link between exposure monitoring
data and medical surveillance data in order to identify areas of
increased risk'' (Document ID 2211, p. 14).
OSHA acknowledges NJH's concern but notes that the beryllium
standards have never required employers to link their exposure
monitoring to medical surveillance data in this way. Even so, employers
remain free to utilize SSNs, or any other unique employee identifier,
if doing so helps them to identify areas of increased risk. Regardless,
the agency believes that areas of increased risk will be identifiable
based on the medical surveillance records alone. Paragraph (k)(6)
requires that, with the employee's consent, the licensed physician's
written medical opinion for the employer must include the PLCHP's
recommendations regarding limitations on the employee's airborne
exposure to beryllium, referrals to a CBD Diagnostic Center, continued
medical surveillance, and medical removal. This information will alert
the employer to possible increased risk of exposure in the processes in
which that employee works and the need to reevaluate these processes.
It may also trigger the requirement in paragraph (f)(1)(ii) that the
employer review and evaluate the effectiveness of its written exposure
control plan. Therefore, OSHA has determined that the proposed
revisions to paragraph (n) will not impair the identification of areas
of increased risk within a worksite or facility.
NJH's comment also touches on a related concern regarding the
removal of requirements to record workers' SSNs in exposure monitoring
and medical
[[Page 53964]]
records. As OSHA explained in the SIP-IV NPRM, the agency originally
required the collection of employee SSNs in its standards because SSNs
are assigned at birth and do not change over time. SSNs are therefore
useful for research that tracks employees over time, as is done in some
epidemiological studies of workplace populations (81 FR at 68527).
While OSHA acknowledged the usefulness of SSNs for such research, the
agency further noted that other tracking methods have emerged that
allow researchers to conduct these studies without the use of SSNs.
OSHA stated that due to the seriousness of the threat of identity theft
and the availability of other methods for tracking employees for
research purposes, it was appropriate to reexamine the SSN collection
requirements in its standards (81 FR at 68527). Weighing these
considerations in the SIP-IV final rule, OSHA determined that it was
appropriate to remove from OSHA standards all requirements for employee
SSNs in employer records (84 FR at 21439-40). OSHA reaffirms its
conclusions on this issue here.
Accordingly, OSHA is finalizing the proposed changes to paragraph
(n) in this final rule, which will align the beryllium standards for
construction and shipyards with OSHA's other substance-specific
standards by removing the requirements to include employees' SSNs in
air monitoring data ((n)(1)(ii)(F)), medical surveillance
((n)(3)((ii)(A)), and training ((n)(4)(i)) records. OSHA expects that
compliance with paragraph (n) as revised will be straightforward for
construction and shipyard employers who already comply with other OSHA
standards that no longer contain requirements to include employee SSNs
in records. Lastly, OSHA notes, as it did in the SIP-IV final rule,
that by removing the requirements to include SSNs in records, OSHA is
not requiring employers to delete SSNs from existing records or
prohibiting employers from using SSNs in records if they wish to do so
(see 84 FR at 21439-40).
IV. Final Economic Analysis
A. Introduction
This Final Economic Analysis (FEA) addresses issues related to the
profile of affected application groups, establishments, and employees;
and the cost savings and the benefits of OSHA's rule to modify several
construction and shipyard ancillary provisions. This rule 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 FEA would lead to total
annualized cost savings of $2.5 million in 2019 dollars at a 3 percent
discount rate over 10 years; and total annualized cost savings of $2.6
million in 2019 dollars at a discount rate of 7 percent over 10 years.
When the Department uses a perpetual time horizon, the annualized cost
savings of the rule would be $2.3 million in 2016 dollars at a 7
percent discount rate.
The rule is not a ``significant regulatory action'' under Executive
Order 12866 or the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1501 et seq.); nor 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 rule exceed $100 million. In addition, they do
not meet any of the other criteria specified by the UMRA for a
significant regulatory action or the Congressional Review Act for a
major rule.
This final rule makes several changes to the beryllium standards
for construction and shipyards. These 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 more closely align the shipyards and construction standards to
the general industry beryllium standard with respect to the medical
definitions and medical surveillance requirements, where appropriate;
and (3) to clarify certain requirements with respect to materials
containing only trace amounts of beryllium.
This FEA provides OSHA's assessment of how this rule will affect
the costs and benefits of complying with the beryllium standards for
construction and shipyards, including costs adjustments to reflect
changes in exposure rates and baseline compliance rates. All costs are
estimated in 2019 dollars. Costs reported in 2019 dollars were applied
directly in this FEA; wage data were updated to 2019 dollars using BLS
data (BLS, 2020a); \45\ and all other costs reported for years earlier
than 2019 were updated to 2019 dollars using the GDP implicit price
deflator (BEA, 2020).\46\
---------------------------------------------------------------------------
\45\ Bureau of Labor Statistics, Occupational Employment
Statistics Survey--May 2019 (Released March 31, 2020) (Document ID
2248), available at http://www.bls.gov/oes/tables.htm (Accessed July
9, 2020) (BLS, 2020a).
\46\ Bureau of Economic Analysis, Table 1.1.9. Implicit Price
Deflators for Gross Domestic Product (Document ID 2246), available
at https://apps.bea.gov/iTable/iTable.cfm?reqid=19&step=3&isuri=1&nipa_table_list=13 (Accessed July
9, 2020) (BEA, 2020).
---------------------------------------------------------------------------
This introduction to the FEA 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 profile of industries affected
by this final rule. 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 (Document ID 2042); the PEA for the June 27,
2017 beryllium proposal (2017 PEA) (82 FR 29189-216); and the PEA for
the October 8, 2019 beryllium proposal (2019 PEA) (82 FR at 53922-45).
Much of the analysis here is unchanged from the 2019 PEA because, as
will be explained below, the agency received no new information or data
during the comment period that would alter the agency's analysis.
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.\47\ The agency provided this information for each
affected industry as
[[Page 53965]]
a whole, as well as for small entities, as defined by the Small
Business Administration (SBA), and ``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 would be affected by the beryllium
standards. 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.
---------------------------------------------------------------------------
\47\ 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,\48\ 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.\49\
Finally, this section discusses wage data, the hire rate, and current
industry practices.
---------------------------------------------------------------------------
\48\ The exposure profile used for welding in shipyards in this
FEA, 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 from the appendices to Chapter IV of the 2017 FEA. See 82 FR
29195.
\49\ 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 these affected application
groups has not changed. For a full description of these application
groups, see Chapter III of the FEA for the 2017 final rule (Document ID
2042) and section V.B. of the 2017 construction and shipyards NPRM, the
Profile of Affected Application Groups, Establishments, and Employees
within the PEA (82 FR at 29189-29200).
As discussed throughout this preamble, several commenters to the
October 9, 2019 NPRM took issue with OSHA's focus on abrasive blasters
and welders, arguing that construction and shipyards workers in various
other jobs may be exposed to beryllium. For example, commenters argued
that workers may be exposed to beryllium during the dressing of
beryllium-containing non-sparking tools (Document ID 2208, p. 6; 2211,
p. 7; 2222, Tr. 17-19) and during decommissioning, demolition, or
renovation work at facilities that process beryllium (Document ID 2213,
p. 3; 2239, p. 1; 2222, Tr. 84-85). However, as explained in the
Summary and Explanation for paragraph (f), these commenters did not
provide, nor does the record contain, sufficient data for the agency to
characterize exposures in these or any other application groups outside
of abrasive blasting and welding. The agency suspects that if
additional exposures do occur they are rare, and would not
significantly impact the agency's economic analysis.
Other commenters, including the CISC and NDA, suggested that the
agency has underestimated the cost of complying with the beryllium
standard for construction because, they contend, all construction
employers must perform exposure assessment to determine whether
beryllium is present at their worksite in trace amounts (Document ID
2203, p. 16; 2205, p. 2). However, as discussed in the Summary and
Explanation, apart from certain abrasive blasting media, those
materials at the typical construction site that the agency has
identified as containing beryllium in trace amounts (i.e., rock, soil,
concrete, and brick) are not likely to release airborne beryllium above
the action level under foreseeable conditions and therefore do not
typically trigger the requirements of the standard. Further, for any
additional materials containing comparably low levels of beryllium, an
employer may rely on objective data that employees will not be exposed
above the PEL for total airborne dust to qualify for the exemption
under paragraph (a)(3). Hence the agency does not expect any workplace
assessments to be needed for construction sites using typical
construction materials containing trace amounts of beryllium.
Accordingly, the application groups for this FEA remain the same as
those identified in the 2019 PEA; that is, abrasive blasting in
construction and shipyards and certain welding operations in shipyards.
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 except for updated revenue data.
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
[[Page 53966]]
Appendix 3, Table IV.61 with sampling durations of 240 minutes or
greater were used in this profile to represent the 8-hour TWA samples.
Compared to 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 Sections
10.6 and 10.7 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 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 ([micro]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 (%)
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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 [micro]g/m\3\ (see Chapter IV-02, Limits of Detection for Beryllium Data, in the 2017 FEA (Document ID
2042)). 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 [micro]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 ([micro]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
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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
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Total
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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).
[[Page 53967]]
Table IV-3--Number of Workers Exposed to Beryllium by Affected Industry and Exposure Level (mg/m\3\)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exposure Level ([micro]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 >2.0 Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 rule. Also
shown are the estimated annual revenues for these entities. Table IV-5
presents the agency's estimate of affected entities defined as small by
SBA, and Table IV-6 presents OSHA's estimate of affected establishments
and employees by NAICS industries for the subset of small entities with
fewer than 20 employees.\50\ 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 and subsequent rulemaking analyses
has requested public comment on the profile data presented in Tables
IV-4, IV-5, and IV-6, and has received none.
---------------------------------------------------------------------------
\50\ 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 FEA. 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 Beryllium Standards--All Entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
Total Total Total Affected Affected Affected revenues Revenues/ Revenues/
NAICS code Industry entities establishments employees entities establishments employees ($1,000) entity [a] establishment [a]
[a] [a] [a] [b] [b] [b] [a]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
238320..................... Painting and Wall Covering 31,317 31,376 163,073 1,088 1,090 4,360 $21,099,458 $673,738 $672,471
Contractors.
238990..................... All Other Specialty Trade 28,734 29,072 193,631 998 1,010 4,040 42,420,391 1,476,313 1,459,149
Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a.................... Ship Building and Repairing. 604 689 108,311 604 689 3,060 28,142,463 46,593,482 40,845,374
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b.................... Ship Building and Repairing. 604 689 108,311 6 7 26 28,142,463 46,593,482 40,845,374
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal.................................... 60,051 60,448 356,704 2,086 2,100 8,400 63,519,849 1,057,765 1,050,818
Maritime Subtotal........................................ 604 689 108,311 610 696 3,086 28,142,463 46,593,482 40,845,374
Total, All Industries.................................... 60,655 61,137 465,015 2,696 2,796 11,486 91,662,312 1,511,208 1,499,294
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[a] Data may not sum to totals due to rounding. [a] US Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034).
[[Page 53968]]
[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), with updated revenues as shown in Document ID 2250.
