Worker-Killing Regulatory Delays

5/1/2012

April 28 marked Workers’ Memorial Day, a day set aside to honor and remember workers who have been killed on the job. The majority of these deaths are the result of inadequate health and safety standards on the job or inadequate enforcement of the worker safety standards that do exist. It’s time for our elected and appointed officials to recognize that delaying workplace health and safety protections can have deadly consequences.

The history of the Occupational Safety and Health Administration's (OSHA) ongoing struggle to protect workers from exposure to silica dust – the most common component in sand – illustrates this problem. Silica has been known to cause chronic, life-threatening scarring of the lungs since ancient times through a disease known as silicosis. At least 1.7 million U.S. workers are exposed to breathable crystalline silica in a variety of industries and occupations, including construction, sandblasting, and mining. In 2007, the National Institute of Occupational Safety and Health (NIOSH) – the national research institution dedicated to studying worker safety – estimated that 123 workers died that year from silicosis. Public health experts estimate that there are 15 to 30 new cases of silicosis for every reported silicosis death, or 1,800 to 3,600 newly diagnosed cases of silicosis each year. Scores more workers die from silica-induced lung cancer annually.

The current workplace limit for silica exposure was adopted by OSHA in 1972, based on a consensus standard agreed to in 1968. The standard relies on a complicated formula based on the amount of quartz present in the material being sampled. In the construction industry, the sampling equipment needed to measure compliance with the standards no longer exists – that’s how outdated the standard is. The current standard does not require that employers train workers about the hazards of silica or offer exposed workers medical exams to see if they are ill. A new OSHA standard is woefully overdue.

Since OSHA adopted its standard in 1972, the International Agency for Research on Cancer (IARC) and the National Toxicology Program (NTP) have both listed silica as a known human carcinogen (a substance that causes cancer), heightening concern about the health effects of workplace exposure.

Despite this widespread recognition among scientists that silica exposure can be deadly, over 38 years have passed since OSHA first announced its intent to protect workers from silica. Unfortunately, the unwavering opposition of industry, interference by the Office of Management and Budget (OMB) in OSHA rulemaking, changing priorities, and the agency's own inertia have blocked any forward motion.

NIOSH recommended that OSHA reduce worker exposure to silica in 1974. OSHA responded by publishing an Advanced Notice of Proposed Rulemaking that same year. Then nothing happened for two decades, even as scientists confirmed that silica exposure causes lung cancer. Under President Clinton, OSHA indicated that setting a silica standard would be part of its regulatory agenda in 1997. Nothing moved. The Bush administration designated silica regulation a high priority in 2002 and conducted small business review panels the following year. Then nothing happened for several more years. Finally, the Obama administration re-designated silica regulation a high priority and completed a draft proposed rule in 2010, which it forwarded to OMB's Office of Information and Regulatory Affairs (OIRA) for review in February 2011.

Under Executive Order 12866, OIRA review should take no longer than 120 days. But 14 months later, OIRA has not acted on the proposal, leaving it stuck in regulatory limbo. OIRA has not returned the proposal to OSHA, an action which would effectively kill the rule, nor has it released the proposal so OSHA can publish it in the Federal Register and begin public hearings. Since it began reviewing OSHA’s proposal, OIRA has had eight meetings with outside groups about the proposal: six times with industry representatives but only once with labor and once with medical experts. We don’t know what was discussed at these meetings because OIRA doesn’t disclose the substance of what was discussed. The last publicly disclosed meeting OIRA held on the silica rule was in August 2011 – over eight months ago.

Why the delay? OSHA’s proposal mandates reductions in silica exposure to the level NIOSH recommended in 1974. This limit can be complied with using readily available technology. In fact, Tom Ward, a bricklayer whose father died of silicosis at age 39, testified before the U.S. Senate Committee on Health, Education, Labor and Pensions last month that at most jobs, the standard could be met by simply spraying water to minimize how much silica dust becomes airborne.

OSHA estimates that the reduction in silica exposure it is proposing will prevent 60 deaths each year. This means that during the 38 years that this rule has been delayed, more than 2,200 workers died needlessly. How can industry oppose a standard that has already cost 2,200 lives? The evidence is clear: the failure to regulate kills workers.