Regulation 101

The process that OSHA undertakes to issue rules intended to protect workers is a long, complicated one. During an Oct. 5 hearing before the House Workforce Protections Subcommittee, OSHA administrator David Michaels explained to lawmakers a portion of that process as it relates to recent regulations the agency is pursuing.

Michaels stressed numerous times that the agency’s current positions on recent regulatory work are the result of years of research and experiences. Specifically, he defended updating the Crystalline Silica Standard, the work on the proposed Injury and Illness Prevention Program Standard, and the rescission of exemptions for residential construction fall protection.

Arguments about scientific data and some brief verbal sparring between Rep. Larry Bucshon (R-IN) and Michaels occurred during the hearing. The OSHA chief suggested that silica dust exposure is linked to lung cancer, and the congressman said the American Cancer Society does not list the compound as a leading cause of cancer.

“I’ve been a thoracic surgeon for 15 years, and I’ve done a lot of lung cancer surgery, and I haven’t seen one patient that’s got it from silica dust,” Bucshon said, asking for data showing that lung cancer is caused by silica dust.

Michaels, who earlier in the hearing had called the current silica standard “dreadfully obsolete,” responded with a highlight from his own résumé: “Dr. Bucshon, I’m glad you’ve asked me that question. I’m an epidemiologist.”

Individual cases of cancer cannot identify the specific cause of that cancer, Michaels said, so one must look at the field of epidemiology for the link. Studies from around the world have established a link between silica dust and an increased risk of lung cancer, according to Michaels.

When Bucshon questioned Michaels regarding the availability of the studies, the agency chief said they are available in public scientific literature. Michaels went on to detail the “robust and open” process OSHA undergoes when proposing a rule, namely providing thousands of pages of the rule’s supporting documents (often containing scientific literature) and holding a series of public meetings to discuss the rule and the science behind it. Only then does OSHA move forward and decide what should and should not be in the final rule, he said.

Under questioning from Rep. Todd Rokita (R-IN), Michaels discussed OSHA’s take on stakeholder input. Rokita said OSHA has “circled the wagon” on certain upcoming regulations and suggested that the agency fails to take in broader input in the development of those rules.

Michaels said his agency “greatly values” stakeholder input, noting the daylong “OSHA Listens” public meeting in March 2010 and several public meetings the agency has hosted across the country to gather input on an Injury and Illness Prevention Program Standard.

When comments on a proposed rule are received, OSHA examines and responds to every single one, Michaels said. Although more weight is given to experts on a topic, all comments receive more than a cursory response, he added.

OSHA’s decision to revoke the exemption that allowed residential construction workers to forgo fall protection in certain situations was partly a result of stakeholders’ input – the National Association of Home Builders and others had requested this action.

“We listen to our stakeholders, and we continue to listen to them,” Michaels said.

Subcommittee Chair Rep. Tim Walberg (R-MI) claimed OSHA is not addressing many of the concerns from stakeholders intimately affected by the agency’s decisions, and many of the stakeholders are not as involved in the process as they would like to be. In response, Michaels called attention to the delayed enactment of the rescission and the millions in grant money that has gone out to stakeholder groups to spread the word about safe work practices.

OSHA isn’t just following its own regulatory agenda regardless of anyone else’s opinions, but is proceeding based on the evidence it has, according to Michaels. Some may disagree with the direction the agency is taking, but would be hard-pressed to accurately say that OSHA is not being thorough in its duties.

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