particular, this finding would hold even with relatively large
variations in individual input parameters. Alternately, one would have
to imagine extremely large changes in costs or benefits for the rule to
fail to produce net benefits. OSHA concludes that its finding of
significant net benefits resulting from the proposed rule is a robust
one.
    OSHA welcomes input from the public regarding all aspects of this
sensitivity analysis, including any data or information regarding the
accuracy of the preliminary estimates of compliance costs and benefits
and how the estimates of costs and benefits may be affected by varying
assumptions and methodological approaches. OSHA also invites comment on
the risk analysis and risk estimates from which the benefits estimates
were derived.

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H. Regulatory Alternatives

    This section discusses various regulatory alternatives to the
proposed OSHA beryllium standard. Executive Order 12866 instructs
agencies to ``select those approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity), unless a
statute requires another regulatory approach.'' The OSH Act, as
interpreted by the courts, requires health regulations to reduce
significant risk to

the extent feasible. Nevertheless OSHA has examined possible regulatory
alternatives that may not meet its statutory requirements.
    Each regulatory alternative presented here is described and
analyzed relative to the proposed rule. Where appropriate, the Agency
notes whether the regulatory alternative, to be a legitimate candidate
for OSHA consideration, requires evidence contrary to the Agency's
preliminary findings of significant risk and feasibility. To facilitate
comment, OSHA has organized some two dozen specific regulatory
alternatives into five categories: (1) Scope; (2) exposure limits; (3)
methods of compliance; (4) ancillary provisions; and (5) timing.
1. Scope Alternatives
    The first set of regulatory alternatives would alter scope of the
proposed standard--that is, the groups of employees and employers
covered by the proposed standard. The scope of the current beryllium
proposal applies only to general industry work, and does not apply to
employers when engaged in construction or maritime activities. In
addition, the proposed rule provides an exemption for those working
with materials that contain beryllium only as a trace contaminant (less
than 0.1percent composition by weight).\40\
---------------------------------------------------------------------------

    \40\ Employers engaged in general industry activities exempted
from the proposed rule must still ensure that their employees are
protected from beryllium exposure above the current PEL, as listed
in 29 CFR 1910.1000 Table Z-2.
---------------------------------------------------------------------------

    As discussed in the explanation of paragraph (a) in Section XVIII
of this preamble, Summary and Explanation of the Proposed Standard,
OSHA is considering alternatives to the proposed scope that would
increase the range of employers and employees covered by the standard.
OSHA's review of several industries indicates that employees in some
construction and maritime industries, as well as some employees who
deal with materials containing less than 0.1 percent beryllium, may be
at significant risk of CBD and lung cancer as a result of their
occupational exposures. Regulatory Alternatives #1a, #1b, #2a, and #2b
would increase the scope of the proposed standard to provide additional
protection to these workers.
    Regulatory Alternative #1a would expand the scope of the proposed
standard to also include all operations in general industry where
beryllium exists only as a trace contaminant; that is, where the
materials used contain less than 0.1 percent beryllium by weight.
Regulatory Alternative #1b is similar to Regulatory Alternative #1a,
but exempts operations where beryllium exists only as a trace
contaminant and the employer can show that employees' exposures will
not meet or exceed the action level or exceed the STEL. Where the
employer has objective data demonstrating that a material containing
beryllium or a specific process, operation, or activity involving
beryllium cannot release beryllium in concentrations at or above the
proposed action level or above the proposed STEL under any expected
conditions of use, that employer would be exempt from the proposed
standard except for recordkeeping requirements pertaining to the
objective data. Alternative #1a and Alternative #1b, like the proposed
rule, would not cover employers or employees in construction or
shipyards.
    OSHA has identified two industries with workers engaged in general
industry work that would be excluded under the proposed rule but would
fall within the scope of the standard under Regulatory Alternatives #1a
and #1b: Primary aluminum production and coal-fired power generation.
Beryllium exists as a trace contaminant in aluminum ore and may result
in exposures above the proposed permissible exposure limits (PELs)
during aluminum refining and production. Coal fly ash in coal-powered
power plants is also known to contain trace amounts of beryllium, which
may become airborne during furnace and baghouse operations and might
also result in worker exposures. See Appendices VIII-A and VIII-B at
the end of Chapter VIII in the PEA for a discussion of beryllium
exposures and available controls in these two industries.
    As discussed in Appendix IV-B of the PEA, beryllium exposures from
fly ash high enough to exceed the proposed PEL would usually be coupled
with arsenic exposures exceeding the arsenic PEL. Employers would in
that case be required to implement all feasible engineering controls,
work practices, and necessary PPE (including respirators) to comply
with the OSHA Inorganic Arsenic standard (29 CFR 1910.1018)--which
would be sufficient to comply with those aspects of the proposed
beryllium standard as well. The degree of overlap between the
applicability of the two standards and, hence, the increment of costs
attributable to this alternative are difficult to gauge. To account for
this uncertainty, the Agency at this time is presenting a range of
costs for Regulatory Alternative #1a: From no costs being taken for
ancillary provisions under Regulatory Alternative #1a to all such costs
being included. At the low end, the only additional costs under
Regulatory Alternative #1a are due to the engineering control costs
incurred by the aluminum smelters (see Appendix VIII-A).
    Similarly, the proposed beryllium standard would not result in
additional benefits from a reduction in the beryllium PEL or from
ancillary provisions similar to those already in place for the arsenic
standard, but OSHA does anticipate some benefits will flow from
ancillary provisions unique to the proposed beryllium standard. To
account for significant uncertainty in the benefits that would result
from the proposed beryllium standard for workers in primary aluminum
production and coal-fired power generation, OSHA estimated a range of
benefits for Regulatory Alternative #1a. The Agency estimated that the
proposed ancillary provisions would avert between 0 and 45 percent \41\
of those baseline CBD cases not averted by the proposed PEL. Though the
Agency is presenting a range for both costs and benefits for this
alternative, the Agency judges the degree of overlap with the arsenic
standard is likely to be substantial, so that the actual costs and
benefits are more likely to be found at the low end of this range. The
Agency invites comment on all these issues.
---------------------------------------------------------------------------

    \41\ As discussed in Chapter VII of the PEA, OSHA used 45
percent to develop its best estimate.
---------------------------------------------------------------------------

    Table IX-18 presents, for informational purposes, the estimated
costs, benefits, and net benefits of Regulatory Alternative #1a using
alternative discount rates of 3 percent and 7 percent. In addition,
this table presents the incremental costs, incremental benefits, and
incremental net benefits of this alternative relative to the proposed
rule. Table IX-18 also breaks out costs by provision, and benefits by
type of disease and by morbidity/mortality.
    As shown in Table IX-18, Regulatory Alternative #1a would increase
the annualized cost of the rule from $37.6 million to between $39.6 and
$56.0 million using a 3 percent discount rate and from $39.1 million to
between $41.3 and $58.1 million using a 7 percent discount rate. OSHA
estimates that regulatory Alternative #1a would prevent as few as an
additional 0.3 (i.e., almost one fatality every 3 years) or as many as
an additional 31.8 beryllium-related fatalities annually, relative to
the proposed rule. OSHA also estimates that Regulatory Alternative #1a
would prevent as few as an additional 0.002 or as many as an additional
9 beryllium-related non-fatal illnesses annually, relative to the
proposed rule. As a result, annualized benefits in monetized

terms would increase from $575.8 million to between $578.0 and $765.2
million, using a 3 percent discount rate, and from $255.3 million to
between $256.3 and $339.3 million using a 7 percent discount rate. Net
benefits would increase from $538.2 million to between $538.4 and
$709.2 million using a 3 percent discount rate and from $216.2 million
to somewhere between $215.1 to $281.2 million using a 7 percent
discount rate. As noted in Appendix VIII-B of Chapter VIII in the PEA,
the Agency emphasizes that these estimates of benefits are subject to a
significant degree of uncertainty, and the benefits associated with
Regulatory Alternative #1a arguably could be a small fraction of OSHA's
best estimate presented here.
    OSHA estimates that the costs and the benefits of Regulatory
Alternative #1b will be somewhat lower than the costs of Regulatory
Alternative #1a, because most--but not all--of the provisions of the
proposed standard are triggered by exposures at the action level, 8-
hour time-weighted average (TWA) PEL, or STEL. For example, where
exposures exist but are below the action level and at or below the
STEL, Alternative #1a would require employers to establish work areas;
develop, maintain, and implement a written exposure control plan;
provide medical surveillance to employees who show signs or symptoms of
CBD; and provide PPE in some instances. Regulatory Alternative #1b
would not require employers to take these measures in operations where
they can produce objective data demonstrating that exposures are below
the action level and at or below the STEL. OSHA only analyzed costs,
not benefits, for this alternative, consistent with the Agency's
treatment of Regulatory Alternatives in the past. Total costs for
Regulatory Alternative #1b versus #1a, assuming full ancillary costs,
drop from to $56.0 million to $49.9 million using a 3 percent discount
rate, and from $58.1 million to $51.8 million using a 7 percent
discount rate.
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    Regulatory Alternative #2a would expand the scope of the proposed
standard to include employers in construction and maritime. For
example, this alternative would cover abrasive blasters, pot tenders,
and

cleanup staff working in construction and shipyards who have the
potential for airborne beryllium exposure during blasting operations
and during cleanup of spent media. Regulatory Alternative #2b would
update 29 CFR 1910.1000 Tables Z-1 and Z-2, 1915.1000 Table Z, and
1926.55 Appendix A so that the proposed TWA PEL and STEL would apply to
all employers and employees in general industry, shipyards, and
construction, including occupations where beryllium exists only as a
trace contaminant. For example, this alternative would cover abrasive
blasters, pot tenders, and cleanup staff working in construction and
shipyards who have the potential for significant airborne exposure
during blasting operations and during cleanup of spent media. The
changes to the Z tables would also apply to workers exposed to
beryllium during aluminum refining and production, and workers engaged
in maintenance operations at coal-powered utility facilities. All
provisions of the standard other than the PELs, such as exposure
monitoring, medical removal, and PPE, would be in effect only for
employers and employees that fall within the scope of the proposed
rule.\42\ Alternative #2b would not be as protective as Alternative #1a
or Alternative #1b for employees in aluminum refining and production or
coal-powered utility facilities because the other provisions of the
proposed standard would not apply.
---------------------------------------------------------------------------

    \42\ However, many of the occupations excluded from the scope of
the proposed beryllium standard receive some ancillary provision
protections from other rules, such as Personal Protective Equipment
(29 CFR 1910 subpart I, 1915 subpart I, 1926.28, also 1926 subpart
E), Ventilation (including abrasive blasting) (Sec. Sec.  1926.57
and 1915.34), Hazard Communication (Sec.  1910.1200), and specific
provisions for welding (parts 1910 subpart Q, 1915 subpart D, and
1926 subpart J).
---------------------------------------------------------------------------

