Washington Update: Delay or due diligence?

OSHA is relying on decades-old information to promulgate its silica rule – or so the argument goes.

In September 2013, when OSHA published a notice of proposed rulemaking to update its silica standards, several stakeholders – mostly representing industry – criticized the agency’s action, claiming the rule would cost too much or would have a new permissible exposure limit that could not be met.

Also criticized was OSHA’s use of a Small Business Regulatory Enforcement Fairness Act panel. Under the act, OSHA is required to conduct a small-business review of the rule and consider the panel’s recommendations. The issue was not that OSHA convened such a panel, but that the panel was convened in 2003.

“That’s more than a decade gone by. It’s pretty obvious there have been new developments,” said Dan Bosch, senior manager of regulatory policy for the National Federation of Independent Businesses, a Washington-based membership organization composed of small and independent employers.

Bosch suggests that OSHA conduct another SBREFA panel to find out what has changed – a suggestion that has support from some members of Congress. Sen. John Hoeven (R-ND) introduced an amendment to the Senate’s labor appropriations bill that would bar funding for OSHA to promulgate or implement a final silica rule until the agency:

• Conducts a new SBREFA review
• Commissions an independent study by the National Academy of Sciences to examine industry’s ability to comply with proposed exposure limits and the ability of personal protective equipment to safeguard employees, among other things

The amendment was approved and the appropriations bill passed out of committee June 25. In his comments during the markup session, Hoeven said the amendment is necessary to ensure OSHA is using the most recent information and hears concerns from small employers when promulgating rules.

“My amendment would not only ensure that the latest science is used by OSHA, but also that this agency conducts a long overdue study of the impact of current silica regulations on small businesses,” Hoeven said.

Aaron Trippler, government affairs director with the Falls Church, VA-based American Industrial Hygiene Association, said it’s “hard to say” whether conclusions from a SBREFA panel would hold up over a decade. However, in many cases, the panel simply reports that more work is needed. That doesn’t mean OSHA needs to start over, but rather that the agency should address the issues raised by the panel during the rulemaking process.

The assertion that OSHA is relying on 10-year-old data to create its rule is not entirely accurate, according to Mike Wright, director of health, safety and environment for United Steelworkers. OSHA accepted comments on the NPRM from the public until Feb. 11, 2014. Later that year, the agency convened an informal hearing to solicit more comments from the public, and offered an additional comment period after the hearing that lasted until Aug. 18, 2014. During this time, anybody could submit research, data, analysis or other facts for OSHA to consider.

What’s really going on, both Wright and Trippler suspect, is an attempt to slow down OSHA’s promulgation of the rule. Bosch put forth the idea that any rulemaking delay was not due to industry, but was internal. For example, the White House’s Office of Management and Budget held onto OSHA’s silica NPRM for review for more than two years – far longer than the 90-day limit.

However, Wright alleges that OMB’s long review was the direct result of industry lobbying. During a two-year period, 9 out of the 11 meetings OMB conducted included members representing employers or industries.

“It’s foolish to think this is about SBREFA panels or National Academy of Sciences studies – this is about delay,” Wright said.

At press time, the full Senate had yet to take up the labor appropriations bill. Given the congressional environment, Trippler doubted the budget would pass. More likely, he said, is a continuing resolution, which would carry the current year’s budget over to the next and make the amendment null and void.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.