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Beryllium Exposure Standard Enforcement Delayed Until May 2018

Beryllium Exposure Standard Enforcement Delayed Until May 2018

The Trump Administration has yet again delayed the implementation of a stricter standard for occupational exposure to beryllium. The new date for enforcement is May 11, 2018.

The Federal Compensation program for beryllium workers was enacted at the end of the Clinton Administration. The Energy Employees Occupational Illness Compensation Program Act (EEOICPA) has been termed, “The Cold War Compensation Act.” See, President Clinton issued Executive Order No. 13179 . TheEEOICPA payment program has been plagued by issues including the administrative complexity and the delay and denial of claims. Restrictive limits placed on attorney’s fees and lawyers have been reluctant to represent victims.
The Occupational Safety and Health Administration (OSHA) announced today it will start enforcement of the final rule on occupational exposure to beryllium in general, construction, and shipyard industries on May 11, 2018. This timeframe will ensure that stakeholders know of their obligations and that OSHA provides consistent instructions to its inspectors. The start of enforcement had been set for March 12, 2018. See, 29 C.F.R. Part 1910, 82 FR 2470-2758, effective March 10, 2017. Delayed implementation at 82 FR 8901 on February 1, 2017, was further delayed to May 20, 2017. 82 Fed. Reg. 14439 (March 21, 2017).
In January 2017, OSHA issued new comprehensive health standards addressing exposure to beryllium in all industries. In response to feedback from stakeholders, the agency is considering technical updates to the January 2017 general industry standard, which will clarify and simplify compliance with requirements. OSHA will also enforce on May 11, 2018, the new lower 8-hour permissible exposure limit (PEL) and short-term (15-minute) exposure limit (STEL) for construction and shipyard industries.  Meanwhile, if an employer fails to meet the new PEL or STEL, OSHA will inform the employer of the exposure levels and offer assistance to assure understanding and compliance.
Beryllium is a rare metal with toxic properties. The United States is the world’s largest consumer of beryllium. “Inhalation of the microscopic metal particles into the lungs as very small concentrations of beryllium dust or fumes can result in a myriad of serious, latent, progressive and critical health conditions such as beryllium sensitization, chronic beryllium disease (CBD), skin disease and cancer. These conditions are treatable but not curable. The symptoms may occur from 30 days to 30 years after exposure. CBD develops in workers who have been sensitized to beryllium and may occur at any time during or following exposure. It has been recognized that between 2% and 17% of workers exposed to beryllium dust develop the allergic sensitization.” Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 3.18 (Thomson-Reuters 2018). 
Exposure to beryllium and resulting berylliosis has long been recognized as compensable under the NJ Workers’ Compensation Act and most other programs. The significance of January 1, 1950, is that beryllium poisoning was not, prior to that date, a ‘compensable occupational disease’ under section 2 of the Workmen's Compensation Act, R.S. 34:15—7 et seq., N.J.S.A., but was brought within its coverage by the amendment of sections 30 and 31 made by L.1949, c. 29, N.J.S.A. 34:15—30; 34:15—31, effective on the day. In the NJ Appellate Division, Judge Clapp ruled that ‘* * * if a definite bodily impairment occurs after January 1, 1950, as a result of berylliosis, a right to compensation accrues under the statute at, or possibly subsequent to, the time of the impairment,’ to the exclusion of the common-law remedy for negligence; and that, on the contrary hypothesis, the statute of limitations, “ Biglioli v. Durotest Corporation, 26 N.J. 33 (N.J. 1958).
It is hoped that the implementation of the proposed Final Rule limiting occupational exposure will finally be enforced ending the decades-long battle to reduce workplace illness due to deadly beryllium.
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).


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