FRIDAY, MAY 28, 2021
A years-long challenge between the Occupational Safety and Health Administration and several companies that produce or use blasting materials containing trace amounts of beryllium has reached a settlement.
Filed earlier this week in the U.S. Court of Appeals for the Eighth Circuit, the settlement includes an agreement from OSHA to make changes to its communications about the beryllium rules to clarify that they apply to all abrasive that may contain beryllium—not just slags—and that the surfaces themselves that are being blasted can also contain beryllium.
The Abrasive Blasting Manufacturer’s Alliance released an emailed statement on the settlement, saying:
“While we as an organization still believe that OSHA’s new rules governing beryllium exposure were unnecessarily expanded to include the abrasive blasting industry without specific scientific support directly related to our industry, this is a good first step to make sure that everyone has the facts about how these Rules will impact all abrasive blasting equally.
“These corrections should lay to rest some of the false claims and advertising that some manufacturers of glass abrasives in particular have deployed to try to mislead the public about the supposed benefits of their products and false statements about slags.”
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A years-long challenge between the Occupational Safety and Health Administration and several companies that produce or use blasting materials containing trace amounts of beryllium has reached a settlement. |
In the settlement, the details of the verbiage that OSHA promises to change (10 points of interest in total) are outlined in Appendix A. OSHA has to make the changes with 60 days. A few highlights include:
The verbiage was a real sticking point for the industry (in addition to the rules themselves), according to Dominic DeAngelo, Director of Sales and Marketing at Harsco Environmental, who talked with PaintSquare Daily News in December 2019.
“It’s important to recognize that all blasting operations have exposure to hazardous elements, as well as surfaces, coatings and substrates—but that’s why the industry is already highly regulated. OSHA has sometimes referred to one or more specific abrasives [in the context of the beryllium rule] but what it’s done has caused confusion. This [rule] would apply to any kind of abrasive blasting media. Because beryllium is a naturally occurring mineral it will be found in trace amounts virtually in every kind of media,” DeAngelo said, adding that some companies claim that they’re exempt from the rule, “and that’s not the case.”
“As an industry we don’t believe these should be enforced … but if they’re put into place, all media should be and will be subjected to this rule.”
At the time, DeAngelo went on to say that: “This industry has been effectively and safely blasting for well over 80 years and we are not aware of one documented case of beryllium-related illness,” he said, pointing to the already highly regulated existing blast standards.
Background on the Rulings
A new beryllium rule was published in January 2017 after years in development, authored primarily by OSHA, the United Steelworkers union and Materion Brush (the country’s largest supplier of beryllium alloys). In general industry, beryllium alloys are used as an aerospace material, in nuclear reactors and in some medical applications, as well as for other specialized uses.
The rule reduced 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 established a short-term exposure limit of 2.0 micrograms per cubic meter over a 15-minute sampling period.
While the rulemaking proposal that was published previous to the actual rule did not apply to the construction and maritime industries, OSHA in the end decided to publish a set of three new beryllium rules, with similar provisions, applying to construction, maritime and general industry.
For those industries, the rule applies when materials being used contain greater than 0.1% beryllium by weight (1,000 ppm). However, employers using materials with a lesser beryllium content are exempt only “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.”
At the time, support material to the proposed rule change said that OSHA included construction and maritime based on data of above-action-level exposures related to abrasive blasting. The Department went so far as to single out coal and copper slags, which has been a point of contention in the industry.
The ABMA argued during the original rulemaking process, and again after the publication of the rule, that there have historically been no cases of chronic beryllium disease known to have resulted from exposure via abrasive blasting.
The months and years that followed saw several revisions to the rule, primarily to the standards of the construction and shipyards industries.
Final Rules
In the July 2020 press release, the DOL pointed out that many facets of the General Industry rule have been enforced for a while, saying, “OSHA has been enforcing most of the provisions for general industry since Dec. 12, 2018. The agency began enforcing the provisions for change rooms and showers on March 11, 2019, and engineering controls on March 10, 2020.”
This final standard will affect approximately 50,500 workers employed in general industry and is estimated to yield minor net cost savings to employers, the Department added.
The clarification changes made to the General Industry Standard include:
In the rule’s Section XI Summary and Explanation of the Final Rule, the Department details the responses it received from its Notice of Proposed Rulemaking that was issued in December 2018. Each change is detailed, along with the responses the DOL received and its thoughts on the responses, culminating in why it chose the changes it did.
Then, a month later, the DOL issued the final rule for construction and shipyards. While no major changes were reported in the rule, the DOL did include changes that it said were designed to “clarify the standard and simplify or improve compliance.”
In the press release issued Aug. 18, OSHA notes:
“The final rule amends the following paragraphs in the beryllium standards for construction and shipyards: Definitions, Methods of Compliance, Respiratory Protection, Personal Protective Clothing and Equipment, Housekeeping, Hazard Communication, Medical Surveillance, and Recordkeeping. OSHA has removed the Hygiene Areas and Practices paragraph from the final standards because the necessary protections are provided by existing OSHA standards for sanitation.”
This rule, according to OSHA, impacts approximately 12,000 workers employed in nearly 2,800 establishments and OSHA maintains that the standards are estimated to yield $2.5 million in total annualized cost savings to employers. The compliance date is Sept. 30.
At the time, the ABMA again responded by questioning not only the rules themselves, but the verbiage used by OSHA, saying:
“Blanket statements from OSHA about specific abrasive materials containing more or less beryllium than other abrasives are irrelevant under this rule and have caused unnecessary confusion in the industry. Again, a jobsite is only exempt if exposures will remain below the very low action level under any foreseeable conditions, and no manufacturer can guarantee that. This means that the choice of blast media is not affected by the rule and abrasive blasters remain free to use the media that best serves their job.
“With the issuance of these final rules, it is time for the industry to recognize that the Beryllium Rules impact each of us equally and come together to champion sensible regulations that ensure worker health and environmental protection while preserving abrasive blasters’ freedom to operate.”
Tagged categories: Abrasive blasting; Abrasive Blasting Manufacturers Alliance; Abrasives; Beryllium; Health & Safety; Health and safety; OSHA; OSHA; Safety
