Builders Slam U.S. Silica Proposal
A federal plan to slash silica exposure in the workplace will cost about $3.9 billion—nearly eight times the government’s estimate, the construction industry contends.
The 25 trade associations that make up the Construction Industry Safety Coalition call the plan unworkable, unaffordable and unnecessary.
The coalition's opposition to the Occupational Safety and Health Administration's Proposed Rule on Occupational Exposure to Respirable Crystalline Silica has not changed significantly since the plan was announced in September 2013.
The group immediately mobilized in opposition, submitted comments in February, and testified against the plan at informal public hearings in March.
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 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.
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:
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 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.
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."
In addition to its previous criticisms, the coalition's comments note arguments and evidence raised during the public hearing.
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.