OSHA’s new silica rule generates praise, criticism

A number of labor and industry groups, some of which have expressed strong support for OSHA’s final rule on silica, have nonetheless petitioned for the new rule to be reviewed in court.

OSHA notified the U.S. Judicial Panel on Multidistrict Litigation on April 11 that “seven petitions for review of the same final agency action” were filed in six courts of appeal within 10 days of the rule’s publication on March 25, a case document states.

The petitioners are:

1. North America’s Building Trades Unions
2. The AFL-CIO, United Steelworkers, AFL-CIO/Canadian Labour Congress, and United Automobile Workers
3. Associated Masonry Contractors of Texas DBA Texas Masonry Council and others
4. American Foundry Society Texas Region 3/Texas Chapter of the American Foundry Society and Texas Association of Business
5. Greater North Dakota Chamber of Commerce
6. State Chamber of Oklahoma
7. Georgia Construction Aggregate Association and the National Stone, Sand and Gravel Association

Petitions were set to be consolidated in the U.S. Court of Appeals for the District of Columbia Circuit. The panel selected the court at random, according to the April 12 consolidation order.

Changes

The rule’s new permissible exposure limit for respirable crystalline silica – 50 micrograms per cubic meter of air averaged during an 8-hour shift – equals what NIOSH recommended in 1974. The updated PEL is half the previous limit for general industry and 5 times lower than the previous limit for construction.

The rule covers engineering controls, protective clothing, medical surveillance and other issues. OSHA presents the rule as two standards – one for general industry and maritime and the other for construction. Highlights include:

• Mandating that employers use engineering controls and work practices to restrict worker exposure, bar access to high-exposure sites, supply respiratory protection when controls cannot curb exposures to the PEL, train employees, and offer medical exams to highly exposed workers
• Offering a table of specified controls that construction employers can follow for “greater certainty and ease of compliance” without monitoring exposure
• Spacing out compliance dates in an effort to give employers enough time to meet requirements

Supporters of the rule say it catches up with science and will better protect workers who are exposed to crystalline silica dust in industries such as construction and manufacturing. Meanwhile, critics claim compliance will be costly and infeasible. OSHA estimates the rule will save more than 600 lives, prevent more than 900 cases of the lung disease silicosis and reap $7.7 billion in benefits while costing about $1 billion each year.

Challenges

Although the AFL-CIO strongly supports the final rule on silica because “it will strengthen protections for workers and prevent unnecessary disease,” the federation believes the rule can be made even stronger, Peg Seminario, director of safety and health for the AFL-CIO, told Safety+Health. “We are deeply disappointed that the final general industry standard failed to include provisions for medical removal protection for workers for whom a health care provider recommends removal from a high-exposure job due to adverse health effects from silica,” Seminario said.

The group continues to review the rule and consult with its unions, she added.

The North America’s Building Trades Unions “vigorously” supports the construction standard, but maintains that “there’s definitely room for improvement,” said Chris Trahan, deputy director of the Center for Construction Research and Training (also known as CPWR), who spoke with S+H on behalf of NABTU. The group takes issue with the requirement that workers will have to undergo medical surveillance after at least 30 days a year of required respirator use. NABTU would prefer the timeline to be removed from the requirement, so workers participating in high-exposure tasks can be put into a medical surveillance program upon job assignment, Trahan said.

“We feel that the 30-day trigger could perhaps fuel discriminatory employment practices in that an employer may decide that, ‘I have this high-exposure task, and it’s going to take me six months to do, but I don’t want to have anyone in medical surveillance, so I’m just going to rotate people through the task for no more than 29 days and then I’m going to lay them off or fire them,’” Trahan said. “That would be the type of discriminatory employment activity we feel could be avoided if the trigger for the medical surveillance program were simply the assignment to those high-exposure tasks from the beginning.”

The United Automobile Workers supports the standard but wants a more aggressive regulation, such as a PEL of 25 micrograms per cubic meter of air or lower, when possible.

The United Steelworkers did not respond to a request for comment by press time.

Meanwhile, some industry groups want no update at all.

“The evidence has demonstrated that there is no additional health benefit to further reducing current exposure limits,” National Stone, Sand and Gravel Association President and CEO Michael W. Johnson said in a press release.

“OSHA’s rule is simply unnecessary as compliance with the existing standard fully protects workers. OSHA’s justification for this stricter regulation is not based on sound science.”

During a March 24 press conference, Secretary of Labor Thomas Perez said he was confident the Department of Labor would prevail if challenged in court. He said the department was “very deliberate and considered every comment, left no stone unturned and came down with a result that respects the science.”

Testimony

An April 19 hearing convened by the House Workforce Protections Subcommittee featured testimony from both supporters and critics of the final rule.

Testifying on behalf of the National Association of Home Builders, Ed Brady, president of Brady Homes Illinois, said the rule “reflects a fundamental lack of understanding of construction and is technologically and economically infeasible.” Brady urged OSHA to revisit the rule and “work with us to create a new rule that protects workers while also balancing the technological and economic challenges in the residential construction sector.” If the agency does not, he added, “Congress must move swiftly to stop this flawed rule.”

Brady went on to say that the rule’s “aggressive compliance regime” of controls cannot be applied in residential construction in many cases. Measuring worker exposure can be challenging, and requirements are often impractical or impossible, he said. For example, wet cutting can be unsuitable indoors and during the winter, and some jobsites may lack water service.

OSHA also has underestimated costs, Brady asserted, citing an analysis partially funded by NAHB that concluded the annual cost will be $5 billion – not $1 billion, as OSHA claims.

Janis Herschkowitz, president of Regal Cast in Lebanon, PA, testified on behalf of the American Foundry Society. Herschkowitz said compliance with the new limits in the foundry industry would be difficult.

“Given the day-to-day variation in exposure levels that are typical of foundry operations, that means we have to achieve average levels below 10 µg/m³ to avoid citations for exceeding the PEL,” she noted in her written testimony.

“To achieve that dust level, we would need to meet standards typical of cleanroom operations. Foundry processes are simply not capable of achieving those levels of dust control.”

Others at the hearing were more optimistic. “OSHA’s new silica dust standard reflects current science and technology. It will save lives,” Rep. Frederica Wilson (D-FL), the subcommittee’s ranking member, said.

The National Council for Occupational Safety and Health stated in a press release that OSHA conducted an “exhaustive regulatory process” that included input from workers, employers and experts. And the International Union of Bricklayers and Allied Craftworkers issued its own press release in support of the rule, with union President James Boland stating that members of the BAC “are committed to do everything in our power to support the silica standard for the construction industry and fight any effort to overturn or delay implementation of the rule.”