On May 3, 2017, a coalition of construction industry associations formally petitioned the Occupational Safety & Health Administration (OSHA) to commence a limited reopening of the agency’s March 25, 2016, final rule setting requirements for reduction of respirable crystalline silica (RCS) in general industry, construction, and maritime workplace. The Petition asks that the rule’s implementation be stayed indefinitely while the reopening of the rulemaking takes place. In doing so, they reference the new Administration’s “Regulatory Freeze Pending Review” memorandum dated January 20, 2017.
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 (100 ug/m³) and is 20 percent of the current construction/maritime limit (250 ug/m³). That is also the exposure limit first recommended to OSHA by the National Institute for Occupational Safety & Health in 1974, so it essentially took OSHA 42 years to accept NIOSH’s advice. The final 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 Action Level serves as the trigger for exposure monitoring as well as worker enrollment in medical surveillance programs.
OSHA’s RCS rule calls for exposure monitoring, medical surveillance of highly exposed workers, development of exposure control plans that focus on engineering controls and work practices (including housekeeping restrictions on the use of dry sweeping and compressed air devices unless equipped with a dust capture mechanism) to protect workers, rather than use of respirators where feasible. It also requires worker training on the health hazards of RCS, on controls used in the workplace, and on their rights under the medical surveillance provisions.
OSHA projects 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 RCS above the revised PEL include: silicosis, COPD, lung cancer, renal disease, and some autoimmune disorders. The majority of these workers (2 million) are in the construction sector, while maritime workers and those in general industry (e.g., concrete, brick, and tile manufacturing, foundries, sandblasting work, granite finishing, and hydraulic fracturing) are among the other sectors affected.
Virtually all construction materials have silica as a component, which requires silica cancer warnings and protocols for worker protection to be included on product Safety Data Sheets. Even without the new OSHA silica rule, employees must be trained already on the hazards of silica-containing products, pursuant to OSHA’s Hazard Communication Standard (29 CFR 1910.1200, which applies to both construction and general industry). OSHA can already enforce this HazCom training requirement, even while OSHA’s final silica rule enforcement is stayed. OSHA can also continue to enforce its existing PELs for silica, and can issue citations if respiratory protection is not properly used (where required), if workers using respirators have facial hair that interferes with a proper seal, or if the worker using a respirator has not been medically evaluated for respiratory use eligibility and fit tested on the make and model respirator that the worker will use at the worksite.
Although the final rule is currently in litigation, the US Court of Appeals refused to stay the effective dates. As issued, the rule was slated to take effect for the construction sector on June 23, 2017, but the agency already delayed implementation until September 23, 2017.
However, some states that run their own OSHA programs (e.g., VA and KY) are proceeding with construction sector enforcement on the original effective date. The general industry/maritime provisions 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 OSHA appropriations.
In its brief filed March 23, 2017, in the judicial challenge, OSHA maintained that the rule was both feasible, supported by sound science, and necessary to protect workers. By contrast the 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 worksites. They claim that “Table 1” 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.
DEMONSTRATE DUE DILIGENCE
It is possible that OSHA’s crystalline silica standard revisions may be delayed from the current September 2017 effective date, and it appears that MSHA’s companion rulemaking (for which a proposed rule paralleling OSHA’s mandates was due in April 2017) will be delayed indefinitely. Despite this, employers would be well-served to be proactive now in determining what their actual exposures are and learn how these exposures can be feasibly reduced through improvements in ventilation, use of water, or equipment that is effective in reducing respirable silica emissions. Demonstrating due diligence in controlling exposures to the lowest feasible levels, and supplementing engineering and work practice controls with effective respiratory protection, are critical to protect workers and to limit corporate liability.
Even absent OSHA and MSHA enforcement, the findings of the U.S. Department of Labor—that RCS exposures above the 50 ug/m³ PEL are consistent with development of silicosis, cancer, and the other enumerated illnesses—will remain in the public record of the Federal Register. These can be referenced by trial judges and juries in personal injury or wrongful death cases, as well as by workers’ compensation hearing boards, to make a causation finding. The resulting punitive and/or compensatory damages could dwarf anything OSHA or MSHA might do to an employer. ■
About the Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a nine-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, June 2017
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