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Associations File Suit Over Silica Rule

Thursday, April 7, 2016

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A coalition of construction industry associations taking issue with the new Occupational Safety and Health Administration silica rule are taking their concerns to a federal appeals court.

Eight groups, including affiliates of the Associated Builders and Contractors Inc., the National Association of Home Builders and the Associated General Contractors of America, have filed a petition Monday (April 4) in the U.S. Court of Appeals for the Fifth Circuit.

The organizations argue that the federal agency did not fully address their concerns about the rule’s impact on the construction industry.

Rule Made Final

The "Occupational Exposure to Respirable Crystalline Silica" rule, amending silica exposure regulations for the first time since 1971, was made final March 25.

blasting work
NIOSH

Exposure to airborne silica dust occurs in operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other stone products and in operations using sand products, such as in glass manufacturing, foundries and abrasive blasting.

The rule represents the fruition of decades of research and a lengthy stakeholder engagement process—including the consideration of thousands of public comments, according to U.S. Secretary of Labor Thomas E. Perez.

In terms of permissible exposure limits, the updated rule reduces the permissible exposure limit for crystalline silica from 250 micrograms per cubic meter of air, averaged over an eight-hour shift—to 50 micrograms. The regulation also has other provisions aimed at protecting workers, such as requirements for exposure assessment, methods of controlling exposure, recordkeeping, hazard communication, respiratory protection and medical surveillance.

OSHA warns that exposure to respirable crystalline silica can cause silicosis, lung cancer, other respiratory diseases and kidney diseases.

The final rule is written as two standards, one for construction and one for general industry and maritime.

Both standards take effect on June 23, after which industries have one to five years to comply with most requirements.

Voicing Concerns

The groups worry that rule compliance is beyond the capabilities of current technology.

In seeking the court’s review, the industry partners say they are deeply committed to providing a safe construction environment; however, they have “significant concerns about whether this new rule is technically feasible, given that the agency's final permissible exposure limit is beyond the capacity of existing dust filtration and removal technology,” according to Stephen E. Sandherr, CEO of the Associated General Contractors.

Sandherr added that while the administration did make a number of the changes to the final rule, including dropping requirements for contractors to establish regulated areas that would block access to parts of construction sites where dust is being generated, the AGC continues to feel that this final rule is not acceptable in its current form.

table

The final rule is written as two standards, one for construction and one for general industry and maritime.

Echoing those remarks, the Associated Builders and Contractors said the agency’s rule demonstrates a “fundamental misunderstanding of the real world of construction.”

About Silica Exposure

Silica is one of Earth's most common minerals, found in stone, rock, brick, mortar and block. Exposure to airborne silica dust occurs in operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other stone products and in operations using sand products, such as in glass manufacturing, foundries and abrasive blasting.

According to OSHA, about 2.3 million men and women are exposed to respirable crystalline silica in their workplaces, including two million construction workers who drill and cut silica-containing materials such as concrete and stone. An additional 300,000 workers in operations such as brick manufacturing, foundries and hydraulic fracturing also face exposure.

OSHA estimates that when the final rule becomes fully effective, it will save more than 600 lives annually and prevent more than 900 new cases of silicosis each year.

Industry groups previously estimated the rule will cost the industry nearly $5 billion per year, about $4.5 billion per year more than OSHA’s estimate.

The petition starts what is likely to be a lengthy legal challenge to the measure, Sandherr said, noting that the association would continue to work with Congress and the next presidential administration to seek measures to improve the rule in a way that “truly benefits the health and safety of our workforce.”

   

Tagged categories: Associated Builders and Contractors Inc. (ABC); Associated General Contractors (AGC); Government; Health & Safety; Health and safety; Lawsuits; North America; OSHA; Permissible exposure limits; Regulations; Silica

Comment from Car F., (4/7/2016, 10:39 AM)

"beyond the capabilities of current technology" not so. There are many ways to prevent and control exposure to silica dust. Yes, it can be cumbersome, costly and not easy to implement. The problem is that industry is used to put a very low value in protecting human life and the environment. Come on, get on with it and stop whining and obstructing progress.


Comment from craig bladow, (4/7/2016, 11:32 AM)

We are biggest sandblasting contractor in South California, we could try to implement all required protections probably in 50% of our projects, but our cost will up be very significantly. And client end up paying to it. We been in business for over 60 years - doing only silica sand blasting and didn't have a single case of related to silica diseases.


Comment from Tony Rangus, (4/7/2016, 7:24 PM)

I wonder if this coalition of construction industry associations made similar arguments years ago concerning asbestos, benzene, trichloroethylene, etc. Reeks of "the sky is falling" and "lions and tigers and bears, oh my". In my opinion, the track records of many of the contractors here in the USA, when it comes to putting employee safety first, is dismal. All we here is it will cost a ton of money to comply, and they provide cost breakdowns to make their point. As always, in their view it is strictly a cost versus benefit comparison between profits and lives.


Comment from John B, (4/8/2016, 6:10 AM)

It's interesting how the USA is one of the last countries in the world to do anything about silica sand. Most other countries have totally banned the use of silica sand for sandblasting, even third world countries - it is illegal to use sand in Europe, Australia, etc, and here we are only talking about restricting it,. Not banning it. If our blasters actually knew the facts of what they were dealing with they would never blast with it. Many people say they will be safe because they have a helmet on, but when you take your helmet off, the sand particles stay in the air for 30 minutes, let alone the particles that stay on the clothes and go home with the worker. Remember the asbestos cases where it was actually the wife of the worker who got asbestosis from the dust she inhaled when washing her husbands clothes. I've been in this industry for 40 years and have seen first hand several people dying from silica sand exposure.


