Some stakeholders expressed concern that defining a beryllium work area
to include any area where unspecified processes can reasonably be
expected to generate any level of airborne beryllium, or where there is
a process or operation that can release beryllium or the potential for
dermal contact with beryllium, could lead to the designation of entire
facilities as beryllium work areas because minute quantities of
beryllium can sometimes be detected in areas of a facility far distant
from the work processes that create beryllium exposures. Stakeholders
requested that OSHA provide a list of operations that are known to
release airborne beryllium, which would allow employers to more
accurately identify where beryllium work areas must be established and
demarcated at their workplaces. As described in more detail below,
stakeholders also requested that ``dermal contact'' be removed from the
definition of beryllium work area.
    In response to this feedback, OSHA proposed in this rulemaking to
modify the definition of beryllium work area to provide clarity for
employers on where and when to establish a beryllium work area. First,
OSHA proposed a new appendix to the standard (Appendix A), containing
Table A.1, which includes a list of operations that are commonly
performed when processing beryllium materials and are known to generate
airborne beryllium. OSHA proposed to revise the definition of beryllium
work area so that any work area where an operation that is listed in
proposed Appendix A occurs, and involves materials containing at least
0.1 percent beryllium by weight, is a beryllium work area. For work
areas where no operations listed in proposed Appendix A occur, the
proposed definition would require a beryllium work area wherever
materials containing at least 0.1 percent beryllium by weight are
processed and where employees are, or can be reasonably expected to be,
exposed to airborne beryllium at or above the action level. The list of
operations in Table A.1 was compiled based on the experience of
Materion, the primary beryllium manufacturer in the United States, and
the USW, the primary union representing employees with beryllium
exposure.\10\ As noted in the preamble to the 2018 NPRM, OSHA intends
the list to cover all operations and processes that have the potential
for exposure to airborne beryllium (83 FR at 63761).
---------------------------------------------------------------------------

    \10\ Table A.1 is divided into three categories: (1) Beryllium
Metal Alloy Operations (generally <10% beryllium by weight); (2)
Beryllium Composite Operations (generally >10% beryllium by weight)
and Beryllium Metal Operations; and (3) Beryllium Oxide Operations.
---------------------------------------------------------------------------

    Second, OSHA proposed to remove the reference to dermal contact
from the definition of the term beryllium work area. OSHA preliminarily
determined that this change would make it less likely that the
definition could be misinterpreted as extending to areas of a facility
where work processes or operations that release beryllium do not occur
or even to entire facilities (83 FR at 63749). Further, the agency
explained that it was unaware of beryllium-releasing processes or
operations that have a potential for dermal contact that are not
included in the proposed Appendix A or do not generate airborne
exposures at or above the action level (83 FR at 63749). Therefore,
OSHA preliminarily determined that the proposed change would be as
protective as the previous definition, while more clearly avoiding the
erroneous perception that the standard would require employers to treat
entire facilities as beryllium work areas.
    Comments submitted in response to the NPRM showed general support
from employers, unions, and public health experts for OSHA's proposed
approach and for providing better clarity with respect to beryllium
work areas (Document ID 0017; 0022, pp. 6-7; 0029, p. 1; 0033, pp. 1-4;
0038, pp. 8-9). For example, the USW agreed with OSHA that the
revisions proposed in the NPRM would make the definition more precise
and help to ensure that employers can appropriately comply with the
standard. The USW stated that the proposed definition ``provides
employers with a clearer means of understanding when and where
demarcation is required'' for beryllium work areas (Document ID 0033,
p. 2). Materion likewise indicated that this new approach ``greatly
improves and simplifies an understanding of where beryllium work areas
should be in a facility, allowing employers and employees to know and
understand how to comply with the requirement to establish these
protective work areas'' (Document ID 0038, p. 9).
    While there was general support for this proposed approach to
beryllium work areas, several commenters expressed concerns about
various aspects of the new definition and new Appendix A. For example,
DOSH agreed that the addition of a new Appendix A would provide clarity
to the beryllium work area requirements but expressed concern that
removal of the dermal contact trigger would reduce worker protections.
DOSH suggested the use of a defined lower limit for beryllium
contamination on surfaces that would address this concern while
maintaining the protection for workers (Document ID 0023, pp. 1-2).
    OSHA does not agree that removing the reference to dermal contact
from the definition of the term beryllium work area reduces
protections. As noted above and explained in both the preambles to the
2017 final rule and the 2018 NPRM, OSHA's intent was to capture those
areas of a facility where beryllium-generating processes or operations
are located; OSHA never intended for dermal contact alone to trigger
the standard's beryllium work area requirements (82 FR at 2659; 83 FR
at 63748). Contrary to DOSH's assertion, the requirement to establish a
beryllium work area was dependent on the presence of a process or
operation that can release beryllium and that involves material that
contains at least 0.1 percent beryllium by weight in the area in
question; exposure alone, whether airborne or dermal, was never a
trigger for the beryllium work area requirements.
    Moreover, again as noted above, OSHA explained in the 2018 NPRM
that it did not know of any beryllium-releasing processes or operations
with

the potential for dermal contact that are not included in the proposed
Appendix A or that do not generate airborne exposures at or above the
action level. Put more simply, OSHA was unaware of any situation where
an employer would be required to establish a beryllium work area under
the previous definition but would not be required to do so under the
proposed definition. However, in the interest of caution, OSHA asked
stakeholders specifically whether there are any operations or processes
that trigger beryllium work areas under the previous definition that
would not be covered under the proposed definition (83 FR at 63749).
Commenters did not point to any such processes. On the contrary, the
only stakeholder to squarely address this issue, Materion, noted that
it too was ``unaware of work areas containing beryllium-releasing
processes or operations that have a potential for dermal contact that
are not included in the proposed Appendix A or generate airborne
exposures at or above the action level'' (Document ID 0038 p. 13).
    Furthermore, another stakeholder, the USW commented that it
supported OSHA's proposed removal of the reference to dermal contact
from the definition of the term beryllium work area (Document ID 0033,
p. 3). The USW stated that it does not have reservations about the
proposed change and explained its belief ``that dermal exposure is
properly addressed elsewhere in the standard'' (Document ID 0033, pp.
1-3). According to the USW, ``[a]lthough dermal exposure to beryllium
is important and must be properly addressed, removal of dermal exposure
from this definition will reduce the confounding factors that might
result in unnecessarily extending beryllium work areas beyond needed
portions of a workplace'' (Document ID 0033, p. 3).
    In addition, DOSH did not explain why it believes the change would
reduce worker protections. Given that DOSH did not point to any
particular loss of worker protection and the lack of evidence of any
differences between the coverage of the two definitions, OSHA has
decided to adopt the proposed definition, which commenters have
indicated reduces the confusion caused by the previous definition. OSHA
expects the revised definition to provide clarity on the proper
boundaries of a beryllium work area. Employers are required by
paragraph (j)(1), in conjunction with paragraph (f)(1), to minimize the
migration of beryllium from beryllium work areas, and clearly defining
the beryllium work area ensures employees working outside of these
areas receive the protective benefits of these requirements. If a
beryllium work area is defined overly broadly, then more employees may
inadvertently be exposed to beryllium within the beryllium work area
and would not receive some of these benefits. Moreover, as stated in
the 2018 NPRM, PPE requirements to protect against dermal exposure to
beryllium do not depend on the existence of a beryllium work area. The
standard requires employers to provide and ensure the use of
appropriate PPE whenever there is a reasonable expectation of dermal
contact with beryllium, regardless of whether or not the area is a
beryllium work area (see 83 FR at 63749).
    OSHA also does not agree with DOSH that a lower limit for beryllium
contamination on surfaces is necessary as a trigger for establishing a
beryllium work area. In the 2017 final rule, OSHA chose not to set
quantitative limits for surface contamination because the best
available scientific evidence on adverse health effects from dermal
contact with beryllium made it difficult to identify an appropriate
limit for surface contamination (82 FR at 2688). This remains the case
today. OSHA discusses the limitations of this data more fully below in
the Summary and Explanation of the definition of dermal contact with
beryllium.
    Two commenters objected to the exemption for materials that contain
less than 0.1 percent beryllium from the definition of beryllium work
area (Document ID 0022, p. 7; 0027, p. 2). However, OSHA incorporated
this change in the 2018 direct final rule. At the time, OSHA explained
that it was never the agency's intent that the requirements related to
beryllium work areas apply to these materials (83 FR 19936, 19938 (May
7, 2018)). OSHA did not receive any adverse comments on the direct
final rule and therefore finalized the change. The 2018 NPRM did not
propose to amend this portion of the definition and therefore comments
related to the 0.1 percent limitation are not within the scope of this
rulemaking.
    OSHA also received comments on the new Appendix A. NJH expressed
concerns that the proposed list of operations in Appendix A was geared
toward manufacturing and that it ``may restrict employers'
interpretations of a beryllium work area and prevent employees from the
protections afforded by the beryllium standard. Employers may only
consider these featured tasks as those that dictate a beryllium work
area, when other tasks may be considered as such'' (Document ID 0022,
pp. 6-7). OSHA believes NJH's concern is misplaced. First, OSHA
requested comment on whether there were additional operations that
should be included on the list of operations in Appendix A, and no
suggestions for additional operations were put forth by commenters.
More importantly, the final standard requires that a beryllium work
area be established if exposures can reasonably be expected to exceed
the action level where materials that contain at least 0.1 percent
beryllium by weight are processed, regardless of whether the operation
is listed in Appendix A. As the USW noted, this requirement ``provides
a backstop for any unforeseen operation which can expose employees
above the action level'' (Document ID 0033, p. 2). Thus, employees who
may be exposed above the action level during a process not listed in
Appendix A will still receive the protections afforded by the beryllium
work area requirements.
    DOD, while generally supportive of the proposed definition of
beryllium work area, expressed some concerns about Appendix A (Document
ID 0029, p. 1). First, DOD suggested, without explanation, that OSHA
remove the word ``generally'' from the description of the table in
Appendix A, which describes beryllium metal alloy operations as being
``generally < 10% beryllium by weight'' and beryllium composite
operations as being ``generally > 10% beryllium by weight.'' OSHA
disagrees with this suggestion. The table in Appendix A reflects
materials that are on the market today. However, the inclusion of the
word ``generally'' accounts for the possibility of beryllium metal
alloy operations and beryllium composite operations involving different
materials. Thus, if alloys are developed with greater than 10 percent
beryllium or composites less than 10 percent beryllium, these materials
will be covered under Table A.1. Because OSHA does not intend to limit
Table A.1 to processes involving only those materials on the market
today, the agency is retaining the word ``generally'' in the
description of the tables in Appendix A.\11\
---------------------------------------------------------------------------

    \11\ The agency notes that DOD's comment suggests there might be
some confusion as to whether beryllium alloys and beryllium
composites are analogous. In fact, these materials have different
structures and should be treated differently from a control strategy
point of view. A metal alloy is a metal which is a homogeneous
mixture of two or more metals or of a metal and another element to
provide unique characteristics or properties (see https://www.thefreedictionary.com/Metal+alloy). A ``beryllium composite,''
on the other hand, is a metal matrix composite or (MMC) which
typically contain at least two distinct constituent parts (see
https://www.azom.com/article.aspx?ArticleID=9843).

