have listed under their exposure control plan required by paragraph
(f)(1) to clean beryllium-

contaminated surfaces, and use the cleaning methods required by
paragraph (j)(2). Good housekeeping practices are essential in
controlling beryllium exposure. Beryllium-containing material deposited
on ledges, equipment, floors, and other surfaces must be promptly
removed to prevent these deposits from becoming airborne and to
minimize the likelihood of skin contact with beryllium.
    Paragraph (j)(1) directs the employer to maintain surfaces where
beryllium may accumulate ``as free as practicable'' of beryllium. In
this context, the phrase ``as free as practicable'' sets forth the
baseline goal in the development of an employer's housekeeping program
to keep work areas free from surface contamination. For a detailed
discussion of the meaning of the phrase ``as free as practicable,'' see
the discussion of proposed paragraph (i) earlier in this section of the
preamble.
    Employers must regularly clean surfaces in beryllium work areas to
minimize re-entrainment of dust into the work environment, and to
ensure that accumulations of beryllium do not become sources of
exposure. Although OSHA does not define ``surface'' in the proposed
standard, the term would include surfaces workers come into contact
with such as working surfaces, floors, and storage facilities, as well
as surfaces workers do not directly contact such as rafters. Because
all surfaces in beryllium work areas could potentially accumulate
beryllium that workers could later inhale, touch, or ingest, all
surfaces in beryllium works areas must be kept as free as practicable
of beryllium.
    OSHA has preliminarily decided not to require employers to measure
beryllium contamination on surfaces, because the Agency does not have
the necessary data to understand the relationship between surface level
of beryllium and risk of absorption through the skin. The use of wipe
samples, however, remains a useful qualitative tool to detect the
presence of beryllium on surfaces.
    As mentioned above, when beryllium is released into the workplace
as a result of a spill or emergency release, paragraph (j)(1)(ii) would
require the employer to ensure prompt and proper cleanup in accordance
with the written exposure control plan required by paragraph (f)(1) and
to use the cleaning methods required by paragraph (j)(2) of this
proposed standard. Spills or emergency releases not attended to
promptly are likely to result in additional employee exposure or skin
contact.
    Paragraph (j)(2) provides that clean-up procedures for beryllium-
containing material must minimize employee exposure. OSHA recognizes
that each work environment is unique, so OSHA has established
performance-oriented requirements for housekeeping to allow employers
to determine how best to clean beryllium work areas while minimizing
employee exposure. Paragraph (j)(2)(i) of the proposed standard would
require that surfaces contaminated with beryllium be cleaned by high
efficiency particulate air filter (HEPA) vacuuming or other methods
that minimize the likelihood of beryllium exposure. OSHA believes HEPA
vacuuming is a highly effective method of cleaning beryllium-
contaminated surfaces. However, other cleaning methods equally
effective at minimizing the likelihood of beryllium exposure may be
used.
    Paragraph (j)(2)(ii) would permit dry sweeping or brushing in
certain cases only. The employer must demonstrate that it has tried
cleaning with a HEPA-filter vacuum or another method that minimizes the
likelihood of exposure, and that those methods were not effective under
the particular circumstances found in the workplace. OSHA has included
this provision in an attempt to provide employers flexibility when
exposure-minimizing cleaning methods would not be effective, but OSHA
is not aware of any circumstances in which dry sweeping or brushing
would be necessary. OSHA requests comment on whether dry sweeping or
brushing would ever be necessary, and if so, under what circumstances
(see section I of this preamble, Issues and Alternatives).
    Paragraph (j)(2)(iii) would prohibit the use of compressed air in
cleaning beryllium-contaminated surfaces unless it is used in
conjunction with a ventilation system designed to capture any resulting
airborne beryllium. This provision is also intended to prevent the
dispersal of beryllium into the air.
    Proposed paragraph (j)(2)(iv) details further protections for those
employees who are using certain cleaning methods. Under this provision,
where employees use dry sweeping, brushing, or compressed air to clean
beryllium-contaminated surfaces, the employer must provide respiratory
protection and protective clothing and equipment and ensure that each
employee uses this protection in accordance with paragraphs (g) and (h)
of this standard. The failure to provide proper and adequate protection
to those employees performing cleanup activities would defeat the
purpose of the housekeeping practices required to control beryllium
exposure.
    Paragraph (j)(2)(v) would require employers to ensure that
equipment used to clean beryllium from surfaces is handled in a manner
that minimizes employee exposure and the re-entrainment of beryllium
into the workplace environment. For example, cleaning and maintenance
of HEPA-filtered vacuum equipment must be done carefully to avoid
exposure to beryllium. Similarly, filter changes and bag and waste
disposal must be performed in a manner that minimizes the risk of
employee exposure to airborne beryllium. This provision is consistent
with the requirement in proposed paragraph (f)(1)(i)(F) for the written
exposure control plan, under which employers must establish and
implement procedures for minimizing the migration of beryllium. And of
course, employees handling and maintaining cleaning equipment must be
protected in accordance with the other paragraphs of this proposed
standard as well, including the requirements for respiratory protection
and PPE in paragraphs (g) and (h).
    Proposed paragraph (j)(3)(i) would require that items visibly
contaminated with beryllium and consigned for disposal be disposed of
in sealed, impermeable bags or other closed impermeable containers.
Proposed paragraph (j)(3)(ii) requires these containers to be marked
with warning labels to inform individuals who handle these items of the
potential hazards associated with beryllium exposure, and the labels
must contain specific language in accordance with paragraph (m)(3) of
the proposed standard. Alerting employers and employees who are
involved in disposal to the potential hazards of beryllium exposure
will better enable them to implement protective measures.
    Proposed paragraph (j)(3)(iii) gives employers two options for
materials designated for recycling that are visibly contaminated with
beryllium: Sealing them in impermeable enclosures and labeling them in
accordance with proposed paragraph (m)(3), or cleaning them to remove
visible particulate. Proposed paragraph (j)(3)(iii) allows employers
this flexibility to facilitate the recycling process, and ensures that
employees handling these items for recycling purposes will not be
exposed to visible particulate if the items are not sealed in
impermeable enclosures and labeled with warnings about the dangers of
beryllium exposure.
    OSHA believes that the concept and importance of housekeeping
programs in protecting workers from beryllium

