The world’s largest producer and supplier of beryllium and workers exposed to the highly toxic mineral decided not to wait any longer for federal OSHA to draft a proposed worker safety rule on the hazard. Last week, the United Steelworkers International Union and Materion Brush (the only U.S. manufacturer) sent the complete text of a draft regulation to the head of Labor Department’s Occupational Health and Safety Administration (OSHA). Individuals exposed to the metal may become immunologically sensitized to it, and develop a unique disabling, chronic lung disease. Beryllium is also associated with lung cancer. The super resilient and lightweight metal is used principally in the aerospace industry and national defense, but has also found its way into consumer product applications.
In their cover letter to the OSHA director, the USW’s Mike Wright and Materion’s Terence Civic write:
“the current OSHA permissible exposure limit of 2.0 ug/m3 is too high. The current standard also lacks provisions for exposure monitoring, medical surveillance, information and training, all of which are critical to protecting exposed workers. …We believe the enclosed draft standard is both necessary and sufficient to protect beryllium exposed workers, and that it meets all the criteria established by Congress for rules promulgated under the OSH Act.”
The labor-industry proposal includes a provision to reduce the permissible exposure limit (PEL) from 2.0 micrograms per cubic meter of air (8 hour time-weighted average) to 0.2 micrograms. This proposed PEL matches the one adopted in 1999 by the Department of Energy in its Chronic Beryllium Disease Prevention (CBDP) program. Dr. David Michaels, the current OSHA director, was the assistant secretary of energy from 1998-2001 and responsible for issuing DOE’s CBDP rule which includes this lower exposure limit.
As Dr. Michaels and I wrote in a 2008 paper published in Public Health Reports, there may be no safe exposure level to beryllium that will prevent all cases of chronic beryllium disease. The 0.2 microgram PEL endorsed in this proposal recognizes that OSHA permissible exposure limits are not necessarily set at a level that is safe for everyone exposed. By law, OSHA has authority to address health hazards, but must set limits that are technologically and economically feasible for the affected industries. (Under OSHA’s 2006 rule to protect workers exposed to hexavalent chromium, for example, the level determined by OSHA to be feasible comes with an risk estimate of 3 excess lung cancer deaths per every 100 exposed workers.)
Under this labor-industry proposal on beryllium, employers would be required to establish and offer a medical surveillance program for all workers who work for more than 30 days per year in areas where exposures to beryllium are at or exceed the PEL, and for those who show symptoms of chronic beryllium disease. The surveillance program would include an annual examination with pulmonary function testing, a beryllium blood lymphocyte proliferation test (or a more reliable test should one be developed), and a CT scan for workers with more five years of more of routine exposure above the PEL. In instances in which a worker is diagnosed with CBD (through invasive procedures such as bronchoalveolar lavage and transbronchial biopsy) the worker would be given the option to be transferred to a work environment where airborne exposure to beryllium does not exceed 0.1 micrograms per cubic meter of air (i.e., half the PEL) at no loss of pay or seniority.
The labor-industry proposal includes other requirements, such as mandatory exposure monitoring, and a written exposure control plan with provisions to ensure beryllium-contaminated clothing, tools or other items do not leave the worksite and risk exposing individuals at home or in the community. Upon release of the document, Mike Wright, the director of the Steelworkers Health, Safety and Environment Department said:
“This was a two-year negotiation, but it wasn’t some sort of give and take. Rather, it was a mutual search for feasible measures that would best protect workers. We worked through many disagreements, but worker health was always the goal for both parties.”
This Steelworker and Materion Brush draft proposed rule comes at an interesting time. As I wrote a couple of weeks ago, OSHA is not on any fast track to improve regulatory protections for beryllium-exposed workers. The agency just recently classified it as a topic for “long-term action,” meaning OSHA doesn’t expect to make significant progress developing a proposed rule this year. The agency attributed the delay to some “new and significant information” that could influence its cost estimates for a proposed beryllium rule. OSHA first proposed a rule to protect beryllium-exposed workers in 1975. A final rule was never issued, stalled by Cold War saber-rattling inside and outside the White House and industry claims of uncertain adverse health effects.
Now more than three decades later, the major U.S. producer of beryllium is urging OSHA to propose a rule, so much so that it handed the agency preferred regulatory text. It will be interesting to see how the agency responds.
OSHA could, as the Steelworkers and Materion Brush indicate, publish this draft regulatory text as a proposed rule and seek public comment on it. This step could come after the agency prepared a draft risk assessment and the required feasibility and regulatory flexibility analyses, and allowed a panel of small affected businesses to review these documents. Other options available to the OSHA include incorporating these provisions as regulatory alternatives to whatever the agency is already planning to propose, or requesting feedback informally from the on the Steelworkers/Materion Brush document. It will also be interesting to see if the mere notion of a worker safety regulation on beryllium raises the ire of the conservative majority on Capitol Hill. Perhaps they’ll restrain themselves when the hazard is one about which the major producer is asking for an OSHA rule. The industry-labor authors of the rule note:
“Much is at stake. Beryllium producers deserve regulatory certainty, and the assurance that their materials will be handled safely by downstream users. Most of all, beryllium workers deserve all the protections of a strong occupational health standard.”