Comment from B Brown, (4/9/2016, 5:06 PM)

Silica and asbestos are both inert compounds. The particle size is toxic not the compound. Fine dust kills and changing the color of the dust does not eliminate the hazard. Since long before silica dust thousands of people have died for centuries breathing coal dust. “There may be no safe threshold for fine particulate matter and the effects are linearly related to concentration.” (World Health Organization & Australian National Pollution Inventory) By that definition only clean steel grit and maybe garnet would qualify. I'd encourage all that work with abrasives to take the time to look carefully after blasting with a different color abrasive and you will see the fine particulate hanging around for hours in a confined area. But it isn't silica. Working in that area without a well fitted HEPA respirator is a very bad idea. So is wearing that clothes to your home. Slagging coal and and copper ore does not eliminate the dust hazard and depending on the source of the ore slagging concentrates the minerals including heavy metals 10 fold. Some qualify as a hazardous waste before use. Also a potential for exposure to the people blasting with it. 30 years ago such material was legally sold in the US as a PRODUCT leaving the end user with spent abrasive and a hazardous waste. Besides there are no rules requiring an employer to test the work site for other toxins they don't know are in the abrasive. Expect the dirty ore slags are still in use in various parts of the world. Even probable that some applicators here in the US still use it. Particularly where the waste is left on the owners property or floats away at sea. Testing each lot of the stuff that is labeled safe can be expensive that and lack of knowledge probably explains why we have seen no discussion titled counterfeit abrasives. That and the health effects typically do bot show up for 20 or 30 years. I also suspect some of the alternate abrasives in use would not meet the new 50 micrograms criteria for fine particulates even though that inert slag contains no silica.


Comment from M. Halliwell, (4/11/2016, 12:01 PM)

B Brown, you're quite right....it's the small particles the body can't get rid of with when they get caught in the lungs that lead to asbestosis, silicosis, mesothelioma and similar lung diseases. Now, when you add the actions by associations / coalitions to the bureaucracy, is it any wonder that OSHA's regulations are so far behind? Seems the mantra when it comes to safety (both in government and business) is "oppose, oppose, oppose" until you have run out of ways to oppose it....making money as much as you can along the way by non-compliance. As for compliance being "beyond the capabilities of current technologies"? Seems a little bit like grand-standing to me. There are lots of ways to protect workers from particulates...some fairly inexpensive (assuming the workers and supervisors will use it) and some fairly costly...but it takes a commitment to actually deal with it regardless. Perhaps if there were more companies and individuals being charged (rather than just individuals dying because of the shortcuts and non-compliance) then safety would be less likely to be viewed as a cost of business (and one that's looked at by some as more expensive than worker's lives). It's too bad that safety gets lip-service in North America...and that needs to change.


Comment from Keith Gabbard, (4/11/2016, 4:54 PM)

Silica and asbestos both cause scarring of the lung tissue - the shape of the silica fibers in both products causes the lung tissue to retain some of the fibers with commensurate scarring. The lung tissue reacts differently to these silica type particles as compared to other non-silica dust particles - however all dust should be minimized. The new OSHA Regulation for Silica Dust dictates that Engineering controls be the first line of defense against silica exposure & from Abrasive Blasting perspective means to avoid Abrasive Blasting with Silica Sand (Quartz) as an obvious way to comply. Some level of Trace Heavy Metals are found in virtually every mineral (including Garnet) and slag abrasive to some extent - has nothing to do with the OSHA Regulation for Airborne Silica exposure. There are existing PEL's for various Heavy Metals already established. Haz Waste generation is in the EPA realm of Regs and has to do with landfill limitations. From the standpoint of this OSHA Airborne Silica Regulation relative to Abrasive Blasting - not using Silica Sand for steel prep work should make compliance relatively straightforward.


Comment from Kellie Allen, (4/13/2016, 1:14 PM)

My grandfather was a sandblaster from the 1940s - 60s. He did have silicosis (died age 85 and was not a cause of death) and he wore a bandana as respiratory protection. Doing it any differently was not considered manly, and the air hoods were quite uncomfortable (antique diving helmets). My father, who always wore respiratory protection and sandblasted with silica sand for 40 years did not have silicosis. My company eliminated the use of silica sand from its operations when all of this discussion started in the 1990s, knowing our founder had contracted the disease. We want our employees to have a good quality of life in a safe work environment. These days our clients have banned silica sand on their properties, but we were well ahead of the curve. My numbers show it costs twice as much to use other abrasives and you might lose some productivity. Surely, those costs will escalate as abrasive manufacturers become aware of these new laws. However, advances have been made in the sandblasting industry technology: chief among them is the decade old dustless sand pots. You can stand right next to a sandblaster and not see one spec of dust being generated. This is superior to slurry blasting which creates a tremendous mess, etc. So there are alternatives that are well worth the investment. For those in other construction trades such as concrete cutters, my prediction is they still won't control the dust unless the facility owners demand it. Sadly, many facility owners live under the microscope of cost control and lack the personnel to police the job sites for this type of compliance. It is often true OSHA compliance only happens after some poor soul(s) lose their life. Since the disease onset can be decades after exposure, the only recourse the worker will have is some form of workers comp claim, IF the employer remains in business. The best approach is to educate the workers, a difficult task as many of them need their paycheck and will worry about 20 years from now when it happens.


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