On January 9, 2017, the Occupational Safety and Health Administration (OSHA) issued a final rule adopting a comprehensive standard for exposure to beryllium and beryllium compounds – a separate standard was promulgated for general industry, construction and shipyards. On May 4, 2018, OSHA issued a Direct Final Rule (DFR) regarding the beryllium standard for general industry.  This followed the Agency’s announcement on April 30th that it had reached settlement with several industry petitioners who had challenged the general industry standard in the US Court of Appeals for the Eighth Circuit.  The Agency has said that the DFR clarifies “aspects of the beryllium standard for general industry as it applies to process, operations, or areas where workers may be exposed to materials containing less than 0.1% beryllium by weight.”

This DFR adjusts the regulatory text of the general industry beryllium standard to clarify that OSHA does not intend for requirements that primarily address dermal contact to apply in processes, operations, or areas involving only materials containing less than 0.1% beryllium by weight. These clarifications are made through changes to the definition of beryllium work area; the addition of definitions of dermal contact, beryllium-contaminated, and contaminated with beryllium; clarifications of certain hygiene provisions with respect to beryllium contamination; and the clarifications to provisions for disposal and recycling. In addition, because under these changes it is possible to have a regulated area that is not a beryllium work area, this DFR makes changes to certain housekeeping provisions to ensure they apply in all regulated areas. Finally, this DFR also includes a change to the definition of “emergency”, adding detail to the definition so as to clarify the nature of the circumstances OSHA intends to be considered an emergency for the purposes of the standard.

The press has described the DFR as narrowing, easing, or limiting the standard’s definitions. In this Direct Final Rule, OSHA is adopting a number of clarifying amendments to address the application of the standard to materials containing trace amounts of beryllium. OSHA believes this rule will maintain safety and health protections for workers while reducing the burden to employers of complying with the current rule. According to OSHA, “this direct final rule is expected to be an Executive Order (E.O.) 13771 deregulatory action” with a net annual cost savings of  $0.36 million per year.  OSHA will consider comments on the DFR and if no significant adverse comments are received by June 4, 2018, OSHA will publish a Federal Register notice confirming the effective date of the changes and the DFR will take effect on July 4, 2018.

On May 11th OSHA began enforcement of certain requirements of the beryllium rule.  For generally industry, construction and shipyards this included the permissible exposure limits.  Further, in general industry enforcement began for the exposure assessment, respiratory protection, medical surveillance and medical removal requirements. According to OSHA, “The agency will delay enforcement of other ancillary provisions for general industry until June 25, 2018.  The Agency plans to issue a proposal to further extend this compliance date for the ancillary provisions to Dec. 12, 2018.” For the construction and shipyard industries, only the permissible exposure limits and short term exposure limit are being enforced until OSHA undertakes additional rulemaking for those industries.



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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.