Obama Administration quietly smothers rule to protect workers

By DON McINTOSH, Associate Editor

Construction workers breathe it. So do road crews, and miners, and workers in foundries, quarries, glass-making, sand-blasting and hydraulic fracturing (fracking) operations. It’s known as crystalline silica. It’s present in sand, rock, brick and concrete, and it’s said to make up 12 percent of the earth’s crust. But breathed in as dust, in quantity and over time, crystalline silica can cause a host of occupational lung diseases, including silicosis, pulmonary tuberculosis, and lung cancer.

“With silica, the biggest threat isn’t the stuff that you see — it’s the stuff that you can’t see,” explains Shawn Lenczowski, coordinator of the Oregon and Southwest Washington Mason Trades Joint Apprenticeship and Training Committee. “The particles are so small that when you breathe them in, they cut your lung tissue, and cause tiny scars in your lungs. Over time, the scars build up, and your lung capacity is depleted.”

Silicosis is the name for the condition Lenczowski describes. It’s one of the oldest known occupational diseases, and it’s irreversible.

At least 1.7 million U.S. workers are exposed to respirable crystalline silica, according to the National Institute for Occupational Safety and Health (NIOSH), a unit of the U.S. Centers for Disease Control. At the highest risk are those whose work involves sand-blasting, or cutting, blasting, chipping, grinding, and sawing stone, brick, or concrete. It’s estimated that each year there are upwards of 3,600 new cases of silicosis, and nearly 150 silicosis deaths.

Yet silicosis is entirely preventable.

“This is not rocket science,” says Peg Seminario, occupational safety expert at the national AFL-CIO. “You need to use water to suppress the dust.” And have proper ventilation. And personal protective equipment. And training on how to minimize risk.

Where’s OSHA?

You might think those things would be required by the Occupational Safety and Health Administration (OSHA) — which has a mandate under federal law to protect worker health and safety. You’d be wrong.

OSHA sets a “permissible exposure limit” for silica dust, using a complex formula based on the amount of quartz in air samples. But it doesn’t require employers to measure that exposure. Nor are employers required to conduct periodic medical examinations of exposed workers, inform them about the hazards of silica, use safer methods like wet cutting, install ventilation controls, or even provide workers with personal protective equipment such as dust masks or ventilators.

And OSHA’s permissible exposure limit, set in 1972, was based on the scientific consensus of 1968, relying on studies from the early 1960s.

In 1974, just two years after OSHA set the silica exposure limit, NIOSH recommended that limit be cut in half. OSHA began working on updating its silica rule that year.

That was 39 years ago. It still hasn’t happened. But the science on silica has advanced greatly. In the late 1990s, respirable crystalline silica was added to the list of known human carcinogens. New methods of air sampling were developed to make tests more accurate. Equipment makers developed and improved concrete saws with attached hoses or tanks to prevent silica from becoming airborne.

In 2002, during President George W. Bush’s first term, OSHA announced that an updated silica rule would be a priority. But after OSHA sent a proposed rule to a small business panel for review, work on the regulation halted.

In 2009, the Obama Administration also named silica as a priority. And on Feb. 14, 2011, OSHA submitted a “draft silica proposed standard” for review by the White House Office of Information and Regulatory Analysis (OIRA), which is part of the Office of Management and Budget (OMB). The review was supposed to last 90 days. But 795 days later, it’s still there.

The Occupational Safety and Health Act, signed by President Richard Nixon in 1970, says nothing about review by OMB or OIRA. The law created OSHA, and gave it authority to set mandatory occupational safety and health standards, “to assure so far as possible every working man and woman in the nation safe and healthful working conditions.”

And the law gave OSHA its own rigorous and lengthy public review process. After careful scientific and technical study, the agency puts out a proposed rule for public comment, and holds hearings to get input on whether or not the rule is needed, the science behind it, and whether it’s feasible in terms of cost and technology. Then the agency makes a determination whether to proceed with the final rule.

White House interference

[pullquote]They’ve hijacked the public process …. You have all these industry groups going into closed-door meetings with OMB, essentially having private hearings on the rule even before it sees the light of day in proposed form.”— Peg Seminario, AFL-CIO[/pullquote]But in 1993, President Bill Clinton issued Executive Order Number 12866, directing all federal regulatory agencies, including OSHA, to submit proposed regulations first to the OMB when they would have significant economic impact. OIRA, the OMB sub-unit, would review whether the regulatory agency had assessed the costs and benefits of available alternatives, and then would approve it for further development, or propose changes, within 90 days, with an opportunity for one 30-day extension. President Bush kept the executive order in place, and so did President Obama. The executive order says that if OMB doesn’t complete its review in that time frame, a regulatory agency can move forward without it.

But that hasn’t happened. Regulatory agency directors — who are appointed by the president — don’t push rules forward on their own when OMB fails to meet its deadline to review proposed rules. Instead, and the silica rule is just one example, federal regulations to protect the public interest — though authorized by previous acts of Congress — increasingly fall into a kind of black hole at the OMB.