    As discussed in the explanation of proposed paragraph (a) in this
preamble at Section XVIII, Summary and Explanation of the Proposed
Standard, abrasive blasting is the primary application group in
construction and maritime industries where workers may be exposed to
beryllium. OSHA has judged that abrasive blasters and their helpers in
construction and maritime industries have the potential for significant
airborne exposure during blasting operations and during cleanup of
spent media. Airborne concentrations of beryllium have been measured
above the current TWA PEL of 2 [mu]g/m\3\ when blast media containing
beryllium are used as intended (see Appendix IV-C in the PEA for
details).
    To address high concentrations of various hazardous chemicals in
abrasive blasting material, employers must already be using engineering
and work practice controls to limit workers' exposures and must be
supplementing these controls with respiratory protection when
necessary. For example, abrasive blasters in the construction industry
fall under the protection of the Ventilation standard (29 CFR 1926.57).
The Ventilation standard includes an abrasive blasting subsection (29
CFR 1926.57(f)), which requires that abrasive blasting respirators be
worn by all abrasive blasting operators when working inside blast-
cleaning rooms (29 CFR 1926.57(f)(5)(ii)(A)), or when using silica sand
in manual blasting operations where the nozzle and blast are not
physically separated from the operator in an exhaust-ventilated
enclosure (29 CFR 1926.57(f)(5)(ii)(B)), or when needed to protect
workers from exposures to hazardous substances in excess of the limits
set in Sec.  1926.55 (29 CFR 1926.57(f)(5)(ii)(C); ACGIH, 1971). For
maritime, standard 29 CFR 1915.34(c) covers similar requirements for
respiratory protection needed in blasting operations. Due to these
requirements, OSHA believes that abrasive blasters already have
controls in place and wear respiratory protection during blasting
operations. Thus, in estimating costs for Regulatory Alternatives #2a
and #2b, OSHA judged that the reduction of the TWA PEL would not impose
costs for additional engineering controls or respiratory protection in
abrasive blasting (see Appendix VIII-C of Chapter VIII in the PEA for
details). OSHA requests comment on this issue--in particular, whether
abrasive blasters using blast material that may contain beryllium as a
trace contaminant are already using all feasible engineering and work
practice controls, respiratory protection, and PPE that would be
required by Regulatory Alternatives #2a and #2b.
    In the estimation of benefits for Regulatory Alternative #2a, OSHA
has estimated a range to account for significant uncertainty in the
benefits to this population from some of the ancillary provisions of
the proposed beryllium standard. It is unclear how many of the workers
associated with abrasive blasting work would benefit from dermal
protection, as comprehensive dermal protection may already be used by
most blasting operators. It is also unclear whether the housekeeping
requirements of the proposed standard would be feasible to implement in
the context of abrasive blasting work, and to what extent they would
benefit blasting helpers, who are themselves exposed while performing
cleanup activities. OSHA estimated that the proposed ancillary
provisions would avert between 0 and 45 percent of those baseline CBD
cases not averted by the proposed PEL.
    These considerations also lead the Agency to present a range for
the costs of this alternative: From no costs being estimated for
ancillary provisions under Regulatory Alternative #2a to including all
such costs. Based on the considerations discussed above, the Agency
judges that costs and benefits at the low end of this range are more
likely to be correct. The Agency invites comment on these issues.
    In addition, OSHA believes that a small number of welders in the
maritime industry may be exposed to beryllium via arc and gas welding
(and none through resistance welding). The number of maritime welders
was estimated using the same methodology as was used to estimate the
number of general industry welders. Brush Wellman's customer survey
estimated 2,000 total welders on beryllium-containing products (Kolanz,
2001). Based on ERG's assumption of 4 welders per establishment, ERG
estimated that a total of 500 establishments would be affected. These
affected establishments were then distributed among the 26 NAICS
industries with the highest number of IMIS samples for welders that
were positive for beryllium. To do this, ERG first consulted the BLS
OES survey to determine what share of establishments in each of the 26
NAICS employed welders and estimated the total number of establishments
that perform welding regardless of beryllium exposure (BLS, 2010a).
Then ERG distributed the 500 affected beryllium welding facilities
among the 26 NAICS based on the relative share of the total number of
establishments performing welding. Finally, to estimate the number of
welders, ERG used the assumption of four welders per establishment.
Based on the information from ERG, OSHA estimated that 30 welders would
be covered in the maritime industry under this regulatory alternative.
For these welders, OSHA used the same controls and exposure profile
that were used to estimate costs for arc and gas welders in Chapter V
of the PEA. ERG judged there to be no construction welders exposed to
beryllium due to a lack of any evidence that the construction sector
uses beryllium-containing products or electrodes in resistance welding.
OSHA solicits comment and any relevant data on beryllium exposures for
welders in construction and maritime employment.
    Estimated costs and benefits for Regulatory Alternative #2a are
shown in Table IX-18a. Regulatory Alternative

#2a would increase costs from $37.6 million to between $37.7 and $55.3
million, using a 3 percent discount rate, and from $39.1 million to
between $39.2 and $57.3 million using a 7 percent discount rate.
Annualized benefits would increase from $575.8 million to between
$575.9 and $675.3 million using a 3 percent discount rate, and from
$255.3 million to between $255.4 and $299.4 million using a 7 percent
discount rate. Net benefits would change from $538.2 million to between
$538.2 and $620.0 million using a 3 percent discount rate, and from
$216.2 million to between $216.1 and $242.1 million using a 7 percent
discount rate.
    Table IX-18b presents, for informational purposes, the estimated
costs, benefits, and net benefits, of Regulatory Alternative #2b using
alternative discount rates of 3 percent and 7 percent. In addition,
this table presents the incremental costs, incremental benefits, and
incremental net benefits of this alternative relative to the proposed
rule. Table IX-18b also breaks out costs by provision and benefits by
type of disease and by morbidity/mortality.
    As shown in Table IX-18b, this regulatory alternative would
increase the annualized cost of the rule from $37.6 million to $39.6
million, using a 3 percent discount rate, and from $39.1 million to
$41.1 million using a 7 percent discount rate. Regulatory Alternative
#2b would prevent less than one additional beryllium-related fatalities
and less than one beryllium-related illness annually relative to the
proposed rule. As a result, annualized benefits would increase from
$575.8 million to $578.1 million, using a 3 percent discount rate, and
from $255.3 million to $256.3 million using a 7 percent discount rate.
Net benefits would increase from $538.2 million to $538.5 million using
a 3 percent discount rate and slightly decrease from $216.2 million to
$215.2 million using a 7 percent discount rate.
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2. Exposure Limit (TWA PEL, STEL, and ACTION LEVEL) Alternatives
    OSHA is proposing a new TWA PEL for beryllium of 0.2 [mu]g/m\3\ and
a STEL of 2.0 [mu]g/m\3\ for all application groups covered by the
rule. OSHA's proposal is based on the requirements of the Occupational
Safety and Health Act (OSH Act) and court interpretations of

the Act. For health standards issued under section 6(b)(5) of the OSH
Act, OSHA is required to promulgate a standard that reduces significant
risk to the extent that it is technologically and economically feasible
to do so. See Section II of this preamble, Pertinent Legal Authority,
for a full discussion of OSHA legal requirements.
    Paragraph (c) of the proposed standard establishes two PELs for
beryllium in all forms, compounds, and mixtures: An 8-hour TWA PEL of
0.2 [mu]g/m\3\ (proposed paragraph (c)(1)), and a 15-minute short-term
exposure limit (STEL) of 2.0 [mu]g/m\3\ (proposed paragraph (c)(2)).
OSHA has defined the action level for the proposed standard as an
airborne concentration of beryllium of 0.1 [mu]g/m\3\ calculated as an
eight-hour TWA (proposed paragraph (b)). In this proposal, as in other
standards, the action level has been set at one-half of the TWA PEL.
    As discussed in this preamble explanation of paragraph (c) in
Section XVIII, Summary and Explanation of the Proposed Standard, OSHA
is considering three regulatory alternatives that would modify the PELs
for the proposed standard.
    Regulatory Alternative #3 would modify the proposed STEL to be five
times the TWA PEL, as is typical for OSHA standards that have STELs. A
STEL five times the TWA PEL has more practical effect because a STEL
ten times the TWA PEL will rarely be exceeded without also driving
exposures above the TWA PEL. For example, assuming a background
exposure level of 0.1 [mu]g/m\3\, a STEL ten times the TWA PEL could
only be exceeded once in a work shift for 15 minutes without driving
exposures above the TWA PEL, whereas a STEL five times the TWA PEL
could be exceeded three times before driving exposures above the TWA
PEL. OSHA's standards for methylene chloride (29 CFR 1910.1052),
acrylonitrile (29 CFR 1910.1045), benzene (29 CFR 1910.1028), ethylene
oxide (29 CFR 1910.1047), and 1,3-Butadiene (29 CFR 1910.1051) all set
STELs at five times the TWA PEL. Thus, if OSHA promulgates the proposed
TWA PEL of 0.2 [mu]g/m\3\, the accompanying STEL under this regulatory
alternative would be set at 1 [mu]g/m\3\.
    As discussed in this preamble at Section V, Health Effects,
immunological sensitization can be triggered by short-term exposures.
OSHA believes a STEL for beryllium will help reduce the risk of
sensitization and CBD in beryllium-exposed employees. For instance,
without a STEL, workers' exposures could be as high as 6.4 [mu]g/m\3\
(32 x 0.2 [mu]g/m\3\) for 15 minutes under the proposed TWA PEL, if
exposures during the remainder of the 8-hour work shift are non-
detectable. A STEL serves to minimize high task-based exposures by
requiring feasible controls in these situations, and has the added
effect of further reducing the TWA exposure.
    OSHA requests comment on the range of short-term exposures in
covered industries, the types of operations where these are occurring,
and on the proposed and alternative STELs, including any data or
information that may help OSHA choose between them.
    OSHA identified two job categories where workers would be expected
to have short-term exposures in the range between the proposed STEL and
the STEL under Regulatory Alternative #3 (that is, between 2.0 and 1.0
[mu]g/m\3\): Furnace operators in nonferrous foundries and material
preparation operators in the beryllium oxide ceramics application
group. To estimate the costs for this alternative, OSHA judged,
conservatively, that all workers in these job categories would need to
wear respirators to meet a STEL of 1.0. OSHA also estimated costs for
additional regulated areas and medical surveillance for workers in
these two job categories. The costs for this alternative are presented
in Table IX-19. Total costs rise from $37.6 million to $37.7 million
using a 3 percent discount rate and from $39.1 million to $39.3 million
using a 7 percent discount rate.
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    Under Regulatory Alternative #4, the TWA PEL would be 0.1 [mu]g/
m\3\ with an action level of 0.05 [mu]g/m\3\. The Agency's preliminary
risk assessment indicates that the risks remaining at the proposed TWA
PEL of 0.2 [mu]g/m\3\--while lower than risks at the current TWA PEL--
are still significant (see this preamble at Section VIII, Significance
of Risk). A

TWA PEL of 0.1 [mu]g/m\3\ would reduce some of the remaining risks to
workers at the proposed PEL. The OSH Act requires the Agency to set its
standards to address significant risks of harm to the extent
economically and technologically feasible, so OSHA would have very
limited flexibility to adopt a higher PEL if a lower PEL is
technologically and economically feasible.
    While OSHA's preliminary analysis indicates that the proposed TWA
PEL of 0.2 [mu]g/m\3\ is economically and technologically feasible,
OSHA has less confidence in the feasibility of a TWA PEL of 0.1 [mu]g/
m\3\. In some industry sectors it is difficult to determine whether a
TWA PEL of 0.1 [mu]g/m\3\ could be achieved in most operations most of
the time (see Section IX.D of this preamble, Technological
Feasibility). OSHA believes that one way this uncertainty could be
resolved would be with additional information on exposure control
technologies and the exposure levels that are currently being achieved
in these industry sectors. OSHA requests additional data and
information to inform its final determinations on feasibility (see
Section IX.D of this preamble, Technological Feasibility) and the
alternative PELs under consideration.
    Regulatory Alternative #5, which would set a TWA PEL at 0.5 [mu]g/
m\3\ and an action level at 0.25 [mu]g/m\3\, both higher than in the
proposal, responds to an issue raised during the Small Business
Advocacy Review (SBAR) process conducted in 2007 to consider a draft
OSHA beryllium proposed rule that culminated in an SBAR Panel report
(SBAR, 2008). That report included a recommendation that OSHA consider
both the economic impact of a low TWA PEL and regulatory alternatives
that would ease cost burden for small entities. OSHA has provided a
full analysis of the economic impact of its proposed PELs (see Chapter
VI of the PEA), and Regulatory Alternative #5 addresses the second half
of that recommendation. However, the higher 0.5 [mu]g/m\3\ TWA PEL does
not appear to be consistent with the Agency's mandate under the OSH Act
to promulgate a lower PEL if it is feasible and could prevent
additional fatalities and non-fatal illnesses. The data presented in
Table IX-20 below indicate that the lower TWA PEL would prevent
additional fatalities and non-fatal illnesses, but nevertheless the
Agency solicits comments on this alternative and OSHA's analysis of the
costs and benefits associated with it.
    Table IX-20 below presents, for informational purposes, the
estimated costs, benefits, and net benefits of the proposed rule under
the proposed TWA PEL of 0.2 [mu]g/m\3\ and for the regulatory
alternatives of a TWA PEL of 0.1 [mu]g/m\3\ and a TWA PEL of 0.5 [mu]g/
m\3\ (Regulatory Alternatives #4 and #5, respectively), using
alternative discount rates of 3 percent and 7 percent. In addition, the
table presents the incremental costs, the incremental benefits, and the
incremental net benefits, of going from a TWA PEL of 0.5 [mu]g/m\3\ to
the proposed TWA PEL of 0.2 [mu]g/m\3\ and then of going from the
proposed TWA PEL of 0.2 [mu]g/m\3\ to a TWA PEL of 0.1 [mu]g/m\3\.
Table IX-20 also breaks out costs by provision and benefits by type of
disease and by morbidity/mortality.
    OSHA has not made a determination that a TWA PEL of 0.1 [mu]g/m\3\
would be feasible for all application groups (that is, engineering and
work practices would be sufficient to reduce and maintain beryllium
exposures to a TWA PEL of 0.1 [mu]g/m\3\ or below in most operations
most of the time in the affected industries). For Regulatory
Alternative #4, the Agency attempted to identify engineering controls
and their costs for those affected application groups where the
technology feasibility analysis in Chapter IV of the PEA indicated that
a TWA PEL of 0.1 [mu]g/m\3\ could be achieved. For those application
groups, OSHA costed out the set of feasible controls necessary to meet
this alternative PEL. For the rest of the affected application groups,
OSHA assumed that all workers exposed between 0.2 [mu]g/m\3\ and 0.1
[mu]g/m\3\ would have to wear respirators to achieve compliance with
the 0.1 [mu]g/m\3\ TWA PEL and estimated the associated additional
costs for respiratory protection. For all affected industries, OSHA
also estimated the costs to satisfy the ancillary requirements
specified in the proposed rule for all affected workers under the
alternative TWA PEL of 0.1 [mu]g/m\3\. For both controls and
respirators, the unit costs were the same as presented in Chapter V of
the PEA.
    The estimated benefits for Regulatory Alternative #4 were
calculated based on the number of workers identified with exposures
between 0.1 and 0.2 [mu]g/m\3\, using the methods and unit benefit
values developed in Chapter VII of the PEA.
    As Table IX-20 shows, going from a TWA PEL of 0.5 [mu]g/m\3\ to a
TWA PEL of 0.2 [mu]g/m\3\ would prevent, annually, an additional 29
beryllium-related fatalities and an additional 15 non-fatal illnesses.
This is consistent with OSHA's preliminary risk assessment, which
indicates significant risk to workers exposed at a TWA PEL of 0.5
[mu]g/m\3\; furthermore, OSHA's preliminary feasibility analysis
indicates that a lower TWA PEL than 0.5 [mu]g/m\3\ is feasible. Net
benefits of this regulatory alternative versus the proposed TWA PEL of
0.2 [mu]g/m\3\ would decrease from $538.2 million to $370.0 million
using a 3 percent discount rate and from $216.2 million to $144.4
million using 7 percent discount rate.
    Table IX-20 also shows the costs and benefits of going from the
proposed TWA PEL of 0.2 [mu]g/m\3\ to a TWA PEL of 0.1 [mu]g/m\3\. As
shown there, going from a TWA PEL of 0.2 [mu]g/m\3\ to a TWA PEL of 0.1
[mu]g/m\3\ would prevent an additional 2 beryllium-related fatalities
and 1 additional non-fatal illness. Net benefits of this regulatory
alternative versus the proposed TWA PEL of 0.2 [mu]g/m\3\ would
increase from $538.2 million to $543.5 million using a 3 percent
discount rate and decrease from $216.2 million to $214.9 million using
a 7 percent discount rate.
BILLING CODE 4510-26-P