exposure are generally well understood and acknowledged by the affected
employer community. Small Entity Representatives (SERs) on the SBREFA
Advisory Panel indicated that most of the responding small business
entities engaged in regular and routine housekeeping activities in
areas where beryllium-containing material has been used or processed
(OSHA, 2008b). Housekeeping activities included wet mopping, vacuuming,
and sweeping in and around machinery and other surfaces. In performing
these tasks, respirator and PPE usage varied. In some cases, employers
provided the protection, but did not require its usage. In other
instances, no protection was available to workers performing
housekeeping duties. (OSHA, 2007a).
    Those companies that did have comprehensive housekeeping policies
provided the Agency with a number of useful practices and examples in
response to the RFI as well as during the SBREFA process. One company
offered its 8-step housekeeping and control strategy into the record as
a comprehensive model (Brush Wellman, 2003). Another company presented
its facility housekeeping program specifying a number of containment
measures such as tack mats, absorbent carpet, and damp disposable
towels to collect any contamination from beryllium operations. Certain
practices were expressly prohibited such as dry sweeping, brushing,
wiping, and the use of compressed air systems to clean machinery
(Honeywell, 2003). Researchers with the National Jewish Hospital and
Research Center found that most of the beryllium facilities that they
visited prohibited the use of compressed air in beryllium areas (NJMRC,
2003).
    Several commenters also questioned the vagueness of the term
``contaminated surfaces'' (OSHA, 2008b). The proposed standard no
longer uses this term. Rather, proposed paragraph (j) would require
employers to maintain surfaces in beryllium work areas ``as free as
practicable of accumulations of beryllium,'' which is explained earlier
in this section.
 (k) Medical Surveillance
    Under paragraph (k)(1) of the proposed standard, OSHA would require
employers to make medical surveillance available at no cost, and at a
reasonable time and place, for all employees who have worked in a
regulated area for more than 30 days in the past 12 months; show signs
and symptoms of CBD; are exposed to beryllium during an emergency; or
were exposed to beryllium in concentrations above 0.2 [mu]g/m\3\ for
more than 30 days in a 12-month period for 5 years or more.
    Under paragraph (k)(1)(ii), the required medical surveillance must
be performed by or under the direction of a licensed physician. OSHA
chose to require licensed physicians, as opposed to PLHCPs, to oversee
medical surveillance in this standard, and to provide certain services
required by this standard (see, e.g., paragraphs (k)(1)(ii) and
(k)(5)). OSHA has in the past allowed a PLHCP to perform all aspects of
medical surveillance, regardless of whether the PLHCP is a licensed
physician (see OSHA's standards regulating chromium (VI) (29 CFR
1910.1026) and methylene chloride (29 CFR 1910.1052)). OSHA has
proposed that a licensed physician perform some of the requirements of
paragraph (k) in response to a multi-stakeholder coalition proposal to
this effect. OSHA believes this requirement strikes an appropriate
balance between ensuring that a licensed physician supervises the
overall care of the employee, while giving the employer the flexibility
to retain the services of a variety of qualified licensed health care
professionals to perform certain other services required by paragraph
(k). However, OSHA also believes it may be appropriate to allow a PLHCP
who is not a licensed physician to perform all of the services required
by proposed paragraph (k) (see also section I of this preamble, Issues
and Alternatives). OSHA requests comment on this proposed requirement.
    The purpose of medical surveillance for beryllium is, where
reasonably possible, to identify beryllium-related adverse health
effects so that appropriate intervention measures can be taken, and to
determine the employee's fitness to use personal protective equipment
such as respirators. The proposed standard is consistent with Section
6(b)(7) of the OSH Act (29 U.S.C. 655(b)(7)), which requires that,
where appropriate, medical surveillance programs be included in OSHA
health standards to aid in determining whether the health of employees
is adversely affected by exposure to toxic substances. Other OSHA
health standards, such as Chromium (VI) (29 CFR 1910.1026), Methylene
Chloride (29 CFR 1910.1052), and Cadmium (29 CFR 1910.1027), also
include medical surveillance requirements.
    The proposed standard is intended to encourage participation in
medical surveillance by requiring at paragraph (k)(1)(i) that the
employer provide medical examinations without cost to employees (also
required by section 6(b)(7) of the Act (29 U.S.C. 655(b)(7)), and at a
reasonable time and place. If participation requires travel away from
the worksite, the employer would be required to bear all travel costs.
Employees must be paid for time away from work spent attending medical
examinations, including travel time.
    Paragraph (k)(1)(i)(A) proposes to require employers to make
medical surveillance available to all employees who worked in a
regulated area for more than 30 days in the past 12 months. This
requirement attempts to ensure that those employees who are at most
risk for developing beryllium-related adverse health effects have
access to medical services so that such adverse health effects can be
detected early.
    In addition, paragraph (k)(1)(i)(B) would require that employers
provide medical surveillance to any employee who shows signs or
symptoms of CBD. It is expected that employees experiencing signs and
symptoms of exposure will report them to their employers. If an
employer becomes aware that an employee shows signs and symptoms of CBD
either through employee self-reporting or from observation of the
employee, the employer is required to provide medical surveillance to
the employee. However, this provision is not intended to force
employers to survey their workforce, make diagnoses, or determine
causality.
    Proposed paragraph (k)(1)(i)(B) recognizes that some employees may
exhibit signs and symptoms of the adverse health effects associated
with beryllium exposure even when not exposed above the TWA PEL or the
STEL for more than 30 days per year. OSHA's preliminary risk assessment
concludes that there is significant risk of adverse health effects from
beryllium exposure below the proposed PEL (see this preamble at section
VI, Preliminary Risk Assessment). In addition, beryllium sensitization
and CBD could develop in employees who are especially sensitive to
beryllium, may have been unknowingly exposed, or may have been exposed
to greater amounts than the exposure assessment suggests.
    Self-reporting by employees will be supported by the training
required under proposed paragraph (m)(4)(ii) on the health hazards of
beryllium exposure and the signs and symptoms of CBD, and the medical
surveillance and medical removal requirements of the proposed standard
in paragraphs (k) and (l). Employees have a right under section 11(c)
of the OSH Act to report suspected work-related health effects to their
employers without retaliation. Any employer program or practice that

discourages employees from reporting or penalizes workers who report
work-related health effects would violate section 11(c). See Memorandum
from Richard E. Fairfax to Regional Administrators (March 12, 2012),
available at http://www.osha.gov/as/opa/whistleblowermemo.html.
    As discussed in this preamble at section V, Health Effects, CBD
causes fatigue, weakness, difficulty breathing, and a persistent dry
cough, among other symptoms. In more advanced cases, CBD may also
result in anorexia and weight loss, as well as right side heart
enlargement (cor pulmonale) and heart disease. By requiring covered
employers to make a medical exam available when an employee exhibits
these types of symptoms, the proposed standard would protect all
employees who may have developed CBD, whether or not these employees
have been exposed to beryllium in an emergency or for more than 30 days
in a regulated area.
    Paragraph (k)(1)(i)(C) would require that appropriate surveillance
also be made available for employees exposed to beryllium during an
emergency, regardless of the airborne concentrations of beryllium to
which these employees are routinely exposed in the workplace. Emergency
situations involve uncontrolled releases of airborne beryllium, and the
significant exposures that can occur in these situations justify a
requirement for medical surveillance. The proposed requirement for
medical examinations after exposure in an emergency is consistent with
several other OSHA health standards, including the standards for
chromium (VI) (29 CFR 1910.1026), methylenedianiline (29 CFR
1910.1050), butadiene (29 CFR 1910.1051), and methylene chloride (29
CFR 1910.1052).
    Paragraph (k)(1)(i)(D) would require medical surveillance to be
provided to employees who have been exposed to beryllium above 0.2
[mu]g/m\3\ for more than 30 days in a 12-month period for 5 years or
more. The five-years of exposure would not need to be consecutive to
satisfy this provision. OSHA included this provision to ensure that
these employees receive the low-dose helical tomography (CT scan, low-
dose computed tomography (LDCT), or CT screening) required by paragraph
(k)(3)(ii)(F) of the proposed standard, even if these employees have
not been exposed above 0.2 [mu]g/m\3\ in the previous 12-month period,
are not exhibiting signs and symptoms of CBD, and have not been exposed
in an emergency. The CT scan is a method of detecting tumors, and is
commonly used to diagnose lung cancer.
    Paragraph (k)(2) of the proposed standard specifies how frequently
medical examinations are to be offered to those employees covered by
the medical surveillance program. Under paragraph (k)(2)(i)(A),
employers would be required to provide each employee with a medical
examination within 30 days after the employee has worked in a regulated
area for more than 30 days in the past 12 months, unless the employee
has received a medical examination provided in accordance with this
standard within the previous 12 months. Paragraph (k)(2)(i)(B) requires
employers to provide medical examinations to employees exposed to
beryllium during an emergency, and to those who are showing signs or
symptoms of CBD, within 30 days of the employer becoming aware that
these employees meet the criteria of paragraph (k)(1)(i)(B) or (C).
Paragraph (k)(2)(i)(B) requires an examination without regard to
whether these employees received an exam in the previous 12 months.
    Paragraph (k)(2)(ii) of the proposed standard requires that
employers provide an examination annually (after the first examination
is made available) to employees who continue to meet the criteria of
paragraph (k)(1)(i)(A) or (B). This includes employees who have worked
in a regulated area for more than 30 days in the past 12 months and
employees who continue to exhibit signs and symptoms of CBD. The
requirement for annual examinations in paragraph (k)(2)(ii) means that
an examination must be made available at least once every 12 months.
    Employees exposed in an emergency, who are covered by paragraph
(k)(1)(i)(C), are not included in the annual examination requirement
unless they also meet the criteria of paragraph (k)(1)(i)(A) or (B),
because OSHA expects that most effects of exposure will be detected
during the medical examination provided within 30 days of the
emergency, pursuant to paragraph (k)(2)(i)(A). An exception to this is
beryllium sensitization, which OSHA believes may result from exposure
in an emergency, but may not be detected within 30 days of the
emergency. Thus, proposed paragraph (k)(3)(ii)(E) requires biennial
testing for beryllium sensitization for employees exposed in
emergencies. This paragraph is discussed in more detail later in this
section of the preamble. Employees covered by paragraph (k)(1)(i)(D)
are also not required to receive exams annually unless they also meet
the criteria of paragraph (k)(1)(i)(A) or (B).
    OSHA believes that the annual provision of medical surveillance,
and the biennial provision of beryllium sensitization testing and CT
scans for certain employees, are appropriate frequencies for screening
employees for beryllium-related diseases. The main goals of medical
surveillance for employees are to detect beryllium sensitization before
employees develop CBD, and to detect CBD, lung cancer, and other
adverse health effects at an early stage. The proposed requirement for
annual examinations is consistent with other OSHA health standards,
including those for chromium (VI) (29 CFR 1910.1026) and formaldehyde
(29 CFR 1910.1048). Based on the Agency's experience, OSHA believes
that annual surveillance and biennial tests for beryllium sensitization
and CT scans would strike a reasonable balance between the need to
diagnose health effects at an early stage, while being sufficiently
affordable for employers.
    Finally, proposed paragraph (k)(2)(iii) would require the employer
to offer a medical examination at the termination of employment, if the
departing employee meets the criteria of paragraph (k)(1)(i)(A), (B),
or (C) at the time the employee's employment is terminated. This would
apply to employees who worked in a regulated area for more than 30 days
during the previous 12 months, employees showing signs or symptoms of
CBD, and employees who were exposed to beryllium in an emergency at any
time during their employment. This proposed requirement is waived if
the employer provided the departing employee with an exam during the
six months prior to the date of termination. The provision of an exam
at termination is intended to ensure that no employee terminates
employment while carrying a detectable, but undiagnosed, health
condition related to beryllium exposure.
    Proposed paragraph (k)(3) details the contents of the examination.
Paragraph (k)(3)(i) would require the employer to ensure that the PLHCP
advises the employee of the risks and benefits of participating in the
medical surveillance program and the employee's right to opt out of any
or all parts of the medical examination. Benefits of participating in
medical surveillance may include early detection of adverse health
effects, and aiding intervention efforts to prevent or treat disease.
However, there may also be risks associated with medical testing for
some conditions, which the PLHCP should communicate to the employee.
    Paragraph (k)(3)(ii) then specifies that the medical examination
must consist of a medical and work history; a physical examination with
emphasis on the respiratory tract, skin breaks, and wounds; and
pulmonary function tests.

