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.

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