[GRAPHIC] [TIFF OMITTED] TP07AU15.033

Informational Alternative Featuring Unchanged PEL but Full Ancillary
Provisions
    An Informational Analysis: This proposed regulation has the
somewhat unusual feature for an OSHA substance-specific health standard
that most of the quantified benefits would come from the ancillary
provisions rather than from meeting the PEL with engineering controls.
OSHA decided to analyze for informational purposes the effect of
retaining the existing PEL but applying all of the ancillary
provisions, including respiratory protection. Under this approach, the
TWA PEL would remain at 2.0 micrograms per cubic meter, but all of the
other proposed provisions (including respiratory protection, which OSHA
does not consider an ancillary provision) would be required with their
triggers remaining the same as in the proposed rule--either the
presence of airborne beryllium at any level (e.g., initial monitoring,
written exposure control plan), at certain kinds of dermal exposure
(PPE), at the action level of 0.1 [mu]g/m\3\ (e.g., periodic
monitoring, medical removal), or at 0.2 [mu]g/m\3\ (e.g., regulated
areas, respiratory protection, medical surveillance).
    Given the record regarding beryllium exposures, this approach is
not one 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, which requires OSHA to ``set the
standard which most adequately assures, to the extent feasible, on the
basis of the best available evidence, that no employee will suffer
material impairment of health or functional capacity even if such
employee has regular exposure to the hazard dealt with by such standard
for the period of his working life.'' For that reason, this additional
analysis is provided strictly for informational purposes. E.O. 12866
and E.O. 13563 direct agencies to identify approaches that maximize net
benefits, and this analysis is purely for the purpose of exploring
whether this approach would hold any real promise to maximize net
benefits if it was permissible under the OSH Act. It does not appear to
hold such promise because an ancillary-provisions-only approach would
not be as protective and thus offers fewer benefits than one that
includes a lower PEL and engineering controls, and OSHA estimates the
costs would be about the same (or slightly lower, depending on certain
assumptions) under that approach as under the traditional proposed
approach.
    On an industry by industry basis, OSHA found that some industries
would have lower costs if they could adopt the ancillary-provisions-
only approach. Some employers would use engineering controls where they
are cheaper, even if they are not mandatory. OSHA does not have
sufficient information to do an analysis of the employer-by-employer
situations in which there exist some employers for whom the ancillary-
provisions-only approach might be cheaper. In the majority of affected
industries, the Agency estimates there are no costs saving to the
ancillary-provisions-only approach. However, OSHA estimates a total of
$2,675,828 per year in costs saving for entire industries where the
ancillary-provisions-only approach would be less expensive.
    The above discussion does not account for the possibility that the
lack of engineering controls would result in higher beryllium exposures
for workers in adjacent (non-production) work areas due to the
increased level of beryllium in the air. Because of a lack of data, and
because the issue did not arise in the other regulatory alternatives
OSHA considered (all of which have a PEL of less than 2.0 [mu]g/m\3\),
OSHA did not carefully examine exposure levels in non-production areas
for either cost or benefit purposes. To the extent such exposure levels
would be above the action level, there would be additional costs for
respiratory protection.
    The ancillary-provisions-only approach adds uncertainty to the
benefits analysis such that the benefits of the rule as proposed may
exceed, and perhaps greatly exceed, the benefits of this ancillary-
provisions-only approach:
    (1) Most exposed individuals would be in respirators, which OSHA
considers less effective than engineering controls in preventing
employee exposure to beryllium. OSHA last did an extensive review of
the evidence on effectiveness of respirators for its APFs rulemaking in
2006 (71 FR 50128-45, August 24, 2006). OSHA has not in the past tried
to quantify the size of this effect, but it could partially negate the
estimated benefits of 92 CBD deaths prevented per year and 4 lung
cancer cases prevented per year by the proposed standard.
    (2) As noted above, in the proposal OSHA did not consider benefits
caused by reductions in exposure in non-production areas. Unless
employers act to reduce exposures in the production areas, the absence
of a requirement for such controls would largely negate such benefits
from reductions in exposure in the non-productions areas.
    (3) OSHA believes that there is a strong possibility that the
benefits of the ancillary provisions (a midpoint estimate of
eliminating 45 percent of all remaining cases of CBD) would be
partially or wholly negated in the absence of engineering controls that
would reduce both airborne and surface dust levels. The measured
reduction in benefits from ancillary provision was in a facility with
average exposure levels of less than 0.2 [mu]g/m\3\.
    Based on these considerations, OSHA believes that the ancillary-
provisions-only approach is not one that is likely to maximize net
benefits. The costs saving, if any, are estimated to be small, and the
difficult-to-measure declines in benefits could be substantial.
3. A Method-of-Compliance Alternative
    Paragraph (f)(2) of the proposed rule contains requirements for the
implementation of engineering and work practice controls to minimize
beryllium exposures in beryllium work areas. For each operation in a
beryllium work area, employers must ensure that at least one of the
following engineering and work practice controls is in place to
minimize employee exposure: Material and/or process substitution;
ventilated enclosures; local exhaust ventilation; or process controls,
such as wet methods and automation. Employers are exempt from using
engineering and work practice controls only when they can show that
such controls are not feasible or where exposures are below the action
level based on two exposure samples taken seven days apart.
    These requirements, which are based on the stakeholders'
recommended beryllium standard that beryllium industry and union
stakeholders submitted to OSHA in 2012 (Materion and United
Steelworkers, 2012), address a concern associated with the proposed TWA
PEL. OSHA expects that day-to-day changes in workplace conditions, such
as workers' positioning or patterns of airflow, may cause frequent
exposures above the TWA PEL in workplaces where periodic sampling
indicates exposures are between the action level and the TWA PEL. As a
result, the default under the standard is that the controls are
required until the employer can demonstrate that exposures have not
exceeded the action level from at least two separate measurements taken
seven days apart.
    OSHA believes that substitution or engineering controls such as
those outlined in paragraph (f)(2)(i) provide the most reliable means
to control variability in exposure levels. However, OSHA also
recognizes that the requirements of paragraph (f)(2)(i) are

not typical of OSHA standards, which usually require engineering
controls only where exposures exceed the TWA PEL or STEL. The Agency is
therefore considering Regulatory Alternative #6, which would drop the
provisions of (f)(2)(i) from the proposed standard and make conforming
edits to paragraphs (f)(2)(ii) and (iii). This regulatory alternative
does not eliminate the need for engineering controls to comply with the
proposed TWA PEL and STEL, but does eliminate the requirement to use
one or more of the specified engineering or work practice controls
where exposures equal or exceed the action level. As shown in Table IX-
21, Regulatory Alternative #6 would decrease the annualized cost of the
proposed rule by about $457,000 using a discount rate of 3 percent and
by about $480,000 using a discount rate of 7 percent. OSHA has not been
able to estimate the change in benefits resulting from Regulatory
Alternative #6 at this time and invites public comment on this issue.
[GRAPHIC] [TIFF OMITTED] TP07AU15.034

4. Regulatory Alternatives That Affect Ancillary Provisions
    The proposed standard contains several ancillary provisions
(provisions other than the exposure limits), including requirements for
exposure assessment, medical surveillance, medical removal, training,
and regulated areas or access control. As reported in Chapter V of the
PEA, these ancillary provisions account for $27.8 million (about 72
percent) of the total annualized costs of the rule ($37.6 million)
using a 3 percent discount rate, or $28.6 million (about 73 percent) of
the total annualized costs of the rule ($39.1 million) using a 7
percent discount rate. The most expensive of the ancillary provisions
are the requirements for housekeeping and training, with annualized
costs of $12.6 million and $5.8 million, respectively, at a 3 percent
discount rate ($12.9 million and $5.8 million, respectively, at a 7
percent discount rate).
    OSHA's reasons for including each of the proposed ancillary
provisions are explained in Section XVIII of this preamble, Summary and
Explanation of the Standards.
    In particular, OSHA is proposing the requirements for exposure
assessment to provide a basis for ensuring that appropriate measures
are in place to limit worker exposures. Medical surveillance is
especially important because workers exposed above the proposed TWA
PEL, as well as many workers exposed below the proposed TWA PEL, are at
significant risk of death and illness. Medical surveillance would allow
for identification of beryllium-related adverse health effects at an
early stage so that appropriate intervention measures can be taken.
OSHA is proposing regulated areas and access control because they serve
to limit exposure to beryllium to as few employees as possible. OSHA is
proposing worker training to ensure that employers inform employees of
the hazards to which they are exposed, along with associated protective
measures, so that employees understand how they can minimize their
exposure to beryllium. Worker training on beryllium-related work
practices is particularly important in controlling beryllium exposures
because engineering controls frequently require action on the part of
workers to function effectively.
    OSHA has examined a variety of regulatory alternatives involving
changes to one or more of the proposed ancillary provisions. The
incremental cost of each of these regulatory alternatives and its
impact on the total costs of the proposed rule is summarized in Table
IX-22 at the end of this section. OSHA has preliminarily determined
that several of these ancillary provisions will increase the benefits
of the proposed rule, for example, by helping to ensure the TWA PEL is
not exceeded or by lowering the risks to workers given the significant
risk remaining at the proposed TWA PEL. However, except for Regulatory
Alternative #7 (involving the elimination of all ancillary provisions),
OSHA did not estimate changes in monetized benefits for the regulatory
alternatives that affect ancillary provisions. Two regulatory
alternatives that involve all ancillary provisions are presented below
(#7 and #8), followed by regulatory alternatives for exposure
monitoring (#9, #10, and #11), for regulated areas (#12), for personal

protective clothing and equipment (#13), for medical surveillance (#14
through #21), and for medical removal (#22).
a. All Ancillary Provisions
    The SBAR Panel recommended that OSHA analyze a PEL-only standard as
a regulatory alternative. The Panel also recommended that OSHA consider
not applying ancillary provisions of the standard where exposure levels
are low so as to minimize costs for small businesses (SBAR, 2008). In
response to these recommendations, OSHA analyzed Regulatory Alternative
#7, a PEL-only standard, and Regulatory Alternative #8, which would
apply ancillary provisions of the beryllium standard only where
exposures exceed the proposed TWA PEL of 0.2 [mu]g/m\3\ or the proposed
STEL of 2 [mu]g/m\3\.
    Regulatory Alternative #7 would solely update 1910.1000 Tables Z-1
and Z-2, so that the proposed TWA PEL and STEL would apply to all
workers in general industry. This alternative would eliminate all of
the ancillary provisions of the proposed rule, including exposure
assessment, medical surveillance, medical removal, PPE, housekeeping,
training, and regulated areas or access control. Under this regulatory
alternative, OSHA estimates that the costs for the proposed ancillary
provisions of the rule (estimated at $27.8 million annually at a 3
percent discount rate) would be eliminated. In order to meet the PELs,
employers would still commonly need to do monitoring, train workers on
the use of controls, and set up some kind of regulated areas to
indicate where respirator use would be required. It is also likely
that, under this alternative, many employers would follow the
recommendations of Materion and the United Steelworkers to provide
medical surveillance, PPE, and other protective measures for their
workers (Materion and USW, 2012). OSHA has not attempted to estimate
the extent to which these ancillary-provision costs would be incurred
if they were not formally required or whether any of these costs under
Regulatory Alternative #7 would reasonably be attributable to the
proposed rule. OSHA welcomes comment on the issue.
    OSHA has also estimated the effect of this regulatory alternative
on the benefits of the rule. As a result of eliminating all of the
ancillary provisions, annualized benefits are estimated to decrease 57
percent, relative to the proposed rule, from $575.8 million to $249.1
million, using a 3 percent discount rate, and from $255.3 million to
$110.4 million using a 7 percent discount rate. This estimate follows
from OSHA's analysis of benefits in Chapter VII of the PEA, which found
that about 57 percent of the benefits of the proposed rule, evaluated
at their mid-point value, were attributable to the combination of the
ancillary provisions. As these estimates show, OSHA expects that the
benefits estimated under the proposed rule will not be fully achieved
if employers do not implement the ancillary provisions of the proposed
rule.
    Both industry and worker groups have recognized that a
comprehensive standard is needed to protect workers exposed to
beryllium. The stakeholders' recommended standard that representatives
of the primary beryllium manufacturing industry and the United
Steelworkers union provided to OSHA confirms the importance of
ancillary provisions in protecting workers from the harmful effects of
beryllium exposure (Materion and USW, 2012). Ancillary provisions such
as personal protective clothing and equipment, regulated areas, medical
surveillance, hygiene areas, housekeeping requirements, and hazard
communication all serve to reduce the risks to beryllium-exposed
workers beyond that which the proposed TWA PEL alone could achieve.
    Moreover, where there is continuing significant risk at the TWA
PEL, the decision in the Asbestos case (Bldg. and Constr. Trades Dep't,
AFL-CIO v. Brock, 838 F.2d 1258, 1274 (D.C. Cir. 1988)) indicated that
OSHA should use its legal authority to impose additional requirements
on employers to further reduce risk when those requirements will result
in a greater than de minimis incremental benefit to workers' health.
Nevertheless, OSHA requests comment on this alternative.
    Under Regulatory Alternative #8, several ancillary provisions that
the current proposal would require under a variety of exposure
conditions (e.g., dermal contact, any airborne exposure, exposure at or
above the action level) would instead only apply where exposure levels
exceed the TWA PEL or STEL. Regulatory Alternative #8 affects the
following provisions of the proposed standard:

