Bad Watchdog Season 2 launches June 20.

Holding the Government Accountable

After 45 Years, Deadly Silica Rule Finalized

Last month, the Occupational Safety and Health Administration (OSHA) overcame more than four decades of industry influence, bureaucratic hurdles, and political delays to finalize a rule updating a 45-year-old standard on the amount of silica dust workers can be exposed to. The new rule cuts the allowable amount by half for most industries, from 100 to 50 micrograms per cubic meter, something the Centers for Disease Control and Prevention (CDC) has been advocating for since 1974, just three years after OSHA issued its initial standard. OSHA predicts that the new rule will save more than 600 lives a year and prevent hundreds of cases of respiratory illness.

Silica, most commonly found in quartz, is one of the most plentiful minerals on the planet. And we’ve known about the dangers of inhaling silica dust for a very long time—possibly for more than two thousand years. Exposure to silica dust causes lung cancer and silicosis, an incurable condition that starts with a cough, develops into chronic bronchitis-like symptoms, and can end in death. Silicosis also increases the chances of contracting tuberculosis and compounds damage done by smoking. Despite our long experience with it, silica dust has remained a health problem and took the lives of over 2,000 Americans in the 15 years leading up to 2013.

OSHA’s process for setting standards is infamously slow, averaging over seven years, according to a report by the Government Accountability Office. The process involves comprehensive analysis of each regulation’s costs and benefits, and a detailed accounting of any effects it might have on various groups. This can lead to a never-ending cycle of analysis as older research is re-done for “today’s economy,” additional variables are included in calculations, and new industry-funded studies must be responded to. This “paralysis by analysis” means that it can take agencies such as OSHA decades to act on larger issues, if they ever do. “There is absolutely no way for OSHA to write the standards that are relevant to today’s workplace and keep pace with changes,” former OSHA chief Charles Jeffress told Politico. “[OSHA is] 30 years behind and it’s never going to catch up.”

This comprehensive analysis coupled with OSHA’s limited staff and resources contributed significantly to the delay for the silica rule. With silica being so common, controlling exposure impacts many industries, and OSHA is required to analyze the effects on each of them independently. OSHA finally completed these lengthy reviews in 2011 and sent the silica rule to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. What followed was a period of meetings with industry members, their lobbyists, and their lawyers. According to documents recently acquired by The Hill through the Freedom of Information Act, the industry representatives were pushing to “return the proposal to OSHA for further evaluation of risks, benefits and costs.”

The released documents also revealed a political willingness to allow new rounds of analysis and delay. Cass Sunstein, the Administrator of OIRA at the time, forwarded an email from the CEO of U.S. Silica Co. requesting further evaluation to multiple White House aides with an approving note. Had the rule been returned to OSHA, it could have taken another decade to finalize. Fortunately, that didn’t happen.

Industry groups have not stopped fighting the rule. Eight construction industry organizations have filed legal challenges against the ruling, with the president of the American Road & Transportation Builders Association claiming that “the unintended consequence of the proposal is that it will actually expose road workers to greater risk by diverting resources away from other legitimate safety programs.” The new standard is especially challenging for the construction industry because for the last 45 years the industry had enjoyed an exception that allowed up to 250 micrograms per cubic meter, making the new rule an 80 percent cut.

In a Congressional hearing, the National Association of Home Builders requested that Congress intervene on the rule, arguing that the standard was impossible to comply with, as it was “beyond current technology.” They also contested OSHA’s cost estimate, saying it would cost the industry almost $5 billion a year to accomplish—nearly eight times more than OSHA estimated.

OSHA chief David Michaels dismissed industry claims, telling Politico that not only do many companies already operate under that limit, but that “industry lawyers say the same things and invent studies that say costs are always too high.” Once the rules are no longer negotiable, however, Michaels notes that companies always find ways to comply that are not only cheaper than their previous estimates but also cheaper than OSHA’s.

Workers’ unions familiar with silica dust, such as the International Union of Bricklayers and Allied Craftworkers (BAC), have praised the rule, emphasizing current health risks and disputing claims that that it would be technologically impossible or prohibitively expensive to comply. BAC stated in a press release that at the previous limit, “100% of construction workers will get sick or die from silica-related illness over the course of a 40 year career.” It went on to state that “This is not complicated…The remedies offered in the new standard are simple: water and electricity are available on jobsites already, and most equipment already comes with standard attachments for water or vacuum removal methods.”

While operating under the new limit may be inconvenient, international experience seems to back up the argument that it is doable. Several other countries have standards at or even below the new 50-microgram limit, such as Canada, which enforces a limit of just 25 micrograms per cubic meter. Implementing the new rule may have even broader implications, as other countries often look to the United States for leadership in research and health issues.

The need for common-sense regulatory reform is an area that the Project On Government Oversight is beginning to emphasize more vigorously. Strong regulations protect citizens’ health, their finances, their workplace, and their children. Yet as POGO’s Sean Moulton recently wrote in his op-ed titled When Red Tape is a Good Thing, “this rulemaking process makes it too easy for special interests to twist a good law into something that’s more beneficial for their own interests than American taxpayers.” It should not have taken more than 40 years to require companies to protect their workers from silica dust. Unfortunately, without significant changes to the way regulations are created, potentially fatal delays in worker protection will continue to be the norm.