Special emphasis is placed on the portions of the medical and work
history focusing on beryllium exposure, health effects associated with
beryllium exposure, and smoking.
    The physical exam focuses on organs and systems known to be
susceptible to beryllium toxicity. For example, proposed paragraph
(k)(3)(ii)(C) focuses on the skin, and paragraph (k)(3)(ii)(D) focuses
on the lungs. The information obtained will allow the PLHCP and
supervising physician to assess the employee's health status, identify
adverse health effects related to beryllium exposure, and determine if
limitations should be placed on the employee's exposure to beryllium.
The proposed standard does not include a comprehensive list of specific
tests that must be part of the medical examination. OSHA does not
believe that any particular test--beyond those listed in paragraph
(k)(3)(ii)(D)-(F)--is necessarily applicable to all employees covered
by the medical surveillance requirements. The Agency proposes to give
the PLCHP the flexibility to determine any other appropriate tests to
be selected for a given employee, as provided in paragraph
(k)(3)(ii)(G).
    Under paragraph (k)(3)(ii)(E), an employee must be offered a BeLPT
(or a more reliable and accurate test for identifying beryllium
sensitization) at the employee's first examination, and then every two
years after the first examination unless the employee is confirmed
positive. The requirement to test for beryllium sensitization applies
whether or not an employee is otherwise entitled to a medical
examination in a given year. For example, for an employee exposed
during an emergency who would normally be entitled to 1 exam within 30
days of the emergency but not annual exams thereafter, the employer
must still provide this employee with a test for beryllium
sensitization every 2 years. This biennial requirement applies until
the employee is confirmed positive. OSHA believes that the biennial
testing required under paragraph (k)(3)(ii)(E) is adequate to monitor
employees that have the potential to develop sensitization while being
sufficiently affordable for employers.
    OSHA considers the BeLPT to be a reliable medical surveillance tool
for the purposes of a medical surveillance program. However, OSHA
considers two abnormal test results necessary to confirm a finding of
beryllium sensitization when using the BeLPT (``confirmed positive'').
Therefore, a BeLPT must also be offered within one month of an employee
receiving a single abnormal result. However, this requirement is waived
if a more reliable and accurate test becomes available that could
confirm beryllium sensitization based on one test result. OSHA requests
comment on how to determine whether a test is more reliable and
accurate than the BeLPT for identifying beryllium sensitization. OSHA
has included a non-mandatory appendix that describes the BeLPT,
discusses several studies of the BeLPT's validity and reliability, and
states criteria OSHA believes are important to judge a new test's
validity and reliability (Appendix A).
    Under paragraph (k)(3)(ii)(F), a CT scan must be offered to
employees who have been exposed to beryllium at concentrations above
0.2 [mu]g/m\3\ for more than 30 days in a 12-month period for 5 years
or more. The five years of exposure do not need to be consecutive. As
with the requirement for sensitization testing explained above, the CT
scan must be offered to an employee who meets the criteria of paragraph
(k)(1)(i)(D) without regard to whether the employee is otherwise
required to receive a medical exam in a given year. The CT scan must be
offered to employees who meet the criteria of paragraph (k)(1)(i)(D)
for the first time beginning on the start-up date of this standard, or
15 years after the employee's first exposure to beryllium above 0.2
[mu]g/m\3\ for more than 30 days in a 12-month period, whichever is
later. OSHA proposed the requirement for CT screening based in part on
the Agency's consideration of the draft recommended standard submitted
by industry and union stakeholders (Materion and USW, 2012).
    The CT scan requirement may be triggered by exposures that occurred
before or after the effective date of this standard, or a combination
of exposures before and after the effective date. This requirement may
also be triggered by exposures that occurred when the employee was
working for a different employer. An employer is required to offer a CT
scan to employees who meet the criteria of paragraph (k)(1)(i)(D) if
the employer has exposure records demonstrating that the employee meets
the criteria, regardless of whether the exposure records were generated
by the employer or given to the employer by the employee or a third
party.
    In a recent systematic review of CT screening trials for lung
cancer, Bach et al. found a significant (20 percent) mortality
reduction in the population studied (26,309 men and women between ages
55 and 74, with at least 30 pack-years of smoking history) (National
Lung Screening Trial, 2011). The benefits of screening for other
populations are less clear at this time. CT screening was not shown to
offer significant reduction in mortality in two other, smaller trial
populations with at least 20 pack-years of smoking history (DANTE,
2009; DLCST, 2012). In addition, there is yet to be agreement on how to
properly compute and set the radiation dose for LDCT. Clarification on
such procedural issues will help inform analyses of LDCT-associated
radiation exposure and its risks as part of a screening protocol for
employees exposed to occupational carcinogens (Christensen, 2014).
    OSHA seeks comment on the proposed requirement and whether it is
likely to benefit the beryllium-exposed employee population. As
appropriate, please submit information, studies and data to support
your comments.
    OSHA notes that another form of CT scanning, High Resolution
Computed Tomography (HRCT), is available and may be useful in screening
for CBD. In patients with CBD, HRCT scanning of the chest is more
sensitive than plain chest radiography in identifying abnormalities
(NAS, 2008). However, HRCT scans showing no signs consistent with CBD
have been reported in 25 percent of patients with biopsy-proven
noncaseating granulomas (Newman et al., 1994). OSHA seeks comment on
whether HRCT should be included in the list of diagnostic procedures a
CBD Diagnostic Center should be able to provide (see this Preamble at
Section XVIII, paragraph (b), Definitions).
    Other types of tests and examinations not mentioned in this
standard, including X-ray, arterial blood gas, diffusing capacity, and
oxygen desaturation during exercise, may also be useful in evaluating
the effects of beryllium exposure. In addition, medical examinations
that include more invasive testing, such as bronchoscopy, alveolar
lavage, and transbronchial biopsy, have been demonstrated to provide
additional valuable medical information. OSHA believes that the PLHCP
is in the best position to decide which medical tests are necessary for
each individual examined. Where specific tests are deemed appropriate
by the PLHCP, the proposed standard, at paragraph (k)(3)(ii)(G), would
require that they be provided.
    Proposed paragraph (k)(4) details which information must be
provided to the PHLCP. Specifically, the proposed standard would
require the employer to ensure the examining PLHCP has a copy of the
standard and all the appendices, and to provide to the examining PLHCP
the following information, if known or reasonably available to the
employer: a

