August 22, 2015 Celeste Monforton, DrPH, MPH 5Comment

On August 6, two unrelated events got my attention. The first was OSHA’s announcement of a long overdue regulatory proposal. The agency released a proposed rule to protect the health of about 35,000 US workers who are exposed to beryllium. The lightweight, super-strong metal can cause a disabling respiratory disorder called chronic beryllium disease, as well as lung cancer. There is no safe level of exposure to it. The second event was the Fox News debate featuring ten Republicans vying to be the party’s 2016 Presidential candidate.

With the OSHA proposed rule fresh on my mind, I watched the debate. I heard four of the candidates (Jeb Bush, Chris Christie, Marco Rubio, and Scott Walker) grumble about regulations. One referred to regulations as “job killers” and the others pledged to weed out burdensome ones and put a cap on new ones.

The Republican candidates’ remarks about regulations repeat the same rhetoric on regulatory protections that have had traction this year on Capitol Hill. On July 28, for example, the House passed the “Regulations from the Executive in Need of Scrutiny Act” (REINS Act).  If enacted, it  would require federal agencies to submit major rules to Congress for approval before the regulation could take effect. (Presidential candidate Rand Paul is the sponsor of the REINS Act in the Senate.) Other bills of the same nature—with even catchier titles—-include the “Regulation Sensibility Through Oversight Restoration” (RESTORE Act) and the “Searching for and Cutting Regulations that are Unnecessarily Burdensome Act” (SCRUB Act).

Proponents of these bills insist that federal agencies—and they paint all agencies with the same brush—don’t do enough to assess the costs of the regulations they impose. Cong Steve Chabot (R-OH), who chairs the House Small Business Committee, wrote in an op-ed in Roll Call:

“Agencies often fail to assess the impacts of new rules on small businesses, neglect to consider more cost-effective ways of fulfilling their needs and do not solicit input from small businesses.”

I wonder if Congressman Chabot has looked at the analyses that accompany an OSHA rule?

OSHA’s Federal Register notice on its proposed beryllium rule is 262 pages. By my count, 112 of those pages are devoted to the agency’s assessment of the economic impact and feasibility of the proposal on the effected businesses. Much of the rest describes the scientific literature on the health effects of beryllium, a health risk assessment, and a critique by external peer reviewers of the risk assessment.

Failing to assess impacts on small businesses? Hardly.

Not only does OSHA analyze the impacts on small businesses (as defined by the SBA to typically be a business with 500 or fewer employees) but also on very small businesses defined as those with 20 or fewer employees. OSHA goes into great detail breaking down the cost estimates for each provision of the proposed rule, with specific calculations for each of the affected industries. OSHA provides tables showing the estimated costs by major provision for very small businesses in each affected industry, down to the six-digit NAICS code. It’s all pretty tedious to read.

Failing to solicit input from small businesses?  Not true.

I count at least 80 places in OSHA’s Federal Register notice in which the agency specifically says it “seeks comments” or “requests comments” from the public. Small businesses and anyone else who is interested has until early November to provide input to OSHA on the proposal.

Besides that, OSHA already organized an entire process especially for representatives of small businesses to comment on the draft proposal. (It’s a rulemaking step required by the Small Business Regulatory Enforcement Fairness Act. The Small Business Administration plays a major role in selecting the small business representatives for this activity.) OSHA’s Federal Register notice for its beryllium proposed rule describes in detail the comments from those small businesses. OSHA explains how it modified the proposal based on that feedback.

Neglecting to consider more cost-effective alternatives? Not so.

OSHA’s Federal Register notice describes at least 25 regulatory alternatives it is considering. The least-costly alternatives include less stringent requirements for air monitoring to determine beryllium exposure, and dropping the requirement for certain employees to be offered CT scans to identify lung damage.

OSHA’s notice says:

“OSHA believes that inclusion of regulatory alternatives serves two important functions. The first is to explore the possibility of less costly ways (than the proposed standard) to provide an adequate level of worker protection from exposure to beryllium.”

I find it hard to believe that anyone could claim that the agency failed to assess the impact of the proposal on small businesses, neglected to consider more cost-effective ways of fulfilling their needs, or did not solicit input from small businesses. Honestly, I see an Administration that has gone overboard assessing and estimating the costs and alternatives of the proposed beryllium rule. I wish a few lawmakers would do their own reality check.

5 thoughts on “OSHA’s beryllium proposal as reality check on anti-regulatory rhetoric

  1. In a somewhat similar issue, the U.S. NRC has received petitions from a science denial group called Scientists for Accurate Radiation Information (of course!). They want the NRC to discard the linear, no threshold theory when they promulgate their regulations. I find it hard to believe the NRC is actually seeking public comments on it, but they are.

  2. It’s tobacco science all over again. And again. With more stress on big corporations — I mean, small businesses. and

    The problem with the regulatory process is not that it needs to be more lengthy and complex. It’s quite the opposite. Proposed regs are so watered down before they even head out the door (thanks to industry). And they are just proposals.

    Industry spends more money fighting regs than it would take to comply with the standard.

  3. Beryllium NEVER leaves the human body once exposed to either beryllium salts from machining or beryllium dust from grinding and polishing or recycling.

    There is no way to remove beryllium from the human body. The systemic affects to the body are denied by doctors to protect insurance companies and industry.

    Here’s a story of CBD from 50 years after the exposure to beryllium:

  4. OSHA was sent by the D.O.L. to investigate the machine shop where I was disabled for life and their report says the machine shop is fresh as a daisy and there is No need for training and No need for protective gear. WoW !! I have the report and I am floored by the results.

    OSHA needs a reality check too !

  5. Great Point about the Regulations mentioned by the candidates for president Celeste. The presidential candidates are giving their pitch to special interests to donate to their campaign promising to squash regulations .

    Jeb Bush GUTTED Florida’s workers comp law and gave total immunity to employers for what ever injury occurs to workers. Then there’s the systemic corruption of NON-Diagnosis. Florida workers are doomed until the Workers Comp law is changed. s.440.11 is unconstitutional. Its a fact.

    Look how successful the lobbyists are across the country gutting the workers comp laws :

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