Table IV-5--Characteristics of Construction and Shipyard Industries Affected by OSHA's Beryllium Standards--Small Entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
SBA small Affected Affected Total
business Small Establishments Small small Affected small employees revenues for Revenues/ Revenues/
NAICS code Industry classification business for small entity business establishments for small small small small
(employees) entities entities [b] employees entities [c] entities entities entity establishment
[a] [b] [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 $17,822,841 $570,861 $570,459
Covering Contractors
238990.................. All Other Specialty 100 28,537 28,605 143,112 991 994 2,986 32,076,205 1,124,022 1,121,350
Trade Contractors
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a................. Ship Building and 1,250 585 629 27,170 585 629 768 6,507,836 11,124,507 10,346,322
Repairing
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b................. Ship Building and 1,250 585 629 27,170 6 6 7 6,507,836 11,124,507 10,346,322
Repairing
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal............................. .............. 59,758 59,848 276,976 2,076 2,079 6,565 49,899,046 835,019 833,763
Maritime Subtotal................................. .............. 585 629 27,170 591 635 775 6,507,836 11,124,507 10,346,322
Total, All Industries............................. .............. 60,343 60,477 304,146 2,667 2,714 7,340 56,406,882 934,771 932,700
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Data may not sum to totals due to rounding.
[a] SBA Size Standards, 2016.
[b] US Census Bureau, Statistics of US 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), with updated revenues as shown in Document ID 2250.
Table IV-6--Characteristics of Industries Affected by OSHA's Beryllium Standards--Entities With Fewer Than 20 Employees
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Affected
Employees Affected Affected employees Total Revenue per
Entities Establishments for entities establishments for revenues for Revenues estab. for
Application group NAICS Industry with <20 for entities entities with <20 for entities entities entities per entity entities
employees with <20 with <20 employees with <20 with <20 with <20 with <20 with <20
[a] employees [a] employees [b] employees [b] employees employees employees employees
[a] [b] ($1,000) [a]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting-- 238320 Painting and Wall Covering 29,953 29,957 87,984 1,041 1,041 2,352 $11,448,144 $382,204 $382,153
Construction. Contractors.
Abrasive Blasting-- 238990 All Other Specialty Trade 27,026 27,041 90,82 939 939 1,895 20,708,351 766,238 765,813
Construction. Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting-- 336611a Ship Building and Repairing. 380 381 2,215 380 381 381 589,796 1,552,093 1,548,020
Shipyards.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards...... 336611b Ship Building and Repairing. 380 381 2,215 4 4 4 589,796 1,552,093 1,548,020
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal................................................... 56,979 56,998 178,806 1,980 1,980 4,247 32,156,495 564,357 564,169
Shipyards Subtotal...................................................... 380 381 2,215 384 385 385 589,796 1,552,093 1,548,020
Total, All Industries................................................... 57,359 57,379 181,021 2,364 2,365 4,632 32,746,291 570,901 570,702
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Data may not sum to totals due to rounding.
[a] US Census Bureau, Statistics of US 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), with updated revenues as shown in Document ID 2250.
Loaded Wages and New Hire Rate
For this FEA, OSHA updated the wage estimates from the 2019 PEA.
Data for base wages by Standard Occupational Classification (SOC) are
from the May 2019 Occupational Employment Statistics survey of the
Bureau of Labor Statistics (BLS). OSHA applied a fringe markup (loading
factor) of 45.8 percent of base wages (see BLS, Employer Costs for
Employee
[[Page 53969]]
Compensation, March 2019 (Document ID 2249), available at https://www.bls.gov/news.release/archives/ecec_06182019.htm) (BLS, 2020c); \51\
loaded hourly wages by application group and SOC are shown in Table IV-
7. OSHA also used the new hire rate for manufacturing of 31.8 percent
(BLS, Job Openings and Labor Turnover Survey (JOLTS), 2019 (Document ID
2247), available at http://www.bls.gov/jlt/data.htm) (BLS, 2020b).
Finally, due to changes in data availability in the most recent OES,
the occupation for a PLCHP, which in the PEA used Family and General
Physicians (SOC 29-1062), has been changed to Physicians, All Other;
and Ophthalmologists, Except Pediatric (SOC 29-1228).
---------------------------------------------------------------------------
\51\ A fringe markup (loading factor) of 45.8 percent was
calculated in the following way. Employer costs for employee
compensation for civilian workers averaged $36.77 per hour worked in
March 2019. Wages and salaries averaged $25.22 per hour worked and
accounted for 68.6 percent of these costs, while benefits averaged
$11.55 and accounted for the remaining 31.41 percent. Therefore, the
fringe markup (loading factor) is $11.55/$25.22, or 45.8 percent.
Total employer compensation costs for private industry workers
averaged $34.49 per hour worked in March 2019 (BLS, 2020c, Document
ID 2249).
---------------------------------------------------------------------------
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 in the construction and shipyards standards. See Chapter III
of the 2017 FEA (Document ID 2042) for additional discussion of the
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.
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 removing dermal contact with
beryllium as a trigger for PPE requirements. This clarifies and limits
the activities that would trigger PPE requirements under this rule,
making a higher baseline compliance estimate more appropriate. The
agency has 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 estimates 90 percent 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 revisions.
For welders in shipyards, OSHA estimated a 0 percent compliance
rate in the 2017 FEA and revised that estimate to 100 percent
compliance 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 (82 FR at 29197-201). The agency received no comments on
the compliance rates for welders either from the 2017 PEA or from the
2019 PEA. Hence, OSHA continues to estimate a 100 percent 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).\52\
---------------------------------------------------------------------------
\52\ 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 percent compliance rate with respirators that met the
beryllium standards' requirements. In the 2017 PEA (82 FR at 29197),
operators, but not pot tenders or clean-up workers, were revised to 100
percent compliance due to the strict existing standards for operators
(see Sec. Sec. 1926.57(f) and 1915.34(c)(3)(iv)). This FEA continues
to use these baseline compliance estimates of 100 percent for operators
and 75 percent for pot tenders and clean-up workers.
For welders in shipyards, the 2017 FEA estimated 0 percent
compliance with proper respirator use and a 25 percent compliance rate
with the requirement to establish a respiratory protection program.
OSHA revised this estimate to 100 percent in the 2019 PEA (84 FR at
53927) because several other standards address respiratory protection
for welders in shipyards, including 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)), and the general Respiratory
Protection standards (29 CFR 1910.134, 1915.154). The agency received
no new comment on these revisions to the compliance rates from either
the 2017 PEA or the 2019 PEA and will use the same estimates in this
FEA.
The baseline compliance rates for the housekeeping provisions in
the 2017 FEA were 0 percent for welders in shipyards and 75 percent 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
percent to 100 percent 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 rule discusses the agency's 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 revisions, limit, like dry sweeping or brushing and compressed air.
Under this rule, 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 will only affect areas where workers are exposed above the
TWA PEL or STEL in the exposure profile. While the 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
[[Page 53970]]
approximately the same amount of time as cleaning methods already in
use. The agency received no comment on this revision to the compliance
rate from either the 2017 PEA or the 2019 PEA. For abrasive blasting
operations, the agency therefore maintains from the 2017 PEA its 100
percent compliance rate for housekeeping for abrasive blasting
operations.
For welders in shipyards, OSHA estimated a 0 percent 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 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 revisions and is
maintaining its 2019 PEA baseline compliance estimate for housekeeping
to 100 percent 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 percent 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 FEA, as in the 2019 PEA, OSHA is setting the compliance rates
under housekeeping for vacuums, bags, and labels to 100 percent as this
rule removes those requirements from the standard.
The baseline compliance rates for the hygiene areas provisions in
the 2017 FEA were 0 percent for welders in shipyards and 75 percent 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 removing paragraph (i),
hygiene areas, from the construction and shipyards standards. The
standards as modified by this final rule, as in the NPRM, therefore no
longer require employers to comply with any hygiene-related provisions,
and the baseline compliance is revised to 100 percent to demonstrate
that there will be no cost associated with hygiene areas under the
rule.
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 FEA.
As a final point on baseline industry practices, OSHA acknowledges
the possibility of a future decline in the use of coal slag abrasive
materials but did not receive new evidence 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 and STEL for abrasive
blasting operations would also decrease.
Table IV-7--Loaded Hourly Wages for Occupations (Jobs) Exposed to Beryllium and Affected by OSHA's Beryllium Standard
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fringe Loaded
markup hourly (or
Provision in the standard Job NAICS SOC [a] Occupation Median percentage, daily [d])
hourly wage total [b] wage
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monitoring [c]...................... Industrial Hygienist N/A N/A N/A.................... N/A N/A $175.34
Consultant.
Monitoring [d]...................... IH Technician--Initial. ........... ........... ....................... ........... ............ 2,808.63
IH Technician-- ........... ........... ....................... ........... ............ 1,379.86
Additional and
Periodic.
Regulated Area/Job Briefing [e]..... Production Worker...... 31-33 51-0000 Production Occupations. 17.78 45.8 25.92
Medical Surveillance [e]............ Human Resources Manager 31-33 11-3121 Human Resources 55.29 45.8 80.61
Managers.
Exposure Control Plan, Medical Clerical............... 31-33 43-4071 File Clerks............ 16.98 45.8 24.76
Surveillance, and Medical Removal
[e].
Training [e]........................ Training Instructor.... 31-33 13-1151 Training and 28.94 45.8 42.19
Development
Specialists.
Medical Surveillance [e]............ Physician (Employers' 31-33 29-1228 Physicians, All Other; 94.10 45.8 137.19
Physician). and Ophthalmologists,
Except Pediatric.
Multiple Provisions [f]............. First Line Supervisor.. Various 51-1011 First-Line Supervisors 30.30 45.8 44.18
of Production and
Operating Workers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2020) (Document ID 2250).
[a] 2010 Standard Occupational Classification System. Bureau of Labor Statistics. http://www.bls.gov/soc/classification.htm.
[b] BLS, 2020c. 45.8 percent represents fringe as a percentage of base wages. BLS-reported data for fringe as a percentage of total compensation is 31.4
percent.
[c] ERG estimates based on discussions with affected industries, and inflated to 2019 Dollars.
[d] Wages used in the economic analysis for the Silica final rule, inflated to 2019 Dollars.
[e] BLS, 2020a
[f] BLS, 2020a; Weighted average for SOC 51-1011 in NAICS 313000, 314000, 315000, 316000, 321000, 322000, 323000, 324000, 325000, 326000, 327000,
335000, 336000, 337000, and 339000.
[[Page 53971]]
Table IV-8--Estimated Current Compliance Rates for Industry Sectors Affected by OSHA's Beryllium Standard
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hygiene Respirators Housekeeping
Exposure Regulated Medical Medical Exposure ------------------------------- --------------------------------------------------------
Application group Job assessment areas/ surveillance removal control PPE (%) Training Employee/ Establishment/ Vacuum,
(%) competent (%) 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, 2020) (Document ID 2250).
