Forty years of futility
OSHA’s 40-years-and-counting quest to keep silica from killing workers is a study in inertia and frustration. The agency tried to tighten exposure limits for silica and 375 other substances in a 1989 rule, but a federal appeals court struck it down, saying the analyses OSHA used to justify the rule weren’t detailed enough.
It took OSHA nearly two decades to regroup, even though it deemed silica a regulatory priority in 1995 and 2002. In the meantime, evidence hardened that silica could cause lung cancer in addition to silicosis.
It’s unlikely any group of workers has felt the sting of lax silica controls more than sandblasters, who use pressurized guns to shoot sand at corroded surfaces to prepare them for painting. The sand breaks apart as it strikes metal, creating clouds of dust laced with invisible shards of quartz that scar the lungs.
NIOSH, noting available alternatives such as nut shells and sawdust, suggested in 1974 that sandblasting with silica be banned. Britain and a swath of mainland Europe had already done so by that point.
But industry groups in the United States, like the euphemistically named Silica Safety Association, composed of purveyors and beneficiaries of sandblasting, lobbied successfully in the 1970s to fend off a ban, predicting economic hardship.
In February 2011, OSHA finally sent a proposed silica rule to the Office of Management and Budget for vetting. It emerged 921 days later in 2013. OMB officials will not say why it took so long; 90 days, plus a single 30-day extension, is supposed to be the maximum unless the rulemaking agency asks for more time.
Apart from trimming the silica exposure limit to the NIOSH-recommended number for all workers, the proposed standard would require employers to control dust with methods such as water or vacuum systems and provide medical monitoring for highly exposed workers. OSHA predicted it would save nearly 700 lives and prevent 1,600 new cases of silicosis per year.
The Labor Department held 14 days of hearings in Washington, D.C., in the spring of 2014. Among the witnesses was construction worker Santiago Hernandez, who’d come to the United States five years earlier from Tlaxcala, Mexico, expecting to find safer conditions.
Instead, he said in written testimony, “things are actually much worse here than in Mexico. … The protections you receive here are useless. Employers give you a little paper mask that, when you finish, is just as dirty and dusty on the inside as on the outside.”
Dale McNabb, a tile setter from Warren, Michigan, spoke of developing “breathing problems at night” in his 20s. “By the time I was 30 I felt it more. I could hear my labored breathing and wheezing, and it shocked me.”
In 2008, when he was 42, he volunteered to use a grinder to remove thinset — a mortar made of cement and sand — from a wall over the course of several weeks. “At the end of the project I was feeling pretty bad,” McNabb testified. Tests showed “shadowing in my pleural membrane so severe that the membrane was almost opaque, and there were several lesions on my lungs.”
“When I get exposed to dust now — and not just silica dust, any dust — it feels like I have a plastic bag around my head and someone’s trying to pull it shut on me,” McNabb said. He got a job as a shuttle bus driver, then in financial services, and is thankful he can work. But the stress that followed his health crisis left a lasting mark. “In the end, silica exposure cost me my job, my health and also my marriage.”
Industry witnesses also shared doleful stories — what would happen to companies if they had to comply with the proposed rule.
The American Foundry Society, disputing OSHA’s cost estimates, said the standard would eat up 10 percent of the industry’s revenue and “threaten the viability of foundries across the country.”
The American Chemistry Council, the chemical industry’s main trade group, said the silicosis death rate has dropped more than 90 percent since 1968. Neil King, a lawyer for the council, blamed newer cases on exposures “that occurred decades ago” and more recent exposures that far exceeded the current limit — something that happens regularly, he said.
And the U.S. Chamber of Commerce, which represents more than 3 million businesses, suggested that OSHA ought to take more time on an effort already four decades old.
“We have serious concerns about this rulemaking being rushed,” said Henry Chajet, a lawyer who spoke for the chamber.
Industry groups have kept up the pressure as the rule inches toward final form. That includes pointed comments from the chamber, a lobbying powerhouse that spent $124 million to press for its members’ interests in 2014 — more than the next four top-ranked groups combined.
OSHA’s economic analysis projected that while affected businesses would spend an estimated $664 million annually to comply with the proposal — about $1,242 for the average workplace — the net benefits would range from about $2.9 billion to $4.7 billion a year, values OSHA applied to avoided disease.
