The Trump Administration has moved with alacrity to change how agencies approach the issuance of regulations in the future, and has signaled its intent to revisit and review regulations that are already in place. However, it has yet to decide on a strategy for dealing with all of the myriad regulations that the Obama Administration hurried to complete in its waning days.
It is thought that that once it has appointed its regulatory team at the Office of Information and Regulatory Affairs, the office that oversees regulatory activity for the White House, it will perform some sort of systematic analysis of each pending rule—along with their accompanying cost-benefit analyses—and determine which can withstand enhanced scrutiny and are clearly cost-effective and which need to be revised.
Among the latter, we submit, is an OSHA rule that limits workers’ exposure to beryllium, an element often used in the production of parts that go into aircraft, missiles, and cell phones. The metal is very light, and as a result beryllium dust can permeate the air when it is a part of the production process. Inhaling it can increase the risk of lung cancer.
Ten days before the end of the Obama administration, OSHA issued a new rule limiting exposure to beryllium.
Ten days before the end of the administration, OSHA issued a new rule limiting exposure to beryllium. The problem is that the rule did not go through the customary review process and may not survive an honest cost-benefit analysis in its current form.
Consideration of such a rule actually began years ago. In 2012, the Obama administration said it anticipated proposing a rule governing beryllium exposure by the following Summer, but it failed to do so until late 2015. Come the following spring, four years after its initial declaration, the administration still did not have a firm timeline for the issuance of a final rule. Near the end of the election season, the Department of Labor sent over a final rule for review and the White House gave a hasty approval on December 16, 2016 along with eight other regulations.
The timeline is notable because the rule changed dramatically at the end of that process. That in and of itself is not unusual—more study can change an agency’s thinking about an issue, and that is the intent of having a long proposal period.
Originally, the focus of the rule was on exposure to beryllium alloy, and the rule proposed in 2015 explicitly excluded the construction and shipyards industry. The abrasive blasting work in those industries can result in exposure to trace amounts of beryllium.
However, the final rule, published on January 9th, expanded to include those industries, to the surprise of many. The expansion of the rule dramatically increased the estimated compliance costs to an excess of $600 million. The rule ultimately spent just 45 days at the White House undergoing inter-agency review, about half the length for the average rule.
Spending additional time considering the substantive last-minute revisions to the rule might have been productive given the enormous impact it poses to various industries. OSHA estimates that there are 5,280 “very small businesses” (fewer than 20 employees) affected by the final rule, and acknowledges that their compliance costs could pose an existential threat for many of them. For instance, the compliance costs for the construction industry exceed 13 percent of profits, as well as 63 percent of profits for for the ceramics industry and 71 percent for aluminum foundries.
There is also some question as to whether these new standards are even feasible, and feasibility is a requirement for new regulations. The law says that standards legally cannot cause a “massive dislocation to … or imperil the existence of … the industry.” In other words, there must be some reasonable chance a firm could install the necessary engineering controls.
For the furnace operation industry, OSHA was only able to describe a single operator that had managed to limit exposure to 0.55 micrograms per cubic meter, which is more than triple the final standard. The agency was aware of the rules infeasibility, conceding that “even when all methods are combined, it may not be possible for most furnace operators to achieve mandated levels.” In fact, the phrase “may not be possible” appears seven times in the agency’s regulatory impact analysis.
OSHA relies heavily on a 2009 study that looks at the impact of beryllium exposure on the body in formulating their rule and its cost-benefit analysis. The study itself is fine, but it is partly premised on the existence of a proportional dose-response function in the human body. Put succinctly, the idea is that halving exposure to a harmful chemical more or less halves the probability of becoming sick. It’s not at all clear that this is how the human body functions with respect to beryllium or any other harmful substance for that matter.
OSHA spent a lot of time studying its regulatory options because the impact of beryllium exposure on the human body is complicated. Their last-minute haste to expand the original rule to capture a much wider variety of economic activity after four years of study is controversial and worthy of further study beyond the month-and-a-half they gave OIRA and other agencies to do so, especially given that the rulemaking began five years ago.
The mere fact that a new administration has been elected should not give an agency carte blanche to simply expand and accelerate rulemakings.
Sam Batkins contributed to this article.