May 12th, 2014 | Research | Comments Off
Silica Hearings’ First-Person Oral Testimony Develops Record Beyond Written Commentary
Dry grinding floors, pouring sand and mixing terrazzo made silica dust a constant fixture in Sean Barrett’s workplaces. Jobsites would be filled with clouds of dust when a grinder’s filter or vacuum system wasn’t functioning properly.
After years on the job, his breathing worsened—his girlfriend could hear him wheeze during quiet moments—until one day his deteriorating health reached a tipping point.
“I was everyone’s hero until June 4th,” Barrett said. “I found myself slouched over the machine and the guys on my crew all came over to make sure I was OK. I went outside to get some fresh air, and the next thing I knew I was sprawled across a pallet full of nails.”
Barrett said doctors diagnosed him with industrial asthma brought on by silica inhalation. He shared his story along with other members of the International Union of Bricklayers and Allied Craftworkers during the Occupational Safety and Health Administration’s public hearings on its proposal to tighten standards on silica exposure.
While opponents and supporters of the proposed silica rule had ample opportunity to submit written comments, OSHA’s three weeks of hearings offered a forum for shaping the rulemaking record with oral testimony and cross-examination questions in ways that went beyond remarks presented in writing. The hearings ran from March 18 to April 4.
Workers and employers who didn’t submit written comments told OSHA about their first-hand experiences on job sites that would be covered by the proposed regulation. Witnesses also had to field questions from agency officials and other hearing participants, forcing them to further explain—and at times defend—their views on the proposed rule. For those witnesses who also filed written comments, answering questions sometimes pushed them beyond the four corners of what they had previously submitted.
Moreover, testifying about the proposal in person has its own benefits, even when that testimony repeated arguments that already appeared in writing.
“From the perspective of unions and employers, oral testimony is very valuable because it is something that OSHA will remember,” Charles Gordon, a former Labor Department attorney who worked on several OSHA rulemakings, told Bloomberg BNA. “The written record for crystalline silica is not massive by some standards, but it’s still a hell of a lot documents. Oral testimony can put the focus on the most important points.”
OSHA has proposed updating silica’s permissible exposure limit for the first time, lowering it to 50 micrograms per cubic meter of air. The current limit for general industry is approximately 100 micrograms and about 250 micrograms for construction and shipyards. The proposal also requires a number of administrative measures, such as air monitoring, medical examinations and engineering controls.
Agency, Stakeholder Participation.
Aside from adding to the record that OSHA will use to justify its final rule, the testimony and evidence presented at the silica hearings could influence what the agency decides to change, add or drop as it drafts the final version of the rule.
Labor and public health organizations testified in support of the proposal and sometimes argued that certain provisions should be strengthened. They also appeared to take advantage of two signature features of the hearings—presentation of first-person testimonials and cross-examination of witnesses—more often than did industry representatives.
Industry, working almost exclusively through trade associations, voiced its vehement opposition to OSHA’s proposal. Thirty-one of the 32 trade associations that testified opposed the proposed rule at least in part, or argued it shouldn’t apply to their respective industries. Most blasted the rule and OSHA’s analyses supporting it.
Bricklayer Dennis Cahill blames the dustier conditions on the rapid adoption in the mid-1970s of masonry saws that can cut dry. Older masonry saws could only cut wet, which suppressed dust.
OSHA officials enthusiastically cross-examined witnesses. Asking for statistics, such as exposure monitoring and medical surveillance data, was one of their most frequent queries, highlighting the agency’s apparent hunger for including as much quantifiable information in the rulemaking record as possible.
Economic Costs, Human Perspectives.
The cost to business of regulating workplace silica exposure has emerged as a major point of contention as the rulemaking has progressed. OSHA submitted a proposed rule to the White House Office of Management and Budget in 2011 that was estimated to cost $1.3 billion per year and prevent 835 fatalities and 2,525 silica-based illnesses annually. OMB held the rule for two and a half years before allowing OSHA to publish a proposal in 2013 that was estimated to cost $637 million each year and prevent 688 fatalities and 1,585 silica-based fatalities annually.
At the hearings, opponents and supporters of the silica rule offered dueling economic analyses to argue that the agency had underestimated or overestimated the price of the proposal. While the economic arguments underscored the importance of regulation’s price tag, first-person testimony from workers and employers offered OSHA a human perspective on silica in the workplace that differs from spreadsheets, cost theories and dollar figures.