--Exposure monitoring: Whereas the proposed standard requires annual
monitoring when exposure levels are at or above the action level and at
or below the TWA PEL, Regulatory Alternative #8 would require annual
exposure monitoring only where exposure levels exceed the TWA PEL or
STEL;
--Written exposure control plan: Whereas the proposed standard requires
written exposure control plans to be maintained in any facility covered
by the standard, Regulatory Alternative #8 would require only
facilities with exposures above the TWA PEL or STEL to maintain a plan;
--Housekeeping: Whereas the proposed standard's housekeeping
requirements apply across a wide variety of beryllium exposure
conditions, Alternative #8 would limit housekeeping requirements to
areas and employees with exposures above the TWA PEL or STEL;
--PPE: Whereas the proposed standard requires PPE for employees under a
variety of conditions, such as exposure to soluble beryllium or visible
contamination with beryllium, Alternative #8 would require PPE only for
employees exposed above the TWA PEL or STEL;
--Medical Surveillance: Whereas the proposed standard's medical
surveillance provisions require employers to offer medical surveillance
to employees with signs or symptoms of beryllium-related health effects
regardless of their exposure level, Alternative #8 would require
surveillance only for those employees exposed above the TWA PEL or
STEL.
    To estimate the cost savings for this alternative, OSHA re-
estimated the group of workers that would fall under the above
provisions and the changes to their scope. Combining these various
adjustments along with associated unit costs, OSHA estimates that,
under this regulatory alternative, the costs for the proposed rule
would decline from $37.6 million to $18.9 million using a 3 percent
discount rate and from $39.1 million to $20.0 million using a 7 percent
discount rate.
    The Agency has not quantified the impact of this alternative on the
benefits of the rule. However, ancillary provisions that offer
protective measures to workers exposed below the proposed TWA PEL, such
as personal protective clothing and equipment, beryllium work areas,
hygiene areas, housekeeping requirements, and hazard communication, all
serve to reduce the risks to beryllium-exposed workers beyond that
which the proposed TWA PEL and STEL could achieve. OSHA's preliminary
conclusion is that the requirements triggered by the action level and
other exposures below the proposed PELs will result in very real and
necessary, but difficult to quantify, further reduction in risk beyond
that provided by the PELs alone.
    The remainder of this section discusses additional regulatory
alternatives that apply to individual

ancillary provisions. At this time, OSHA is not able to quantify the
effects of these regulatory alternatives on benefits. The Agency
solicits comment on the effects of these regulatory alternatives on the
benefits of the proposed rule.
b. Exposure Monitoring
    Paragraph (d) of the proposed standard, Exposure Monitoring,
requires annual monitoring where exposures are at or above the action
level and at or below the TWA PEL. It does not require periodic
monitoring where exposure levels have been determined to be below the
action level, or above the TWA PEL. The rationale for this provision is
provided in this preamble discussion of paragraph (a) in Section XVIII,
Summary and Explanation of the Proposed Standard. Below is a brief
summary, followed by a discussion of three alternatives.
    Because of the variable nature of employee exposures to airborne
concentrations of beryllium, maintaining exposures below the action
level provides reasonable assurance that employees will not be exposed
to beryllium at levels above the TWA PEL on days when no exposure
measurements are made. Even when all measurements on a given day fall
at or below the TWA PEL, if those measurements are still at or above
the action level, there is a smaller safety margin and a greater chance
that on another day, when exposures are not measured, the employee's
exposure may exceed the TWA PEL. When exposure measurements are at or
above the action level, the employer cannot be reasonably confident
that employees have not been exposed to beryllium concentrations in
excess of the TWA PEL during at least some part of the work week.
Therefore, requiring periodic exposure measurements when the action
level is met or exceeded provides the employer with a reasonable degree
of confidence in the results of the exposure monitoring. The proposed
action level that would trigger the exposure monitoring is one-half of
the TWA PEL, which reflects the Agency's typical approach to setting
action levels (see, e.g., Inorganic arsenic (29 CFR 1910.1018),
Ethylene oxide (29 CFR 1910.1047), Benzene (29 CFR 1910.1028), and
Methylene Chloride (29 CFR 1910.1052)).
    Certain other aspects of the proposed periodic monitoring
requirements, which the Agency based on the stakeholders' recommended
standard submitted by Materion and the United Steelworkers (Materion
and USW, 2012), depart significantly from OSHA's usual exposure
monitoring requirements. The proposed standard only requires annual
monitoring, and does not require periodic monitoring when exposures are
recorded above the TWA PEL, whereas most OSHA standards require
monitoring at least every 6 months when exposure levels exceed the
action level, and every 3 months when exposures are above the TWA PEL.
For example, the standards for vinyl chloride (29 CFR 1910.1017),
inorganic arsenic (29 CFR 1910.1018), lead (29 CFR 1910.1025), cadmium
(29 CFR 1910.1027), methylene chloride (29 CFR 1910.1052),
acrylonitrile (29 CFR 1910.1045), ethylene oxide (29 CFR 1910.1047),
and formaldehyde (29 CFR 1910.1048), all specify periodic monitoring at
least every six months when exposures are at, or above, the action
level. Monitoring is required every three months when exposures exceed
the TWA PEL in the standards for methylene chloride, ethylene oxide,
acrylonitrile, inorganic arsenic, lead, and vinyl chloride. In the
standards for cadmium, 1,3-Butadiene, formaldehyde, benzene and
asbestos (29 CFR 1910.1001), monitoring is required every six months
when exposures exceed the TWA PEL. In these standards, monitoring
workers exposed above the TWA PEL ensures that employers know workers'
exposure levels in order to select appropriate respirators and other
PPE, and that records of their exposures are available if needed for
medical, legal, or epidemiological purposes.
    OSHA has examined three regulatory alternatives that would modify
the requirements of paragraph (d) to be more similar to OSHA's typical
periodic monitoring requirements. Under Regulatory Alternative #9,
employers would be required to perform periodic exposure monitoring
every 180 days when exposures are at or above the action level or above
the STEL, but at or below the TWA PEL. As shown in Table IX-22,
Regulatory Alternative #9 would increase the annualized cost of the
proposed rule by about $773,000 using either a 3 percent or 7 percent
discount rate.
    Under Regulatory Alternative #10, employers would be required to
perform periodic exposure monitoring every 180 days when exposures are
at or above the action level or above the STEL, including where
exposures exceed the TWA PEL. As shown in Table IX-22, Regulatory
Alternative #10 would increase the annualized cost of the proposed rule
by about $929,000 using either a 3 percent or 7 percent discount rate.
    Under Regulatory Alternative #11, employers would be required to
perform periodic exposure monitoring every 180 days when exposures are
at or above the action level, and every 90 days where exposures exceed
the TWA PEL or STEL. This alternative is similar to the periodic
monitoring requirements in the draft proposed rule presented to the
SERs during the 2007 OSHA beryllium SBAR Panel process. Of the exposure
monitoring alternatives, it is also the most similar to the exposure
monitoring provisions of most other 6(b)(5) standards. As shown in
Table IX-22, Regulatory Alternative #11 would increase the annualized
cost of the proposed rule by about $1.07 million using either a 3
percent or 7 percent discount rate.
c. Regulated Areas
    Proposed paragraph (e) requires employers to establish and maintain
beryllium work areas wherever employees are exposed to airborne
beryllium, regardless of the level of exposure, and regulated areas
wherever airborne concentrations of beryllium exceed the TWA PEL or
STEL. Employers are required to demarcate beryllium work areas and
regulated areas and limit access to regulated areas to authorized
persons.
    The SBAR Panel report recommended that OSHA consider dropping or
limiting the provision for regulated areas (SBAR, 2008). In response to
this recommendation, OSHA examined Regulatory Alternative #12, which
would eliminate the requirement that employers establish regulated
areas. This alternative is meant only to eliminate the requirement to
set up and demarcate specific physical areas: All ancillary provisions
would be triggered by the same conditions as under the standard's
definition of a ``regulated area.'' For example, under the current
proposal, employees who work in regulated areas for at least 30 days
annually are eligible for medical surveillance. If OSHA were to remove
the requirement to establish regulated areas, the medical surveillance
provisions would be altered so that employees who work more than 30
days annually in jobs or areas with exposures that exceed the TWA PEL
or STEL are eligible for medical surveillance. This alternative would
not eliminate the proposed requirement to establish beryllium work
areas. As shown in Table IX-22, Regulatory Alternative #12 would
decrease the annualized cost of the proposed rule by about $522,000
using a 3 percent discount rate, and by about $523,000 using a 7
percent discount rate.

d. Personal Protective Clothing and Equipment
    Regulatory Alternative #13 would modify the requirements for
personal protective equipment (PPE) by requiring appropriate PPE
whenever there is potential for skin contact with beryllium or
beryllium-contaminated surfaces. This alternative would be broader, and
thus more protective, than the PPE requirement in the proposed
standard, which requires PPE to be used in three circumstances: (1)
Where exposure exceeds the TWA PEL or STEL; (2) where employees'
clothing or skin may become visibly contaminated with beryllium; and
(3) where employees may have skin contact with soluble beryllium
compounds. These PPE requirements were based on the stakeholders'
recommended standard that Materion and the United Steelworkers
submitted to the Agency (Materion and USW, 2012).
    The proposed rule's requirement to use PPE where work clothing or
skin may become ``visibly contaminated'' with beryllium differs from
prior standards, which do not require contamination to be visible in
order for PPE to be required. While OSHA's language regarding PPE
requirements varies somewhat from standard to standard, previous
standards tend to emphasize potential for contact with a substance that
can trigger health effects via dermal exposure, rather than ``visible
contamination'' with the substance. For example, the standard for
chromium (VI) requires the employer to provide appropriate PPE where a
hazard is present or is likely to be present from skin or eye contact
with chromium (VI) (29 CFR 1910.1026). The lead and cadmium standards
require PPE where employees are exposed above the PEL or where there is
potential for skin or eye irritation, regardless of airborne exposure
level. Under the Methylenedianiline (MDA) standard (29 CFR 1910.1050),
PPE must be provided where employees are subject to dermal exposure to
MDA, where liquids containing MDA can be splashed into the eyes, or
where airborne concentrations of MDA are in excess of the PEL.
    OSHA requests comment on the proposed PPE requirements in
Regulatory Alternative #13, which would modify the proposed PPE
requirements to be similar to the chromium (VI), lead, cadmium, and MDA
standards. Because small beryllium particles can pass through intact or
broken skin and cause sensitization, limiting the requirements for PPE
based on surfaces that are ``visibly contaminated'' may not adequately
protect workers from beryllium exposure. Submicron particles (less than
1 [mu]g in diameter) are not visible to the naked eye and yet may pass
through the skin and cause beryllium sensitization. Although solubility
may play a role in the level of sensitization risk, the available
evidence suggests that contact with insoluble, as well as soluble,
beryllium can cause sensitization via dermal contact (see this preamble
at Section V, Health Effects). Sensitized workers are at significant
risk of developing CBD (see this preamble at Section V, Health Effects,
and Section VIII, Significance of Risk).
    To estimate the cost of Regulatory Alternative #13, OSHA assumed
that all at-risk workers, except administrative occupations, would
require protective clothing and a pair of work gloves that would need
to be replaced annually. The economic analysis of the proposed standard
already contained costs for protective clothing for all employees whose
clothing might be contaminated by beryllium (the analysis assumed that
all clothing contamination would be visible, or the clothing is already
provided even if not required by this standard) and gloves for many
jobs where workers were expected to be exposed to visible contamination
or soluble beryllium; thus OSHA estimated the cost of this alternative
as the cost of providing gloves for the remainder of the jobs where
workers have potential for skin exposure even in the absence of visible
contamination. As shown in Table IX-22, Regulatory Alternative #13
would increase the annualized cost of the proposed rule by about
$138,000 using either a 3 percent or 7 percent discount rate.
e. Medical Surveillance
    The proposed requirements for medical surveillance include: (1)
Medical examinations, including a test for beryllium sensitization, for
employees who are exposed to beryllium in a regulated area (i.e., above
the proposed TWA PEL or STEL) for 30 days or more per year, who are
exposed to beryllium in an emergency, or who show signs or symptoms of
CBD; and (2) CT scans for employees who were exposed above the proposed
TWA PEL or STEL for more than 30 days in a 12-month period for 5 years
or more. The proposed standard would require annual medical exams to be
provided for employees exposed in a regulated area for 30 days or more
per year and for employees showing signs or symptoms of CBD, while
tests for beryllium sensitization and CT scans would be provided to
eligible employees biennially.
    OSHA estimated in Chapter V of the PEA that the medical
surveillance requirements would apply to 4,528 workers in general
industry, of whom 387 already receive that surveillance.\43\ In Chapter
V, OSHA estimated the costs of medical surveillance for the remaining
4,141 workers who would now have such protection due to the proposed
standard. The Agency's preliminary analysis indicates that 4 workers
with beryllium sensitization and 6 workers with CBD will be referred to
pulmonary specialists annually as a result of this medical
surveillance. Medical surveillance is particularly important for this
rule because beryllium-exposed workers, including many workers exposed
below the proposed PELs, are at significant risk of illness. OSHA did
not estimate, and the benefits analysis does not include, monetized
benefits resulting from early discovery of illness.
---------------------------------------------------------------------------

