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Construction Tabs Silica Plan at $3.9B

Tuesday, August 26, 2014

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Unworkable, unaffordable and unnecessary is the construction industry’s final judgment on a federal proposal to reduce worker exposure to respirable crystalline silica.

That view has not essentially changed since 25 trade associations banded together last fall in opposition to the Occupational Safety and Health Administration's Proposed Rule on Occupational Exposure to Respirable Crystalline Silica.

The group, called the Construction Industry Safety Coalition, announced its opposition immediately, submitted comments in February, and testified against the plan at informal public hearings in March.

Silica in construction

OSHA says the rule will save nearly 700 lives and prevent 1,600 new cases of silicosis per year. The agency has warned of silica hazards since the 1930s.

Now, the coalition has detailed its objections to the rule in a 119-page submission of post-hearing comments to OSHA.

And by its reckoning, the plan is a $3.9 billion million piece of half-baked regulatory overkill.

"After thoroughly reviewing the rulemaking record developed by the Agency, the CISC continues to believe the Agency has not met its burden with respect to the rule and the construction industry and should withdraw the proposal," the coalition wrote.

The group's recommendation to OSHA: Bust the proposed rulemaking down to the status of a "pre-proposal" and start over.

The Proposal

The Labor Department has been warning about the dangers of silica exposure since the 1930s. Pre-rule work began in the early 1970s and ramped up in the mid-1990s. In fact, the one of the coalition's objections is that the OSHA is relying on a Small Business Regulatory Enforcement Fairness Act process that began 10 years before the proposed rule.

The proposed rulemaking includes two separate standards—one for general industry and maritime employment, and one for construction—that would have widespread impact on the industrial and commercial coating and abrasive-blasting industries.

The proposed rule would limit worker exposure to a Permissible Exposure Limit (PEL) of 50 micrograms of respirable crystalline silica per cubic meter of air, averaged over an eight-hour day—a sharp reduction from the current limits. The agency has also proposed an action level of 25 μg/m3, which would trigger the proposed rule’s exposure monitoring provisions.

CISC silica estimate

The Construction Industry Safety Coalition says OSHA has "grossly underestimated" the cost of full compliance with its proposed silica rule.

Exposure monitoring is one of several ancillary provisions of the proposal. Other provisions include:

  • Requirements for regulated areas or written access control plans;
  • Prohibitions on work practices on construction sites such as compressed air, dry sweeping, and dry brushing;
  • Medical surveillance;
  • Respiratory protection;
  • Training and hazard communication; and
  • Recordkeeping.

OSHA estimates that the proposed rule will save nearly 700 lives and prevent 1,600 new cases of silicosis per year, once the full effects of the rule are realized.

The agency says the proposal reflects "extensive review of scientific evidence relating to the health risks of exposure to respirable crystalline silica, analysis of the diverse industries where worker exposure to crystalline silica occurs, and robust outreach efforts to affected stakeholders."

The Opposition

The plan, released Sept. 12, 2013, drew almost immediate opposition from construction and employer group, including the American Coatings Association. The coating manufacturers have said that monitoring paint manufacturing for excess silica exposure is unnecessary and would cost $700,000—10 times OSHA's estimate. 

Silica in construction

OSHA says that most of the proposed thresholds could be met with simple engineering controls. The construction industry disagrees.

The CISC is made up of 25 trade associations from the construction and demolition industries, including commercial building, heavy industrial production, home building, road repair, specialty trade contractors and material suppliers. The group includes small, medium and large contractors, including union and open-shop general contractors and subcontractors.

The coalition says its members represent "virtually every construction trade, task and activity."

And, the group says, it is not alone in its concerns.

"In fact, a thorough review of the record and all of the comments received from all stakeholders—industry and labor—raises serious questions about the workability of the approach that OSHA has proposed for construction," the group writes in its comment documents.

"There was virtual unanimity among rulemaking particippants that OSHA needs to pursue a unique approach to construction and that the construction industry poses significant compliance challenges with respect to the regulation of crystalline silica."

New Objections

In addition to its previous criticisms, the coalition's comments note arguments and evidence raised during the public hearing.

CISC silica estimate

They include testimony by the National Institute of Occupational Safety and Health (NIOSH), which supports the rule, that said that the widely variable nature of exposures over the range of construction activities "present very complex compliance challenges."

The coalition also calls on OSHA to "show it is technologically feasible to reduce worker workers below at least 25 μg/m3." The coalition calls crystalline silica exposures in the contruction environment "highly unpredictable and variable" and says OSHA's own preliminary economic analysis shows that most construction employers would not be able to meet that threshold most of the time.

Doing the Math

Compliance becomes even more difficult with the "additive effects of multiple silica-generating tasks" occurring simultaneously on multi-employer worksites.

The coalition also says it is unreasonable to assume full compliance across a worksite, "given the extent of non-compliance with OSHA's current PEL."

The group says that OSHA overstates and fails to quantify the effectiveness of engineering controls (quoting one witness who says, for example, "it's not much more complicated than changing a bag on your vacuum at home").

The coalition also cites "significant obstacles" to the use of wet methods for silica suppression on construction worksites.

Finally, the coalition says the proposed standard would cost the construction industry nearly $3.9 billion per year, about eight times OSHA's estimate. The agency has underestimated the construction activities affected and failed to count compliance by 2.5 million self-employed construction workers, the group says.

This post was updated at 2:02 p.m. ET Aug. 26, 2014, for a correction.


Tagged categories: Abrasive blasting; Certifications and standards; Construction; Contractors; Environmental Control; Health & Safety; Health and safety; National Association of Home Builders (NAHB); OSHA; Silica

Comment from Damian Schimminger, (8/26/2014, 1:16 AM)

The numbers are unreal, 700 lives a year! Great stuff OSHA, I must tip my hat!

Comment from Randy Gordon, (8/26/2014, 2:35 AM)

Because of the low number of overall deaths due to silicosis, multiple years of data are combined to provide a more accurate estimate of the burden of this disease. Between 1996 and 2005, the age-adjusted death rate due to silicosis was 0.8 per million population.

Comment from john schultz, (8/26/2014, 9:08 AM)

With the trouble other industries have with lung issues such as second hand smoke, mesothelioma, lead dust, black lung and toxic mold, the chances that there will be huge class action lawsuits for silicosis and silicosis related health complications are on the horizon. Even if it isn't listed as a primary cause of death, doctors as expert witnesses may soon list it as a contributing factor and that will be enough to include the construction company as a negligent party, whether or not the worker wore safety gear will not be the issue.

Comment from M. Halliwell, (8/26/2014, 10:42 AM)

Interesting to see the accompanying photos with folks actually using respiratory protection...not the typical case I see (unfortunately :( ). Randy, is your 0.8/million figure compared to total population, or just construction workers? If it is total population, then there is a strong potential to underestimate the number...many occupations don't have silica exposure as a potential concern. John, I suspect you are right...and the stand against tougher silica exposure guidelines will only add to the plaintiff's case.

Comment from Andrew Piedl, (8/26/2014, 1:08 PM)

Much of the CISC argument is centered on what they claim is a gross under-estimation of what they call 'Engineering Controls'. I think that their method of estimating this cost, which assumes a sort of worst case scenario at all times on all job sites is a bit unrealistic. It is too bad that the only advice they could offer is for OSHA to start over - I think that they missed an opportunity for the industry to provide constructive criticism and input. I myself have seen and experienced a lot of unhealthy exposure - there is lots of room for improvement. One last comment: the sentence 'OSHA has been warning about the dangers of silica exposure since the 1930s' must be incorrect. OSHA has was brought into existence during the Nixon administration during the early 1970's.

Comment from Mary Chollet, (8/26/2014, 2:01 PM)

Touché, Andrew! Good catch. We should have said that the U.S. Department of Labor has been warning about silica exposure in workers since the 1930s. OSHA was indeed established in 1971.

Comment from Anna Jolly, (8/26/2014, 5:07 PM)

Ah,yes. Osha did not exist in 1930, however, the Federal Department of Labor was warning about it. There is a great video on youtube that was developed back in the day. Check out the Hawks Nest incident, Gaulley Bridge West Virginia Tunnel started in 1927. One of the biggest killers of workers in the early 1900s.

Comment from Tom Schwerdt, (9/2/2014, 12:07 PM)

Since this has been a known issue with the Feds working on regulation for 80 years - the industry response of "start over" is incredibly weak. Make a real counter-proposal which protects workers in a more cost-effective way.

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