In January 2017, as a departing gift from the Obama administration, OSHA issued a final rule with three separate standards regulating occupational exposures to beryllium in general industry, construction and shipyards. And, contrary to industry expectations and data in the rulemaking record, OSHA broadened the coverage of the construction and shipyard standards. The three standards lowered the permissible exposure limit and short term exposure limit to beryllium and established ancillary provisions such as the requirement to conduct an exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication and recordkeeping.

As part of the final rule, the new permissible exposure limit went into effect on May 11, 2018 for all industries. On December 12, 2018, OSHA began enforcing most provisions of the beryllium standard for general industry, except for change rooms and showers, which took effect on March 11, 2019 and engineering controls which will take effect on March 10, 2020.

Shortly after the promulgation of the final rule, OSHA announced its intention to undertake additional rulemaking regarding the ancillary provisions applicable to construction and shipyards and announced it would not enforce those provisions until further rulemaking. On June 27, 2017, OSHA published a notice of proposed rulemaking (NPRM) proposing to revoke the ancillary provisions for both the construction and shipyard standards.  The proposal was based on considerations that other standards such as the respiratory, sanitation and other current standards provide adequate protection for the limited employees potentially exposed to beryllium in construction and shipyards. In the NPRM OSHA stated,  “OSHA has evidence that beryllium exposure in these sectors is limited to the following operations: Abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards. OSHA has a number of standards already applicable to these operations, including ventilation (29 CFR 1926.57) and mechanical paint removers (29 CFR 1915.34).”  Due to the limited number of employees exposed in construction and shipyards and coverage of other standards regulating abrasive blasting and welding many construction and shipyard stakeholders believed a full beryllium standard for these two industries would result in burdensome requirements but not provide additional protection already afforded by other current standards.

On September 30, 2019, OSHA issued a final rule for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyards.  Rather than revoke the ancillary provisions for these two industries as anticipated, OSHA  “determined that there is not complete overlap in protections between the standards’ ancillary provisions and other OSHA standards.”  In short, employers in construction and shipyards industries will be required to comply with the final rule for occupational exposure to beryllium issued in January 2017.

OSHA did delay the compliance dates for all ancillary provisions of the construction and shipyard standards until September 2020.  OSHA also announced its intent to engage in additional rulemaking to amend the standards for construction and shipyards by “more appropriately tailoring the requirements of the standards to the exposures in these industries.”

Unfortunately it does not seem likely that OSHA would complete that rulemaking before the September 2020 effective date of the ancillary provisions, which could result in employers in construction and shipyard industries having to establish policies and programs to implement the ancillary requirements, which then later could change.

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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.