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By Dawn Killough
August 21, 2017
Back in April this year, OSHA announced it was delaying the enforcement of the new silica exposure rule for six months. This moved the effective date of the rule from June 23 to September 23. The move has drawn both criticism and praise from various industry groups.Why the Delay?President Trump ordered that some of the new regulations passed during the Obama administration be reviewed before they are put into practice. The delay of the silica rule is seen by many as a reaction to this order. Also, the new Secretary of Labor, Alexander Acosta, was confirmed in late April, which was after the announcement had been made.According to OSHA’s announcement, the delay allowed more time for employers to develop guidance and to train the staff to enforce the new rule. Many are calling for a one-year freeze on enforcement, while others are upset over even the current three-month delay.More Guidance NeededThe Construction Industry Safety Coalition (CISC), which is fighting the silica rule in federal court, advocates for a one-year suspension of enforcement. In a letter to then-acting Labor Secretary Edward Hugler, the Coalition stated that many employers were finding it impossible to meet the requirements, and that OSHA failed “to issue meaningful guidance on several key aspects of the standard.”
The CISC consists of 25 construction, trade and related organizations, including Associated Builders & Contractors, the American Road & Transportation Builders Association, Associated General Contractors of America, and the National Home Builders Association.Another group fighting the rule at court, the National Stone, Sand and Gravel Association (NSSGA), says that the new rule goes too far, too fast. The aggregates industry must currently reduce silica levels to 100 micrograms per cubic meter under US Mine Safety and Health Administration rules. The new OSHA rule places the limit at 50 micrograms. The NSSGA thinks the mining industry’s limit is more reasonable and mentions that incidences of silicosis—a chronic, progressive lung disease that can lead to lung scarring and difficulty breathing—have dropped 95 percent over the last 40 years.“A lot of construction employers are not misrepresenting the facts when they say compliance with the new standard will not be feasible in some, potentially many, settings,” said Howard Mavity, an Atlanta-based partner at law firm Fisher & Phillips LLP, noting the concerns have been previously rejected by OSHA and union representatives.“I’ve watched good-faith research and experimentation by different universities working with forward-thinking construction companies that want to do the right thing, and they are finding in numerous settings that they can’t comply.” A challenge for employers will be to manage silica exposures in situations where multiple trades are working in one area and one firm is creating a silica hazard that exposes others, said Andy Giza, assistant Vice-President and senior loss control consultant with Lockton Cos. LLC in Scottsdale, Arizona.On the other hand, the National Asphalt Pavement Association (NAPA) and the American Concrete Pavement Association (ACPA) say their members are working on meeting the new standard and believe it should be enforced. “The compliance issue is not insurmountable,” says Bill Davenport, ACPA Vice-resident of Communications. “I don’t think I’ve heard anybody (among ACPA membership) say that it’s going to be overly burdensome.”Carter Ross, NAPA Vice-President of Communications, said the delay is a good thing if it leads to more compliance guidance for the industry. “There may be parts of the rule that are contentious,” Ross says. “But, all in all, the rule is there to make sure employees are not overly exposed to a known human carcinogen.”Consequences of a DelayAs it stands right now, enforcement of the new silica rule is stayed, it has not been overturned. Employers still need to look for ways to meet the exposure requirements so they are ready when enforcement takes effect on September 23. Companies also should continue preparing to implement the standard’s other requirements, including exposure assessment, medical surveillance, and employee training.(EHS) The AFL-CIO claims the delay could have “deadly consequences” for workers, with AFL-CIO President Richard Trumka commenting: “The labor movement has fought for decades to win this lifesaving rule, and any further delay is unacceptable. The longer the Trump administration delays, the more workers will suffer and die. This action alone will lead to an additional 160 worker deaths. We will do everything possible to make sure this commonsense rule is not taken away. Workers’ lives are at stake.”Jessica Martinez, Co-Executive Director of the National Council for Occupational Safety and Health (National COSH), noted that the standard is backed by “solid scientific evidence and the experience of workers who have suffered cancer, silicosis and other life-threatening diseases. There is no reason for delaying this rule, which will save more [than] 600 lives each year.”
Marcy Goldstein-Gelb, Co-Executive Director of National COSH says, “Tools to wet down silica dust and vacuum it up are practical, affordable, and readily available. The new standard was announced more than a year ago and employers are aware of their responsibilities to limit worker exposure. To protect workers, the time to act is now.”In fact, many tool manufacturers have introduced new lines this year in response to the silica rule.
The debate over whether the rule is too strict or not strict enough will probably continue for a while. Only time will tell what impact it truly has on the industry and the health of its workers.
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