Worker Safety Rule Under Review at OIRA for Over a Year: A Tale of Rulemaking Delay
This year, Feb. 14 signified more than a Valentine’s Day celebration for worker safety advocates. Last Tuesday marked the one-year anniversary of the regulatory review of a proposed rule issued by the Occupational Safety and Health Administration (OSHA) that would strengthen standards for protecting workers from crystalline silica, a known human carcinogen that is linked to fatalities and disabling illnesses such as silicosis.
The Office of Information and Regulatory Affairs (OIRA), the office most central to carrying out the White House's regulatory policy, received the proposed rule on Feb. 14, 2011, but has yet to release it despite a 90-day window for OIRA to review rules. This excessive delay, along with a number of closed-door meetings with industry groups, sparked an outcry from 300 occupational health experts, public safety advocates, and labor officials, who sent the White House a letter on Jan. 25 urging President Obama to release the rule for public comment.
According to the National Institute for Occupational Safety and Health (NIOSH), which is part of the Centers for Disease Control and Prevention, at least 1.7 million U.S. workers inhale crystalline silica dust during construction, sandblasting, mining, and other work-related activities. NIOSH data shows that about 200 workers die each year from silicosis, and researchers estimate that 3,600-7,300 new silicosis cases occur annually. The current OSHA standard for crystalline silica exposure is based on a formula proposed in 1968, and the standard for construction and shipyards is based on technologies considered obsolete.
Both worker safety groups and industry have recognized the need for a new comprehensive standard for crystalline silica, and after pursuing a number of non-regulatory approaches (including issuing guidance on silica control and initiating a silicosis Special Emphasis Program), OSHA began the process to regulate silica. More than 14 years ago, OSHA initiated the silica rulemaking, and it has been over eight years since a small business panel completed a review of the draft silica rule, as required under the Small Business Regulatory Enforcement Fairness Act (SBREFA). OSHA has spent the remaining years collecting and analyzing the scientific data and preparing the regulatory documents associated with the rulemaking.
This is not the first time the rulemaking process has interned a public health or safety standard by subjecting it to lengthy delay or special interest influence. A study released in November by the Center for Progressive Reform (CPR) charged that the OIRA review process is tilted in favor of industry interests and concluded that "OIRA routinely misses deadlines, stalling public health and safety protections." OMB Watch’s assessment of all OIRA reviews conducted during the Obama administration found the time taken to review rules increased over the first three years of the administration. The average review time for rules increased by almost 20 days between 2009 and 2012, with the average review time in 2011 falling just shy of the 61-day average review time during the last year of the George W. Bush administration. Of the 161 rules currently under review, 52 have exceeded the 90-day deadline.
Another example of an important public protection that is currently past due is EPA’s proposed Chemicals of Concern List rule, which would identify chemicals that may present unreasonable human health risks. The rule would have important health and safety benefits and is not economically significant, yet it has been stalled at OIRA since May 2010.
The silica rule delay is most troubling because it appears to be motivated by something more than the necessity to evaluate complex technical materials. In their letter to the president, proponents of the rule wrote that "OMB staff has hosted at least nine private meetings with individuals about the proposed OSHA action, most of whom represent companies with a direct financial interest in the matter." They continued, "These closed door meetings with special interests are wholly inconsistent with [the administration’s] promise of openness and public participation."
Similar complaints were lodged against OIRA for pulling the U.S. Environmental Protection Agency’s (EPA) ozone rule, and the CPR report revealed industry dominance in OIRA meetings with outside parties, finding that industry lobbyists were the lone participants in 73 percent of the meetings conducted between 2001 and 2011.
The fairest way forward is to allow the rulemaking process to continue with the transparency and efficiency called for by industry and public health advocates alike. As the Jan. 25 advocates' letter to the White House concluded, "The OSHA proposed rule on crystalline silica needs to be issued so that the public, workers, unions, public health experts and employers have the full opportunity to participate in the development of this important worker protection measure."
Image in teaser courtesy of Wikimedia Commons.