Court Battles

Legal fight grows over Obama work safety rule

Industry groups are ramping up their fight to scrap an Obama-era rule aimed at reducing blue-collar workers' exposure to beryllium, a toxic material that can cause a deadly lung disease.

The Labor Department has delayed the rule, but industry is now turning to the courts to eliminate the regulation all together.

The rule requires companies to limit the amount of beryllium that enters the air when it is cut, machined, ground, mechanically sheared or crushed to dust.

Coveted for being lighter than aluminum but stronger than steel, pure beryllium metal is used to make satellites and nuclear weapons, among other things, while beryllium alloys are found in products from computer parts to golf clubs and dental crowns.

Trace amounts of beryllium are also found naturally in coal and copper slag used in abrasive blasting operations at shipyards and in construction. Those two industries were wrapped into the rule in its final stage. Companies that manufacture blasting materials are now fighting back against the rule.

"Under the Administrative Procedure Act, before an agency can pass regulation there's supposed to be a notice and comment period for affected individuals to respond, and the proposed rule published in August 2015 did not include those industries," said John Weinholtz, the Buffalo, N.Y.-based attorney representing Mobile Abrasives Inc. and Harsco Corp., two companies challenging the Occupational Safety and Health Administration (OSHA) rule.

"We're [an] affected party and didn't have an opportunity to comment."

And the legal challenges are mounting. Weinholtz's suit is one of five against the rule.

In an email to The Hill, the OSHA spokeswoman Jillian Rogers said only that "decisions regarding the scope of the rule, i.e., its application to those industries, were made by the previous administration."

Weinholtz said his clients are also arguing there's no scientific basis for their industries to be included in the rule, a requirement of the Administrative Procedure Act.

"There are no scientific studies saying abrasive blasters are subject to any increased or any incidents of beryllium related diseases from abrasive blasting," he said. "We've gotten swept up with a regulation that pertains to beryllium alloy manufacturing."

In its rulemaking, the OSHA says occupational exposure to beryllium can occur when dust, fumes and mist containing the material are inhaled, or when skin, eyes and mucous membranes come in contact with it.

But in 2007, the Centers for Disease Control and Prevention's National Institute for Occupational Safety and Health (NIOSH) conducted a study to survey the occupational exposure to beryllium in abrasive blasting using coal slag.

NIOSH said in its report that the respiratory gear blasting workers wear appeared to provide adequate protection from potential exposure. It still recommended that employees avoid prolonged skin contact.

Weinholtz said the OSHA defined its exclusions from the rule so narrowly that there are few substances without beryllium that can be used in abrasive blasting.

"The regulation is actually limiting severely what companies and the government can use for blasting," he said.

"Industries doing it or contracting for it are going to have to do blast testing on their own to see if it meets this extremely low threshold and that's expensive in and of itself."

OSHA's new standard limits exposure to 0.2 micrograms of beryllium per cubic meter of air over an eight-hour period and 2.0 micrograms of beryllium per cubic meter of air over a 15-minute period.

But labor groups are also jumping into the court fight to defend the rule.

United Steelworkers (USW) is arguing in the case that alternative materials like glass beads or walnut shells can be used in abrasive blasting to eliminate the risk of beryllium exposure.

Michael Wright, USW's director of health safety and environment, said Newport News Shipbuilding - the largest shipbuilder in the U.S. - told the union it could live with the rule easily in most cases by replacing the blasting agents contaminated with beryllium with other materials.

Bronce Henderson, who manages the Virginia-based EHS Abrasives LLC, said it doesn't cost any more money for blasters to switch to the recycled glass material his employer makes.

If a company is going to continue to use toxic materials that put their workers at risk, he said it's going to cost them more money.

The lawsuits challenging the rule have been consolidated in the 8th U.S. Circuit Court of Appeals and arguments are expected sometime in August.

The OSHA pushed the effective date of the final rule from March 10 to March 21 to comply with President Trump's regulatory moratorium. Last week, it was delayed again to May 20.

Rogers said the delay was "appropriate for the purpose of additional review into questions of law and policy."

The delay gives Congress more time to repeal the rule under the Congressional Review Act, but does not change the March 12, 2018, compliance date.

Though USW was unhappy about the delay, the union claims it is not worried about the rule being repealed by the Trump administration or Congress.

"Don't forget this [rule] arose from an industry, labor collaboration, so it's not clear the administration would want to tackle that," Wright said.

"We think people in the administration think that's the way we ought to do rules generally."

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