description of the employee's former and current duties as they relate
to beryllium exposure ((k)(4)(i)); the employee's former and current
exposure levels ((k)(4)(ii)); a description of any personal protective
clothing and equipment, including respirators, used or to be used by
the employee, including when and for how long the employee has used
that clothing and equipment ((k)(4)(iii)); and information the employer
has obtained from previous medical examinations provided to the
employee, that is currently within the employer's control ((k)(4)(iv)).
OSHA believes making this information available to the PLHCP will aid
in the PLHCP's evaluation of the employee's health as it relates to the
employee's assigned duties and fitness to use personal protective
equipment, including respirators, when necessary. In order to protect
the employee's privacy, employee medical information may only be
provided to the PLHCP by the employer after the employee has signed a
medical release.
    Providing the PLHCP with exposure monitoring results, as required
under paragraph (k)(4)(ii), will assist the physician completing the
written medical opinion in determining if an employee is likely to be
at risk of adverse effects from beryllium exposure at work. A well-
documented exposure history would also assist the PLCHP in determining
if a condition (e.g., dermatitis, decrease in diffusing capacity, or
gradual changes in arterial blood gases) may be related to beryllium
exposure. See this preamble at section V, Health Effects, for a more
detailed discussion of the health effects associated with beryllium
exposure.
    Proposed paragraph (k)(5) would require employers to obtain a
written medical opinion from the licensed physician who performed or
directed the exam within 30 days of the examination. The purpose of
requiring the physician to supply a written opinion to the employer is
to provide the employer with a documented medical basis for the
employee's eligibility for medical removal, and to assess the
employee's ability to use protective clothing and equipment, including
respirators. In addition, provision of the written opinion to the
employer may alert the employer to sources of beryllium exposure or
problems with exposure controls at its worksite. OSHA believes the 30-
day period will allow the licensed physician sufficient time to receive
and consider the results of any tests included in the examination, and
allow the employer to take any necessary protective measures in a
timely manner. The proposed requirement that the opinion be in written
form is intended to ensure that employers and employees have the
benefit of the same information and that no information gets lost in
oral communications. OSHA requests comment on the relative merits of
the proposed standard's requirement that employers obtain the PLHCP's
written opinion or an alternative that would provide employees with
greater discretion over the information that goes to employers (see
this preamble at Section 1, Issues and Alternatives, Issue #26).
    Paragraphs (k)(5)(i)(A)-(C) of the proposed standard specify what
must be included in the licensed physician's written opinion. The first
item for inclusion is the licensed physician's opinion as to whether
the employee has any detected medical condition that would place the
employee at increased risk of CBD from further exposure. The standard
also proposes that the medical opinion include any recommended
limitations on the employee's exposure, including recommended use of,
and limitations on the use of, personal protective clothing or
equipment such as respirators.
    The licensed physician would also need to state in the written
opinion that the PLHCP has explained the results of the medical
examination to the employee, including the results of any tests
conducted, any medical conditions related to exposure that require
further evaluation or treatment, and any special provisions for use of
protective clothing or equipment, including respirators. Under proposed
paragraph (k)(5)(i)(C), OSHA anticipates that the employee will be
informed directly by the PLCHP of all results of his or her medical
examination, including conditions of non-occupational origin. Direct
consultation between the PLHCP and employee ensures that the employee
will receive all information about the employee's health status,
including non-occupationally related conditions that are not
communicated to the employer.
    Proposed paragraph (k)(5)(ii) would require the employer to ensure
that neither the licensed physician nor any other PLHCP reveals to the
employer findings or diagnoses which are unrelated to beryllium
exposure. OSHA has proposed this provision to reassure employees
participating in medical surveillance that they will not be penalized
or embarrassed as a result of the employer obtaining information about
them not directly pertinent to beryllium exposure. Paragraph
(k)(5)(iii) would also require the employer to provide a copy of the
licensed physician's written opinion to the employee within two weeks
after receiving it to ensure that the employee has been informed of the
results of the examination in a timely manner.
    Proposed paragraph (k)(6)(i) provides for the referral to a CBD
diagnostic center of any employee who is confirmed positive for
beryllium sensitization. Within 30 days after the employer learns of
the confirmed positive result, the employer must ensure that a licensed
physician designated by the employer consults with the employee about
referral to a CBD diagnostic center for further testing, to determine
whether a sensitized employee has CBD. If the employee chooses to
obtain a clinical evaluation at a CBD diagnostic center, the diagnostic
center must be agreed upon by the employer and the employee. The
employer and employee must make a good faith effort to agree on a CBD
diagnostic center that is acceptable to them both. Under paragraph
(k)(6)(ii), the employer is responsible for all costs associated with
testing performed at the center. The term CBD diagnostic center is
defined in proposed paragraph (b), and discussed in this section of the
preamble regarding proposed paragraph (b).
    Finally, under paragraph (k)(7), the employer would be required to
convey the results of the medical tests to OSHA for evaluation and
analysis at the request of the Assistant Secretary. The results of the
tests may be used to evaluate the nature, variability, reliability, and
relevance of the beryllium sensitization test results, to evaluate the
effectiveness of the beryllium standard in reducing beryllium-related
occupational disease, or for other scientific purposes. Results
conveyed to OSHA must first be stripped of employees' names, social
security numbers, and other identifying information.
    Employees of beryllium vendors who qualify for benefits under the
Energy Employees Occupational Illness Compensation Program Act
(EEOICPA) (42 U.S.C. 7384-7385s-15) and its implementing regulations
(20 CFR part 30) may also qualify for medical surveillance benefits
under this proposed standard. Covered medical surveillance provided to
eligible persons under the EEOICPA program is paid for by the federal
government.
    Employees covered by both the EEOICPA program and this proposed
standard would not be required to attend separate medical examinations
for the separate programs. Rather, these dual-coverage employees could
attend consolidated medical examinations at which they would receive
the services

required under both programs. These examinations would be paid for by
the federal government under the EEOICPA program to the extent that the
services provided are covered under the EEOICPA program. If this
proposed standard requires services that are not covered by the EEOICPA
program, the employer would be required to pay for these additional
services.
    As stated in the SBREFA Report, the medical surveillance section
``was the most controversial part of the draft standard for most SERs
and received the most comment'' (OSHA, 2008b). SERs generally were
concerned about the cost of medical surveillance, commenting that
surveillance is unnecessary for employees with low beryllium exposures
(OSHA, 2008b). The requirement of dermal triggers for medical
surveillance was confusing for SERs and led to a number of comments
(OSHA, 2008b). One SER suggested that the medical surveillance
requirements should be performance-based, which would allow employers
to determine which tests were appropriate for their employees (OSHA,
2008b). Use of the BeLPT was also controversial, given SERs' concerns
about its accuracy and costs (OSHA, 2008b). OSHA requests comment on
the proposed requirements for beryllium sensitization testing,
including issues raised in this preamble at section I, Issues and
Alternatives, and on the regulatory alternatives presented later in
this section.
    In response to these concerns, OSHA notes several changes made to
the regulatory text since the SBREFA panel was convened. In the
proposed standard, medical surveillance is limited to those employees
who have worked in a regulated area for more than 30 days per year in
the previous 12-month period, employees showing signs and symptoms of
CBD, employees exposed during emergencies, and employees who have been
exposed above 0.2 [mu]g/m\3\ for more than 30 days in a 12-month period
for five years or more. Requiring medical surveillance for employees
with exposures in a regulated area (i.e., with exposures above the TWA
PEL or STEL for more than 30 days in a year) should alleviate some
SERs' concerns that surveillance is not necessary for employees with
low exposures. Employees with exposures at or above the action level
but below the PEL are no longer included in medical surveillance,
unless they show signs or symptoms of CBD or were exposed during an
emergency. Since the SBREFA panel was held, OSHA has also removed the
requirement for medical surveillance based only on dermal exposure to
beryllium, eliminating the confusion caused by the dermal exposure
provision.
    These changes will result in fewer employees being eligible for
medical surveillance than were covered in the draft standard presented
to the SBREFA panel. The changes will thereby reduce costs to
employers. However, OSHA has preliminarily determined that a
significant risk of beryllium sensitization, CBD, and lung cancer exist
at exposure levels below the proposed PEL, and there is evidence that
beryllium sensitization can occur from short-term exposures (see this
preamble at Section V, Health Effects, and Section VIII, Significance
of Risk). The Agency therefore anticipates that some employees will
develop adverse health effects and may not receive the benefits of
early intervention in the disease process because they are not eligible
for medical surveillance (see this preamble at Section V, Health
Effects). Thus, OSHA is considering three regulatory alternatives that
would expand eligibility for medical surveillance to a broader group of
employees than those eligible in the proposed standard. Under
Regulatory Alternative #14, medical surveillance would be available to
employees who are exposed to beryllium above the proposed PEL,
including employees exposed for fewer than 30 days per year. Regulatory
Alternative #15 would expand eligibility for medical surveillance to
employees who are exposed to beryllium above the proposed action level,
including employees exposed for fewer than 30 days per year. Regulatory
Alternative #21 would extend eligibility for medical surveillance as
set forth in proposed paragraph (k) to all employees in shipyards,
construction, and general industry who meet the criteria of proposed
paragraph (k)(1). However, all other provisions of the standard would
be in effect only for employers and employees that fall within the
scope of the proposed rule. Most of these alternatives would provide
surveillance to fewer employees (and cost less to employers) than the
draft regulation presented to the SBREFA Panel, but would provide more
surveillance (and cost more to employers) than the medical surveillance
requirements in the current proposal.
    The SER who suggested allowing performance-based surveillance
stated that this would permit employers ``to design and determine what
tests were appropriate'' (OSHA, 2008b). OSHA is considering two
regulatory alternatives that would provide greater flexibility in the
program of tests provided as part of an employer's medical surveillance
program. Under Regulatory Alternative #16, employers would not be
required to offer employees testing for beryllium sensitization.
Regulatory Alternative #18 would eliminate the CT scan requirement from
the proposed rule.
    OSHA is evaluating these alternatives and has also included some
performance-based elements in its medical surveillance requirements
(e.g., (k)(3)(G)). However, the Agency has preliminarily determined
that the testing required by the proposed standard is necessary and
appropriate for the employees who must be offered medical surveillance.
OSHA believes it is important to detect cases of sensitization, CBD and
other beryllium-related health effects early so that employees can
quickly be removed from exposure, be provided appropriate protective
clothing and equipment, benefit from medical removal, and receive
treatment, as applicable. As discussed in this preamble at section
VIII, Significance of Risk, early intervention in the disease process
may slow or prevent progression to more advanced disease. Further, this
surveillance is particularly necessary in a standard such as this one,
where OSHA has preliminarily found a significant risk of material
impairment of health at the proposed PEL. OSHA requests comments on the
proposed requirements for sensitization testing, CT scans, and medical
examinations, and on Regulatory Alternatives #14 and #15 discussed
above.
    Finally, at least one SER commented that providing annual BeLPTs
would result in high costs with no added benefit to employees (OSHA,
2008b). As discussed previously, OSHA would also allow substitution of
a more accurate and reliable test for the BeLPT should such a test
become available. When this occurs, employers can choose to use
whichever test is less expensive. OSHA has also, in its proposed
standard, reduced the frequency of required BeLPTs (or other test
substituted for the BeLPT) to every two years, with follow-up tests for
employees who receive abnormal test results. This change would
significantly reduce the cost of testing, but would also delay early
detection of beryllium-related health effects and intervention to
prevent disease progression among employees in medical surveillance. In
addition, the longer the time interval between when an employee becomes
sensitized and when the employee's case is identified in the
surveillance program, the more difficult it will be to identify and
address the exposure conditions that led to the employee's
sensitization. Therefore, lengthening the time between

