# Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2019-21038 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** October 8, 2019 - **Citation:** 84 FR 53902 ## Text DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Parts 1915 and 1926 [Docket No. OSHA-H005C-2006-0870] RIN 1218-AD29 Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Proposed rule; request for comments and notice of public hearing. SUMMARY: OSHA is proposing to revise the standards for occupational exposure to beryllium and beryllium compounds in the construction and shipyards industries. These proposed changes are designed to accomplish three goals: To more appropriately tailor the requirements of the construction and shipyards standards to the particular exposures in these industries in light of partial overlap between the beryllium standards' requirements and other OSHA standards; to aid compliance and enforcement across the beryllium standards by avoiding inconsistency, where appropriate, between the shipyards and construction standards and proposed revisions to the general industry standard; and to clarify certain requirements with respect to materials containing only trace amounts of beryllium. This proposal would lead to total annualized cost savings of $2.5 million at a 3 percent discount rate over 10 years; at a discount rate of 7 percent over 10 years, the annualized cost savings would be $2.5 million. OSHA has preliminarily determined that these proposed changes would maintain safety and health protections for workers, while facilitating compliance with the standards and yielding some cost savings. This proposal does not affect the general industry beryllium standard. DATES: Written Comments: Written comments on this NPRM must be submitted (postmarked, sent, or received) by November 7, 2019 in Docket Number OSHA-H005C-2006-0870. Comments on the information collection determination described in Section VI of the preamble (OMB Review under the Paperwork Reduction Act of 1995) may be submitted (postmarked, sent, or received) by December 9, 2019 in Docket Number OSHA-2019-0006. OSHA will consider comments on the information collection determination submitted in either docket, but requests that commenters submit relevant comments to Docket Number OSHA-2019-0006. Informal Public Hearing: The agency will hold an informal public hearing on Tuesday, December 3, 2019, in the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. The hearing will begin at 9:30 a.m. and OSHA expects the hearing to last until 5:30 p.m., ET. A schedule will be released prior to the start of the hearings and may be amended at the discretion of the presiding administrative law judge (ALJ). Notice of Intention to Appear at the Hearing: Interested persons who intend to present testimony or question witnesses at the hearing must submit (transmit, send, postmark, deliver) a notice of intention to appear by November 7, 2019 in Docket No. OSHA-H005C-2006-0870. Hearing Testimony and Documentary Evidence: Interested persons who request more than 10 minutes to present testimony or intend to submit documentary evidence at the hearing must submit (transmit, send, postmark, deliver) the full text of their testimony and all documentary evidence by November 7, 2019 in Docket No. OSHA-H005C-2006-0870. ADDRESSES: Written Comments: You may submit written comments, notices of intention to appear, written hearing testimony, and documentary evidence, identified by Docket No. OSHA-H005C-2006-0870 for the NPRM and Docket No. OSHA-2019-0006 for the information collection determination, by any of the following methods: Electronically: Submit comments and attachments, as well other information, electronically at http://www.regulations.gov , which is the Federal e-Rulemaking Portal. Follow the instructions online for submitting comments. After accessing “all documents and comments” in the docket (OSHA-H005C-2006-0870 for the NPRM or OSHA-2019-0006 for the information collection determination), check the “proposed rule” box in the column headed “Document Type,” find the document posted on the date of publication of this document, and click the “Comment Now” link. When uploading multiple attachments into Regulations.gov , please number all of your attachments because www.Regulations.gov will not automatically number the attachments. This will be very useful in identifying all attachments in the rule. For example, Attachment 1—title of your document, Attachment 2—title of your document, Attachment 3—title of your document. Specific instructions on uploading all documents are found in the Frequently Asked Questions portion and the Commenter's Checklist on Regulations.gov . Facsimile: OSHA allows fax transmission of comments that are 10 pages or fewer in length (including attachments). Fax these documents to the OSHA Docket Office at (202) 693-1648. Regular mail, express delivery, hand delivery, and messenger (courier) service: Submit comments and any additional material to the OSHA Docket Office, Docket No. OSHA-H005C-2006-0870 for the NPRM or Docket No. OSHA-2019-0006 for the information collection determination, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-2350. OSHA's TTY number is (877) 889-5627. Contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express delivery, hand delivery, and messenger service. The Docket Office will accept deliveries (express delivery, hand delivery, messenger service) during the Docket Office's normal business hours, 10:00 a.m. to 3:00 p.m., ET. Instructions: All submissions must include the agency name and the docket number for this rulemaking (Docket No. OSHA-H005C-2006-0870 for the NPRM or Docket No. OSHA-2019-0006 for the information collection determination). All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at http://www.regulations.gov . Therefore, OSHA cautions commenters about submitting statements they do not want made available to the public, or submitting comments that contain personal information (either about themselves or others), such as Social Security Numbers, birthdates, and medical data. Docket: To read or download comments, notices of intention to appear, and other materials submitted in response to this Federal Register document, go to Docket No. OSHA-H005C-2006-0870 for the NPRM or Docket No. OSHA-2019-0006 for the information collection determination at http://www.regulations.gov or to the OSHA Docket Office at the above address. All comments and submissions are listed in the http://www.regulations.gov index; however, some information ( e.g., copyrighted material) is not publicly available to read or download through that website. All comments and submissions are available for inspection and, where permissible, copying at the OSHA Docket Office. Electronic copies of this Federal Register document are available at http://www.regulations.gov . Copies also are available from the OSHA Office of Publications; telephone (202) 693-1888. This document, as well as news releases and other relevant information, is also available at OSHA's website at http://www.osha.gov . Citation Method: In the docket for the beryllium rulemaking, found at http://www.regulations.gov, every submission was assigned a document identification (ID) number that consists of the docket number (OSHA-H005C-2006-0870) followed by an additional four-digit number. For example, the document ID number for OSHA's Preliminary Economic Analysis and Initial Regulatory Flexibility Analysis is OSHA-H005C-2006-0870-0426. Some document ID numbers include one or more attachments (see, e.g., Document ID OSHA-H005C-2006-0870-2142). When citing exhibits in the docket, OSHA includes the term “Document ID” followed by the last four digits of the document ID number, the attachment number or other attachment identifier, if necessary for clarity, and page numbers (designated “p.” or “Tr.” for pages from a hearing transcript). In a citation that contains two or more document ID numbers, the document ID numbers are separated by semicolons. FOR FURTHER INFORMATION CONTACT: Press inquiries: Mr. Frank Meilinger, OSHA Office of Communications; telephone: (202) 693-1999; email: meilinger.francis2@dol.gov . General information and technical inquiries: Mr. William Perry or Ms. Maureen Ruskin, Directorate of Standards and Guidance; telephone: (202) 693-1950; email: perry.bill@dol.gov . Copies of this Federal Register document and news releases: Electronic copies of these documents are available at OSHA's web page at https://www.osha.gov . SUPPLEMENTARY INFORMATION: Table of Content I. Background II. Pertinent Legal Authority III. Summary and Explanation of the Proposed Rule IV. Preliminary Economic Analysis V. Economic Feasibility Analysis and Regulatory Flexibility Certification VI. OMB Review Under the Paperwork Reduction Act of 1995 VII. Federalism VIII. State Plan States IX. Unfunded Mandates Reform Act X. Environmental Impacts XI. Consultation and Coordination With Indian Tribal Governments Authority and Signature Amendments to Standards I. Background On January 9, 2017, OSHA published the final rule Occupational Exposure to Beryllium and Beryllium Compounds in the Federal Register (82 FR 2470-2757). Subsequently, on June 27, 2017, OSHA proposed to revoke the ancillary provisions for both construction and shipyards adopted in the January 9, 2017, final rule and to retain the new lower PEL of 0.2 µg/m 3 and STEL of 2.0 μg/m 3 for those sectors (82 FR 29182). 1 OSHA discussed in the proposal its consideration of extending the compliance dates in the January 9, 2017, final rule by a year for the construction and shipyard standards. OSHA reasoned that this potential extension would give affected employers additional time to come into compliance with the final rule's requirements, which could be warranted by the uncertainty created by the proposal. OSHA also stated in the proposal that it would not enforce the construction and shipyard standards without further notice while the rulemaking was underway. 2 OSHA provided a sixty-day comment period and received over 70 unique comments in response to this proposal. 1 For a full discussion of the events leading to the proposed rule, see the preamble to the 2017 NPRM (82 FR at 29185-88). 2 Subsequently, in March 2018, OSHA stated that it would begin enforcing the PEL and STEL on May 11, 2018 (see Memorandum for Regional Administrators, Delay of Enforcement of the Beryllium Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR 1926.1124, Mar. 2, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02 ). On May 7, 2018, OSHA issued a direct final rule (DFR) adopting a number of clarifying amendments to address the application of the beryllium standard for general industry to materials containing trace amounts of beryllium (83 FR 19936). The DFR amended the text of the general industry standard to clarify OSHA's intent with respect to certain terms in the standard, including the definition of beryllium work area, the definition of emergency, and the meaning of the terms dermal contact and beryllium contamination. The DFR also clarified OSHA's intent with respect to provisions for disposal and recycling and with respect to provisions that the agency intended to apply only where skin can be exposed to materials containing at least 0.1% beryllium by weight. The DFR became effective on July 6, 2018, because OSHA did not receive significant adverse comment in response to the DFR (see 83 FR 31045 (7/3/18)). On June 1, 2018, OSHA published a proposal to extend the compliance date for certain ancillary requirements of the general industry beryllium standard, from March 12, 2018, to December 12, 2018 (83 FR 25536). OSHA proposed an extension of the compliance date for the following provisions in the general industry standard: Beryllium work areas and regulated areas (paragraph (e)), written exposure control plans (paragraph (f)(1)), personal protective clothing and equipment (paragraph (h)), hygiene areas and practices (paragraph (i) except for change rooms and showers), housekeeping (paragraph (j)), communication of hazards (paragraph (m)), and recordkeeping (paragraph (n)). OSHA reasoned that: (1) It planned to propose modifications to ancillary provisions of the beryllium general industry standard in response to stakeholder questions and concerns; (2) it would be undesirable for both the agency and the regulated community to begin enforcement of the ancillary provisions of the standard that would be affected by the upcoming rulemaking; (3) enforcing compliance with the relevant ancillary requirements, as currently written, before publishing the agreed-upon proposal, would likely result in employers taking unnecessary measures to comply with provisions that OSHA intended to clarify; and (4) the proposed compliance date extension would give OSHA time to prepare and publish the planned substantive general industry NPRM to amend the standard before employers were required to comply with the affected provisions of the rule. At that point OSHA could rely on its de minimis policy and allow employers the option of complying with the proposed provisions of the substantive NPRM without risk of a citation. OSHA adopted the extension of the compliance dates, as proposed, on August 9, 2018 (83 FR 39351). On December 11, 2018, OSHA published the substantive NPRM to modify several of the general industry beryllium standard's definitions, along with the provisions for methods of compliance, personal protective clothing and equipment, hygiene areas and practices, housekeeping, medical surveillance, communication of hazards, and recordkeeping (83 FR 63746). OSHA reasoned that the proposed modifications would provide clarification and simplify or improve compliance. In a document published September 30, 2019, OSHA issued a final rule extending the compliance dates for the construction and shipyards ancillary provisions by one year from the publication date of the final and reaffirming the significant risk findings from the January 9, 2017, final rule (84 FR 51377). In this notice of proposed rulemaking, OSHA is considering relevant comments to the June 2017 construction and shipyards proposal, as well as general industry stakeholder input that led to the 2018 DFR and 2018 substantive NPRM, to propose revisions to the ancillary provisions of the construction and shipyard standards that are tailored to these sectors. While OSHA will consider comments on the June 2017 proposal to the extent they continue to be relevant in this rulemaking, OSHA requests that stakeholders, including those who commented on the June 2017 proposal, also comment on the proposed revisions to the ancillary provisions in this proposal. OSHA consulted with the Advisory Committee on Construction Safety & Health (ACCSH) regarding this proposal on September 9, 2019. ACCSH recommended that OSHA proceed with the proposal to “revise the beryllium standard for construction to ensure that the ancillary provisions are tailored to the construction industry and align with the general industry standard, where appropriate,” and unanimously recommended that OSHA do so as soon as possible. OSHA will publish meeting minutes and copies of materials presented to the Committee in the ACCSH docket at https://www.regulations.gov/docket?D=OSHA-2018-0012 . II. Pertinent Legal Authority The purpose of the Occupational Safety and Health Act of 1970 (“the OSH Act” or “the Act”), 29 U.S.C. 651 et seq., is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate occupational safety and health standards pursuant to notice and comment rulemaking. See 29 U.S.C. 655(b). An occupational safety or health standard is a standard “which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). The Act also authorizes the Secretary to “modify” or “revoke” any occupational safety or health standard, 29 U.S.C. 655(b), and under the Administrative Procedure Act, regulatory agencies generally may revise their rules if the changes are supported by a reasoned analysis, see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). “While the removal of a regulation may not entail the monetary expenditures and other costs of enacting a new standard, and accordingly, it may be easier for an agency to justify a deregulatory action, the direction in which an agency chooses to move does not alter the standard of judicial review established by law.” Id. at 43. The Act provides that in promulgating health standards dealing with toxic materials or harmful physical agents, such as the January 9, 2017, final rule regulating occupational exposure to beryllium, the Secretary must set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. 