Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.

Representatives of the construction industry, as well as general industry have petitioned Labor Secretary Alex Acosta to reopen the silica standard, workplace safeguards that would save over 600 lives and prevent more than 900 new cases of silicosis each year. This means that for every day implementation of the standard is delayed, almost two workers will die of cancer, silicosis or kidney disease, and three will contract silicosis, a debilitating disease of the lungs.

The Construction Industry petition was sent on behalf of twenty-five construction associations including the Associated Builders and Contractors, the Associated General Contractors, the International Council of Employers of Bricklayers and Allied Craftworkers, the National Association of Home Builders, National Electrical Contractors Association and National Roofing Contractors Association. The petitioners claim that “the rule as currently formulated, is unworkable and infeasible in the construction industry.”  OSHA announced on April 6 that it was OSHA  delaying enforcement of the silica standard in the construction industry for 90 days. Originally scheduled to begin June 23, 2017, enforcement is not scheduled to begin Sept. 23, 2017. The delay came in response to a  March 10, 2017 letter from the Construction Industry Safety Coalition (CISC) requesting a one-year delay in enforcement of the standard. The reasons for the delay was so that the agency can “conduct additional outreach and provide educational materials and guidance for employers.”

The industry coalition complains that the rule “essentially prohibits dry sweeping” and that the rule will cost the industry over $3.8 billion, even though OSHA estimated that it would cost around $1 billion and that its benefits would outweigh its costs by about $7.7 billion, annually. Amazingly, the petition states that OSHA Agency “never fully considered…the difficulties of controlling silica on ever-changing construction worksites, with multiple trades, and constantly shifting environmental conditions,” despite weeks of public hearings, months of written input, and more than 800 small-print pages of “preamble” (as well as more than 500 additional pages of Final Economic Analysis), detailing OSHA’s justification for the standard’s economic and technological feasibility.

The General Industry petition was sent on behalf of the American Foundry Society (AFS) and the National Association of Manufacturers (NAM) because the rules requirements for exposure assessments, regulated areas housekeeping and medical assessments will cause “significant compliance difficulties.” Like the construction petition, AFS and NAM object to the standard’s “virtual prohibition on dry sweeping.”

The objections raised by the industry to these worker protections are nothing new. Industry raised the same issues in the written comments and the hearings. And, despite the petitions’ claims,  OSHA staff carefully considered all written comments and testimony at the hearings, considered the evidence and explained why they accepted or rejected every comment. Regarding dry sweeping, for example, the original proposal for a silica standard prohibited dry sweeping completely, but after hearing industry comments, OSHA changed its mind, and the final rule actually allows for the use of compressed air, dry sweeping, and dry brushing in certain limited situations. The final standard prohibits dry sweeping only where it could contribute to employee exposure to silica dust, and contains “an exception to the prohibition on dry sweeping in such circumstances if wet sweeping, HEPA-filtered vacuuming, or other methods that minimize the likelihood of exposure are not feasible.”

History Repeats Itself

Just as the sun rises in the East every morning, every new OSHA standard generates industry claims that the sky is falling, the economy will fail, entire industries will declare bankruptcy and move overseas, and laid-off workers and their families will starve to death, homeless on the streets. And just as the sun sets every evening in the West, somehow industry accommodates to the new protections, workers lives are saved and the industry hums along, often more profitably than before.

A 1995 study by the Office of Technology Assessment (OTA) of the accuracy of the cost-benefit analysis conducted on several OSHA regulations looked at several OSHA standards that had been in effect for a number of years to determine the accuracy of cost and benefit estimates conducted by OSHA and the regulated industries. The study showed that not only does industry grossly overestimate expected costs (big surprise), but even OSHA routinely overestimated the costs and underestimated the benefits of standards. OTA found that part of the reason that OSHA overestimates costs is that the agency fails to take into account the ingenuity of American industry. American businesses have been particularly good at developing new technologies that are much more cost effective and efficient than OSHA had predicted.

What Will Acosta Do?

What will Acosta do? That’s hard to say, but he has given every indication that he will simply follow the direction of the White House, a White House that on one hand is committed to “deconstructing the regulatory state” that protects workers, and on the other hand, is trying to cozy up to building trades unions who will not be pleased if he weakens protections for the 1.85 million construction workers who are currently exposed to silica dust.

In one of the more tense moments of his confirmation hearing, Acosta refused to answer Senator Elizabeth Warren’s (D-MA) question about whether he would “promise not to weaken the silica rule in any way and not delay future compliance.”  Instead, he responded repeatedly that the President’s Executive Order directed all cabinet secretaries to review all rules within each cabinet agency and determine whether any rules should be revised. Warren responded: “Either you’re going to stand up for 150 million American workers — including people who have been poisoned by silica or you’re not!”

Senator Pat Roberts asked Acosta about his overall philosophy of regulation. Acosta’s response was not encouraging:

In one of his first statements as Secretary of Labor, Acosta assured working people that “Supporting the ability of all Americans to find good and safe jobs is a priority for President Trump and for me.” One hopes that going to work without worrying about dying of silica-related disease falls within his definition of “good and safe jobs.”

In any case, if he decides to reopen the standard the process will not be easy. It takes OSHA many years — often decades — to issue a new worker protections, and it also promises to be a lengthy process to weaken a worker protection. OSHA will have to prepare a proposal, which will then undergo review by the Office of Management and Budget. There will be months of written comments, followed by publish hearings, and more months more opportunity for written comments. OSHA will then have to consider all of the comments and determine what changes are justified.

Compliance with the law and court decisions will also be a challenge if Acosta wants to weaken worker protections. Before issuing any chemical standard, the law requires OSHA to determine that there is a significant risk to worker health at the current level, that the new standard reduces that risk, and that the new standard is economically and technologically feasible for affected industries. OSHA went to great lengths making those determinations, a process that began in 1997 — almost 20 years ago — and concluded in March 2016. In order to weaken or repeal parts of the standard, OSHA will have to turn around and prove that the standard is actually not feasible, that the overwhelming evidence showing that industry was able to comply with the provisions of the standard were mistaken, and that change in conclusions would have to stand up in court.

Acosta promised to listen to the OSHA staff and follow their recommendations, “if appropriate.”

Will the Secretary of Labor who wants to make safe jobs a priority determine that it’s “appropriate” to save the lives of 60o workers every year who will otherwise suffer painful deaths from cancer, silicosis or kidney disease?

Click here to visit Confined Space.