Earlier this month, the long-awaited, three-year delayed OSHA silica proposal was published. It's a proposed regulation designed to protect workers employed in construction, foundries, glassmaking, road building and other industries from silicosis, lung cancer and other silica-related diseases.
The proposal does not cover, however, some of the most heavily exposed workers in the U.S.: those employed in the mining industry. These are the workers who routinely drill, cut and load tons of quartz, some of whom work day after day in clouds of silica-laden dust. Protections for these workers have to come from a different agency in the Labor Department: the Mine Safety and Health Administration (MSHA).
When the Obama Administration took office in 2009, MSHA indicated it would propose in April 2011 a rule to protect mine workers from respirable crystalline silica. MSHA noted in its announcement:
"Overexposure to crystalline silica can result in some miners developing silicosis, an irreversible but preventable lung disease, which ultimately may be fatal. ...MSHA will publish a proposed rule to address miners' exposure to respirable crystalline silica."
That "will publish" sounded pretty definitive to me. Moreover, MSHA suggested its work on the rule could be expedited because it
"...intends to use OSHA’s work on the health effects and risk assessment, adapting it as necessary for the mining industry."
As I wrote in November 2011, I liked the idea of MSHA relying as much as possible on OSHA's risk assessment on silica. I said:
"No point in MSHA using its resources and spending precious time to recreate documents already prepared by another agency."
Furthermore, by that time OSHA's preliminary risk assessment was completed and had been peer reviewed. That task was finished in January 2010.
Obviously the risk assessment was only one part of the comprehensive rulemaking package that OSHA had to produce. In Feburary 2011, OSHA submitted its entire package to OMB for review. We know the rest of that story---it was held there for "review" for 900 days.
In every biannual regulatory agenda since Spring 2010, MSHA indicated it would publish its silica proposal just a few months after OSHA issued its proposal. When OSHA said its proposal would be released in June 2011, MSHA said we could expect its proposed rule in August 2011. When OSHA said February 2012, MSHA said May 2012. And so on and so on. Now that OSHA's proposed silica rule has been published, why hasn't MSHA proposal even been submitted to OMB for review?
I'll certainly give MSHA some slack for missing those earlier projected deadlines. After the Upper Big Branch disaster in April 2010, the attention of MSHA staff and leadership were justifiably redirected. Several serious regulatory deficiencies were made public because of the death of those 29 coal miners, causing MSHA to focus attention on those regulatory gaps. The topics they addressed included (1) an emergency temporary standard to require mine operators to increase the percentage of rock dust (i.e., pulverized stone) used to prevent explosions in underground coal mines, (2) a regulation to revise the criteria for classifying a mine as having a "pattern of violation," and (3) a rule to clarify the requirements for conducting examination of work areas in underground coal mines.
Yet, even with MSHA's attention on these new rules, the Labor Department's regulatory agenda continued to indicate that MSHA's silica proposal would be issued within a few months of OSHA's proposal. Did all the inside politics about OSHA's silica proposal make the Obama Administration nervous about the MSHA proposal? Did MSHA get orders to keep its silica proposal under wraps?
Now that OSHA's proposal has been issued, my fingers are crossed that MSHA's proposed rule is on its way to the White House for OMB's review. I probably need more than my fingers crossed to wish that OMB's review of MSHA's proposal is completed within 90 days.
Surely after 900 days reviewing OSHA's proposed rule, OMB staff know all they need to know about silica and ways to control silica dust. But first, it's up to MSHA and the Labor Department to get the proposal to OMB.