29 U.S.C. 665(b)(5). The Supreme Court has held that before the Secretary can promulgate any permanent health or safety standard, he must make a threshold finding that significant risk is present and that such risk can be eliminated or lessened by a change in practices. See Indus. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42 (1980) (plurality opinion) (“Benzene”). OSHA need not make additional findings on risk for this proposal because OSHA previously determined that the beryllium standard addresses a significant risk, see 82 FR 2545-52, and reaffirmed that finding in the rule finalizing the 2017 shipyards and construction proposal, the final rule published September 30, 2019. See Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that OSHA must “find that each and every aspect of its standard eliminates a significant risk”). OSHA standards must also be both technologically and economically feasible. See United Steelworkers v. Marshall, 647 F.2d 1189, 1248 (D.C. Cir. 1980) (“Lead I”). The Supreme Court has defined feasibility as “capable of being done.” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-10 (1981) (“Cotton Dust”). The courts have further clarified that a standard is technologically feasible if OSHA proves a reasonable possibility, “within the limits of the best available evidence, . . . that the typical firm will be able to develop and install engineering and work practice controls that can meet the [standard] in most of its operations.” Lead I, 647 F.2d at 1272. With respect to economic feasibility, the courts have held that “a standard is feasible if it does not threaten massive dislocation to or imperil the existence of the industry.” Id. at 1265 (internal quotation marks and citations omitted). OSHA exercises significant discretion in carrying out its responsibilities under the Act. Indeed, a number of terms of the statute give OSHA wide discretion to devise means to achieve the congressionally mandated goal of ensuring worker safety and health. See Lead I, 647 F.2d at 1230. Thus, where OSHA has chosen some measures to address a significant risk over other measures, those challenging the OSHA standard must “identify evidence that their proposals would be feasible and generate more than a de minimis benefit to worker health.” N. Am.'s Bldg. Trades Unions v. OSHA, 878 F.3d 271, 282 (D.C. Cir. 2017). Although OSHA is required to set standards “on the basis of the best available evidence,” 29 U.S.C. 655(b)(5), its determinations are “conclusive” if supported by “substantial evidence in the record considered as a whole,” 29 U.S.C. 655(f). Similarly, as the Supreme Court noted in Benzene, OSHA must look to “a body of reputable scientific thought” in making determinations, but a reviewing court must “give OSHA some leeway where its findings must be made on the frontiers of scientific knowledge.” Benzene, 448 U.S. at 656. When there is disputed scientific evidence in the record, OSHA must review the evidence on both sides and “reasonably resolve” the dispute. Tyson, 796 F.2d at 1500. The “possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding from being supported by substantial evidence.” N. Am.'s Bldg. Trades Unions, 878 F.3dat 291 (quoting Cotton Dust, 452 U.S. at 523) (alterations omitted). As the D.C. Circuit has noted, where “OSHA has the expertise we lack and it has exercised that expertise by carefully reviewing the scientific data,” a dispute within the scientific community is not occasion for the reviewing court to take sides about which view is correct. Tyson, 796 F.2d at 1500. Finally, because section 6(b)(5) of the Act explicitly requires OSHA to set health standards that eliminate risk “to the extent feasible,” OSHA uses feasibility analysis rather than cost-benefit analysis to make standards-setting decisions dealing with toxic materials or harmful physical agents (29 U.S.C. 655(b)(5)). An OSHA standard in this area must be technologically and economically feasible—and also cost effective, which means that the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection—but OSHA cannot choose an alternative that provides a lower level of protection for workers' health simply because it is less costly. See Int'l Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994); see also Cotton Dust, 452 U.S. at 514 n.32. In Cotton Dust, the Court explained that Congress itself defined the basic relationship between costs and benefits, by placing the “benefit” of worker health above all other considerations save those making attainment of this “benefit” unachievable. The court further stated that any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in section 6(b)(5). Cotton Dust, 452 U.S. at 509. Thus, while OSHA estimates the costs and benefits of its proposed and final rules, partly in accordance with Executive Orders 12866 and 13771, these calculations do not form the basis for the agency's regulatory decisions. III. Summary and Explanation of the Proposed Rule The following discussion summarizes and explains the changes OSHA is proposing to the beryllium standards for construction and shipyards and the rationale for each proposed change. The 2017 final rule promulgated three standards designed to protect workers from the serious health effects caused by occupational exposure to beryllium and beryllium compounds (see 82 FR 2470 (Jan. 9, 2017)). The three standards, which cover general industry (29 CFR 1910.1024), construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024), each contains a comprehensive set of protections, consisting of the exposure limits in paragraph (c) and a number of ancillary provisions, typical of OSHA health standards, in paragraphs (d) through (n) (see 82 FR at 2476). The ancillary provisions encompass requirements for exposure assessment, competent person (construction) or regulated areas (shipyards), methods of compliance, respiratory protection, personal protective clothing and equipment, hygiene, housekeeping, medical surveillance and medical removal, communication of hazards, and recordkeeping (29 CFR 1915.1024(d)-(n); 29 CFR 1926.1124(d)-(n)). Since the publication of the 2017 final rule, OSHA has sought to revise the beryllium standards in a number of separate rulemakings. Those bearing on this proposal include: (1) The June 27, 2017, construction and shipyards proposal (82 FR at 29182); (2) the May 7, 2018, general industry DFR (83 FR at 19936); and (3) the December 11, 2018, general industry proposal (83 FR at 63746) (see Section I, Background, above for more details). In light of the comments OSHA received on these rulemakings, and other information the agency received following the publication of the 2017 final rule, OSHA is proposing revisions to several paragraphs of the beryllium standards for construction and shipyards. OSHA has preliminarily determined that, taken together, the limited exposures in the construction and shipyards industries and the partial overlap between the beryllium standards and other OSHA standards make revisions to both the construction and shipyards beryllium standards appropriate. The rationales for these proposed revisions fall into three categories. First, OSHA is proposing to remove or modify some provisions which—although appropriate in the general industry context—may be unnecessary or require revision to appropriately protect employees in the construction and shipyards industries. As will be explained further below, operations with beryllium exposure in the construction and shipyards industries are significantly less varied and employees are exposed to materials with significantly lower content beryllium than in the general industry sector. In addition, employees in these industries receive the protections of several other OSHA standards, as the agency explained both in the June 27, 2017, construction and shipyards proposal and in the final rule published September 30, 2019. Second, OSHA is proposing to revise some provisions of the construction and shipyard standards to avoid inconsistencies with the clarifying changes the agency proposed in the December 11, 2018, general industry proposal. OSHA seeks to align these standards to the extent possible because the agency believes that, where there is no substantive difference among industries with respect to a particular provision, applying similar requirements across industries aids both compliance and enforcement. Conversely, applying different requirements to identical situations may lead to confusion. While most of the proposed changes in the December 2018 proposed rule were designed specifically for general industry, OSHA is proposing to align changes to paragraph (b), medical definitions; paragraph (k), medical surveillance; and paragraph (n), recordkeeping for workers' Social Security Numbers (SSNs) (83 FR at 63746), because the rationale underlying these proposed changes applies equally in the construction and shipyards contexts. Third, OSHA is proposing to revise certain paragraphs of the construction and shipyard standards to address the application of provisions related to dermal contact to materials containing beryllium in trace quantities. In the general industry DFR, OSHA clarified that provisions triggered by dermal contact with beryllium or beryllium contamination would apply only for dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight (83 FR at 19939). OSHA's rationale regarding this final set of proposed changes dates back to the agency's August 7, 2015, beryllium NPRM (which led to the 2017 final rule) (80 FR at 47565). Therein, OSHA proposed to exempt materials containing less than 0.1% beryllium by weight on the premise that workers exposed only to beryllium as a trace contaminant are not exposed at levels of concern (80 FR at 47775). However, the agency noted evidence of high airborne exposures in construction and shipyard sectors, in particular during blasting operations and cleanup of spent media (80 FR at 47733). Therefore, OSHA proposed for comment several regulatory alternatives, including an alternative that would expand the scope of the proposed standard to also include all operations in general industry where beryllium exists only as a trace contaminant (80 FR at 47730) and an alternative that would expand the scope to include employers in the shipyard and maritime sectors (80 FR at 47777). In the 2017 final rule, after considering stakeholders' comments, OSHA decided to apply the exemption for materials containing less than 0.1% beryllium by weight only where the employer has objective data demonstrating that employee exposure to airborne beryllium will remain below the action level of 0.1 µg/m 3 , measured as an 8-hour TWA, under any foreseeable conditions (82 FR at 2643). OSHA noted that the action level exception ensured that workers with airborne exposures of concern were covered by the standard. OSHA agreed with the many commenters and hearing testimony expressing concern that hazardous exposures to beryllium can occur with materials containing trace amounts of beryllium. While the agency acknowledged concerns expressed by ABMA and EEI that processing materials with trace amounts of beryllium may not necessarily produce significant exposures to beryllium, evidence in the record showed significant exposures in some operations using materials with trace amounts of beryllium. OSHA explicitly identified abrasive blasting as one such operation. The agency determined that preventing airborne exposures at or above the action level, even to trace amounts of beryllium, reduces the risk of beryllium-related health effects to workers (82 FR at 2643; see also 82 FR at 2552). While adopting this limited exemption for trace materials, OSHA also adopted the regulatory alternative expanding the scope of the rule to include both construction and shipyards, but recognized that these sectors had limited operations that generated airborne exposures to beryllium of concern and issued separate standards for these sectors. Nonetheless, OSHA applied similar ancillary requirements across the general industry, construction, and shipyards beryllium standards. At the same time, the agency acknowledged that different approaches may be warranted for some provisions in construction and shipyards than for general industry due to the nature of the materials and work processes typically used in those industries (82 FR at 2690). Specifically, exposures to beryllium in construction and shipyards are limited to only a few operations, primarily abrasive blasting in construction and shipyards and some welding operations in shipyards (see Document ID 2042, FEA Chapter III, pp. 103-11 and Table III-8e). While the extremely high airborne exposures during the blasting operation can expose workers to beryllium in excess of the PEL, the blasting materials contain only trace amounts of beryllium (materials such as coal slag normally contain approximately 11µg/g or 0.0001 percent) (Document ID 2042, Chapter IV, Technological Feasibility, Table IV.69). Furthermore, the rulemaking record contains evidence of beryllium exposure during only limited welding operations in shipyards (only 4 of 127 sample results showed detectable levels of airborne beryllium) (Document ID 2042, Chapter IV, Technological Feasibility, p. IV-580). As the regulatory history above suggests, OSHA intended to protect employees working with trace beryllium when those employees experience significant airborne exposures. OSHA did not intend for provisions aimed at protecting workers from the effects of dermal contact to apply in the case of materials containing only trace amounts of beryllium in the absence of significant airborne beryllium exposure. For this reason, OSHA clarified in the general industry DFR that provisions triggered by dermal contact with beryllium or beryllium contamination would apply only for dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight (83 FR at 19939). In construction and shipyards, where beryllium exposure occurs almost exclusively from materials that contain beryllium in concentrations less than or equal to 0.1 percent by weight, OSHA is now proposing to remove provisions triggered by dermal contact or beryllium contamination entirely. Additionally, although limited welding operations in shipyards may include base materials or fume containing more than 0.1 percent beryllium by weight, OSHA has reason to believe that skin or surface contamination is not an exposure source of concern in these operations. A 2007 study by Cole indicated that the beryllium content of beryllium-aluminum alloy welding fume samples was lower than expected given the beryllium content of the base metal (see Document ID 0885, p. 685). 