    \43\ See current compliance rates for medical surveillance in
Chapter V of the PEA, Table V-15.
---------------------------------------------------------------------------

    OSHA has examined eight regulatory alternatives (#14 through #21)
that would modify the proposed rule's requirements for employee
eligibility, the tests that must be offered, and the frequency of
periodic exams. Medical surveillance was a subject of special concern
to SERs during the SBAR Panel process, and the SBAR Panel offered many
comments and recommendations related to medical surveillance for OSHA's
consideration. Some of the Panel's concerns have been partially
addressed in this proposal, which was modified since the SBAR Panel was
convened (see this preamble at Section XVIII, Summary and Explanation
of the Proposed Standard, for more detailed discussion). Several of the
regulatory alternatives presented here (#16, #18, and #20) also respond
to recommendations by the SBAR Panel to reduce burdens on small
businesses by dropping or reducing the frequency of medical
surveillance requirements. OSHA is also considering several additional
regulatory alternatives that would increase the frequency of
surveillance or the range of employees covered by medical surveillance
(#14, #15, #17, #19, and #21).
    OSHA has preliminarily determined that a significant risk of
beryllium sensitization, CBD, and lung cancer exists at exposure levels
below the proposed TWA PEL and that there is evidence that beryllium
sensitization can occur even from short-term exposures (see this
preamble at Section V, Health Effects, and Section VIII,

Significance of Risk). The Agency therefore anticipates that more
employees would develop adverse health effects without receiving the
benefits of early intervention in the disease process because they are
not eligible for medical surveillance (see this preamble at Section V,
Health Effects).
    OSHA is considering three regulatory alternatives that would expand
eligibility for medical surveillance to a broader group of employees
than those eligible under the proposed standard. Under Regulatory
Alternative #14, medical surveillance would be available to employees
who are exposed to beryllium above the proposed TWA PEL or STEL,
including employees exposed for fewer than 30 days per year. Regulatory
Alternative #15 would expand eligibility for medical surveillance to
employees who are exposed to beryllium above the proposed action level,
including employees exposed for fewer than 30 days per year. Regulatory
Alternative #21 would extend eligibility for medical surveillance as
set forth in proposed paragraph (k) to all employees in shipyards,
construction, and general industry who meet the criteria of proposed
paragraph (k)(1). However, all other provisions of the standard would
be in effect only for employers and employees that fall within the
scope of the proposed rule. Each of these alternatives would provide
surveillance to fewer workers (and cost less to employers) than the
draft proposed rule presented to SERs during the SBAR Panel process,
which included skin contact as a trigger and would therefore cover most
beryllium-exposed workers in general industry, construction, and
maritime. These alternatives would provide more surveillance (and cost
more to employers) than the medical surveillance requirements in the
current proposal.
    To estimate the cost of Regulatory Alternative #14, OSHA assumed
that 1 person would enter regulated areas for less than 30 days a year
for every 4 people working in regulated areas on a regular basis. Thus,
this alternative includes costs for an incremental number of annual
medical exams equal to 25 percent of the number of workers estimated to
be working in regulated areas after the standard is promulgated. As
shown in Table IX-22, Regulatory Alternative #14 would increase the
annualized cost of the proposed rule by about $38,000 using either a 3
percent or 7 percent discount rate.
    To estimate the cost of Regulatory Alternative #15, OSHA assumed
that all workers exposed above the action level before the standard
would continue to be exposed after the standard is promulgated. OSHA
also assumed that 1 person would enter areas exceeding the action level
for fewer than 30 days a year for every 4 people working in an area
exceeding the action level on a regular basis. Thus, this alternative
includes costs for medical exams for the number of workers exposed
between the action level and the TWA PEL as well as an incremental 25
percent of all workers exposed above the action level. As shown in
Table IX-22, Regulatory Alternative #15 would increase the annualized
cost of the proposed rule by about $3.9 million using a discount rate
of 3 percent, and by about $4.0 million using a discount rate of 7
percent.
    For Alternative #21, OSHA is considering two different scenarios to
estimate costs: One where the TWA PEL for the groups outside the scope
of the proposed standard changes from 2 [mu]g/m\3\ to 0.2 [mu]g/m\3\,
as in Regulatory Alternative #2; and one where the TWA PEL remains at
the current level of 2.0 [mu]g/m\3\. For costing purposes, these have
been designated as Regulatory Alternative #21a and Regulatory
Alternative #21b, respectively.
    For Regulatory Alternative #21a, medical surveillance above the
proposed TWA PEL of 0.2, OSHA estimated the cost of extending medical
surveillance to workers in aluminum production, abrasive blasting in
construction, maritime abrasive blasting, maritime welding, and coal
fired power plants, assuming that all feasible controls are in place to
reduce exposures to the proposed TWA PEL of 0.2 [mu]g/m\3\ or lower.
OSHA did not include control costs to achieve compliance with a TWA PEL
of 0.2 [mu]g/m\3\, as these costs were addressed in Regulatory
Alternative #2. (For a summary of the estimates of affected workers and
the exposure profile, see the discussion accompanying Regulatory
Alternative # 2.) As shown in Table IX-22, Regulatory Alternative #21a
would increase the annualized cost of the proposed rule by about $4.4
million using a 3-percent discount rate and $4.5 million using a 7-
percent discount rate.
    For Alternative #21b, medical surveillance above the current TWA
PEL of 2.0 [mu]g/m\3\, OSHA estimated that all abrasive blasters in
construction and shipyards who are currently above the current TWA PEL
of 2.0 [mu]g/m\3\would be eligible for medical surveillance. As
discussed under alternative #2, outside of abrasive blasting, OSHA has
identified a small group of maritime welders who may be exposed to
beryllium above the current TWA PEL in their work. Of these workers, 90
percent would be below the current TWA PEL if their employers
instituted all feasible engineering and work practice controls to meet
the existing standard. If they came into compliance with the current
PELs, they would not be required to offer employees medical
surveillance under Alternative #21b. OSHA estimated that the other 10
percent of these maritime welders, and 10 percent of workers in primary
aluminum production and coal-fired power generation, with all feasible
engineering controls and work practices in place, would still be
exposed above the current TWA PEL and would be eligible for medical
surveillance under Alternative #21b. OSHA's customary method in
preparing an economic analysis of a new standard is to cost out the
incremental cost of the new standard assuming full compliance with
existing standards. Finally, OSHA estimated that 15 percent of the
workers excluded from the scope of the proposed standard absent the
alternative would show signs and symptoms of CBD or be exposed in
emergencies, and so would be eligible for medical surveillance. As
shown in Table IX-22, under these assumptions Regulatory Alternative
#21b would increase the annualized cost of the proposed rule by about
$3.0 million using a 3-percent discount rate and $3.1 million using a
7-percent discount rate. The Agency notes that, as abrasive blasters
are the primary application group with beryllium exposure in
construction and shipyards, it is unlikely that as many as 15 percent
of other workers would show signs and symptoms of beryllium exposure or
be exposed to beryllium in an emergency. Thus, OSHA believes the stated
cost of about $3.0 million may overestimate the true costs for this
alternative and invites comment on this issue.
    In response to concerns raised during the SBAR Panel process about
testing requirements, OSHA is considering two regulatory alternatives
that would provide greater flexibility in the program of tests provided
as part of an employer's medical surveillance program. Under Regulatory
Alternative #16, employers would not be required to offer employees
testing for beryllium sensitization. As shown in Table IX-22, this
alternative would decrease the annualized cost of the proposed rule by
about $710,000 using a discount rate of 3 percent, and by about
$724,000 using a discount rate of 7 percent.
    Regulatory Alternative #18 would eliminate the CT scan requirement
from the proposed rule. This alternative would decrease the annualized
cost of

the proposed rule by about $472,000 using a discount rate of 3 percent,
and by about $481,000 using a discount rate of 7 percent.
    OSHA is considering several alternatives to the proposed frequency
of sensitization testing, CT scans, and general medical examinations.
The frequency of periodic medical surveillance is an important factor
in the efficacy of the surveillance in protecting worker health.
Regular, appropriately frequent medical surveillance promotes awareness
of beryllium-related health effects and early intervention in disease
processes among workers. In addition, the longer the time interval
between when a worker becomes sensitized and when the worker's case is
identified in the surveillance program, the more difficult it will be
to identify and address the exposure conditions that led to
sensitization. Therefore, reducing the frequency of sensitization
testing would reduce the usefulness of the surveillance information in
identifying problem areas and reducing risks to other workers. These
concerns must be weighed against the costs and other burdens of
surveillance.
    Regulatory alternative #17 would require employers to offer annual
testing for beryllium sensitization to eligible employees, as in the
draft proposal presented to the SBAR Panel. As shown in Table IX-22,
this alternative would increase the annualized cost of the proposed
rule by about $392,000 using a discount rate of 3 percent, and by about
$381,000 using a discount rate of 7 percent.
    Regulatory Alternative #19 would similarly increase the frequency
of periodic CT scans from biennial to annual scans, increasing the
annualized cost of the proposed rule by about $459,000 using a discount
rate of 3 percent, and by about $450,000 using a discount rate of 7
percent.
    Finally, under Regulatory Alternative #20, employers would only
have to provide all periodic components of the medical surveillance
exams biennially to eligible employees. This alternative would decrease
the annualized cost of the proposed rule by about $446,000 using a
discount rate of 3 percent and by about $433,000 using a discount rate
of 7 percent.
f. Medical Removal
    Under paragraph (l) of the proposed standard, Medical Removal,
employees in jobs with exposure at or above the action level become
eligible for medical removal when they are diagnosed with CBD or
confirmed positive for beryllium sensitization. When an employee
chooses removal, the employer is required to remove the employee to
comparable work in an environment where beryllium exposure is below the
action level if such work is available and the employee is either
already qualified or can be trained within one month. If comparable
work is not available, paragraph (l) would require the employer to
place the employee on paid leave for six months or until comparable
work becomes available (whichever comes first). Or, rather than
choosing removal, an eligible employee could choose to remain in a job
with exposure at or above the action level and wear a respirator. The
proposed medical removal protection (MRP) requirements are based on the
stakeholders' recommended beryllium standard that representatives of
the beryllium production industry and the United Steelworkers union
submitted to OSHA in 2012 (Materion and USW, 2012).
    The scientific information on effects of exposure cessation is
limited at this time, but the available evidence suggests that removal
from exposure can be beneficial for individuals who are sensitized or
have early-stage CBD (see this preamble at Section VIII, Significance
of Risk). As CBD progresses, symptoms become serious and debilitating.
Steroid treatment is less effective at later stages, once fibrosis has
developed (see this preamble at Section VIII, Significance of Risk).
Given the progressive nature of the disease, OSHA believes it is
reasonable to conclude that removal from exposure to beryllium will
benefit sensitized employees and those with CBD. Physicians at National
Jewish Health, one of the main CBD research and treatment sites in the
US, ``consider it important and prudent for individuals with beryllium
sensitization and CBD to minimize their exposure to airborne
beryllium,'' and ``recommend individuals diagnosed with beryllium
sensitization and CBD who continue to work in a beryllium industry to
have exposure of no more than 0.01 micrograms per cubic meter of
beryllium as an 8-hour time-weighted average'' (NJMRC, 2013). However,
OSHA is aware that MRP may prove costly and burdensome for some
employers and that the scientific literature on the effects of exposure
cessation on the development of CBD among sensitized individuals and
the progression from early-stage to late-stage CBD is limited.
    The SBAR Panel report included a recommendation that OSHA give
careful consideration to the impacts that an MRP requirement could have
on small businesses (SBAR, 2008). In response to this recommendation,
OSHA analyzed Regulatory Alternative #22, which would remove the
proposed requirement that employers offer MRP. As shown in Table IX-22,
this alternative would decrease the annualized cost of the proposed
rule by about $149,000 using a discount rate of 3 percent, and by about
$166,000 using a discount rate of 7 percent.

