Is OSHA Burying Its Head in the Sand with Proposed Silica Rule?

Health experts claim that inhaling tiny crystalline silica particles can cause respiratory impairment and may result in lung cancer. Since crystalline silica exposure is common in many occupations, the Occupational Safety and Health Administration (OHSA) proposed a rule recently that would reduce the risks of respirable crystalline silica in the workplace. However, two scholars doubt the effectiveness of OSHA’s proposal. Susan E. Dudley of George Washington University and Andrew P. Morriss of Texas A&M University argue that OSHA should encourage investigations and experimentation by employers, rather than restrict them with inflexible compliance standards. They urge a performance-based approach that will bring about a “generation of better information” and allow OSHA to implement more effective policies. Under the Occupational Safety and Health Act, OSHA must promulgate mandatory standards that address the “significant risk” certain health hazards pose in the workplace. OSHA’s proposed rule would establish permissible silica exposure limits for workers: 50 micrograms per cubic meter of air. The proposed rule also includes preferred methods for controlling exposure, communicating risk, and general medical surveillance. OSHA concludes that the benefits brought about by the proposed requirements would offset the compliance costs. Dudley and Morriss, however, question some of the assumptions underlying OSHA’s cost-benefit analysis, including whether the risks posed by respirable silica are high enough that existing standards need to be revised. The authors note, for example, that the number of silicosis mortalities is decreasing. Dudley and Morriss also argue that there are flaws in OSHA’s cost-benefit methodology. They claim that OSHA estimates the numbers of silica-related fatalities and illnesses without “fully accounting for the variation in silica potency” or “acknowledging the declining trend in silicosis.” This leads Dudley and Morriss to conclude that the agency’s cost-benefit analysis overestimates the benefits of the proposed rule. Furthermore, strict compliance requirements encourage employers to pay more attention to “compliance with procedural steps” than to “harm reduction” itself, according to Dudley and Morriss. They argue that there is no causal relationship between “specific requirements” and “reduced exposure or improved health outcomes.” This means that the compliance requirements would not necessarily result in anticipated effects. Dudley and Morriss favor two alternative regulatory approaches presented in the preamble to OSHA’s proposed rule. One alternative is to establish a permissible exposure limit standard and eliminate all of the other preferred methods and standards in the rule. Dudley and Morriss claim that this approach will encourage employers to seek “the most effective way” to meet the performance standard, therefore expanding knowledge about respirable silica hazards while still lowering risks of silica exposure. Alternatively, the authors support setting temporary silica level standards and assessing their impact prior to adopting a rule. According to Dudley and Morriss, this approach will give employers incentive to seek more information, experiment, and evaluate progress before the final rule goes into effect. Dudley and Morriss conclude that “the greatest challenge to reducing risks associated with silica exposure” stems from the need for more information. To gain enough information, particularly about silica’s toxicity under a variety of circumstances and conditions, Dudley and Morriss call for a more flexible approach that encourages employers to experiment, rather than an inflexible approach that binds employers and stifles innovation