[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 in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
[[Page 53972]]
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). Because this final rule contains no new
requirements that might raise feasibility concerns, OSHA's
technological feasibility analysis remains unchanged from the 2017
final rule. The findings are 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 2612-15), 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
2019 dollars. All cost savings in this FEA similarly are expressed in
2019 dollars and were annualized using discount rates of 3 percent and
7 percent, as required by OMB.\53\ 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 FEA (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.
---------------------------------------------------------------------------
\53\ See OMB Memo M-17-21 (April 5, 2017), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf. 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).
Estimated compliance rates are presented in Table IV-8 in Section B
of this FEA. The estimated costs for this beryllium rule represent the
additional costs necessary for employers to achieve full compliance
with the rule. The costs of complying with the beryllium 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 FEA. Complete calculations are available in the OSHA
spreadsheet in support of the FEA (Document ID 2250). Annualization
periods for expenditures on equipment are based on equipment life, and
one-time costs are annualized over a 10-year period.\54\ The agency
first presents costs for the full 2017 final rule with only updated
wages, unit costs, and hiring rates based on 2019 data, updated from
the PEA for this proposal. 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 rule are benchmarked.
---------------------------------------------------------------------------
\54\ 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 $12.8 million at a discount rate of 3
percent, an increase of 4 percent 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, 2019 dollars]
----------------------------------------------------------------------------------------------------------------
Very small
Application group/NAICS Industry All Small entities entities (<20
establishments (SBA-defined) employees)
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320............................... Painting and Wall $4,770,711 $4,018,176 $2,815,214
Covering
Contractors.
238990............................... All Other 4,421,009 3,399,888 2,321,792
Specialty Trade
Contractors.
----------------------------------------------------------------------------------------------------------------
[[Page 53973]]
Abrasive Blasting--Shipyards
----------------------------------------------------------------------------------------------------------------
336611a.............................. Ship Building and 3,581,319 1,148,925 602,325
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding in Shipyards
----------------------------------------------------------------------------------------------------------------
336611b.............................. Ship Building and 75,030 21,996 12,306
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal.................................... 9,191,720 7,418,064 5,137,007
Maritime Subtotal........................................ 3,656,348 1,170,921 614,631
Total, All Industries.................................... 12,848,069 8,588,985 5,751,638
----------------------------------------------------------------------------------------------------------------
Notes: Figures in rows may not add to totals due to rounding.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2020)
(Document ID 2250).
To estimate the cost savings of this rule, 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
rule. 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 rule 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, the 2019 PEA, or in this FEA. There is not one
broadly accepted overhead rate, and the use of overhead to estimate the
marginal costs of labor raises a number of issues that should be
addressed before applying overhead costs to analyze the 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,\55\
and government contractors have reportedly used an average 50 percent
for on-site (i.e., company site) overhead.\56\ 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.
---------------------------------------------------------------------------
\55\ 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.
\56\ 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 rule would increase by
approximately $243,000 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, 2019 dollars]
----------------------------------------------------------------------------------------------------------------
Very small
Application group/NAICS Industry All Small entities entities (<20
establishments (SBA-defined) employees)
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320........................... Painting and Wall $948,051 $780,379 $516,588
Covering
Contractors.
[[Page 53974]]
238990........................... All Other Specialty 878,469 652,049 417,270
Trade Contractors.
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------
336611a.......................... Ship Building and 664,522 171,816 86,053
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding in Shipyards **
----------------------------------------------------------------------------------------------------------------
336611b.......................... Ship Building and 20,896 5,520 3,063
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal.................................. 1,826,520 1,432,428 933,858
Shipyard Subtotal...................................... 685,418 177,336 89,116
Total, All Industries.................................. 2,511,938 1,609,763 1,022,974
----------------------------------------------------------------------------------------------------------------
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.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2020)
(Document ID 2250).
Program Cost Savings
This subsection presents OSHA's estimated cost savings from this
rule for each provision individually. Each provision will be discussed
separately below. Because many of the revisions discussed in the 2019
Preliminary Economic Analysis (PEA) are being finalized as proposed,
this FEA focuses primarily on differences from the 2017 final rule.
Where OSHA has made changes from the 2019 PEA or received comments
related to its analysis, the agency discusses those changes and
comments. 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 2019 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
OSHA did not propose 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 making 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 2017 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 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 Rule
For the written exposure control plan, OSHA is making several
revisions. First, OSHA is removing the words ``airborne'' and ``or
dermal contact with'' as qualifiers for exposure to beryllium. This
will 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 rule would reduce the number of elements that
must be listed in the plan. The elements OSHA is eliminating 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,
[[Page 53975]]
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 including a new
requirement to list procedures used to ensure the integrity of each
containment used to minimize exposures to employees outside the
containment. Finally, there is a change from the NPRM that the written
control plan must document procedures for removing, cleaning, and
maintaining personal protective clothing and equipment.57 58
---------------------------------------------------------------------------
\57\ Several commenters discussed the written exposure control
plan as it relates to the overall scope of the rule. A discussion of
comments on this subject can be found in the Summary and Explanation
section. For purposes of this FEA, the agency is not making any
adjustments to its scope of affected industries.
\58\ This new addition from the NPRM is judged to have
negligible effects on the cost of the written control plan. Hence
the cost estimates for this provision in this FEA are the same as
the NPRM.
---------------------------------------------------------------------------
The agency estimates that the cost for the written exposure control
plan will be cut in half due to the reduced requirements in this rule.
This estimate includes the additional time needed for the new
paragraphs that require including procedures both for containment and
the removal, cleaning, and maintaining of PPE. OSHA estimated in the
2017 final rule 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 in this final
rule, the agency judges that a manager will need only 4 hours, a
reduction of 4 hours, for a per establishment cost savings of $322.44
at an hourly wage of $80.61 (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 2017 beryllium standards that the development of a plan would
require an extra thirty minutes of a manager's time per affected
employee over the 4 hours required for average-sized firms. The reduced
number of job titles and operations that would need to be listed in
some cases for this rule, 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 $20.15 (0.25 x $80.61) per affected employee in
this FEA.
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 under the 2017 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 $32.24 (0.4 x $80.61 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 rule, 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......................................... $80.61
Unit Cost Savings per Establishment..................... $322.44
Unit Cost Savings per Employee.......................... $20.15
------------------------------------------------------------------------
Review Plan
------------------------------------------------------------------------
HR Manager Hour Decrease per Employee................... 0.10
Times Reviewed per Year................................. 4
HR Manager Wage......................................... $80.61
Unit Cost Savings per Employee.......................... $32.24
------------------------------------------------------------------------
Total
------------------------------------------------------------------------
Unit Cost Savings per Establishment..................... $322.44
Unit Cost Savings per Employee.......................... $52.39
------------------------------------------------------------------------
Sources: BLS, 2020a; BLS, 2018; US DOL, OSHA, Directorate of Standards
and Guidance, Office of Regulatory Analysis (OSHA, 2020) (Document ID
2250).
OSHA estimates that the total annualized cost savings for reducing
the requirements for development and update of a written exposure
control plan is $126,668 for all affected industries in shipyards and
construction.
In addition, OSHA is revising 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 Document ID 2042,
Chapter V, pp. V-11 to V-12). Thus, this revision has no effect on
costs.
OSHA is not revising 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.
[[Page 53976]]
OSHA is not revising 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 Rule
Changes From the 2017 FEA
OSHA is revising 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 from the 2019 PEA and are discussed below.
Updated Baseline Compliance Estimates
As discussed in section IV.B of this FEA, the compliance rate for
respirator use, for abrasive blasting operators only, is estimated to
be 100 percent in this FEA, due to closer analysis of existing
standards for operators. The 2017 FEA estimated compliance rates for
respirators for all abrasive blasting occupations as 75 percent. Hence,
there is a cost adjustment due to the 25 percent 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
FEA, slightly decreased respirator use as well. The 2017 FEA estimated
a 0 percent compliance rate for respiratory protection and a 25 percent
compliance rate for setting up a respiratory protection program, while
this FEA estimates a 100 percent compliance rate for both. The 2017 FEA
estimated 29.7 percent of welders in shipyards had beryllium exposures
over the new PEL of 0.2 [micro]g/m\3\. The 2017 PEA and this FEA
estimate that only 3.7 percent 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 2019 wage rates based on BLS data and the GDP
implicit price deflator, with two exceptions. First, blasting
operators, due to other existing standards (Sec. Sec. 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
$80.61 (Human Resources Managers, SOC: 11-3121), for an initial cost of
$645 (8 x $80.61). Every year thereafter, OSHA estimates that the same
employee will take 2 hours to update the respirator program, for an
annual cost of $161 (2 x $80.61).
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 explained in the 2019 PEA that the agency now believes
that despite the fact that PAPRs are assigned to individual employees,
PAPRs, like half-mask respirators, will need periodic cleaning (84 FR
at 53934). No commenter challenged this determination and the agency is
including the cost for respirator cleaning in this FEA.
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 $25.92 (Production Occupations, SOC: 51-0000). Multiplied
together, this gives an annual respirator cleaning cost of $270.03 (125
x 0.08 x $25.92). Summing these costs together, the total annualized
per-employee cost for a full-face powered air-purifying respirator is
$1460.01 ($147.87 + $96.03 + $946.08 + $270.03).
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 percent of pot
tenders and clean-up workers who need respirators (accounting for an
unchanged baseline compliance rate of 75 percent), this amounts to 2.5
percent 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 percent of workers.
For the revised compliance rate for abrasive blasting operators,
from 75 percent in the 2017 FEA to 100 percent in this FEA, there is a
cost adjustment due to the 25 percent 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 percent
of
[[Page 53977]]
respirators), and the cost of half-mask respirators (90 percent of
respirators).
The cost adjustment due to the change in the exposure profile for
welders discussed in section IV.B of this FEA 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 percent, 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 FEA
follows the 2017 FEA of estimating 10 percent of workers will still be
above the PEL after the standards take effect. The compliance rate for
operators went from 75 percent in the 2017 FEA to 100 percent in this
FEA, so 25 percent of operators above the PEL after the rule is in
place were assigned costs in the 2017 FEA that, with the 100 percent
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 percent of the cost of a half-mask respirator and 10
percent of a PAPR. For the abrasive blasting operators above the PEL,
this gives a total cost adjustment of $41,507.
As discussed above, 2.5 percent 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 an
additional cost adjustment of $12,556 for the revision from the 2017
FEA of including cleaning costs for PAPRs for these workers.
Welders in shipyards were inadvertently assigned a 0 percent
compliance rate in the 2017 FEA, revised in this FEA to 100 percent.
Hence all welders in shipyards, found in Table IV-2, will be affected.
Like all others needing respirators, in the 2017 FEA, 90 percent were
assigned half-mask respirators and 10 percent were assigned PAPRs.
These two groups of welders, multiplied by the costs of their
respective type of respirators (minus the cleaning costs that were not
accounted for in the 2017 FEA), gives a cost adjustment of $871 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, together give a total cost adjustment of $54,934, as shown
in Table IV-16.
