CPR Member Scholars file Comments on OSHA’s Silica Proposal

At long last, the comment period on OSHA’s silica proposal has closed and the next phase in this rule’s protracted timeline will commence.  In the four months since OSHA released the proposal, the agency has received hundreds of comments.  They run the gamut, from the expected support of unions and other advocates for working people, to the fear-mongering hyperbole of the major trade associations.  CPR Member Scholars Sid Shapiro and Martha McCluskey joined us in submitting our own comments to the record.  You can read them here.

Silica dust is a pervasive occupational hazard.  The vast majority of exposed workers toil in the construction industry, where clouds of dust surrounding jackhammers, masonry and concrete saws, and brick and mortar work are an all too common sight.  OSHA seeks to eliminate those dangerous conditions by encouraging employers to provide modern tools that have better dust collectors, shrouds, and water feeds to suppress the dust.  The proposal also addresses the myriad other industries where silica exposure leads to debilitating cases of lung cancer, silicosis, and silica-related kidney disease.  Dental laboratories, ship repair companies, and ceramic refractories will also be subject to the rule’s new requirements.

The ubiquity of occupational silica exposure means that the proposed rule not only promises extensive benefits for workers’ health, but also comes at a significant cost.  Much of the public debate will focus on the balance of costs and benefits, but it is important to recognize that OSHA operates under a statutory mandate that puts workers’ health and safety before employers’ profits.  In fact, the Supreme Court has ruled that OSHA may not set standards based on cost-benefit analysis, noting that Congress set the balance when it mandated that OSHA set standards that regulate hazards “to the extent feasible.”  OSHA is not prohibited from conducting a cost-benefit analysis (as it has done here under the requirements of Executive Order 12,866), but that analysis cannot be the basis for establishing particular requirements.  As we note in our comments, a look back at how this rule got through White House review suggests that OSHA is already skirting the line of legality here.

To get the proposal through the White House’s review, OSHA had to make a few concessions.  The most significant was a change in the requirements for medical surveillance.  Medical surveillance refers to the periodic physical exams that employers must provide to workers, free of charge, to ensure that occupational diseases are identified and treated early.  Since the exams require time away from work, the expertise of physicians or other licensed healthcare professionals, and sometimes costly diagnostic tests, the frequency of the exams and the number of workers who get them can greatly affect the cost of an OSHA rule.  Those costs must have caught the eye of White House bean counters, because the proposed rule that came out of the White House review differed in two critical respects from the one that OSHA sent over two and a half years earlier:  (1) the “trigger” for medical monitoring was changed so that employers need only provide monitoring to workers who are exposed to silica above the 50 µg/m³, whereas OSHA’s draft proposal would have required monitoring to be made available to any worker exposed over 25 µg/m³; and (2) the frequency of exams was reduced from yearly to triennially.

Obviously both changes make the proposed rule less protective of workers – and less costly for employers.  But reducing employer costs is only a valid reason to choose one of two regulatory alternatives if the other alternative is economically infeasible.  That’s not the case here.  OSHA had studiously made the case that the draft rule that went to the White House was economically feasible.  Moreover, the draft proposal included a passage (later deleted) that raises questions about the final proposal:

As a regulatory alternative, OSHA considered an action level equal to the proposed PEL, that is, an action level of 50 μg/m³, but concluded that the savings in costs associated with the reduction in exposure assessment and medical surveillance cases could not justify the potential loss in benefits resulting from an action level higher than one-half the PEL, given OSHA’s mandate to “set the standard which most adequately assures, to the extent feasible . . . that no employee will suffer material impairment of health or functional capacity . . .” 29 U.S.C. Sec. 655(b)(5). OSHA estimates that annualized costs will total $864.5 million for a regulatory alternative action level of 50 μg/m³, compared to annualized costs of $1.3 billion for OSHA’s proposed action level equal to 25 μg/m³. The difference in annualized cost is equal to approximately $450 million.

In the absence of an explanation for why the added expense of approximately $450 million would render the 25 µg/m³ trigger economically infeasible for all of the affected industries, choosing the 50 µg/m3 trigger over the 25 µg/m3 trigger appears to be an impermissible exercise of OSHA’s delegated authority according to the Supreme Court’s Cotton Dust decision.

By convincing OSHA to change the trigger for medical surveillance and the frequency of exams, the White House was able to get a proposal that is projected to cost less than $1 billion per year, but to what end?  If you compare the “before” and “after” cost estimates, you see that the average per-firm costs of compliance were always a small percentage of typical profit margins, and now they are a slightly smaller percentage.  But for the tens or hundreds of thousands of workers who will be exposed to silica at levels just below the new 50 µg/m³ Permissible Exposure Level, employer-provided exams will be off the table, early diagnosis of silica-related diseases will be less likely, and unnecessary suffering may follow.