3 OSHA therefore believes the amount of beryllium oxide to form on the surface of materials being welded in shipyards is likely far lower than would be expected based solely on the percentage of beryllium in the base metal. OSHA therefore expects that skin or surface contamination from beryllium dust, fumes, mists, or solutions in concentrations of 0.1 percent by weight or more is unlikely to result from the welding operations for beryllium/aluminum alloys sometimes found in shipyards. While OSHA is proceeding on this assumption for purposes of this proposal, the agency specifically requests comments and data on the potential for skin and surface contamination from materials containing more than 0.1 percent beryllium by weight in shipyard welding operations. 3 The alloy examined by Cole et al. contained .0007 percent beryllium. As the study explained, “[b]ecause of its higher reactivity, beryllium should readily oxidize and be present in the weld fume. However, all results from this filler alloy showed beryllium emissions of <0.2 µg/m 3 even though the concentration of particulate matter exceeded 600 mg/m 3 .” Applying the 0.0007 percent beryllium content of the alloy to the 600 mg/m 3 of the particulate generated yields an expected 4.2 µg/m 3 of beryllium in the welding fume, about thirty times the observed quantity of less than 0.2 µg/m 3 . (Document ID 0855, pp. 684-85). Based on the foregoing, OSHA is proposing a number of revisions to the beryllium standards for construction and shipyards. These revisions apply to the following: Paragraph (b), definitions; paragraph (f), methods of compliance; paragraph (g), respiratory protection; paragraph (h), personal protective equipment (PPE); paragraph (i), hygiene areas and practices; paragraph (j), housekeeping; paragraph (k), medical surveillance; paragraph (m), communication of hazards; and paragraph (n), recordkeeping. The remainder of this summary and explanation provides detail on these proposed changes, including the agency's reasoning for each. Paragraph (b) Definitions Paragraph (b) of the beryllium standards for both construction and shipyards provides definitions of terms used in the beryllium regulatory text. OSHA is proposing to modify several existing definitions: CBD diagnostic center, chronic beryllium disease (CBD), and confirmed positive ; to add a definition of beryllium sensitization ; and to eliminate the definition of emergency . All proposed changes to paragraph (b) would apply to both the construction and shipyards standards. OSHA is proposing to modify the definitions of CBD diagnostic center, chronic beryllium disease (CBD), and confirmed positive and add a definition of beryllium sensitization to align with changes the agency has proposed to the beryllium standard for general industry. OSHA proposed these modifications for the general industry standard in December 2018 to clarify the meaning of the terms used in that standard (83 FR at 63747). OSHA provided a sixty-day comment period for the general industry proposal, which closed on Feb. 11, 2019. OSHA's rationale for including these definitions applies equally in the construction and shipyards contexts. Accordingly, OSHA will consider the comments that were submitted in response to the proposed changes to definitions in the general industry standard along with any comments received during this rulemaking on the proposed definitions in determining whether to finalize the proposed definitions in the construction and shipyards standards. The comments to the general industry proposal can be found in Docket OSHA-2018-0003 at http://regulations.gov . Beryllium sensitization. OSHA is proposing to add a definition for beryllium sensitization that encompasses the following concepts: That beryllium sensitization is a response in the immune system of a specific individual who has been exposed to beryllium; that there are no associated physical or clinical symptoms and no illness or disability with beryllium sensitization alone, but the response that occurs through beryllium sensitization can enable the immune system to recognize and react to beryllium; and finally that while not every beryllium-sensitized person will develop CBD, beryllium sensitization is essential for development of CBD. The agency is proposing to add this definition in order to provide additional clarification of other provisions in the standard, such as the definitions of chronic beryllium disease (CBD) and confirmed positive and the provisions for medical surveillance (paragraph (k)) and hazard communication (paragraph (m)). This proposed revision is identical to the change proposed in the December 2018 general industry proposal and serves the same purpose (see 83 FR at 63747). The proposed addition of a definition for beryllium sensitization would not change employer obligations under paragraphs (k) and (m) and would not affect employee protections. As OSHA determined in the 2017 final rule, after an individual has been sensitized, subsequent beryllium exposures via inhalation can progress to serious lung disease through the formation of granulomas and fibrosis (82 FR at 2491-98). Since the pathogenesis of CBD involves a beryllium-specific, cell-mediated immune response, CBD cannot occur in the absence of sensitization (NAS, 2008, Document ID 1355). Therefore, the proposed definition explaining that beryllium sensitization is essential for development of CBD is consistent with the agency's findings in the final rule. In response to the December 2018 general industry proposal, several commenters expressed support for OSHA's inclusion of a definition of beryllium sensitization in the beryllium general industry standard, including National Jewish Health (NJH) (Document ID OSHA-2018-0003-0022, p. 2), the United Steelworkers (USW) (Document ID OSHA-2018-0003-0033, p. 1), Materion (Document ID OSHA-2018-0003-0038, p.8), the US Department of Defense (DoD) (Document ID OSHA-2018-0003-0029, p.1), and Edison Electric Institute (EEI) (Document ID OSHA-2018-0003-0031, p. 2). Two commenters agreed with OSHA's proposed definition with no changes (Document ID OSHA-2018-0003-0033, p. 1; 0038, p. 2). While OSHA received no objections to including a definition of beryllium sensitization in the beryllium standard for general industry, The National Supplemental Screening Program (NSSP), a U.S. Department of Energy Former Worker Medical Screening Program and NJH recommended alternative text for the definitions (Document ID OSHA-2018-0003-0027 p. 1; 0022, p. 2; see also Document ID 0364, pp. 1, 44). Other commenters had concerns about specific statements in the definition (Document ID OSHA-2018-0003-0033, p. 1; 0027, p.1). As stated above, OSHA will consider these comments along with any comments submitted during this rulemaking in determining whether to finalize the proposed definition in the construction and shipyards standards. CBD diagnostic center. OSHA is proposing to amend the definition of CBD diagnostic center to clarify certain requirements used to qualify an existing medical facility as a CBD diagnostic center. The proposed clarification would not change the employer requirement to offer a follow-up examination at a CBD diagnostic center to employees meeting the criteria set forth in paragraph (k)(2)(ii). OSHA is proposing CBD diagnostic center to mean a medical diagnostic center that has a pulmonologist or pulmonary specialist on staff and on-site facilities to perform a clinical evaluation for the presence of CBD. The proposed definition also states that a CBD diagnostic center must have the capacity to perform pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. In the proposed definition, the CBD diagnostic center must also have the capacity to transfer BAL samples to a laboratory for appropriate diagnostic testing within 24 hours and the pulmonologist or pulmonary specialist must be able to interpret the biopsy pathology and the BAL diagnostic test results. As discussed in the December 2018 general industry proposal (83 FR at 63747), the proposed definition includes the following changes to the current definition of CBD diagnostic center . First, the agency is proposing changing the language to reflect the agency's intent that pulmonologists or pulmonary specialists be on staff at a CBD diagnostic center. Whereas the current definition specifies only that a CBD diagnostic center must have a pulmonary specialist, OSHA is proposing to add the term “pulmonologist” to clarify that either type of specialist is qualified to perform a clinical evaluation for the presence of CBD. Additionally, the current definition states that a CBD diagnostic center has an on-site specialist. OSHA is proposing to change the language to state that a CBD diagnostic center must have a pulmonologist or pulmonary specialist on staff, rather than on site, to clarify that such specialists need not necessarily be on site at all times. An additional proposed change to CBD diagnostic center would clarify that the diagnostic center must have the capacity to do any of the listed tests that the examining physician may deem necessary. As currently written, the definition could be misinterpreted to mean that any clinical evaluation for CBD performed at a CBD diagnostic center must include pulmonary testing, bronchoalveolar lavage, and transbronchial biopsy. The agency's intent is not to dictate what tests a specialist should include, but to ensure that any facility has the capacity to perform any of these tests, which are commonly needed to diagnose CBD. Therefore, the agency is proposing to modify part of the current definition from “[t]his evaluation must include pulmonary function testing . . .” to “[t]he CBD diagnostic center must have the capacity to perform pulmonary function testing. . . .” These changes to the definition of CBD diagnostic center are clarifying in nature, and OSHA expects they would maintain safety and health protections for workers. OSHA received comments on this definition during the December 2018 general industry rulemaking. Materion submitted comments supporting OSHA's intent to specify the required capacities of a CBD diagnostic center, rather than the contents of a CBD evaluation, in the definition of CBD diagnostic center (Document ID OSHA-2018-0003-0038, pp. 16-17). NJH expressed concern that this change to the definition may indicate that the clinical evaluation for CBD need not include certain aspects of a CBD evaluation, which NJH, the Association of Occupational and Environmental Clinics (AOEC), and the ATS recommend should typically include full pulmonary function testing (lung volumes, spirometry, and diffusion capacity for carbon monoxide), chest imaging, and cardiopulmonary exercise testing, and may also include bronchoscopy in some cases (Document IDs OSHA-2018-0003-0022, p. 3; 0028, p. 2; 0021, pp. 1-2). OSHA will consider these comments, along with any comments submitted during this rulemaking, in developing the final beryllium standards for construction and shipyards. Chronic beryllium disease (CBD). For the purposes of this standard, the agency is proposing chronic beryllium disease to mean a chronic granulomatous lung disease caused by inhalation of airborne beryllium by an individual who is beryllium-sensitized. The proposed definition includes several changes to the current definition of chronic beryllium disease . First, OSHA proposes to add the term “granulomatous” to the phrase “lung disease” to better distinguish CBD from other occupationally associated chronic pulmonary diseases of inflammatory origin. A granulomatous lung formation is a focal collection of inflammatory cells ( e.g., T-cells) creating a nodule in the lung (Ohshimo et al., 2017, Document ID OSHA-H005C-2006-0870-2171, p. 2). The formation of the type of lung granuloma specific to a beryllium immune response can only occur in those with CBD (82 FR at 2492-2502). An additional proposed clarification to the definition of chronic beryllium disease would change “associated with airborne exposure to beryllium” to “caused by inhalation of airborne beryllium.” This proposed change would be more consistent with the findings in the 2017 final rule that indicate beryllium is the causative agent for CBD and that CBD only occurs after inhalation of beryllium (82 FR at 2513). A further proposed change includes the addition of “by an individual who is beryllium sensitized.” This proposed change would clarify OSHA's finding that beryllium sensitization is essential in the development of CBD (82 FR at 2492). In response to the December 2018 general industry proposal, NJH, USW, and Materion agreed with OSHA that the 2017 final standard's definition