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View From the OSH Bar: Petition to Reopen Silica Rule Unneeded

Oct 09, 2017
By Adele L. Abrams, Esq., CMSP
view-osh-bar_052217

On May 3, 2017, a coalition of construction industry associations formally petitioned OSHA to begin a limited reopening of the agency’s March 25, 2016, final rule setting requirements for reduction of respirable crystalline silica in general industry, construction and maritime workplaces. The petition asks that the rule’s implementation be stayed indefinitely while rulemaking is reopened. In doing so, they reference the new administration’s Jan. 20, 2017, Regulatory Freeze Pending Review memorandum.

Reopening the silica rulemaking does not make sense at this juncture. The standard’s validity is pending before the U.S. Court of Appeals, where the same issues raised in this petition have been fully briefed by the litigants, with an opinion expected soon. Although in litigation, the U.S. Court of Appeals refused to stay the effective dates. In addition, as issued, the rule was slated to take effect for the construction sector on June 23, 2017, but OSHA already delayed implementation until Sept. 23, 2017. The general industry/maritime provisions, however, become enforceable on June 23, 2018. All these deadlines could be subject to further modification by the agency, through executive action or by Congress through appropriations constraints included in FY 2018 budget.

This judicial review should be allowed to run its course and, if the rule is upheld, it should be allowed to take effect as scheduled so that silica-exposed workers will not face further delay, disabling diseases and death. If the court finds flaws, then the matter can be remanded to OSHA for further action. In the meantime, worker protections should not be further delayed for political purposes.

OSHA’s final rule would reduce the permissible exposure limit (PEL) for RCS to 50 ug/m3 for an 8-hour time-weighted average, which is half of the current general industry PEL and is 20% of the construction/maritime limit. NIOSH recommended this exposure limit to OSHA in 1974, so it took OSHA 42 years to accept NIOSH’s advice. The rule has an action level of 25 ug/m3, which is consistent with the longstanding ACGIH threshold limit value for this Group One human carcinogen.

The rule also calls for exposure monitoring, medical surveillance of highly exposed workers, development of exposure control plans that focus on engineering controls and work practices to protect workers, rather than use of respirators where possible. Worker training on the health hazards of silica, on workplace controls and onworker rights under the medical surveillance provisions are also required. About 2.3 million workers would be protected by the final rule, eliminating 600 fatalities per year and 900 new silicosis cases. Diseases associated with exposures to silica above the revised PEL include silicosis, chronic obstructive pulmonary disease, lung cancer, renal disease and some autoimmune disorders.

As to both sides arguments over the rule, OSHA, in its brief filed March 23, 2017, maintained that the rule was feasible, supported by sound science and necessary to protect workers. Industry petitioners call the rule “unworkable and infeasible.” The issues they want addressed in the requested reopening include the feasibility issue and alternative approaches to addressing silica hazards on construction work sites. They claim that Table 1 (Specified Exposure Control Methods When Working With Materials Containing Crystalline Silica) does not provide viable compliance options for contractors and that OSHA did not adequately access feasibility for these employers whose tasks fall outside Table 1. The association litigants also want to see changes in the housekeeping restrictions, the exposure control plan requirements and the medical surveillance mandates. Finally, the petitioners claim that the rule’s economic impact on construction will be $3.8 billion per year, rather than the $700 million annual cost estimated by OSHA.

Adele L. Abrams, Esq., CMSP, is president of the Law Office of Adele L. Abrams P.C., and ASSE’s federal representative. Abrams is co-author of three ASSE books: The Safety Professional’s Handbook, Construction Safety Management and Engineering and Consultants Business Development Guide.

Originally published May 22, 2017

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