---------------------------------------------------------------------------

    DOD, along with DOSH, also questioned the deletion of the Appendix
A published with the 2017 final beryllium rule. That old appendix
provided non-mandatory general control strategies for common
operations. These commenters thought that the old appendix was useful
and should be retained in the standard (Document ID 0029, p. 1; 0023,
p. 3). OSHA agrees that the old appendix contained useful information,
but expects that in time it would have become either obsolete or
incomplete. Instead, OSHA plans to provide this information about
general control strategies in guidance materials tailored to reach the
targeted audience. This will make it easier to update as new
technologies or beryllium processes become available.
    In addition, under paragraph (f)(2), Engineering and work
practices, employers are obligated to use engineering controls in
beryllium work areas. OSHA requires employers to use at least one type
of control that is listed in paragraph (f)(2)(ii) (substitution,
isolation, local exhaust ventilation, or process controls) unless
controls are infeasible or exposures are demonstrated to be below the
action level. These general controls are the same types of controls
that were listed in Appendix A and are required regardless of whether
that appendix is retained. For these reasons, this final standard does
not retain the old Appendix A.
    Materion fully supported the proposed changes to the beryllium work
area definition and the proposed Appendix A. However, it noted a
typographical error in Appendix A for ``High Speed Machining (<= 10,000
rpm),'' which should be (> 10,000 rpm) (Document ID 0038, p. 10). OSHA
agrees that the entry in the NPRM's Appendix A is incorrect and made
the appropriate correction in this final rule.
    After careful consideration of the record, OSHA has determined that
the revised definition of beryllium work area will improve compliance
with the standard by providing greater clarity to employers regarding
when and where beryllium work areas should be established in the
workplace. The agency further finds that properly identifying beryllium
work areas will reduce potential exposure for workers outside of these
areas through the various provisions triggered by beryllium work areas.
In sum, OSHA has determined that the revision to the definition of
beryllium work area will ensure that the standard's requirements
related to beryllium work areas are workable and properly understood.
Therefore, OSHA has decided to finalize the definition of beryllium
work area and the corresponding update to Appendix A as proposed, with
the exception of correcting the typographical error in Appendix A noted
by Materion.
    CBD diagnostic center.
    OSHA is amending the 2017 final rule's definition of CBD diagnostic
center to clarify certain requirements used to qualify an existing
medical facility as a CBD diagnostic center. The clarification does not
change the requirement for the employer to offer a follow-up
examination at a CBD diagnostic center to employees meeting the
criteria set forth in paragraph (k). OSHA is defining CBD diagnostic
center to mean a medical diagnostic center that has a pulmonologist or
pulmonary specialist on staff and on-site facilities to perform a
clinical evaluation for the presence of CBD. The revised definition
also states that a CBD diagnostic center must have the capacity to
perform pulmonary function testing (as outlined by the American
Thoracic Society criteria), bronchoalveolar lavage (BAL), and
transbronchial biopsy. In the revised definition, the CBD diagnostic
center must also have the capacity to transfer BAL samples to a
laboratory for appropriate diagnostic testing within 24 hours and the
pulmonologist or pulmonary specialist must be able to interpret the
biopsy pathology and the BAL diagnostic test results. This definition
is identical to the definition of CBD diagnostic center that OSHA
proposed in the 2018 NPRM.
    The revised definition of CBD diagnostic center differs from the
former definition in a number of ways. First, whereas the 2017 final
rule's definition specified only that a CBD diagnostic center must have
a pulmonary specialist, OSHA is adding the term ``pulmonologist'' to
clarify that either type of specialist is qualified to perform a
clinical evaluation for the presence of CBD. Additionally, the 2017
definition required that a CBD diagnostic center have an on-site
pulmonary specialist. The revised definition states that the CBD
diagnostic center must simply have a pulmonologist or pulmonary
specialist on staff. This clarifies OSHA's intent that a specialist
must be available to the CBD diagnostic center but need not necessarily
be on site at all times.
    In their comments on the 2018 NPRM, two commenters, NJH and the
ATS, recommended that a pulmonologist, occupational medicine
specialist, or physician with expertise in beryllium disease should
conduct the clinical evaluation for CBD and that a pulmonologist should
be on staff or available to perform the bronchoscopy (Document ID 0022,
p. 2; 0021, p. 2). According to NJH, clinics that regularly evaluate
patients for CBD have physicians with experience in occupational health
conduct the clinical evaluation for CBD, in conjunction with a
pulmonologist who performs a bronchoscopy (Document ID 0022, pp. 2-3).
    OSHA notes that, although the agency is requiring facilities to
have a pulmonologist or pulmonary specialist on staff who is able to
interpret the biopsy pathology and the BAL diagnostic test results,
OSHA does not intend that all aspects of clinical evaluation for CBD
must be performed by a pulmonologist or pulmonary specialist. In the
preamble to the 2017 final rule, OSHA explained that the agency was
defining a CBD diagnostic center as a facility with a pulmonary
specialist ``on-site'' specifically to indicate that the specialist
need not personally perform the BeLPT testing (82 FR at 2645).
Moreover, paragraph (k)(7), which sets out the substantive requirements
for the evaluation at the CBD diagnostic center, refers to
recommendations of the ``examining physician,'' not necessarily the
pulmonologist or pulmonary specialist.
    Paragraph (b), in turn, defines physician or other licensed health
care professional (PLHCP) as an individual licensed to provide some or
all of the services required by paragraph (k). As such, some parts of
the evaluation, such as lung function tests, might be performed by a
certified medical professional other than a pulmonologist or pulmonary
specialist. The arrangement that NJH describes as typical for clinics
treating CBD patients, in which physicians with experience in
occupational health conduct the clinical evaluation for CBD in
conjunction with a pulmonologist who performs a bronchoscopy, is
consistent with OSHA's intent for the definition of CBD diagnostic
center and other provisions of the standard related to CBD diagnosis.
Therefore, OSHA has determined that it is not necessary to revise the
definition of CBD diagnostic center to require that the clinical
evaluation for CBD be conducted by a pulmonologist, occupational
medicine specialist, or physician with expertise in beryllium disease.
    An additional change to the definition of CBD diagnostic center
clarifies that the diagnostic center must have the capacity to perform
pulmonary function testing (according to American Thoracic Society
criteria), bronchoalveolar lavage (BAL), and tranbronchial biopsy. OSHA
determined that the former definition--which stated that the evaluation
at the

diagnostic center ``must include'' these tests--could have been
misinterpreted to mean that the examining physician was required to
perform each of these tests during every clinical evaluation at a CBD
diagnostic center. The agency's intent is not to dictate which tests an
evaluation at a CBD diagnostic center should include, but to ensure
that any CBD diagnostic center has the capacity to perform any of these
tests, which are commonly needed to diagnose CBD. OSHA expects that
these are the tests that would most commonly be requested for a CBD
evaluation. Therefore, the agency is revising the definition to clarify
that the CBD diagnostic center must simply have the ability to perform
each of these tests when deemed appropriate. These changes clarify the
definition of CBD diagnostic center, and OSHA expects they will
maintain safety and health protections for workers.
    Materion submitted comments supporting OSHA's intent to specify the
required capacities of a CBD diagnostic center, rather than the
contents of a CBD evaluation, in the definition of CBD diagnostic
center (Document ID 0038, pp. 16-17). NJH expressed concern that this
change to the definition may indicate that the clinical evaluation for
CBD need not include certain aspects of a CBD evaluation, which NJH,
the Association of Occupational and Environmental Clinics (AOEC), and
the ATS recommend should typically include full pulmonary function
testing (lung volumes, spirometry, and diffusion capacity for carbon
monoxide), chest imaging, and cardiopulmonary exercise testing, and may
also include bronchoscopy in some cases (Document ID 0022, p. 3; 0028,
p. 2; 0021, pp. 1-2). Similarly, the ATS commented that not requiring
certain diagnostic tests ``could reduce the potential to diagnose CBD
and determine disease severity'' (Document ID 0021, p. 3). NJH
recommended that OSHA require the ATS recommendations for diagnostic
evaluation, which the NJH stated include the BeLPT; pulmonary function
testing and chest imaging; and in some cases bronchoscopy (Document ID
0022, p. 3).
    As explained below in the Summary and Explanation of paragraph
(k)(7), that provision--which establishes the substantive requirements
for the evaluation at the CBD diagnostic center--makes clear that the
employer must offer any tests that the examining physician at the CBD
diagnostic center deems appropriate. The definition of CBD diagnostic
center in paragraph (b) does not alter this requirement. In light of
paragraph (k), the revised definition of CBD diagnostic center cannot
reasonably be read to limit the types of tests available to the
employee (see the Summary and Explanation for paragraph (k)(7) for a
full discussion of this topic). Thus, after considering these comments,
OSHA has decided to retain the proposed change to the definition of CBD
diagnostic center.
    Chronic beryllium disease (CBD).
    OSHA is also amending the definition of chronic beryllium disease.
For the purposes of this standard, the agency is using the term chronic
beryllium disease to mean a chronic granulomatous lung disease caused
by inhalation of airborne beryllium by an individual who is beryllium
sensitized. OSHA is finalizing the definition as proposed. It includes
several changes to the 2017 final rule's definition of chronic
beryllium disease, which was ``a chronic lung disease associated with
exposure to airborne beryllium'' (82 FR at 2645-46). The revisions
serve to differentiate CBD from other respiratory diseases associated
with beryllium exposure (e.g., lung cancer) and to make clear that
beryllium sensitization and the presence of beryllium in the lung are
essential in the development of CBD (see 82 FR at 2492).
    First, OSHA is adding the term ``granulomatous'' to the definition.
A granulomatous lung formation is a focal collection of inflammatory
cells (e.g., T-cells) creating a nodule in the lung (see Ohshimo et
al., 2017, Document ID OSHA-H005C-2006-0870-2171, p. 2). The formation
of the type of lung granuloma specific to a beryllium immune response
can occur only in those with CBD (82 FR at 2492-2502). Next, OSHA is
removing the phrase ``associated with airborne exposure to beryllium''
and replacing it with ``caused by inhalation of airborne beryllium.''
This change is more consistent with the findings in the 2017 final rule
that beryllium is the causative agent for CBD and that CBD occurs only
after inhalation of beryllium (82 FR at 2513). Finally, OSHA is
clarifying that CBD is caused by inhalation of airborne beryllium ``by
an individual who is beryllium sensitized.'' Along with the revised
definition of beryllium sensitization discussed above, this revision
emphasizes to employers and employees the role that beryllium
sensitization plays in the development of CBD.
    NJH, the USW, and Materion agreed with OSHA that the 2017 final
standard's definition of chronic beryllium disease should be clarified.
Materion supported the changes OSHA proposed, which it characterized as
a necessary clarification to ensure the definition provided is specific
to chronic beryllium disease (Document ID 0038, p. 17). The USW
similarly supported the proposed definition, stating that it clarifies
the previous definition which ``could be read to apply to any chronic
lung disease caused by beryllium, including lung cancer'' (Document ID
0033, p. 5). These comments reinforce OSHA's determination that adding
the term ``granulomatous'' to the definition will better distinguish
CBD from other occupationally associated chronic pulmonary diseases. As
OSHA explained in the preamble to the 2017 final rule, the formation of
the type of lung granuloma specific to a beryllium immune response can
occur only in those with CBD (82 FR at 2492-2502).
    Several commenters expressed concern that the proposed definition
of chronic beryllium disease does not provide sufficient information to
guide diagnosis of CBD, and specifically that OSHA's emphasis on the
role of sensitization in the development of CBD may confuse diagnostic
efforts. The ATS noted that demonstrating beryllium sensitization may
be challenging in certain settings and recommended that OSHA's
definition of chronic beryllium disease use the diagnostic criteria for
CBD outlined in a 2014 ATS document on diagnosis and management of
beryllium sensitivity and CBD (``the ATS Statement''). These diagnostic
criteria include confirmation of an immune response to beryllium and
granulomatous lung inflammation using lung biopsy and emphasize the
various approaches which may be used ``[d]epending on the clinical
setting, feasibility of certain diagnostic tests, and degree of
diagnostic certainty needed'' (Document ID 0021, p. 5). DOSH similarly
emphasized that individuals may be diagnosed with CBD without a
confirmed positive BeLPT result and advocated that the definition of
chronic beryllium disease ``ensure employers and medical providers are
given a clear expectation of how beryllium conditions are properly
identified'' (Document ID 0023, p. 2).
    OSHA notes that the standard's definition of chronic beryllium
disease is not intended to provide criteria for the diagnosis of CBD.
The agency's intent is to provide readers who may have little or no
familiarity with CBD with a general understanding of the term, rather
than to provide diagnostic criteria for healthcare professionals in
addressing CBD.
    Due to differences in individual cases and circumstances, medical
specialists may need to apply somewhat different

