Less than half a year after workers finally received long overdue protections against deadly beryllium dust, the Trump administration has officially proposed removing many of those protections from construction and shipyard workers.
OSHA announced today “a proposed rule that would modify the agency’s recent beryllium standards for the construction and shipyard sectors.”
The proposal would send back to the drawing board important parts of the new OSHA beryllium standard that was finally issued on January 9, 2017, after decades of effort, and overwhelming evidence that OSHA’s 35 year old beryllium standard did not protect workers from severe lung disease and lung cancer. The Obama era rule reduced the permissible exposure limit (PEL) for beryllium from 2.0 μg/m3 (micrograms per cubic meter of air) to 0.2 μg/m3.
Today’s proposal keeps the new PEL, but removes the “ancillary provisions” for construction and shipyard workers. The ancillary provisions would have required employers to provide exposure monitoring, regulated areas (and a “competent person” in construction), a written exposure control plan, personal protective equipment (PPE), and work clothing, hygiene areas and practices, housekeeping, medical surveillance, medical removal, and worker training for construction and shipyard workers exposed to beryllium from abrasive blasting using coal slag compounds that contain beryllium.
In other words, as the United Steel Workers Union (USW) explains, “Under the proposal OSHA released this morning, employers would no longer have to measure beryllium levels in the workplace or provide medical testing to workers at risk of fatal lung disease. In addition, workers would not have the right to wear protective clothing or to shower at the end of the work shift, making it possible for beryllium to be taken home and exposed to spouses and children.” The USW has members in both industries, including workers at the Newport News shipyard who build nuclear aircraft carriers and submarines for the Navy.
When OSHA was created in 1971, the agency adopted Permissible Exposure Limits (PELs) for around 500 chemicals. These PELs simply required employers to keep worker exposures below those levels. Since then, however, every new OSHA chemical standard has also required additional, or “ancillary” protections that provide additional lays of protection for workers. For example, training provides workers with more needed information, housekeeping and PPE requirements provide additional protections and medical surveillance detects disease before it was too late.
“No worker should have to die from chronic beryllium disease.” — Michael Wright, USW Director of Health, Safety and Environment
Ancillary provisions also help ensure that the PEL is not exceeded, and minimize risk to workers where lowering the PEL is unable to reduce all of the significant risk. The original standard, for example, stated that while a lower PEL of .1 μg/m3 would be more protective, OSHA could not show that reducing exposures to that level was feasible. OSHA therefore concluded that “dermal protection requirements, and other ancillary provisions of the final rule are critically important in reducing the risk of sensitization, Chronic Beryllium Disease, and lung cancer among workers exposed to beryllium.”
What’s Going On?
Today’s press release states that
OSHA has evidence that exposure in these industries is limited to a few operations and has information suggesting that requiring the ancillary provisions broadly may not improve worker protection and be redundant with overlapping protections in other standards. Accordingly, OSHA is seeking comment on, among other things, whether existing standards covering abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards provide adequate protection for workers engaged in these operations.
In reality, OSHA’s new proposal contains no evidence “suggesting that requiring the ancillary provisions broadly may not improve worker protection.” In the original rule-making process, OSHA assembled considerable evidence that while blasters were usually fairly well protected, more protection was needed. And others — such as pot tenders and support personnel like cleanup helpers who would vacuum and sweep up the dust — received significant exposures. OSHA has now decided, apparently without any evidence, that the last administration was wrong, and construction and maritime workers will continue to wait for protection while OSHA goes through the lengthy rulemaking process again.
In fact, this whole process is not about cost or new evidence or “notice,” but this Administration’s deregulatory, anti-worker ideology.
OSHA also stated in its press release that “Representatives of the shipyards and construction industries, as well as members of Congress, raised concerns that they had not had a meaningful opportunity to comment on the application of the rule to their industries when the rule was developed in 2015-16.” That statement is demonstrably false. The original OSHA beryllium proposal did not cover maritime or construction — and the industry claims that insufficient “notice” was given that they might be covered. If you read the OSHA proposal, however, you will note that there are numerous places where coverage of shipyard and construction workers is presented as an alternative, and comments are requested. Comments from the maritime industry were, in fact, provided at the hearings and in written form as the new standard was being considered, although the construction industry chose not to participate in the original rulemaking.
The Trump administration and industry associations complain about the cost of regulation to the American economy. For beryllium (and other OSHA standards), however, the benefits of the rule far exceed the costs. In the original beryllium rule, for example, the benefits (counting lives saved and illness prevented) came to $561 million, compared to only $74 million in costs, for a net benefit of $487 million. Construction and shipyards accounted for an estimated $27.6 million in benefits and only $11.9 million in costs.
In fact, this whole process is not about cost, or new evidence or “notice,” but this Administration’s deregulatory, anti-worker ideology combined with pressure from the coal abrasives industry, which fears their hazardous product will be phased out in construction and shipyards in favor of safer abrasive blasting materials.
Stakeholders are angry
“No worker should have to die from chronic beryllium disease,” said Michael Wright, the USW’s Director of Health, Safety and Environment, “and the Administration has no business discriminating against any group of workers just because they happen to be in the wrong industry. We will vigorously oppose this cruel proposal.”
Chris Owens, Executive Director of the National Employment Law Project explained that “Today, at the behest of corporate special interests, the Labor Department issued a proposed rule to loosen health protections for workers exposed to the chemical beryllium. The result will be more debilitating lung diseases, cancers, and deaths for workers who are exposed to this highly toxic substance.
“If this proposal to weaken the beryllium rule goes into effect, construction and shipyard workers will die and be permanently disabled as a result,” said Emily Gardner, worker health and safety advocate for Public Citizen’s Congress Watch division. “The final beryllium rule issued at the end of the Obama administration must be reinstated immediately.”
Currently, employers don’t have to comply with the standard’s requirements until March 12, 2018. OSHA has stated that it will not enforce the January 9, 2017 shipyard and construction standards without further notice while this new rulemaking is underway. OSHA has provided 60 days for comment on the new proposal and is required to schedule a public hearing “if requested” (which it will be.)