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5. Timing
    As proposed, the new standard would become effective 60 days
following publication in the Federal Register. The majority of employer
duties in the standard would become enforceable 90 days following the
effective date. Change rooms, however, would not be required until one
year after the effective date, and the deadline for engineering
controls would be no later than two years after the effective date.
    OSHA invites suggestions for alternative phase-in schedules for
engineering controls, medical surveillance, and other provisions of the
standard. Although OSHA did not explicitly develop or quantitatively
analyze any other regulatory alternatives involving longer-term or more
complex phase-ins of the standard (possibly involving more delayed
implementation dates for small businesses), some general outcomes are
likely. For example, a longer phase-in time would have several
advantages, such as reducing initial costs of the standard or allowing
employers to coordinate their environmental and occupational safety and
health control strategies to minimize potential costs. However, a
longer phase-in would also postpone and reduce the benefits of the
standard. Suggestions for alternatives may apply to specific industries
(e.g., industries where first-year or annualized cost impacts are
highest), specific size-classes of employers (e.g., employers with
fewer than 20 employees), combinations of these factors, or all firms
covered by the rule.
    OSHA requests comments on all these regulatory alternatives,
including the Agency's regulatory alternatives presented above, the
Agency's analysis of these alternatives, and whether there are other
regulatory alternatives the Agency should consider.

I. Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act, as amended in 1996, requires the
preparation of an Initial Regulatory Flexibility Analysis (IRFA) for
proposed rules where there would be a significant economic impact on a
substantial number of small entities. (5 U.S.C. 601-612). Under the
provisions of the law, each such analysis shall contain:

    1. A description of the impact of the proposed rule on small
entities;
    2. A description of the reasons why action by the agency is being
considered;
    3. A succinct statement of the objectives of, and legal basis for,
the proposed rule;
    4. A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
    5. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirements and the type of professional skills necessary for
preparation of the report or record;
    6. An identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap, or conflict with the
proposed rule;
    7. A description and discussion of any significant alternatives to
the proposed rule which accomplish the stated objectives of applicable
statutes and which minimize any significant economic impact of the
proposed rule on small entities, such as:
    (a) The establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small entities;
    (b) The clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities;
    (c) The use of performance rather than design standards; and
    (d) An exemption from coverage of the rule, or any part thereof,
for such small entities.

5 U.S.C. 603, 607. The Regulatory Flexibility Act further states that
the required elements of the IRFA may be performed in conjunction with,
or as part of, any other agenda or analysis required by any other law
if such other analysis satisfies the provisions of the IRFA. 5 U.S.C.
605.
    While a full understanding of OSHA's analysis and conclusions with
respect to costs and economic impacts on small entities requires a
reading of the complete PEA and its supporting materials, the IRFA
summarizes the key aspects of OSHA's analysis as they affect small
entities.
1. A Description of the Impact of the Proposed Rule on Small Entities
    Section IX.F of this preamble summarized the impacts of the
proposed rule on small entities. Table IX-9 showed costs as a
percentage of profits and revenues for small entities, classified as
small by the Small Business Administration, and Tables IX-10 showed
costs as a percentage of revenues and profits for business entities
with fewer than 20 employees. (The costs in these tables were
annualized using a discount rate of 3 percent.)
2. A Description of the Reasons Why Action by the Agency Is Being
Considered
    Chronic beryllium disease (CBD) is a hypersensitivity, or allergic
reaction, to beryllium that leads to a chronic inflammatory disease of
the lungs. It takes months to years after initial beryllium exposure
before signs and symptoms of CBD occur. Removing an employee with CBD
from the beryllium source does not always lead to recovery. In some
cases CBD continues to progress following removal from beryllium
exposure. CBD is not a chemical pneumonitis but an immune-mediated
granulomatous lung disease. OSHA's preliminary risk assessment,
presented in Section VI of this preamble, indicates that there is
significant risk of beryllium sensitization and chronic beryllium
disease from a 45-year (working life) exposure to beryllium at the
current TWA PEL of 2 [mu]g/m\3\. The risk assessment further indicates
that there is significant risk of lung cancer to workers exposed to
beryllium at the current TWA PEL of 2 [mu]g/m\3\. The proposed
standard, with a lower PEL of .2 [mu]g/m\3\, will help to address these
health concerns.
    For CBD to occur, an employee must first become sensitized (i.e.,
allergic) to beryllium. Once an employee is sensitized, inhaled
beryllium that deposits and persists in the lung may trigger a cell-
mediated immune response (i.e., hypersensitivity reaction) that results
in the formation of a type of lung scarring known as a granuloma. The
granuloma consists of a localized mass of immune and inflammatory cells
that have formed around a beryllium particle lodged in the
interstitium, which is tissue between the air sacs that can be affected
by fibrosis or scarring. With time, the granulomas spread and can lead
to chronic cough, shortness of breath (especially upon exertion),
fatigue, abnormal pulmonary function, and lung fibrosis.
    While CBD primarily affects the lungs, it can also involve other
organs such as the liver, skin, spleen, and kidneys. As discussed in
more detail in this preamble, some studies demonstrate that
sensitization and CBD cases have occurred in workplaces that use a wide
range of beryllium compounds, including several beryllium salts,
refined beryllium metal, beryllium oxide, and the beryllium alloys.
While water-soluble and insoluble beryllium compounds have the
potential to cause sensitization, it has been suggested that CBD is the
result of occupational exposure to beryllium oxide and other water-
insoluble berylliums rather than exposure to water-soluble beryllium or
beryllium ores. However, there are inadequate data, at this time, on
employees selectively exposed to specific beryllium compounds to
eliminate a potential CBD concern for any particular form of this
metal. Regardless of the type of beryllium compound, in order to cause
respiratory disease the inhaled beryllium must contain particulates
that are small enough to reach the bronchoalveolar region of the lung
where the disease takes place (OSHA, 2007).
    Some research suggests that skin exposure to small beryllium
particles or beryllium-containing solutions may also lead to
sensitization (Tinkle et al., 2003). These additional risk factors may
explain why some individuals with seemingly brief, low level exposure
to airborne beryllium become sensitized while others with long-term
high exposures do not. Other studies indicate that even though
employees sensitized to beryllium do not exhibit clinical symptoms,
their immune function is altered such that inhalation to previously
safe levels of beryllium can now trigger serious lung disease (Kreiss
et al., 1996; Kreiss et al., 1997; Kelleher et al., 2001 and Rossman,
2001).
    In the 1980s, the laboratory blood test known as the BeLPT was
developed. The test substantially improved identification of beryllium-
sensitized individuals and provides an opportunity to diagnose CBD at
an early stage. The BeLPT measures the ability of immune cells (i.e.,
peripheral blood lymphocytes) to react with beryllium. It has been
reported that the BeLPT can identify 70 to 90 percent of those
sensitized with a high specificity (approximately 1 to 3 percent false
positives) (Newman et al., 2001; Stange et al., 2004).
    An employee with an abnormal BeLPT (i.e., the individual is
sensitized) can undergo fiber-optic bronchoscopy to obtain a lung
biopsy sample from which granulomatous lung inflammation can be
pathologically observed prior to the onset of symptoms. The combination
of a confirmed abnormal BeLPT (that is, a second abnormal result from
the BeLPT) and microscopic evidence of granuloma formation is
considered diagnostic for CBD. The BeLPT assists in differentiating CBD
from other granulomatous lung diseases (e.g., sarcoidosis) with similar
lung

pathology. This pre-clinical diagnostic tool provides opportunities for
early intervention that did not exist when diagnosis relied on clinical
symptoms, chest x-rays, and abnormal pulmonary function (OSHA, 2007).
    The BeLPT/lung biopsy diagnostic approach has been utilized in
several occupational surveys and surveillance programs over the last
fifteen years. The findings have expanded scientific awareness of
sensitization and CBD prevalence among beryllium employees and provided
a better understanding of its work-related risk factors. Some of the
more informative studies come from nuclear weapons facilities operated
by the Department of Energy (Viet et al., 2000; Stange et al., 2001;
DOE/HSS Report, 2006), a beryllium ceramics plant in Arizona (Kreiss et
al., 1996; Henneberger et al., 2001; Cummings et al., 2007), a
beryllium production plant in Ohio (Kreiss et al., 1997; Kent et al.,
2001), a beryllium machining facility in Alabama (Kelleher et al.,
2001; Madl et al., 2007), and a beryllium alloy plant (Shuler et al.,
2005) and another beryllium processing plant (Rosenman et al., 2005),
both in Pennsylvania. The prevalence of beryllium sensitization from
these surveyed workforces generally ranged from 1 to 10 percent with a
prevalence of CBD from 0.6 to 8 percent.
    In most of the surveys discussed above, 36-100 percent of those
workers who initially tested positive with the BeLPT were diagnosed
with CBD upon pathological evaluation. Most of these workers diagnosed
with CBD had worked four to10 years on the job, although some were
diagnosed within several months of employment. Surveys that found a
high proportion (e.g., larger than 50 percent) of CBD among the
sensitized employees were from facilities with a large number of
employees who had been exposed to respirable beryllium for many years.
It has been estimated from ongoing surveillance of sensitized
individuals, with an average follow-up time of 4.5 years, that 37
percent of beryllium-exposed employees were estimated to progress to
CBD (Newman et al, 2005). Another study of nuclear weapons facility
employees enrolled in an ongoing medical surveillance program found
that only about 20 percent of sensitized individuals employed less than
five years eventually were diagnosed with CBD while 40 percent of
sensitized employees employed ten years or more developed CBD (Stange
et al., 2001). This observation, along with the study findings that CBD
prevalence increases with cumulative exposure (described below),
suggests that sensitized employees who acquire a higher lung burden of
beryllium may be at greater risk of developing CBD than sensitized
employees who have lesser amounts of beryllium in their lungs.
    The greatest prevalence of sensitization and CBD were reported for
production processes that involve heating beryllium metal (e.g.,
furnace operations, hot wire pickling, and annealing) or generating and
handling beryllium powder (e.g., machining, forming, firing). For
example, nearly 15 percent of machinists at the Arizona beryllium
ceramics plant were sensitized, compared to just 1 percent of workers
who never worked in machining (Kreiss et al., 1996). A low prevalence
of sensitization and CBD was reported among current employees at the
Department of Energy (DOE) clean-up sites where beryllium was once used
in the production of nuclear weapons (DOE/OSS, 2006). These sites have
been subject to the DOE CBD-prevention programs since 1999. While the
prevalence of sensitization and CBD in non-production jobs was less,
cases of CBD were found among secretaries, office employees, and
security guards. CBD cases have also been reported in downstream uses
of beryllium such as dental laboratories and metal recycling (OSHA,
2007).
    The potential importance of respirable and ultrafine beryllium
particulates in the onset of CBD is illustrated in studies of employees
at a large beryllium metal, alloy, and oxide production plant in Ohio.
An initial cross-sectional survey reported that the highest prevalence
of sensitization and CBD occurred among workers employed in beryllium
metal production, even though the highest airborne total mass
concentrations of beryllium were generally among employees operating
the beryllium alloy furnaces in a different area of the plant (Kreiss
et al., 1997). Preliminary follow-up investigations of particle size-
specific sampling at five furnace sites within the plant determined
that the highest respirable (e.g., particles less than10 [mu]m in
diameter) and alveolar-deposited (e.g., particles less than1 [mu]m in
diameter) beryllium mass and particle number concentrations, as
collected by a general area impactor device, were measured at the
beryllium metal production furnaces rather than the beryllium alloy
furnaces (Kent et al., 2001; McCawley et al., 2001). A statistically
significant linear trend was reported between the above alveolar-
deposited particle mass concentration and prevalence of CBD and
sensitization in the furnace production areas. On the other hand, a
linear trend was not found for CBD and sensitization prevalence and
total beryllium mass concentration. The authors concluded that these
findings suggest that alveolar-deposited particles may be a more
relevant exposure metric for predicting the incidence of CBD or
sensitization than the total mass concentration of airborne beryllium
(OSHA, 2007).
    Several epidemiological cohort studies have reported excess lung
cancer mortality among workers employed in U.S. beryllium production
and processing plants during the 1930s to 1960s. The largest and most
comprehensive study investigated the mortality experience of over 9,000
workers employed in seven different beryllium processing plants over a
30 year period (Ward et. al., 1992). The employees at the two oldest
facilities (i.e., Lorain, OH and Reading, PA) were found to have
significant excess lung cancer mortality relative to the U.S.
population. These two plants were believed to have the highest exposure
levels to beryllium. A different analysis of the lung cancer mortality
in this cohort using various local reference populations and alternate
adjustments for smoking generally found smaller, non-significant,
excess mortality among the beryllium employees (Levy et al., 2002). All
the cohort studies are limited by a lack of job history and air
monitoring data that would allow investigation of mortality trends with
beryllium exposure.
    The weight of evidence indicates that beryllium compounds should be
regarded as potential occupational lung carcinogens, and OSHA has
regulated it since 1974. Other organizations, such as the International
Agency for Research on Cancer (IARC), the National Toxicology Program
(NTP), the U.S. Environmental Protection Agency (EPA), the National
Institute for Occupational Safety and Health (NIOSH), and the American
Conference of Governmental Industrial Hygienists (ACGIH) have reached
similar conclusions with respect to the carcinogenicity of beryllium.
3. A Statement of the Objectives of, and Legal Basis for, the Proposed
Rule
    The objective of the proposed beryllium standard is to reduce the
number of fatalities and illnesses occurring among employees exposed to
beryllium. This objective will be achieved by requiring employers to
install engineering controls where appropriate and to provide employees
with the equipment, respirators, training, medical surveillance, and
other protective measures to perform their jobs safely. The legal basis
for the rule is the responsibility given the U.S.