testing regimens and/or diagnostic criteria to different individuals
they evaluate for CBD. Furthermore, the diagnostic tools and criteria
available to medical specialists may change over time. As discussed in
the Summary and Explanation for paragraph (k)(7), OSHA believes that
the physician at the CBD diagnostic center should have the latitude to
use any tests he or she deems appropriate for the purpose of diagnosing
or otherwise evaluating CBD in a patient, and has revised paragraph
(k)(7) to make this clear. Therefore, OSHA has determined that it is
neither necessary nor appropriate to specify diagnostic criteria in the
beryllium standard's definition of chronic beryllium disease. Instead,
OSHA has decided to retain a definition that provides the reader with a
general understanding of the term.
    NJH suggested that the agency define chronic beryllium disease as a
disease ``characterized by evidence of granulomatous lung inflammation
in an individual who is sensitized to beryllium.'' According to NJH,
this definition would allow for diagnosis based on different
combinations of clinical evaluation results as detailed the ATS
Statement (Document ID 0022, p. 3). OSHA believes that the definition
the agency proposed--a chronic granulomatous lung disease caused by
inhalation of airborne beryllium by an individual who is beryllium
sensitized--conveys the substance of NJH's recommended definition while
also emphasizing that CBD results from the inhalation of airborne
beryllium. OSHA has therefore decided not to adopt the definition NJH
suggested.
    The ATS expressed concern that OSHA's proposed changes to the
definition of chronic beryllium disease could create confusion in the
diagnosis of CBD because it may be challenging in certain settings to
identify sensitization and granulomatous lung disease based on lung
pathology (Document ID 0021, p. 5). DOSH similarly commented that the
proposed definition may be misleading because, although those with CBD
have sensitization to beryllium, the current testing for sensitization
has a high false-negative rate and individuals may be diagnosed with
CBD without first being confirmed positive for beryllium sensitization
(Document ID 0023, p. 2).
    Although OSHA agrees that employees may be diagnosed with CBD
without confirmed positive BeLPT results, the agency does not agree
with these commenters that references to sensitization should be
excluded from the definition of chronic beryllium disease. OSHA first
notes that neither DOSH nor the ATS contend that OSHA's definition is
inaccurate. Furthermore, as OSHA explained previously in its discussion
of the beryllium sensitization definition, the agency believes that a
correct understanding of the relationship between beryllium
sensitization and CBD is key to workers' and employers' understanding
of many provisions of the beryllium standard. By stating the role that
sensitization plays in the development of CBD in the standard's
definition of chronic beryllium disease, OSHA intends to convey clearly
to the regulated community why protecting workers from becoming
beryllium sensitized is key to the prevention of CBD and why workers
who are confirmed positive for beryllium sensitization should be
offered both a clinical evaluation for CBD and medical removal
protection.
    OSHA acknowledges that it is not always necessary to identify a
worker as confirmed positive for beryllium sensitization using the
BeLPT as part of a diagnosis of CBD and that the BeLPT can yield false-
negative results in some individuals. For this reason, an examining
physician should have the latitude to diagnose CBD even in the absence
of a ``confirmed positive'' pattern of BeLPT results. As explained in
the Summary and Explanation of paragraph (k)(7) of the 2017 final rule,
that provision gives the examining physician this latitude (82 FR 2704,
2709). Because the substantive provisions of the standard leave the
examining physician discretion in diagnosing CBD, OSHA does not agree
that acknowledging the role of beryllium sensitization in the
development of CBD will result in diagnostic confusion.
    The NSSP recommended the following addition to OSHA's proposed
definition of chronic beryllium disease: ``The presence of interstitial
mononuclear cell (T cell) infiltrates (lymphocytosis) is characteristic
of chronic beryllium disease'' (Document ID 0027, pp. 3-4). The NSSP
argued that the presence of these infiltrates on lung biopsy indicates
the presence of chronic beryllium disease, and should therefore be
included in the standard's definition (Document ID 0027, p. 4). OSHA
disagrees. The agency believes that the term ``granulomatous''
sufficiently addresses the presence of T-cell infiltrates, which occur
at an early stage in the development of granulomas (82 FR at 2492-
2502). As discussed previously, OSHA's intent in defining chronic
beryllium disease is to provide the reader a general understanding of
what CBD is, rather than provide a technical definition for diagnostic
use. The suggested addition is not necessary to describe the nature of
CBD in general terms. With the addition of the term ``granulomatous,''
the definition is sufficiently specific for OSHA's purposes in the
context of paragraph (b).
    In summary, for the purposes of this standard OSHA is defining
chronic beryllium disease as a chronic granulomatous lung disease
caused by inhalation of airborne beryllium by an individual who is
beryllium sensitized. This definition is identical to the definition of
chronic beryllium disease OSHA proposed in 2018 and includes only minor
changes from the definition included in the 2017 final standard. OSHA
is providing this definition to enhance stakeholders' general
understanding of the beryllium standard; it is neither intended nor
suitable to provide guidance to medical professionals on the diagnosis
of CBD. OSHA expects these changes to the 2017 definition of chronic
beryllium disease will clarify the standard, and will therefore
maintain safety and health protections for workers.
    Confirmed positive.
    OSHA is amending the definition of confirmed positive to mean (1)
the person tested has had two abnormal BeLPT test results, an abnormal
and a borderline test result, or three borderline test results,
obtained from tests conducted within a three-year period; or (2) the
result of a more reliable and accurate test indicating a person has
been identified as having beryllium sensitization. The revised
definition includes several changes to the 2017 definition of confirmed
positive and one change from the definition of confirmed positive that
OSHA proposed in the 2018 NPRM.
    First, the agency is removing the phrase ``beryllium
sensitization'' from the first sentence of the definition, which
previously stated that a person is confirmed positive if that person
has beryllium sensitization, as indicated by two abnormal BeLPT test
results, an abnormal and a borderline test result, or three borderline
test results. OSHA intends that confirmed positive act only as a
trigger for requirements such as continued medical monitoring and
surveillance for the purposes of this standard, and not as a general-
purpose definition of beryllium sensitization. By removing the phrase
``beryllium sensitization'' from the first sentence of the definition,
the agency hopes to avoid confusion resulting from scientific
disagreements over whether certain test results, such as three
borderlines, necessarily prove that sensitization has occurred. For
purposes of the beryllium

standard, any worker with the BeLPT test results specified in the
definition of confirmed positive should be offered an evaluation for
CBD with continued medical surveillance as well as the option of
medical removal protection, even though some small percentage of
workers who are confirmed positive by this definition may not in fact
be sensitized to beryllium, as is the case for any diagnostic test
(Middleton et al., 2008 (Document ID OSHA-H005C-2006-0870-0480, p.
4)).\12\
---------------------------------------------------------------------------

    \12\ In the preamble to the 2017 final rule, OSHA found that
three borderline BeLPT results recognize a change in a person's
immune system with respect to beryllium exposure based on Middleton
et al.'s 2011 finding that three borderline BeLPT results have a
positive predictive value (PPV) of over 90 percent (82 FR at 2501),
and therefore the agency included three borderline results in the
criteria for confirmed positive (82 FR at 2646).
---------------------------------------------------------------------------

    Both the USW and Materion supported this proposed revision. The USW
stated that the former definition of confirmed positive had acted ``as
a de facto definition of sensitization'' and that removing the phrase
from this portion of the definition ensures that a finding of confirmed
positive will trigger medical surveillance and medical removal
protection ``without an intermediate stop at a finding of
sensitization'' (Document ID 0033, p. 5). Similarly, Materion commented
that the revised definition allows individuals with three borderline
BeLPT results to obtain the protections of the standard, including
evaluation for CBD and medical removal protection, without necessarily
being ``declared sensitized'' (Document ID 0038, p. 18). Materion
further asserted that the change enhances employee protection by
increasing the number of persons eligible for further testing (Document
ID 0038, p. 19).
    NJH opposed the revised definition, asserting that the removal of
the phrase ``beryllium sensitization'' could prevent individuals who
meet the definition of being confirmed positive from being identified
as sensitized. NJH further expressed concern that this could make it
difficult for some workers to access the medical testing and workplace
protections required by the rule (Document ID 0022, p. 4).
    The ATS and the AOEC also disagreed with the removal of the phrase
``beryllium sensitization'' from the definition of confirmed positive,
stating the medically accepted interpretation of BeLPT testing results
is that they indicate beryllium sensitization, and that removing this
phrase may cause confusion about what condition the term confirmed
positive refers to (Document ID 0021, p. 3; 0028, p. 2). The ATS
further stated without explanation that removing the term ``beryllium
sensitization'' from the definition of confirmed positive would reduce
worker protections.\13\ The NSSP also expressed disagreement with
OSHA's proposal to remove ``beryllium sensitization'' from the first
part of the confirmed positive definition, but did not state the
reasons for their concern (Document ID 0027, p. 3).
---------------------------------------------------------------------------

    \13\ The ATS also asserted that the removal of the phrase
``beryllium sensitization'' would reduce workers' right to file for
worker's compensation (Document ID 0021, p. 3). The ATS did not
explain how the definition of confirmed positive in the beryllium
standard could affect worker's compensation claims and at least one
other commenter questioned the ATS's assertion (see Document ID
0038, p. 19). Regardless, OSHA intends the definition of confirmed
positive to serve only as a trigger for certain provisions of the
beryllium standard. How OSHA defines this phrase for purposes of the
beryllium standard in no way limits healthcare professionals'
ability or incentive to diagnose beryllium sensitization.
---------------------------------------------------------------------------

    Following consideration of the concerns raised by these
organizations, OSHA disagrees that removing the phrase ``beryllium
sensitization'' from the first sentence of the definition of confirmed
positive will create confusion or reduce worker protections. The
provisions of the standard intended to benefit workers who may be
sensitized (evaluation at a CBD diagnostic center and medical removal
protection) are available to all workers who meet the definition of
confirmed positive. Therefore, removing the term ``beryllium
sensitization'' from the first sentence of the definition will not
change the access to these benefits for any workers. By removing the
term ``beryllium sensitization'' from the first sentence of the
definition, OSHA seeks to ensure that workers with three borderline
BeLPT results (or other patterns of test results that some physician or
other licensed health care professionals (PLHCPs) may consider
ambiguous) will receive the benefits of the standard regardless of
whether their PLHCP views their results as firm evidence of
sensitization. Furthermore, OSHA disagrees that removing the reference
to ``beryllium sensitization'' will lead to confusion about what the
BeLPT results are supposed to indicate because the second sentence of
the definition of confirmed positive makes clear that a worker who has
been diagnosed with beryllium sensitization would also meet the
definition of confirmed positive: ``It [confirmed positive] also means
the result of a more reliable and accurate test indicating a person has
been identified as having beryllium sensitization.''
    An additional change to the definition of confirmed positive
provides that the findings of two abnormal, one abnormal and one
borderline, or three borderline results need to occur from BeLPTs
conducted within a three-year period. This change in the definition of
confirmed positive differs from the proposal and is based on comments
submitted to the record following publication of the 2018 NPRM.
    The 2017 final rule did not specify a time limit within which the
BeLPT tests that contribute toward a finding of ``confirmed positive''
must occur. After publication of the 2017 final rule, stakeholders
suggested to OSHA that the definition of confirmed positive could be
interpreted as meaning that findings of two abnormal, one abnormal and
one borderline, or three borderline results over any time period, even
as long as 10 years, would result in the employee being confirmed
positive and automatically referred to a CBD diagnostic center for
evaluation. As discussed in the preamble to the 2017 standard, clinical
evaluation for CBD involves bronchoalveolar lavage and biopsy (82 FR at
2497) which, like all invasive medical procedures, carry risks of
infection and other complications.\14\ Given such risks, and the
possibility that some repeat abnormal or borderline results obtained
over a long period of time could be false positives, it was not the
agency's intent that workers with rarely recurring abnormal or
borderline BeLPT results should necessarily proceed to evaluation at a
CBD diagnostic center unless recommended to do so by their examining
physician. At the same time, OSHA notes that under paragraph
(k)(5)(iii), the licensed physician performing the BeLPT testing
retains the discretion to refer an employee to a CBD diagnostic center
if the licensed physician deems it appropriate, regardless of the BeLPT
result.
---------------------------------------------------------------------------

    \14\ Bronchoalveolar lavage is a method of ``washing'' the lungs
with fluid inserted via a flexible fiberoptic instrument known as a
bronchoscope, removing the fluid and analyzing the content for the
inclusion of immune cells reactive to beryllium exposure (82 FR at
2497).
---------------------------------------------------------------------------

    In the 2018 NPRM OSHA proposed that any combination of test results
specified in the definition of confirmed positive must result from the
tests conducted in one cycle of testing, including the initial BeLPT
and the follow-up retesting offered within 30 days of an abnormal or
borderline result (paragraph (k)(3)(ii)(E)). As outlined in proposed
paragraph (k)(3)(ii)(E), an employee would be offered a follow-up BeLPT
within 30 days if the initial test result is anything other than
normal, unless the employee had been confirmed positive (e.g., if the
initial