Bricklayer Dennis Cahill, who was diagnosed with silicosis in the mid-1990s, testified that working conditions at modern construction sites are dustier and more dangerous now than when he started working in 1959. Cahill blames the dustier conditions on the rapid adoption in the mid-1970s of masonry saws, like the Quickie or chop saw, that can cut dry. Previously, workers used hand tools or masonry saws that could only cut wet, featuring water sprays that suppressed dust as they cooled the saw blades to prevent breakage.
“I remember that as an apprentice and a young bricklayer, if there was something wrong with a wall, the foreman [would] come to me and say, ‘Cahill, get your hammer and chisel and follow me,’ ” Cahill said. “Well, a hammer and chisel doesn’t make very much dust. But a young apprentice today in a similar situation, foreman comes to him and says, ‘Cubby, get that Quickie saw and follow me.’ And he follows him right into a cloud of dust.”
Myriad Tasks for Homebuilders.
Anthony Zimbelman, owner of a small homebuilding company in Kansas, testified that the proposed rule fails to clearly and concisely explain what an employer needs to do to comply, given the myriad silica-generating tasks involved in construction. Homebuilding requires workers to deal with concrete, masonry and drywall, he said.
Zimbelman urged OSHA to develop explicit instructions detailing what employers should do when workers engage in specific tasks for certain durations in distinct circumstances, such as cutting bricks for four hours when no water is available.
“That way, you would know beforehand,” Zimbelman said. “Right now, I kind of feel like you’re making me do that. You’re making me decide what’s dangerous and what isn’t.”
Audiences for Anecdotal Evidence.
The agency considers the anecdotal accounts alongside statistics and expert analysis, Bradford T. Hammock, a partner with Jackson Lewis PC and former Labor Department attorney who worked on OSHA issues, told Bloomberg BNA.
“I don’t think OSHA has a clear hierarchy of which type of evidence is better than others,” Hammock said.
Even if OSHA doesn’t have a hard and fast rule for use of anecdotal evidence, the agency can be expected to give it appropriate weight, said Jonathan R. Siegel, professor at the George Washington University School of Law and a former attorney with the Justice Department’s civil appeal division. The agency can’t put too much weight on one anecdote that contradicts a wealth of other evidence, lest it expose the rule to an Administrative Procedure Act challenge for being arbitrary, Siegel told Bloomberg BNA.
Federal appeals court judges, who would review the rule during the seemingly inevitable legal challenge that will come when and if the agency publishes it, represent one of the other potential audiences for evidence developed at the hearing. Judges don’t evaluate the entire rulemaking record, but they do look at pieces of evidence that are cited in legal briefs, which could include first-person testimony.
Another audience—albeit an indirect one—is OMB’s Office of Information and Regulatory Affairs, which must approve the final rule before OSHA can publish it.
“OIRA focuses a lot more on the analytical information in the record, but that doesn’t mean that anecdotes aren’t important,” said Susan Dudley, who served as OIRA administrator during the Bush administration.
Dudley, director of the George Washington University Regulatory Studies Center, told Bloomberg BNA that the White House is sensitive to political concerns. Although there’s no way OIRA analysts would read through the hearing transcripts, they’d most likely learn of particular anecdotes from the hearing through other White House offices, Dudley said.
So while statistics and studies are more important to make the legal case for the rule, first-person accounts can be very valuable for making the political case, said Celeste Monforton, a public health lecturer at George Washington University.
“OSHA is trying to avoid the administration killing its own rule or Capitol Hill putting a rider on a bill that kills it,” Monforton told Bloomberg BNA. “That’s not based on the rule. That’s based on the rhetoric about the rule.”
Although press coverage of the hearings was light and attendance was sparse, the testimony can still serve as a resource for political arguments. Advocates or politicians can make rhetorical use of hearing testimony in articles or speeches, Ronald M. Levin, a professor at Washington University School of Law, told Bloomberg BNA. He said the hearings serve an “expressive function” in the rulemaking process rather than a technocratic one.
But first-person testimony has the potential for substantive value as well. Workers and employers brought a wealth of information from their experiences that can’t be captured any other way, Peg Seminario, the AFL-CIO’s director of safety and health, told Bloomberg BNA. For example, first-hand testimony is the only way for the agency to learn about workers’ reluctance to accept medical surveillance due to fears of retribution, Seminario said.
