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How Much Longer Will it take for OSHA to Protect Workers from Deadly Silica Dust?

Public Protections

Thousands of U.S. workers die every year because of on-the-job exposure to unsafe levels of crystalline silica, a toxic dust common in the construction, sandblasting, and mining industries. Even at the current legal limits, inhaling the tiny toxic particles poses a significant risk to workers of silicosis—an incurable and fatal disease that attacks the lungs—and other diseases such as lung cancer, tuberculosis, chronic kidney disease, and autoimmune disorders.

If you’re exposed to silica dust at work or know someone who is, you’ve probably been following news about the Occupational Safety and Health Administration’s (OSHA) proposed rule published in September 2013 to strengthen the existing standard by cutting in half the permissible exposure limit and imposing medical monitoring requirements. By OSHA’s own estimates, the rule would prevent almost 700 deaths and 1600 illnesses every year, which is a primary reason why CPR considers the silica rule among the top 13 essential regulatory actions the Obama Administration should complete before leaving office.

Today marks the one-year anniversary of the close of the rulemaking docket for the proposal, but OSHA hasn’t made any apparent progress toward finalizing the rule. Rather, OSHA is now two months behind on its self-imposed June 2015 deadline for completing a review of the comments, testimony, and other evidence submitted on the proposal.

So, what’s the holdup over at OSHA? Given that the rule’s several decades in the making, it’s fair to expect that OSHA would keep the public apprised of its status. But the agency hasn’t uttered a word, leaving those of us waiting to celebrate at the finish line wondering if they’re even still on the track.

The best-case scenario would be for OSHA to announce immediately — today, even! — that it has sent the draft final rule over to the White House Office of Information and Regulatory Affairs (OIRA) for review, and then for OIRA to clear the rule promptly and without any weakening changes. Although Executive Order (E.O.) 12866 executive review authorizes OIRA to waive review for any reason (or no reason at all), there’s no obvious instance where OIRA has chosen to do so for a rule it has categorized as “significant,” such as the silica rule. Thus, this hypothetical proceeds on the assumption that OIRA would conduct a review, but ideally, would complete it within the 90-day time period set forth in the E.O. Under this scenario, the new silica standard could be finalized and in effect no later than January 2016, and most of the new requirements could be enforceable by July 2016.

Remaining Actions to Finalize Silica Rule

Date of Action (best case)

OSHA completes review and sends draft final rule to OIRA for review

Aug. 18, 2015

OIRA reviews draft final rule and sends rule back to OSHA for publication without weakening changes in 90 days

Nov. 16, 2015

Final rule is published in the Federal Register

Nov. 17, 2015

Rule is effective 60 days after publication in the Federal Register

Jan. 16, 2016

Rule is enforceable 180 days following the effective date (except for engineering controls and laboratory requirements)

July 14, 2016

Rule’s engineering controls enforceable 1 year after effective date

Jan. 16, 2017

Rule’s laboratory requirements enforceable 2 years after effective date

Jan. 18, 2018

While this timeline would be ideal, it may be nothing more than a pipe dream. According to a recent Center for Public Integrity exposé on regulatory failures to protect U.S. workers from dangerous chemicals including silica, David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, assured the Center, “President Obama has made it very clear he is committed to getting the silica standard out while he’s president.” Despite such assurances, the timeline for finalizing the rule is less clear. The CPI article reports that an unidentified “Labor Department spokeswoman” said, “A final rule is expected by the end of 2016.”

Without hearing from the agency, it’s only a guessing game as to why the Obama Administration and OSHA leadership are stalling to finalize the rule. Of course, a good starting point might be the rule’s history over at OIRA and recent statements by Michaels about lack of resources.

When OSHA sent the proposed rule to OIRA for review in February 2011, it didn’t resurface for more than two years, even though E.O. 12866 only permits OIRA a maximum of 120 days (90 days with an optional 30-day extension) to complete its review. If OSHA is concerned its draft final rule may similarly disappear into the black hole, perhaps the agency is waiting, although on what exactly is hard to fathom. OSHA certainly must ensure its acting within the bounds of its authority and in compliance with the Administrative Procedure Act. But after decades of studies and analyses, OSHA has substantial support for strengthening the existing silica standard. It would be counterintuitive for OIRA—an office within the White House Office of Management and Budget—to intentionally draw out its review—if the President truly supports the rule and wishes to see it implemented before his term ends. Of course, OIRA has always been a choke point in the regulatory process, regardless of the President.

OSHA may also be stalling due to a lack of existing resources and fear that Congress will further slash its budget if it finalizes the new standard. As for existing resources, OSHA certainly will be met with intensifying industry opposition as the rule approaches completion, and will have to spend time and resources defending the rule over challenges in court. Yet over the past 40 years OSHA has invested too much into strengthening the permissible exposure level for silica to walk away empty-handed now. Continuing to drag out the process is wasteful of government resources, taxpayer dollars, and quite literally, human lives.

If OSHA doesn’t act soon it runs the risk that anti-regulatory members of Congress might find a way to weasel one of their terrible riders onto an appropriations bill or some other critical piece of legislation and ban the agency from issuing or enforcing the rule. In fact, appropriations legislation presently before Congress contains a “poison pill” that would block the silica rule until OSHA spends still more time and conducts still more research on exposure. National COSH, Public Citizen, and 70 other public interest organizations sent a letter to the President earlier this month expressing opposition to anti-regulatory measures in the budget and other cuts that would endanger workers’ health and safety.

Concerns about the future budget for OSHA shouldn’t hinder the agency from protecting workers right now from preventable, yet fatal diseases like silicosis. There’s no telling at this point who will take office in the next election cycle; they may support OSHA or may seek to defund the agency for a wholly different reason.

While the Administration and OSHA make excuses for stalling the rule, silica continues to kill thousands of working Americans every year. The science is sound and the cost of inaction is too high to be ignored any longer. It’s time for OSHA to stand up for workers and finalize the silica standard.

Public Protections

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