BeLPT was performed on a split sample and showed two abnormal results).
Thus, for example, if an employee's initial test result was abnormal,
and the result of the follow-up testing offered to confirm the initial
test result was abnormal or borderline, the employee would be confirmed
positive. Alternatively, if the result of the follow-up testing offered
to confirm the initial abnormal test result was normal, the employee
would not be confirmed positive. Any additional abnormal or borderline
results obtained from the next required BeLPT for that employee
(typically, two years later) would not identify that employee as
confirmed positive under the proposed modification to confirmed
positive. OSHA requested comments on the appropriateness of this
proposed time period.
    Several stakeholders, including Materion, NJH, the ATS, DOSH, the
NSSP, the AOEC, the USW, and The American College of Occupational and
Environmental Medicine (ACOEM), submitted comments regarding OSHA's
proposal to require that the test results specified in the agency's
definition of confirmed positive must occur within a single testing
cycle. Commenters focused on several aspects of the proposed timing.
First, many of the comments focused on the logistics of OSHA's proposed
change. Materion supported the proposed definition of confirmed
positive, stating that a 30-day allowance for follow-up testing after a
first abnormal or borderline BeLPT result is appropriate to ensure that
testing is completed in a timely manner (Document ID 0038, p. 17).
However, NJH, the ATS, ACOEM, the USW, and the NSSP all indicated that
requiring results with a 30-day testing cycle could create logistical
challenges, for example due to repeat testing requirements or for
businesses in remote areas with limited healthcare facilities (Document
ID 0022, p. 4; 0021, p. 4; 0024, p. 1; 0033, p. 5; 0027, p. 3). In this
final rule and preamble, OSHA clarifies that it did not intend that the
initial and follow-up tests had to be completed and interpreted within
30 days. It intended that the test results used to determine if a
worker is confirmed positive be obtained during one cycle of testing
(i.e., an initial or periodic examination), including follow-up testing
conducted within 30 days of an abnormal or borderline result.
    Secondly, stakeholders commented on the appropriateness of limiting
the use of the BeLPT from one test cycle in determining if a worker is
confirmed positive. Materion agreed with the proposed timing and
commented that the change ``increases employee protections by
establishing an employee as confirmed positive in a shorter time frame,
thus, making the medical removal benefit option available to the worker
in a more timely manner'' (Document ID 0038, p. 19). Stakeholders from
the medical community disagreed and raised concerns that limiting test
results to one test cycle would affect the ability to identify workers
who should be referred for a CBD evaluation and receive other
protections under the standard.
    The NSSP cited data from healthcare providers to demonstrate that a
30-day testing cycle is insufficient to properly identify sensitized
workers. According to the NSSP, in over 20 years of conducting BeLPTs
in worker populations, Oak Ridge Associated Universities observed
approximate median times of 45 days (range of 3 days to 16 years)
between first and second abnormal tests, 1.5 years (range of 30 days to
11 years) for the abnormal/borderline test combination, and 1 year
(range of 30 days to 11 years) for three borderlines (Document ID 0027,
p. 3). Under the proposed 30-day requirement, the NSSP stated that the
majority of workers who have been identified as sensitized in the past
would not meet the proposed definition of confirmed positive (Document
ID 0027, p. 3).
    NJH reported similar findings in new evidence submitted to the
record (Document ID 0022, pp. 4-5). The evidence indicates that many
workers who develop CBD have abnormal or borderline results that do not
immediately repeat upon retesting. To the contrary, many CBD patients
have a series of tests which alternate between normal and abnormal.
Data based on NJH's extensive experience show that the BeLPT does not
yield consistently abnormal results among CBD patients. Of 194 patients
diagnosed with CBD at NJH, the length of time between abnormal results
ranged from 14 days to 5.8 years, with a 95th percentile of 2.9 years.
In this group, 150 patients (or 77 percent) would not have been
evaluated for CBD if two abnormal BeLPT results were required to occur
within a 30-day testing cycle (Document ID 0022, p. 5).
    Although the information the NSSP and NJH submitted to the record
is unpublished, their findings are consistent with published studies.
Kreiss et al. (1997) reported that nine individuals had initial
abnormal BeLPT results followed by two normal tests; six of those
individuals were re-tested approximately one year later and four were
confirmed positive for beryllium sensitization based on abnormal BeLPT
results (Document ID OSHA H005C-2006-0870-1360, pp. 610-12). These
findings suggest a high rate of false-negative results and are
consistent with results reported in a study by Stange et al. (2004).
That study found an average false-positive rate of 1.09 percent, and a
false-negative rate of 27.7 percent for the BeLPT (Document ID OSHA-
H005C-2006-0870-1402, p. 459).
    Other public health organizations, including DOSH, the ATS, the
NSSP, and the AOEC, agreed with NJH that workers who are sensitized to
beryllium may show varying test results over time; and restricting the
time period for determining ``confirmed positive'' status to 30 days
would cause sensitized individuals to go undetected (Document ID 0023,
p. 2; 0021, p. 2; 0027, p. 3; 0028, p. 2). The ATS and the AOEC
recommended that results from tests performed up to at least three
years after the initial abnormal or borderline test result should be
used to determine whether the person tested is confirmed positive for
beryllium sensitization (Document ID 0021, p. 2; 0028, p. 2). The ATS
stated that a timeframe of at least three years, which encompasses two
rounds of regularly scheduled testing required biennially by the
beryllium standard, would adequately address its concerns regarding
logistical feasibility, would improve diagnostic accuracy, and help
ensure that sensitized workers are identified (Document ID 0021, p. 4).
The AOEC agreed that consideration of BeLPT test results obtained
during a time period of at least three years ``will increase the
potential that workers are accurately diagnosed with beryllium
sensitization [and] will receive the necessary care'' (Document ID
0028, p. 2).
    The approaches recommended by the ATS and the AOEC are similar to
the approach NJH used in providing medical surveillance consultation to
workforces that use beryllium. NJH stated that, if an individual's
BeLPT results are abnormal and normal on their initial round of BeLPT
testing, they will usually request another BeLPT within a month. If the
result of that test is normal, they do not request further testing
until the next regularly scheduled BeLPT. If the result of the next
regularly scheduled BeLPT comes back abnormal, they refer the worker
for clinical evaluation even though the tests are separated by the two-
year testing cycle (Document ID 0022, p. 5).
    Following consideration of the comments and of the new evidence
submitted to the record following the proposal, OSHA is convinced that
some workers who are ultimately found to be sensitized to beryllium or
diagnosed

with CBD may have alternating abnormal and normal BeLPT results, and
that the time period for abnormal or borderline results to repeat can
be months or years. OSHA is also convinced that requiring two abnormal,
an abnormal and borderline, or three borderline results to occur in one
cycle of an initial or periodic exam before an employee can be
confirmed positive could result in beryllium sensitization or CBD going
undetected in many employees. This is demonstrated by the unpublished
data submitted by NJH showing that a substantial percentage of
individuals with CBD (77 percent) may not have been referred for
further testing based on results obtained within a 30-day cycle of
testing and is confirmed by the experience of the NSSP. Therefore, OSHA
finds that its proposed change would have the unintended and
unacceptable consequence of reducing employee protections because some
employees who are sensitized or have CBD would be deprived of the
benefits available through the standard, such as a timely evaluation at
a CBD diagnostic center. In addition, requiring that results be
obtained in one test cycle is not consistent with the approaches
currently applied or supported by the medical community.
    For these reasons, OSHA is revising the definition of confirmed
positive to specify that the findings of two abnormal, one abnormal and
one borderline, or three borderline results must be obtained from
BeLPTs conducted within a three-year period. OSHA agrees with the ATS
and the AOEC that a three-year period will facilitate the
identification of sensitized workers enrolled in medical surveillance
(see Document ID 0022, p. 5; 0028, p. 2). In addition, this approach is
consistent with the practices and recommendations from the medical
community, including NJH, which provides beryllium-related medical
surveillance consultation. OSHA believes that allowing a worker to be
confirmed positive based on BeLPT results obtained over a three-year
time period strikes a reasonable balance that would allow a timely
evaluation for CBD, while at the same time, maintaining OSHA's original
intent that a confirmed positive finding not be based on results
obtained over an indefinite time period.
    OSHA emphasizes that this revision does not modify the requirements
of paragraph (k)(3)(ii)(E). Under that paragraph, if the results of the
BeLPT are other than normal, a follow-up BeLPT must be offered within
30 days of receiving the results, unless the employee has been
confirmed positive. Only other than normal BeLPT results must be
followed up within 30 days of the same test cycle (i.e., an initial or
periodic medical examination).
    As an example, an employee who receives a borderline result during
one periodic examination conducted in 2020 would be retested within 30
days, and if the follow-up test is normal, testing would stop. That
employee would be offered another BeLPT at the next periodic
examination conducted in 2022. However, if the result of the 2022 test
is borderline, the employee would be retested within 30 days of that
test result receipt, and if the follow-up test is borderline, the
employee would be confirmed positive because of receiving three
borderline tests within three years. A three-year period for the
employee to be confirmed positive would ensure sufficient time for such
follow-up tests that may need to be conducted over two cycles of
medical examinations.
    DOD recommended changing the term ``confirmed positive'' to another
term such as ``confirmed non-negative,'' ``confirmed finding of
concern,'' or ``pattern of concern.'' According to the DOD, the term
``confirmed positive'' typically ``implies an initial positive test
that was repeated with another test or another, more sensitive test,
which confirms the initial positive test result'' (Document ID 0029, p.
2). The CBD literature, however, commonly treats individuals as
confirmed positive for sensitization through sequentially conducted
BeLPTs (see, for example, the ATS Statement on Diagnosis and Management
of Beryllium Sensitivity and Chronic Beryllium Disease, ATS 2014,
Document ID OSHA-H005C-2006-0870-0364, p. e41; see also Document ID
OSHA-H005C-2006-0870-1543, 0603, 0398, 1403, 1449). Additionally, OSHA
again emphasizes that terms defined in the beryllium standard are
defined only for purposes of the standard and are not intended as
diagnostic, scientific, or all-purpose definitions. OSHA believes that
its definition of confirmed positive clearly indicates what that term
means for purposes of the beryllium standard and therefore disagrees
with DOD's concern that the term may cause confusion. Accordingly, OSHA
is retaining the term ``confirmed positive'' in this final standard.
    Dermal contact with beryllium.
    Paragraph (b) of this final rule defines dermal contact with
beryllium as skin exposure to (1) soluble beryllium compounds
containing beryllium in concentrations greater than or equal to 0.1
percent by weight; (2) solutions containing beryllium in concentrations
greater than or equal to 0.1 percent by weight; or (3) visible dust,
fumes, or mists containing beryllium in concentrations greater than or
equal to 0.1 percent by weight. The definition also states that
handling of beryllium materials in non-particulate solid form that are
free from visible dust containing beryllium in concentrations greater
than or equal to 0.1 percent by weight is not considered dermal contact
under the standard. Several of the standard's provisions are triggered
where an employee has, or can be reasonably expected to have, dermal
contact with beryllium. These include provisions in paragraph (f),
Written exposure control plan; paragraph (h), Personal protective
clothing and equipment (PPE); paragraph (i), Hygiene areas and
practices; paragraph (k), Medical surveillance; and paragraph (m),
Communication of hazards.
    This final rule makes two changes to the previous definition, which
was added to the standard through the 2018 direct final rule (83 FR at
19940) following OSHA's promulgation of the final rule in January 2017.
That direct final rule defined dermal contact with beryllium as skin
exposure to soluble beryllium compounds, beryllium solutions, or dust,
fumes, or mists containing beryllium, where these materials contain
beryllium in concentrations greater than or equal to 0.1 percent by
weight (83 FR at 19940). First, this final rule modifies the definition
to refer to ``visible'' dust, fumes, or mists containing beryllium in
concentrations greater than or equal to 0.1 percent by weight. Second,
OSHA is adding a sentence to the definition specifying that handling
beryllium materials in non-particulate solid form that are free from
visible dust containing beryllium in concentrations greater than or
equal to 0.1 percent by weight is not considered dermal contact with
beryllium under the standard. This final rule's definition of dermal
contact with beryllium is identical to the definition that OSHA
proposed in the 2018 NPRM.
    The revisions incorporated in this definition are intended to help
employers more accurately identify areas where the provisions triggered
by dermal contact apply. Based on feedback OSHA received from
stakeholders following publication of the 2017 final standard, OSHA
became concerned that employers might have difficulty accurately
identifying when and where the provisions triggered by dermal contact
are required. Beryllium-generating processes can release beryllium in
varying particle sizes and amounts, some of which are visible to the
naked eye and some of which are not. OSHA was concerned that

employers could reasonably interpret the provisions triggered by dermal
contact with beryllium (e.g., the use of PPE) as extending to every
employee who could potentially encounter a minute and non-visible
amount of beryllium particulate at its facility, irrespective of the
employee's job duties and tasks, or who might handle an object
containing beryllium. Such an interpretation would be contrary to
OSHA's intent and could prompt employers to attempt infeasible
compliance measures. Therefore, as explained in the 2018 NPRM, OSHA
proposed adding the term ``visible'' to clarify when skin exposure to
beryllium-containing dust, fumes, or mist should be considered dermal
contact with beryllium for the purpose of triggering the standard's
requirements. OSHA also proposed adding a sentence to state that
handling of beryllium materials in non-particulate solid form that are
free from visible dust containing beryllium in concentrations greater
than or equal to 0.1 percent by weight is not considered ``dermal
contact with beryllium'' under the standard.
    Several commenters supported revising the definition of dermal
contact with beryllium to apply to visible particulate, agreeing that
the revised definition would facilitate compliance with the standard.
In its submission, Materion stated that the proposed change to the
definition ``clears up the ambiguity and eliminates the vagueness of
the [previous] . . . standard,'' and that

    Revising the standard to provide employees as well as employers
clear lines will likely immeasurably help not only with compliance
but with enforcement of the standard. Without the visible cue,
employees will have no idea whether and when they should be
protected by PPE. . . . OSHA has fixed this problem with a sensible
and clear demarcation threshold for dermal contact, and has done so
in a manner that does not sacrifice protection against the risk of
CBD.

