Gelman: Beryllium Exposure Standard Enforcement Delayed Until May

Friday, March 30, 2018 | 0

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.

Jon L. Gelman

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.”

The EEOICPA payment program has been plagued by issues including the administrative complexity, and the delay and denial of claims. Restrictive limits have been placed on attorneys fees, and lawyers have been reluctant to represent victims.

The Occupational Safety and Health Administration (OSHA) announced that it will start enforcement of the final rule on occupational exposure to beryllium in general, construction and shipyard industries on May 11. This time frame 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.

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 the new, lower eight-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.

As noted in "Workers' Compensation Law" 38 NJPRAC 3.18:

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.

Exposure to beryllium and resulting berylliosis has long been recognized as compensable under the New Jersey Workers’ Compensation Act and most other programs. The significance of Jan. 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, but was brought within its coverage by the amendment of Sections 30 and 31. 

In the New Jersey Appellate Division, a judge Clapp ruled that "if a definite bodily impairment occurs after Jan. 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, 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.

Claimants' attorney Jon L. Gelman is the author of "New Jersey Workers’ Compensation Law" and co-author of the national treatise "Modern Workers’ Compensation Law." He is based in Wayne, New Jersey. This blog post is republished with permission.