“Bad math” and “slippery language” is how Rep. Mark Pocan (D-WI) characterized some of the testimony at this week’s congressional hearing on OSHA’s silica regulation. It was a hearing before the Subcommittee on Workforce Protections of the House Committee on Education and the Workforce, and scheduled as a platform for complaints about the new OSHA rule. The agency announced the rule on March 25 and it is designed to protect workers who are exposed to respirable crystalline silica.
Moans and groans about the OSHA rule were offered by representatives of the US Chamber of Commerce, the American Foundry Society (AFS), and the National Association of Home Builders (NAHB). Here’s some of what I think Rep. Pocan meant with his phrase “slippery language”:
The NAHB witness, Ed Brady of Brady Homes said the new OSHA rules will require heavy equipment used for grading and excavating to be equipped with an operator cab that is enclosed, heated, air-conditioned and HEPA filtered, and doors that seal properly. Alternatively, water or other dust suppression techniques can be used to control dust emissions.
But what Brady fails to mention in his complaint is this from OSHA:
“Evidence in the record indicates that exposures of employees during common excavation and grading operations are likely to remain below 25 mg/m3 most of the time.”
The permissible exposure limit for the rule is 50 mg/m3. NAHB is complaining about something that will not likely to come up on most residential construction jobs.
Another of the group’s objections is its reliance on water to suppress respirable silica dust. Brady used the example of cutting roof tiles:
“Imagine installing tiles on a slippery, wet roof” or in freezing weather.
But here’s what OSHA says in the final rule:
“…[there are] limited instances where the use of wet dust suppression is not feasible, particularly where its use can create a greater hazard. For example, water cannot be used ...safely where it can increase fall hazards, such as on a roof.”
NAHB's bottom line?
"We believe that Congress must take the lead and move swiftly to craft legislation that will keep this fundamentally flawed rule from taking effect.”
Ms. Janis Herschkowitz, owner of PRL Inc., testified on behalf of the American Foundry Society. She called the OSHA silica rule a “logistical nightmare” and a “threat to our national security.”
AFS asserts that rule will cost their industry $2.2 billion, which she said was more than 50 times OSHA’s estimate. Ms. Herschkowitz seemed infuriated by the rulemaking process and insisted that the Administration didn’t take the industry’s feedback into account when developing the final rule. She told Rep. Todd Rokita (R-IN):
“they absolutely, totally ignored the 50 pages of testimony we submitted.”
“Ignore” means failing to acknowledge. But when I read the preamble to OSHA’s silica rule, I see plenty of places in which the agency responds to the AFS’s feedback and costs estimate. Environomics, an economics-consulting firm, prepared an analysis for AFS which was submitted to OSHA during the rulemaking. Ignored? Hardly.
The agency mentions Environomics’ analysis at least 40 times in the preamble to the final rule. In some places OSHA notes that it revised its cost estimates based on the information provided by Environomics. In other places, OSHA explains why it disagrees with Environomics’ analyses. Some of those explanations go on paragraph after paragraph. This is how I see it: economists have differences of opinion about the assumptions they make and the data they use. And for OSHA, they aren't just considering what one commenter says, but evaluating all of the comments received. Like this example from OSHA's final rule:
“CISC/Environomics also argued that part of the productivity effect was fixed and would therefore need to be accounted for separately. … This would mean that shorter jobs would have a relatively larger percentage loss in productivity. …[But] Other commenters did not agree that there would be costs related to set up.”
OSHA then describes what it learned about this topic from other commenters and their conclusion:
“Based on the evidence in the record, OSHA determined that any time needed to set up the engineering controls required by this rule is adequately accounted for in the productivity impacts the Agency has included, particularly in light of the fact that OSHA is not making any adjustment to account for productivity improvements that are likely to result from this rule (see the discussion of comments identifying productivity improvements later in this section). Environomics’ inclusion of both a ‘‘fixed’’ productivity impact as well as a ‘‘variable’’ productivity impact, without recognizing offsetting productivity benefits identified by other commenters’, results in a significant overestimate of the productivity impact.”
At the congressional hearing, the American Foundry Society's witness asserted that OSHA ignored their cost analysis. A more accurate assessment is that the industry failed to make a convincing argument.