Tables IV-12 and IV-13 summarize 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........................... $25.92 $25.92
Supervisor wage......................... $44.18 $44.18
Hourly cost per employee................ $36.97 $36.97
Annual Cost Savings per Employee........ $73.94 $147.87
------------------------------------------------------------------------
Respirator Cleaning Cost Savings
------------------------------------------------------------------------
Frequency per year...................... 125 125
Employee hours.......................... 0.08 0.08
Employee wage........................... $25.92 $25.92
Annual Cost Savings per Employee........ $265.30 $270.03
------------------------------------------------------------------------
Fit Testing
------------------------------------------------------------------------
Testing group size...................... 4.00 2.00
Employee hours.......................... 1.00 2.00
Employee wage........................... $25.92 $25.92
Supervisor wage......................... $44.18 $44.18
Annual Cost Savings per Employee........ $36.97 $96.03
------------------------------------------------------------------------
Equipment Cost
------------------------------------------------------------------------
Respirator.............................. $34.28 $988.31
Respirator service life (years)......... 2 3
Annualized respirator cost savings (3%). $17.91 $349.40
Annual accessory cost savings........... $214.15 $596.68
Total Annualized Equipment Cost Savings $232.06 $946.08
(3%)...................................
------------------------------------------------------------------------
Total
------------------------------------------------------------------------
Equipment............................... $232.06 $946.08
Training, cleaning, and fit testing..... $376.21 $513.93
------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
[[Page 53978]]
Sources: BLS, 2020a; 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,
2020; US DOL, OSHA, Directorate of Standards and Guidance, Office of
Regulatory Analysis (OSHA, 2020) (Document ID 2250); Grainger, 2019a;
Grainger, 2019b.
Table IV-13--Half-Mask and Powered Air Purifying Respirator (PAPR) Unit
Cost
------------------------------------------------------------------------
Half-mask PAPR
------------------------------------------------------------------------
Respirator
------------------------------------------------------------------------
Respirator.............................. $34.28 $988.31
------------------------------------------------------------------------
Annual Costs
------------------------------------------------------------------------
Training................................ $73.94 $147.87
Cleaning................................ $265.30 $270.03
Fit Testing............................. $36.97 $96.03
Accessories............................. $214.15 $596.68
Annual Subtotal......................... $590.36 $1,110.61
------------------------------------------------------------------------
Annualized Costs
------------------------------------------------------------------------
Years................................... 2 3
Annualized Unit Cost (3%)............... $608.27 $1,460.00
Annualized Unit Cost (7%)............... $609.31 $1,487.20
------------------------------------------------------------------------
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, 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 Final Rule
OSHA is making several revisions to the PPE provisions of the
standards. OSHA is removing the requirements regarding storage
facilities, providing PPE based on an 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 removing the qualifier ``beryllium-contaminated'' and
replacing it with ``required by this standard.'' A further change from
the proposed rule is that OSHA is also adding a provision that states
the employer must ensure that no employee with reasonably expected
exposure above the TWA PEL or STEL removes personal protective clothing
and equipment required by the beryllium standard from the workplace
unless it has been cleaned in accordance with paragraph (h)(3)(ii). The
2017 FEA, and the 2019 PEA, estimated that employers would rent rather
than buy PPE. The agency continues to estimate this will be the common
approach, with any cases due to this last provision having a negligible
effect on costs.
Under these 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 percent 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 removal of that provision will result in a cost
savings. OSHA did not estimate costs for extra storage facilities
because it judged that no employers would need them.
As stated in the compliance section in IV.B, above, OSHA estimates
a 90 percent compliance rate for all PPE for workers who have exposures
above the TWA PEL or STEL. This is a change
[[Page 53979]]
from the 2017 FEA, which estimated a 75 percent compliance rate for PPE
for all workers, not just those exposed above the TWA PEL or STEL. This
results in two cost effects. First, there is an adjustment to costs due
to the decreased number of workers, from 25 percent to 10 percent, 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 15 percent
decrease in the compliance rate from 25 percent to 10 percent, along
with OSHA's standard calculation that 10 percent of those workers will
continue to be exposed above the PEL after the standards take effect,
means 1.5 percent 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. Second, for those workers whose exposures
are below the TWA PEL and STEL, there will also be a cost savings for
the 25 percent that the 2017 FEA estimated did not have proper PPE, due
to the removal of the dermal contact trigger for PPE. The exposure
profile (Table IV-2) shows the number of workers below the PEL. OSHA is
revising the compliance rate from 75 percent to 100 percent because the
PPE provisions are no longer required for those below the TWA PEL and
STEL, so 25 percent will no longer need PPE. This number of workers
times the unit costs (discussed below) gives the cost savings for this
group.
The cost savings due to the 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 revision.
In the 2017 FEA, OSHA estimated that employers would rent rather
than purchase PPE. The annual cost for rental would be $54.62 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 ($24.76 hourly wage, File Clerks,
SOC: 43-4071).
After accounting for the 25 percent of employees who no longer need
PPE due to the removal of the dermal contact trigger, the change in the
compliance rate from 75 percent to 90 percent, and the removal of the
ten minutes of clerical time for notifying laundries, the total
annualized cost savings and adjustment for the revisions to the PPE
paragraph is estimated to be $167,196 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 Rule
OSHA is rescinding this paragraph in its entirety. Both washing
facilities and change rooms would no longer be directly required under
this rule. 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 FEA retains this estimate.
Therefore, OSHA is estimating no cost savings from washing facilities
due to this rule. The 2017 FEA did include costs for disposable head
coverings that would be purchased for processes where hair may become
contaminated by beryllium. 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 2019
dollars is $31.32 (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 $16,975 ($31.32 x 542).
The agency is not estimating cost savings for the 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 rule, employers would still be required by the sanitation
standards, combined with the PEL requirements in the 2017 beryllium
final rule, to provide PPE to employees to prevent exposure to
beryllium. Therefore, no cost savings would arise from this change.
The 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 $540.06. This cost is based on a
production worker earning $25.92 an hour (Production Occupation, SOC:
51-0000) and taking 5 minutes per day to change clothes for 250 days
per year ((5/60) x $25.92 x 250).
OSHA's 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
removal of paragraph (i) to be $309,464 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.
[[Page 53980]]
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 Rule
OSHA is removing the requirements to follow the written exposure
control plan when cleaning and to promptly clean up spills and
emergency releases. OSHA is also revising 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 removing 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 prohibiting 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 removing 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 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 percent 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 percent. While the 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 FEA, maintaining the change in the 2019 PEA,
for the additional 25 percent 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 percent. OSHA estimated in the 2017 FEA that
welding in shipyards had a 0 percent compliance rate for housekeeping.
This has also been changed to 100 percent compliance in this FEA, as
explained in section IV.B of this FEA. 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
2019 dollars): A one-time annualized cost per worker of a HEPA-filtered
vacuum ($652); the annual cost per worker of the additional time needed
to perform housekeeping ($540); and the annual cost of the warning
labels per worker ($6). The total annual per-employee cost was $1,197
($652 + $540 + $6). This per-employee cost is then multiplied by the 25
percent of workers in abrasive blasting operations and 100 percent 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 rule due to revisions
to this ancillary provision are $1,764,878. 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 Rule
OSHA is making minor changes to the medical surveillance provision
of the 2017 final rule. In response to the 2019 NPRM, the agency
received one
[[Page 53981]]
comment on its medical exam costs estimates. Referring to comments it
had previously submitted, NABTU reiterated its prior assessment of
medical exam costs: ``$216 is for shipping of specimen and lab
analysis. In a standalone situation an additional charge would be for
blood draw, which we estimate to be about $20.00'' (Document ID 2236,
p. 2). Because NABTU's initial comments were reviewed and incorporated
into the 2017 FEA and their subsequent comment indicates the estimates
are generally unchanged, OSHA is not altering any of the unit costs
from the 2017 FEA, including these medical surveillance costs.
First, OSHA is removing 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'' (Document ID 2042, Chapter V,
p. V-196). The agency therefore concludes that removing the emergency
trigger will result in de minimis cost savings.
OSHA is also modifying the language in paragraph (k)(2)(iii) to
match the General Industry standard. This modification adds more detail
regarding requirements for a medical examination at the termination of
an employee's employment and is meant to clarify who will receive such
an exam. The agency does not expect this to significantly change the
number of exams performed and judges it to have de minimis cost
implications.
OSHA also is replacing from the 2017 standards 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.
OSHA proposed a change to the definition of CBD diagnostic center
to clarify that a center must have 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 did
not estimate that all tests would be performed during all CBD
evaluations, so the agency takes no cost savings for this change. In
response to comments received and to align with changes made in the
July 14, 2020 general industry final rule (85 FR 42582), OSHA is
further modifying the language of this definition from the language
proposed in the 2019 NPRM. Specifically, rather than requiring CBD
diagnostic centers to have a pulmonary specialist on site, the
definition now specifies that centers must have one on staff. Also,
rather than stating that each evaluation must include pulmonary
function testing (as outlined by the American Thoracic Society
criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy, the
definition now states that CBD diagnostic centers must have the
capacity to perform such tests. Because the 2017 FEA for a medical
examination at a CBD diagnostic center costed the typical tests given
by a CBD diagnostic center, these changes have no effect on costs (see
Document ID 2042, Chapter V, p. V-204)
OSHA is amending paragraph (k)(7)(i) to require that the employer
must provide, at no cost to the employee and at a CBD diagnostic center
that is mutually agreed upon by the employer and employee, an
evaluation at the CBD diagnostic center that must be scheduled within
30 days, and must occur within a reasonable time. The 2017 beryllium
standards required the actual evaluation to take place within 30 days.
This change to paragraph (k)(7) allows increased flexibility in
scheduling and may lead to minor cost savings.
In the 2019 NPRM, OSHA proposed 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 could be
done in conjunction with the tests but it was not required to be. As
the initial consultation could 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, OSHA accounted for the cost of both the employee's
time and the local examining physician's time for a 15-minute
discussion (2017 FEA, Chapter V, p. V-206). The 2019 PEA concluded that
because the consultation at the CBD diagnostic center would replace
this initial discussion, there would be no additional cost.
In this final rule, OSHA is not adopting the proposed requirement
for an initial consultation with the CBD diagnostic center. Since in
the economic analysis the initial consultation was a replacement for a
discussion with a local PLCHP, the removal of this requirement will
have no change in costs: There will still be the discussion with the
local PLCHP with the same unit cost.
OSHA is making another change from the requirements for the CBD
diagnostic center examination as proposed in the 2019 NPRM. In this
final rule, OSHA has clarified that, if the examining physician at the
CBD diagnostic center recommends a test that is not available at that
center, the test may instead be performed at another location that is
mutually agreed upon by the employer and the employee. In terms of the
cost impact of this change, it will allow more flexibility in
identifying a location for tests and may allow employers to find more
economical travel and accommodation options. The change also aligns the
construction and shipyards standards to changes made in the July 14,
2020 general industry final rule. The agency 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. The 2019 NPRM proposed to clarify that 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 after a first abnormal
or borderline BeLPT test result. Unlike the 2017 standards, the
proposed change explicitly required that the qualifying test results be
obtained within one testing cycle (including the 30-day follow-up test
period required after a first abnormal or borderline BeLPT test
result), rather than arguably over an unlimited time period. The 2019
NPRM explained that some stakeholders had construed the 2017 final rule
to allow these tests to cumulate over an unlimited time period though
this was not the agency's intent. OSHA explained in the 2019 PEA that
the exact effect of this proposed change was 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.
