OSHA Final Silica Rule Has Construction-Specific Mandates

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By Elliott T. Dube and Jewel Edwards

March 24 — Some construction industry groups have praised OSHA's final rule for a new, more restrictive silica exposure standard as sure to save lives, while other groups continue to question its feasibility.

The final rule (RIN 1218-AB70), which the Labor Department's Occupational Safety and Health Administration released March 24, imposes separate standards on general industry and maritime and on the construction industry.

“We believe that the agency has been diligent in its efforts to hear and consider all stakeholder input, and done a great job in getting the rule out,” North America's Building Trades Unions said in a March 24 statement. The organization has been urging the agency to finalize such a rule for 20 years.

It is “beyond debate” that silica exposure can be fatal to construction workers by increasing their risk of silicosis, lung cancer and other incurable diseases, the NABTU said.

“As many as 71,000 cases of silica-related illnesses are going to be avoided” because of the final rule, Chris Trahan, deputy director of CPWR-The Center for Construction Research and Training, told Bloomberg BNA March 24 on NABTU's behalf.

Meanwhile, the Bricklayers and Allied Craftworkers are “really excited” about the final rule, which has been a “long time coming,” union spokeswoman Prairie Wells told Bloomberg BNA March 24.

“For our side of the industry, every single thing that we do creates dust,” Wells said. “Everything creates an opportunity for exposure. So strengthening the regulations to require employers to provide health and safety equipment and training, it’s going to make the difference between whether people are in their 50s and healthy, or not.”

The notion that the rule is bad for business “simply isn’t true,” she added.

Many Firms See New Standard as Unworkable

A wide range of industry groups, including construction contractors, nevertheless are expected to challenge the final rule in federal court.

The final rule sets a “new but unattainable standard” that will “likely deliver some good headlines” for the Obama administration, Brian Turmail, a spokesman for the Associated General Contractors of America, told Bloomberg BNA. He said the organization doesn't believe that the final rule will do much to improve workplace safety.

“From our initial read, it appears that instead of crafting new and innovative ways to get more firms to comply with the current standard, which we know would save even more workers each year, administration officials appear to have instead opted to set a new standard that we know is well beyond the capabilities of current air filtration and dust removal technology,” Turmail said.

The rule reduces the construction industry's permissible exposure level (PEL) for airborne silica by about 80 percent—from about 250 micrograms of respirable crystalline silica per cubic meter of air, averaged over an eight-hour day, to 50 micrograms. This new PEL is the “lowest level feasible for all affected industries,” OSHA said.

The National Association of Home Builders is concerned that the final rule might not be either technologically or economically feasible or “take into consideration real-world application,” NAHB Chairman Ed Brady said in a March 24 statement.

OSHA has estimated the rule's annual cost for the average construction establishment to be $1,097 in 2012 dollars.

Proposed, Final Rules Differ

The final rule includes numerous changes from a proposed rule OSHA issued in August 2013 .

Unlike the proposed rule, the final rule doesn’t include mandates regarding protective clothing to address exposure; allows for limited use of compressed air, dry sweeping and dry brushing of silica-contaminated clothing or surfaces; and requires covered employers to develop a written exposure control plan, among other differences.

OSHA also diverged from its proposal to give covered employers the alternative of either establishing a regulated area or an access control plan to limit access to areas where silica exposure exceeded the PEL.

“The final standard for construction does not include a provision for regulated areas, but includes a requirement that the written exposure control plan include procedures used to restrict access to work areas, when necessary, to minimize the numbers of employees exposed to respirable crystalline silica and their level of exposure,” the agency said in a rule summary. “The access control plan alternative is not included in the final rule.”

AGC “felt pretty serious concerns” about the idea of contractor members setting up regulated areas, Turmail said. But as the association reads through OSHA's final rule, “we’re finding little bits that are at least an acknowledgement that they listened to some of what we’ve told them,” he said.

In addition, construction employers that properly implement certain exposure control methods specified in a table included in the final rule won't be separately required to comply with the new PEL and won't be subject to provisions for exposure assessment and compliance methods.

“OSHA listened to the industry,” Trahan said. “They put in place a table. They designed the rule so that if you’re doing task A and you’re applying control B, and their table shows that it’s good enough, you’re done.”

The final rule is set to be published in the March 25 Federal Register and will take effect 90 days after publication. Compliance obligations for the construction industry will be triggered one year after the effective date, with certain excepted laboratory analysis requirements beginning after two years.

To contact the reporters on this story: Elliott T. Dube in Washington at edube@bna.com and Jewel Edwards in Washington at jedwards@bna.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bna.com

For More Information

Text of the final rule is available at http://src.bna.com/dzs.

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