Burned Alive at Work: American Workers Dying in Totally Preventable Accidents
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To issue a significant new rule, federal agencies must navigate a complicated process that includes multiple rounds of review — both internally and at the White House’s budget office — and public comment. New laws and executive orders have added requirements over the past three decades.
OSHA, however, faces particular challenges. The agency must show that a proposed rule is both technically and economically feasible for every industry that would be affected — a research-intensive task. If a rule could affect a significant number of small businesses, OSHA must convene a panel and allow them to raise objections to an unpublished rule draft. It is one of only three federal agencies required to do this.
OSHA is particularly vulnerable to legal challenges after issuing a standard. In general, agencies must prove to a judge that a rule isn’t arbitrary, capricious or an abuse of discretion. OSHA, however, must show its rule is supported by “substantial evidence in the record considered as a whole” — a much higher standard.
All of this means addressing combustible dust is a mammoth task. OSHA has to research the dangers of everything from the coal dust at a power plant to the wood dust at a sawmill, then show that addressing the danger would be realistic in each case. The rule would affect many small businesses, and OSHA said in a statement that it plans to convene the required small-business panel this year.
Industry groups generally haven’t opposed a rule altogether, instead arguing that the rule shouldn’t apply to them. The National Cotton Council, for example, told OSHA many of its members shouldn’t be included and challenged the accuracy of the agency’s list that included past cotton dust fires and explosions. The American Home Furnishings Alliance insisted in written comments that “no federal intervention in our industry is justified or required.”
The American Chemistry Council has taken a harder line, arguing that a new rule is unnecessary. “We believe that the accidents that have occurred might have been prevented if current OSHA regulations and relevant combustible dust consensus standards had been followed and enforced,” the council wrote to the Center.
Some see the political climate — in which the phrase “job-killing regulation” is never far from the discussion — as one explanation for the slow progress. “OSHA has its heart in the right place; we know that they’re struggling with this,” said Robyn Robbins, a safety and health official with the United Food and Commercial Workers union. “It’s just a shame that people make this political.”
Lessons from a previous dust fight
Many arguments echo those made 30 years ago during a tussle that led to a standard now widely considered a success story. In the late 1970s, a series of deadly grain dust explosions at grain elevators and similar facilities attracted national attention. OSHA announced in 1980 that it was considering a rule to regulate the handling of grain dust.
Large industry trade groups and small grain elevator operators objected vociferously. The National Grain and Feed Association called the rule“unwarranted” in comments to OSHA and said it “could have a substantial economic impact on the grain and feed industry without substantially improving the safety or health of workers.”
In 1987, OSHA issued the rule. In 2003, the agency reported evidence that, in the decade after it took effect, deaths in grain dust explosions dropped by 70 percent and injuries by 60 percent.
In 2010, the National Grain and Feed Association — the same group that had sued OSHA to try to block parts of the rule — noted this “unprecedented decline in explosions, injuries and fatalities at grain handling facilities” in comments submitted to OSHA.