Construction Industry Continues to Raise Concerns over Proposed Silica Rule

Earlier this year the Occupational Safety and Health Administration (OSHA) proposed to amend its existing standards for occupational exposure to respirable crystalline silica, a move that has garnered some pushback from the construction industry over the past 10 months.

In response to health risks posed to workers, OSHA proposed a new permissible exposure limit of 50 micrograms of respirable crystalline silica per cubic meter of air (50 μg/m3), calculated as an eight-hour time-weighted average. OSHA also proposed other supplementary provisions, including certain methods for controlling exposure, respiratory protection, medical surveillance, hazard communication and recordkeeping.

However, many in the construction industry argue that while the attempt to limit workers’ exposure to the substance is understandable, OSHA’s proposal, as it stands, will have a significant economic impact on the industry, and that certain parts of the proposal aren’t realistic.

The National Association of the Remodeling Industry (NARI) is one of the latest of industry associations to come out against the proposed silica rule. At the end of July, NARI sent a letter to Sen. Mark Kirk, Sen. Dick Durbin and Rep. Jan Schakowsky—all of Illinois—as part of a NARI Call of Action, in which the association also asked its members to write to their respective congressional leaders. According to NARI marketing and communications manager Nikki Golden, more than 600 NARI members sent letters.

“There appears to be a significant disparity between the economic costs to industry that OSHA originally estimated ($511 million), and the economic impact that industry believes the rule will entail (estimated to be at least $3 to $4 billion annually),” NARI chief executive officer Fred W. Ulreich wrote in the letter. “The Construction Industry Safety Council has submitted extensive economic data on the cost of this rule, and this material should be considered as OSHA finalizes the rule.”

Ulreich urges Kirk to raise certain questions to Dr. David Michaels, assistant secretary of labor for OSHA, including whether the Permissible Exposure Level (PEL) OSHA is proposing is “technology feasible at the this time.”

“Specifically, are there readily available tools and equipment currently on the market that construction companies could use, which would allow them to meet the new standards?” he wrote. “If these tools and equipment are not readily available, would they be cost-prohibitive for companies, particularly small businesses, to purchase?”

Ulreich adds, “OSHA wants industry to use more water to control the spread of silica; however, there are scenarios in which water is not readily available on a jobsite, such as when it’s in a remote location. In addition, this water usage conflicts with EPA regulations on storm water runoff. How does OSHA propose to address any conflicting requirements between its Agency and EPA?”

NARI also questions the proposal’s requirement that employers would pay for and have to keep medical records of employees for more than 30 years, yet OSHA “did not want employers to have access to the information due to ‘fear of discrimination.’”

“[I]f an employee is starting to develop silicosis problems, how is an employer supposed to be able to limit their exposure and move them to a different position at the job site without adequate information?” Ulreich continued. “In addition, what happens when an employee works for a company(s) that does not comply with the new rules, starts to develop medical problems, goes to work for another company (who does comply with the rule), and then the medical issue is discovered? Which company would then be held responsible?”

According to an OSHA spokesperson, public hearings for the silica rulemaking concluded April 4, and members of the public were able to submit post-hearing comments until June 3. Post-hearing briefs were held until July 18. The spokesperson says OSHA will “review all materials in the rulemaking record and will prepare a final rule based on the evidence in the record to send to OMB for review. At this time, no target date has been established for issuing a final rule.”

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