Ill-Advised Rulemaking

AggMan Staff | Published on April 1, 2014

by Therese Dunphy, Editor-in-Chief

tdunphy@randallreilly.com

 

On April 4, a series of public hearings on the Occupational Safety and Health Administration’s (OSHA) proposed crystalline silica rulemaking will close, and publication of a final rule will likely follow in short order. The proposed rule includes provisions that would require construction employers to do the following:

• Measure the amount of silica that workers are exposed to if it may be at or above an action level of 25 μg/m3, averaged over an 8-hour day;

• Protect workers from respirable crystalline silica exposures above the permissible exposure limit (PEL) of 50 μg/m3, averaged over an 8-hour day;

• Limit workers’ access to areas where they could be exposed above the PEL;

• Use dust controls to protect workers from silica exposures above the PEL;

• Provide respirators to workers when dust controls cannot limit exposures to the PEL;

• Offer medical exams — including chest X-rays and lung function tests — every three years for workers exposed above the PEL for 30 or more days per year;

• Train workers on work operations that result in silica exposure and ways to limit exposure; and

• Keep records of workers’ silica exposure and medical exams.

OSHA notes that “the proposal is based on extensive review of scientific and technical evidence, consideration of current industry consensus standards, and outreach by OSHA to stakeholders.” While the goal of protecting workers is certainly an admirable one, OSHA’s proposal has numerous flaws that call its validity into question. And, since the Mine Safety and Health Administration (MSHA) would likely follow OSHA’s lead on this rulemaking, it’s in the aggregate industry’s best interests to point out the shaky basis on which it was developed.

For example, rather than using the most extensive and recent studies available on the health impacts of silica (available through research conducted by the Crystalline Silica Panel), OSHA instead chose to use a 2004 NIOSH study to support its claims. Worse yet, it didn’t include the full study results when presenting the data. It cut off the highest exposure group (which included 30 deaths) to ensure the data supported the story it was trying to tell.

In addition, creative math came into play in OSHA’s economic feasibility analysis. A rule of thumb is that if a standard requires a company to spend more than 10 percent of its profit or 1 percent of its revenue, the standard is economically infeasible. To stay under that threshold, OSHA used 2006 as its benchmark, but just studied just the profitable companies. Does anyone think that economic analysis is representative of all companies today? Me neither.

Finally, the issue of measurability needs to be addressed. When performing its analysis, OSHA used its own laboratory, a single analyst, and pure silica standards to demonstrate the threshold levels. Most labs are not able to accurately test for the standard, so they will have two years to meet quality control requirements. Operators, however, would be required to begin sampling immediately. Essentially, they would spend two years making decisions, recommendations, and, potentially, investments based on potentially flawed analysis.

The bottom line is that OSHA’s rule is based on political interpretation of carefully sliced data that paints a skewed picture of the health impacts of exposure, underestimates the financial impact of compliance, and overestimates the access to technology needed for testing. This is a proposed rule that should not be finalized or used as the basis for future MSHA rulemaking.

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