Silica dust is a slow, silent killer. Workers who cut concrete, brick, or tile, who put the finishing touches on drywall, or who mine sand or attend to fracking operations inhale its tiny crystalline particles throughout the day. Roughly 2 million U.S. workers in dozens of different industries toil in workplaces with silica levels high enough to threaten their health. As the dust swirls through workers’ lungs, it causes lung tissue to swell and become inflamed. Workers experience difficulty breathing and, over time, develop scarring and stiffening of the lungs. The resulting condition, called silicosis, is debilitating, and the lung damage that comes with it can increase a person’s risk of tuberculosis and lung cancer. The Occupational Safety and Health Administration (OSHA) estimates that thousands of workers die every year because of silica exposures that are within current legal limits.[i]
Those limits were set more than 40 years ago and were deemed inadequate almost immediately thereafter. Since 1974, the National Institute for Occupational Safety and Health (NIOSH), a government research agency with no regulatory authority, has urged OSHA, which does have regulatory authority, to lower the permissible exposure limit (PEL) for silica by roughly one-half. In September 2013, after decades of research and 17 years of administrative wrangling, OSHA proposed to do just that. The proposal would update OSHA’s outdated exposure limits for crystalline silica with a comprehensive rule that would require employers to limit their workers’ exposure to silica dust and provide other protections including exposure monitoring and free medical exams when workers are exposed to dangerous levels of the dust. Now it us up to President Obama to ensure that the final rule is published quickly.
What’s the Holdup?
OSHA’s efforts to update its silica standards have dragged on for so long largely because of a ponderous culture among rulemaking staff, who engage in excessively thoroughgoing economic and technical analysis. That culture is an overreaction to Supreme Court decisions and Executive Order requirements. Much of OSHA’s scientific and economic research on silica was complete by February 2011, when OSHA sent its draft proposal to the White House Office of Information and Regulatory Affairs (OIRA) for Executive Order 12866 review. Even though reviews are supposed to last no longer than four months, the proposal languished there for more than two and a half years, a striking delay for a rule that is expected to save thousands of lives each year.
OSHA finally got clearance from the White House and published the proposed new silica standards in September 2013. Since then, workers’ advocates have been pressing OSHA to strengthen its proposal, while industry lobbyists have expressed everything from qualified support to outright hostility. In the past year, OSHA has opened the docket for four months of public comment, hosted a three-week hearing at which any interested party could present testimony and cross-examine other parties, and re-opened the docket for another four months of public comment.
OSHA has endured withering criticism throughout the rulemaking process from the usual suspects in the business community—the U.S. Chamber of Commerce, National Association of Homebuilders, American Chemistry Council, and the Construction Industry Safety Coalition—all of whom complain about the costs of the rule while denying its clear benefits to workers. Even the Small Business Administration’s (SBA) Office of Advocacy, which despite its SBA affiliation has increasingly acted at the behest of big industry, weighed in to encourage further delay in publishing the rule.
Industry groups have also been working their connections in Congress in hopes of further delaying the rule. After OSHA released the rule in late 2013, industry lobbyists rallied 70 Members of Congress (54 on the House side and 16 Senators) to sign letters to OSHA demanding additional delays in the rulemaking process. As OSHA gets closer to publishing a final rule, the affected industries will no doubt turn to their congressional allies again to pressure the agency. Such high-level political pressure is best answered by the White House, so President Obama should intervene to keep the agency’s deliberations on track.
What Should the Rule Do?
OSHA’s proposal is close to what silica-exposed workers need. It goes well beyond the current protections, which are limited to an inadequate PEL and basic protections afforded by other generic standards. Instead, the new rule establishes a strong PEL (50 micrograms per cubic meter) and backs it up with specific requirements about exposure monitoring, employee training, medical surveillance, and eliminating silica exposures through engineering and work-practice controls rather than respirators and facemasks.
OSHA should still do a few things to strengthen the rule. First, the rule needs medical removal protection for workers. When workers are exposed to dangerous levels of silica dust and show signs of potential chronic injury, they should be given the option of taking jobs that are less hazardous, without loss of pay or seniority. OSHA has required such accommodations in numerous rules governing workers’ exposures to other toxic chemicals.
The rule’s medical surveillance requirements should also be expanded. As is required in other OSHA health standards, employers should be required to make medical surveillance (e.g., exams, x-rays, etc.) available to workers at an “action level” set at one-half of the PEL (i.e., 25 micrograms per cubic meter).
OSHA should also clarify that host employers and staffing agencies are jointly liable for training and other protections. Companies often hire workers on a temporary or “contingent” basis so that they can shift workers’ compensation premiums, payroll taxes, unemployment insurance, and other costs to another employer. If OSHA clarifies that both host employers and the staffing agencies they use to hire workers are jointly liable for compliance with silica regulations, workers will be better protected.
The docket for the silica proposal closed on August 18, 2014, nearly a year after the proposal finally left OIRA. OSHA is in the process of reviewing comments, the hearing transcript, and new evidence submitted to the record during the 11 months of open debate on the proposal. To the dismay of worker advocates, OSHA has a history of stalled rulemakings at this stage in the process. For instance, two rules waiting in limbo right now are:
Confined spaces in construction – record closed October 2008;[ii] and,
Slip/trip/fall prevention – hearing ended January 2011.[iii]
Having the sad distinction of being the only agency that ever lost a rule to Congressional Review Act “veto”—its comprehensive plan to reduce ergonomic injuries in the workplace—OSHA should be far more focused on getting the silica rule finished in time than its ponderous approach to the rulemaking process indicates. Accordingly, OSHA needs to complete its review of the docket and send the draft final rule to OIRA as soon as possible. For its part, the Obama Administration should ensure that OIRA completes its review of the draft final rule within the period spelled out in the executive order granting it authority to review—four months, at most.