Calling the new federal silica standard “unobtainable,” as well as costly and disruptive, contractors, a construction industry coalition, the aggregates industry and others are claiming the new OSHA silica standard is a missed opportunity to improve workplace safety without adding an additional regulatory burden on employers.
Secretary of Labor Thomas Perez and Assistant Secretary of Labor for OSHA Dr. David Michaels announced March 24 that OSHA would publish a final workplace exposure standard for crystalline silica that cuts the permissible exposure limit in half. The new rule establishes two standards – one for general industry and maritime and one for the construction industry – and limits exposure to an 8-hour time-weighted average of 50 micrograms of respirable crystalline silica per cubic meter of air.
“Instead of crafting new and innovative ways to get more firms to comply with the current silica standard, which we know would save even more workers each year, administration officials appear to have instead opted to set a new standard that is well beyond the capabilities of current air filtration and dust removal technologies,” said Stephen E. Sandherr, the CEO of the Associated General Contractors of America (AGC). “Wishing firms could meet this new but unattainable standard will undoubtedly deliver many positive headlines for the administration, but it will be all but impossible for most construction firms to comply with this new rule.”
The National Stone, Sand and Gravel Association (NSSGA) and the aggregates industry say they are committed to the prevention of adverse health effects associated with the inhalation of crystalline silica and that the current exposure limit – when enforced – protects workers.
“The current exposure limit sufficiently protects worker health when fully adhered to and enforced. There is no sound science to show that lowering it to the levels mandated by this rule would meaningfully improve worker protection, but it will add tremendous expense for employers and cost jobs,” said Pam Whitted, NSSGA senior vice president of government and regulatory affairs.
The U.S. Centers for Disease Control and Prevention reports that silicosis mortality fell by more than 90 percent from 1968 to 2010 as the current PEL has been in effect. This shows that achieving full compliance with, and enforcement of, the current general industry PEL for quartz “is the best and most cost-effective way to protect silica-exposed workers,” according to NSSGA.
The U.S. Chamber of Commerce also expressed concerns with the silica rule, claiming it will be felt most by small business owners. The chamber said its comments, extensive expert submissions and testimony submitted to OSHA demonstrated that the agency has not made a persuasive case for such a "costly and disruptive" rule change.
“The new OSHA regulation is neither technologically nor economically feasible,” said Marc Freedman, executive director of Labor Policy for the chamber. “Compliance will be undermined by laboratories not being capable of measuring silica at the new specified levels and installing the control systems OSHA requires will cost hundreds of millions of dollars, that most employers, and certainly small businesses, will not be able to afford.”
Silica is a critical component in construction, manufacturing and transportation. A recent chamber report on the brick industry, titled “Regulatory Indifference Hurts Vulnerable Communities,” cited an industry analysis that OSHA’s new regulation will require almost $1 million per plant to put in place compliance equipment, with an annual cost after that of almost $225,000.
“This new regulation will mean workplaces where silica is used or encountered –foundries, glassmaking, ceramics, brick manufacturing, construction, fracking, even auto body repair shops, as well as others – will be out of compliance and forced to spend resources on unneeded mandates such as air monitoring, respirators, medical exams, restricted work areas and recordkeeping,” Freedman stated.
He claimed that OSHA’s rulemaking process for the silica regulation “displayed extreme bias and even deception.”
“During the administrative hearing, OSHA representatives conceded that critical testing data was not in the record, and routinely impeded the chamber’s ability to present its case. The agency relied on aged data and refused to consider modern protective technologies that would make compliance significantly less costly and burdensome,” Freedman added.
Groups Claim OSHA Ignored Testimony, Concerns
The Construction Industry Safety Coalition (CISC), which includes dozens of groups including the American Road and Transportation Builders Association, American Society of Concrete Contractors, American Subcontractors Association, Associated Builders and Contractors, Associated General Contractors, Construction & Demolition Recycling Association, Distribution Contractors Association, International Council of Employers of Bricklayers and Allied Craftworkers, Mason Contractors Association of America, Mechanical Contractors Association of America, National Association of Home Builders, National Demolition Association, National Electrical Contractors Association and the National Roofing Contractors Association, says that it appears, upon initial review, that the 1,772-page final rule contains some of the same problematic provisions that the CISC previously identified and shared with the agency.
“The construction industry submitted hundreds of pages of comments in response to OSHA’s proposal and as we review the final rule we will see whether OSHA has taken these comments into account in developing a standard that is workable,” said Associated Builders and Contractors (ABC) Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “ABC will remain an engaged stakeholder with OSHA in developing viable standards that will promote healthy and safe construction job sites.”
Jeff Buczkiewicz, president of the Mason Contractors Association of America, complained that at first glance, “OSHA has added several new provisions not in the proposed rule that we have not had a chance to thoroughly review and consider the impacts. Once we complete our review we will be able to be more specific about what was released.”
“NAHB has long advocated the importance of the rule being both technologically and economically feasible,” said Ed Brady, chairman of the National Association of Home Builders (NAHB) and home builder and developer from Bloomington, Ill., said his organization advocated the importance of the rule being both technologically and economically feasible. “While we’re still reviewing the final rule,” he added, “we’re concerned that it may not adequately address these issues and take into consideration real-world application.”
“We will continue our exhaustive review of this new regulation, consult with our members and decide on a future course of action that will best serve the health and safety of millions of construction workers across the country,” AGC’s Sandherr added.