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Feb. 11 --As the public comment period for the Occupational Safety and Health Administration's proposed silica rule closed Feb. 11, trade associations and businesses submitting comments appeared virtually unanimous in their opposition to the agency's proposal.
With few exceptions, industry commenters claimed that OSHA failed to show that the proposal is necessary, economically practical or technologically feasible. Critics of the rule deployed a variety of arguments, including that the agency underestimated costs, used old data, failed to adequately study affected industries, relied on false assumptions, contravened its procedural requirements and provided too little evidence to support its proposal.
“With silicosis in long-term decline, OSHA had a duty to explain clearly and logically how and why its proposed rule is necessary and the appropriate solution for the limited, remaining silica-related disease cases,” the U.S. Chamber of Commerce said in its comments. “Instead, OSHA built its proposed rule on a chain of assumptions, did not properly analyze the most recent and current mortality and exposure data, and it failed to research or analyze the impact and value of this proposal on the hardest-hit industries.”
Although the deadline has passed, there is generally a lag time between when comments are submitted to the docket and when they are publicly available. Comments from large groups such as the National Association of Home Builders, Laborers' International Union of North America, American Petroleum Institute and American Chemistry Council have yet to be posted to regulations.gov, the federal government's online rulemaking portal.
But the initial 400 substantive comments provide a snapshot of stakeholder reaction to OSHA's proposal to regulate respirable silica, which hews to the familiar pattern of industry opposing the new rule and labor and public health organizations favoring it.
The proposed rule would update the permissible exposure limit for the first time since it was adopted in 1971, lowering it to 50 micrograms of silica per cubic meter of air. The current limit for general industry is approximately 100 micrograms and about 250 micrograms for construction and shipyards.
In addition to setting a new exposure limit, the proposed rule also includes provisions for measuring silica exposure, using effective methods to reduce exposure, providing medical exams to workers with high exposures and training workers about silica hazards.
OSHA said 2.2 million workers are exposed to respirable silica in their workplaces, with 1.85 million in construction. The agency estimated the proposed rule would save nearly 700 lives per year.
The close of the comment period marks a significant milestone in OSHA's long-running campaign to set a new workplace standard for silica, which has been on its regulatory agenda since 1997.
OSHA must respond to the criticisms and recommendations contained in the public comments. The agency will include its responses--and probably some of the comments in support of its proposal--in the preamble to the final rule as an explanation for how it arrived at its ultimate version.
The agency has several audiences for its explanation, Jeffrey Lubbers, an administrative law professor at American University's Washington College of Law, told Bloomberg BNA Feb. 10. OSHA will be addressing the staffers at the White House Office of Management and Budget, who will review the final rule before it is published; federal judges, who might preside over a legal challenge of the standard; and those who must comply with the new standards, Lubbers said.
The responses, both for and against the rule, varied widely in length, sophistication and tone. For example, compliance officer Philip Rice of Fann Contracting Inc. submitted a 30,000-word response, critically answering most of the 87 questions that OSHA included in the proposed rule's preamble.
And then there were commenters, like private citizen Pat Cochran, who took a more concise approach. In a 53-word comment, Cochran said that silica is unsafe to breath and there's no sense arguing about it.
The strongest industry opposition to the rule thus far seems to have come from the construction, foundry and masonry industries.
The American Subcontractors Association Inc. called on OSHA to immediately withdraw its proposed rule because it is “so fundamentally flawed that it cannot be remedied through the current rulemaking process.”
The rule is poorly designed for the construction industry, the subcontractors association said. For example, it said routine medical surveillance of workers is impractical in that industry, which is a dynamic, multi-employer, high-turnover environment.
Commenters from the construction industry also blasted the standard's list of specific engineering and work-practice control methods for specific tasks, known as Table 1. Companies that use the methods in Table 1 would be exempt from certain compliance requirements, such as dust monitoring.
“The currently proposed Table 1 clearly demonstrates the lack of understanding by OSHA as to how tools and equipment are operated in the construction industry in each of the listed tasks,” wrote Eric Olson, safety director for the Western Construction Group.
The Ohio Cast Metals Association challenged OSHA's economic analysis, which pegged the cost to foundries of complying with the new silica rule at $1,200. The group said the agency's estimate isn't a “serious effort at determining the cost, but rather a political document drafted to create the public perception that the benefits of the proposal far outweigh the costs.”
Foundries have decades of experience dealing with silica control, according to Wear-Tek Inc. President Bill Reynolds, and the dust control levels that OSHA is proposing will have a devastating impact on the majority of the foundry industry.
The National Concrete Masonry Association said the proposed rule's prohibition on dry sweeping isn't feasible for the concrete block and brick industry. The masonry group also said that compliance costs in the industry, which makes commodity products with a low profit margin, will run more than five times OSHA's estimate.
“For an industry that has been nearly crippled by the worst construction recession in memory, the financial stress of this regulation could not come at a worse time,” the masonry group said.
Trade associations and business frequently complained that OSHA didn't allow sufficient time for comments, despite the agency's 47-day and subsequent 14-day extensions. Several commenters requested that OSHA convene a new small business panel to review the rule, as it's been more than a decade since that panel analyzed the silica proposal.
Not all industry commenters, however, wholly opposed the rule. Perhaps the most notable standout is the National Industrial Sand Association, which supports worker-protection provisions in the proposal such as exposure monitoring, medical surveillance and dust controls. But the sand group also argues the lowered permissible exposure limit isn't necessary and will cause economic harm.
The Associated General Contractors of New York State LLC also supports most of the proposed rule, including the reduced exposure limit, calling it “fair” and “more field friendly than some recent standards.”
The New York contractor group still has some criticisms of the proposal. For example, the group objects to the prohibition on worker rotation to achieve compliance with the exposure limit, saying it seems illogical to require a worker to wear a respirator if a contractor could switch personnel before that would be necessary.
The American Society of Safety Engineers broadly supports the proposed rule, including the reduced exposure limit. The safety group said the proposal probably isn't technically or economically feasible for all employers, and infeasibility is likely to be the premise for many defenses against silica citations.
“More than any substance OSHA has regulated since asbestos and lead, silica has an extensive record of past health issues based on accumulated evidence of its hazards,” the American Industrial Hygiene Association said in its comments supporting the proposal. “Fortunately, the evidence also shows that feasible controls can be used to protect workers from silica.”
The National Institute for Occupational Safety and Health--which published a recommended exposure limit of 50 micrograms for silica 40 years ago--filed comments supporting the rule. NIOSH's detailed input includes information on silica exposure during hydraulic fracturing and recommendations on improving the list of exposure-control methods described in Table 1.
The American Public Health Association and the American Cancer Society endorsed the proposed rule.
In the AFL-CIO's comments strongly endorsing the proposed rule, health and safety director Peg Seminario emphasized how long the rulemaking has taken, even though the hazards of silica exposure have long been recognized.
“This critical protection is long overdue,” Seminario wrote.
The next step in the rulemaking process is public hearings, scheduled to begin March 18. The hearings will provide an opportunity for witnesses to provide testimony and cross-examine one another, further building the public record for the silica proposal.
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The comments are available under Docket No. OSHA-2010-0034 at http://www.regulations.gov.
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