United States: OSHA Issues Final Rule For Occupational Exposure To Beryllium

On January 9, 2017, OSHA published a final rule amending its standards for occupational exposure to beryllium and beryllium compounds. The rule sets a permissible exposure limit (PEL) that is ten times lower than the prior PEL. The prior PEL was set in the 1970s based on research conducted in the 1940s. OSHA determined that the prior PEL was too high in light of evidence of increased risks of chronic beryllium disease and lung cancer in exposed workers. The issuance marked the final major workplace safety rule under the Obama Administration.

Beryllium is used primarily in the defense and aerospace industries, and "[f]or many years, beryllium was strategically so important that the government and the beryllium industry fought hard against a more protective standard," David Michaels, the outgoing Assistant Secretary of Labor for OSHA, said. Members of the beryllium manufacturing industry and the steelworker union, however, were both heavily involved in developing the proposed rule. Materion Corporation, a leading producer of beryllium, and the United Steelworkers, presented OSHA with a standard for beryllium that was substantially similar with OSHA's final rule. One industry group, the Nonferrous Founders' Society, opposed the new PEL, asserting in comments that OSHA had failed to meet its burden of establishing that the new standard was economically or technologically feasible in the nonferrous foundry industry. OSHA agreed that certain operations in the nonferrous foundry industry may not be able to achieve the final PEL, but that it is achievable in the majority of that industry's operations.

Under the final rule, the revised PEL is 0.2 micrograms of beryllium per cubic meter of air (ug/m3) as an 8-hour time-weighted average. The rule also sets a new short-term exposure limit (STEL) of 2.0 ug/m3 determined over a sampling period of 15 minutes. The revised federal PEL is identical to the California PEL set by Cal/OSHA in 2006. California abandoned its STEL for beryllium, but does employ a ceiling limit of 25 ug/m3, the maximum concentration to which an employee may be exposed at any time.

In addition to revising the PEL and STEL, the new rule adds requirements for exposure assessment, exposure controls, personal protective equipment, medical surveillance, hazard communication, and recordkeeping. The rule includes three separate standards (general industry, shipyards, and construction) in an attempt to tailor the new requirements to these sectors.

The rule goes into effect on March 10, 2017. All obligations for compliance begin within one year, with the exception of the obligation to provide changing rooms and showers (effective in two years), and the obligation to implement engineering controls (effective in three years).

Most of OSHA's PELs are based on data from the 1970s or prior. OSHA has been working to update the PELs, reasoning that "[m]any of these PELs are dangerously out of date and do not adequately protect workers." Yet, since 1971, OSHA has successfully established or updated PELs for only about thirty chemicals. In 2014, OSHA announced that it was launching a national dialogue on hazardous chemical exposures and PELs. The agency explained the reason for its slow action on revising PELs, stating "[s]ubstantial resources are required to issue new exposure limits or update existing workplace exposure limits, as courts have required complex analyses for each proposed PEL." OSHA sought to streamline the process of updating PELs, as a prior attempt at updating multiple PELs in a single rulemaking was struck down in litigation. OSHA has not found a way to streamline the process, but rather is proceeding on individual PELs. This approach has not been expedient. For example, the recent OSHA final rule on silica took more than a decade to proceed through the rulemaking process, and then it faced challenges in the courts. Thus, it is unlikely that OSHA will issue many revised PELs in the near term.

OSHA has also undertaken an effort to revoke a small number of obsolete PELs which substantially exceed other recommended occupational exposure limits. The agency has expressed a concern that the continued existence of these obsolete PELs imparts a false level of security to workers and employers who mistakenly believe that the PEL represents the level at which there are no adverse health effects. In the event that it revokes these outdated PELs, the agency plans to use other enforcement tools (e.g., the General Duty clause) where worker health and safety is jeopardized.

There is an open question of how updating PELs will be managed under the new administration. Andrew Puzder has been selected as the next Secretary of Labor, and, if confirmed, he could change the direction OSHA has been taking on updating PELs, or even attempt to roll back requirements in the new silica and beryllium rules. The new beryllium rule is also subject to challenge under the Congressional Review Act, which provides Congress with sixty legislative days to attempt to block a final rule from taking effect. Because the rule was developed with a relatively high degree of cooperation, it is less likely to face such a challenge in the new Congress than more controversial rulemaking. In addition, the regulatory freeze memo issued by White House Chief of Staff Reince Priebus on January 20, 2017, raises further questions of whether and how the beryllium rule will be enforced by the new administration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions