Opposition to OSHA’s silica standard has triggered a slew of lawsuits from construction and manufacturing groups that argue the new rule will be too costly — and technologically impossible — to implement.
OSHA says the environment, health and safety rule, which targets the construction, industrial, maritime and fracking sectors, will help curb lung cancer, silicosis and other chronic diseases in workers by limiting their exposure to respirable crystalline silica. The agency finalized the rule last month.
Opponents, however, say there are no additional health benefits to reducing current exposure levels. “OSHA’s rule is simply unnecessary as compliance with the existing standard fully protects workers,” said Michael W. Johnson, president and CEO of National Stone, Sand & Gravel Association, one of the groups asking the courts to review the silica standard. “OSHA’s justification for this stricter regulation is not based on sound science.”
The new rule reduces the permissible exposure limit (PEL) for respirable crystalline silica to 50 micrograms per cubic meter of air, averaged over an 8-hour shift — one-fifth of the current maximum for the construction industry and half the current maximum for general industry and the maritime industry.
Additionally, the standard requires employers to: use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.
OSHA estimates the rule will save more than 600 lives and prevent more than 900 new cases of silicosis each year. The agency says about 2.3 million workers are exposed to respirable crystalline silica in their workplaces, including 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone, and 300,000 workers in general industry operations such as brick manufacturing, foundries and fracking.
The affected industries have between one and five years to comply with most of the requirements.
Opponents, however, argue that OSHA ignored concerns about the technological and economic feasibility of lowering the maximum exposure. OSHA estimates the rule will cost the construction industry about $659 annually; Bethesda, Maryland-based Environomics Inc., however, places the cost at about $4.9 billion per year.
The US Chamber of Commerce, which did not file a legal challenge to the silica standard but has “expressed concerns” over the rule in comments and extensive expert submissions to OSHA, points out that silica is “one of the most common materials on earth (e.g. sand)” and silica-related mortality has already declined 93 percent since 1968.
A Chamber report on the brick industry estimates the new regulation cost about $1 million per plant to put in place compliance equipment, with an annual cost after that of almost $225,000.
At least eight construction industry groups have filed lawsuits to block the new rule from taking effect. These include: Mississippi Road Builders’ Association; American Subcontractors Association of Texas; Pelican Chapter of Associated Builders and Contractors; Louisiana Associated General Contractors; Associated Masonry Contractors of Texas; Distribution Contractors Association; Mechanical Contractors Associations of Texas and Texas Association of Builders.
Construction & Demolition Recycling reports that the affiliated national organizations of these groups — the American Road and Transportation Builders Association; American Subcontractors Association; Associated Builders and Contractors; the Associated General Contractors of America; Mason Contractors Association of America; Mechanical Contractors Association of America and National Association of Home Builders — will move to join the petition.
“Silica is one of the most significant rulemaking proceedings since OSHA began developing its own standard and regulations because of the breadth in which the rule applies, meaning silica is everywhere,” attorney Michael Taylor told Business Insurance. Taylor leads the OSHA practice for Baker & Hostetler L.L.P. in Washington. “They lowered the permissible exposure level to something that's prevalent everywhere. It's a major economic impact on employers in a broad range of industries and particularly on a handful of industries like the oil and gas well industry for fracking and the construction industry.”
Photo Credit: industrial worker via Shutterstock.
Don’t miss our Environmental Leader 2016 Conference in June.