Department of Labor through the Occupational Safety and Health Act of
1970 (OSH Act). The OSH Act provides that, in promulgating health
standards dealing with toxic materials or harmful physical agents, the
Secretary ``shall set the standard which most adequately assures, to
the extent feasible, on the basis of the best available evidence that
no employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard dealt
with by such standard for the period of his working life.'' 29 U.S.C.
655(b)(5). See Section II of this preamble for a more detailed
discussion.
4. A Description of, and an Estimate of, the Number of Small Entities
to Which the Proposed Rule Will Apply
    OSHA has completed a preliminary analysis of the impacts associated
with this proposed rule, including an analysis of the type and number
of small entities to which the proposed rule would apply. In order to
determine the number of small entities potentially affected by this
rulemaking, OSHA used the definitions of small entities developed by
the Small Business Administration (SBA) for each industry.
    The proposed standard would impact occupational exposures to
beryllium in all forms, compounds, and mixtures in general industry.
Based on the definitions of small entities developed by SBA for each
industry, the proposal is estimated to potentially affect a total of
3,741 small entities as shown in Table IX-1 in Chapter IX of the PEA.
    The Agency also estimated costs and conducted a screening analysis
for very small employers (those with fewer than 20 employees). OSHA
estimates that approximately 2,875 very small entities would be
affected by the proposed standard, as shown in Table III-13 in Chapter
III of the PEA.
5. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
    Tables IX-23 and IX-24 show the average costs of the proposed
standard by NAICS code and by compliance requirement (PEL/STEL or
ancillary provisions) for, respectively, small entities (classified as
small by SBA) and very small entities (those with fewer than 20
employees). Total costs are reported as N/A for NAICS codes with no
affected entities in the relevant size classification. The weighted
average cost per small entity for the proposed rule would be about
$8,638 annually, with PEL/STEL compliance accounting for about 23
percent of the costs and ancillary provisions accounting for about 77
percent of the costs.
    The weighted average cost per very small entity for the proposed
rule would be about $2,212 annually, with PEL/STEL compliance
accounting for about 39 percent of the costs and ancillary provisions
accounting for about 61 percent of the costs.

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6. Federal Rules Which May Duplicate, Overlap or Conflict With the
Proposed Rule
    Section 4(b)(1) of the OSH Act exempts the working conditions for
certain Federal and non-Federal employees from the provisions of the
OSH Act to the extent that other Federal agencies exercise statutory
authority to prescribe and enforce occupational safety and health
standards. The Department of Energy (DOE) issued a regulation in 1999
entitled Chronic Beryllium Disease Prevention Program (CBDPP) (10 CFR
part 850, 64 FR 68854-68914, December 8, 1999). Additionally, DOE
issued 10 CFR part

851, Worker Safety and Health Program (71 FR 6931-6948, February 9,
2006), which establishes requirements for worker safety and health for
DOE contractors at DOE sites. The CBDPP establishes a beryllium program
for DOE employees and DOE contractor employees. Therefore, under
Section 4(b)(1) of the OSH Act, OSHA's beryllium standard would not
apply to work subject to the CBDPP. DOE has included in its regulations
a requirement for compliance with any more stringent PEL established by
OSHA in rulemaking (10 CFR 850.22). OSHA requests comment on the
potential overlap of DOE's rule with OSHA's proposed rule. (See I.
Issues and Alternatives in this preamble).
    There is also a Federal statute addressing the compensation of some
employees with beryllium related illnesses--The Energy Employees
Occupational Illness Compensation Program Act (EEOICPA) of 2000 and its
subsequent amendments. The EEOICPA creates a Federal employees'
compensation program that covers beryllium-related health effects for
DOE employees and its contractor employees, including many private
companies that work away from DOE sites. Several of the private
companies whose employees are covered by the OSH Act, either directly
in amendments to the OSH Act or identified in subsequent Department of
Labor regulations on that Act, would be covered by an OSHA occupational
health standard for beryllium and EEOICPA.
    There would be no conflict or duplication, however, between an OSHA
standard and the EEOICPA. In general, the OSHA standard would have
requirements to protect employee health in the future, and the EEOICPA
provides compensation for employees who have developed beryllium-
related illness. There is some overlap between the two in that they may
both require similar medical examinations, or require employers to
provide some compensation to employees, but the proposed OSHA standard
specifically contemplates and addresses that overlap to avoid conflict
and duplication. The explanation for proposed paragraph (k) in Section
XVIII of this preamble, Summary and Explanation, notes that employers
may satisfy the both examination requirements with a single
examination, and the proposed standard specifies that the amount of an
employer's financial obligations will be reduced by the amount of
EEOICPA payments received by that employee (see proposed paragraph
(l)(4)).
7. Alternatives to the Proposed Rule Which Accomplish the Stated
Objectives of Applicable Statutes and Which Minimize Any Significant
Economic Impact of the Proposed Rule on Small Entities
    This section first discusses several provisions in the proposed
standard that OSHA has adopted or modified based on comments from small
entity representatives (SERs) during the SBREFA process or on
recommendations made by the SBAR Panel as potentially alleviating
impacts on small entities. Then, the Agency presents various regulatory
alternatives to the proposed OSHA beryllium standard.
a. Elements of the Proposed Rule To Reduce Impacts on Small Entities
    During the SBAR Panel, SERs requested a clearer definition of the
triggers for medical surveillance. This concern was rooted in the cost
of BeLPTs and the trigger of potential skin contact. For the proposed
rule, the Agency has removed skin contact as a trigger for medical
surveillance along with providing four clearly defined trigger
mechanisms. The newly defined medical surveillance provision reduces
the number of employees requiring a BeLPT, particularly for small
businesses with low exposures.
    Some of the SERs in low-exposure industries wanted to be
``shielded'' from ``expensive'' compliance with a standard they
perceive to be unnecessary and suggested a PEL-only standard that
triggered provisions on the PEL. The alternative of a PEL-only standard
and ancillary provisions triggered only by the PEL are discussed in
Chapter 8 of the PEA (and is repeated in the following section).
    Some SERs were already applying many of the protective controls and
practices that would be required by the ancillary provisions of the
standard. However, many SERs objected to the requirements regarding
hygiene facilities. For this proposed rule, OSHA has preliminarily
concluded that all affected employers currently have hand washing
facilities. OSHA has also preliminarily concluded that no affected
employers will be required to install showers. The Agency has
determined that the long-term rental of modular units was
representative of costs for a range of reasonable approaches to comply
with the change room part of the provision. Alternatively, employers
could renovate and rearrange their work areas in order to meet the
requirements of this provision.
b. Regulatory Alternatives
    For the convenience of those persons interested only in OSHA's
regulatory flexibility analysis, this section repeats the discussion of
the various regulatory alternatives to the proposed OSHA beryllium
standard presented in Chapter VIII of the PEA, but only for the
regulatory alternatives to the proposed OSHA beryllium standard that
lower costs. OSHA believes that this presentation of specific
regulatory alternatives explores the possibility of less costly ways
(than the proposed rule) to provide an adequate level of worker
protection from exposure to beryllium.
    Each regulatory alternative presented here is described and
analyzed relative to the proposed rule. Where appropriate, the Agency
notes whether the regulatory alternative, to be a legitimate candidate
for OSHA consideration, requires evidence contrary to the Agency's
preliminary findings of significant risk and feasibility. As noted
above, for this chapter on the Initial Regulatory Flexibility Analysis,
the Agency is only presenting regulatory alternatives that reduce costs
for small entities. (See Chapter VIII for the full list of all
alternatives analysed.) There are eight regulatory alternatives and an
informational alternative that reduce costs for small entities (and for
all businesses in total). Using the numbering scheme from Chapter VIII,
these are Regulatory Alternatives #5, #6, #7, #8. #12, #16, #18, and
#22. To facilitate comment, OSHA has organized these potentially less
costly regulatory alternatives (and a general discussion of possible
phase-ins of the rule) into four categories: (1) Exposure limits; (2)
methods of compliance; (3) ancillary provisions; and (4) timing.
(1) Exposure limit (TWA PEL, STEL, and ACTION LEVEL) alternatives
    Regulatory Alternative #5, which would set a TWA PEL at 0.5 [mu]g/
m\3\ and an action level at 0.25 [mu]g/m\3\, both higher than in the
proposal, responds to an issue raised during the Small Business
Advocacy Review (SBAR) process conducted in 2007 to consider a draft
OSHA beryllium proposed rule that culminated in an SBAR Panel report
(SBAR, 2008). That report included a recommendation that OSHA consider
both the economic impact of a low TWA PEL and regulatory alternatives
that would ease cost burden for small entities. OSHA has provided a
full analysis of the economic impact of its proposed PELs (see Chapter
VI of the PEA), and Regulatory Alternative #5

addresses the second half of that recommendation. However, the higher
0.5 [mu]g/m\3\ TWA PEL does not appear to be consistent with the
Agency's mandate under the OSH Act to promulgate a lower PEL if it is
feasible and could prevent additional fatalities and non-fatal
illnesses. The data presented in Table IX-25 below indicate that the
lower TWA PEL would prevent additional fatalities and non-fatal
illnesses, but nevertheless the Agency solicits comments on this
alternative and OSHA's analysis of the costs and benefits associated
with it.
    Table IX-25 below presents, for informational purposes, the
estimated costs, benefits, and net benefits of the proposed rule under
the proposed TWA PEL of 0.2 [mu]g/m\3\ and for the regulatory
alternative of a TWA PEL of 0.5 [mu]g/m\3\ (Regulatory Alternative #5),
using alternative discount rates of 3 percent and 7 percent. Table IX-
25 also breaks out costs by provision and benefits by type of disease
and by morbidity/mortality. As Table IX-25 shows, going from a TWA PEL
of 0.5 [mu]g/m\3\ to a TWA PEL of 0.2 [mu]g/m\3\ would prevent,
annually, an additional 29 beryllium-related fatalities and an
additional 15 non-fatal illnesses.
BILLING CODE 4510-26-P