of chronic beryllium disease should be clarified (Document ID OSHA-2018-0003-0022, p. 2; 0033, p. 5; 0038, p. 17). However, some commenters expressed concern that the proposed definition of chronic beryllium disease does not provide sufficient information to guide diagnosis of CBD, and specifically that OSHA's emphasis on the role of sensitization in the development of CBD may confuse diagnostic efforts (Document ID OSHA-2018-0003-0021, pp. 4-5; 0023, p. 2). Other commenters suggested alternative language for the definition of CBD (OSHA-2018-0003-0027, pp. 3-4; 0022, p. 2). OSHA will consider these comments, along with any comments submitted during this rulemaking, in developing the final beryllium standards for construction and shipyards. Confirmed positive. OSHA is proposing to modify the definition of confirmed positive to mean that an employee has had two abnormal BeLPT test results, an abnormal and a borderline test result, or three borderline test results obtained within the 30 day follow-up test period required after a first abnormal or borderline BeLPT test result. It also means the result of a more reliable and accurate test indicating a person has been identified as having beryllium sensitization. The proposed definition includes several changes to the current definition of confirmed positive . First, OSHA is proposing to remove the phrase “beryllium sensitization” from the first part of the definition, which currently states that the person tested has beryllium sensitization, as indicated by two abnormal BeLPT test results, an abnormal and a borderline test result, or three borderline test results. The proposed change would emphasize OSHA's intent that confirmed positive should act as a trigger for continued medical monitoring and surveillance for the purposes of this standard and is not intended as a scientific or general-purpose definition of beryllium sensitization. The term confirmed positive originates from a study that described the findings from a large-scale interlaboratory testing scheme (Stange et al., 2004; Document ID 1402). Stange et al. demonstrated that when samples with abnormal findings from one lab were retested in a second lab, the reliability of the results increased. As OSHA discussed in the preamble to the 2017 final rule, individuals who are confirmed positive through two abnormal BeLPT test results, an abnormal and a borderline, or three borderlines may be at risk for developing CBD (82 FR at 2646). OSHA intends the term confirmed positive in the beryllium standards to identify those individuals who may be at risk for developing CBD and should therefore be offered continued medical surveillance, an evaluation at a CBD diagnostic center, and medical removal protection, regardless of whether they might otherwise be identified as “sensitized.” The next proposed change to confirmed positive would include clarification that the findings of two abnormal, one abnormal and one borderline, or three borderline results need to occur within the 30-day follow-up test period required after a first abnormal or borderline BeLPT test result. After publication of the 2017 final rule, stakeholders suggested to OSHA that the definition of confirmed positive could be interpreted as meaning that findings of two abnormal, one abnormal and one borderline, or three borderline results over any time period, even as long as 10 years, would result in the employee being confirmed positive. This was not the agency's intent. Such a timeframe may lead to false positives and thereby not enhance employee protections. Therefore, OSHA is proposing a clarification that any combination of test results specified in the definition must result from the tests conducted in one 30-day cycle of testing, including the initial test and the retesting offered when an initial result is a single abnormal result or borderline, in order to be considered confirmed positive. As outlined in paragraph (k)(3)(ii)(E), an employee must be offered a follow-up BeLPT within 30 days if the initial test result is anything other than normal, unless the employee has been confirmed positive ( e.g., if the initial BeLPT was performed on a split sample and showed two abnormal results). Thus, for example, if an employee's initial test result is abnormal, and the result of the follow-up testing offered to confirm the initial test result is abnormal or borderline, the employee would be confirmed positive. But if the result of the follow-up testing offered to confirm the initial abnormal test result is normal, the employee would not be confirmed positive. The initial abnormal result and a single abnormal or borderline result obtained from the next required BeLPT for that employee (typically, two years later) would not identify that employee as confirmed positive under the proposed definition of that term. OSHA requests comments on the appropriateness of this proposed time period for obtaining BeLPT test samples that could be used to determine whether an employee is confirmed positive. Some commenters on the December 2018 general industry NPRM agreed with OSHA's proposed definition of confirmed positive (OSHA-2018-0003-0033, p. 5; 0038, p. 17-19), while other commenters expressed concerns over several aspects of the definition. OSHA received comments on the removal of the term “beryllium sensitized” from the definition (Document ID OSHA-2018-000-0022; p. 4; 0021, p. 3; 0028, p. 2; 0027, p. 3). OSHA also received several comments regarding OSHA's proposal to require that the test results specified in the agency's definition of confirmed positive must occur within a single testing cycle. These comments focused on several aspects of the proposed timing. First, many of the comments focused on the logistics of OSHA's proposed change (Document ID 0038, p. 17; 0022, p. 4; 0021, p. 4; 0024, p.1; 0033, p. 5; 0027, p. 3). Secondly, stakeholders commented on the appropriateness of limiting the use of the BeLPT from one test cycle in determining if a worker is confirmed positive (Document ID OSHA 2018-0003-0022, p. 4; 0021, p. 4; 0023, p. 2; 0027, pp 2-3; and 0024, p. 1). OSHA will consider these comments, along with any comments submitted during this rulemaking, in developing the final beryllium standards for construction and shipyards. Finally, OSHA is proposing to remove the term emergency from paragraph (b) of the standards for construction and shipyards. As discussed later in this section, unlike general industry, OSHA has preliminarily determined that the construction and shipyards industries—where beryllium occurs primarily in trace quantities and exposure occurs during abrasive blasting and welding operations—do not have emergencies in which exposures to beryllium will differ from the normal conditions of work. Therefore, OSHA has preliminarily determined that no requirements should be triggered for emergencies in construction and shipyards. Accordingly, OSHA is proposing to remove references to emergencies in provisions such as medical surveillance and hazard communication (see the summary and explanation of paragraphs (k) and (m)). Because OSHA is proposing to remove the term emergency from the standard, the definition is no longer needed. OSHA welcomes comment on the proposed removal of the definition of emergency from the beryllium standards for construction and shipyards. Paragraph (f) Methods of compliance Paragraph (f) of the beryllium standards for construction and shipyards, like the corresponding general industry provision (29 CFR 1910.1024(f)), requires that employers implement methods for reducing employee exposure to beryllium through a detailed written exposure control plan, engineering and work practice controls, and a prohibition on rotating employees to achieve compliance with the PEL. In the 2017 final rule, OSHA determined that written plans would “be instrumental in ensuring that employers comprehensively and consistently protect their employees” (82 FR at 2668). OSHA also concluded that requiring reliance on engineering and work practice controls is consistent with good industrial hygiene practice and with OSHA's traditional approach for health standards (82 FR at 2672). While extending these provisions to the construction and shipyards industry in the 2017 final rule, OSHA acknowledged that exposures to beryllium in these industries are limited to only a few operations; abrasive blasting in construction and shipyards and some welding operations in shipyards. With respect to abrasive blasting, while the extremely high airborne exposures during the blasting operation can expose workers to beryllium in excess of the PEL, the blasting materials contain only trace amounts of beryllium (materials such as coal slag normally contain approximately 11µg/g or 0.0001%) (Document ID 2042, Chapter IV, Technological Feasibility, Table IV.69). Moreover, OSHA had evidence of beryllium exposure during only limited welding operations in shipyards (only 4 of 127 sample results showed detectable levels of airborne beryllium) (Document ID 2042, Chapter IV, Technological Feasibility, p. IV-580). Nonetheless, OSHA applied the same requirements to these industries as to general industry, where the operations with beryllium exposure are significantly more varied and employees are exposed to materials with significantly higher beryllium content. OSHA is proposing to revise the requirements in paragraph (f) in light of the very narrow set of affected operations and the limited extent of beryllium exposure in the construction and shipyards industries. OSHA believes that some provisions in paragraph (f)—although appropriate in the general industry context—may be unnecessary to protect employees in the construction and shipyards industries. Likewise, as discussed in the introduction of the summary and explanation section, OSHA has preliminarily determined that provisions relating solely to dermal contact with beryllium should not apply in the construction and shipyards industries, where exposures involve materials containing or producing only trace amounts of beryllium (see the summary and explanation for paragraph (h), Personal Protective Clothing and Equipment). Accordingly, OSHA is proposing several revisions to both paragraph (f)(1) (Written exposure control plan) and (f)(2) (Engineering and work practice controls) in the construction and shipyards standards. Paragraph (f)(1) Written Exposure Control Plan Paragraph (f)(1) in both the construction and shipyards standards requires employers to establish, implement, and maintain a written exposure control plan containing the following: (1) A list of operations and job titles reasonably expected to involve airborne exposure to or dermal contact with beryllium (paragraph (f)(1)(i)(A)); (2) A list of operations and job titles reasonably expected to involve airborne exposure at or above the action level (paragraph (f)(1)(i)(B)); (3) A list of operations and job titles reasonably expected to involve airborne exposure above the TWA PEL or STEL (paragraph (f)(1)(i)(C)); (4) Procedures for minimizing cross-contamination (paragraph (f)(1)(i)(D)); (5) Procedures for minimizing the migration of beryllium within or to locations outside the workplace (paragraph (f)(1)(i)(E)); (6) A list of engineering controls, work practices, and respiratory protection required by paragraph (f)(2) of the standard (paragraph (f)(1)(i)(F)); (7) A list of personal protective clothing and equipment required by paragraph (h) of the standard (paragraph (f)(1)(i)(G)); and (8) Procedures for removing, laundering, storing, cleaning, repairing, and disposing of beryllium-contaminated personal protective clothing and equipment, including respirators (paragraph (f)(1)(i)(H)). Written exposure control plans in construction additionally must contain procedures used to restrict access to work areas when airborne exposures are, or can reasonably be expected to be, above the TWA PEL or STEL, to minimize the number of employees exposed to airborne beryllium and their level of exposure, including exposures generated by other employers or sole proprietors (paragraph (f)(1)(i)(I)). OSHA is proposing several revisions to paragraph (f)(1). First, OSHA proposes to revise paragraph (f)(1)(i)(A) by removing the words “airborne” and “or dermal contact with” as qualifiers for exposure to beryllium. As revised, the provision would require simply a list of operations and job titles reasonably expected to involve exposure to beryllium, which would include abrasive blasting and welding operations where exposures at or above the action level are reasonably foreseeable based on objective data, in accordance with paragraph (a)(3), Scope. At the same time, OSHA is proposing to revoke paragraphs (f)(1)(i)(B) and (C), which require additional lists of operations and job titles involving exposure above the action level and above the TWA PEL or STEL, respectively. Given the small number of operations with beryllium exposure in these industries, the operations and job titles in these categories would be largely the same as those for which exposure to beryllium is reasonably expected. OSHA therefore believes that it is sufficient that an employer identify those operations and job titles that result in exposure to beryllium in any form and that fall within the scope of the standards, and that any additional lists would be unnecessary and redundant. OSHA is also proposing to revoke the requirements that the written exposure control plan must include procedures for minimizing cross-contamination (paragraph (f)(1)(i)(D)) and procedures for minimizing the migration of beryllium within or to locations outside the workplace (paragraph (f)(1)(i)(E)). The purpose of these requirements was to ensure that workers not involved in beryllium-related operations would not be unintentionally exposed to beryllium in excess of the PELs. Instead, for the construction standard, OSHA is retaining the requirement for the written plan to include procedures to restrict access to work areas where exposures to beryllium could reasonably be expected to exceed the TWA PEL or STEL (renumbered as paragraph (f)(1)(i)(D)), and the requirement that these procedures are to be implemented by a competent person (paragraph (e)(2)). For the shipyard standard, OSHA is retaining requirements for regulated areas (paragraph (e)), which require that employers designate areas where exposures to beryllium could exceed the PELs and limit access to authorized employees. In addition, OSHA is also proposing to add a new paragraph in both the construction ((f)(1)(i)(E)) and shipyards ((f)(1)(i)(D)) standards to require that the written exposure control plan include