February 14, 2012

One Year Later, OSHA's Rule to Protect Workers from Deadly Silica Still in White House Review

Today marks the first anniversary of an event that received little media attention, but marked a major milestone in the progression of a regulation that is of great importance to thousands of Americans whose jobs bring them into contact with dust particles containing the common mineral silica.  Exactly a year ago today the Occupational Safety and Health Administration (OSHA) completed a proposed rule requiring employers in the mining, manufacturing and construction industries to protect their employees from silica dust particles as they engage in such activities as sandblasting, cutting rocks and concrete, and jackhammering.

Silica dust is no newcomer to the growing list of workplace hazards.  Public health professionals have known for more than one hundred years that exposure to airborne silica dust can cause a debilitating disease caused silicosis. 

In 1929, as the nation entered the Great Depression, hundreds of workers made their way to Gauley Bridge, West Virginia to work on the Hawk’s Nest diversion project, a massive digging operation that created a three-mile long tunnel through Gauley Mountain to divert the flow of the New River for a Union Carbide power generation facility.  Before the project was completed, more than one hundred workers had died of silicosis, and many more faced the prospect of slow and painful deaths as a result of their exposure to silica dust.

The Hawk’s Nest tragedy inspired public health officials to establish limitations on workplace exposures to silica dust, but they did not prevent workers from contracting the dreaded disease.  Scientists estimate that thousands of workers still contract silicosis, resulting in hundreds of deaths, every year.  And silica dust exposure has been linked to other diseases, like cancer, as well. 

More than fourteen years after OSHA first announced that it would initiate a rulemaking to update its standard for silica dust, one might have expected that the rulemaking process would be well underway and nearing completion by now.  Unfortunately, the proposal has still not seen the light of day a year after OSHA finished working on it.

This time, however, the delay is not OSHA’s fault.  The proposal ran into a roadblock in the form of the Office of Information and Regulatory Affairs in the White House’s Office of Management and Budget.  That small office, composed mostly of economists, has for the past thirty years been empowered by a series of presidential executive orders to review federal agency proposals for major rules and the “regulatory impact analyses” that the agencies must prepare under the same executive orders.

Over the years OIRA has justifiably acquired a reputation as a dependable protector of business interests.  Sadly, the office has done nothing during the Obama administration to change that reputation.  OIRA officials allow unlimited lobby meetings, which in practice means industry representatives far outnumber labor and public interest groups.  In the case of the silica dust rule, OIRA has thus far held six meetings with industry groups, one with union representatives, and one with representatives of the American Thoracic Society.

A recent CPR report revealed that OIRA has come to the aid of regulated industries by changing the content of proposed regulations more frequently during the Obama Administration than it did during the George W. Bush Administration.

The current executive order requires OIRA to complete its review within 120 days (90 days plus a 30 day extension) so that the agencies can get on with the business of protecting the public.  It has now been a year, and OSHA is still waiting to publish a proposal in the Federal Register.  After that, OSHA will have to hold lengthy hearings, digest tens of thousands of pages of testimony and comments, prepare a notice of final rulemaking and defend the rule when it is challenged in a court of appeals. That part of the process will be relatively transparent to the public – unlike the current stage.

The silica rule is hardly the only rule that OIRA is holding beyond the 120 days allowed by executive order, but it is an egregious example. At the moment, there are 31 final or proposed rules at OIRA that are beyond deadline, and at least 10 notices past deadline.

In the early 1980s, critics referred to OIRA as a “regulatory black hole” where proposed rules disappeared and never reappeared.  That was during the deregulatory days of the Reagan Administration when OIRA was headed by Wendy Gramm, the wife of then-congressman Phil Gramm (R-Texas) and now associated with the conservative Mercatus Center. In the late 1980s, Congress intervened by threatening to cut off OIRA’s funding if it did not speed up the review process and make it more transparent.

Although the OIRA review process has gotten more transparent in the intervening years, its deregulatory ideological perspective has not changed.

The industries that expose their workers to silica dust hope that OIRA will keep OSHA’s rule bottled up until after the election when they hope a Republican will be in the White House and a conservative OSHA will withdraw the proposal. At a minimum, they hope to get the administration to weaken the rule.

The workers who are exposed to serious health risks for simply doing their jobs hope that the Obama Administration will do the right thing and tighten the silica dust standard.  And more than 300 public health professionals have signed a letter to President Obama asking him to direct OIRA to release the proposal to OSHA.

Far from being an advocate for the American worker, the Obama Administration has to this point failed even to take the modest first step of publishing a proposed silica dust rule for public comment.  So much for the politics of hope.

Thomas McGarity, CPR Member Scholar; Endowed Chair in Admin. Law, University of Texas School of Law. Bio.

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