Regulatory Developments

California Moving Ahead with Delayed Federal Beryllium Standard

Federal OSHA has repeatedly delayed, and most recently reopened the rulemaking for its beryllium standard, creating considerable confusion. Despite that, the California Occupational Safety and Health Standards Board (OSHSB) is moving ahead with adopting the federal beryllium standard. The agency is accepting comments on the proposal, and will also hold a public hearing on July 20 in San Diego.

Horcher Adoptions

The OSHSB intends to use its “Horcher” process to adopt the rule. The Horcher adoption process is a simplified rulemaking procedure that enables California to adopt new or revised federal standards “as-is,” with only minimal changes (for example, references to other federal/OSHA standards will be changed to reflect equivalent Cal/OSHA standards). Horcher adoptions are not usually subject to the same public hearing or comment process as other standards adoptions – they are presumed to have gone through the full rulemaking process at the federal level – although the board sometimes does solicit comments or hold hearings on these standards, as it will do in the case of the beryllium standard adoption.

The Beryllium Standard

California intends to adopt the federal OSHA beryllium standard that was finalized on January 9, 2017 – before the Trump administration delayed implementation of new federal rules, and before federal OSHA reopened the rulemaking process. Thus, California proposes to adopt three separate standards that apply to beryllium exposure in construction, general industry, and maritime. The federal final rules will be incorporated into new sections in Title 8: section 1535.1 for construction, section 5205 for general industry, and section 8359.1 for maritime. Existing Section 5155 will also be amended to include the new short-term exposure limit of 2.0 µg/m3 for beryllium.

Permissible exposure limits for beryllium under the new rule are 0.2 micrograms of beryllium per cubic meter of air (0.2 µg/m3 ) as an 8-hour time-weighted average and 2.0 µg/m3 as a short-term exposure limit determined over a sampling period of 15 minutes. The rule also includes other provisions to protect employees, such as requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping. The general industry standard also includes a non-mandatory appendix that details possible control options for employers that are applicable to some specific beryllium operations.

California also proposes to adopt the original federal OSHA compliance dates for the standard. That means that compliance with each of the three standards will be required by March 12, 2018, except for the requirements for change rooms and engineering controls, which are required by March 11, 2019 and March 10, 2020, respectively.

The OSHSB is accepting written comments until 5:00 p.m. on July 20, 2017, or commenters can present their concerns orally at the July 20 hearing. Written comments can be submitted by mail to Sarah Money, Occupational Safety and Health Standards Board, 2520 Venture Oaks Way, Suite 350, Sacramento, CA 95833; by fax to (916) 274-5743; or by e-mail to oshsb@dir.ca.gov.

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