procedures used to ensure the integrity of each containment (such as tarps or structures used to keep sandblasting debris within an enclosed area) used to minimize exposures to employees outside the containment. The purpose of this proposed revision is to ensure that any containment used is not compromised such that employees outside of the containment are potentially exposed to beryllium at levels above the TWA PEL or STEL. OSHA believes that these requirements will adequately ensure that workers not directly involved in beryllium-related work are not exposed to beryllium in excess of the TWA PEL or STEL. OSHA is further proposing to remove the requirement for written plans to contain procedures for removing, laundering, storing, cleaning, repairing, and disposing of beryllium-contaminated personal protective clothing and equipment, including respirators (paragraph (f)(1)(i)(H)). As discussed below, OSHA is proposing to remove requirements in paragraph (h)(2) of the construction and shipyard standards that relate to removing, storing, maintaining, cleaning, and disposing of PPE (see the summary and explanation for paragraph (h), Personal Protective Clothing and Equipment); therefore, OSHA believes that it is not necessary to include such procedures in the written plan. Paragraph (f) retains the requirements that the written exposure control plan include a list of engineering controls, work practices, and respiratory protection required by paragraph (f)(2) and a list of personal protective clothing and equipment required by paragraph (h), renumbered as paragraphs (f)(1)(i)(B) and (C), respectively. Likewise, the standards retain paragraphs (f)(1)(ii) and (iii), which provide the requirements for maintaining, reviewing, and evaluating the written exposure control plan and providing access to the plan to each employee who can reasonably be exposed to airborne beryllium. OSHA is proposing only one change in these requirements, to revise paragraph (f)(1)(ii)(B) to refer simply to “exposure” rather than “airborne exposure to or dermal contact with.” This change is consistent with other paragraphs where OSHA is proposing to simplify the language in a similar manner ( e.g., paragraph (f)(1)(i)(A), Written exposure control plan; paragraphs (k)(3)(ii)(A) and (k)(4)(i), Medical surveillance). Paragraph (f)(2) Engineering and Work Practice Controls Paragraph (f)(2) of the construction and shipyards standards lists the requirements for the use of engineering and work practice controls to reduce and maintain employee airborne exposure below the TWA PEL and STEL. Paragraph (f)(2)(i) requires that, where exposures are, or can reasonably be expected to be, at or above the action level, the employer must ensure that at least one of the following is in place to reduce airborne exposure: (1) Material and/or process substitution (paragraph (f)(2)(i)(A)); (2) isolation, such as ventilated partial or full enclosures (paragraph (f)(2)(i)(B)); (3) local exhaust ventilation, such as at the points of operation, material handling, and transfer (paragraph (f)(2)(i)(C)); or (4) process control, such as wet methods and automation (paragraph (f)(2)(i)(D)). Paragraph (f)(2)(ii) exempts an employer from this requirement to the extent that the employer can establish that the controls are infeasible or that airborne exposure is below the action level, using no fewer than two representative personal breathing zone samples taken at least 7 days apart, for each affected operation. If, after implementing the controls required by paragraph (f)(2)(i), airborne exposures still exceed the TWA PEL or STEL, paragraph (f)(2)(iii) requires the employer to implement additional or enhanced engineering and work practice controls to reduce exposure below these limits. Finally, if the employer demonstrates that it is not feasible to reduce exposures below the TWA PEL and STEL through engineering and work practice controls, paragraph (f)(2)(iv) requires the employer to implement controls to reduce exposure to the extent feasible and supplement the controls through the use of respirators in accordance with paragraph (g) of the standard. In this rulemaking, OSHA is proposing to remove the requirement to implement the controls currently listed in paragraph (f)(2)(i) where exposures are or can reasonably be expected to meet or exceed the action level. This requirement in the construction and shipyard standards was derived from the general industry standard, which requires that employers establish beryllium work areas where operations could release airborne beryllium and that employers implement at least one type of engineering control where exposures could reasonably be expected to exceed the action level within the work area. In reconsidering this requirement, OSHA believes that requiring implementation of engineering controls where exposures exceed the action level may not be reasonably appropriate for construction and shipyard operations. In the 2017 final rule, OSHA acknowledged that this approach to engineering and work practice controls was “not typical for OSHA standards” in that OSHA health standards usually require such controls to be implemented where exposures exceed the PEL (82 FR at 2673). Furthermore, OSHA's analysis of the technological feasibility of the PELs concluded that workers performing open-air blasting with mineral grit would “routinely” experience exposures in excess of the PEL even after implementing engineering controls, thus triggering requirements for respirator use (82 FR at 2584). Therefore, OSHA is proposing to rescind the requirement to trigger use of engineering and work practice controls by the action level. Paragraph (f)(2) continues to require employers to implement engineering or work practice controls if needed to reduce airborne exposures to or below the TWA PEL of 0.2 μg/m 3 and STEL of 2.0 μg/m 3 unless the employer can demonstrate that such controls are not feasible. Where it is not feasible to implement engineering and work practice controls to comply with the exposure limits, paragraph (f)(2) requires the employer to implement and maintain engineering and work practice controls to reduce airborne exposure to the lowest levels feasible and supplement these controls by using respiratory protection in accordance with paragraph (g) of the proposed standard. These are the same requirements currently found in paragraphs (f)(2)(iii) and (iv) of the standards. Accordingly, OSHA is proposing to condense the portions of paragraphs (f)(2)(i)-(iv) that it proposes to retain into a single paragraph (f)(2), which would not have any subparagraphs or items. The requirement to implement engineering and work practice controls is consistent with several other standards in both construction and shipyards that require the use of engineering controls to minimize toxic dust. For example, the ventilation standard in construction (29 CFR 1926.57(f)(2)(ii)) requires “[t]he concentration of respirable dust or fume in the breathing zone of the abrasive-blasting operator or any other worker” to remain “below the levels specified in § 1926.55.” Similarly, the use of ventilation in shipyards is required under other OSHA standards such as the Ventilation standard for abrasive blasting (29 CFR 1910.94(a)), which also applies to abrasive blasting in shipyards. The reliance of proposed paragraph (f)(2) on the hierarchy of controls likewise reflects OSHA's approach in other standards covering welding in shipyards. For example, 29 CFR 1915.51 requires that ventilation be used to keep welding fumes and smoke within safe limits, and 29 CFR 1915.51(d)(2)(iv) specifically covers welding involving beryllium, and states that “[b]ecause of its high toxicity, work involving beryllium shall be done with both local exhaust ventilation and air line respirators.” In response to the 2017 proposal to rescind the ancillary provisions of the construction and shipyard standards, OSHA received comments from AFL-CIO on the importance of maintaining the hierarchy of controls and that primary reliance on PPE absent a specific requirement would not address bystander exposure to beryllium (Document ID 2140, p. 8). AFL-CIO also pointed out that the National Institute for Occupational Safety and Health (NIOSH) stresses the importance of reducing exposures to carcinogens first through engineering controls (including elimination and substitution) and work practices prior to the use of respirators in a recently updated chemical carcinogen policy (Document ID 2140, p. 8). OSHA agrees with AFL-CIO that it is important that the hierarchy of controls be followed to ensure that exposures are minimized, not only to abrasive blasting operators and welders, but also to bystanders or other workers nearby. Therefore, to ensure that employers apply the hierarchy principle to reduce exposures to or below the PELs for beryllium, and to ensure that all potentially affected workers are appropriately so protected, OSHA is proposing to retain a specific requirement for construction and shipyard employers to implement engineering and work practice controls to achieve compliance with the PEL and STEL, as OSHA has required in all of its other health standards. OSHA notes this proposal retains, without revision, paragraph (f)(3) of both the construction and shipyards standards, which prohibits employers from rotating employees to different jobs in order to achieve compliance with the PELs. OSHA continues to believe, as it found in the 2017 final rule, that it is important to prohibit this practice to ensure that employers do not expose more people than necessary to the hazards of beryllium solely to achieve the PEL instead of using engineering controls or work practices to reduce exposures (82 FR at 2675). Paragraph (g) Respiratory Protection Paragraph (g) in the beryllium standards for both construction and shipyards, like the corresponding general industry standard, requires the provision and use of respiratory protection from exposures to beryllium under specific conditions. Paragraph (g) also provides that required respiratory protection must be selected and used in accordance with OSHA's general Respiratory Protection standard at 29 CFR 1910.134. Finally, paragraph (g) requires employers to provide a powered air-purifying respirator (PAPR) when an employee entitled to a respirator under the beryllium standard requests one, as long as the PAPR provides adequate protection. Paragraph (g)(1) requires employers to provide respiratory protection at no cost to employees and ensure that employees utilize such protection in five circumstances: (i) During periods necessary to install or implement feasible engineering and work practice controls where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL (paragraph (g)(1)(i)); (ii) during operations, including maintenance and repair activities and non-routine tasks, when engineering and work practice controls are not feasible and airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL (paragraph (g)(1)(ii)); (iii) during operations for which an employer has implemented all feasible engineering and work practice controls when such controls are not sufficient to reduce airborne exposure to or below the TWA PEL or STEL (paragraph (g)(1)(iii)); (iv) during emergencies (paragraph (g)(1)(iv)); and (v) when an employee who is eligible for medical removal under the standard chooses to remain in a job with airborne exposure at or above the action level (paragraph (g)(1)(v)). In this rulemaking, OSHA is proposing to remove paragraph (g)(1)(iv), which requires the use of respiratory protection during emergencies. 4 OSHA has preliminarily determined that this amendment is justified because other respiratory protection requirements make it likely that construction and shipyard workers will be using respiratory protection during normal tasks or activities ( i.e., prior to any emergency), and thus provide adequate protections in the absence of the paragraph addressing respiratory protection in emergency situations. 4 As a result, OSHA is also proposing to renumber paragraph (g)(1)(v) as (g)(1)(iv) in both standards. An emergency is currently defined in paragraph (b) of both the construction and shipyards standards as “any uncontrolled release of airborne beryllium.” As explained above in the summary and explanation of paragraph (b), OSHA is proposing to remove this definition entirely from the construction and shipyards standards because the agency expects that, in these industries, an uncontrolled release of airborne beryllium (such as a release resulting from a failure of the blasting control equipment or a spill of the abrasive blasting media) would occur only during the performance of routine tasks already associated with the airborne release of beryllium— i.e., during abrasive blasting or welding processes. During these processes, OSHA anticipates that employees working in the immediate vicinity of an uncontrolled release of airborne beryllium would already be using respiratory protection required by paragraph (g) of the standards (because, for example, controls are not sufficient to reduce airborne exposure to or below the TWA PEL or STEL (paragraph (g)(1)(iii))). Although OSHA is not proposing to remove any of the other respiratory protection requirements in paragraph (g), the agency recognizes that other provisions in the beryllium standards and in other OSHA standards may address respiratory protection in the construction and shipyards sectors. For example, current paragraph (j)(2)(iv) in the beryllium standards for construction and shipyards, renumbered as paragraph (j)(1)(iii) in this proposal, requires respirators where employees use dry sweeping, brushing, or compressed air to clean. Other potentially applicable standards in construction include the Ventilation standard (29 CFR 1926.57(f)(5)), the Personal Protective and Life Saving Equipment standard (29 CFR 1926.95), and the general Respiratory Protection standards (29 CFR 1910.134, 1926.103). In shipyards, other standards addressing respiratory protection include the Mechanical Paint Removers standard (29 CFR 1915.34(c)(3)), the Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment standards (29 CFR 1915.12(c)(4)(ii)), the Welding, Cutting, and Heating standards for shipyards (29 CFR 1915.51(d)(2)(iv)), as well as the general Respiratory Protection standards (29 CFR 1910.134, 1915.154). In response to the 2017 NPRM, some commenters expressed concern about the degree of protection afforded by other OSHA standards (Document ID 2135, p. 7; 2118, p. 5). For example, NABTU “strongly disagree[d]” with the notion that baseline usage of respirators and PPE “is far higher in construction and shipyards” than it is in other sectors (Document ID 2135, p. 7). Likewise, BHSC questioned the degree of protection afforded by the other OSHA standards to workers near abrasive blasting operations, stating that the estimated 100 percent PPE use for those workers “does not have supporting evidence of consistent and standard use across pot tenders and cleanup activities supporting abrasive blasting” (Document ID 2118, p. 5). OSHA requests comments both on its proposal to delete paragraph (g)(1)(iv) and on whether it is necessary to maintain the other general provisions for respiratory protections in the beryllium standards in light of protections afforded by other OSHA standards. Paragraph (h) Personal Protective Equipment Paragraph (h) of the beryllium standards for the construction and shipyards industries (29 CFR 1926.1124(h) and 1915.1024(h), respectively) requires employers to provide and ensure the use of personal protective clothing and equipment (PPE) where employees have actual or reasonably expected dermal exposure or high levels of airborne exposure to beryllium, and also contains provisions pertaining to the removal, storage, cleaning, and replacement of the PPE. To comply with paragraph (h), employers are expected to choose the appropriate type of PPE for their employees based on the results of the employer's hazard assessment (82 FR at 2682). Specifically, paragraph (h)(1) requires employers to provide and ensure that each employee uses appropriate PPE in accordance with the written exposure control plan and OSHA's general PPE standards for the construction and shipyards industries (29 CFR part 1926, subpart E, and part 1915, subpart I), in two situations: (1) Where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL (paragraph (h)(1)(i)), and (2) where there is a reasonable expectation of dermal contact with beryllium (paragraph (h)(1)(ii)). Paragraphs (h)(2) and (3) of the construction and shipyards beryllium standards provide requirements for removal, storage, cleaning, and replacement of the PPE required by paragraph (h)(1). Paragraph (h)(2)(i) requires employers to ensure that each employee removes all beryllium-contaminated PPE at the end of the work shift, at the completion of tasks involving beryllium, or when PPE becomes visibly contaminated with beryllium, whichever comes first. Paragraph (h)(2)(ii) requires employees to remove PPE consistent with the written exposure control plan required by paragraph (f)(1), and paragraph (h)(2)(iii) requires employers to ensure both that protective clothing is kept separate from employees' street clothing, and that storage facilities prevent cross-contamination as specified in the written exposure control plan. Paragraph (h)(2)(iv) requires employers to ensure that beryllium-contaminated PPE is only removed from the workplace by employees who are authorized to do so for the purpose of laundering, cleaning, maintaining, or disposing of such PPE, and paragraph (h)(2)(v) requires that PPE removed from the workplace for laundering, cleaning, maintenance, or disposal be placed in closed, impermeable, and appropriately labeled bags or containers. Paragraph (h)(3) of the standards establishes several requirements with respect to cleaning and replacement of PPE. Paragraph (h)(3)(i) requires employers to ensure that all reusable PPE is appropriately cleaned, laundered, repaired, and replaced as needed to maintain its effectiveness, while paragraph (h)(3)(ii) mandates that employers ensure that beryllium is not removed from PPE by blowing, shaking or any other means that disperses beryllium into the air. Paragraph (h)(3)(iii) requires employers to inform in writing the persons or the business entities who launder, clean, or repair the PPE used to comply with paragraph (h) of the potentially harmful effects of airborne exposure to and dermal contact with beryllium, and that the PPE must be must be handled in accordance with the beryllium standard. In the 2017 NPRM, OSHA identified several other OSHA standards that require employees engaged in abrasive blasting operations (in construction and shipyards) and welding operations (in shipyards) to use PPE during their work. Additionally, subsequent to the 2017 final rule, OSHA clarified in the general industry DFR that the agency only intended to regulate contact with trace beryllium to the extent that it caused airborne exposures of concern. OSHA never intended for provisions aimed at protecting workers from the effects of dermal contact to apply in the case of materials containing only trace amounts of beryllium absent significant airborne exposures (83 FR at 19938). In response to the 2017 proposal, commenters criticized OSHA's estimates regarding the existing use of PPE in the affected construction and shipyard operations. NABTU “strongly disagree[d]” with OSHA's statement in the 2017 NPRM (82 FR at 29216) that “[b]aseline usage of respirator and PPE is far higher in construction and shipyards” than in general industry (Document ID 2135, p. 7). Members of Congress commented that OSHA's preliminary estimate that all affected employees already use full PPE 100 percent of the time (see 82 FR at 29197) did “not appear to be supported by testimony from the hearing, which suggests that while the abrasive blasters may have protections, there is limited or no protection for many other workers, including bystanders, who are exposed to beryllium-containing dust under the pre-existing standards” (Document ID 2135, p. 7). BHSC also expressed concern about the degree of protection afforded by the other OSHA standards to workers near abrasive blasting operations, stating that the estimated 100 percent PPE use for those workers “does not have supporting evidence of consistent and standard use across pot tenders and cleanup activities supporting abrasive blasting” (Document ID 2118, p. 5). Commenters also noted that generalized PPE requirements do not always signal to employers and employees that PPE is needed to protect against beryllium (see, e.g., Document ID 2124, pp. 10-11; 2129, p. 7; 2129, pp. 9-10; 2135, pp. 5-6). In light of these comments and its review of existing standards, OSHA determined in the rule finalizing the 2017 proposal (the final rule published September 30, 2019) that existing OSHA standards applicable to construction and shipyards do not provide complete overlap with the PPE provisions of the beryllium standards for construction and shipyards. Consistent with OSHA's usual approach to regulating employee exposure to other harmful substances (see, e.g., 52 FR 46168, 46271-72 (Dec. 4, 1987) (discussing the PPE provisions in the formaldehyde standard)), OSHA expects a specific PPE requirement in the beryllium standards will provide a valuable supplement to the generally-applicable PPE standards by clearly explaining when PPE is necessary to protect employees from beryllium exposure. OSHA believes it is necessary to retain the provisions that are aimed at protecting employees who are exposed at airborne levels of concern from inhalation of re-entrained beryllium-containing dust, including the requirement to provide and use appropriate PPE when airborne exposure exceeds, or can be reasonably expected to exceed, the TWA PEL or STEL, as well as some requirements pertaining to removal, storage, cleaning, and replacement of PPE. As NABTU commented in response to the 2017 proposal, PPE requirements are necessary because they address the risk of exposure during the PPE removal process and the risk of additional inhalation exposure from accumulation on clothing, shoes, and equipment (Document ID 2129, p. 7 (citing 82 FR at 2678)). At the same time, in light of the clarifications in the DFR and other comments on the 2017 proposal, OSHA has preliminarily determined that some revisions to paragraph (h) in the beryllium standards for the construction and shipyards industries are warranted. Accordingly, OSHA is proposing a number of changes to paragraph (h) of the construction and shipyards standards. First, OSHA is proposing to remove the requirement to provide and ensure the use of PPE when there is reasonably expected dermal contact with beryllium (paragraph (h)(1)(ii)). OSHA clarified in the 2018 DFR for general industry that it did not intend to require employers who only work with materials containing trace amounts of beryllium to protect employees or other individuals against dermal contact with beryllium absent significant airborne exposures. As discussed above, in the construction and shipyards sectors, the operations that cause airborne exposure to beryllium that can exceed the TWA PEL or STEL are either blasting operations that involve materials or generate particulate matter containing less than 0.1 percent beryllium by weight or are welding operations in shipyards where there is minimal or no skin contamination. Accordingly, OSHA is proposing to remove the requirement to provide and ensure the use of PPE when there is reasonably expected dermal contact with beryllium because it is not aware of any operations in the construction or shipyard sectors in which dermal contact with beryllium would occur at levels above trace amounts, making such a provision unnecessary. 5 5 As a result of the proposed elimination of paragraph (h)(1)(ii), OSHA is also proposing to collapse paragraph (h)(1)(i) into paragraph (h)(1), which would have no subparagraphs or items. Where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL, proposed paragraph (h)(1) would require employers to provide at no cost, and ensure that each employee uses, appropriate personal protective clothing and equipment in accordance with the written exposure control plan required under paragraph (f)(1) of this standard and OSHA's Personal Protective and Life Saving Equipment standards for construction (29 CFR part 1926, subpart E). OSHA proposes to modify the PPE removal and storage provisions of paragraph (h)(2). OSHA is proposing to modify paragraph (h)(2)(i) by removing the requirement that PPE be removed when it becomes visibly contaminated with beryllium. OSHA is also proposing to revise (h)(2)(i) to remove the qualifier of “beryllium-contaminated” and add “required by this standard” so that the provision would apply to all PPE required by the beryllium construction and shipyard standards. The 2018 DFR modified the general industry beryllium standard to define contaminated with beryllium and beryllium-contaminated as “contaminated with dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight” (83 FR at 19939). As explained above, OSHA believes there are no operations covered by the construction or shipyard beryllium standards that would create such a beryllium-contaminated surface. In fact, the vast majority of the operations (abrasive blasting) involve beryllium in concentrations of less than 0.1 percent by weight. In blasting operations, the requirement to remove PPE visibly contaminated with beryllium would thus rarely, if ever, be triggered. Likewise, there would be no beryllium-contaminated PPE at any of these covered worksites. OSHA has preliminarily determined, however, that if workers are using PPE because they are working with trace amounts of beryllium but nevertheless have the potential for airborne exposure above the TWA PEL or STEL, they are likely in highly dusty environments and accumulating large amounts of dust on their PPE. OSHA therefore believes it is necessary to continue to require employees to remove their PPE at the end of the work shift or all tasks involving beryllium because otherwise, this highly dusty PPE could be re-entrained into the air and contribute to the airborne exposure of workers who already are, or can reasonably be expected to be, exposed above the TWA PEL or STEL. OSHA is proposing to modify paragraph (h)(2)(ii) to ensure that PPE is not removed in a manner that disperses beryllium into the air. This can be accomplished by cleaning the PPE prior to removal or carefully removing the PPE so as not to disturb the dust. OSHA is proposing to remove the requirement for employers to ensure that employees remove PPE in accordance with the written exposure control plan because, as explained above in the summary and explanation of paragraph (f)(1), OSHA is proposing to remove the requirement in the written exposure control plan (paragraph (f)(1)(i)(H)) to include procedures for doffing, laundering, storing, cleaning, repairing, and disposing of beryllium-contaminated PPE, including respirators. This proposed language is similar to that in paragraph (h)(3)(ii), which addresses the cleaning of PPE rather than the removal of PPE. OSHA is proposing to remove paragraphs (h)(2)(iii) and (iv) from the construction and shipyard standards. Paragraph (h)(2)(iii) requires the employer to ensure that each employee stores and keeps beryllium-contaminated personal protective clothing and equipment separate from street clothing and that storage facilities prevent cross-contamination as specified in the written exposure control plan required by paragraph (f)(1) of this standard. Paragraph (h)(2)(iv) requires employers to ensure that beryllium-contaminated PPE is only removed from the workplace by employees who are authorized to do so for the purpose of laundering, cleaning, maintaining, or disposing of such PPE. As explained in the 2018 general industry DFR, OSHA defined “beryllium-contaminated” as contaminated with dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight because the agency never intended for provisions aimed at protecting workers from the effects of dermal contact with beryllium to apply in the case of materials containing only trace amounts of beryllium. Because OSHA believes there are no operations covered by the construction or shipyard beryllium standards involving beryllium dust, fumes, mists, or solutions in more than trace amounts, the requirements pertaining to beryllium-contaminated PPE in the construction and shipyard standards would never be triggered and are unnecessary. With regard to the cleaning and replacement procedures in paragraph (h)(3) of the standards, OSHA is proposing to clarify that paragraph (h)(3)(ii) applies to PPE required by the beryllium standard. This proposed change would assure employers that if dust containing trace amounts of beryllium migrates to the PPE of employees who are not reasonably expected to have airborne exposure to beryllium above the TWA PEL or STEL, the beryllium standard allows the employer to provide employees the opportunity to clean their PPE in a manner that disperses that dust into the air. This proposed change is consistent with OSHA's goal of protecting employees