sensitization tests will diminish the usefulness of the surveillance
information in identifying and correcting problem areas and reducing
risks to other employees.
    The benefits of regular medical surveillance for beryllium-related
health effects and the costs of surveillance to employers are important
and complex factors in the proposed standard, and OSHA requests
feedback from the regulated and medical communities to help determine
the most appropriate schedule for periodic testing. In particular, the
Agency requests comments on several alternatives to the proposed
frequency of sensitization testing, CT scans, and general medical
examinations. Regulatory alternative #17 would require employers to
offer annual testing for beryllium sensitization to eligible employees,
as in the draft proposal presented to the SBREFA panel. Regulatory
Alternative #19 would similarly increase the frequency of periodic CT
scans from biennial to annual scans. Finally, under Regulatory
Alternative #20, all periodic components of the medical surveillance
exams would be available biennially to eligible employees. Instead of
requiring employers to offer eligible employees a medical examination
every year, employers would be required to offer eligible employees a
medical examination every other year. The frequency of testing for
beryllium sensitization and CT scans would also be biennial for
eligible employees, as in the proposed standard. For all comments on
the medical surveillance provisions of the proposed standard, please
provide an explanation of your position, and supporting data or studies
as appropriate.
(l) Medical Removal Protection
    Paragraph (l) of the proposed rule contains the provisions related
to medical removal protection (MRP). Proposed paragraph (l)(1) explains
that employees in jobs with exposure at or above the action level
become eligible for medical removal when they are diagnosed with CBD or
confirmed positive for beryllium sensitization. These medical findings
may be made pursuant to the surveillance requirements of proposed
paragraph (k). The terms ``CBD'' and ``confirmed positive'' are defined
in proposed paragraph (b).
    Proposed paragraph (l)(1) is in keeping with OSHA's provisions for
MRP in past standards, where the Agency has specified objective removal
criteria. For example, the Lead standard (29 CFR 1910.1025) requires
that an employee be removed from exposure at or above the action level
when an employee's blood lead concentration exceeds a certain value.
Similarly, the Cadmium standard (29 CFR 1910.1027) includes objective
biological monitoring criteria that trigger removal.
    Paragraph (l)(2) lays out the options for employees who are
eligible for MRP. Specifically, paragraph (l)(2)(i) would permit
eligible employees to choose removal as described under proposed
paragraph (l)(3), and proposed paragraph (l)(2)(ii) would permit them
to remain in a job with exposure at or above the action level and wear
a respirator in accordance with the Respiratory Protection standard (29
CFR 1910.134). Eligible employees must choose one of these two options.
OSHA requests comment on whether the standard should establish a
timeframe in which eligible employees must choose one of the options in
paragraph (l)(3) (such as within 7 days, 14 days, or 30 days), and
whether the standard should require the employee to wear a respirator
if the employee fails to choose one of the options within the specified
timeframe.
    Proposed paragraph (l)(3) describes eligible employees' removal
options. When an employee chooses removal, the employer is required to
remove the employee to comparable work if such work is available.
Comparable work is a position for which the employee is already
qualified or can be trained within one month, in an environment where
beryllium exposure is below the action level. Comparable work would not
require the employee to use a respirator, although the employee may
choose to use a respirator to minimize beryllium exposure. An employer
is not required to place an employee on paid leave if the employee
refuses comparable work offered under paragraph (l)(3)(i). An employee
must be transferred to comparable work, trained for comparable work, or
placed on paid leave immediately after choosing removal.
    If comparable work is not immediately available, paragraph
(l)(3)(ii) would require the employer to place the employee on paid
leave for six months or until comparable work becomes available,
whichever occurs first. If comparable work becomes available before the
end of the six month paid leave period, the employer is obligated to
offer the open position to the employee. Should the employee decline,
the employer has no further obligation to continue the paid leave.
    Proposed paragraph (l)(3)(iii) would continue a removed employee's
rights and benefits for six months, regardless of whether the employee
is removed to comparable work or placed on paid leave. The six month
period would begin when the employee is removed, which means either the
day the employer transfers the employee to comparable work, or the day
the employer places the employee on paid leave. For this period, the
provision would require the employer to maintain the employee's base
earnings, seniority, and other rights and benefits of employment as
they existed at the time of removal. This provision is typical of
medical removal provisions in other OSHA standards, such as Cadmium (29
CFR 1910.1027) and Benzene (29 CFR 1910.1028).
    Paragraph (l)(4) would reduce an employer's obligation to provide
MRP benefits to a removed employee if, and to the extent that, the
employee receives compensation from a publicly or employer-funded
compensation program for earnings lost during the removal period, or
receives income from another employer made possible by virtue of the
employee's removal. Benefits received under the Energy Employees
Occupational Illness Compensation Program Act (EEOICPA) do not
constitute wage replacement, and therefore would not offset the
employee's medical removal benefits under this proposed standard.
    By protecting an employee's rights and benefits during the first
six months of removal, and by reducing in certain circumstances an
employer's obligation to compensate employees for earnings lost, OSHA
emphasizes that MRP is not intended to serve as a workers' compensation
system. The primary reason MRP has been included in this standard is to
provide eligible employees a six-month period to adjust to the
comparable work arrangement or seek alternative employment, without any
further exposure at or above the action level.
    The prospect of a medical removal provision concerned some SERS.
Some stated that there is no evidence that removing sensitized
employees will change their health outcomes (OSHA 2008b). Others
commented that they did not believe medical removal was appropriate
because neither sensitization nor CBD is reversible (OSHA 2008b).
    OSHA believes that medical removal is an important means of
protecting employees who have become sensitized or developed CBD, and
is an appropriate means to enable them to avoid further exposure. The
scientific information on effects of exposure cessation is limited at
this time, but the available evidence suggests that removal from
exposure can be beneficial for individuals who are