Indeed, worker testimony seemed to support the argument made by some unions and public health professionals that the final silica rule should contain job removal protections—such as those found in OSHA standards for asbestos, cotton dust and benzene—to ensure worker participation in medical surveillance.
Foundry worker Alan White, for example, testified that his coworkers probably wouldn’t join a medical surveillance program because they don’t trust the company. White said he took a “radical pay cut” when he transferred to another job after receiving his silicosis diagnosis, although his seniority with the United Steelworkers helped him obtain another transfer that made up some of the difference.
Many workers testified about the dusty conditions at their job sites. United Auto Workers members presented a video of the casting operation at a foundry in Sparta, Mich.
The video could be an asset if the rule is challenged in court, UAW health and safety specialist Darius Sivin told Bloomberg BNA.
“Having video in the record narrated by the folks who do the work will give some reality to the judges that this is what real workplaces look like absent improved regulations,” Sivin said.
Operating engineer Keith Murphy described at the hearings how other regulations can exacerbate the exposure level on construction sites. He testified about a demolition job that took down an old factory that included concrete flooring containing chlorinated hydrocarbons. Manufacture of PCBs was banned in 1979, and the chemicals are regulated by the Environmental Protection Agency.
The employer sealed the building to prevent the release of the PCBs outside the building, Murphy said.
“Controls used to protect the general public created more of a hazardous atmosphere for workers by exposing us to greater concentrations of respirable contaminants,” Murphy said.
Industry representatives presented first-hand testimony about how the proposed regulation might play out in actual work conditions.
Kevin Turner, director of safety for the East Division of Hunt Construction Group, pointed to his experience in the field when critiquing thesilica proposal’s requirement that employers set up either a regulated area or a written access control plan when worker exposure can be expected to exceed the exposure limit. These options call for limitations on who may enter the work area and mandate protections for those who do enter the area.
“Enforcing regulated areas is incredibly difficult on a multi-employer construction worksite,” Turner said. “Not every individual or employee is under the control of the contractor putting up the regulated area, and a general contractor may not be on site at all times during the project. Moreover, weather and wind can change silica exposure in many instances, requiring the employer to continuously evaluate the conditions in order to determine if the regulated area is properly designated or adjust the area to account for the changed conditions.”
Kellie Vazquez, vice president of the concrete-cutting company Holes Inc., testified about the costs the silica proposal would impose on her company. Vazquez said the company would have to hire an industrial hygienist to continually monitor exposure as well as additional employees to do the advance work needed to set up either regulated areas or written access control plans on construction sites.
But there would be little return on these additional costs because Holes Inc. already has effective worker protections in place, Vazquez said. The company already cuts wet—one of the primary methods to controlling dust exposure—and provides respirators to workers, she said.
“So I don’t see their exposure changing, but I do see a lot of cost going out the door to set up these other ancillary provisions,” Vazquez said.
OSHA’s Time Investment.
More than 200 witnesses from labor, industry and public health organizations testified and answered cross-examination questions at OSHA’ssilica hearings.
Preparing for the hearings and processing all the information that was developed will likely add at least six months to the rulemaking process, Sidney Shapiro, a law professor at Wake Forest University, told Bloomberg BNA.
“There’s no question that it has a significant drag on OSHA getting the rule out,” said Shapiro, who has written extensively on federal rulemaking and served as a consultant to OSHA.
But the silica hearings were brief compared to previous hearings that were part of major rulemakings, said Adam Finkel, executive director of the Penn Program on Regulation. Finkel, the former head of OSHA’s health standards division, noted that the agency’s hearings in 1994 and 1995 on its proposed regulation of indoor air quality and second-hand tobacco smoke lasted six months. (The agency ultimately withdrew that proposal.)
“There are hearings,” Finkel told Bloomberg BNA, “and then there are hearings.”
Record Open Until July.
OSHA isn’t finished taking stakeholder information to build the silica rulemaking record.
The agency will accept additional comment and data from hearing participants until June 3. Several witnesses promised to submit more information when they were unable to fully answer agency cross-examination questions or were asked for hard data.
In addition, OSHA will accept final briefs until July 18. The final briefs provide stakeholders the chance to draw from the thousands of pages of hearing transcripts and more than 150 exhibits entered to make their final arguments for the rulemaking record regarding what OSHA should do with its proposal to regulate silica.