who are already exposed at airborne levels of concern from inhalation of re-entrained beryllium-containing dust. OSHA is proposing to remove paragraphs (h)(2)(v) and (h)(3)(iii) from the standards. Paragraph (h)(2)(v) requires that PPE removed from the workplace for laundering, cleaning, maintenance, or disposal be placed in closed, impermeable bags or containers labeled in accordance with paragraph (m)(2) of the construction standard and paragraph (m)(3) of the shipyards standard, as well as the Hazard Communication standard. Paragraph (h)(3)(iii) requires employers to inform, in writing, any person or business entity who launders, cleans, or repairs PPE required by the standards of the potentially harmful effects of exposure to airborne beryllium and dermal contact with beryllium, and of the need to handle the PPE in accordance with the standards. These provisions are in place to protect individuals who later handle beryllium-contaminated items (82 FR at 2683). Because, as explained in the 2018 general industry DFR, OSHA never intended for provisions aimed at protecting workers from the effects of dermal contact with beryllium to apply in the case of materials containing only trace amounts of beryllium, OSHA has preliminarily determined that it is not necessary to protect downstream handlers of PPE that have only come in contact with dust containing beryllium in trace amounts. OSHA has no reason to expect these downstream handlers are engaging in tasks that generate airborne exposures of concern such that re-entrainment of the dust would exacerbate an already-significant lung burden. OSHA therefore proposes to remove these two paragraphs from the construction and shipyard beryllium standards. The agency welcomes comment on these proposed revisions to paragraph (h). Paragraph (i) Hygiene Areas and Practices Paragraph (i) of the 2017 final rule established requirements for hygiene areas and practices in general industry (29 CFR 1910.1024), construction (29 CFR 1926.1024), and shipyards (29 CFR 1915.1024). As promulgated, paragraph (i) requires employers in all three industries to: (1) Provide readily accessible washing facilities to remove beryllium from the hands, face, and neck (paragraph (i)(1)(i)); (2) ensure that employees who have dermal contact with beryllium wash any exposed skin (paragraph (i)(1)(ii)); (3) provide change rooms if employees are required to use personal protective clothing and are required to remove their personal clothing (paragraph (i)(2)); (4) ensure that employees take certain steps to minimize exposure in eating and drinking areas (paragraph (i)(3)); and (5) ensure that employees do not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in areas where there is a reasonable expectation of exposure above the TWA PEL or STEL (paragraph (i)(4)). While emphasizing the importance of hygiene areas and practices in the final rule, OSHA also acknowledged that the sanitation standards in general industry (29 CFR 1910.41), construction (29 CFR 1926.51), and shipyards (29 CFR 1915.88) include provisions similar to some of those in the beryllium standards. For example, the sanitation standards include hygiene provisions requiring the employer to provide change rooms with separate storage facilities for protective clothing whenever employees are required by an OSHA standard to wear protective clothing. The sanitation standards also require employers to provide wash facilities and prohibits storage or consumption of food or beverages in any area where employees are exposed to a toxic material (82 FR at 2684). While extending these provisions to the construction and shipyards industry in the 2017 final rule, OSHA acknowledged that exposures to beryllium in these industries are limited to only a few operations. OSHA further acknowledged this overlap in the FEA for the 2017 final rule, stating that employers of abrasive blasters exposed to beryllium in construction and shipyards are typically already required to provide readily accessible washing facilities to comply with other OSHA standards (see 82 FR at 2609). Nonetheless, OSHA applied similar requirements to these industries as to general industry, where the operations with beryllium exposure are significantly more varied and employees are often exposed to materials with significantly higher beryllium content and where dermal contact can be of particular concern. After publishing the 2017 final rule, OSHA clarified in the general industry DFR that the agency only intended to regulate contact with trace beryllium to the extent that it causes airborne exposures of concern. OSHA did not intend for provisions aimed at protecting workers from the effects of dermal contact to apply in the case of materials containing only trace amounts of beryllium (83 FR at 19938). Unlike in general industry, where processes involving exposure to beryllium are varied and employees are exposed to a large variety of materials that can contain high concentrations of beryllium, exposures in the construction and shipyards industries are limited to abrasive blasting operations in construction and shipyards and a small number of welding operations in shipyards (Document ID 2042, FEA Chapter III, pp. 103-11 and Table III-8e). While the extremely high airborne exposures during abrasive blasting operations can expose workers to beryllium in excess of the PEL, the blasting materials contain only trace amounts of beryllium (Document ID 2042, FEA Chapter IV, p. 612). Moreover, the record before the agency contains evidence of beryllium exposure during only limited welding operations in shipyards (Document ID 2042, FEA Chapter III, Table III-8e) and as discussed above, OSHA has preliminarily determined that for these limited welding operations the exposure of concern is exposure to airborne beryllium and not dermal contact. Unlike the general industry standard, which triggers PPE as well as other provisions on both the PELs and the potential for dermal contact or beryllium-contaminated surfaces, construction and shipyards activities under this standard do not have operations where skin contact is the exposure of concern. In light of the existing OSHA standards providing many of the same protections as the beryllium standards, the limited operations where beryllium exposure may occur in construction and shipyards, and the trace quantities of beryllium present in these operations, OSHA now believes that the requirements for hygiene areas and practices in the 2017 beryllium standards for construction and shipyards may be unnecessary to protect employees in these industries. Accordingly, the agency is proposing to remove paragraph (i) from the construction and shipyard standards. In response to the 2017 NPRM proposing to revoke the ancillary provisions from the shipyards and construction standards, OSHA received only two comments that specifically addressed paragraph (i). One comment, from NABTU, expressed the need for hygiene requirements such as washing facilities, change rooms, and eating and drinking areas to prevent the spread of beryllium, noting that “[w]hen beryllium-exposed workers are afforded washing and clean-up areas, all construction workers on the site are protected from exposure” (Document ID 2129, p. 7). On the other hand, the Abrasive Blasting Manufacturers Alliance (ABMA) identified a number of existing standards, including the sanitation standards, applicable to employees in construction and shipyards, and argued that these provisions provide adequate protection from exposure to beryllium. ABMA also indicated that hygiene practices are utilized during abrasive blasting regardless of the beryllium standard due to other substance-specific standards, such as lead, hexavalent chromium, cadmium, and arsenic, which require employees who are exposed to these materials through abrasive blasting to wash their hands and face. Though not a requirement, they also cite OSHA's 2006 guidance on abrasive blasting for shipyards, which recommends good hygiene practices (Document ID 2142, pp. 9-10; 2124 attachment 1, p. 6). OSHA agrees with both commenters: beryllium-exposed workers should have access to washing facilities, and existing standards require the use of washing facilities for those workers in construction and shipyards. In addition, the sanitation standard for construction (29 CFR 1926.51(f)) requires employers to provide adequate washing facilities maintained in a sanitary condition for employees engaged in operations where contaminants may be harmful to the employees. It also requires that these washing facilities must be in proximity to the worksite and must be so equipped as to enable employees to remove such substances. Lavatories are also required at all places of employment and must be equipped with hot and cold running water, or tepid running water. Hand soap or similar cleansing agents must be provided along with hand towels, air blowers, or clean continuous cloth toweling, convenient to the lavatories. The sanitation standard for shipyards (29 CFR 1915.88(e)) similarly requires employers to provide handwashing facilities at or adjacent to each toilet facility. The criteria for these handwashing facilities are similar to the construction industry in that they must be equipped with hot and cold running water or tepid running water, soap, or skin cleansing agents capable of disinfection or neutralizing the contaminant, and drying materials and methods. This standard further requires the employer to inform each employee engaged in operations in which hazardous or toxic substances can be ingested or absorbed about the need for removing surface contaminants from their skin's surface by thoroughly washing their hands and face at the end of the work shift and prior to eating, drinking, or smoking (see 29 CFR 1915.88(e)(3)). Even though the sanitation standards do not specifically mention beryllium, the use of the terms harmful substances in the construction sanitation standard and hazardous or toxic substance in the shipyard sanitation standard encompass beryllium exposure where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL. With respect to abrasive blasting, the sanitation standards' washing facilities requirements are triggered by the use of blasting media; either due to contaminants in the blasting media (which may include beryllium, lead, hexavalent chromium, cadmium, and arsenic) or contamination from the substrate or coatings on the substrate. Similarly, in the limited welding operations involving beryllium exposure, workers will likely be exposed to other hazardous chemicals (including hexavalent chromium, lead, and cadmium) (see https://www.osha.gov/SLTC/weldingcuttingbrazing/chemicals.html ), triggering the requirements of the sanitation standards. Accordingly, the sanitation standards provide comparable protections to the washing facilities requirements that OSHA is proposing to remove from both the construction and shipyard standards (paragraphs (i)(1)(i) and (ii)). OSHA is also proposing to remove the requirement for employers to provide change rooms where employees are required to remove their personal clothing (paragraph (i)(2)), because the sanitation standards already provide comparable protections. The sanitation standard for construction (29 CFR 1926.51(i)) requires employers to provide change rooms if a particular standard requires employees to wear protective clothing because of the possibility of contamination with toxic materials. The change rooms must be equipped with storage facilities for street clothes and separate storage facilities for the protective clothing shall be provided. Similarly, the sanitation standard for shipyards (§ 1915.88(g)) requires change rooms when the employer provides protective clothing to prevent employee exposure to hazardous or toxic substances. Furthermore, the employer must provide change rooms that provide privacy and storage facilities for street clothes, as well as separate storage facilities for protective clothing. Because these proposed beryllium standards would require PPE where exposures may exceed the TWA PEL or STEL, employers would be required to provide change rooms under the sanitation standards (if employees were required to remove their personal clothing), 6 just as they would have been required by the beryllium standards. 6 Through interpretive guidance, OSHA has explained that the sanitation standards require the provision of change rooms only where employees must change their clothes ( i.e., remove their street clothes) (see OSHA, Letter of Interpretation, Feb. 22 1996, available at https://www.osha.gov/laws-regs/standardinterpretations/1996-02-22-1 ). OSHA is further proposing to remove paragraph (i)(3), which establishes provisions for eating and drinking areas, from the construction and shipyard standards. The provisions in the sanitation standards for construction (§ 1926.51(g)) and shipyards (§ 1915.88(h)) already require employers to ensure that food, beverages, and tobacco products are not consumed or stored in any area where employees may be exposed to hazardous or toxic materials. OSHA is also proposing to remove paragraphs (i)(3)(i) and (ii) of the construction and shipyards standards, which require that surfaces in eating and drinking areas be kept as free as practicable of beryllium (paragraph (i)(3)(i)) and that employees remove or clean contaminated clothing prior to entering these areas (paragraph (i)(3)(ii)). These provisions relate to minimizing dermal contact. However, as explained above, OSHA intends that provisions meant to reduce dermal contact should typically be applied to materials containing trace amounts of beryllium only where there is also the potential for significant airborne exposure. OSHA has preliminarily determined that the processes in construction and shipyards creating exposure to beryllium are either processes that involve materials containing less than 0.1% beryllium by weight or processes that do not produce surface or skin contamination. OSHA further believes that other parts of the beryllium standard will reduce the potential for airborne beryllium in eating and drinking areas. For example, when employees are cleaning up dust resulting from operations that cause, or can reasonably be expected to cause airborne exposures over the TWA PEL or STEL, the employer must ensure the use of methods that minimize the likelihood and level of airborne exposure. And under proposed paragraph (h)(2)(ii), employers must ensure that PPE required by the standard is not removed in a manner that disperses beryllium into the air. Given that construction and shipyard operations primarily involve only trace