sensitized or have early-stage CBD (see this preamble at section VIII,
Significance of Risk). As discussed in the Health Effects section of
this preamble, section V, only those who are sensitized can develop
CBD. As CBD progresses, symptoms become serious and debilitating.
Steroid treatment is less effective at later stages, once fibrosis has
developed (see this preamble at section VIII, Significance of Risk).
Given the progressive nature of the disease, OSHA believes it is
reasonable to conclude that removal from exposure to beryllium will
benefit sensitized employees and those with CBD.
    There is widespread support for removal of individuals with
sensitization or CBD from further beryllium exposure in the medical
community and among other experts in beryllium disease prevention and
treatment. Physicians at National Jewish, one of the main CBD research
and treatment sites in the US, ``consider it important and prudent for
individuals with beryllium sensitization and CBD to minimize their
exposure to airborne beryllium,'' and ``recommend individuals diagnosed
with beryllium sensitization and CBD who continue to work in a
beryllium industry to have exposure of no more than 0.01 micrograms per
cubic meter of beryllium as an 8-hour time-weighted average'' (National
Jewish site on Chronic Beryllium Disease: Work Environment Management,
accessed May 2013). The Department of Energy included MRP in its
Chronic Beryllium Disease Prevention Program (10 CFR part 850), stating
that without MRP, employers would be ``free to maintain high-risk
workers in their current jobs, which would not be sufficiently
protective of their health'' (64 FR 68894, December 8, 1999). MRP is
included in the recommended beryllium standard that beryllium industry
and union stakeholders submitted to OSHA in 2012 (Materion and United
Steelworkers, 2012).
    OSHA believes that MRP also improves the medical surveillance
program described in proposed paragraph (k). Paragraph (k)(1)(i)(B)
requires medical examinations for employees showing signs or symptoms
of CBD. The success of that program will depend in part on employees'
willingness to report their symptoms, submit to examinations, respond
to questions, and comply with instructions. Guaranteeing paid leave or
comparable work can help allay an employee's fear that a CBD diagnosis
will negatively affect earnings or career prospects. MRP encourages
employees to report their symptoms and seek treatment, as OSHA has
previously recognized when including medical removal in regulations
governing the exposure to lead (43 FR 52973, November 14, 1978),
benzene (52 FR 34557, September 11, 1987), and cadmium (57 FR 42367-68,
September 14, 1992). This reasoning was also cited by the Department of
Energy in support of the medical removal provisions of its Chronic
Beryllium Disease Prevention Program, stating that the availability of
medical removal benefits encourages worker participation and
cooperation in medical surveillance (64 FR 68893, December 8, 1999).
    MRP also provides an incentive for employers to keep employee
exposures low. The risk of developing CBD or beryllium sensitization
decreases at lower exposures (see this preamble at section VI,
Preliminary Risk Assessment), meaning that employers can improve their
chances of avoiding MRP costs by lowering employee exposure levels.
OSHA previously noted this incentive when describing MRP provisions in
the Lead standard (43 FR 52973, November 14, 1978) and the Cadmium
standard (57 FR 42368, September 14, 1992).
    Finally, OSHA's preliminary risk assessment indicates that
significant risk remains at the proposed TWA PEL (see this preamble at
section VI, Preliminary Risk Assessment). MRP offers additional
protection for situations in which workers develop CBD or beryllium
sensitization despite exposures at or below the PEL. As discussed above
regarding the definition of ``action level'' in paragraph (b), if OSHA
finds a continuing exposure risk at the PEL, it has the authority to
impose additional feasible requirements on employers to further reduce
risk when those requirements will result in a greater than minimal
incremental benefit to workers' health (Asbestos II, 838 F.2d at 1274).
    During the SBREFA process, SERs commented that small entities may
lack the flexibility and resources to provide comparable positions for
MRP-eligible employees (OSHA 2008b). The SBREFA Panel recommended that
OSHA give careful consideration to the impacts that an MRP requirement
could have on small businesses (OSHA, 2008b). In response to this
recommendation, the Agency has provided flexibility in how employers
may comply with MRP requirements. Where employers have no comparable
positions in environments with exposures below the action level, the
proposed standard permits an employer to place eligible employees on
paid leave for six months, or until comparable work becomes available.
Under proposed paragraph (l)(4), if an employee is placed on paid leave
and receives government or employer-provided compensation, or such paid
leave allows the employee to secure other work, the original employer's
compensation obligations would be offset. Also in response to the
Panel's recommendations, OSHA analyzed Regulatory Alternative #22,
which would eliminate the proposed requirement to offer MRP to
employees with beryllium sensitization or CBD.
    Finally, OSHA notes that there is considerable scientific
uncertainty about the effects of exposure cessation on the development
of CBD among sensitized individuals and the progression from early-
stage to late-stage CBD. Members of the medical community support
removal from beryllium exposure as a prudent step in the management of
beryllium sensitization and disease. For example, physicians at
National Jewish Medical Center, a leading organization in CBD research
and treatment, recommend individuals diagnosed with beryllium
sensitization and CBD who continue to work in a beryllium industry to
have exposure of no more than 0.01 micrograms per cubic meter of
beryllium as an 8-hour TWA (http://www.nationaljewish.org/healthinfo/conditions/beryllium-disease/environment-management/). However, the
scientific literature on the effects of exposure cessation is limited.
It suggests that removal from exposure can have beneficial effects for
some individuals, but provides no conclusive evidence on whether
exposure cessation will prevent CBD or CBD progression for most people
(see this preamble at Section V, Health Effects, and Section VIII,
Significance of Risk).
    OSHA proposes to include MRP in the beryllium standard, providing
workers with sensitization or CBD the opportunity and means to minimize
their further exposure to beryllium via MRP in keeping with the
recommendation of beryllium specialists in the medical community and
with the draft recommended standard provided by union and industry
stakeholders (Materion and Steelworkers, 2012).
    OSHA solicits comments on the health effects of MRP and the
proposed provisions for MRP. Is MRP an appropriate means of
intervention in the disease process for workers with beryllium
sensitization or CBD? Do the proposed MRP provisions appropriately
balance SBREFA commenters' concerns with the need to reduce beryllium
exposure for employees with

sensitization or CBD? Please comment on whether MRP should be included
in the standard (Regulatory Alternative #22). Please explain your
positions on these issues and provide any relevant data or studies.
(m) Communication of Hazards to Employees
    Paragraph (m) of this proposal sets forth the employer's
obligations to comply with OSHA's Hazard Communication standard
(HCS)(29 CFR 1910.1200), and to take additional steps to warn and train
employees about the hazards of beryllium.
    Paragraph (m)(1)(i) of this proposal requires chemical
manufacturers, importers, distributors, and employers to comply with
all applicable requirements of the HCS for beryllium. As described in
this preamble at section V, Health Effects, and section VI, Preliminary
Beryllium Risk Assessment, OSHA considers beryllium a hazardous
chemical.
    In classifying the hazards of beryllium, the employer must address
at least the following: Cancer; lung effects (chronic beryllium disease
and acute beryllium disease); beryllium sensitization; skin
sensitization; and skin, eye, and respiratory tract irritation
(paragraph (m)(1)(ii)). According to the HCS, employers must classify
hazards if they do not rely on the classifications of chemical
manufacturers, importers, and distributors (see 29 CFR
1910.1200(d)(1)).
    Paragraph (m)(1)(iii) requires that employers include beryllium in
the hazard communication program established to comply with the HCS,
and ensure that each employee has access to labels on containers and
safety data sheets for beryllium and is trained in accordance with the
HCS and paragraph (m)(4) of this proposal.
    According to paragraph (e)(1)(ii) of this proposal, employers must
establish and maintain regulated areas wherever employees are or can
reasonably be expected to be exposed to beryllium at levels above the
TWA PEL or STEL, and each employee entering a regulated area must wear
a respirator and protective clothing and equipment in accordance with
paragraphs (g) and (h) of this standard. Under paragraph (m)(2) of this
proposal, employers must provide and display warning signs at each
approach to a regulated area so that each employee is able to read and
understand the signs and take necessary protective steps before
entering the area. Employers must ensure that warning signs required by
paragraph (m)(2) are legible and readily visible, and that they bear
the following legend:

    Danger; Beryllium; May Cause Cancer; Causes Damage to Lungs;
Authorized Personnel Only; Wear respiratory protection and
protective clothing and equipment in this area.

    Some SERs objected to having cancer warnings displayed on the
legends for warning signs and labels. They expressed the opinion that
cancer warnings would unnecessarily scare customers and employees.
Further, they alleged evidence for beryllium causation of cancer was
not sufficient (OSHA, 2008b). OSHA disagrees with these comments. OSHA
has thoroughly reviewed the literature for beryllium carcinogenicity,
and has preliminarily concluded that beryllium is carcinogenic. OSHA's
finding that inhaled beryllium causes lung cancer is based on the best
available epidemiological data, reflects evidence from animal and
mechanistic research, and is consistent with the conclusions of other
government and public health organizations (see this preamble at
section V, Health Effects). For example, the International Agency for
Research on Cancer (IARC), National Toxicology Program (NTP), and
American Conference of Governmental Industrial Hygienists (ACGIH) have
all classified beryllium as a known human carcinogen (IARC, 2009). OSHA
believes that the weight of evidence is sufficient to support the
requirement for cancer warnings on signs and labels.
    The signs required by paragraph (m)(2) of this proposal are
intended to serve as a warning to employees and others who may not be
aware that they are entering a regulated area, and to remind them of
the hazards of beryllium so that they take necessary protective steps
before entering the area. These signs are also intended to supplement
the training that employees must receive regarding the hazards of
beryllium, since even trained employees need to be reminded of the
locations of regulated areas and of the precautions necessary before
entering these dangerous areas (see paragraph (m)(4) of this proposal
and 29 CFR 1910.1200(h) for training requirements).
    The use of warning signs is important to make employees who are
regularly scheduled to work at these sites aware of beryllium hazards,
to alert employees who have limited access to these sites of beryllium
hazards, and to warn those who do not have access to regulated areas to
avoid the area. Access must be limited to authorized personnel to
ensure that those entering the area are adequately trained and
equipped, and to limit exposure to those whose presence is absolutely
necessary. By limiting access to authorized persons, employers can
minimize employee exposure to beryllium in regulated areas and thereby
minimize the number of employees that may require medical surveillance
or be subject to the other requirements in this proposal associated
with working in a regulated area.
    Paragraph (m)(2) specifies the wording of the warning signs for
regulated areas in order to ensure that the proper warning is
consistently given to employees, and to notify employees that
respirators and personal protective clothing and equipment are required
in the regulated area. OSHA believes that the use of the word
``Danger'' is appropriate, based on the evidence of the toxicity of
beryllium. ``Danger'' is used to attract the attention of employees to
alert them to the fact that they are entering an area where the TWA PEL
or STEL may be exceeded, and to emphasize the importance of the message
that follows. The use of the word ``Danger'' is also consistent with
other OSHA health standards dealing with toxins such as cadmium (29 CFR
1910.1027), methylenedianiline (29 CFR 1910.1050), asbestos (29 CFR
1910.1001), and benzene (29 CFR 1910.1028). In addition, use of the
word ``Danger'' for this chemical is consistent with the Globally
Harmonized System of Classification and Labeling of Chemical guidelines
(GHS) (77 FR 17740-48, March 26, 2012). In the Federal Register notice
for the revised HCS, which incorporates the GHS, OSHA explains that for
substance-specific standards, warning signs must be as consistent as
possible with label information for that substance (Id.).
    Paragraph (m)(3) requires that labels be affixed to all bags and
containers of clothing, equipment, and materials visibly contaminated
with beryllium. The term ``materials'' includes waste, scrap, debris,
and any other items visibly contaminated with beryllium that are
consigned for disposal or recycling (see paragraphs (h)(2)(iv) and (v)
and (j)(3)(i) through (iii)). The labels must state:

    Danger; Contains Beryllium; May Cause Cancer; Causes Damage to
Lungs; Avoid Creating Dust; Do Not Get on Skin.

