Silica Proposal Sparks Industry Pushback

Millions of workers are exposed to respirable crystalline silica each year in many industries, including construction, mining, abrasives, tunneling, quarrying, cement and concrete, glass making, foundries and steel production, sandblasting, hydraulic fracturing operations, silica flour production, and pottery production. Prolonged overexposure can cause silicosis, lung cancer and a host of other deadly illnesses, according to the U.S Department Of Labor.

On March 18, an intensive three weeks of public hearings on the Occupational Safety and Health Administration’s proposed rule on silica began at the Labor Department headquarters in Washington, D.C. Judge Daniel Solomon of the Office of Administrative Law Judges presided as more than 150 representatives of industry, labor, the science community and government attended during the first three days.

Published in the Federal Register on Sept. 12, 2013, OSHA’s proposal aims to update inconsistent and outdated permissible exposure limits for silica and also establish other provisions to better protect workers. Members of the public who signed up can also ask questions of OSHA officials and other witnesses during the hearings.

“We look forward to receiving feedback from our stakeholders on our proposal, and we’re grateful for the continuing high level of public engagement throughout the rulemaking,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “This is an open process, and the input we receive will help us ensure that a final rule adequately protects workers, is feasible for employers, and is based on the best available evidence.”

Prior to the hearing, OSHA heard from industry loud and clear.

The Construction Industry Safety Coalition, which represents 25 different construction trade associations, issued the following statement on Feb. 11, 2013, as it filed comments regarding the Occupational Safety and Health Administration’s (OSHA) proposed Crystalline Silica Rulemaking:

“After an exhaustive analysis that involved hundreds of construction safety professionals, builders, construction managers and specialty trade contractors representing virtually every facet on the industry, it is our conclusion that the administration’s proposed new silica rule is significantly flawed and will do little to improve workplace health or safety. Specifically, the proposed rule sets a silica exposure standard that cannot be accurately measured or protected against with existing equipment and includes a series of data errors that undermine many of the rule’s basic assumptions.

“The proposed rule’s new silica exposure limit is virtually impossible to accurately measure or protect against using existing technology. For example, commercially-available dust collection technology is not capable by itself of protecting workers from the rule’s new silica exposure limit. A limitation the agency appears to acknowledge in its additional requirement that workers also wear respirators, something that would not be necessary if the dust collection technology was effective.

“Even more troubling, the proposal is rife with errors and inaccurate data that call into question the entire rulemaking process. Agency officials, for example, omitted 1.5 million construction workers from its assessment of the size of the affected workforce. The agency also did not consider the broad range of tasks and variety of settings and environments in which construction occurs. And the agency’s assessment of the rule’s cost was off by a factor of four.

“Given the lack of scientific explanation justifying the new exposure limits, the many contradictions between the rule and the realities faced in the construction industry, and the fact that agency officials made significant errors in the basic data the rule is based on, we are urging the administration to withdraw this proposed rule. We strongly urge agency officials to work with us and employee groups to craft a silica measure that will build upon the work all of us have done to reduce silica-related deaths by 93 percent during the past three decades.”

According to the law firm of Jackson Kelly, if the OSHA proposal is allowed to proceed, industry could see “widespread mandates for the installation of new engineering controls, medical monitoring, respirator use, segregated work areas, employee transfers or workplace rotations, recordkeeping, and new warnings. Both the economic and technical feasibility of these mandates are suspect, however, based on reviews already conducted by affected industries and the Small Business panel that reviewed it earlier. Perhaps as troubling, OSHA’s proposed rule may trigger a resurgence of a silica lawsuit epidemic, which largely ended years ago with the disclosure of massive fraudulent claims made in a Texas federal court. New federal mandates can be a boon for plaintiffs’ lawyers.”

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