    (Document ID 0038, p. 21). Similarly, the USW stated that dermal
exposure to beryllium needed to be ``properly addressed,'' but that
triggering provisions by dermal contact with materials containing
beryllium at any level ``could extend the application of the standard
far beyond what OSHA intended or what is necessary to protect workers''
(Document ID 0033, p. 4). The USW referred to non-sparking tools made
from beryllium-copper alloy and beryllium foil used for x-ray windows
as examples of materials where dermal contact should not trigger
provisions of the standard (Document ID 0033, p. 4).
    Century Aluminum Company (Century Aluminum) (Document ID 0026, p.
2) and DOD (Document ID 0029, p. 1) also agreed with the proposal to
add the term ``visible'' to the definition. However, DOD recommended
that OSHA revise the definition to explicitly identify skin exposure to
``visible dust that has accumulated on surfaces'' in addition to
visible dust, fumes, or mists containing beryllium in concentrations
greater than or equal to 0.1 percent by weight. OSHA does not believe
this added phrase is necessary. The definition of dermal contact with
beryllium does not distinguish the exposure routes that cause the skin
exposure and, as proposed, the phrase ``visible dust'' encompasses
exposures via both air and surface contamination.
    The ATS commented that adding ``visible'' to the definition to
trigger provisions related to dermal contact ``could be helpful,'' but
cautioned that inhalation of beryllium particulate that is not visible
is ``the major concern'' for developing CBD (Document ID 0021, p. 5).
It urged OSHA to ensure that the revised definition neither undermines
the requirements of the beryllium standard which limit exposure to
respirable beryllium, nor limits education on the health effects of
beryllium to only those workers with exposure to visible dust (Document
ID 0021, p. 5).
    NJH objected to OSHA's proposal to restrict the definition to
visible dust, fumes, and mists, believing that doing so could reduce
employee protections from beryllium-induced sensitization and disease
(Document ID 0022 p. 7). NJH commented that the smallest respirable
particles are not visible and are inhaled into the deepest part of the
lung. It further commented that a ``monitoring program that routinely
samples all departments with air and wipe samples can accomplish
identifying `nonvisible' dust contamination and should be part of any
industry that needs to comply with an exposure limit'' (Document ID
0022, p. 7). Other commenters voiced similar concerns about the risk
posed by exposure to ultrafine particles containing beryllium,
including the NSSP (Document ID 0027, p. 3), the AOEC (Document ID
0028, p. 2), and DOSH (Document ID 0023, p. 2).
    OSHA agrees that exposure to airborne beryllium, even when not
visible to the naked eye, is an important risk factor for developing
CBD and that it would be inappropriate to rely on the presence of
visible airborne particulate to assess workers' exposure to airborne
beryllium and the need to implement engineering and work practice
controls or respiratory protection. The standard's permissible exposure
limits and requirements for quantitative exposure assessments and use
of respiratory protection are of paramount importance for ensuring that
workers are protected from CBD, and these requirements are unaffected
by the changes to the dermal contact with beryllium definition. In
addition, the standard's requirements to train workers on the health
hazards of exposure to beryllium and on the employer's exposure control
plan (paragraph (m)(4)) apply to all employees within the scope of the
general industry standard who have, or can reasonably be expected to
have, airborne exposure (regardless of the size fraction) to or dermal
contact with beryllium, thus including all workers that would be
considered to be potentially at risk of beryllium-related disease.\15\
---------------------------------------------------------------------------

    \15\ NJH also asserted that ``[a]ll workers in a beryllium using
industry should receive beryllium education with programs tailored
to specific jobs and processes'' (Document ID 0022, p. 7). Mount
Sinai Selikoff Centers for Occupational Health similarly advocated
for ``intensive training and protective gear for all workers who may
be at risk of beryllium exposure'' (Document ID 0032, p. 3). OSHA
notes that the beryllium standard has never required all workers in
a beryllium-using industry to receive training. Rather, the standard
has always required training for those workers who have or are
reasonably expected to have airborne exposure to beryllium
regardless of the size fraction. The standard continues to require
training for all such workers.
---------------------------------------------------------------------------

    DOSH advocated for surface sampling as being a ``practical method''
for assessing exposure and asserted that adopting a ``specific
numerical surface contamination criterion'' to assess dermal contact
hazard was a more protective strategy. DOSH further suggested that, in
establishing this numerical criterion, OSHA ``consider levels that
could result in uptake of beryllium by workers at rates similar to
action level airborne exposures'' (Document ID 0023, p. 2).
    With respect to inhalation hazards associated with beryllium, OSHA
agrees that relying on the visibility of particulate does not
adequately protect workers from CBD or lung cancer, and that both
conducting routine air sampling and ensuring no employees are exposed
to airborne beryllium in excess of the PELs are essential to minimizing
workers' exposures to airborne particulate. The TWA PEL for beryllium
is based on robust evidence from studies of beryllium workers that
permitted the agency to determine that there is significant risk of
sensitization, CBD, and lung cancer associated with the previous TWA
PEL, and that this

risk would be substantially reduced by the new PEL (82 FR at 2545-52).
    Unlike the case for inhalation, the available data on the effects
of dermal contact with beryllium make it difficult to establish a
reasonably precise, objective limit on surface contamination above
which protective measures should be triggered. The most recent effort
to derive a health-based measure of surface cleanliness for beryllium
was that of Shay et al. (Document ID H005C-2006-0870-0417), who used
models that accounted for particulate dissipation, resuspension into
air, transfer efficiency from surface to skin, dermal absorption of
particulate through intact or damaged skin, and other factors. The
authors used these models along with both oral and inhalation toxicity
values derived by the Environmental Protection Agency to relate the
level of surface contamination to target risk values for cancer and
noncancer effects that would generally be considered to be de minimis
(i.e., an exposure associated with either a lifetime cancer risk of one
death per million persons exposed, or no excess risk of adverse
noncancer effects). After accounting for these factors, the resulting
surface dust cleanup criteria for each health endpoint ranged over
several orders of magnitude, reflecting a high degree of uncertainty
(for the noncancer endpoint, the criteria ranged from 5 to 370
[micro]g/cm\2\ for damaged skin, and from 17 to 3,337 [micro]g/cm\2\
for intact skin; for cancer, the criteria ranged from 51 to 485
[micro]g/cm\2\).
    This study illustrates the difficulty in establishing a reliable
and objective risk-based limit on surface contamination that could be
used to trigger measures that would prevent dermal contact with
beryllium particulate when such contact is sufficient to contribute to
a significant risk of disease. Absent an objective measure, OSHA finds
that it is preferable to base the definition of dermal contact with
beryllium on a clear, qualitative indicator of when dermal contact is
occurring or is reasonably anticipated to occur so that employers can
have assurance that they are in compliance with the provisions that are
triggered by dermal contact. Accordingly, the final rule's definition
of dermal contact with beryllium refers to skin exposure to visible
dusts, fumes, or mists, as well as to soluble compounds and solutions
of beryllium, as was proposed. As stated above, OSHA expects that
revisions in this final rule will maintain worker protections.
    NJH also objected to defining dermal contact with beryllium when
handling finished beryllium products only by the presence of visible
dust, asserting that gloves are warranted because beryllium could
oxidize on the surface (Document ID 0022, p. 7). However, for the
reasons explained below, OSHA considers these comments to be beyond the
scope of the proposal. The agency also notes that the revision NJH's
comment refers to merely clarifies the meaning of the 2017 standard,
rather than modifying it substantively.
    OSHA's revision to the definition of dermal contact with beryllium
clarifies OSHA's intent that the provisions in the standard related to
dermal contact with beryllium do not apply to the handling of solid
beryllium-containing objects that the employer does not process, unless
visible beryllium particulate has contaminated the surface of the
object. OSHA explained in the 2017 final rule that beryllium-containing
solid objects, or ``articles,'' with uncompromised physical integrity
are unlikely to release beryllium that would pose a health hazard for
workers (82 FR at 2640). An article, by definition, ``under normal
conditions of use does not release more than very small quantities,
e.g., minute or trace amounts of a hazardous chemical . . . , and does
not pose a physical hazard or health risk to employees'' (29 CFR
1910.1200(c)). The agency therefore excluded articles that contain
beryllium, and that the employer does not process, from the scope of
the 2017 beryllium standard (see paragraph (a)(3)). OSHA did not intend
for the 2018 NPRM to open the agency's underlying findings on the
handling of beryllium-containing articles, nor their exclusion from the
scope of the standard, for notice and comment. To the extent NJH's
comment challenges the articles exemption, these comments are beyond
the scope of the proposal.
    Nevertheless, even for those solid beryllium-containing objects
that do not fall under the definition of an article, such as ingots
that might be processed further, OSHA notes that PPE would be required
if there is a reasonable expectation that oxidation may result in
visible surface contamination. In its comments on the 2015 NPRM,
Materion explained that beryllium oxides are created through particular
manufacturing processes, typically those involving heating of the
beryllium-containing materials (e.g., hot forming operations, melting,
or heat treating) (see Document ID OSHA-H005C-2006-0870-1662, p. 16).
These operations may give rise to a reasonable expectation of dermal
contact due to the expected oxidization that will occur as a result of
the process. Where there is a reasonable expectation that oxidization
may result in visible surface contamination, an employer must not wait
for the surface to be contaminated to require PPE for potentially
exposed employees. For example, if the surface of a solid object must
be heat treated, and the employer has reason to believe this will
result in surface oxidation absent cleaning the surface, PPE would be
required under this final rule.
    After carefully considering the record of public comments on this
topic, OSHA finds that the revised definition of dermal contact with
beryllium will provide a clearer and more workable definition, without
reducing worker protections. The specification of ``visible dust,
fumes, or mists containing beryllium in concentrations greater than or
equal to 0.1 percent by weight'' and clarification regarding beryllium-
containing articles will allow employers to accurately identify the
employees, particularly those working outside of beryllium work areas
or regulated areas, to whom the provisions triggered by dermal contact
with beryllium apply, including the requirement in paragraph (h) to
provide employees with PPE to protect against reasonably expected
dermal contact with beryllium. The revised definition will also render
more workable the additional provisions in the standard that are
triggered by dermal contact with beryllium, which include provisions in
paragraph (f), Written exposure control plan; paragraph (i), Hygiene
areas and practices; paragraph (k), Medical surveillance; and paragraph
(m), Communication of hazards.
    This final rule better addresses the practical aspects of a
``reasonable expectation'' trigger for PPE than did the previous rule,
which could have been read as effectively requiring employees to wear
PPE facility-wide, even when not in proximity to beryllium generating
processes, such as in administrative offices. OSHA believes that use of
PPE in that circumstance is unwarranted and would not meaningfully
enhance worker protections against beryllium exposure. Where an
employer has a reasonable expectation that even very small amounts of
beryllium dust, fume, or mist might spread outside of beryllium work
areas, they might have interpreted the language of the previous rule to
require all employees in the facility to wear PPE all of the time. OSHA
did not intend and did not cost the previous rule as requiring PPE to
protect against dermal contact with non-visible beryllium dust, fumes,
or mists outside of beryllium work areas. The addition of a visual cue
will enable employers to accurately identify the employees outside of
beryllium work

areas who need to wear PPE due to their reasonably-expected dermal
contact with beryllium.
    As OSHA explained in the 2018 NPRM (83 FR at 63752), the agency
expects that the use of PPE will always be required in beryllium work
areas because both the operations listed in Appendix A and those that
can be reasonably expected to generate exposure at or above the action
level would create a reasonable expectation of dermal contact with
beryllium. This expectation is based, in part, on a study conducted by
NIOSH and Materion and published in the Journal of Occupational and
Environmental Hygiene (Document ID OSHA-H005C-2006-0870-0502, p. 791).
In the 2018 NPRM, OSHA explained that this study identified a strong
correlation between airborne beryllium concentrations and the amount
measured on gloves worn by workers at multiple beryllium facilities and
jobs, indicating the potential for skin exposure where airborne
beryllium is present. The study further concluded that this correlation
implies that one type of measurement can be indicative of other
exposure pathways (Document ID OSHA-H005C-2006-0870-0502, p. 791). OSHA
further explained that the expectation of dermal contact within
beryllium work areas is also based on OSHA's review of data collected
during site visits conducted by the agency that cover a wide range of
processes (e.g., furnace and melting operations, casting, grinding/
deburring, machining and stamping) and a wide range of materials
including beryllium composite, beryllium alloy, and beryllium oxide.
The data show that those operations that would create a reasonable
expectation of dermal contact, either through beryllium surface
contamination or skin contamination, are covered either by proposed
Appendix A or have exposures above the action level (see Document ID
OSHA-H005C-2006-0870-0341).
    In its comment, Materion questioned OSHA's reliance on the 2007 Day
et al. study (82 FR at 2488-89) and suggested that, contrary to OSHA's
statement, Day did not identify a ``strong correlation'' between
airborne concentrations and skin exposure (Document ID 0038, pp. 13-
14). Materion cited Day's finding of a potential for greater transfer
of beryllium from surfaces to cotton gloves that could lead to an
overestimation of the amount of beryllium transferred. OSHA disagrees
with Materion's assessment of the Day study. Day indicates that the
underlying assumption that glove-sampling techniques actually remove
the majority of the contamination may be overstated and that the
surface and skin wipe samples may underestimate the mass of beryllium
that is present. The Day study demonstrates that there is a correlation
between airborne and potential for skin exposures (Document ID OSHA-
H005C-2006-0870-1548, p. 79).
    As OSHA discussed in the NPRM, this finding is supported by a
follow-up study by Armstrong et al. (2014) conducted at four different
Materion manufacturing locations over a wide variety of jobs. This
study also showed strong positive correlations between air, dermal, and
surface exposures among the four different facilities that process
beryllium (Document ID OSHA-H005C-2006-0870-0502, p. 791). The study
further concludes that this correlation implies that one type of
measurement can be indicative of other exposure pathways. OSHA finds
that these studies demonstrate a correlation between airborne exposure
and the reasonable expectation of dermal contact.\16\
---------------------------------------------------------------------------