    The purpose of this labeling requirement is to ensure that all
affected employees, not only the employees of a particular employer,
are apprised of the presence of beryllium-containing materials and the
hazardous nature of beryllium exposure. With this knowledge, employees
can take steps to protect themselves through proper work practices
established by their employers. Employees are also better able to alert
their employers if they

believe exposures or skin contamination can occur.
    As discussed previously, these labeling requirements are consistent
with the HCS, which requires classification of hazardous chemicals and
labeling appropriate for the classification (see 77 FR 17740-48, March
26, 2012). In addition, these requirements for labeling are consistent
with the mandate of section (6)(b)(7) of the OSH Act, which requires
that OSHA health standards prescribe the use of labels or other
appropriate forms of warning to apprise employees of the hazards to
which they are exposed.
    Paragraph (m)(4) contains requirements for employee information and
training, and applies to all employees who are or can reasonably be
expected to be exposed to airborne beryllium. Employers must ensure
that employees receive information and training in accordance with the
requirements of the HCS (29 CFR 1910.1200(h)), including specific
information on beryllium as well as any other hazards addressed in the
workplace hazard communication program. Under the HCS, employers must
provide their employees with information such as the location and
availability of the written hazard communication program, including
lists of hazardous chemicals and safety data sheets, and the location
of operations in their work areas where hazardous chemicals are
present. The HCS also requires employers to train their employees on
ways to detect the presence or release of hazardous chemicals in the
work area such as any monitoring conducted, the physical and health
hazards of the chemicals in the work area, measures employees can take
to protect themselves, and the details of the employer's hazard
communication program (29 CFR 1910.1200(h)(3)).
    Under paragraph (m)(4)(i)(B), training must be provided to each
employee by the time of initial assignment, which means before the
employee's first day of work in a job that could reasonably be expected
to involve exposure to airborne beryllium. This training must be
repeated at least annually thereafter ((m)(4)(i)(C)). OSHA believes
that annual retraining is necessary due to the hazards of beryllium
exposure, and for reinforcement of employees' knowledge of those
hazards. The annual training requirement is consistent with other OSHA
standards such as those for lead (29 CFR 1910.1025), cadmium (29 CFR
1910.1027), benzene (29 CFR 1910.1028), coke oven emissions (29 CFR
1910.1029), cotton dust (29 CFR 1910.1043), and butadiene (29 CFR
1910.1051).
    Paragraph (m)(4)(ii) requires the employer to ensure that each
employee who is or can reasonably be expected to be exposed to airborne
beryllium can demonstrate knowledge of nine enumerated categories of
information (see paragraph (m)(4)(ii)(A)--(I)). Providing information
and training on these topics is essential to informing employees of
current hazards and explaining how to minimize potential health hazards
associated with beryllium exposure. As part of an overall hazard
communication program, training serves to explain and reinforce the
information presented on labels and safety data sheets. These written
forms of communication will be most effective when employees understand
the information presented and are aware of how to avoid or minimize
exposures, thereby reducing the possibility of experiencing adverse
health effects. Training should lead to better work practices and
hazard avoidance.
    The training requirements in paragraph (m)(4)(ii) are performance-
oriented. This paragraph lists the topics that training must address,
but does not prescribe specific training methods. OSHA believes that
the employer is in the best position to determine how to conduct
training that imparts knowledge and promotes retention. Appropriate
training may include video, DVD or slide presentations; classroom
instruction; hands-on training; informal discussions during safety
meetings; written materials; or a combination of these methods. This
performance-oriented approach is intended to encourage employers to
tailor training to the needs of their workplaces, thereby resulting in
the most effective training program in each individual workplace.
    For training to be effective, the employer must ensure that it is
provided in a manner that each employee is able to understand. OSHA
recognizes that employees have varying education levels, literacy
levels, and language skills, and is requiring that they receive
training in a language and at a level of complexity that accounts for
these differences. This may require, for example, providing materials,
instruction, or assistance in Spanish rather than English if the
employees being trained are Spanish-speaking and do not understand
English well. The employer would not be required to provide training in
the employee's preferred language if the employee understands both
languages; as long as the employee is able to understand the language
used, the intent of the proposed standard would be met.
    To ensure that employees comprehend the material presented during
training, it is critical that trainees have the opportunity to ask
questions and receive answers if they do not fully understand the
material that is presented to them. When video presentations or
computer-based programs are used, employers may meet this requirement
by having a qualified trainer available to address questions after the
presentation, or providing a telephone hotline so that trainees will
have direct access to a qualified trainer.
    In addition to being performance-oriented, these training
requirements are also results-oriented. Paragraph (m)(4)(ii) requires
employers to ensure that affected employees can demonstrate knowledge
of the nine topics enumerated in paragraph (m)(4)(ii)(A) through (I).
Accordingly, employers must ensure that employees participate in and
comprehend the training, and are able to demonstrate knowledge of the
specified topics. Some examples of methods to ensure knowledge are
discussions of the required training subjects, written tests, or oral
quizzes. Although the standard only requires annual retraining,
employers must ensure that employees can demonstrate up-to-date
knowledge of the listed topics at all times.
    Paragraph (m)(4)(iii) requires employers to provide additional
training, even if a year has not passed since the previous training,
when workplace changes (such as modification of equipment, tasks, or
procedures) result in new or increased employee exposure that exceeds
or can reasonably be expected to exceed either the TWA PEL or the STEL.
Some examples of changes in work conditions triggering the requirement
for additional training include changes in work production operations
or personnel that affect the way employees operate equipment.
Additional training would also be required if employers introduce new
production or personal protective equipment where employees do not yet
know how to properly use the new equipment. Misuse of either the new
production equipment or PPE could result in new exposures above the TWA
PEL or STEL. As another example, employers must provide additional
training before employees repair or upgrade engineering controls if
exposures during these activities will exceed or can reasonably be
expected to exceed either the TWA PEL or the STEL. OSHA believes the
additional training requirement in this proposal is essential because
it ensures that employees are able to actively participate in
protecting themselves under the conditions found in the workplace, even
if those conditions change.