“They’ve hijacked the rule,” says the AFL-CIO’s Seminario, who has spent two decades in Washington, D.C., fighting for worker safety. “They’ve hijacked the public process. So instead of it being a public process where everybody gets to come in and make their comments to the agency that has the expertise, OSHA, you have all these industry groups going into closed-door meetings with OMB, essentially having private hearings on the rule even before it sees the light of day in proposed form.”

In the first six months of “review” on the silica rule, OMB officials met eight times with industry groups. Attendees included the National Industrial Sand Association, American Road and Transportation Builders Association, representatives of brick companies, mineral companies, and foundries, and on behalf of mining interests, a lawyer from powerhouse lobby firm Patton Boggs. Construction industry groups were there too: Associated Builders & Contractors, National Association of Home Builders, Independent Electrical Contractors, Mechanical Contractors Association of America, Mason Contractors Association of America, and the National Roofing Contractors Association. The meetings weren’t open to the public.

At the time, the head of OIRA was Cass Sunstein, a friend of Obama’s from their days teaching at University of Chicago. Sunstein left OIRA in August 2012 to return to teaching at Harvard Law School. And in December, Sunstein submitted an article to the Harvard Law Review, intended to clear up myths and “pervasive misunderstandings” about OIRA. Those closed-door meetings with business groups, Sunstein wrote, don’t matter; the meetings just take place because OIRA “accepts all comers.” Nor is politics a consideration, he wrote, “if the term refers to public reactions and electoral factors.” In Sunstein’s telling, OIRA is just an “information aggregator,” a kind of bureaucratic talk shop where apolitical experts from multiple federal agencies weigh in on the impacts of proposed rules. If the agency representatives don’t achieve consensus, there can be delay, Sunstein wrote. If there’s one revealing sentence in the 38-page article, it’s this one: “Insofar as the President and his closest advisers are clear on their priorities, OIRA will of course be made aware of their views and act accordingly.”

In other words, if the president wants OIRA to release the silica rule, it will.

Members of Congress get involved

Union officials are upset about inaction on silica, but they’re not the only ones. U.S. Sen. Tom Harkin of Iowa is chair of the Senate Subcommittee on Employment and Workplace Safety, which oversees OSHA. In July 2011, once the 90-day rule had come and gone, Harkin wrote to OMB asking that the regulation be released so that OSHA’s public review process could begin. He got the brushoff.

Nine months later, Harkin convened a Senate hearing about the impact of OSHA rule delays on worker safety. Randy Rabinowitz, director of regulatory policy at the non-profit watchdog group OMB Watch, testified that OSHA is finding it more difficult to respond to threats to workers health because the agency is required to complete an ever increasing array of onerous, duplicative, and unreasonable regulatory analyses.

“In the early days of its existence, it took OSHA from six months to two years to develop major rules — even controversial ones that addressed asbestos and vinyl chloride hazards,” Rabinowitz told senators. Now it takes almost eight years on average to promulgate an OSHA standard. And in the case of the silica standard, 39 years and counting.

With the federal government doing nothing, others stepped in. New Jersey banned dry cutting of concrete as an unsafe practice. So did California. Responsible employers are voluntarily adopting best practices. Union training programs like Lenczowski’s are getting the word out to members about silica.

On the eve of the two-year mark since the silica rule went to OIRA, AFL-CIO President Richard Trumka — himself a former coal miner and mineworkers union leader — published a column about it in the Huffington Post. “The delay in job safety protections for silica is inexcusable and heartless,” Trumka wrote. “It’s time for industry opponents to stand down and time for the White House to stand up for working men and women.”

On Feb. 27, Harkin sent a second letter to OMB, also signed by Washington U.S. Sen. Patty Murray, and Congressmen George Miller and Joe Courtney: “This unwarranted delay is deeply concerning to us, as leaders of Congressional Committees with jurisdiction over worker safety and health, and it is dangerous for the nearly two million U.S. workers who toil at great risk of exposure to unsafe working conditions due to silica exposure.”

“Modernizing OSHA’s crystalline silica standard is a commonsense and necessary improvement to worker safety,” the letter continues. “In many cases, protections are as basic as a water hose or spray. It is intolerable that workers are not benefiting from these protections due to roadblocks in the regulatory process. Moreover, there is simply no justification for OIRA’s delay.”

Addressed to OMB deputy director Jeffrey Zients, the letter requests a “date certain” upon which that review will be completed.

The reply came from OIRA deputy administrator Dominic Mancini: “While workplace safety is a priority of this administration, it is not OMB’s practice to provide dates in advance for the issuance of agency regulation.” OIRA’s review of the silica standard, Mancini wrote, is currently ongoing. “Let me assure you that the OMB appreciates and shares your interest in worker safety and concern about exposure to crystalline silica.”