OSHA received several comments discussing the practicality of the
provisions relating to the 30-day testing cycle (Document ID 2208,
2211, 2213, 2237, 2243, and 2244). These comments are discussed in the
summary and explanation for paragraph (b). After reviewing the comments
and record,
[[Page 53982]]
OSHA has further modified the definition of confirmed positive in this
final rule from the definition proposed in the 2019 NPRM. In this final
rule, OSHA is requiring that the set of tests that demonstrate
confirmed positive must be from tests conducted within a 3-year period.
This change aligns with similar revisions made in the July 14, 2020
general industry final rule. As in the PEA in support of the 2018
proposed revisions to the general industry standard, OSHA concludes
that this change would not increase compliance costs and would
incidentally yield some cost savings by lessening the likelihood of
false positives.
Other 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
OSHA is not making any changes to paragraph (l), Medical removal
protection. OSHA is also not making 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 Rule
OSHA is making three changes to paragraph (m) in both the
construction and shipyards standards. First, OSHA is removing the
paragraph (m) provisions that require specific language for warning
labels applied to materials designated for disposal or PPE when removed
from the workplace ((m)(2) in construction and (m)(3) in shipyards).
This is consistent with OSHA's modification 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 revising paragraphs (m)(3)(i) in construction and
(m)(4)(i) in shipyards--renumbered as (m)(2)(i) and (m)(3)(i),
respectively--to remove dermal contact as a trigger for training in
accordance with the HCS (29 CFR 1910.1200(h)). As explained in the
summary and explanation for paragraph (m), because OSHA judges that
there are no workers who would have received training solely due to the
potential for dermal contact, the agency has determined that the HCS
training requirements will continue to apply to all workers that are
covered under the construction and shipyards standards. Regardless, for
purposes of its economic analysis, OSHA did not included in the 2017
FEA costs associated with training under the HCS. Accordingly, OSHA
expects no cost implications from this change.
Third, OSHA is revising the provisions of paragraph (m) for
employee information and training related to emergency procedures
((m)(3)(ii)(D) in construction and (m)(4)(ii)(D) in shipyards) and
personal hygiene practices ((m)(3)(ii)(E) in construction and
(m)(4)(ii)(E) in shipyards), for consistency with OSHA's removal of
emergency procedures and personal hygiene practices from the
construction and shipyards standards. OSHA estimates that this change
will lead to 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 rule.
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 $25.92 (updated from Production Occupations,
SOC: 51-0000)) with one instructor (at a wage of $42.19 (Median Wage
for Training and Development Specialists, SOC: 13-1151)) over an eight
hour period. The per-worker cost of initial training is therefore
$277.07 ((8 x $25.92) + (8 x $42.19/5) + $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 $277.07.
The first type of cost savings comes from changes to the training
provision itself, where the rule rescinds the requirement to train
employees on 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 $234.13 ((6.75 x $25.92) + (6.75 x $42.19/5) + $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 FEA, are unchanged from the 2017 FEA), and based
on a 31.8 percent new hire rate (BLS 2020b, using the annual
manufacturing new hire rate, as was done in the 2017 FEA, updated to
the current rate), OSHA estimates that the revisions to the training
requirements in the standards would result in an annualized total cost
savings of $103,276. 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 taken to understand the new standards. The
changes that OSHA is making to most provisions in this final rule are
not extensive. Employers will thus only need to spend a brief amount of
time to review them. In the 2019 PEA, OSHA estimated that employers
would spend one hour per firm reviewing the changed requirements. As
this final rule results in minor distinctions from the 2019 proposed
rule, OSHA continues to estimate employers will spend an hour per firm
reviewing the changed requirements.
Table IV-14 shows the unit costs, by establishment size, of
reviewing the changes in this rule. These costs will likely be one-time
costs incurred during the first year after the effective date of a
final rule resulting from this rule, but the aggregate costs are
annualized for consistency with the other estimates for this rule.
Based on the unit familiarization (negative) cost savings in Table IV-
14, the total annualized
[[Page 53983]]
familiarization costs of this rule are estimated to be $14,480. 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............................ -$44.18 -$44.18 -$44.18
Annualized Cost Savings (3 Percent)............................. -$5.18 -$5.18 -$5.18
----------------------------------------------------------------------------------------------------------------
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 (OSHA, 2020)
(Document ID 2250).
Table IV-15--Annualized Cost Savings of Program Requirements for Industries Affected by the Beryllium Standard by Sector and Six-Digit NAICS Industry
[In 2019 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 -$5,646 $0 $0 $0 $0 $48,022 $63,055 $117,715 $665,231 $38,933 $927,311
Covering Contractors.
238990................. All Other Specialty -5,231 0 0 0 0 44,498 58,427 109,076 616,407 36,076 859,252
Trade Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a................ Ship Building and -3,569 0 0 0 0 32,985 44,176 82,617 466,882 27,325 650,416
Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b................ Ship Building and -34 0 0 0 0 1,163 1,538 56 16,358 943 20,025
Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal............................ -10,877 0 0 0 0 92,520 121,482 226,791 1,281,638 75,009 1,786,563
Maritime Subtotal................................ -3,603 0 0 0 0 34,148 45,714 82,673 483,241 28,267 670,441
Total, All Industries............................ -14,480 0 0 0 0 126,668 167,196 309,464 1,764,878 103,276 2,457,003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 (OSHA, 2020) (Document ID 2250).
Total Annualized Cost Savings
As shown in Table IV-16, the total annualized cost savings of this
rule, 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 Beryllium Standard, by Sector and Six-Digit
NAICS Industry
[2019 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 $20,740 $927,311 $948,051
Covering Contractors.
238990.............................. All Other Specialty 0 19,218 859,252 878,469
Trade Contractors.
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
----------------------------------------------------------------------------------------------------------------
336611a............................. Ship Building and 0 14,106 650,416 664,522
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding--Shipyards
----------------------------------------------------------------------------------------------------------------
336611b............................. Ship Building and 0 871 20,025 20,896
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal....................................... 0 39,957 1,786,563 1,826,520
Maritime Subtotal........................................... 0 14,977 670,441 685,418
[[Page 53984]]
Total, All Industries....................................... 0 54,934 2,457,003 2,511,938
----------------------------------------------------------------------------------------------------------------
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 (OSHA, 2020)
(Document ID 2250).
Time Distribution of Cost Savings
OSHA analyzed the stream of (un-annualized) compliance cost savings
for the first ten years after the rule will 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
[2019 Dollars]
----------------------------------------------------------------------------------------------------------------
Program cost Engineering Rule
Year savings Respirators controls familiarization Total
----------------------------------------------------------------------------------------------------------------
1............................ $4,292,553 $88,029 $0 -$123,515 $4,257,066
2............................ 2,217,400 46,790 0 0 2,264,190
3............................ 2,217,400 48,491 0 0 2,265,891
4............................ 2,217,400 52,241 0 0 2,269,641
5............................ 2,217,400 48,491 0 0 2,265,891
6............................ 2,217,400 46,790 0 0 2,264,190
7............................ 2,217,400 53,942 0 0 2,271,342
8............................ 2,217,400 46,790 0 0 2,264,190
9............................ 2,217,400 48,491 0 0 2,265,891
10........................... 2,217,400 52,241 0 0 2,269,641
----------------------------------------------------------------------------------------------------------------
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 (OSHA, 2020)
(Document ID 2250).
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 Beryllium Standard by Year
[2019 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year
Application group -----------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction. $3,095,549 $1,646,363 $1,647,587 $1,650,286 $1,647,587 $1,646,363 $1,651,510 $1,646,363 $1,647,587 $1,650,286
Abrasive Blasting--Shipyards.... 1,123,592 599,362 599,808 600,791 599,808 599,362 601,237 599,362 599,808 600,791
Welding--Shipyards.............. 37,925 18,466 18,496 18,564 18,496 18,466 18,595 18,466 18,496 18,564
-----------------------------------------------------------------------------------------------------------------------
Total....................... 4,257,066 2,264,190 2,265,891 2,269,641 2,265,891 2,264,190 2,271,342 2,264,190 2,265,891 2,269,641
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 (OSHA, 2020) (Document ID 2250).
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 $2.6 million using a 7 percent discount rate, and remain
flat/slightly decrease to $2.5 million using a 0 percent discount rate.
[[Page 53985]]
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, 2019 dollars]
----------------------------------------------------------------------------------------------------------------
Very small
Application group/NAICS Industry All establishments Small entities entities (<20
(SBA-defined) employees)
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320....................... Painting and Wall $967,892 $796,918 $527,892
Covering Contractors.
238990....................... All Other Specialty 896,854 665,964 426,508
Trade Contractors.
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards*
----------------------------------------------------------------------------------------------------------------
336611a...................... Ship Building and 678,347 175,887 88,164
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding in Shipyards**
----------------------------------------------------------------------------------------------------------------
336611b...................... Ship Building and 21,408 5,687 3,158
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal............................... 1,864,746 1,462,882 954,400
Shipyard Subtotal................................... 699,755 181,574 91,322
Total, All Industries............................... 2,564,501 1,644,456 1,045,722
----------------------------------------------------------------------------------------------------------------
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.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2020)
(Document ID 2250).
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, 2019 dollars]
----------------------------------------------------------------------------------------------------------------
Very small
Application group/NAICS Industry All establishments Small entities entities (<20
(SBA-defined) employees)
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320....................... Painting and Wall $946,753 $779,194 $515,604
Covering Contractors.
238990....................... All Other Specialty 877,267 651,005 416,413
Trade Contractors.
----------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards*
----------------------------------------------------------------------------------------------------------------
336611a...................... Ship Building and 663,659 171,313 85,760
Repairing.
----------------------------------------------------------------------------------------------------------------
Welding in Shipyards**
----------------------------------------------------------------------------------------------------------------
336611b...................... Ship Building and 20,848 5,487 3,043
Repairing.
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal............................... 1,824,020 1,430,199 932,017
Shipyard Subtotal................................... 684,507 176,800 88,803
Total, All Industries............................... 2,508,526 1,606,999 1,020,820
----------------------------------------------------------------------------------------------------------------
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.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2020)
(Document ID 2250).
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.
[[Page 53986]]
Table IV-21--Annualized Compliance Cost Savings for Employers Affected by the Beryllium Standard by Sector and Six-Digit NAICS Industry
[7 percent discount rate, in 2019 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Engineering
Application group/NAICS Industry controls and Respirator Program cost Total cost
work practices cost savings savings savings
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
238320......................................... Painting and Wall Covering Contractors. $0 $21,257 $946,635 $967,892
238990......................................... All Other Specialty Trade Contractors.. 0 19,697 877,157 896,854
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611a........................................ Ship Building and Repairing............ 0 14,438 663,909 678,347
--------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611b........................................ Ship Building and Repairing............ 0 887 20,521 21,408
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal................................................................... 0 40,954 1,823,792 1,864,746
Maritime Subtotal....................................................................... 0 15,325 684,430 699,755
Total, All Industries................................................................... 0 56,279 2,508,222 2,564,501
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 (OSHA, 2020) (Document ID 2250).