In a congressionally requested 1995 review of past OSHA actions, the since-dismantled Office of Technology Assessment found that the agency tended to overestimate the cost its health rules would impose on industry — often in a big way.
Nonetheless, in March the Construction Industry Safety Coalition, composed of 25 trade groups, said its own study concluded that a new silica standard would cost construction companies nearly $5 billion a year — 10 times what OSHA had calculated for that industry. It could be “the most expensive OSHA standard ever for the construction industry,” the coalition warned.
OSHA is undeterred, Michaels told the Center. “President Obama has made it very clear he is committed to getting the silica standard out while he’s president.” A final rule is expected by the end of 2016, a Labor Department spokeswoman said.
But the Senate Appropriations Committee last week approved an appropriations-bill rider that would require more study before the rule could be issued, which would put the proposal at the mercy of the next president. And even if the rule is enacted, that may not be the final word. Industry almost always challenges OSHA standards in court, which can delay or overturn them.
Reports from public health officials, meanwhile, show that silica remains a workplace menace.
In 2012 NIOSH researchers said they collected 116 air samples at sites in five states where shale deposits were tapped with the oil and gas extraction technique known as hydraulic fracturing, or fracking. Vast quantities of high-silica sand are used to hold open fissures underground, allowing the product to flow into wells; the NIOSH team found that nearly half the samples were above the current OSHA exposure limit, creating an “inhalation health hazard.”
Almost 80 percent were above the NIOSH-recommended limit — the number OSHA wants to enact.
Another group of NIOSH researchers reported in June that silicosis deaths, after decreasing for years, are rising again. Silicosis was listed as the underlying or contributing cause of death for 88 people in the U.S. in 2011, down from 164 a decade earlier, but such deaths rose to 103 in 2012 and 111 in 2013.
Those who died during the three-year period included a dozen people younger than 45. Researchers called this “concerning,” saying it suggested that intense exposures, of the sort that sickened Chris Johnson, were occurring. Their data didn’t reflect other illnesses linked to silica, such as lung cancer, chronic obstructive pulmonary disease and kidney disease.
The five-decade plunge in silicosis deaths cited by trade groups reflects a shift from manufacturing to service jobs, NIOSH said in a statement to the Center.
“That does not mean that the risk for developing silica-related diseases … is acceptable in those that still work in dusty trades,” the agency said.
‘Scott’s not here’
Last summer, encouraged by his tolerable if imperfect state of health, Johnson tried to get back into masonry. The experiment lasted a few weeks.
“I just couldn’t do it anymore,” he said. “And then I did try to do a factory job, and that didn’t work.”
A stepfather to three boys, Johnson lifts weights, runs on a treadmill and busies himself with household projects. Six feet tall and 250 pounds, he betrays no outward sign of infirmity. Having settled his lawsuit against the Rome Housing Authority, he’s in decent financial shape and is determined to exceed his predicted life span of 45 years.
Still, Johnson said, “I’m affected a lot by my lungs now. I’m constantly getting sick.” A cold that would sideline the average person for a day or two immobilizes him for weeks. “It puts me right down to where I have no energy,” he said.
But Johnson is grateful to be alive. He’s already had more time than some workers struck with silicosis.
Scott Allen Whipps — like Johnson, a mason — died at 38 in 2006, four years after being diagnosed with the disease. His final months were agonizing.
“He coughed non-stop,” said his mother, Judy Schoon of Fergus Falls, Minnesota. “He coughed up blood. He coughed so much that he’d vomit.”
Schoon and her husband Jim, Whipps’s stepfather, witnessed it all firsthand. They’d taken in Whipps during those last months, and his bedroom was next to theirs.
“The goal was always a lung transplant, but he could never get the infection out of his body, so he couldn’t be considered for one,” Judy Schoon said.
One of his lungs turned gangrenous, and shortly after surgery, his condition deteriorated until his hold on life was “very tenuous,” according to a doctor’s report. Whipps would wake screaming in the hospital for his mother. Doctors tried another surgery to save him, to no avail. He died an hour and a half after medical personnel unhooked him from life support, his family telling him to go where the pain would not follow.
It’s been nine years. Judy Schoon still hasn’t processed her son’s early death. Losing a child, she said, is “unnatural.”
“I wake up sometimes,” Schoon said, “and think, ‘Oh — Scott’s not here.’ ”
This story was co-published with Slate.