    \16\ Materion also asserted that the evidence in the record is
insufficient to conclude that ``dermal contact alone is sufficient
to create a significant risk of CBD or even beryllium
sensitization'' (Document ID 0038, pp. 14-15). However, in the 2017
final rule, OSHA specifically found that that dermal exposure can
result in sensitization (see 82 FR at 2489). The 2018 NPRM did not
propose revisiting this finding.
---------------------------------------------------------------------------

    In the 2018 NPRM, OSHA specifically requested comments on whether
processes exist that could trigger the creation of a beryllium work
area, but could be reasonably expected to release only non-visible
beryllium-containing dusts, fumes, or mists. No commenter provided
evidence of such processes. Materion asserted that OSHA should not
``automatically classify'' beryllium work areas as having a reasonable
expectation of dermal contact because this would serve as ``a serious
disincentive for employers to eliminate exposure meeting the definition
of dermal contact'' (Document ID 0038, p. 15). However, Materion did
not explain how such a presumption would serve as a disincentive and,
more importantly, did not identify any process that could trigger the
creation of a beryllium work area while not also, in fact, creating a
reasonable expectation of dermal contact.
    Accordingly, OSHA reaffirms its expectation that both the
provisions associated with beryllium work areas (listed above) and the
provisions associated with dermal contact with beryllium would apply to
employees in a beryllium work area. OSHA expects that employers will,
for each beryllium work area, assess the PPE needs as required by
paragraph (f)(1) and OSHA's Personal Protective Equipment standards
(subpart I of 29 CFR 1910) and provide their employees with appropriate
PPE.
    Because it will help employers identify which employees have, or
can be reasonably expected to have, dermal contact with beryllium, the
revised definition will allow employers to more accurately comply with
the requirement in paragraph (f)(1)(i)(A) to establish, implement, and
maintain a written exposure control plan that includes a list of
operations and job titles reasonably expected to involve airborne
exposure to or dermal contact with beryllium. OSHA expects that the
list would likely include all operations and job titles in beryllium
work areas, along with any additional operations or job titles for
employees whose skin could be exposed to visible beryllium dust, fumes,
or mists in concentrations of 0.1 percent by weight or more. Under the
previous definition, employers could have reasonably interpreted the
standard as requiring them to list the job title for every employee at
the facility who could come into contact with a minute and non-visible
amount of beryllium particulate, including employees who do not work in
proximity to beryllium-releasing processes.
    Similarly, the revised definition will facilitate employer
compliance with the requirement to provide information and training (in
accordance with the Hazard Communication standard (29 CFR 1910.1200(h))
to each employee who has, or can reasonably be expected to have,
airborne exposure to or dermal contact with beryllium by the time of
the employee's initial assignment and annually thereafter (paragraphs
(m)(4)(i)(A)-(C)). Under this requirement, employees entitled to
training include all employees who work in beryllium work areas and any
other employees who may not be working directly with a beryllium-
generating process, but who may nonetheless reasonably be expected to
have airborne exposure to and/or skin contact with soluble beryllium,
beryllium solutions, or visible beryllium dust, fumes, or mists in
concentrations of 0.1 percent by weight or more. As discussed
previously, OSHA intends the revised definition of dermal contact with
beryllium to provide employers with a workable indicator for
determining which employees outside of beryllium work areas should
receive this information and training.
    Because the change would allow employers to more accurately
identify areas where provisions related to dermal contact should apply,
the revised

definition would also facilitate proper compliance with paragraph
(i)(1)(ii), which requires employers to ensure employees who have
dermal contact with beryllium wash any exposed skin at the end of the
activity, process, or work shift and prior to eating, drinking,
smoking, chewing tobacco or gum, applying cosmetics, or using the
toilet. OSHA's revisions to the definition of dermal contact with
beryllium would prevent employers from speculating that all employees
in a facility, including those employees who do not work near
beryllium-releasing processes, must wash their exposed skin because
they might have come into contact with non-visible beryllium
particulate or handled articles that contain beryllium. Such an
interpretation would be contrary to OSHA's intent.
    The revised definition is designed to further improve employer
compliance with the requirements in paragraph (k) to offer employees a
medical examination including a medical and work history that
emphasizes past and present airborne exposure to or dermal contact with
beryllium (paragraph (k)(3)(ii)(A)), and to provide the examining
physician or other licensed health care professional (PLHCP) (and the
agreed-upon CBD diagnostic center, if such an evaluation is required)
with a description of the employee's former and current duties that
relate to the employee's airborne exposure to and dermal contact with
beryllium (paragraph (k)(4)(i)). Because it would improve employers'
ability to identify when dermal contact with beryllium has occurred or
could occur, this change would permit employers to accurately complete
employee medical and work histories and the reports that they must
provide to examining PLHCPs or CBD diagnostic centers. As with the
provisions discussed above, OSHA's revisions to the definition of
dermal contact with beryllium will prevent employers from including
superfluous information in these medical and work histories and reports
because they are concerned that an employee might have conceivably had
skin contact with minute, non-visible beryllium particulate or handled
beryllium-containing articles outside of a beryllium work area. Such an
expansive interpretation is again contrary to OSHA's intent.
    OSHA is adding two references to dermal contact with beryllium in
paragraph (i), Hygiene areas and practices, to account for the final
rule's changes to the definition of beryllium work area in paragraph
(b). Paragraph (i) in the previous rule included requirements for
employers to provide each employee working in a beryllium work area
with readily accessible washing facilities (paragraph (i)(1)(i)) and a
designated change room where employees are required to remove their
personal clothing (paragraph (i)(2)). But, as explained earlier in this
section, OSHA is revising the definition of beryllium work area so that
the requirement to establish these areas is no longer triggered on the
potential for dermal contact with beryllium.
    OSHA intends for the washing facilities and change rooms
requirements to apply where employees are reasonably expected to have
dermal contact with beryllium, regardless of whether they work in a
beryllium work area, as now defined in this final rule. As discussed
above, there may be employees outside of the beryllium work area that
may have a reasonable expectation of dermal contact with beryllium.
Therefore, as was proposed, OSHA is adding two additional references to
dermal contact with beryllium to paragraph (i). First, OSHA is revising
paragraph (i)(1) so that the requirements would apply to each employee
who works in a beryllium work area or who can reasonably be expected to
have dermal contact with beryllium. Paragraph (i)(1)(i) would then
require employers to provide washing facilities to all employees who
can be reasonably expected to have dermal contact with beryllium.
Second, OSHA is revising paragraph (i)(2) so that employers are
required to provide change rooms to employees who are required to use
personal protective clothing or equipment under paragraph (h)(1)(ii),
if those employees are required by the employer to remove their
personal clothing. Because paragraph (h)(1)(ii) requires the use of PPE
where there is a reasonable expectation of dermal contact with
beryllium, the change to paragraph (i)(2) ensures that the requirement
for change rooms would continue to protect those employees who can
reasonably be expected to have dermal contact with beryllium.
    Methods of Compliance.
    Paragraph (f) of the beryllium standard for general industry
contains provisions covering methods for reducing employee exposure to
beryllium through the use of a written exposure control plan and
engineering and work practice controls. Paragraph (f)(1) sets forth the
requirements for written exposure control plans. Paragraph (f)(1)(i)
requires employers to establish, implement, and maintain such a plan,
and paragraphs (f)(1)(i)(A)-(H) specifies the information and
procedures that must be included in the plan. Paragraph (f)(1)(ii)
directs employers to review and evaluate each plan at least annually
and update it under specified circumstances.
    In the 2018 NPRM, OSHA proposed two wording changes to paragraph
(f)(1) (83 FR at 63754). The first proposed change relates to the
contents of the written exposure control plan. Under paragraph
(f)(1)(i)(D), employers were previously required to include procedures
in their plans for minimizing cross-contamination, ``including
preventing the transfer of beryllium'' between surfaces, equipment,
clothing, materials, and articles within beryllium work areas. OSHA
proposed removing the word ``preventing'' from the regulatory text to
clarify that these procedures may not totally eliminate the transfer of
beryllium, but should minimize cross-contamination of beryllium,
including between surfaces, equipment, clothing, materials, and
articles.
    The second proposed change involves one of the circumstance when
employers must update their written exposure control plans. Paragraph
(f)(1)(ii)(B) of the standard directed employers to update the written
exposure control plan, as necessary, when they are notified that an
employee is eligible for medical removal in accordance with paragraph
(l)(1), referred for evaluation at a CBD diagnostic center, or shows
signs or symptoms associated with ``airborne exposure to or dermal
contact with beryllium.'' In the 2018 NPRM, OSHA proposed to replace
the phrase ``airborne exposure to and dermal contact with beryllium''
with ``exposure to beryllium.'' The agency explained that the change
would simplify the language of the provision while still capturing all
potential exposure scenarios currently covered. Because these proposed
changes are merely clarifying, OSHA explained that it expected that
they would maintain safety and health protections for workers.
    All of the stakeholders that submitted comments related to OSHA's
proposed changes to the written exposure control plan provisions
supported the changes (see, e.g., Document ID 0031, p. 2; 0038, p. 31).
For example, EEI observed that OSHA's discussion of the proposed
changes were appropriate modifications to the beryllium standard
(Document ID 0031, p. 2). Materion also supported the proposed changes
and agreed with OSHA that these proposed changes are merely clarifying,
and that they will maintain safety and health protections for
employees. In addition, Materion noted that it ``identifie[d] no
reduction

in protection to employees associated with these clarifying language
revisions'' (Document ID 0038, p. 31).
    After reviewing these comments and considering the record as a
whole, OSHA has determined that the proposed changes will clarify for
employers the requirements of the written exposure control plan without
sacrificing safety and health protections for workers. Therefore, OSHA
is finalizing the proposed changes to paragraph (f) in this final rule.
    Personal Protective Clothing and Equipment.
    Paragraph (h) of the beryllium standard for general industry
requires employers to provide employees with personal protective
clothing and equipment (PPE) where employee exposure exceeds, or can
reasonably be expected to exceed, the TWA PEL or STEL, or where there
is a reasonable expectation of dermal contact with beryllium. Paragraph
(h) also contains provisions for the safe removal, storage, cleaning,
and replacement of the PPE required by this standard. As explained in
the 2017 final rule preamble, these PPE requirements are intended to
protect employees by preventing dermal exposure to beryllium and the
accumulation of airborne beryllium on PPE, and to protect employees and
other individuals both inside and outside the workplace from exposures
that could occur if contaminated clothing were to transfer beryllium
(82 FR at 2678).
    In the 2018 NPRM, OSHA proposed two changes to paragraph (h). The
first revision relates to paragraph (h)(2)(i), which addresses removal
and storage of PPE. Paragraph (h)(2)(i) previously required employers
to ensure that each employee removes all beryllium-contaminated PPE at
the end of the work shift, ``at the completion of tasks involving
beryllium,'' or when PPE becomes visibly contaminated with beryllium,
whichever comes first. OSHA proposed modifying the phrase ``at the
completion of tasks involving beryllium'' by changing ``tasks'' to
``all tasks,'' so that it reads ``at the completion of all tasks
involving beryllium'' (83 FR at 63754).
    OSHA explained in the 2018 NPRM that this revision to paragraph
(h)(2)(i) merely clarifies the trigger for when employees must remove
beryllium-contaminated PPE, consistent with the agency's original
intent (83 FR at 63754). As expressed in the preamble to the 2017 final
rule, OSHA intended that PPE contaminated with beryllium should not be
worn after tasks involving beryllium exposure have been completed for
the day (82 FR at 2682). Thus, when employees perform multiple tasks
involving beryllium successively or intermittently throughout the day,
the employer must ensure that each employee removes all beryllium-
contaminated PPE at the completion of the set of tasks involving
beryllium, not necessarily after each separate task. If, however,
employees perform tasks involving beryllium exposure for only a portion
of a work shift, and then perform tasks that do not involve exposure to
beryllium, the employer must ensure that employees remove their PPE
after the beryllium exposure period. Unless the PPE becomes visibly
contaminated with beryllium, OSHA did not intend this provision to
require multiple PPE changes throughout the work shift. Thus, the
proposed revision to paragraph (h)(2)(i) clarifies OSHA's original
intent.
    OSHA received multiple comments in support of the proposed change
to paragraph (h)(2)(i). The USW commented that it believes the change
is reasonable and clarifies the intent of the standard (Document ID
0033, p. 6). Similarly, Century Aluminum expressed its support for this
``sensibl[e]'' revision, commenting that it is an example of a logical
and workable requirement that will produce better work practices and
habits and, in turn, improve employee health and safety outcomes
(Document ID 0026, p. 2). In addition, Century Aluminum commented that
requiring PPE to be changed after every task would ``significantly
increase costs without increasing employee health and safety'' and
could actually increase the amount of time employees are exposed to
beryllium, thus increasing their risk of sensitization and disease
(Document ID 0026, p. 2). Materion also expressed its general support
for the ``clarifying language revisions'' to paragraph (h) (Document ID
0038, p. 32).
    OSHA also received two comments opposing the proposed change to
paragraph (h)(2)(i). A private citizen commented that, although OSHA
did not intend to require continuous PPE changes throughout a work
shift, doing so seemed necessary to limit transmission of contaminant
between workers and work areas (Document ID 0017). And another private
citizen commented that if a worker's suit is contaminated, the worker
should be required to change even if the suit is not visibly
contaminated (Document ID 0019).
    OSHA does not believe it is necessary for workers to change PPE
after each work task, or after each instance of PPE contamination, in
order to limit the spread of beryllium particulate between work areas
because, absent visible contamination of PPE, any contamination present
will likely be minute and will not contaminate other work areas to such
a degree as to materially increase worker exposures. Furthermore, as
explained in the preamble to the 2017 final rule (82 FR at 2682),
because the purpose of PPE is to serve as a barrier between an
employee's body and ambient or surface beryllium, PPE becomes
contaminated with beryllium immediately as part of its protective
function. Requiring PPE to be changed upon contamination with any
amount of beryllium is unreasonable and unnecessary to protect
employees. This is because contamination of PPE with beryllium during
work processes does not reduce the effectiveness of PPE or create
hazards to employees unless sufficient beryllium accumulates on the PPE
to impair its function or create additional exposures, such as by
dispersing accumulated beryllium into the air. Moreover, the process of
changing contaminated PPE can create opportunities for both inhalation
exposure and dermal contact with beryllium. Accordingly, the use of
``visibly contaminated'' protects employees from potential exposures
while changing PPE by limiting the requirement to change PPE during
work tasks involving beryllium exposure to those circumstances when
changing it is necessary to maintain its protective function and
prevent deposits of beryllium from accumulating and dispersing.
    Notably, the USW commented that it believes including the term
``visibly contaminated'' in the provision provides for employee safety
(Document ID 0033, pp. 6-7), and Materion similarly stated that
``visibility [of beryllium-contaminated PPE and equipment] is a
conservative, stringent'' trigger that ``also has the benefit of
compliance clarity'' (Document ID 0038, p. 32). After reviewing these
comments and considering the record as a whole, OSHA finds that the
proposed change in paragraph (h)(2)(i) is reasonably necessary and
appropriate and has retained the revised language in the final rule.
    The second proposed revision relates to paragraph (h)(3)(iii),
which addresses cleaning and replacement of PPE. This paragraph
required employers to inform in writing the persons or the business
entities who launder, clean, or repair the PPE required by this
standard of the potentially harmful effects of ``airborne exposure to
and dermal contact with beryllium.'' The 2018 NPRM proposed replacing
the phrase ``airborne exposure to and dermal contact with beryllium''

