Robert R. M. Verchick is a law professor at Loyola University New Orleans and a senior fellow at Tulane University. In 2009 and 2010 he served as Deputy Associate Administrator of Policy at the U.S. Environmental Protection Agency.
It’s not easy to stare into the eyes of a dying man. But that is what David Michaels, the head of the Occupational Safety and Health Administration (OSHA), wants you to do.
A video called, “Deadly Dust,” featured on OSHA’s website, introduces Bill Ellis, a retired painter and sandblaster. After years of exposure to fine particles of blasted rock, he developed a respiratory disease called silicosis and died, leaving behind his wife, children, and grandchildren. Ellis’s final months were painful. For a silicosis patient, just drawing breath is an ordeal—like sucking air through a straw.
Thousands of laborers are exposed to the tiny stone particles, called silica, that killed Ellis. Any time workers blast sandstone, saw concrete, or cut brick, that dust is in the air. Because of the broad danger and the availability of relatively inexpensive protective gear, OSHA has released proposed rules updating worker safety standards for silica. The current rules have not been revised in over forty years.
The proposal would lower the permissible exposure limit (PEL) of silica dust from 100-250 micrograms per cubic meter of air to 50 micrograms. The rule could save nearly 700 lives and prevent 1,600 new cases of silicosis each year. After including costs of implementation, average net benefits are estimated at $1.8 to $7.5 billion per year.
The potential benefits of the rule are truly remarkable. The result seems like a dream situation, where a government agency can protect people and save money. Isn’t that what regulatory agencies are supposed to do?
You might think so. However, from the time OSHA began its Small Business Advocacy Review of the proposal, it took the agency more than nine and a half years to release its notice of proposed rulemaking. During most of that time, the process was at a standstill. OSHA eventually revived the rulemaking and submitted a draft proposal to the White House Office of Information and Regulatory Affairs (OIRA) in 2011. A long-standing executive order requires OIRA to complete its reviews within 90 days, but OIRA took its time on the silica rule. Two and a half years later, the office finally allowed the draft to be released.
Want to know what happened?
Good luck. Despite a veneer of transparency, it is very difficult to know what is going on inside OIRA’s black box. David Michaels attributes the delay to the complexity of the economic analysis and feasibility studies involved. Still, OIRA evaluates complex rules all the time, and the process is often much faster.
This life-saving rule has agency support and significant net benefits. I suspect a rule like this is delayed only when it faces high-level opposition from the White House. Political considerations have always influenced the rulemaking process, a practice that the courts appear to permit.
Our rulemaking system has moved from ramshackle to “certifiably broken.” Curtis Copeland shows that since 1994 the average review period at OIRA has soared from 31 days to 119 days. It should be no surprise, then, that health and safety rules are not taking effect. Last summer, members of Congress complained that thirteen EPA rules had been bottled up in the White House review process for more than a year. The Government Accountability Office (GAO) recently reported that OSHA now takes an average of nearly eight years to issue a health or safety standard—the length of two presidential terms. During the 1980s and 1990s, OSHA released more than 23 rules a decade. In the last thirteen years, the agency has published only eleven.
This is not to say that President and his staff have given up on protecting the American people. However, Americans today are more skeptical of government and, in particular, government regulations—even when the rules have a clear economic benefit. Now, when special interests complain about the costs of respirators for workers exposed to silica dust, our leaders roll over far too easily.
That must change. We need better ways of framing risks and benefits in public debate. We need a regulatory review process that is more transparent, more aligned with statutory intent, and more accountable to citizens. We need a rulemaking process that is more resilient from lobbyist pressure.
Just imagine if the system had worked and that OIRA had released OSHA’s silica rule by the ninety-day deadline. The updated protections could have taken effect two years earlier. According to OSHA’s numbers, that change would have saved 1,400 lives, prevented 3,200 cases of painful silicosis, and produced up to $10 billion in overall benefits.
Bill Ellis’s widow, Berlita Ellis, is even more succinct: “I work two jobs to make ends meet,” she says in the video, “I’m on Social Security and, of course, I have a pension from Bill. But it’s still very hard to make ends meet. And I think anything that can be done to help people safety-wise and health-wise should be done anywhere you work.”