November 1, 2013
by Therese Dunphy, Editor-in-Chief
On Sept. 12, the Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking for occupational exposure to respirable crystalline silica. While our coverage of health and safety issues typically focuses on the Mine Safety and Health Administration (MSHA), which regulates aggregate operations, this is an issue that must be addressed now (read more details on page 32).
As most of you already know, crystalline silica is often found in stone, sand, and gravel, among other common construction materials. The impact of this rulemaking is enormous; industry experts estimate the cost of this regulation to be $658 million. In addition, MSHA has said it intends to introduce a silica regulation for the mining industry. Its regulation is expected to rely on this standard’s regulatory analysis.
When the notice was published, OSHA allowed a 90-day window for public review and comment. As Dec. 11 rapidly approaches, consider that the rule — which proposes a 50-percent reduction in the current permissible exposure limit to 50µg/m3 of workspace air and an action level of 25µg/m3 of workspace air — had a development period of more than a dozen years. The White House Office of Management & Budget (OMB) began to review it in February 2011. It took the OMB two and a half years to review the proposed rulemaking because the rule itself is 230 pages long. In addition, there are nearly 500 pages of background documents and more than 1,400 pages of preliminary economic analysis. And, the docket for the rulemaking exceeds 1,700 documents!
We’d need an industry full of speed-readers just to wade through this stockpile of paperwork within 90 days, let alone develop meaningful and accurate comments. To make matters even more challenging, OSHA has withheld documents used in its rulemaking, despite formal requests for them.
So to recap, the agency took 12 years to develop the rule and wants industry to have a little more than 12 weeks to comment on it.
A 90-day window denies the public the opportunity to fairly and fully comment on the rule. It is simply unacceptable. So let’s talk about what would be an appropriate timeline. It’s unrealistic to think that we’d be allowed the same two and a half years OMB had to wade through this regulation, but, at minimum, OSHA should take its original estimate and double it. An extension until March would give the industry a scant two weeks per year of development to review the rule. An additional extension for written testimony, of say 30 to 60 days, might actually give commenters time to put pen to paper and articulate the challenges this rule may pose.
As an industry, we must demand an appropriate extension. OSHA must allow experts to process this regulation and provide meaningful feedback. Industry jobs will likely depend on it.