Dust-Up: New OSHA Silica Rule Stirs Challenge

New OSHA rule slashes permissible exposure limits (PEL) for silica dust by 80%;
AGC claims the new targets are unattainable given current air filtration technologies;
AFL-CIO, other labor groups celebrate, citing 75-year-old battle to combat silicosis;
AGC, ABC, ARTBA, ASA, MCAA, NAHB among groups mount joint legal challenge.

by JOHN GREGERSON and ROB McMANAMY| April 4, 2016

Change is in the air, albeit clouded by vigorous dissent and now legal action.

Last week, the U.S. Occupational Health and Safety Administration (OSHA) issued its final rule on the permissible level of silica dust particles that U.S. construction workers may be exposed to over the course of an eight-hour work shift. Years in the making, the new health standard drops the PEL for respirable crystalline silica from 250 micrograms per cubic meter (μg/m3) to just 50.

OSHA estimates that the change, which takes effect in mid-2017, annually will save some 600 lives and prevent more than 900 cases of silicosis — a progressive, incurable lung disease. In all, the U.S. Dept. of Labor (DOL) estimates that 2 million construction workers annually are exposed to silica dust, a substance commonly found in stone, concrete and mortar, and linked to lung cancer when inhaled over time.

Despite the purported health benefits, however, the Associated General Contractors of America (AGC) claims the new levels are unworkable and that current technology is incapable of achieving them. Today in New Orleans, AGC and chapters of seven other national industry groups filed a petition for review of the new OSHA rule with the U.S. Court of Appeals for the Fifth Circuit. The other petitioners represent arms of Associated Builders & Contractors (ABC), the American Road and Transportation Builders Association (ARTBA), the American Subcontractors Association (ASA), the Mason Contractors Association of America, the Mechanical Contractors Association of America (MCAA), and the National Association of Home Builders (NAHB).

“Instead of crafting new and innovative ways to get more firms to comply with the current silica standard, which we know would save even more workers each year, administration officials appear to have instead opted to set a new standard that is well beyond the capabilities of current air filtration and dust removal technologies," said AGC CEO Stephen Sandherr in a statement. “Wishing firms could meet this new but unattainable standard will undoubtedly deliver many positive headlines for the [Obama] administration, but it will be all but impossible for most construction firms to comply with this new rule.”

Representing labor, AFL-CIO President Richard Trumka struck a decidedly different tone.

“The current OSHA silica standards are 50 years old and are too weak to protect workers. The labor movement has fought for these standards for decades," Trumka said in a statement. "We will continue to fight to defend these rules from the certain industry attacks that will come, so that workers are finally protected from this deadly dust.”

“The previous exposure limits were outdated and did not adequately protect workers," said OSHA chief, Dr. David Michaels, Assistant Secretary of Labor, in a statement. “Limiting exposure to silica dust is essential. Every year, many exposed workers not only lose their ability to work, but also to breathe. Today, we are taking action to bring worker protections into the 21st century in ways that are feasible and economical for employers to implement.”

Of course, industry trade groups argue that the new requirements are not "feasible" or "economical" and will wreak havoc on project schedules. For example, it is simply not practical to cordon off dusty portions of job sites to all workers except those wearing protective gear. “You would delay or lengthen the amount of time it takes to complete projects," said AGC spokesman Brian Turmail in an interview last week on National Public Radio. "The cost of building any type of construction project — because virtually every type of construction is going to create dust — will go up significantly,” he added.

Today's very brief court filing further explained the petitioners' reasoning:

The construction industry raised numerous concerns regarding OSHA’s proposal, but the agency failed to address many of these issues when promulgating the final rule. In particular, the industry presented substantial evidence that OSHA’s proposed permissible exposure limit (PEL) was technologically and economically infeasible. The petitioning groups are concerned that the agency failed to take into account this evidence and moved forward with the same infeasible PEL in the final rule. This and other final rule provisions display a fundamental misunderstanding of the real world of construction. The construction industry petitioners continue to be active participants in the rule-making process and are dedicated to promoting healthy and safe construction job sites.

Last week, members of the Washington, DC-based Construction Industry Safety Coalition (CISC), had already elaborated on those concerns. “A number of provisions that concerned us in the proposed rule have been left in the final rule,” noted Jeff Buczkiewicz, president of the Mason Contractors Association of America, Algonquin IL. "This makes us question the rules technological and economic feasibility for the construction industry."

Added Ben Brubeck, VP of Regulatory, Labor and State Affairs at ABC, "The construction industry submitted hundreds of pages of comments in response to OSHA’s proposal and, as we review the final rule, we will see whether OSHA has taken these comments into account in developing a standard that is workable.”

Of course, those on the other side of this debate argue that business owners only give lip service to worker safety, opting instead for whatever rationale is available to delay the implementation of any new regulations that seem likely to cost more money. With this in mind, to illustrate just how long the silicosis debate, itself, has been ongoing, OSHA chose to include the following quote in its online presentation of the new rule. The words were uttered in 1940 by Frances Perkins, then the U.S. Secretary of Labor under President Franklin Roosevelt.