Industry fights with health advocates over worker exposure to carcinogen

Business and labor interests are locked in a more than decade-long battle over how to limit worker exposure to a known carcinogen.

The latest skirmish is over a proposal from the Occupational Safety and Health Administration (OSHA) that has been stalled at the Office of Management and Budget (OMB) for close to 300 days.

It would limit exposure to crystalline silica, a common element in the earth’s crust, for general industry, maritime and construction professionals, according to an OMB summary. The proposal could have an annual impact of more than $100 million spread across several industries.

Many trade groups and companies want to head the rule off at OMB before it is published, arguing that current limitations would be sufficient to protect workers, if properly enforced.

But health advocates and unions insist that current regulations put workers in harm’s way and are pushing for the debate to occur in the “correct” forum — after the initial rule is published and the proposed exposure limits are disclosed.

“What we think OSHA is contemplating is just a bad approach,” said Marc Freedman, the executive director of labor law policy for the U.S. Chamber of Commerce. “We’re hoping the proposed rule doesn’t come out.”

Crystalline silica is “associated with silicosis, lung cancer, pulmonary tuberculosis and airways diseases” when it is in breathable form, according to the National Institute for Occupational Safety and Health (NIOSH).

Permissible exposure levels (PELs) constrain the concentration of crystalline silica in the air for industries like industrial sand production and masonry demolition and have been in place since 1971.

There are currently two PELs that, though using different equations to measure breathable silica, both set an exposure limit of 
0.1 milligrams per meters cubed for respirable silica particles.

Thirteen trade groups, lobbying firms and others have disclosed lobbying on crystalline silica this year, including the American Chemistry Council (ACC) and Associated Builders and Contractors. Eleven groups lobbied in 2011’s third quarter alone.

Several groups have had contact with members of the administration.

At least 50 people from at least 35 organizations have met with OMB’s Office of Information and Regulatory Affairs in nine disclosed meetings about the substance since OSHA submitted the proposed rule in February, disclosure records show.

“Regardless of the technical merits of any comments made to OMB, we feel that extending review of the silica standard is an unacceptable attempt to ‘short circuit’ the existing process and may make it unusually vulnerable to political influence,” American Industrial Hygiene Association President Elizabeth Pullen said in a letter to OMB Director Jack Lew and Secretary of Labor Hilda Solis.

Lawmakers have pushed for a more transparent consideration of the exposure limits after discussing the rule with the Chamber and other organizations.

The GOP members of the House Education and Workforce Committee sent a letter to OMB demanding the office “immediately publish an advanced notice of proposed rule-making” disclosing any changes being considered.

“Releasing the details and scientific data behind OSHA’s proposed change to the current silica standard is not just good government, it will provide the public an opportunity to accurately estimate its impact on jobs and our economy,” Rep. Tim Walberg (R-Mich.), the head of the subcommittee that oversees OSHA, told The Hill in a statement.

Even though no decision has been published stating what the PEL is, the Chamber of Commerce and others believe a previous Small Business Regulatory Enforcement Fairness Act report analyzing options shows that at least one PEL would be lowered by half in the proposed rule.

That number, .05 milligrams per cubic meter, “is below the level of detection” using current technology, Freedman said.

“That raises a lot of concerns for employers in terms of exposure to citations and enforcement and in terms of uncertainty and problems and dealing with it in a feasible manner,” Freedman explained.

The AFL-CIO counters that the SBREFA report gave several numbers, hardly indicating which PELs would be implemented.

“That was in 2003. [The report] didn’t have a specific level in it,” said Peg Seminario, the AFL CIO’s director of Occupational Safety.

Health advocates would be happy if cutting the PELs by half turned out to be the real proposal.

In 2005, the most recent year available, the substance was singled out as an “underlying or contributing cause of death” on 161 death certificates, but there were likely many unreported cases, OMB stated in the proposed rule summary.

American Thoracic Society member Tee Guidotti said multiplying each year’s silica-related death toll by 10 would be more accurate, given underreporting and misdiagnoses. He said the U.S. lags behind most other countries in limiting exposure, as it’s mostly a “Third World problem” these days.

Trade groups and businesses are diagnosing the problem as enforcement-based and offering alternative solutions to lowering the PELs. The American Chemistry Council cited Centers for Disease Control and Prevention data that show a 93 percent decrease in silica-related deaths between 1968 and 2002.

The council is pushing for OSHA to better enforce current standards, citing that approximately 30 percent of the work exposure samples exceed the current PEL. That does not require additional regulations.

“This failure to achieve compliance with the current PEL appears to be the real problem; correcting that failure should be the focus of OSHA’s efforts,” read one letter sent to Sunstein and White House Chief of Staff Bill Daley that was signed by 11 groups, including the ACC and the National Association of Manufacturers.

National Industrial Sand Association (NISA) President Mark Ellis said that there are ways the PEL could remain the same, decrease exposure and better protect workers. NISA suggested implementing additional medical surveillance and dust monitoring requirements that would lead to better results.

“It is true that accuracy in measuring crystalline silica exposure is more difficult than other substances that OSHA regulates, and much more variable,” Ellis said. 

“But it doesn’t mean that one can’t sample and analyze with sufficient accuracy to ensure that workers aren’t being overexposed to the current PEL. We believe the current PEL is protective, if it’s observed.”

The rule has been held in OMB for 277 days, even though the normal 90-day regulation period is only allowed one 30-day extension. After that, if the agency requests more time, a regulation can sit with OIRA indefinitely.

An OSHA spokesman declined to comment on whether the agency head had requested additional time to consider the rule.

The public will not know what is in the proposed rule until it is published for its 60-day public comment period. Seminario emphasized that the rule needs to be published before it can be vetted.

“It’s an evidentiary matter,” she said. “Either the evidence supports lowering the levels or it doesn’t.”