Construction interests compound court challenges to OSHA silica rule

Associated Builders & Contractors, Associated General Contractors of America American Road & Transportation Builders Association and four peer groups plan to join eight state affiliates petitioning the U.S. Court of Appeals for the Fifth Circuit for review of the Occupational Safety and Health Administration’s final rule on crystalline silica exposure. Released in late March, it sets a threshold of 50-micrograms per cubic meter of air, averaged over an eight-hour shift, compared to a longstanding 250-microgram level for the construction industry.

Stakeholders raised numerous concerns regarding OSHA’s proposal at the rulemaking stage, presenting substantial evidence that a 50-microgram permissible exposure limit (PEL) was technologically and economically infeasible. The petitioners feel the agency failed to take the evidence into account.

“OSHA’s silica regulation is based on flawed science, economic data and logic,” says ARTBA President Pete Ruane. “The unintended consequence of the proposal is that it will actually expose road workers to greater risk by diverting resources away from other legitimate safety programs.” They would encompass what he adds are activities aimed at mitigating, if not eliminating, documented, serious hazards like runovers, backovers and work zone intrusions.

Throughout the rulemaking process, ARTBA has pointed out problems with the new OSHA silica exposure standard:

  • Outdated health data. In setting the new standard, OSHA relied on studies from as early as the 1930s. More recent data clearly shows silica exposure has been dramatically reduced under the existing standard. According to the Center for Disease Control, deaths due to silicosis have declined 93 percent over the past 39 years.
  • Faulty economic data. OSHA estimates the rule will cost the construction industry $659 million annually. An ARTBA-backed, independent economic analysis by Environomics, Inc., shows the new standard will cost the construction industry in excess of $2 billion per year.
  • Unintended consequences. The lower PEL may be doing more harm than good by requiring workers to wear respirators in hot environments, potentially exposing them to otherwise avoidable heat stroke and stress.
  • Unworkable air sampling requirements. The rule calls for time-consuming sampling and testing procedures that will yield virtually meaningless results: By the time exposure levels are known, the “workplace” location and conditions tested will have moved and/or changed.

Along with ARTBA, ABC and AGC, other national groups concurring with the state groups’ petition are American Subcontractors Association, Mason Contractors Association of America, Mechanical Contractors Association of America and National Association of Home Builders. Initial petitioners are Mississippi Road Builders’ Association, American Subcontractors Association of Texas, Pelican Chapter of Associated Builders and Contractors, Louisiana Associated General Contractors, Associated Masonry Contractors of Texas, Distribution Contractors Association, Mechanical Contractors Association of Texas and Texas Association of Builders.

Their action follows a National Stone, Sand & Gravel Association and Georgia Construction Aggregates Association petition to the 11th U.S. Circuit Court of Appeals for crystalline silica rule review. NSSGA cites studies showing that the aggregates industry’s compliance with current regulations has been effective in reducing and appropriately monitoring silica exposure to workers. “The evidence has demonstrated that there is no additional health benefit to further reducing current exposure limits. OSHA’s rule is simply unnecessary as compliance with the existing standard fully protects workers,” affirms NSSGA President Michael Johnson. “OSHA’s justification for this stricter regulation is not based on sound science.”

NSSGA submitted extensive written comments and provided oral testimony to OSHA following the agency’s 2014 publication of the proposed rule. A decade ago, the association and member companies participated in the Small Business Administration’s review of OSHA’s draft proposal for revised silica exposure thresholds, subsequently weighing in during White House Office of Management and Budget examination of the rule’s economic and technical feasibility.

Objective evidence demonstrates that many commercial laboratories processing workplace air samples do not consistently provide analytical accuracy at the 50-microgram limit, Johnson notes, adding: “There would be significantly more testing required that would result in confusing, inconsistent and unreliable data. This is a real problem that neither OSHA nor the labs have effectively resolved. NSSGA believes that the aggregates industry’s most valuable resource is the more than 100,000 people who work in our industry. Our members are committed to their health and welfare. We are confident that an objective analysis of our challenge will demonstrate that OSHA is on the wrong track.”