    Paragraph (m)(5) requires that employers make copies of the
standard and its appendices readily available at no cost to each
employee and designated employee representative. This requirement
ensures that employees and their representatives have direct access to
regulations affecting them, and knowledge of the protective measures
employers must take on employees' behalf.
    Commenters to both the RFI and SBREFA recognized the importance of
educating and training their employees about the hazards of beryllium
exposure. In commenting on an earlier OSHA draft standard for beryllium
during the SBREFA process, several companies (e.g., Morgan Bronze
Products, Precision Stamping, and Mid Atlantic Coatings) supported
training that was understandable to the employee. They agreed that
employees should be able to demonstrate knowledge of health hazards
associated with beryllium exposure, and the medical surveillance
program as described in paragraph (k) of this section. They also
supported additional training when exposures exceed the PEL (OSHA
2008b). Most SERs reported already training their employees about
beryllium risks and how employees can protect themselves (OSHA, 2008b).
OSHA agrees with comments supporting the necessity of training, and in
order to assist in the development of training programs, intends to
develop outreach materials and other guidance materials.
(n) Recordkeeping
    Paragraph (n) of the proposed standard requires employers to
maintain records of exposure measurements, historical monitoring data,
objective data, medical surveillance, and training. The recordkeeping
requirements are proposed in accordance with section 8(c) of the OSH
Act (29 U.S.C. 657(c)), which authorizes OSHA to require employers to
keep and make available records as necessary or appropriate for the
enforcement of the Act or for developing information regarding the
causes and prevention of occupational injuries and illnesses. The
proposed recordkeeping provisions are also consistent with OSHA's
standard addressing access to employee exposure and medical records (29
CFR 1910.1020).
    Proposed paragraph (n)(1)(i) requires employers to keep records of
all measurements taken to monitor employee exposure to beryllium as
required by paragraph (d) of this standard. Paragraph (n)(1)(ii) would
require that such records include the following information: The date
of measurement for each sample taken; the operation involving exposure
to beryllium that was monitored; the sampling and analytical methods
used and evidence of their accuracy; the number, duration, and results
of samples taken; the types of respiratory protection and other
personal protective equipment used; and the name, social security
number, and job classification of each employee represented by the
monitoring, indicating which employees were actually monitored.
    These requirements are consistent with those found in other OSHA
standards, such as those for methylene chloride (29 CFR 1910.1052) and
chromium (VI) (29 CFR 1910.1026). These standards, like most of OSHA's
substance-specific standards, require that exposure monitoring and
medical surveillance records include the employee's social security
number. OSHA has included this requirement in the past because social
security numbers are particularly useful in identifying employees,
since each number is unique to an individual for a lifetime and does
not change when an employee changes employers. When employees have
identical or similar names, identifying employees solely by name makes
it difficult to determine to which employee a particular record
pertains. However, based on privacy concerns, OSHA examined
alternatives to requiring social security numbers for employee
identification as part of its Standards Improvement Project-Phase II
(``SIPs'') Final Rule. The Agency analyzed public comment on the
necessity, usefulness, and effectiveness of social security numbers as
a means of identifying employee records. OSHA also analyzed comments
regarding privacy concerns raised by this requirement, as well as the
availability of other effective methods of identifying employees for
OSHA recordkeeping purposes. Comments were divided regarding whether
social security information should be retained for exposure and medical
records. The Agency examined the comments and decided not to take any
action in the SIPs final rule regarding the use of social security
numbers because the conflicting comments all raised significant
concerns, and OSHA wished to study the issue further. (See 70 FR 1112,
1126-27, March 7, 2005).
    In this rulemaking, OSHA proposes to continue to require the use of
social security numbers. OSHA emphatically recommends against
distributing or posting employees' social security numbers with
monitoring results. OSHA welcomes comment on this issue.
    Proposed paragraph (n)(2) addresses historical monitoring data.
Paragraph (n)(2)(i) would require employers to establish and maintain
an accurate record of any historical monitoring data used to satisfy
the initial monitoring requirements in paragraph (d)(2) of this
standard. As explained earlier in this preamble, paragraph (d)(2)
permits employers to substitute beryllium monitoring results obtained
at an earlier time for the initial monitoring requirements, as long as
employers abide by the criteria specified. Paragraph (n)(2)(ii)
requires the employer to establish and maintain records or documents
showing that the criteria discussed in paragraph (d)(2) are met. This
would mean documenting the workplace conditions present when the
historical data were collected, for purposes of showing that those
conditions closely resemble the conditions present in the employer's
current operations. Employers should also document the dates of
reliance on the historical data as well as the dates on which the
historical data were collected.
    Proposed paragraph (n)(3) addresses objective data. Proposed
paragraph (n)(3)(i) requires employers to establish and maintain
accurate records of the objective data relied upon to satisfy the
requirement for initial monitoring in proposed paragraph (d)(2). Under
proposed paragraph (n)(3)(ii), the record must contain the following
information: The data relied upon; the beryllium-containing material in
question; the source of the data; a description of the operation
exempted from initial monitoring and how the data support the
exemption; and other information demonstrating that the data meet the
requirements for objective data in accordance with paragraph (d)(2).
Such other information may include reports of engineering controls,
work area layout and dimensions, and natural air movements pertaining
to the data and current conditions.
    Since historical and objective data may be used to exempt the
employer from certain types of monitoring, as specified in paragraph
(d), it is critical that the use of these types of data be carefully
documented. Historical and objective data are intended to provide the
same degree of assurance that employee exposures have been correctly
characterized as would exposure monitoring. The records must
demonstrate a reasonable basis for conclusions drawn from the data.
    Under proposed paragraph (n)(4)(i) employers must establish and
maintain accurate medical surveillance records for each employee
covered by the

medical surveillance requirements of the standard in paragraph (k).
Paragraph (n)(4)(ii) lists the categories of information that an
employer would be required to record: the employee's name, social
security number, and job classification; a copy of all physicians'
written opinions; and a copy of the information provided to the PLHCP
as required by paragraph (k)(4) of this standard.
    OSHA believes that medical records, like exposure records, are
necessary and appropriate. Medical records document the results of
medical surveillance and the screening of employees. Employers can use
the information contained in the records to identify and adjust
hazardous workplace conditions and mitigate exposures. Employees can
use these records to make informed decisions regarding medical
surveillance and medical removal. PLHCPs would have the records to use
in any further employee consultations or in making recommendations at a
later time. In sum, medical records play an important part in properly
evaluating the effects of beryllium exposure on employees' health.
    Paragraph (n)(5)(i) would require that employers prepare and
maintain records of any training required by this standard. At the
completion of training, the employer would be required to prepare a
record that indicates the name, social security number, and job
classification of each employee trained; the date the training was
completed; and the topic of the training. This record maintenance
requirement would also apply to records of annual retraining or
additional training as described in paragraph (m)(4).
    Proposed paragraphs (n)(1) through (4) require employers to
maintain exposure measurements, historical monitoring data, and medical
surveillance records, respectively, in accordance with OSHA's Records
Access standard (29 CFR 1910.1020). That standard, specifically 29 CFR
1910.1020(d), requires employers to ensure the preservation and
retention of exposure and medical records. Exposure measurements and
historical monitoring data are considered employee exposure records
that must be maintained for at least 30 years in accordance with 29 CFR
1910.1020(d)(1)(ii). Medical surveillance records must be maintained
for at least the duration of employment plus 30 years in accordance
with 29 CFR 1910.1020(d)(1)(i).
    Proposed paragraph (n)(5)(ii) requires employers to retain training
records, including records of annual retraining or additional training
required under this standard, for a period of three years after the
completion of the training. OSHA believes that the retention period for
training records is reasonable for documentation purposes. The three
year period for the maintenance of training records is consistent with
the Bloodborne Pathogens standard (29 CFR 1910.1030). Other OSHA
standards require training records to be kept for one year beyond the
last date of employment (e.g., Asbestos (29 CFR 1910.1001),
Methylenedianiline in construction (29 CFR 1926.60), and Asbestos in
construction (29 CFR 1926.1101)).
    These maintenance provisions, as well as the access requirements
discussed below, ensure that records are available to employees so that
they may examine the employer's exposure measurements, historical
monitoring data, and objective data, as well as medical surveillance
and training records, and evaluate whether employees are being
adequately protected. Moreover, compliance with the requirement to
maintain records of exposure data will enable the employer to show, at
least for the duration of the retention-of-records period, that the
requirements of this standard were carried out appropriately. For
example, maintenance of these types of data could protect employers
from allegations of violating paragraph (d)(2). The lengthy record
retention period is necessitated by the long latency period commonly
associated with diseases such as chronic beryllium disease and cancer
(see this preamble at section V, Health Effects).
    Paragraph (n)(6) requires that all records mandated by this
standard must be made available for examination and copying to the
Assistant Secretary, the Director of NIOSH, each employee, and each
employee's designated representative as stipulated by OSHA's Records
Access standard (29 CFR 1910.1020).
    Paragraph (n)(7) requires that employers comply with the Records
Access standard regarding the transfer of records. Specifically, the
requirements for the transfer of records are explained in 29 CFR
1910.1020(h), which instructs employers either to transfer records to
successor employers or, if there is no successor employer, to inform
employees of their access rights at least three months before the
cessation of the employer's business.
    Commenters to the RFI fully endorsed the need for the collection
and maintenance of health-related records dealing with beryllium
exposure, as well as those for employee hazard training (Brush Wellman,
2003). No comments were received in opposition to the need for such
recordkeeping. However, one commenter suggested that most dental labs
will not have any incentive to comply with the recordkeeping
requirements because they have fewer than ten employees and therefore
would not be subject to OSHA audits of their records. The commenter
noted that OSHA will have difficulty measuring the effectiveness of the
standard if small businesses do not keep accurate records (OSHA,
2007a). OSHA does not intend to exempt small businesses from the
recordkeeping requirements in this proposal because the Agency believes
the severity of disease resulting from beryllium exposure is great
enough to justify requiring small businesses to maintain employee
health records in accordance with this proposal. Also, recordkeeping
for fewer employees should be less resource-intensive than for a larger
organization. OSHA requests comment on the appropriateness of the
proposed recordkeeping requirements.
(o) Dates
    According to paragraph (o), this standard will become effective 60
days after the publication of the final rule in the Federal Register.
OSHA intends for this period to allow affected employers the
opportunity to familiarize themselves with the standard and to make
preparations in order to be in compliance by the start-up dates. Under
paragraph (o)(2), employer obligations to comply with most requirements
of the final rule would begin 90 days after the effective date (150
days after publication of the final rule). This additional time period
is designed to allow employers to complete initial exposure assessments
or otherwise make exposure determinations by use of historical or
objective data, to establish regulated areas, to obtain appropriate
work clothing and equipment, and to comply with other provisions of the
rule.
    There are two exceptions to the normal start-up intervals--
establishing change rooms and implementing engineering controls--that
provide additional time for employers to comply. Change rooms are
required no later than one year after the effective date of the
standard, and engineering controls need to be in place within two years
after the effective date. The delayed start-up dates allow affected
employers sufficient time to design and construct change rooms where
necessary, and to design, obtain, and install any required control
equipment. In addition, the longer intervals for change rooms and
engineering controls are consistent with other OSHA

substance-specific standards such as those for chromium (VI) (29 CFR
1910.1026) and cadmium (29 CFR 1910.1027). OSHA solicits comment on the
appropriateness of these proposed start-up dates.

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