Table IV-22--Annualized Compliance Cost Savings for Employers Affected by the Beryllium Standard by Sector and Six-Digit NAICS Industry
[0 percent discount rate, in 2019 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Engineering
Application group/NAICS Industry controls and Respirator Program cost Total cost
work practices cost savings savings savings
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
238320......................................... Painting and Wall Covering Contractors. $0 $20,684 $926,069 $946,753
238990......................................... All Other Specialty Trade Contractors.. 0 19,166 858,100 877,267
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611a........................................ Ship Building and Repairing............ 0 14,067 649,592 663,659
--------------------------------------------------------------------------------------------------------------------------------------------------------
Welding--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611b........................................ Ship Building and Repairing............ 0 868 19,979 20,848
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal.......................... ....................................... 0 39,850 1,784,169 1,824,020
Maritime Subtotal.............................. ....................................... 0 14,935 669,571 684,507
Total, All Industries.......................... ....................................... 0 54,786 2,453,741 2,508,526
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 (OSHA, 2020) (Document ID 2250).
E. Benefits
The changes in this rule 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 more closely align the
construction and shipyards standards to the general industry standard,
with respect to the updates to the medical definitions and medical
surveillance, where appropriate; and (3) to clarify certain
requirements with respect to materials containing only trace amounts of
beryllium. As to the first group of changes, this rule clarifies that
OSHA did not, and does not, intend the 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 exposures. 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 concludes that the revisions in this rule 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 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
[[Page 53987]]
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 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 determines that the effect of these revisions on the
benefits of the standards as a whole would be negligible.
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Western Australia Commission. June. Document ID 0692.
Zorotools, 2012a. N99--Replacement Filters (Filter Respirator, For
Welding Respirator and 7190N99, Package 2), $4.75. From http://www.zorotools.com/g/00066271/k-G0408886?utm_source=google_shopping&utm_medium=cpc&utm_campaign=Google_Shopping_Feed&kw={keyword{time} &gclid=CJy14uPdwbECFQp66wodMlsAdw.
Document ID 0554.
Zorotools, 2013. 3M Breathing Tube; Breathing Tube, For Use With
Mfr. No. 7800S, 6000 DIN Series, Includes Connectors, $75.89. Cost
assumes 3 used per year. Accessed 2013 from http://www.zorotools.com/g/00052249/k-G2062776?utm_source=google_shopping&utm_medium=cpc&utm_campaign=Google_Shopping_Feed&kw={keyword{time} &gclid=CL-Rz96Hj7kCFZSi4AodPw4AYQ.
Document ID 2038.
V. 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 modifying some of the ancillary provisions in both
standards and has concluded that the revisions would, overall, reduce
costs for employers in both sectors (see section D, Costs of
Compliance, in this FEA). Because the effect of this rule is a net
reduction in costs, OSHA has determined that this rule 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
rule for construction and shipyards to determine whether they would
have a significant economic impact on a substantial number of small
entities. This rule would modify certain ancillary provisions for
shipyards and construction, resulting in a reduction of overall costs.
Furthermore, the agency believes that this rule would not impose any
additional costs on small entities. Accordingly, OSHA certifies that
the rule would not have a significant economic impact on a substantial
number of small entities.
VI. OMB Review Under the Paperwork Reduction Act of 1995
A. Overview
OSHA is updating 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
under OMB control number 1218-0267. In this rulemaking, OSHA is
separating 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 new information
collection requests (ICRs)--one for the construction industry and one
for the shipyards sector. In addition, OSHA is removing the collections
of information related to construction and shipyards from the
collections of information currently approved by OMB under control
number 1218-0267. This will be a separate action and will occur after
OMB approval of the new ICRs.
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,
[[Page 53989]]
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).
On January 9, 2017, OSHA published a final rule for the general
industry, construction, and shipyard sectors that established new
permissible exposure limits and other provisions to protect employees
from beryllium exposure, such as requirements for exposure assessment,
respiratory protection, personal protective clothing and equipment,
housekeeping, medical surveillance, hazard communication, and
recordkeeping. OMB approved the collections of information contained in
the final rule under OMB Control Number 1218-0267.
On October 8, 2019, OSHA published a proposed rule to modify the
construction and shipyard standards by clarifying certain provisions to
improve and simplify compliance (84 FR 53902). The 2019 proposal would
revise the collections of information contained in the construction and
shipyard standard approved by OMB by clarifying requirements related to
the written exposure control plan; the cleaning and replacement of
personal protection equipment; the disposal, recycling, and reuse of
contaminated materials; the frequency of medical examinations for
employees who have been exposed to beryllium during an emergency or who
show signs and symptoms of CBD; referrals to the CBD diagnostic center;
and the collection and recording of social security numbers in medical
surveillance and recordkeeping. OSHA prepared and submitted two new
ICRs to OMB under the 2019 proposed rule for review in accordance with
44 U.S.C. 3507(d). OSHA proposed to separate the construction and
shipyard sectors from the 2017 Beryllium ICR approved by OMB under OMB
Control Number 1218-0267. The three beryllium standards would have
separate OMB control numbers for each industry.
B. Solicitation of Comments
In accordance with the PRA (44 U.S.C. 3506(c)(2)), the agency
solicited public comments on the collection of information contained in
the 2019 proposed rule. OSHA encouraged commenters to submit their
comments on the information collection requirements contained in the
proposed rule under docket number OSHA-2019-0006, along with their
comments on other parts of the proposed rule. In addition to generally
soliciting comments on the collection of information requirements, the
proposed rule indicated that OSHA and OMB were particularly interested
in comments on the following items:
Whether the proposed collections of information are
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
The accuracy of OSHA's estimate of the burden (time and
cost) of the proposed collections of information, including the
validity of the methodology and assumptions used;
The quality, utility, and clarity of the information to be
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).
On November 8, 2019, OMB issued a Notice of Action (NOA) assigning
the information collection requests new OMB control numbers and
stating, ``This OMB action is not an approval to conduct or sponsor an
information collection under the Paperwork Reduction Act of 1995. This
action has no effect on any current approvals. If OMB has assigned this
ICR a new OMB Control Number, the OMB Control Number will not appear in
the active inventory. For future submissions of this information
collection, reference the OMB Control Number provided. OMB is
withholding approval at this time. Prior to publication of the final
rule, the agency should provide a summary of any comments related to
the information collection and their response, including any changes
made to the ICR as a result of comments. In addition, the agency must
enter the correct burden estimates.'' At this time, the ICR for the
beryllium standard for construction was assigned OMB Control Number
1218-0273 and the beryllium standard for shipyards was assigned OMB
Control Number 1218-0272. Copies of the proposed ICRs are available to
the public at http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0273 and http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0272.
OSHA did not receive any public comments in response to the
proposed ICRs.\59\ However, the agency received 16 public comments on
the proposed rule during the initial comment period. In addition, OSHA
held a public hearing on the proposal on December 3, 2019, where the
agency heard testimony from several stakeholders (see Document ID 2222;
2223). Participants who filed notices of intention to appear at the
hearing were permitted to submit additional evidence and data relevant
to the proceedings for a period of 44-days following the hearing. That
post-hearing comment period closed on January 16, 2020. The record
remained open for an additional 15 days, until January 31, 2020, for
the submission of final briefs, arguments, and summations. OSHA
received twenty five timely comments during this rulemaking by the
close of the last post-hearing comment period of January 31, 2020. The
comments submitted in response to the proposed rule and the hearing
proceedings did modify some provisions containing collections of
information. These responses were considered when OSHA prepared these
two new ICRs for the final rule.
---------------------------------------------------------------------------
\59\ Two commenters submitted comments to docket number OSHA-
2019-0006 (see Document ID OSHA-2019-0006-0003; OSHA-2019-0006-
0004). The comments did not concern the paperwork requirements but
rather addressed other portions of the proposal. Neither comment was
submitted during the comment period for the proposed rule, which
ended on November 7, 2019.
---------------------------------------------------------------------------
C. 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 (29 CFR 1926.1124).
2. Description of the ICR: The final rule separates the information
collection requirements of the construction standard from the currently
approved beryllium ICR. This action creates a new ICR containing only
the collection of information requirements for the construction
industry.
3. Brief Summary of the Information Collection Requirements:
The final rule revises the collection of information requirements
contained in the existing ICR for the construction industry, approved
under OMB under control number 1218-0267. OSHA, first, has separated
the construction collection of information requirements from those of
the general industry and shipyards standards and created a new ICR
containing only those collection of information requirements in the
construction industry. As a result, OMB has assigned a new OMB control
number specific to the construction standard (1218-0273). Next, OSHA
has updated the new ICR to reflect revisions made by this final rule,
which (1) remove provisions in the construction standard that require
employers to collect and record employees' social security number; (2)
revise the contents
[[Page 53990]]
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 Action taken
----------------------------------------------------------------------------------------------------------------
Sec. 1926.1124(f)(1)(i)--Methods of A list of operations and job Revised paragraph
Compliance--Written Exposure Control titles reasonably expected to involve (f)(1)(i)(A) to list
Plan. airborne exposure to or dermal contact operations and job titles
with beryllium; and removed ``airborne'' and
``or dermal contact'' from
the text.
A list of operations and job Removed paragraphs
titles reasonably expected to involve (f)(1)(i)(B) through (E),
airborne exposure at or above the action written exposure control
level; plan.
A list of operations and job .............................
titles reasonably expected to involve
airborne exposure above the TWA PEL or
STEL;
Procedures for minimizing cross- .............................
contamination;
Procedures for minimizing the .............................
migration of beryllium within or to
locations outside the workplace;
A list of engineering controls, Added a new requirement,
work practices, and respiratory paragraph (f)(1)(i)(E), to
protection required by Sec. list procedures used to
1926.1124(f)(2); ensure the integrity of each
containment used to minimize
exposures to employees
outside the containment.
A list of personal protective .............................
clothing and equipment required by Sec.
1926.1124(h);
Procedures for removing, .............................
laundering, storing, cleaning, repairing,
and disposing of beryllium-contaminated
personal protective clothing and
equipment, including respirators;
Procedures used to restrict Revised paragraph
access to work areas when airborne (f)(1)(i)(H) to require a
exposures are, or can reasonably be list procedures for
expected to be, above the TWA PEL or removing, cleaning, and
STEL, to minimize the number of employees maintaining personal
exposed to airborne beryllium and their protective clothing and
level of exposure, including exposures equipment in accordance with
generated by other employers or sole paragraph (h) and renumbered
proprietors. as paragraph (f)(1)(i)(F).
Sec. 1926.1124(f)(1)(ii)(B)-- The employer is notified that an employee Removed ``airborne'' and ``or
Methods of Compliance--Written is eligible for medical removal in dermal contact with'' from
Exposure Control Plan. accordance with Sec. 1926.1124(l)(1), paragraph (f)(1)(ii)(B).
referred for evaluation at a chronic
beryllium disease (CBD) diagnostic
center, or shows signs or symptoms
associated with airborne exposure to or
dermal contact with beryllium.
