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On Aug. 25, ABC, the National Association of Home Builders and the Mason Contractors Association of America filed a settlement with the U.S. Department of Labor’s Occupational Safety and Health Administration to effectively narrow the scope of the beryllium final rule issued at the end of the Obama administration. The rule would have applied a comprehensive, burdensome set of requirements related to beryllium on all construction employers, despite there being no data in the rulemaking record suggesting the presence of significant risk from beryllium exposure in construction.

In the settlement, filed in the Eighth Circuit Court of Appeals, OSHA agreed to issue an FAQ that makes clear that for normal construction operations, exposures to common construction materials will typically not be covered by the rule. This outcome addresses the concerns of ABC, NAHB and MCAA and provides certainty for contractors in how they approach and prioritize their safety and health programs.

“A comprehensive beryllium standard regulating all of construction was unnecessary and would divert resources from contractors away from other, higher safety priorities,” said Greg Sizemore, ABC vice president of HSE and workforce development. “OSHA’s analysis of its own sampling data demonstrates that exposures from construction operations are highly unlikely to exceed the action level in typical circumstances. Importantly, employers are still required to comply with the applicable provisions of the beryllium standard in cases when a particular construction jobsite contains high levels of beryllium, for example, at a beryllium manufacturing facility.” 

“In the construction sector, even without a COVID-19 outbreak, safety and health is always our No. 1 priority,” said Sizemore. “As representatives of residential, nonresidential and industrial construction contractors across the country, we remain committed to collaborating with state and local health officials, as well as across market sectors, to diligently identify and implement new health and safety protocols on our jobsites to protect construction employees amid the COVID-19 outbreak.”

Under the Obama administration, OSHA had also failed to give the construction industry adequate notice of the rule, in that OSHA never included the construction industry at all in the initial proposal. After President Trump took office, OSHA re-examined certain aspects of the rule and engaged in multiple, additional rulemaking efforts to attempt to narrow the requirements of the rule. The Trump administration is currently engaged in a third rulemaking on beryllium, which again might change the requirements. Read more about ABC’s actions in the beryllium regulatory process in Newsline.