More Delay for OSHA's New Silica Rule

The Occupational Safety and Health Administration (OSHA) has informally announced that it is unlikely to finalize its long-awaited rule to limit workers' exposure to respirable crystalline silica by the month's end, as the agency had expected. OSHA's deputy assistant secretary of labor for occupational safety and health, Jordan Barab, told Politico on Friday, Feb. 18, that he "can pretty much guarantee" the rule will be delayed, but he expects "it will be out soon."

The silica rule, which OSHA proposed in Sept. 2013 after 20 years of development, cannot come soon enough for workers and their families. Exposure to these tiny dust particles can cause an incurable and fatal lung disease called "silicosis," and other debilitating health effects. But will the final rule demand that employers' take genuine responsibility for workers' health by implementing effective controls to reduce hazardous silica exposures? Or will OSHA have weakened its proposal, appeasing industry opponents and further contributing to the stark imbalance between the working class and the moneyed interests of big businesses and lobbyists? We won't know until the rule is published, but when that time comes, here are the provisions that are likely to be the most telling:

A Protective Permissible Exposure Limit (PEL)

OSHA estimated in its proposal that reducing the current level of silica to which an employer may permissibly expose workers to 50 micrograms per cubic meter (µg/m3) will save nearly 700 workers' lives and prevent almost 1,600 illnesses annually. This reduction of the permissible exposure limit (PEL) would certainly be an improvement over the 1971 standard that is still in place. However, by OSHA's own admission, a 50 µg/m3 PEL will not completely address significant health risks to exposed workers, and silica-related diseases and fatalities will still affect thousands of workers every year.

In comments and testimony to OSHA about the proposal, workers' advocates, unions, and public interest organizations, including CPR Member Scholars and analysts, urged OSHA to adopt a more stringent standard than proposed to protect workers from all significant risks. OSHA may have wrongly concluded that a lower PEL is not "technologically and economically feasible" by relying on a faulty analysis which overestimates the annual compliance costs. The appropriate standard for a feasibility determination is that the industry is capable of complying with the rule, not whether compliance might compel technological innovation or require some laggard companies to incur higher costs than its more forward thinking competitors.

When the final rule is unveiled, the new PEL will be telling of whether OSHA stood strong against pressure from businesses and trade associations strongly opposed to reducing the PEL—by any amount. They prefer that OSHA leave the weak 1971 PEL in place and augment its enforcement efforts instead. This outlandish policy position completely ignores decades of scientific research about silica's significant risks even at levels below the 1971 PEL. It also ignores the fact that OSHA isn't capable of ramping up enforcement due to congressional budget cuts that have left the agency woefully underfunded.

If OSHA's final rule does not set a more stringent PEL than originally proposed, it is critical that it at least maintain the proposed 50 µg/m3 PEL for the sake of workers exposed to silica on the job. Another improvement to look for in the final rule is a more detailed assessment of the adverse health and socioeconomic effects of silica-related diseases on workers to balance the extensive discussion of costs to employers.

Uniform Requirements for All Industries and No Exemptions

Silica exposure affects nearly 2.2 million workers across dozens of industries, including construction, sandblasting, mining, and fracking. To provide employers flexibility to tailor the new requirements to their business model, OSHA proposed two separate standards for silica: one for the construction industry and a second standard for general industry and maritime workers. Both standards require employers to assess exposure levels, implement engineering controls and work practice standards, provide training, conduct medical exams, and maintain certain records.

The major difference between the two standards is that construction industry employers are not required to assess workers' exposure levels if they implement certain OSHA-recommended dust control measures. As CPR's comments on the proposal explain, "monitoring gives workers, employers, OSHA, and researchers valuable information that can be used to reduce workplace hazards." A strong final silica standard will eliminate this unjustified exemption for construction industry employers.

The final rule should also not exempt other industries that use large quantities of silica, like the fracking industry. The National Institute for Occupational Safety and Health (NIOSH) recently studied 116 air samples from fracking sites and found that four in five samples had silica levels above the proposed 50 µg/m3 PEL. Nearly one-third of the samples showed silica levels greater than 500 µg/m3, ten times the proposed PEL.

However, OSHA faces pressure from industry trade groups, like the American Chemistry Council (ACC) and U.S. Chamber of Commerce, to create a loophole for the fracking industry. ACC, for its part, claims the fracking industry may not be able to comply with the rule due to technological limitations. The Small Business Administration Office of Advocacy has also lobbied (albeit through calculated and roundabout ways more fitting of a defiant government agency) for a fracking loophole, based on the shaky argument that the small business review process did not adequately address the burdens on small employers in the industry. OSHA estimates that more than 25,000 workers at hundreds of fracking worksites across the country are exposed to potentially hazardous levels of silica. Excluding such a large number of workers from the rule's protections would be unjustifiable. OSHA should not grant the fracking industry any exceptions from the final rule's requirements.

Conclusion

Another factor in whether OSHA chooses to strengthen or weaken provisions of the rule is whether those changes can survive scrutiny by the White House Office of Information and Regulatory Affairs (OIRA) during regulatory review. When OSHA's proposal went to OIRA in 2013, OIRA forced OSHA to accept significant changes to the proposal, and it still held the rule under review for over two years without any explanation. Based on OIRA's reputation and this rule's history, it would not be surprising to learn OIRA is responsible for holding up the final rule, although Jordan Barab did not give a reason for the delay in his statement to Politico.

Whatever the reason is for the continued delay, we certainly hope the Obama administration will make it a top priority to move this important rule through the review process expediently and without weakening it, so that workers exposed to silica finally have the protections they need and deserve.