OSHA’s proposed silica regulation: Let the public hearings begin!

This week will mark the next big step in efforts to institute a federal regulation to protect workers who are exposed to respirable crystalline silica. Tuesday, March 18 will be the first of 14 days of testimony and debate about a proposed silica rule which was released in September 2013 by the Occupational Safety and Health Administration’s (OSHA). The “deadly dust” is associated with malignant and non-malignant respiratory diseases and other adverse health conditions. The hazard has been recognized for centuries, but the U.S. does not have a comprehensive rule on the books to protect the nation’s estimated 2 million exposed workers. If the proposed rule is implemented, OSHA projects the improvements will save nearly 700 lives per year and prevent 1,600 new cases of silicosis annually.

This proposed rule to protect silica-exposed workers is decades in the making. The 50 ug/m3 permissible exposure limit being proposed by OSHA was recommended in 1974 by CDC’s National Institute for Occupational Safety and Health (NIOSH). The written comment period for the proposal closed in February. The public hearing that begins tomorrow is the next step in OSHA’s rulemaking process.

More than 200 individuals filed notices in December 2013 informing OSHA of their intent to testify at the public hearing. The U.S. Chamber of Commerce and the American Chemical Council have requested 10 hours to present their testimony. Both industry trade associations have retained a team of consultants to challenge, among other things, the health effects and risk assessment supporting the proposed rule, the exposure sampling and analytical procedures for measuring respirable silica, and the feasibility of the rule. Other industry groups scheduled to testify include: the Brick Industry Association; National Association of Manufacturers; National Stone, Sand and Gravel Association; American Foundry Society; American Petroleum Institute; and the Concrete Sawing and Drilling Association.

Workers and their representatives have also requested time to speak. More than 9 hours of time has been designated for testimony from the AFL-CIO; the Int’l Union of Operating Engineers; the Int’l Union of Bricklayers and Allied Craftworkers; the United Steelworkers; and the Laborers’ Health and Safety Fund. Workers who are not members of labor unions, including several from Houston, TX and Newark, NJ, are also schedule to testify.

The medical and public health communities will also be represented at the OSHA hearing.  For example, Robert Cohen, MD, Michael Fischman, MD and Rosemary Sokas, MD, will be testifying on behalf of the American Thoracic Society, American College of Occupational and Environmental Medicine, and American Public Health Association, respectively, and have each requested 10 minutes to speak.

The information provided at the hearings is designed to complement the written comments already received by OSHA. But the procedures used by OSHA for its public hearings on proposed rules are unique among federal agencies. First, the proceedings are overseen by an administrative law judge.  Second, participants not only present their own views and evidence, but are permitted to make inquiries and cross-examine agency staff and other witnesses. Likewise, the agency staff and other witnesses can pose questions to those who testifying.

Some of the ground rules for this particular hearing were outlined in a March 4, 2014 memo by OSHA’s assistant secretary David Michaels. They include:

  • The ALJ will not permit duplicative, argumentative, or irrelevant questions. Questioners will not be permitted to use the question periods as a forum for debate or legal argument.
  • Participants may not issue subpoenas or call other persons to testify.
  • Motions to strike evidence will not be considered.
  • All participants who testify, or who participate in a panel of testifying witnesses, will be expected to respond to questions following their presentations.

Over the next three weeks, I’ll report my views on the highlights and low lights of the hearing. OSHA has yet to announce whether any of the proceedings will be webcast.

 

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