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BILLING CODE 4510-26-P
Informational Alternative Featuring Unchanged PEL but Full Ancillary
Provisions
    An Informational Analysis: This proposed regulation has the
somewhat unusual feature for an OSHA substance-specific health standard
that most of the quantified benefits would come from the ancillary
provisions rather than from meeting the PEL with engineering controls.
OSHA decided to analyze for informational purposes the effect of
retaining the existing PEL but applying all of the ancillary
provisions, including respiratory protection. Under this approach, the
TWA PEL would remain at 2.0 micrograms per cubic meter, but all of the
other proposed provisions (including respiratory protection, which OSHA
does not consider an ancillary provision) would be required with their
triggers remaining the same as in the proposed rule--either the
presence of airborne beryllium at any level (e.g., initial monitoring,
written exposure control plan), at certain kinds of dermal exposure
(PPE), at the action level of 0.1 [mu]g/m\3\ (e.g., periodic
monitoring, medical removal), or at 0.2 [mu]g/m\3\ (e.g., regulated
areas, respiratory protection, medical surveillance).
    Given the record regarding beryllium exposures, this approach is
not one 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, which requires OSHA to ``set the
standard which most adequately assures, to the extent feasible, on the
basis of the best available evidence, that no employee will suffer
material impairment of health or functional capacity even if such
employee has regular exposure to the hazard dealt with by such standard
for the period of his working life.'' For that reason, this additional
analysis is provided strictly for informational purposes. EO 12866 and
EO 13563 direct agencies to identify approaches that maximize net
benefits, and this analysis is purely for the purpose of exploring
whether this approach would hold any real promise to maximize net
benefits if it was permissible under the OSH Act. It does not appear to
hold such promise because an ancillary-provisions-only approach would
not be as protective and thus offers fewer benefits than one that
includes a lower PEL and engineering controls, and OSHA estimates the
costs would be about the same (or slightly lower, depending on certain
assumptions) under that approach as under the traditional proposed
approach.
    On an industry by industry basis, OSHA found that some industries
would have lower costs if they could adopt the ancillary-provisions-
only approach. Some employers would use engineering controls where they
are cheaper, even if they are not mandatory. OSHA does not have
sufficient information to do an analysis of the employer-by-employer
situations in which there exist some employers for whom the ancillary-
provisions-only approach might be cheaper. In the majority of affected
industries, the Agency estimates there are no costs saving to the
ancillary-provisions-only approach. However, OSHA estimates a total of
$2,675,828 per year in costs saving for entire industries where the
ancillary-provisions-only approach would be less expensive.
    The above discussion does not account for the possibility that the
lack of engineering controls would result in higher beryllium exposures
for workers in adjacent (non-production) work areas due to the
increased level of beryllium in the air. Because of a lack of data, and
because the issue did not arise in the other regulatory alternatives
OSHA considered (all of which have a PEL of less than 2.0 [mu]g/m\3\),
OSHA did not carefully examine exposure levels in non-production areas
for either cost or benefit purposes. To the extent such exposure levels
would be above the action level, there would be additional costs for
respiratory protection.
    The ancillary-provisions-only approach adds uncertainty to the
benefits analysis such that the benefits of the rule as proposed may
exceed, and perhaps greatly exceed, the benefits of this ancillary-
provisions-only approach:
    (1) Most exposed individuals would be in respirators, which OSHA
considers less effective than engineering controls in preventing
employee exposure to beryllium. OSHA last did an extensive review of
the evidence on effectiveness of respirators for its APFs rulemaking in
2006 (71 FR 50128-45 Aug 24, 2006). OSHA has not in the past tried to
quantify the size of this effect, but it could partially negate the
estimated benefits of 92 CBD deaths prevented per year and 4 lung
cancer cases prevented per year by the proposed standard.
    (2) As noted above, in the proposal OSHA did not consider benefits
caused by reductions in exposure in non-production areas. Unless
employers act to reduce exposures in the production areas, the absence
of a requirement for such controls would largely negate such benefits
from reductions in exposure in the non-productions areas.
    (3) OSHA believes that there is a strong possibility that the
benefits of the ancillary provisions (a midpoint estimate of
eliminating 45 percent of all remaining cases of CBD) would be
partially or wholly negated in the absence of engineering controls that
would reduce both airborne and surface dust levels. The measured
reduction in benefits from ancillary provision was in a facility with
average exposure levels of less than 0.2 [micro]g/m \3\.
    Based on these considerations, OSHA believes that the ancillary-
provisions-only approach is not one that is likely to maximize net
benefits. The costs saving, if any, are estimated to be small, and the
difficult-to-measure declines in benefits could be substantial.
(2) A Method-of-compliance Alternative
    Paragraph (f)(2) of the proposed rule contains requirements for the
implementation of engineering and work practice controls to minimize
beryllium exposures in beryllium work areas. For each operation in a
beryllium work area, employers must ensure that at least one of the
following engineering and work practice controls is in place to
minimize employee exposure: Material and/or process substitution;
ventilated enclosures; local exhaust ventilation; or process controls,
such as wet methods and automation. Employers are exempt from using
engineering and work practice controls only when they can show that
such controls are not feasible or where exposures are below the action
level based on two exposure samples taken seven days apart.
    These requirements, which are based on the stakeholders'
recommended beryllium standard that beryllium industry and union
stakeholders submitted to OSHA in 2012 (Materion and USW, 2012),
address a concern associated with the proposed TWA PEL. OSHA expects
that day-to-day changes in workplace conditions, such as workers'
positioning or patterns of airflow, may cause frequent exposures above
the TWA PEL in workplaces where periodic sampling indicates exposures
are between the action level and the TWA PEL. As a result, the default
under the standard is that the controls are required until the employer
can demonstrate that exposures have not exceeded the action level from
at least two separate measurements taken seven days apart.
    OSHA believes that substitution or engineering controls such as
those outlined in paragraph (f)(2)(i) provide the most reliable means
to control variability in exposure levels. However, OSHA also
recognizes that the requirements of paragraph (f)(2)(i) are

not typical of OSHA standards, which usually require engineering
controls only where exposures exceed the TWA PEL or STEL. The Agency is
therefore considering Regulatory Alternative #6, which would drop the
provisions of (f)(2)(i) from the proposed standard and make conforming
edits to paragraphs (f)(2)(ii) and (iii). This regulatory alternative
does not eliminate the need for engineering controls to comply with the
proposed TWA PEL and STEL, but does eliminate the requirement to use
one or more of the specified engineering or work practice controls
where exposures equal or exceed the action level. As shown in Table IX-
26, Regulatory Alternative #6 would decrease the annualized cost of the
proposed rule by about $457,000 using a discount rate of 3 percent and
by about $480,000 using a discount rate of 7 percent. OSHA has not been
able to estimate the change in benefits resulting from Regulatory
Alternative #6 at this time and invites public comment on this issue.
[GRAPHIC] [TIFF OMITTED] TP07AU15.042

(3) Regulatory Alternatives That Affect Ancillary Provisions
    The proposed standard contains several ancillary provisions
(provisions other than the exposure limits), including requirements for
exposure assessment, medical surveillance, medical removal, training,
and regulated areas or access control. As reported in Chapter V of the
PEA, these ancillary provisions account for $27.8 million (about 72
percent) of the total annualized costs of the rule ($37.6 million)
using a 3 percent discount rate, or $28.6 million (about 73 percent) of
the total annualized costs of the rule ($39.1 million) using a 7
percent discount rate. The most expensive of the ancillary provisions
are the requirements for housekeeping and training, with annualized
costs of $12.6 million and $5.8 million, respectively, at a 3 percent
discount rate ($12.9 million and $5.8 million, respectively, at a 7
percent discount rate).
    OSHA's reasons for including each of the proposed ancillary
provisions are explained in Section XVIII of this preamble, Summary and
Explanation of the Standards. In particular, OSHA is proposing the
requirements for exposure assessment to provide a basis for ensuring
that appropriate measures are in place to limit worker exposures.
Medical surveillance is especially important because workers exposed
above the proposed TWA PEL, as well as many workers exposed below the
proposed TWA PEL, are at significant risk of death and illness. Medical
surveillance would allow for identification of beryllium-related
adverse health effects at an early stage so that appropriate
intervention measures can be taken. OSHA is proposing regulated areas
and access control because they serve to limit exposure to beryllium to
as few employees as possible. OSHA is proposing worker training to
ensure that employers inform employees of the hazards to which they are
exposed, along with associated protective measures, so that employees
understand how they can minimize their exposure to beryllium. Worker
training on beryllium-related work practices is particularly important
in controlling beryllium exposures because engineering controls
frequently require action on the part of workers to function
effectively.
    OSHA has examined a variety of regulatory alternatives involving
changes to one or more of the proposed ancillary provisions. The
incremental cost of each of these regulatory alternatives and its
impact on the total costs of the proposed rule is summarized in Table
IX-27 at the end of this section. OSHA has preliminarily determined
that several of these ancillary provisions will increase the benefits
of the proposed rule, for example, by helping to ensure the TWA PEL is
not exceeded or by lowering the risks to workers given the significant
risk remaining at the proposed TWA PEL. However, except for Regulatory
Alternative #7 (involving the elimination of all ancillary provisions),
OSHA did not estimate changes in monetized benefits for the regulatory
alternatives that affect ancillary provisions. Two regulatory
alternatives that involve all ancillary provisions are presented below
(#7 and #8), followed

by regulatory alternatives for regulated areas (#12), for medical
surveillance (#16 and #18), and for medical removal (#22).
(a) All Ancillary Provisions
    The SBAR Panel recommended that OSHA analyze a PEL-only standard as
a regulatory alternative. The Panel also recommended that OSHA consider
not applying ancillary provisions of the standard where exposure levels
are low so as to minimize costs for small businesses (SBAR, 2008). In
response to these recommendations, OSHA analyzed Regulatory Alternative
#7, a PEL-only standard, and Regulatory Alternative #8, which would
apply ancillary provisions of the beryllium standard only where
exposures exceed the proposed TWA PEL of 0.2 [mu]g/m\3\ or the proposed
STEL of 2 [mu]g/m\3\.
    Regulatory Alternative #7 would solely update 1910.1000 Tables Z-1
and Z-2, so that the proposed TWA PEL and STEL would apply to all
workers in general industry. This alternative would eliminate all of
the ancillary provisions of the proposed rule, including exposure
assessment, medical surveillance, medical removal, PPE, housekeeping,
training, and regulated areas or access control. Under this regulatory
alternative, OSHA estimates that the costs for the proposed ancillary
provisions of the rule (estimated at $27.8 million annually at a 3
percent discount rate) would be eliminated. In order to meet the PELs,
employers would still commonly need to do monitoring, train workers on
the use of controls, and set up some kind of regulated areas to
indicate where respirator use would be required. It is also likely
that, under this alternative, many employers would follow the
recommendations of Materion and the United Steelworkers to provide
medical surveillance, PPE, and other protective measures for their
workers (Materion and USW, 2012). OSHA has not attempted to estimate
the extent to which these ancillary-provision costs would be incurred
if they were not formally required or whether any of these costs under
Regulatory Alternative #7 would reasonably be attributable to the
proposed rule. OSHA welcomes comment on the issue.
    OSHA has also estimated the effect of this regulatory alternative
on the benefits of the rule. As a result of eliminating all of the
ancillary provisions, annualized benefits are estimated to decrease 57
percent, relative to the proposed rule, from $575.8 million to $249.1
million, using a 3 percent discount rate, and from $255.3 million to
$110.4 million using a 7 percent discount rate. This estimate follows
from OSHA's analysis of benefits in Chapter VII of the PEA, which found
that about 57 percent of the benefits of the proposed rule, evaluated
at their mid-point value, were attributable to the combination of the
ancillary provisions. As these estimates show, OSHA expects that the
benefits estimated under the proposed rule will not be fully achieved
if employers do not implement the ancillary provisions of the proposed
rule.
    Both industry and worker groups have recognized that a
comprehensive standard is needed to protect workers exposed to
beryllium. The stakeholders' recommended standard that representatives
of the primary beryllium manufacturing industry and the United
Steelworkers union provided to OSHA confirms the importance of
ancillary provisions in protecting workers from the harmful effects of
beryllium exposure (Materion and USW, 2012). Ancillary provisions such
as personal protective clothing and equipment, regulated areas, medical
surveillance, hygiene areas, housekeeping requirements, and hazard
communication all serve to reduce the risks to beryllium-exposed
workers beyond that which the proposed TWA PEL alone could achieve.
    Moreover, where there is continuing significant risk at the TWA
PEL, the decision in the Asbestos case (Bldg. and Constr. Trades Dep't,
AFL-CIO v. Brock, 838 F.2d 1258, 1274 (D.C. Cir. 1988)) indicated that
OSHA should use its legal authority to impose additional requirements
on employers to further reduce risk when those requirements will result
in a greater than de minimis incremental benefit to workers' health.
Nevertheless, OSHA requests comment on this alternative.
    Under Regulatory Alternative #8, several ancillary provisions that
the current proposal would require under a variety of exposure
conditions (e.g., dermal contact, any airborne exposure, exposure at or
above the action level) would instead only apply where exposure levels
exceed the TWA PEL or STEL. Regulatory Alternative #8 affects the
following provisions of the proposed standard:
-- Exposure monitoring: Whereas the proposed standard requires annual
monitoring when exposure levels are at or above the action level and at
or below the TWA PEL, Regulatory Alternative #8 would require annual
exposure monitoring only where exposure levels exceed the TWA PEL or
STEL;
--Written exposure control plan: Whereas the proposed standard requires
written exposure control plans to be maintained in any facility covered
by the standard, Regulatory Alternative #8 would require only
facilities with exposures above the TWA PEL or STEL to maintain a plan;
-- Housekeeping: Whereas the proposed standard's housekeeping
requirements apply across a wide variety of beryllium exposure
conditions, Alternative #8 would limit housekeeping requirements to
areas and employees with exposures above the TWA PEL or STEL;
-- PPE: Whereas the proposed standard requires PPE for employees under
a variety of conditions, such as exposure to soluble beryllium or
visible contamination with beryllium, Alternative #8 would require PPE
only for employees exposed above the TWA PEL or STEL;
-- Medical Surveillance: Whereas the proposed standard's medical
surveillance provisions require employers to offer medical surveillance
to employees with signs or symptoms of beryllium-related health effects
regardless of their exposure level, Alternative #8 would require
surveillance only for those employees exposed above the TWA PEL or
STEL.
    To estimate the cost savings for this alternative, OSHA re-
estimated the group of workers that would fall under the above
provisions and the changes to their scope. Combining these various
adjustments along with associated unit costs, OSHA estimates that,
under this regulatory alternative, the costs for the proposed rule
would decline from $37.6 million to $18.9 million using a 3 percent
discount rate and from $39.1 million to $20.0 million using a 7 percent
discount rate.
    The Agency has not quantified the impact of this alternative on the
benefits of the rule. However, ancillary provisions that offer
protective measures to workers exposed below the proposed TWA PEL, such
as personal protective clothing and equipment, beryllium work areas,
hygiene areas, housekeeping requirements, and hazard communication, all
serve to reduce the risks to beryllium-exposed workers beyond that
which the proposed TWA PEL and STEL could achieve. OSHA's preliminary
conclusion is that the requirements triggered by the action level and