With the recent delay in the nomination of a new Secretary of Labor and no new head of OSHA in place, we are concerned that OSHA continues to designate its workplace crystalline silica regulation as a top agency priority at a time when silica Personal Exposure Limits (PELs) are already in place and OSHA has failed to make the case for new regulations. This new OSHA regulation will have negative economic and market use impacts on the breadth of the masonry industry, affecting acquisition and handling of raw materials, manufacture and handling of the product, insurability, and installation. A rush into this rule will result in a misguided regulatory focus that can destroy the masonry industry and tens of thousands of jobs. OSHA even admitted, with its own numbers nearly a decade ago when this rule was first proposed, that the economic cost of new rules would be nearly $650 million (extremely conservative) and it would only create benefits of $232 million.
What is Crystalline Silica?
- Silica is one of the most abundant substances on earth. It is most commonly found as sand or Quartz. Silica is ubiquitous on construction sites by virtue of its presence in many commonly used construction materials including: concrete, bricks, rocks, and stones.
- Construction activities that can generate/spread silica dust include but may not be limited to: jackhammering, grinding, tuckpointing, milling, rock crushing, drywall finishing, earthmoving, sawing, and drilling.
OSHA’s Current Requirements:
- Silica is measured by a Permissible Exposure Limit (PEL), which is the maximum amount of silica to which a worker may be exposed to during an 8-hour shift of a 40-hour week.
- OSHA’s PEL for silica exposure in construction is 250 micrograms per cubic meters of air. General industry’s PEL is set at 100 micrograms per cubic meter of air.
- In construction, employers are required to ensure that employees are not exposed to silica levels above the PEL by using administrative or engineering controls. However, protective equipment (e.g., respirators) or other protective measures can be used to keep workers’ exposure below the PEL whenever implementing controls are not feasible.
OSHA’s Proposed Rulemaking Includes:
- A significant reduction of the PEL level (when control measures must be taken) down to 50 micrograms per cubic meter of air across all industries.
- The introduction of a new “action level” (where constant monitoring must begin) of 25 micrograms per cubic meter of air.
- Detailed requirements to use dust controls for specific construction operations.
- A requirement to provide respirators to workers when dust controls prove ineffective.
- The introduction of “regulated areas” where exposures may be above the PEL and worker access to these areas is controlled.
- Training requirements for workers covering operations that result in silica exposure and ways to limit exposure.
- A requirement to provide medical exams for workers and maintain their records for 30+ years.
Concerns with OSHA’s Proposed Rule:
- OSHA’s proposed crystalline silica rule is potentially the most far-reaching regulatory initiative proposed by OSHA for the construction industry.
- OSHA has not met its burden of demonstrating that the proposal is technologically and economically feasible.
- In addition to the significantly decreased PEL, OSHA’s proposal prescribes control methods that contradict existing safety practices, raising concerns that the agency did not adequately consider unique factors associated with the construction industry. For example, not only are tasks and activities highly variable and changing constantly as projects progress, but workers themselves frequently move among jobs and even employers.
- OSHA has not explained how a drastically lower PEL/action level will effectively reduce the number of silica related illnesses and deaths. The agency itself has admitted a failure to properly enforce existing standards, while the CDC has reported a 93 percent drop in silica-related deaths between 1968 and 2007.
- OSHA estimates the rule will result in approximately $1 billion a year in costs to the industry while generating $8 billion in benefits. This stands in stark contrast to industry studies that show OSHA has underestimated the cost of the proposed rule by approximately a factor of five. We now estimate a cost to the construction industry of roughly $5 billion per year.
- The coalition has serious concerns that the construction industry will be saddled with onerous new requirements at a time when most segments of the industry have not yet recovered from the economic downturn. OSHA’s proposed silica standard may substantially alter the industry’s competitive structure.
- The Construction Industry Safety Coalition is asking Congress to ask OSHA to answer very important, pertinent questions on the feasibility and need for this new rule before funding is allowed to be used for its implementation.
- Silica has been listed on OSHA’s regulatory agenda for more than a decade.
- A SBREFA panel was held in 2003.
- A proposal went to OMB in February 2011.
- The proposed new rule was announced on August 23, 2013.
- The proposed new rule was published in the Federal Register on Sept. 12, 2013. [at 78 Fed. Reg. 56274]
- OSHA’s deadline to submit comments on the proposed new rule was February 11, 2014. [Docket No. OSHA-2010-0034]
- Public hearings began March 18, 2014; Post-hearing data and information was due June 3, 2014; Final briefs, arguments, and summations were due on July 18, 2014.
- Final Rule was released by OSHA on March 24, 2016.
- MCAA and our partners in the Construction Industry Safety Coalition actively participated in the public rulemaking process every step of the way and submitted data driven comments showing that this rule is both technologically and economically infeasible.
- Final Rule was set to go into effect for the construction industry on June 23, 2017.
- On April 6, 2017 OSHA delayed enforcement of the final rule until September 23, 2017.
Letters to Congress
- Support Senator Hoeven’s Amendment to Suspend the Silica Rulemaking letter to Members of the Senate Appropriations Committee
- Notice of Intention to Appear at Informal Public Hearing letter to The Honorable David Michaels, Ph.D., MPH
- Occupational Exposure to Respirable Crystalline Silica letter to William Perry, Acting Director, Directorate of Standards and Guidance
- Occupational Exposure to Respirable Crystalline Silica letter to Jeff Buczkiewicz, President, MCAA
- Occupational Exposure to Respirable Crystalline Silica letter to The Honorable David Michaels, Ph.D., MPH