Beryllium Rule Changes Considered

FRIDAY, MAY 26, 2017

The Occupational Safety and Health Administration is considering a further delay and possible changes to its Final Rule on Occupational Exposure to Beryllium, though technically the rule went into effect May 20.

An OSHA spokesperson sent PaintSquare News a statement Monday (May 22) explaining that the agency recieved a petition to stay the effective date, and is continuing to review the petition. The regulation’s enforcement date has been set at March 2018 all along, and that has not been changed.

“OSHA has received a petition to stay the effective date and it is still under review,” OSHA said in a statement. “Regardless of the decision there is no obligation connected to the effective date. The first compliance date is not until March 2018.”

OSHA clarified that it is the petition, and not the rule itself, that is under review, and that officially, the rule has gone into effect. Its status, though, could be subject to change for a number of reasons.

Lawsuit, Potential Changes

In addition to the petition to stay the effective date, the beryllium rule is subject to a lawsuit in the Eight Circuit Court of Appeals. The suit, Airborn, et al. v. OSHA, et al., is in its early stages, with briefings due July 10.

According to court documents, it is a consolidation of several suits filed by industry groups including: the National Association of Manufacturers, Associated Builders and Contractors, a number of abrasive manufacturers and at least one marine painting firm. The petitioners have not been required to set forth their specific arguments against the rule yet.

The United Steel Workers union helped to craft the rule along with OSHA and Materion Brush, the country's largest beryllium supplier, and is listed as an intervenor on behalf of OSHA.

Michael J. Wright, director of health, safety and environment for USW, confirms that in addition to the suit, industry groups have submitted a petition to both stay the effective date and reopen the record, which, if approved, would mean the agency would reconsider aspects of the rule.

Wright also says OSHA has already sent a proposed change to the construction and maritime rule to the federal Office of Management and Budget for consideration. "So far as I know, that proposal has not yet been released" publicly, Wright says.

Regardless of whether the petition is approved, Wright notes that the pending lawsuit could cause another delay for the rule. "The court could stay the standard if they decided to do so, based on the lawsuit," he says.

Wright says the USW will likely challenge any changes that are proposed to the rule itself, or any changes to the compliance date, should they be proposed.

About the Rule

The rule, announced in January, reduces the eight-hour permissible exposure limit for airborne beryllium from 2.0 micrograms per cubic meter to 0.2 micrograms per cubic meter, a limit that applies to all industries. It also establishes a short-term exposure limit of 2.0 micrograms per cubic meter over a 15-minute sampling period.

Beryllium is a component of coal, certain rock materials, volcanic dust, and soil used in several industrial applications. Breathing air containing beryllium can deposit beryllium particles in the lungs, presenting immune-system and respiratory risks. Beryllium is a known human carcinogen and can cause chronic lung disease.

Berylliosis imaging
Yale Rosen, CC BY-SA 2.0, via Wikimedia Commons

Beryllium can cause chronic lung disease (berylliosis, shown here in medical imaging).

For the construction and maritime industries, the rule applies when materials being used contain greater than 0.1 percent beryllium by weight. Employers using materials with a lesser beryllium content are exempt, “if the employer has objective data demonstrating that employee exposure to beryllium will remain below the action level of 0.1 μg/m3, as an eight-hour time weighted average, under any foreseeable conditions.”

The rule points out that some abrasives used in blasting contain trace amounts of beryllium that, in blasting operations, could potentially exceed the action level. The OSHA website’s frequently-asked-questions section on the rule addresses materials with trace amounts of beryllium, offering some guidance on how employers can determine whether their operations might exceed the action level for beryllium.

Industry Response

The Abrasive Blasting Manufacturers Alliance, a group of industry players who are opposed to the rule as it stands, says it supports a stay for the rule, and a reconsideration of some provisions.

"The ABMA, which was formed in opposition to the unfounded overreach of OSHA’s newly expanded beryllium rule, strongly supports a further delay of the regulation’s effective date," the organization said in a statement. "We have been advocating in Washington for a stay of implementation and a re-examination of the rule, which was haphazardly written without scientific justification and would have wide-ranging and negative impacts on the abrasive blasting industry and its 400,000-person workforce.

"We will continue to make the case to OSHA and Congress that the rule should be substantially revised in consideration of scientific evidence, which does not support additional regulation of airborne beryllium in abrasive blasting. We are hopeful that regulators will recognize this and take appropriate action in rewriting the regulation.”

The ABMA argues that the rule has the potential to affect suppliers and users of every type of abrasive, but not all in the industry agree. Bronce Henderson, of EHS Abrasives, which manufactures recycled crushed-glass abrasives, says products like glass will not be affected, and he supports the rule as written.

"There's just no evidence of any beryllium being contained" in crushed-glass abrasives, Henderson says, but in contrast, many slag-based abrasives must list beryllium on their data sheets.

Henderson says the argument that the rule could impact jobs or business in the blasting industry is "a red herring." EHS acquired a Norfolk, Virginia, manufacturing facility from Virginia Materials in 2016 and, Henderson says, converted the large-scale coal slag abrasive factory to a crushed glass facility in a matter of an hour, with no jobs lost and no extra costs incurred.

Henderson says that to him, the most important aspect of the new rule is not the PEL but the health testing requirements. "If they start testing, I think they'll find that there's a big problem with beryllium disease," he argues.

Regulatory Freeze

In March, OSHA announced that the rule would be subject to further review as part of a regulatory freeze ordered by the Trump administration. The original effective date of March 10 was pushed back to May 20.

A number of other Obama-era OSHA regulations have faced setbacks since President Donald J. Trump took office. Last week, OSHA also informally announced that it would be pushing back the deadline for the electronic submission of injury reports as part of its new electronic-reporting rule.

In early April, Trump signed into law a bill that struck down the so-called “Volks Rule,” which extended the window of time during which an employer could be fined for injury and illness recordkeeping violations. Similarly, Congress and the president passed legislation in March to negate the Fair Pay and Safe Workplaces Act, which would have increased scrutiny on federal contractors with regard to past labor, environmental and other violations.

And the Department of Labor revealed in April that it was pushing back the enforcement date of its new rule on exposure to respirable crystalline silica, from July to September.


Tagged categories: Abrasive blasting; Abrasives; Beryllium; Department of Labor; Health & Safety; Health and safety; North America; OSHA; President Trump; Regulations

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