with ``exposure to beryllium'' (83 FR at 63755). OSHA explained that
this change simplifies the language of the provision while still
capturing all potential exposure scenarios currently covered; and, as
such, the agency concluded that the revised language will maintain
safety and health protections for workers. OSHA received no comments on
this proposed change beyond Materion's general support for the
clarifying revisions to paragraph (h) as a whole (Document ID 0038, p.
32). OSHA is therefore retaining the proposed revision to paragraph
(h)(3)(iii) in the final rule.
    Hygiene Areas and Practices.
    Paragraph (i) of the beryllium general industry standard requires
that the employer provide employees with readily accessible washing
facilities, change rooms, and showers when certain conditions are met;
requires the employer to take certain steps to minimize exposure in
eating and drinking areas; and prohibits certain practices that may
contribute to beryllium exposure. As explained in the 2017 final rule,
OSHA believes that strict compliance with these provisions will reduce
the amount and duration of employees' airborne exposure and dermal
contact with beryllium (82 FR at 2683-88).
    In the 2018 NPRM, OSHA proposed three changes to paragraph (i) of
the general industry standard. The agency proposed the first two
changes (83 FR at 63755), which apply to paragraphs (i)(1) and (i)(2),
to maintain the protections included in these paragraphs for employees
who have dermal contact with beryllium notwithstanding the proposed
change to the definition of beryllium work area, discussed previously
in this Summary and Explanation. OSHA proposed the third change, which
applies to paragraph (i)(4), to clarify the requirements for cleaning
beryllium-contaminated PPE prior to entering an eating or drinking area
(83 FR at 63755-56).
    As explained in the previous discussion of changes to the
definition of beryllium work area, OSHA proposed and has finalized
these changes to the definition of beryllium work area to clarify where
a beryllium work area must be established. One of these changes removes
dermal contact with beryllium as one of the triggers that requires an
employer to establish a beryllium work area. As explained in the 2018
NPRM, OSHA intended for the hygiene provisions related to washing
facilities and change rooms to continue to apply to all employees who
can reasonably be expected to have dermal contact with beryllium,
regardless of whether they work in beryllium work areas as defined in
the revised definition (83 FR at 63755). OSHA accordingly proposed two
changes.
    First, OSHA proposed a change in the wording of paragraph (i)(1),
which required that ``[f]or each employee working in a beryllium work
area,'' the employer must provide readily accessible washing facilities
to remove beryllium from the hands, face, and neck; and ensure that
employees who have dermal contact with beryllium wash any exposed skin
at specific designated times. The 2018 NPRM proposed amending the
language to apply to ``each employee . . . who can reasonably be
expected to have dermal contact with beryllium,'' in addition to each
employee working in a beryllium work area (83 FR at 63768).
    Second, OSHA proposed a change in the wording of paragraph (i)(2),
which required employers to provide ``employees who work in a beryllium
work area,'' with a designated change room where employees are required
to remove their personal clothing. OSHA proposed revising paragraph
(i)(2) to require employers to provide a designated change room to
employees who are required to use personal protective clothing or
equipment under paragraph (h)(1)(ii) of the beryllium standard, instead
of to employees who work in a beryllium work area (83 FR at 63768).
Paragraph (h)(1)(ii) of the beryllium standard requires the provision
and use of appropriate PPE where there is a reasonable expectation of
dermal contact with beryllium. The requirement to provide change rooms
would continue to apply only where employees are required to remove
their personal clothing. As noted above and explained in the 2018 NPRM,
the proposed changes to paragraphs (i)(1) and (i)(2) were merely
intended to ensure that the hygiene provisions related to washing
facilities and change rooms would continue to protect employees who are
reasonably expected to have dermal contact with beryllium, if the
agency adopted the proposed revised definition of the term beryllium
work area.
    OSHA also proposed a third change, which applies to paragraph
(i)(4), in order to clarify the requirements for cleaning beryllium-
contaminated PPE prior to entering an eating or drinking area.
Paragraph (i)(4)(ii) required the employer to ensure that no employees
enter any eating or drinking area with beryllium-contaminated personal
protective clothing or equipment unless, prior to entry, surface
beryllium has been removed from the clothing or equipment by methods
that do not disperse beryllium into the air or onto an employee's body.
In the 2018 NPRM, OSHA proposed to modify this paragraph to require the
employer to ensure that, before employees enter an eating or drinking
area, beryllium-contaminated PPE is cleaned, as necessary, to be as
free as practicable of beryllium by methods that do not disperse
beryllium into the air or onto an employee's body (83 FR at 63768). The
agency explained that this proposed change would clarify that OSHA does
not expect the methods used to clean PPE prior to entering an eating or
drinking area to completely eliminate residual beryllium from the
surface of the PPE if complete elimination is not practicable (83 FR at
63755-56). OSHA also explained that this is consistent with its
determination, expressed in the preamble to the 2017 final rule, that
``as free as practicable'' is ``the most appropriate terminology for
requirements pertaining to surface cleanliness'' (82 FR at 2687). This
proposed clarification also aligns the language of paragraph (i)(4)(ii)
with the language of paragraph (i)(4)(i), which requires employers to
ensure that beryllium-contaminated surfaces in eating and drinking
areas are as free as practicable of beryllium. Finally, OSHA explained
that requiring cleaning only ``as necessary'' would clarify that
cleaning would not be required if the PPE is already as free as
practicable of beryllium. OSHA stated that it expected these proposed
changes to paragraph (i) would maintain safety and health protections
for workers.
    Commenters expressed broad support for OSHA's proposed changes to
paragraph (i) (see, e.g., Document ID 0029, p. 1; 0031, p. 2; 0033, p.
6; 0038, p. 32). For example, EEI observed that the proposed changes to
this paragraph as a whole were appropriate modifications to the
beryllium standard (Document ID 0031, p. 2) and DOD generally agreed
with the proposed changes, commenting that they are evidence based and
provide greater employee protections (Document ID 0029, p. 1). Materion
also supported the proposed changes to paragraph (i) as a whole, and
agreed with OSHA that these proposed changes are merely clarifying, and
that they will maintain safety and health protections for employees
(Document ID 0038, p. 32; see also Document ID 0034 and 0035, p. 1
(supporting and endorsing the comments submitted by Materion)).
    OSHA did not receive any comments that specifically addressed the
two proposed changes to paragraphs (i)(1) and (i)(2). The agency is
therefore

adopting the changes to those paragraphs as proposed.
    Stakeholders also did not submit any comments on the majority of
the agency's proposed changes to paragraph (i)(4). A DOD comment
specifically addressed the term ``as free as practicable,'' suggesting
that because the term is not defined, OSHA should require employers to
establish procedures for cleaning PPE, document accomplishment of
procedures, and periodically review compliance with cleaning procedures
(Document ID 0029, p. 2). The USW supported the proposed change for
cleaning PPE ``as necessary,'' agreeing with OSHA's explanation in the
2018 NPRM that requiring cleaning only as necessary would clarify that
cleaning would not be required if the PPE is already as free as
practicable of beryllium (Document ID 0033, p. 6).
    The requirement to maintain surfaces as free as practicable of a
regulated substance is included in other OSHA health standards, such as
those for lead (29 CFR 1910.1025, 29 CFR 1926.62), chromium (VI) (29
CFR 1910.1026), and asbestos (29 CFR 1910.1001), and is used elsewhere
in the beryllium general industry standard (29 CFR
1910.1024(f)(1)(i)(E), (i)(4)(i), (j)(1)(i), (j)(3)(ii)). Employers
therefore have the benefit of previous experience interpreting and
developing methods for compliance with requirements to maintain
surfaces ``as free as practicable'' of toxic substances, including
beryllium, as well as guidance from OSHA on compliance with such
requirements. OSHA discussed the meaning of this phrase in the Summary
and Explanation of paragraph (j) in the 2017 final rule (82 FR at
2690), as well as in a 2014 letter of interpretation explaining the
phrase in the context of the agency's standard for chromium (VI) (OSHA,
Nov. 5, 2014, Letter of Interpretation, available at https://www.osha.gov/laws-regs/standardinterpretations/2014-11-05). As OSHA
explained in the 2014 letter of interpretation, OSHA evaluates whether
a surface is ``as free as practicable'' of a contaminant by the
efficacy of the employer's program to keep surfaces clean. OSHA intends
for this term to be broad and performance-oriented, so as to allow
employers in a variety of industries flexibility to decide what type of
control methods and procedures are best suited to their beryllium
operations, and OSHA intends to evaluate compliance based on employer
efforts under the circumstances present at each facility. Notably, in
its comment, Materion expressed general support for use of the phrase
``as free as practicable'' in other parts of the standard,
acknowledging that this is the workable legal standard OSHA relies on
in occupational health standards (Document ID 0038, pp. 25-26, 33).
    Moreover, as to DOD's recommendation that OSHA require employers to
establish procedures for cleaning PPE, document accomplishment of
procedures, and periodically review compliance with cleaning procedures
(Document ID 0029, p. 2), OSHA agrees that requiring employers to
establish PPE cleaning procedures is important. To meet this objective,
the written exposure control plan provision in paragraph (f)(1)(i)
requires employers to establish, implement, and maintain a written
exposure control plan, which must contain, among other things,
procedures for removing, laundering, storing, cleaning, repairing, and
disposing of beryllium-contaminated personal protective clothing and
equipment, including respirators. Paragraph (f)(1)(ii) requires
employers to review and evaluate the effectiveness of each written
exposure control plan at least annually and update it, as necessary, if
certain specified events occur. OSHA believes that these requirements
satisfy DOD's concerns while still allowing employers the flexibility
to establish, implement, and maintain a plan that works best for their
individual workplaces.
    After reviewing these comments and considering the record as a
whole, OSHA believes that the term ``as free as practicable'' is
understood by employers through its use in other standards and as
explained in letters of interpretation and other guidance, and does not
believe that defining the term in this standard or establishing
specific PPE cleaning and documentation procedures is necessary. OSHA
also believes the proposed change is necessary to align the language of
paragraphs (i)(4)(i) and (i)(4)(ii). OSHA did not receive any comments
objecting to the revised requirement that PPE be ``cleaned, as
necessary,'' which makes clear that cleaning would not be required if
PPE is already as free as practicable of beryllium. OSHA believes these
changes clarify the agency's intent without sacrificing safety and
health protection for workers. The agency is therefore adopting the
changes as proposed to paragraph (i)(4)(ii) in this final rule.
    Disposal, Recycling, and Reuse.
    Paragraph (j) of the beryllium general industry standard requires
employers to adhere to certain housekeeping practices. Paragraphs
(j)(1) and (j)(2) require employers to maintain all surfaces in
beryllium work areas as free as practicable of beryllium, promptly
clean spills and emergency releases of beryllium, and use appropriate
cleaning methods, while paragraph (j)(3) requires employers to take
certain actions when transferring materials that contain at least 0.1
percent beryllium by weight or that are contaminated with beryllium
outside a plant for the purpose of disposal, recycling, or reuse.
Specifically, paragraph (j)(3)(i) requires that, except for intra-plant
transfers, when transferring these materials for any of these purposes
the employer must label the materials in accordance with paragraph
(m)(3). Paragraph (j)(3)(ii) further requires that those materials
designated for disposal must be either cleaned to be as free as
practicable of beryllium or placed in enclosures that prevent the
release of beryllium-containing particulate or solutions under normal
conditions of use, storage, or transport, such as bags or containers.
Paragraph (j)(3)(iii) requires the same for materials designated for
recycling or reuse.
    The final rule makes a number of changes to the previous
requirements of paragraph (j)(3). As originally promulgated in the 2017
final rule, paragraph (j)(3)(i) required that materials designated for
disposal be disposed of in sealed, impermeable enclosures, such as bags
or containers, that are labeled according to paragraph (m)(3) of the
beryllium standard, but did not allow employers the alternative option
of cleaning such material to be as free as practicable of beryllium.
Further, both paragraphs (j)(3)(i) and (j)(3)(ii) required that
materials be transferred in sealed, impermeable bags, but did not
further define this requirement. Finally, the original paragraph (j)(3)
did not explicitly address transfers of materials for the purpose of
reuse.\17\
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    \17\ Subsequent to the 2017 final rule, the 2018 direct final
rule clarified that the requirements of paragraph (j)(3) do not
apply to materials containing only trace amounts of beryllium (less
than 0.1 percent by weight).
---------------------------------------------------------------------------

