OSHA Delays Enforcement of Beryllium Standard—Again

One day before it was scheduled to begin enforcing its 2017 standard to protect workers from exposure to beryllium, OSHA announced that it will delay enforcing many of the standard’s provisions.

The final beryllium rule (January 9, 2017, FR) contains standards for general industry, construction, and shipyards. The published rule contained an effective date of March 10, 2017 (the date the standard became official, that is, a part of the OSH Act). Also in that action, OSHA stated that employer compliance would be required by March 12, 2018, except for provisions for change rooms and engineering controls, for which compliance is required March 11, 2019, and March 10, 2020, respectively. The effective date was later amended through rulemaking, but the compliance dates are unchanged.

Enforcement dates are another matter. Employers should bear in mind that neither the effective date nor the compliance dates in rule can be changed without rulemaking that provides the public the opportunity to comment on proposed revisions. However, as with other federal agencies, OSHA’s enforcement of regulations is discretionary and the agency does not have to engage in rulemaking to adjust the date when it will start enforcing a regulation.

Key Dates

The following timeline lists the important dates associated with the beryllium standard:

• January 9, 2017—the final beryllium standard is published in FR, with aMarch 10, 2017 effective date.
• February 1, 20177—OSHA announces that it is delaying the effective date to March 21, 2017.
• March 21, 2017—OSHA publishes a final rule changing the effective date to May 20, 2017.
• June 27, 2017—OSHA publishes a final rule to revoke the ancillary provisions of the construction and shipyard standards. Ancillary provisions include requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping.
• August 24, 2017—OSHA notes on its website that it would not enforce the ancillary provisions of the construction and shipyard standards without further notice.
• March 2, 2018—OSHA announces that no provision of the beryllium standards will be enforced until May 11, 2018.
• May 9, 2018—OSHA issues an interim enforcement memo to its regional administrators and state plan designees, stating that beginning on May 11, 2018, it will enforce only the following provisions of the January 2017 rule:
  • PELs in the general industry, construction, and shipyard standards at §1910.1024(c), §1926.1124(c), and §1915.1024(c), respectively.
  • General industry exposure assessment at §1910.1024(d).
  • General industry respiratory protection §1910.1024(g).
  • General industry medical surveillance §1910.1024(k).
  • General industry medical removal at §1910.1024(l).
  • Also in the May 9, 2018, memo, OSHA states that ancillary provisions included in the beryllium standard for general industry will not be enforced until June 25, 2018. However, under the terms of a settlement with petitioners who challenged the rule, OSHA says it plans to issue a proposal to further extend the compliance date for the ancillary provisions to December 12, 2018.

OSHA’s May 10, 2018, interim enforcement memo is available here.