OSHA has endured withering criticism throughout the rulemaking process from the usual suspects in the business community—the U.S. Chamber of Commerce, National Association of Homebuilders, American Chemistry Council, and the Construction Industry Safety Coalition—all of whom complain about the costs of the rule while denying its clear benefits to workers. Even the Small Business Administration’s (SBA) Office of Advocacy, which despite its SBA affiliation has increasingly acted at the behest of big industry, weighed in to encourage further delay in publishing the rule.

Industry groups have also been working their connections in Congress in hopes of further delaying the rule. After OSHA released the rule in late 2013, industry lobbyists rallied 70 Members of Congress (54 on the House side and 16 Senators) to sign letters to OSHA demanding additional delays in the rulemaking process. As OSHA gets closer to publishing a final rule, the affected industries will no doubt turn to their congressional allies again to pressure the agency. Such high-level political pressure is best answered by the White House, so President Obama should intervene to keep the agency’s deliberations on track.

What Should the Rule Do?

OSHA’s proposal is close to what silica-exposed workers need. It goes well beyond the current protections, which are limited to an inadequate PEL and basic protections afforded by other generic standards. Instead, the new rule establishes a strong PEL (50 micrograms per cubic meter) and backs it up with specific requirements about exposure monitoring, employee training, medical surveillance, and eliminating silica exposures through engineering and work-practice controls rather than respirators and facemasks.

OSHA should still do a few things to strengthen the rule. First, the rule needs medical removal protection for workers. When workers are exposed to dangerous levels of silica dust and show signs of potential chronic injury, they should be given the option of taking jobs that are less hazardous, without loss of pay or seniority. OSHA has required such accommodations in numerous rules governing workers’ exposures to other toxic chemicals.

The rule’s medical surveillance requirements should also be expanded. As is required in other OSHA health standards, employers should be required to make medical surveillance (e.g., exams, x-rays, etc.) available to workers at an “action level” set at one-half of the PEL (i.e., 25 micrograms per cubic meter).

OSHA should also clarify that host employers and staffing agencies are jointly liable for training and other protections. Companies often hire workers on a temporary or “contingent” basis so that they can shift workers’ compensation premiums, payroll taxes, unemployment insurance, and other costs to another employer. If OSHA clarifies that both host employers and the staffing agencies they use to hire workers are jointly liable for compliance with silica regulations, workers will be better protected.

What’s Next?

The docket for the silica proposal closed on August 18, 2014, nearly a year after the proposal finally left OIRA. OSHA is in the process of reviewing comments, the hearing transcript, and new evidence submitted to the record during the 11 months of open debate on the proposal. To the dismay of worker advocates, OSHA has a history of stalled rulemakings at this stage in the process. For instance, two rules waiting in limbo right now are:

• Confined spaces in construction – record closed October 2008;[ii] and,
• Slip/trip/fall prevention – hearing ended January 2011.[iii]

Having the sad distinction of being the only agency that ever lost a rule to Congressional Review Act “veto”—its comprehensive plan to reduce ergonomic injuries in the workplace—OSHA should be far more focused on getting the silica rule finished in time than its ponderous approach to the rulemaking process indicates. Accordingly, OSHA needs to complete its review of the docket and send the draft final rule to OIRA as soon as possible. For its part, the Obama Administration should ensure that OIRA completes its review of the draft final rule within the period spelled out in the executive order granting it authority to review—four months, at most.

Next: National ozone air pollution standard

• Introduction
• National performance standards to limit greenhouse gas emissions from fossil-fueled power plants
• Preventive controls for processed foods
• Produce safety
• Imported food safety
• Silica standard
• National ozone air pollution standard
• “Waters of the United States” regulatory definition
• Child farm-labor safety rules
• Crude-by-rail safety standards
• National stormwater pollution controls
• Coal ash waste disposal standards
• Concentrated animal feeding operation (CAFO) water pollution standards
• Permit “eReporting” for the National Pollutant Discharge Elimination System
• Conclusion