As we noted on the day of the announcement, OSHA has – at long last – released a proposal to better protect workers from respirable silica. We didn’t have much to say about the substance at the time because we simply hadn’t had the opportunity to read through the massive proposal. (It’s over 750 pages, with almost 1600 additional pages in the risk assessment and economic analysis documents – OSHA clearly doesn’t take their regulatory responsibilities lightly.) Having had a chance to get a bit more familiar with the proposal, here are some initial thoughts:
- A 50 µg/m3 permissible exposure limit (PEL) is necessary, but not sufficient. As with numerous other health standards OSHA has issued over the years, the agency has determined that reducing the PELs to their proposed level will reduce the risk posed by silica but will leave workers exposed to a risk level deemed “significant.” In this case, that means 88-108 “excess” silica-related deaths for every 1,000 exposed workers each year, according to OSHA’s risk assessment, which may well underestimate the true risk. (Under the current PELs, OSHA estimates that “excess” deaths per 1,000 workers are in the range of 146-193 annually in general industry and 284-1,059 annually in construction and shipyards.) OSHA’s justification for not eliminating significant risk is twofold: the absence of existing methods to reduce exposures to a lower level in most industries, and the inaccuracy of existing sampling methods at concentrations below 50 µg/m3. The Occupational Safety and Health Act is supposed to be a “technology-forcing” statute. Past experience shows that industry is almost always able to adapt to new regulations at a lower cost than OSHA predicts during the rulemaking process. For example, a retrospective analysis of OSHA’s ethylene oxide standard found that employers were able to make technological changes, substitute alternative sterilizers for ethylene oxide in a number of applications, and utilize improved exposure monitoring technologies to reduce the costs of compliance to levels well below those predicted in the rulemaking process. Macroeconomic changes, including the increased outsourcing to contract sterilizers, also helped lower the costs of compliance with the OSHA standard. Predicting future technology changes and macroeconomic conditions is fraught with uncertainty, but the false precision of the current $650 million per year cost estimate for the proposal fails to allow for the potential that a lower PEL or other changes to the standard that would enhance protections for workers may actually be feasible over the long run.
- A feasibility loophole? OSHA’s proposed standard would allow employers simply to give workers respirators – instead of providing the protections afforded by the full hierarchy of controls – in situations where the employer finds the other controls to be “infeasible.” Unfortunately, the standard does not provide much guidance on what makes compliance “infeasible.” The lack of guidance is remarkable in light of the relatively small costs imposed on a per-firm basis. For instance, if you take the combined costs of engineering controls and the establishment of regulated areas or written access-control plans, the construction industry sector with the largest costs is “utility system construction,” with total costs of $1,008 per year for small employers. What are the circumstances that would make such costs “infeasible?” Note that OSHA’s economic team found that per-firm revenues for small firms in the utility system construction sector were $3.2 million per year, and that per-firm profits amounted to $174,000 per year. What level of scrutiny will OSHA inspectors apply to employers’ infeasibility determinations? It is critical that OSHA inspectors not allow the infeasibility loophole to swallow the rule requiring engineering and work practice controls to provide the needed protection.
- On a related note, provisions related to employers’ use of “objective data” raise questions about enforcement. OSHA has proposed to allow employers to forego sampling when “objective data” would provide equally accurate measures of workers’ exposure to respirable silica. The proposal also allows employers to use objective data in place of periodic monitoring and in the selection of respirators. What scrutiny will OSHA inspectors apply to the objective data? Will they “check the math” in the employers’ numbers?
- The 25 µg/m3 action level should do more. OSHA has proposed an “action level” of 25 µg/m3, but the only action triggered by exposures at that level is exposure monitoring. An improved standard would also trigger medical surveillance, so that workers will have better knowledge about their health, enabling them to take action to stay healthy and bargain with their employers over enhanced protections. OSHA has established that significant risks of silicosis, lung cancer, and renal disease exist at 25 µg/m3. The supposed infeasibility of controls and analytical devices is irrelevant to workers’ need for information about their health when exposed to hazardous conditions.
- Speaking of medical exams, what will happen to contingent workers, especially temporary staff or day laborers, who do silica-related work? The proposal requires employers to provide a baseline medical exam for workers who are exposed to silica above the PEL for 30 or more days per year, and the exam must happen within 30 days of assignment to the risky job. Does this mean staffing agencies will only assign workers to jobs with high silica exposures 29 days per year, effectively eliminating job prospects and skirting the exam requirement?
- Adding medical removal provisions to the standard would be an improvement. In other health standards, OSHA has created rules that require employers to remove workers from hazardous jobs when certain exposure levels and medical tests suggest acute harm is imminent. OSHA has chosen not to include medical removal provisions in the standard, despite finding that acute silicosis can occur after exposure to extremely high levels of silica. OSHA notes that “death from acute silicosis can occur within months to a few years of disease onset, with the exposed person drowning in their own lung fluid.” Workers deserve protection from these devastating effects.
Just to be clear, there are many good things about this proposal: OSHA has taken a huge step forward in lowering the PEL; the fact that OSHA has identified feasible engineering controls, work practices, substitution options, and other non-respirator-based protections for workers will go a long way to preventing suffering; and the mandatory exposure assessments and medical monitoring will create information that not only empowers workers to demand appropriate protections and corrective action, but also provides a basis for deciding when and whether new regulatory action will be necessary. But OSHA has a history of back-sliding from initially strong regulatory proposals, so workers’ advocates still have a long road ahead.