Sec. 1926.1124(h)(2)(v)--Personal When personal protective clothing or Removed 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 Sec. 1926.1124(m)(3)
and the HCS (29 CFR 1910.1200).
Sec. 1926.1124(h)(3)(iii)--Personal The employer must inform in writing the Removed this requirement from
Protective Clothing and Equipment-- persons or the business entities who the beryllium standard for
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(j)(3)--Housekeeping-- When the employer transfers materials Removed this requirement from
Disposal. containing beryllium to another party for the beryllium standard for
use or disposal, the employer must construction and therefore
provide the recipient with a copy of the from the ICR.
warning described in Sec.
1926.1124(m)(2).
Sec. 1926.1124(k)(1)(i)(C)--Medical Who is exposed to beryllium during an Removed paragraph
Surveillance. emergency. (k)(1)(i)(C) from the
beryllium standard for
construction and therefore
from the ICR. Renumbered
former paragraph
(k)(1)(i)(D) as
(k)(1)(i)(C).
Sec. 1926.1124(k)(2)(i)(B)--Medical An employee meets the criteria of Sec. Removed ``or (C)'' from
Surveillance. 1926.1124(k)(1)(i)(B) or (C). paragraph (k)(2)(i)(B) from
the beryllium standard for
construction and therefore
from the ICR.
[[Page 53991]]
Sec. 1926.1124(k)(2)(ii)--Medical At least every two years thereafter for Replaced ``(D)'' with ``(C)''
Surveillance. each employee who continues to meet the in paragraph.
criteria of Sec. 1926.1124(k)(1)(i)(A),
(B), or (D).
Sec. 1926.1124(k)(3)(ii)(A)-- A medical and work history, with emphasis Revised paragraph
Medical Surveillance. on past and present airborne exposure to (k)(3)(ii)(A) to remove
or dermal contact with beryllium, smoking ``airborne'' and ``or dermal
history, and any history of respiratory contact'' from the text.
system dysfunction.
Sec. 1926.1124(k)(4)(i)-- A description of the employee's former and Revised paragraph (k)(4)(i)
Information Provided to the PLHCP. current duties that relate to the to remove ``airborne'' and
employee's airborne exposure and dermal ``and dermal contact with''
contact with beryllium. from the text.
Sec. 1926.1124(k)(7)--Medical The employer must provide an evaluation at Revised the initial
Surveillance--Referral to the CBD no cost to the employee at a CBD consultation with the CBD
Diagnostic Center. diagnostic center that is mutually agreed diagnostic center, as
upon by the employer and the employee. follows:
The examination must be provided within
30 days of either of the events in Sec.
1926.1124(k)(7)(i)(A) or (B).
.......................................... 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
evaluation at the CBD
diagnostic center must be
scheduled within 30 days,
and must occur within a
reasonable time, of:
.......................................... Added a new requirement in
paragraph (k)(7)(ii) that
the evaluation must include
any tests deemed appropriate
by the examining physician
at the CBD diagnostic
center, such as pulmonary
function testing (as
outlined by the American
Thoracic Society criteria),
bronchoalveolar lavage
(BAL), and transbronchial
biopsy. If any of the tests
deemed appropriate by the
examining physician are not
available at the CBD
diagnostic center, they may
be performed at another
location that is mutually
agreed upon by the employer
and the employee.
.......................................... As result of the changes,
OSHA renumbered the
subordinate paragraphs in
(k)(7).
Sec. 1926.1124(m)(2)--Warning Consistent with the HCS (29 CFR Removed this requirement from
labels. 1910.1200), the employer must label each the beryllium standard for
bag and container of clothing, equipment, construction and therefore
and materials contaminated with from the ICR.
beryllium, and must, at a minimum,
include the following on the label:
DANGER .............................
CONTAINS BERYLLIUM .............................
MAY CAUSE CANCER .............................
CAUSES DAMAGE TO LUNGS .............................
AVOID CREATING DUST .............................
DO NOT GET ON SKIN .............................
Sec. 1926.1124(m)(3)(i)--Employee For each employee who has, or can Removed ``airborne'' and
information and training. reasonably be expected to have, airborne ``and dermal contact with''
exposure to or dermal contact with from paragraph (m)(3)(i).
beryllium
Sec. 1926.1124(n)(1)(ii)(F)-- The name, social security number, and job Removed 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 Removed 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.
[[Page 53992]]
Sec. 1926.1124(n)(4)(i)-- At the completion of any training required Removed 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: 1218-0273.
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: 2,100.
7. Frequency of Responses: On occasion, quarterly, semi-annually,
annual, biannual.
8. Number of Reponses: 29,330.
9. Average Time per Response: Varies.
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 (29 CFR 1915.1024).
2. Description of the ICR: The final rule separates information
collection requirements of the shipyards standard from the currently
approved beryllium ICR. This action creates a new ICR containing only
the collection of information requirements for the shipyard sector.
3. Brief Summary of the Information Collection Requirements:
This final rule revises the collection of information requirements
contained in the existing ICR for the shipyards industry, approved
under OMB under control number 1218-0267. OSHA, first, has separated
the shipyards collection of information requirements from those of the
general industry and construction standards and created a new ICR
containing only those collection of information requirements in the
shipyard sectors. As a result, OMB has assigned a new OMB control
number specific to the shipyards standard (1218-0272). Next, OSHA has
updated the new ICR to reflect revisions made by this final rule, which
(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 Action taken
----------------------------------------------------------------------------------------------------------------
Sec. 1915.1024(f)(1)(i)--Methods of The employer must establish, implement, Revised paragraph
Compliance--Written Exposure Control and maintain a written exposure control (f)(1)(i)(A) to list
Plan. plan, which must contain: operations and job titles
reasonably expected to
involve exposure to
beryllium.
A list of operations and job .............................
titles reasonably expected to involve
exposure to or dermal contact with
beryllium;
A list of operations and job Removed paragraphs
titles reasonably expected to involve (f)(1)(i)(B) through (E) the
airborne exposure at or above the AL; written exposure control
plan.
A list of operations and job .............................
titles reasonably expected to involve
airborne exposure above the TWA PEL or
STEL;
Procedures for minimizing cross- Added a new requirement,
contamination; paragraph (f)(1)(i)(D) to
list procedures used to
ensure the integrity of each
containment used to minimize
exposures to employees
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 Sec.
1915.1024(f)(2);
[[Page 53993]]
A list of personal protective Revised paragraph
clothing and equipment required by Sec. (f)(1)(i)(H) to require a
1915.1024(h); and list procedures for
removing, cleaning, and
maintaining personal
protective clothing and
equipment in accordance with
paragraph (h) and renumbered
as paragraph (f)(1)(i)(E).
Procedures for removing, .............................
laundering, storing, cleaning, repairing,
and disposing of beryllium-contaminated
personal protective clothing and
equipment, including respirators.
Sec. 1915.1024(f)(1)(ii)(B)-- The employer is notified that an employee Removed ``airborne'' and ``or
Methods of Compliance--Written is eligible for medical removal in dermal contact with'' from
Exposure Control Plan. accordance with Sec. 1915.1024(l)(1), paragraph (f)(1)(ii)(B).
referred for evaluation at a chronic
beryllium disease (CBD) diagnostic
center, or shows signs or symptoms
associated with airborne exposure to or
dermal contact with beryllium.
Sec. 1915.1024(h)(2)(v)--Personal When personal protective clothing or Removed 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 Sec. 1915.1024(m)(3)
and the HCS (29 CFR 1910.1200).
Sec. 1915.1024(h)(3)(iii)--Personal The employer must inform in writing the Removed this requirement from
Protective Clothing and Equipment-- persons or the business entities who the beryllium standard for
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(j)(3)--Housekeeping-- When the employer transfers materials Removed this requirement from
Disposal. containing beryllium to another party for the beryllium standard for
use or disposal, the employer must shipyards and therefore from
provide the recipient with a copy of the the ICR.
warning described in Sec.
1915.1024(m)(2).
Sec. 1915.1024(k)(1)(i)(C)--Medical Who is exposed to beryllium during an Removed paragraph
Surveillance. emergency. (k)(1)(i)(C) from the
beryllium standard for
construction and therefore
from the ICR. Renumbered
former paragraph
(k)(1)(i)(D) as
(k)(1)(i)(C).
Sec. 1915.1124(k)(2)(i)(B)--Medical An employee meets the criteria of Sec. Removed ``or (C) of this
Surveillance. 1915.1024(k)(1)(i)(B) or (C). standard'' from paragraph
(k)(2)(i)(B) from the
beryllium standard for
construction and therefore
from the ICR.
Sec. 1915.1124(k)(2)(ii)--Medical At least every two years thereafter for Replaced ``(D)'' with ``(C)''
Surveillance. each employee who continues to meet the in paragraph (k)(2)(ii).
criteria of Sec. 1915.1024(k)(1)(i)(A),
(B), or (D).
Sec. 1915.1124(k)(3)(ii)(A)-- A medical and work history, with emphasis Revised paragraph
Medical Surveillance. on past and present airborne exposure to (k)(3)(ii)(A) to remove
or dermal contact with beryllium, smoking ``airborne'' and ``or dermal
history, and any history of respiratory contact with'' from the
system dysfunction. text.
Sec. 1915.1124(k)(4)(i)-- A description of the employee's former and Revised paragraph (k)(4)(i)
Information Provided to the PLHCP. current duties that relate to the to remove ``airborne'' and
employee's airborne exposure and dermal ``and dermal contact with''
contact with beryllium. from the text.
Sec. 1915.1024(k)(7)--Medical The employer must provide an evaluation at Revised an initial
Surveillance-- Referral to the CBD no cost to the employee at a CBD consultation with the CBD
Diagnostic Center. diagnostic center that is mutually agreed diagnostic center.
upon by the employer and the employee.
The examination must be provided within
30 days of either of the events in Sec.
1915.1024(k)(7)(i)(A) or (B).
.......................................... 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
evaluation at the CBD
diagnostic center must be
scheduled within 30 days,
and must occur within a
reasonable time, of:
[[Page 53994]]
.......................................... Added a new requirement in
paragraph (k)(7)(ii) that
the evaluation must include
any tests deemed appropriate
by the examining physician
at the CBD diagnostic
center, such as pulmonary
function testing (as
outlined by the American
Thoracic Society criteria),
bronchoalveolar lavage
(BAL), and transbronchial
biopsy. If any of the tests
deemed appropriate by the
examining physician are not
available at the CBD
diagnostic center, they may
be performed at another
location that is mutually
agreed upon by the employer
and the employee.
.......................................... As result of the changes,
OSHA renumbered the
subordinate paragraphs in
(k)(7).
Sec. 1915.1024(m)(2)--Warning Consistent with the HCS (29 CFR Removed this requirement from
labels. 1910.1200), the employer must label each the beryllium standard for
bag and container of clothing, equipment, construction and therefore
and materials contaminated with from the ICR.
beryllium, and must, at a minimum,
include the following on the label:
DANGER .............................
