Economists’ flawed argument on OSHA’s “flawed” analysis of proposed rule to protect silica-exposed workers

Two economists, funded by right-wing, university-housed think tanks, recently submitted their views on OSHA's proposed rule to protect silica-exposed workers. Michael L. Marlow with George Mason University’s Mercatus Center, and Susan Dudley of George Washington University’s Regulatory Studies Center, describe OSHA's proposal as flawed, sloppy, weak and unsubstantiated. Funny, those are some of the terms I used to describe their analyses.

Marlow offers a litany of cockamamie reasons that OSHA should scrap its proposed rule. He says, for example, that OSHA needs to consider a wider set of alternatives. Well, OSHA already describes eight different options.  I imagine the agency could come up with 20 options or 50 options, and none would satisfy Mr. Marlow. He also insists “OSHA has failed to make a sufficiently strong case for the regulation.” I guess it isn’t enough for him that tens of thousands of U.S. workers every year develop lung disease related to silica exposure, and for too many, its deadly.

The Mercatus Center scholar asserts that the most cost-effective way to protect silica-exposed workers is for them to wear respirators. I’d be curious to know for how many years Mr. Marlow has worn a respirator. I met with a group of construction workers earlier this week and they explained to me why wearing a respirator should not be the first line of defense for silica-exposed workers. They said:

“It’s hard to breathe when you wear a respirator,” “when it’s hot outside, it can be unbearable wearing a respirator,” “you can’t communicate with your co-workers,” “it hurts your face.”

They added,

“that’s why you see workers taking on and off respirators---to get some relief---but when you do that you are just sucking in the dust.”

As OSHA explains, it’s just common sense---and sound public health practice---that the first and best line of defense for a toxic contaminant is eliminating or controlling it. In the case of silica dust, that often simply requires applying water or affixing a dust collector to a piece of equipment.  A respirator, in contrast, has to fit exactly right in order to be effective, and workers need a medical exam to ensure their lungs can function properly when a respirator is worn. Those medical exams alone are going to cost more than spraying water on a silica-containing material to damp down the dust. And for certain tasks, even when appropriate controls are in place, the dust is so thick that workers still have to wear respirators in an effort to protect their lungs.

Marlow harps on the phrase “cost-effective”----that respirators are a most cost-effective way for OSHA to address silica dust. He must not know, or chooses to ignore, that OSHA’s governing statute does not mention the term “cost-effective” even once. Instead, the law instructs OSHA to develop and issue standards that

 “…most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity…”

It’s not as if OSHA doesn’t have to consider the cost of the rule. The law instructs the agency to demonstrate that the rule is feasible, both technologically and economically. OSHA more than accomplishes that requirement in the 101 pages of economic analysis published in the agency’s Federal Register notice accompanying the proposed rule. Moreover, in this silica proposal as in all OSHA health standards, the feasibility requirement trumps health protection. No matter how low the health science says an exposure limit should be, OSHA can only set a limit that is feasible.

One of Marlow’s remarks that really got my head spinning was this:

 "OSHA appears to be making some vague assertions about fairness or justice to justify its incomplete analysis.  That is, OSHA simply argues that…it is unjust or socially undesirable to have workers exposed to silica, so the regulation is justified on ethical grounds regardless of the effects on efficiency.”

For the record, the terms “just,” “justice,” “socially,” “undesirable,” “ethics” or “ethical” do not appear anywhere in OSHA’s 232-page Federal Register notice. The word “fairness” occurs a number of times, but not with respect to protecting workers’ health. It comes up in descriptions of OSHA’s activities to consider the needs of small businesses, as required by the “Small Business Regulatory Enforcement Fairness Act.”

Economist Susan Dudley’s comments are equally unsound. She suggests, for example, that OSHA’s regulatory strategy is flawed because the agency doesn’t take into account

“personal characteristics unrelated to the exposure, such as whether the individual smokes.”

Developing silicosis has nothing to do with a worker’s smoking habit. Workers who have never smoked can get the disease and die from it. (Workers who were smokers and exposed to silica dust may have more severe respiratory symptoms.)

Dudley should have consulted with physicians from the American Thoracic Society on this point, or walked down the block from her GWU office to speak to the Dean of GWU’s School of Public Health, or talked to Alan White, 48, a foundry worker who suffers from complicated silicosis.  They all would have explained that non-smokers get silicosis, too. Had Dudley talked to Alan White, he would have told her:

“I have always been in good physical condition. I don’t smoke, I don’t drink, I eat organic foods, I don’t eat much red meat. Now I know that my lifestyle probably won’t benefit my long-term health, because of the devastating effects of silica exposure.”

Dudley also argues that OSHA doesn’t know enough about the mineralogy of quartz (i.e., silica) to regulate workers’ exposure to it. Any geologist will explain that the chemical formula for quartz is SiO2, and it has a particular crystalline structure. There are also variants of quartz, which are chemically identical to quartz (i.e., SiO2), but with their own crystalline pattern. Dudley insists that OSHA:

 “must consider the complex biological, mineralogical, chemical, physical and other characteristics of quartz” before it proposes a regulation to reduce worker’s risk to it.

That sounds to me like an argument the tobacco industry would have made. I can hear their experts say: “You don’t know enough about the complex biological, chemical, and physical characteristics of cigarettes to regulate them.”

Dudley goes on to suggest that these variants of quartz might have different “potency.” She doesn’t, however, offer any health science evidence to support her “potency” hypothesis. It’s another Dudley statement that harkens back to tobacco industry:

“You don’t know enough about the specific risk of smoking Marlboros, versus Camels, versus Virginia Slims, to regulate cigarettes.”

She also argues that because deaths from silicosis have declined in the U.S. over the last 30 years, a regulation is not necessary. That’s like saying that because smoking rates in the U.S. have decreased in the last few decades that there’s no need for public health interventions to continue that trend.

Dudley’s analysis of OSHA’s rule is not the least bit convincing, but I’ll admit that I was already inclined to disregard her writings on this topic. Earlier in the year she wrote a piece for the Federalist Society entitled “Toxic sand? OSHA’s challenge in regulatory crystalline silica.” "Toxic sand?” (with the question mark) is a particularly offensive phrase. For individuals who develop silica-related disease, and for those who care for them, there’s no question that silica dust is toxic. It’s obvious that Dudley has never talked with a person who has silicosis and heard them struggling for air.

Economists Michael Marlow and Susan Dudley may get paid to ponder arguments designed to obstruct health protective regulations. They express little regard for the 2 million U.S. workers are exposed to silica dust. Too many of them are paying with their lives.