The Democratic members of the subcommittee showed more interest in the hearing than their Republican colleagues who called for it. Several of the Democratic members asked questions of the witnesses and offered important reality checks to all the moaning and groaning. Rep. Mark DeSaulnier (D-CA) noted that the State of California has had more protective silica rules in place since 2008. He suggested that complaints about OSHA's new silica rule sound familiar, having heard these same sorts of arguments
"...in the air quality field for 20 years when it came to sulphur, lead, MTBE. But we were able to pass regulatory investments and the affected parties came up to the standards."
Rep. Alma Adams (D-NC) reminded her colleagues of the Department of Labor's purpose:
"to improve working conditions for working people."
She wasn't buying the argument that OSHA's silica rule is unnecessary because there are fewer reported cases of silicosis than prior decades.
"I believe these generalizations are misguided especially for low-wage workers who are often workers of color. Silica-dust related illnesses have a greater impact on low-income and ethnic minority groups than on the general population and it is especially true for the Latino community."
She added that the rule:
"is a step in the right direction to address racial health disparities."
Rep. Mark Pocan (D-WI) was not much interested in hearing from Mr. Henry Chajet, the witness representing the US Chamber of Commerce. Mr. Chajet began his testimony explaining:
"silica essentially is sand" and there are hundreds of trillions of tons of sand that exists all over the world."
To that, Rep. Pocan said:
"Mr. Chajet, I know you raise a lot of concerns about sand. Honestly my guess is that as a lawyer for the US Chamber, the closest that you are going to get to exposure to sand is if you go on vacation to the Caribbean."
I didn't hear anyone mention this bit of reality: to-date seven lawsuits have been filed asking for judicial review of OSHA's silica standard. Among the litigants were trade associations represented by the witnesses at the hearing. It's in that setting that opponents of the rule will be able to make their case that OSHA ignored their views or failed to demonstrate that it is feasible.
When an employer implements new and safer working procedures, a whole raft of issues and liabilities come to light. “You mean I've been working under unsafe conditions for all these years? I'll sue!” . Since they are liable to now be shown to have had responsibility in the deaths and illnesses of a multitude of past workers by their historic work practices, employers have little choice in our legal and economic systems but to fight safety regulations tooth and nail. They cannot in any way acknowledge that they knew that there might have been or is a problem. They are required by their position to fight any evidence that suggests that there is actually a problem. Their cries of potential economic distress are not without merit; they stand to be tied up in company destroying litigation due to their past actions.
The fight for worker justice is difficult. Slavery and feudalism have not disappeared, they have only transformed themselves a bit over the centuries, IMO. Both communist and capitalist systems use the modern version of enslavement. It seems to be a universal flaw in the human condition.
I don't want to absolve employers of past transgressions, but it is useful to recognize their situation in order to better improve worker safety. We need a better educated society that recognizes the foolishness of paying billions of dollars in medical and legal costs for diseases that could have been prevented with some basic universal industrial hygiene education. We need a better educated society that can recognize the hidden costs of using our atmosphere as a gas phase sewer. And of course we need better worker safety laws that recognize modern scientific knowledge.
Some of those objections are nonsense. There is little or no need for anyone to cut tiles on the roof. In fact, while it seems more efficient to cut tiles on the roof, the fact is that using any sort of saw capable of cutting tiles on a roof is more hazardous to the worker and ends up producing a poorer job. Balance on a sloped surface and operating a power tool is a good way to get injured.
Most roofers doing tile in this area of Florida use a standard wet-cut tile saw to cut roof tiles and locate it either on the ground, if the building is a single story, or on the floor directly below the roof.
The roofer marks the cuts to be made on the tile, tosses it down to their cut-man who does the work, and gets it tossed back.
The tiles cut this way are more quickly, smoothly, accurately and safely cut than if they were cut with a hand-held power saw with the operator standing on a slanted roof. The time used to get the tiles to the saw is saved by using a bench-mounted wet saw that can be made to cut faster because it runs wet, and has a complete set of guards while being operated by a worker standing on flat ground.
My doubts related to this regulation are more related to the universal use of water to keep dust down. The water will eventually evaporate and you end up with piles of silica containing dust that become airborne if disturbed by wind or traffic. Dust, particularly the very fine dust generated by sawing with abrasive blades, typically grit discs or diamond, needs to be sequestered in a more permanent way than simply being wet with water and allowed to dry.