The Small Business Review Panel Report on Crystalline Silica Exposure
After great anticipation and perhaps a little fanfare, the Small Business Review Panel report on OSHA's draft proposed standard on crystalline silica exposure was issued on December 19th. It was formally delivered to Assistant Secretary John L. Henshaw, who, presumably, will have some say in the final decision as to how his agency moves forward from here on out. Fortunately, for our industry, the report was very negative and recommends the "no-rule" option ? meaning that in lieu of proposing a whole new set of stringent standards on silica exposure, OSHA should dedicate more resources to enforcement of the existing silica exposure standard. This could be done through alliances with industry, education, outreach, research and compliance assistance.
The panel's report was the compilation of comments submitted by small business representatives within the construction, general and maritime industries. MCAA was fortunate enough to have three representatives on the panel, all of whom provided constructive criticism and suggested the "no rule" approach. In fact, throughout the 90-page report, the MCAA representatives were most often quoted. Suffice it to say, we are very proud and grateful to have had such outstanding and knowledgeable panel participants.
If there was one resounding theme among the comments, it was that OSHA had greatly underestimated the costs and complexity of the draft proposal. One panel participant (SER) estimated the costs of compliance to be approximately 50% of gross revenues or $3 million annually. I don't know many small businesses that could absorb that cost.
SERs also expressed great concern about the unfeasibility of some of the standard's provisions, particularly in a dynamic and variable construction setting where there are sometimes as many as 50 contractors on the job in any given day. Most significant among those was the establishment of a regulated area. SERs commented that, while regulated areas may be clear in a controlled environment, outside environments are difficult if not impossible to demarcate or control, and the potential for liability grows when you have many people coming on and going off the site at all times. One SER commented that the requirement for a regulated area would force his company to alter tasks to avoid exposing other workers on the job site. This is neither practical nor feasible.
The panel participants also took issue with the requirement in the draft for a "competent person" at each work site, noting: 1) resource constraints, such as facilities being located in remote areas; 2) industrial hygiene or safety contractual support being difficult to obtain; and 3) a limited number of supervisors ? who would need additional training ? available to become competent persons. In many work places, only the supervisory personnel would have the authority to control a work site and take corrective measures with respect to safety issues. Considering the burden already placed on many supervisory personnel, employers would have to hire additional personnel to perform this duty.
Finally, the panelists generally believed that the current incidence of silicosis in the United States was low and declining and that there is no convincing data indicating current risks justify the expense of meeting the requirements in the draft proposed standard. The cases of silicosis documented by OSHA were primarily from the mining industry and very outdated. It was recommended that OSHA evaluate existing state silicosis surveillance data to determine whether there are industry-specific differences in silicosis risks and whether or how the draft standard should be revised to reflect such differences. The Panel also recommended that OSHA carefully examine the technological and economic feasibility of the draft proposed standard.
But most importantly, the panel saw no need for a new rule and preferred strengthened enforcement of and enhanced outreach for the existing exposure limit. They also recommended that OSHA: 1) carefully consider and solicit comment on the alternative of improved outreach and support for the existing standard; 2) examine what has and has not been accomplished by existing outreach and enforcement efforts; and 3) examine and fully discuss the need for a new standard and if such a standard can accomplish more than improved outreach and enforcement.
In MCAA's view, the findings of the panel were right on target; the question now becomes whether or not the Department of Labor and the Bush Administration will simply ignore them and move forward with the proposed rule. Given the negativity of the findings, I doubt seriously the Department will find it possible to disregard them, particularly when they would dramatically impact the fastest growing sector of the economy ? construction (the Department of Commerce reported that construction spending in November rose 1.2% to a seasonally adjusted annual rate of $934.5 billion, the sixth consecutive monthly increase). The Bush Administration may feel confident about November, but why put forth such a flawed regulatory policy latent with economic disaster.
MCAA has been working directly with the Department's Assistant Secretary for Policy and others on Capitol Hill to make this case and won't stop until all of our concerns with respect to economic and technical feasibility are addressed.
About the Author
Marian J. Marshall was the Director of Government Affairs for the Mason Contractors Association of America.