CONTAINS BERYLLIUM .............................
MAY CAUSE CANCER .............................
CAUSES DAMAGE TO LUNGS .............................
AVOID CREATING DUST .............................
DO NOT GET ON SKIN .............................
Sec. 1926.1124(m)(3)(i)--Employee For each employee who has, or can Removed ``airborne'' and
information and training. reasonably be expected to have, airborne ``and dermal contact with''
exposure to or dermal contact with from paragraph (m)(3)(i).
beryllium.
Sec. 1915.1024(n)(1)(ii)(F)-- The name, social security number, and job Removed 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 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,
the date the training was completed, and
the topic of the training.
.......................................... 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.
----------------------------------------------------------------------------------------------------------------
4. OMB Control Number: 1218-0272.
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: 696.
7. Frequency of Responses: On occasion, quarterly, semi-annually,
annual, biannual.
8. Number of Reponses: 10,794.
9. Average Time per Response: Varies.
10. Estimated Annual Total Burden Hours: 6,609.
11. Estimated Annual Total Cost (Capital-operation and
maintenance): $2,057,856.
VII. Federalism
OSHA reviewed this final rule 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
[[Page 53995]]
standards. OSHA refers to such States and territories as ``State
Plans'' (29 U.S.C. 667). Occupational safety and health standards
developed by State Plans 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 Plans 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 final rule
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 final rule limits State policy
options in the same manner as every standard promulgated by OSHA. In
States with OSHA-approved State Plans, this rulemaking does not
significantly limit State policy options.
VIII. State Plans
When federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the states and U.S. Territories with
their own OSHA-approved occupational safety and health plans (State
Plans) must promulgate a state standard adopting such new Federal
standard, or more stringent amendment to an existing Federal standard,
or an at least as effective equivalent thereof, within six months of
promulgation of the new Federal standard or more stringent amendment.
The state may demonstrate that a standard change is not necessary
because the state standard is already the same or at least as effective
as the Federal standard change. Because a state may include standards
and standard provisions that are equally or more stringent than Federal
standards, it would generally be unnecessary for a state to revoke a
standard when the comparable Federal standard is revoked or made less
stringent. To avoid delays in worker protection, the effective date of
the state standard and any of its delayed provisions must be the date
of state promulgation or the Federal effective date, whichever is
later. The Assistant Secretary may permit a longer time period if the
state makes a timely demonstration that good cause exists for extending
the time limitation (29 CFR 1953.5(a)).
Of the 28 states and territories with OSHA-approved State Plans, 22
cover public and private-sector employees: 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. The
remaining six states and territories cover only state and local
government employees: Connecticut, Illinois, Maine, New Jersey, New
York, and the Virgin Islands.
As discussed in detail in Section III, Summary and Explanation of
the Final Rule, while many of the revised provisions in this final rule
provide equivalent protection to the provisions of the 2017 standards,
changes made by this final rule will clarify certain provisions and
simplify or improve employer compliance, for example, by clarifying the
medical definitions and medical surveillance provisions and aligning
them with the general industry standard. In the July 2020 general
industry final rule adopting many of the same clarifying revisions,
OSHA determined, in part based on comments received, that these
revisions enhance employee safety by ensuring provisions are not
misinterpreted (85 FR 42595). Accordingly, OSHA determined that it was
appropriate to require states to adopt the changes made by that final
rule.
OSHA received no comments with respect to State Plans in this
rulemaking. After considering all of the changes made by this final
rule and the record as a whole, OSHA believes that this final rule also
enhances employee safety, in part, by revising confusing provisions.
Therefore, OSHA has determined that, within six months of the rule's
promulgation date, State Plans must review their state standards and
adopt amendments to those standards that are at least as effective as
the amendments to the beryllium construction and shipyard standard
finalized herein, as required by 29 CFR 1953.5(a), unless a State Plan
demonstrates that such amendments are not necessary because their
existing standards are already at least as effective at protecting
workers as this final rule.
IX. Unfunded Mandates Reform Act
OSHA reviewed this final rule according to the Unfunded Mandates
Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and Executive
Order 13132 (64 FR 43255 (August 4, 1999)). As discussed above in
Section IV (``Final Economic Analysis'') of this preamble, the agency
has determined that this final rule 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 final rule will not require significant additional
expenditures by either public or private employers.
As noted above under Section VIII, (``State-Plans''), 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 final rule 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 final rule does not mandate that state, local, or
tribal governments adopt new, unfunded regulatory obligations of, or
increase expenditures by the private sector by, more than $100 million
in any year.
X. Environmental Impacts
OSHA has reviewed this final 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 determined that this final rule will 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 final rule in accordance with E.O. 13175 (65 FR
67249) and determined that it does not have ``tribal implications'' as
defined in that order. This final rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
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.
[[Page 53996]]
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 (January 25, 2012)); and 29 CFR part
1911.
Signed at Washington, DC, on August 13, 2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health.
Amendments to Standards
For the reasons set forth in the preamble, chapter XVII of title
29, parts 1915 and 1926, of the Code of Federal Regulations is amended
as follows:
PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD
EMPLOYMENT
0
1. The authority citation for part 1915 continues to read as follows:
Authority: 33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of
Labor's Order No. 12-71 (36 FR 8754); 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR
55355), or 1-2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553,
as applicable.
0
2. Amend Sec. 1915.1024 by:
0
a. In paragraph (b), add a definition for ``Beryllium sensitization''
in alphabetical order, revise the definitions for ``CBD diagnostic
center,'' ``Chronic beryllium disease (CBD),'' and ``Confirmed
positive,'' and remove the definitions of ``Emergency'' and ``High-
efficiency particulate air (HEPA) filter.''
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. In newly redesignated paragraph (f)(1)(i)(C), remove the word
``and'' at the end of the paragraph;
0
f. Add new paragraphs (f)(1)(i)(D) and (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 (2) and (h)(3)(ii).
0
k. Remove paragraph (h)(3)(iii).
0
l. Remove and reserve paragraph (i).
0
m. Revise paragraphs (j) and (k)(1)(i)(B).
0
n. Remove paragraph (k)(1)(i)(C).
0
o. Redesignate paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C).
0
p. Revise paragraphs (k)(2)(i)(B), (k)(2)(ii), (k)(3)(ii)(A),
(k)(4)(i), and (k)(7)(i) introductory text.
0
q. Redesignate paragraphs (k)(7)(ii) through (v) as paragraphs
(k)(7)(iii) through (vi).
0
r. Add a new paragraph (k)(7)(ii).
0
s. Revise paragraph (m)(1)(ii).
0
t. Remove paragraph (m)(3).
0
u. Redesignate paragraph (m)(4) as paragraph (m)(3).
0
v. Revise newly redesignated paragraphs (m)(3)(i) introductory text and
(m)(3)(ii)(A).
0
w. Remove newly redesignated paragraph (m)(3)(ii)(D).
0
x. Further redesignate newly redesignated paragraphs (m)(3)(ii)(E)
through (I) as paragraphs (m)(3)(ii)(D) through (H).
0
z. Revise newly redesignated paragraphs (m)(3)(ii)(D) and (m)(3)(iv)
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 chronic beryllium disease (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 from tests conducted within a 3-year period. 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; and
(E) Procedures for removing, cleaning, and maintaining personal
protective clothing and equipment in accordance with paragraph (h) of
this standard.
(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 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
[[Page 53997]]
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) Removal of personal protective clothing and equipment. (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, and is removed as specified in the
written exposure control plan required by paragraph (f)(1) of this
standard.
(iii) The employer must ensure that no employee with reasonably
expected exposure above the TWA PEL or STEL removes personal protective
clothing and equipment required by this standard from the workplace
unless it has been cleaned in accordance with paragraph (h)(3)(ii) of
this standard.
(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 evaluation at the CBD diagnostic center
must be scheduled within 30 days, and must occur within a reasonable
time, of:
* * * * *
(ii) The evaluation must include any tests deemed appropriate by
the examining physician at the CBD diagnostic center, such as pulmonary
function testing (as outlined by the American Thoracic Society
criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If
any of the tests deemed appropriate by the examining physician are not
available at the CBD diagnostic center, they may be performed at
another location that is mutually agreed upon by the employer and the
employee.
* * * * *
(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;
* * * * *
(iv) The employer must make a copy of this standard and its
appendices readily available at no cost to each employee and designated
employee representative(s).
(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 part 1926, subpart Z, 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 by:
[[Page 53998]]
0
a. In paragraph (b), add a definition for ``Beryllium sensitization''
in alphabetical order, revise the definitions for ``CBD diagnostic
center,'' ``Chronic beryllium disease (CBD),'' and ``Confirmed
positive,'' and remove the definitions of ``Emergency'' and ``High-
efficiency particulate air (HEPA) filter.''
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 add a semicolon in its place.
0
f. Add new paragraphs (f)(1)(i)(E) and (F).
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 (2) and (h)(3)(ii).
0
k. Remove paragraph (h)(3)(iii).
0
l. Remove and reserve paragraph (i).
0
m. Revise paragraphs (j) and (k)(1)(i)(B).
0
n. Remove paragraph (k)(1)(i)(C).
0
o. Redesignate paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C).
0
p. Revise paragraphs (k)(2)(i)(B), (k)(2)(ii), (k)(3)(ii)(A),
(k)(4)(i), and (k)(7)(i) introductory text.
0
q. Redesignate paragraphs (k)(7)(ii) through (v) as paragraphs
(k)(7)(iii) through (vi).
0
r. Add a new paragraph (k)(7)(ii).
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 newly redesignated paragraphs (m)(2)(ii)(E)
through (I) as paragraphs (m)(2)(ii)(D) through (H).
0
x. Revise newly redesignated paragraphs (m)(2)(ii)(D) and (m)(2)(iv)
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 chronic beryllium disease (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 from tests conducted within a 3-year period. 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; and
(F) Procedures for removing, cleaning, and maintaining personal
protective clothing and equipment in accordance with paragraph (h) of
this standard.
(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 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) Removal of personal protective clothing and equipment. (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, and is removed as specified in the
written exposure control plan required by paragraph (f)(1) of this
standard.
(iii) The employer must ensure that no employee with reasonably
expected exposure above the TWA PEL or STEL removes personal protective
clothing and equipment required by this
[[Page 53999]]
standard from the workplace unless it has been cleaned in accordance
with paragraph (h)(3)(ii) of this standard.
(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 evaluation at the CBD diagnostic center
must be scheduled within 30 days, and must occur within a reasonable
time, of:
* * * * *
(ii) The evaluation must include any tests deemed appropriate by
the examining physician at the CBD diagnostic center, such as pulmonary
function testing (as outlined by the American Thoracic Society
criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If
any of the tests deemed appropriate by the examining physician are not
available at the CBD diagnostic center, they may be performed at
another location that is mutually agreed upon by the employer and the
employee.
* * * * *
(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;
* * * * *
(iv) The employer must make a copy of this standard and its
appendices readily available at no cost to each employee and designated
employee representative(s).
(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. 2020-18017 Filed 8-28-20; 8:45 am]
BILLING CODE 4510-26-P