Fourteen Years After Petition, Proposed OSHA Rule Now Outdated

Health Letter, February 2016

By Sammy Almashat, M.D., M.P.H.

In the current anti-regulatory climate of Washington, it’s rare for federal agencies to act quickly on evidence indicating the need for more protective regulations.

But this foot-dragging was taken to an extreme by the Occupational Safety and Health Administration (OSHA), which, last August, finally issued a proposal to lower the workplace exposure limit for the dangerous substance beryllium[1] — 14 years after a Public Citizen petition called on the agency to do so.

“It is unconscionable that it has taken so long for OSHA to respond to our request for it to protect the tens of thousands of workers exposed to beryllium in the course of their work,” said Dr. Sidney Wolfe, founder and senior adviser of Public Citizen’s Health Research Group and co-author of Public Citizen’s 2001 petition. “The agency is failing in its core duty.”

But now, the limit OSHA has proposed is so weak that it could be considered too little, too late. New scientific evidence shows that the agency’s proposed new exposure level is too high. Further, the rule fails to cover 23,000 workers, 40 percent of those exposed to beryllium.

On Nov. 5, 2015, Public Citizen submitted comments urging OSHA to improve the proposed rule.[2]

Old science versus current reality

Beryllium — which is used in the aerospace, telecommunications, defense, computer, medical, nuclear, and construction industries[3] — is a metal known to cause cancer and other fatal diseases, such as chronic beryllium disease of the lungs, when inhaled.[4]

Public Citizen has long argued that lowering the limit is necessary to save lives and spare workers the metal’s harmful effects. In 2001, following years of inaction by OSHA, Public Citizen petitioned the agency to lower the exposure limit for beryllium by 90 percent, from 2.0 to 0.2 micrograms per cubic meter of air.[5] The petition — filed with the Paper, Allied-Industrial, Chemical & Energy Workers International Union (now part of the United Steelworkers) — also asked OSHA to require medical surveillance of beryllium-exposed workers.

OSHA’s new proposal would, indeed, set the exposure limit at 0.2 micrograms. The agency also would require medical surveillance, personal protective equipment and other useful measures.

But more than a decade ago, Public Citizen’s petition noted that even a limit of 0.2 micrograms could prove too high should there be additional scientific evidence of beryllium’s harms at exposures below this level.[6] During the years OSHA delayed, such new evidence emerged.

In 2009, expert standard-setting organization the American Conference of Governmental Industrial Hygienists (ACGIH) lowered its recommended maximum threshold for workplace beryllium exposure to 0.05 micrograms, one-quarter of the limit proposed by OSHA.[7] ACGIH’s decision was based on its assessment, subsequently corroborated by a separate 2012 National Institute for Occupational Safety and Health study,[8] documenting that beryllium sensitization (the precursor to chronic beryllium disease) can occur at exposures significantly below 0.2 micrograms.[9]

OSHA’s inaction is even more alarming given that it has been more than 15 years since the Department of Energy (DOE) finalized its own “action level” of 0.2 micrograms per cubic meter of air for beryllium-exposed workers at DOE facilities, including for DOE contractors.[10] This action level, while not an absolute limit like OSHA’s exposure limit, triggers certain workplace precautions and control measures.

New action, old shortcomings

OSHA’s proposal also includes an action level of 0.1 micrograms, which would trigger protective measures for workers but would stop short of prohibiting exposure to that level of beryllium.[11]

OSHA set its levels despite acknowledging that “significant risks of sensitization and [chronic beryllium disease] remain” at both 0.2 micrograms and 0.1 micrograms.[12]

Another striking deficiency of OSHA’s proposed rule is that it would not apply to construction or shipyard workers, who could continue to be exposed to beryllium concentrations up to the extremely high current limit of 2.0 micrograms.[13] OSHA claimed that those workers would be shielded from harm through existing requirements for respiratory protection, although Public Citizen disagrees.

The agency chose not to include construction within its proposed rule even though its own advisory committee — before which Public Citizen staff testified in 2014 — recommended that it do so.[14] The estimated 23,000 construction workers (40 percent of all exposed workers) who may come in contact with beryllium every day while performing open-air abrasive blasting[15] will remain at especially high risk for contracting beryllium-related diseases.

“Construction and shipyard workers exposed to beryllium on a daily basis deserve the same protections as other at-risk workers,” said Emily Gardner, worker health and safety advocate for Public Citizen’s Congress Watch division. “While the proposed rule is a step in the right direction, Public Citizen urges OSHA to finalize a safer beryllium standard without delay, with safeguards to protect all exposed workers from the devastating effects of beryllium.”


References

[1] 80 FR 47565. Docket No. OSHA-H005C-2006-0870. Proposed Rule; request for comments. Occupational Exposure to Beryllium and Beryllium Compounds. August 7, 2015. https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-1759…. AccessedJanuary 22, 2016.

[2] Public Citizen. Comments Urging OSHA to Finalize a More Protective Beryllium Rule. November 5, 2015. https://www.citizen.org/hrg2281. Accessed January 22, 2016.

[3] Occupational Safety and Health Administration. Safety and health topics: Beryllium. https://www.osha.gov/SLTC/beryllium/. Accessed January 22, 2016.

[4] National Toxicology Program. Report on Carcinogens, Thirteenth Edition. Beryllium and Beryllium Compounds. CAS No. 7440-41-7 (Beryllium). http://ntp.niehs.nih.gov/ntp/roc/content/profiles/beryllium.pdf. Accessed January 22, 2016.

[5] Public Citizen. Petition to OSHA to lower occupational exposure to beryllium. September 1, 2001. https://www.citizen.org/Page.aspx?pid=2042. Accessed January 22, 2016.

[6] Public Citizen. Petition to OSHA to lower occupational exposure to beryllium. September 1, 2001. https://www.citizen.org/Page.aspx?pid=2042. Accessed January 22, 2016.

[7] American Conference of Governmental Industrial Hygienists. Beryllium and Compounds 11 (2009).

[8] Schuler CR, Virji MA, Deubner DC, et al. Sensitization and chronic beryllium disease at a primary manufacturing facility, part 3: Exposure-response among short-term workers. Scand J Work Environ Health. 2012;38(3):270-281.

[9] American Conference of Governmental Industrial Hygienists. Beryllium and Compounds 11. 2009.

[10] 64 FR 68854. Docket No. EH–RM–98–BRYLM. Chronic Beryllium Disease Prevention Program. December 8, 1999. https://www.gpo.gov/fdsys/pkg/FR-1999-12-08/pdf/99-31181.pdf. Accessed January 22, 2016.

[11] OSHA Proposed Rule, at 751.

[12] OSHA Proposed Rule, at 732.

[13] OSHA Proposed Rule, at 709.

[14] Occupational Safety and Health Administration. Advisory Committee on Construction Safety and Health. Minutes of May 7-8, 2014, Meeting. https://www.osha.gov/doc/accsh/meetingminutes/may2014.html. Accessed January 22, 2016.

[15] For OSHA’s estimate of the number of beryllium-exposed construction workers, see: Occupational Safety and Health Administration Advisory Committee on Construction Safety and Health. Transcript of December 6, 2013, Meeting, at 86-94 https://www.osha.gov/doc/accsh/transcripts/20131206_accsh_transcripts.pdf. Accessed January 22, 2016. For OSHA’s estimate of the number of beryllium-exposed non-construction workers, see: Occupational Safety and Health Administration. Safety and Health Topics: Beryllium. https://www.osha.gov/SLTC/beryllium/index.html. Accessed January 22, 2016.