Earlier this month, a few dozen individuals and organizations submitted comments to OSHA on its proposed rule to protect beryllium-exposed workers. The lightweight and super strong metal is associated with lung cancer and causes chronic beryllium disease. I've spent some time browsing through many of the submissions and there was one that especially caught my attention. It came from the business consulting group ORCHSE Strategies, LLC. What had me looking twice at the firm's comments was not their views on this provision or that provision. It was something else. ORCHSE Strategies called out OSHA for going overboard in asking stakeholders to comment on dozens of regulatory alternatives. ORCHSE Strategies wrote:
“Too many alternatives are presented, creating multiple options that require an excessive amount of time to address... OSHA should return to its previous approach of making a recommendation for a standard’s parameters based on its best assessment of the risk and necessary protective measures, then describe its rationale in the preamble.”
I agree. Thanks to ORCHSE Strategies for saying it.
OSHA's proposed beryllium rule described more than two dozen different options about which it wanted public comment. Here are just a few from the list:
- Alternative 8: Ancillary provisions apply only when exposure above permissible exposure limit (PEL)/short-term exposure limit (STEL)
- Alternative 9: semi-annual monitoring when exposure between action level (AL) and PEL
- Alternative 10: semi-annual monitoring when exposure above AL/STEL
- Alternative 16: No beryllium lymphocyte proliferation test (BeLPT) in medical surveillance
- Alternative 17: BeLPT as part of annual exam
- Alternative 21a: Medical surveillance (at PEL 0.2 micrograms per cubic meter of air)
- Alternative 21b: Medical surveillance (at PEL 2.0 micrograms per cubic meter of air) rather than biannually
But OSHA didn't just ask for comments on these alternatives. The agency took the time to estimate the costs for many of them, and for the costs of different combinations of the alternatives.
My head was spinning reading the litany of options. I wondered about the necessity of it all. It seemed like overkill. But maybe it's why it took OSHA 2.5 years to develop the proposal. The agency received a draft rule in February 2012 which had been negotiated by the key industry and labor stakeholders, yet it still took OSHA until September 2014 to submit its proposed rule to the White House for review.
Here's what ORCHSE Strategies says about the dozens of regulatory alternatives offered by OSHA in its proposed beryllium rule:
They “…add an infeasible layer of complexity to the commenting process."
And get this: Some of the alternatives are ones that OSHA acknowledges are:
“… not ones OSHA could legally adopt because the absence of a more protective requirement for engineering controls would not be consistent with section 6(b)(5) of the OSH Act…”
Huh? What’s the point of asking for comments on a regulatory option that the agency knows it won’t adopt?
“…this additional analysis is provided strictly for informational purposes.”
Informational purposes? This is the agency that sighs about not having sufficient resources for rulemaking activities. It asked for comments just for the heck of it? This is the agency that moans about all the steps in its rulemaking process, yet it created more work for itself?
ORCHSE Strategies had it right when they wrote:
"….In the future, we recommend that OSHA put forth fewer regulatory alternatives for commenters to evaluate and instead provide its most reasonable recommendations for what a standard should include, with detailed explanations.”
I can't help but wonder who is really behind this “regulatory alternative” overkill? The mandate for proposing “regulatory alternatives” is not in the OSH Act or any other law governing the agency. It comes from President Obama and imposed by his Office of Information and Regulatory Affairs (OIRA). In Obama's 2011 Executive Order called "Improving Regulation and Regulatory Review," (which built on an EO issued by President Clinton in 1993,) Obama directs agencies to:
"Identify and assess available alternatives to direct regulation..."
"Identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public."
Then in 2012, Obama issued another Executive Order on regulations, this one called "Identifying and Reducing Regulatory Burdens." To me, it was another sign of the President's skepticism that his own appointees, including those at OSHA, will make wise regulatory decisions. Perhaps its part of the reason there were oh so many "regulatory alternatives" in OSHA's proposed beryllium rule---even ones the agency admitted it wouldn't adopt. And maybe why OIRA took 10 months to review OSHA's beryllium proposal.
I'm going to keep my fingers crossed that OSHA will complete its work and issue a final beryllium rule before the end of the Obama Administration. If it fails to do so, workers who are exposed to beryllium will lose out----not because of Republicans or others in the anti-regulatory camp----but because of the Obama Administration's own "regulatory reform" nonsense.