    After the promulgation of the final rule in 2017, OSHA learned that
some stakeholders were confused about these requirements. For example,
stakeholders were uncertain about what types of enclosures would be
acceptable under the standard. To help alleviate stakeholder confusion,
OSHA proposed a number of changes in the 2018 NPRM that make explicit
what had been intended in the 2017 final rulemaking. Specifically, OSHA
proposed adding provisions explicitly addressing transferring materials
for reuse; clarifying that the rule's requirements for disposal,
recycling, and reuse do not apply to intra-plant transfers; and

allowing for the cleaning of materials bound for disposal. The agency
also proposed reorganizing the paragraph's two paragraphs into three
that focused on specific topics and making minor changes in terminology
to improve the clarity and internal consistency of the standard. Only
one of the changes is substantive, which is the inclusion of the option
for cleaning instead of enclosure; the remaining edits merely clarify
OSHA's original intent. As discussed in more detail below, OSHA is
retaining the changes proposed in the 2018 NPRM in the final rule with
only one clarifying revision. With these changes, final paragraph
(j)(3) provides comprehensive, easy to understand requirements for
employers that are transferring materials outside of their plants for
disposal, recycling, or reuse that contain at least 0.1 percent
beryllium by weight or are contaminated with beryllium.
    In response to the 2018 NPRM, a number of commenters, including the
DOD, Materion, the USW, and EEI, expressed support for the proposed
revisions generally (see, e.g., Document ID 0029, p. 1; 0038, pp. 32-
33; 0033, p. 5; 0031, p. 2). For example, DOD stated that the revisions
``are evidence based and provide greater employee protection''
(Document ID 0029, p. 1). Similarly, Materion commented that the
revisions ``will provide improved understanding and more practical
meaning to manufacturers by improving the clarity and internal
consistency of the standard'' (Document ID 0038, p. 32).
    Stakeholders also offered specific comments on the individual
changes OSHA proposed to paragraph (j)(3). OSHA outlines each of those
changes below, along with any specific comments received on those
changes and the agency's final determination as to whether to retain
the proposed change in the final rule.
    OSHA proposed seven changes to the 2017 version of paragraph
(j)(3). First, the agency proposed that the provisions address reuse
(in addition to disposal and recycling). As noted above, paragraph
(j)(3) of the 2017 final rule contained requirements for the labeling
and enclosure of certain materials designated for disposal and the
labeling and either enclosure or cleaning of materials designated for
recycling. The preamble to the 2017 final rule made clear that
paragraph (j)(3)'s requirements related to recycling also applied to
reuse (see 82 FR at 2695-96), but the standard did not explicitly
advise employers of this requirement. To make the agency's original
intent clear, OSHA proposed in the 2018 NPRM to include provisions
addressing reuse. This proposed change was intended to ensure that
workers who may be exposed to materials containing or contaminated with
beryllium that are directly reused without first being processed into a
different form are appropriately protected. For example, a manufacturer
may sell a by-product from a process to a downstream manufacturer that
would reuse the by-product as a component of a new product. Recycling,
on the other hand, typically involves the further processing of waste
materials to separate and recover various components of value. OSHA did
not receive any specific comments on the addition addressing reuse of
materials in paragraph (j)(3). Therefore, OSHA has finalized the
inclusion of requirements related to the reuse of materials in
paragraph (j)(3).
    Second, OSHA proposed reorganizing paragraph (j)(3)'s original two
paragraphs (one on disposal, one on recycling--with the labeling
requirements specified in each) into three new paragraphs with each
paragraph focusing on a different topic. Proposed paragraph (j)(3)(i)
spelled out the labeling requirements, proposed paragraph (j)(3)(ii)
included the requirements for cleaning or enclosing materials bound for
disposal, and proposed paragraph (j)(3)(iii) laid out the obligations
as to materials designated for recycling or reuse. The proposed
reorganization allowed the agency to incorporate the new reuse
requirements, while also setting out each distinct obligation clearly.
OSHA further explained in the proposal that this is not a substantive
change to the standard, but rather only a reorganization of the
existing provisions (see 83 FR at 63763). One commenter, Materion,
addressed the reorganization of paragraph (j)(3), noting that the
change would improve the clarity and employers' understanding of the
provisions (Document ID 0038, p. 32). Having received no comments to
the contrary, OSHA is adopting the new structure to paragraph (j)(3) in
the final rule.
    Third, OSHA proposed a simplifying change relating to the
description of which materials must be labeled and cleaned or enclosed
prior to transfer for disposal, recycling, or reuse. The 2018 direct
final rule required employers to label and clean or enclose two groups
of materials: (1) Materials that contain beryllium in concentrations of
0.1 percent by weight or more, and (2) materials that are contaminated
with beryllium. In the 2018 NPRM, OSHA proposed a simplifying edit to
the first group of materials. Specifically, the agency proposed
replacing the phrase materials ``that contain beryllium in
concentrations of 0.1 percent by weight or more'' with a shorter
phrase: Materials ``that contain at least 0.1 percent beryllium by
weight.'' As the agency explained in the 2018 NPRM, this change is
meant to simplify the language and does not change the meaning. OSHA
did not receive any comments on the proposed simplification of this
language. Therefore, OSHA is adopting the new phrase ``that contain at
least 0.1 percent beryllium by weight'' in paragraph (j)(3) in the
final rule.
    Fourth, OSHA proposed adding an explicit exemption for materials
transferred within a plant from the cleaning and enclosure requirements
in new paragraphs (j)(3)(ii) and (iii). While this exemption was not
explicitly included in the regulatory text of the 2017 final rule, its
inclusion in this final rule is not a substantive change. As OSHA noted
in the 2018 NPRM, the agency never intended the provisions of paragraph
(j)(3) to require employers to clean or enclose materials to be used in
another location within the same facility (83 FR at 63756 (citing 82 FR
at 2696)).\18\ Thus, the inclusion of the exemption in the proposed
regulatory text simply makes the agency's intent plain.
---------------------------------------------------------------------------

    \18\ As OSHA noted in the 2018 NPRM, employees who may be
exposed to these materials during intra-plant transfers will not go
unprotected. On the contrary, other provisions of the beryllium
standard require employers to communicate possible hazards to these
employees and protect them during such transfers (see, e.g.,
paragraph (f), Methods of compliance; paragraph (g), Respiratory
protection; paragraph (h), Personal protective clothing and
equipment; paragraph (m), Communication of hazards).
---------------------------------------------------------------------------

    The USW supported the proposed inclusion of the ``intra-plant
transfer'' exemption in the regulatory text (Document ID 0033, p. 5).
Specifically, the USW pointed to its comments on OSHA's 2015 NPRM,
which stated that the agency should not require all materials to be
decontaminated or sealed in an enclosure (Document ID 0033, p. 5).
Rather, the USW explained, the initial intent of the corresponding
provision of the model standard it drafted jointly with Materion was
``to ensure that materials leaving a facility and designated for
recycling be containerized or visibly clean'' (Document ID 0033, p. 5)
(emphasis added).
    DOD did not submit a comment on the proposed intra-plant transfer
exception, but its comment on another part of paragraph (j)(3)
suggested that it understood the paragraph to apply to intra-plant
transfers (see Document ID

0029, p. 1 (``To support the proposed revisions that require surface
cleaning of equipment and materials to remove beryllium before
recycling, re-use, or intra-plant transfers, we recommend the use of
the Department of Energy's (DOE's) cleanliness standards as specified
in Title 10 Code of Federal Regulations Part 850.'')).\19\ As discussed
below, OSHA does not agree with DOD's suggested use of DOE's surface
limits and, as already stated, OSHA never intended to require employers
to clean or enclose materials transferred within a single plant.
Rather, the provisions in paragraph (j)(3) have always been intended to
protect employees after the materials leave the facility.
---------------------------------------------------------------------------

    \19\ DOD's suggestion regarding DOE's cleanliness standards is
addressed below in this section of this final rule as part of the
discussion of the seventh and final proposed change to paragraph
(j)(3) relating to the cleaning of materials designated for
disposal, recycling, or reuse.
---------------------------------------------------------------------------

    Materion commented that beryllium-containing scrap metal or wastes
are, in most cases, recycled internally ``either within or between
facilities,'' but companies ``also recycle scrap or purchase scrap on
the open market'' (Document ID 0038, p. 32). Materion further asserted
that OSHA's regulation ``should not be construed as potentially
limiting the environmentally beneficial recycling of metals'' (Document
ID 0038, p. 32). OSHA agrees that paragraph (j)(3)'s requirements
should not be read to discourage the reuse or recycling of metals and
reads Materion's statements regarding the manner in which companies
recycle scrap metal or wastes (i.e., within or between facilities or on
the open market) as purely informational. However, the agency notes
that this comment could be read to suggest that the exception for items
transferred within a facility also applies to items transferred between
two facilities owned by the same employer. Such an interpretation would
be incorrect--the intra-plant transfer exception only exempts transfers
within a single plant; material transfers between plants are not
excluded, regardless of plant ownership.
    This comment also alerted the agency to a potential ambiguity in
the text of proposed paragraph (j)(3)(i). Specifically, OSHA realized
that the phrase ``to another party'' could be read to suggest that
transfers between two facilities owned by the same employer are
exempted from the labeling requirements in paragraph (j)(3)(i). Again,
this was not the agency's intent. As noted above, the proposed addition
of the explicit intra-plant transfer exception in paragraphs (j)(3)(ii)
and (iii) was not a substantive change--the agency never intended to
require employers to clean or enclose materials transferred within a
single plant. The reorganization of paragraph (j)(3) was also not a
substantive change; it merely allowed the agency to make clear that the
labeling requirements apply regardless of whether the employer
transfers materials for the purpose of disposal, recycling, or reuse
(83 FR at 63763, 63756). Because the labeling requirements were part of
paragraphs (j)(3)(i) and (ii) in the 2017 final rule, to which the
intra-plant exemption applied, and were simply moved to a new stand-
alone paragraph without substantive change, the scope of those
activities requiring labeling has not changed. Put another way, the
intra-plant exemption continues to apply to the labeling provision to
the same extent it did prior to the proposal. And, more to the point,
the labeling requirement continues to apply to all other transfers for
purposes of disposal, recycling, or reuse, regardless of whether they
involve transfers between two locations operated by the same employer.
    If proposed paragraph (j)(3)(i) was interpreted to only require the
labeling of materials transferred to another employer (rather than
another facility), then an employer could place materials that were
designated for reuse in an enclosure and transfer them to another
facility without a label, so long as the employer owned the second
facility. This scheme could potentially put both the transferring and