amounts of beryllium, and other provisions of the beryllium standard such as engineering controls and housekeeping requirements serve to minimize airborne exposures, OSHA believes that existing standards adequately protect employees in eating and drinking areas. OSHA is also proposing to remove the reference in paragraph (i)(3)(iii) requiring that eating and drinking facilities provided by the employer must be in accordance with the sanitation standards. OSHA does not believe it is necessary to maintain this reference, as this would be the only requirement remaining in paragraph (i) and employers are required to comply with the sanitation standards regardless. Finally, OSHA is proposing to remove paragraph (i)(4), concerning prohibited activities, which requires the employer to ensure that no employees eat, drink, smoke, chew tobacco or gum, or apply cosmetics in work areas where there is a reasonable expectation of exposure above the TWA PEL or STEL. The sanitation standards prohibit consuming food or beverages in areas exposed to toxic material and therefore provides the appropriate protections for areas where exposures are above the PEL. The sanitation standards are substantially similar to paragraph (i)(4) and provide appropriate protections for areas where exposures are above the PEL. In summary, for the reasons discussed above, OSHA is proposing to remove paragraph (i), hygiene areas and practices, from the beryllium standards for construction and shipyards. OSHA requests comment on the proposed removal of paragraph (i). OSHA particularly welcomes comments and data on the use of wash facilities and changes rooms in construction and shipyards for operations that would be covered by the beryllium standards. Paragraph (j) Housekeeping The 2017 final beryllium rule includes provisions for housekeeping. It requires employers in both construction and shipyards to follow the cleaning procedures in their written exposure control plan, clean up spills and emergency releases promptly, use appropriate cleaning methods, and provide recipients of beryllium containing materials for disposal with a copy of the warnings described in paragraph (m) (82 FR at 2688). In the preamble to the 2017 final rule, OSHA indicated that these provisions are important because they minimize sources of exposure to beryllium that engineering controls do not completely eliminate. Good housekeeping measures are a cost-effective way to control worker exposures by removing settled beryllium that could otherwise become re-entrained into the surrounding atmosphere by physical disturbances or air currents and could enter an employee's breathing zone and increase potential dermal contact (82 FR at 2689). OSHA also acknowledged that different approaches may be warranted for the housekeeping provisions for construction and shipyards than for general industry due to the nature of the materials and work processes typically used in construction and shipyards (82 FR at 2690). As discussed previously with respect to paragraph (f), although OSHA extended these provisions to the construction and shipyards industry in the 2017 final rule, OSHA also recognized that beryllium exposure in these industries is mainly limited to abrasive blasting in construction and shipyards and a small number of welding operations in shipyards (Document ID 2042, FEA Chapter III, pp. 103-11 and Table III-8e). While the extremely high airborne exposures during abrasive blasting operations can expose workers to beryllium in excess of the PEL, the blasting materials contain only trace amounts of beryllium (Document ID 2042, FEA Chapter IV, p. 612). Moreover, the record before the agency contains evidence of beryllium exposure during only limited welding operations in shipyards (Document ID 2042, FEA Chapter III, Table III-8e). Nonetheless, OSHA applied most of the same requirements to these industries as to general industry, 7 where the operations with beryllium exposure are significantly more varied and employees are exposed to materials with significantly higher content beryllium. 7 Due to the transient nature of the work processes in construction and shipyards and the fact that most of the work occurs outside, OSHA decided not to require employers in these industries to maintain all surfaces as free as practicable of beryllium, as it had done in general industry. Rather, the agency required employers in these industries to follow their written exposure control plan when cleaning beryllium-contaminated areas (82 FR at 2690). OSHA is reconsidering this approach in the construction and shipyards industries. In June 2017, OSHA proposed to rescind the ancillary provisions for the construction and shipyard beryllium standards, citing previously-existing OSHA standards that the agency surmised could duplicate some provisions of the 2017 standards. OSHA cited the construction ventilation standard, which requires that dust not be allowed to accumulate outside abrasive blasting enclosures and that spills be cleaned up promptly (29 CFR 1926.57(f)(7)). Likewise, certain provisions of OSHA's general ventilation standard for abrasive blasting (29 CFR 1910.94(a)) also apply to shipyards. Similar to the construction ventilation standard, the general ventilation standard contains the following requirements for abrasive blasting: “[d]ust shall not be permitted to accumulate on the floor or on ledges outside of an abrasive-blasting enclosure, and dust spills shall be cleaned up promptly. . . .” (29 CFR 1910.94(a)(7)). While some comments OSHA received on the proposed revocation of paragraph (j) supported revocation on the basis of overlapping and duplicative provisions ( e.g., ABMA, Document ID 2142), several commenters argued that the 2017 provisions offer beryllium-exposed workers significant additional protection. For example, NABTU indicated that the ventilation standard does not prohibit dry sweeping or brushing, which are prohibited by the 2017 beryllium standards except in rare circumstances (Document ID 2129, p. 7). AFL-CIO similarly commented that the use of dry sweeping and compressed air increase exposures in workers' breathing zone, and should be prohibited (Document ID 2140, p. 8). In light of these comments and the agency's review of existing standards, OSHA acknowledged in the rule finalizing the 2017 proposal, published on September 30, 2019, that existing standards do not duplicate all of the protections provided by paragraph (j). OSHA believes that some of these beryllium-specific provisions remain necessary to protect workers in the construction and shipyards industries. At the same time, given the very narrow set of affected operations and the existence of some overlap between the 2017 standards and already-existing rules, OSHA also believes that some provisions in paragraph (j)—although appropriate in the general industry context—may be unnecessary to protect employees in the construction and shipyards industries. Moreover, as discussed above in the Introduction, after publishing the 2017 final rule, OSHA clarified in the general industry DFR that the agency only intended to regulate contact with trace beryllium to the extent that it caused airborne exposures of concern. OSHA never intended for provisions aimed at protecting workers from the effects of dermal contact to apply in the case of materials containing only trace amounts of beryllium (83 FR at 19938). OSHA also discusses in the Introduction that the agency has preliminarily determined that the limited welding processes in shipyards create only a trace amount of surface contamination. Because exposures in the construction and shipyards industries are limited almost entirely to abrasive blasting with materials containing trace amounts of beryllium or welding on materials where surface contamination is not a source of exposure, OSHA believes additional revisions to paragraph (j) may be warranted. For these reasons, OSHA is proposing several revisions to paragraph (j) in both the construction and shipyards standards. First, OSHA is proposing to remove paragraph (j)(1) (general requirements for housekeeping) from the construction and shipyards standards. This provision currently requires employers to follow the written exposure control plan when cleaning beryllium-contaminated areas (paragraph (j)(1)(1)) and to ensure that spills and emergency releases of beryllium are cleaned up promptly (paragraph (j)(1)(2)). As discussed above, the ventilation standard for construction (29 CFR 1926.57(f)(7)) and OSHA's general ventilation standard (29 CFR 1910.94(a)) require prompt cleanup of spills during abrasive blasting in construction and shipyards, the primary sources of beryllium exposure in these industries. OSHA believes that routine general housekeeping and housekeeping related to spills are adequately covered by the existing ventilation standards in these sectors, and is proposing to eliminate paragraph (j)(1) of the final standards. Additionally, because the housekeeping provisions are triggered by only one operation (abrasive blasting) in construction and shipyards, this operation uses materials with only trace quantities of beryllium, and the main objective of these provisions is to minimize airborne exposure, OSHA has preliminarily determined that a unique written plan for how to clean is unnecessary in this context. OSHA notes that this is in contrast to general industry, where there is the concern for protecting from both dermal contact and airborne exposures over a variety of materials and processes and where employers may need to have more complicated or unique cleaning procedures to adequately protect workers. With respect to cleaning methods currently required by paragraph (j)(2), OSHA agrees with comments submitted by NABTU and AFL-CIO in response to the 2017 NPRM that the cleaning provisions in existing ventilation standards (29 CFR 1926.57(f)(7) and 29 CFR 1910.94(a)) do not provide the additional protections of prohibiting methods of cleaning that are likely to increase exposure in the breathing zone of the workers. Therefore, OSHA is retaining the existing requirements in the following paragraphs, renumbered in this proposal: Paragraph (j)(1), with revision (requiring the use of cleaning methods that minimize the likelihood and level of airborne exposure); (j)(2) (prohibiting dry sweeping or brushing unless other methods are not safe or effective); (j)(3), with revision (limiting the use of compressed air for cleaning); (j)(4), with revision (requiring respirator use and PPE where employees use dry sweeping, brushing, or compressed air to clean); and (j)(5) (requiring cleaning equipment to be handled and maintained so as to reduce airborne exposure and re-entrainment of airborne beryllium). Specific proposed revisions to these paragraphs are discussed below. First, OSHA is proposing to revise paragraph (j)(2)(i), renumbered as paragraph (j)(1), to remove the reference to “HEPA filtered vacuuming.” In the unique context of abrasive blasting, where operations produce copious amounts of dust, the use of HEPA vacuums may be problematic due to filter overload and clogging which in fact may cause additional exposures. This, too, is in contrast to general industry, where the content and amount of beryllium-containing dust or debris are varied and where HEPA filters can minimize the amount of beryllium that is re-entrained into the air. Next, OSHA is proposing to revise both paragraphs (j)(2)(i) and (ii)—renumbered as paragraphs (j)(1) and (2), respectively—to remove the phrase “beryllium-contaminated areas.” Proposed paragraph (j)(1) would now require the use of methods that minimize the likelihood and level of airborne exposure when cleaning up dust resulting from operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL. Similarly, proposed paragraph (j)(2) would prohibit dry sweeping or brushing for cleaning dust resulting from operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL, unless methods that minimize the likelihood and level of airborne exposure are not safe and effective. OSHA intends for these provisions to still apply where workers are either working in regulated areas in shipyards or in areas with exposures above the TWA PEL or STEL in construction. In the 2018 DFR, OSHA modified the general industry beryllium standard to define “contaminated with beryllium” and “beryllium-contaminated” as contaminated with dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight (83 FR at 19939-40). As explained above, OSHA believes there are no operations covered by the construction or shipyard beryllium standards that would create such a beryllium-contaminated surface. In fact, the vast majority of the operations (abrasive blasting) involve beryllium in concentrations of less than 0.1 percent by weight. If OSHA maintained the term “beryllium-contaminated,” the requirements for when and how employers can use dry sweeping, brushing, or compressed air would rarely, if ever, be triggered and workers already exposed could have additional exposures. Accordingly, OSHA is instead proposing to trigger the requirements in paragraphs (j)(1) and (2) on the presence of dust produced by operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL to ensure that beryllium is not re-entrained in areas where there are already high exposures. By referencing the presence of dust produced by these operations, rather than the operation itself, OSHA intends for these requirements to apply regardless of whether the operation is ongoing ( i.e. whether abrasive blasting is taking place at the time of the cleaning). Similarly, OSHA is proposing to revise paragraph (j)(2)(iii), renumbered as paragraph (j)(3), to remove the reference to “beryllium-contaminated areas” and to prohibit the use of compressed air for cleaning where the use of compressed air causes, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL. This is a change from the existing requirement, which prohibits the use of compressed air “unless the compressed air is used in conjunction with a ventilation system designed to capture the particulates made airborne by the use of compressed air.” This change limits when an employer can use compressed air for cleaning under these standards. In the 2017 final rule, OSHA determined that the use of compressed air might occasionally be necessary in general industry (82 FR at 2693). Similarly, for construction and shipyards, OSHA intended to prohibit the use of compressed air during cleaning of beryllium contaminated areas or materials designated for recycling or disposal unle [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2019-21038. Public record. Not legal advice.