SBA's Office of Advocacy wants even more time to review OSHA's silica proposal

SBA’s Office of Advocacy has added its voice to the chorus of business interests who want OSHA to delay publication of a new rule that would protect workers from the deadly effects of silica exposure. In a letter to OSHA chief David Michaels, the top lawyers from the Office of Advocacy claim that it will be “nearly impossible” for small business representatives to review OSHA’s proposal and prepare the comments and testimony due in early December.

To be sure, the rulemaking docket is voluminous and the issues are complex. But the bottom line is that each day of delay in publishing the new rule means another day when millions of workers will be exposed to elevated levels of a deadly dust. By OSHA’s estimates, hundreds of workers die each year from silica exposures that are perfectly legal under current standards; thousands of other workers suffer from non-fatal diseases. One of those suffering workers is Alan White; a foundry employee from upstate New York who shared his powerful story with the press on the day OSHA announced it would publish the new proposal. The sooner OSHA finalizes this proposal, the sooner employers will institute controls to protect Mr. White’s co-workers and millions of others who face unnecessary risks of silicosis, lung cancer, emphysema, chronic bronchitis, chronic renal disease, and a host of other maladies. For businesses, delaying the new rules might mean a few more days of avoided compliance costs, but those costs are small compared to the costs that workers pay as a result of the current, inadequate, protections.

The request for delay is especially rich coming from SBA’s Office of Advocacy. SBA and the small business community it purports to represent have already been granted a privileged spot in the rulemaking process. Before representatives of workers or other stakeholders get a chance to see an OSHA proposal, a draft document is run through the gauntlet otherwise known as “SBREFA review” (SBREFA is the Small Business Regulatory Enforcement Fairness Act). During that review, officials from SBA’s Office of Advocacy, the White House, OSHA, and the Solicitor of Labor’s Office work with a panel of “small entity representatives” to get the small business owners’ reactions to the proposal. Their reactions are memorialized in a report, and OSHA must include in its final rule a formal, written response to the concerns raised during SBREFA review. OSHA’s silica proposal and background documents include a draft response to the SBREFA review that clearly indicate SBA and the small business community know enough about the critical issues for this rulemaking to respond within the current comment period.

OSHA must resist the pressure to delay this rulemaking any longer. An early draft went through the SBREFA process a decade ago, it was adjusted to meet small business representatives’ critiques and updated with new scientific and economic research, and in 2011 it went to the White House, where it languished for two and half years. Now the rule is at a critical juncture: the public comment period and rulemaking hearing will give OSHA a chance to fine-tune the proposal based on input from a broad range of experts, but that process will take time. As we noted when OSHA announced the silica proposal, the process of getting from a proposed to a final rule has taken the agency three years, on average, in recent rulemakings. If this administration wants an OSHA health standard to its credit, it cannot afford to delay this rule any longer at the behest of the regulated industries.

This is cross-posted on the National Council for Occupational Health & Safety's blog.