Washington Update: OSHA hopes hearing will help create better silica rule

For nearly three weeks, OSHA listened to stakeholders’ concerns and input during a series of hearings on the agency’s proposed crystalline silica rule. The end result, the agency hopes, is a final rule that better protects workers from the potentially deadly dust.

During the public hearings, which took place from March 18 to April 4, attendees had the opportunity to provide OSHA with information that could help with its rulemaking process, as well as exchange questions and answers.

Celeste Monforton, a professorial lecturer at the George Washington University School of Public Health and Health Services, notes that although nearly three weeks of hearings is unusual, it’s not unprecedented: hearings on other rulemakings, such as the proposed Ergonomics Standard, went on longer.

Monforton participated for several days in the silica hearings and described the stakeholders in attendance as being well-prepared and having closely reviewed the proposed rule. She also said OSHA staff members were attentive, asked good questions and sought additional information. On more than one occasion, stakeholders referenced data they had collected and OSHA requested that it be submitted to the record.

“Now they have a much richer collection of information that’s going to enable them to prepare a better final rule,” Monforton said of OSHA.

However, not everyone was satisfied. Marc Freedman, executive director of the Labor Law Policy for the U.S. Chamber of Commerce, said OSHA and the administrative law judge who oversaw the hearings limited the chamber’s ability to question OSHA and proposal supporters.

Conversely, he said, OSHA had “unlimited time” to question witnesses representing the Chamber of Commerce – questions Freedman found to be redundant and argumentative.

“The chamber lodged several objections throughout the proceedings and will be filing extensive post-hearing comments detailing how we believe the hearings were not properly balanced,” Freedman said.

Monforton believes that, in general, the agency followed its own set of ground rules. Hearings are a place for the public to share information with OSHA – not for individuals to “interrogate” the agency on its rulemaking, she said.

OSHA’s final rule likely will not satisfy everyone. But Monforton suggested the hearing process affords OSHA a better opportunity to appease more people, as the agency obtains information and recommendations from industry representatives that it otherwise would not have access to.

What’s next?

The proposed silica rule, published Sept. 12, 2013, would cut the current permissible exposure limit in half to a level recommended by NIOSH 40 years ago. In addition to the recent hearings, stakeholders had five months to submit official comments after the proposal’s publication.

At press time, the official rulemaking docket showed more than 3,500 submitted comments and supplemental materials.

Now that the hearings have concluded, OSHA said it will review and analyze all written comments, exhibits and testimony.

The next step is for the agency to prepare a record summary and analysis. Then, it can move forward on the final rule’s development. This includes updating the agency’s analyses, drafting the regulatory text, obtaining clearances from the Office of Management and Budget, and preparing the rule for publication and rollout.

According to OSHA estimates, the final rule may not be issued for another two years. Monforton said potential roadblocks include Congress obstructing OSHA and the Obama administration delaying the rulemaking. (Before being published, the proposed silica rule spent more than two years under White House review.)

“It’s absolutely doable” for the final rule to come out in two years, Monforton said. “But,” she added, “the uncertainty comes in with politics.”

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