After more than 40 years of trying, the Occupational Safety and Health Administration (OSHA) has published a rule to reduce its occupational exposure limits for beryllium, a toxic metal used in various industries. Upon effect, the final rule will reduce the permissible exposure limit (PEL) for beryllium and establish short-term exposure limits. It will also require employers to both implement controls to limit worker exposure to beryllium and to establish programs to provide medical monitoring. The final rule is intended to protect a worker population of approximately 62,000 workers. It sets specific standards for three industries: general, construction, and shipyards, with a staggered timeline for compliance. The final rule can be accessed here.
The final rule was published on January 9, 2017, and is scheduled to go into effect on March 10, 2017. Although the final rule was the culmination of a joint proposal submitted by industry and union stakeholders, OSHA made revisions to the initial proposal. It is unclear whether the incoming Trump Administration will attempt to rescind this rule. With its effective date coming after January 20, the rule may be subject to an across-the-board 60-day suspension of such rules while the new Administration considers whether to take further action.
Beryllium, beryllium oxide, and beryllium alloys have high electrical and thermal conductivity, and are used in the aerospace, electronics, energy, telecommunication, medical, and defense industries. Beryllium particulates can become airborne, and workers may be exposed to beryllium through inhalation or skin exposure. Workers subject to inhalation exposure to beryllium have an increased risk of developing chronic beryllium disease (CBD), or lung cancer.
OSHA first adopted exposure limits for beryllium in 1971. It followed the American National Standards Institute (ANSI)’s establishment of national standards for beryllium with a PEL for beryllium and beryllium compounds at 2 μg/m3 as an 8-hour time-weighted average (TWA); 5 μg/m3 as an acceptable ceiling concentration; and 25 μg/m3 as an acceptable maximum peak above the acceptable ceiling concentration for a maximum duration of 30 minutes in an 8-hour shift. These standards were nearly identical to those introduced in 1949 by the Atomic Energy Commission, which limited workplace exposure to 2 μg/m3 as an 8-hour TWA, and 25 μg/m3 as a peak exposure never to be exceeded. OSHA proposed a rule in 1975 to reduce the beryllium PEL, which was never adopted.
Nearly 25 years later, in 1999, OSHA was petitioned by unions and national health organizations to promulgate an Emergency Temporary Standard. However, due to the high burden of proof required to impose an emergency standard, OSHA instead ordered the collection and analysis of research on the harmful effects of beryllium in preparation for possible section 6(b) rulemaking. In the same year, the Department of Energy updated its airborne threshold limits to 0.2 μg/m3. OSHA continued to seek information to identify the relationship between exposure to beryllium and adverse health effects, but did not issue a proposed rule until 2012.
In February 2012, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), together with Materion, the only domestic producer of primary beryllium, submitted a model beryllium standard to OSHA. The model standard served as part of the foundation for developing OSHA’s proposed rule. In particular, OSHA proposed a PEL of 0.2 μg/m3 as an 8-hour TWA, 2.0 μg/m3 as a short-term (15 minutes) exposure limit, and 0.1 μg/m3 as an 8-hour TWA Action Level.
The Final Rule: Scope
The final rule follows much, but not all, of the proposed rule. First, and as proposed, the new PEL reduces beryllium exposure by a factor of 10, from 2 μg/m3 to 0.2 μg/m3 as an 8-hour TWA and 2.0 μg/m3 as a short-term exposure limit determined over a sampling period of 15 minutes. The rule provides an exemption for those working with materials containing less than 0.1% beryllium by weight.
Second, in general industry workplaces, the rule requires that a “beryllium work area” be established and maintained in work areas containing a process or operation that can release beryllium where employees are, or could likely be, exposed to airborne beryllium at any level. This requirement is more narrow than that set forth in the proposed rule, which would have required a “beryllium work area” to be established wherever employees are, or can reasonably be expected to be exposed to airborne beryllium, regardless of the level of exposure.
The rule further requires employers to limit employee access to high-exposure areas; establish, implement and maintain a written control plan for beryllium work areas; and review and assess the efficacy of the control plan at least annually. The rule provides employers options for exposure assessments, including a new performance option as an alternative exposure assessment method. This also differs from the proposed rule, which would have allowed only a scheduled monitoring option.
Finally, employees must be offered medical examinations at least every two years.
The Final Rule: Timeline for implementation and compliance
The rule is scheduled to take effect March 10, 2017. All three industry sectors will have one year thereafter (until March 12, 2018) to comply with most requirements (the proposed rule would have required compliance for most provisions within 90 days). All sectors will have two years (until March 11, 2019) to provide change rooms and showers, and three years (until March 10, 2020) to implement engineering controls (the proposed rule would have required compliance with these provisions within one and two years, respectively).
Those potentially impacted by the rule should watch carefully to see whether the incoming Administration delays or revokes it. If not, they should begin preparations for compliance, as the one-year phase-in period will pass quickly.