OSHA silica rule: just a few more months, maybe

By DON McINTOSH, Associate Editor

An OSHA rule protecting workers exposed to silica dust may be nearing the finish line — after as much as 40 years of politically-motivated delay.

Silica dust is an on-the-job hazard for over 2 million American workers, particularly construction and shipyard workers, mineworkers and industrial workers. When they cut, saw, drill, chip, bore, blast or crush concrete, brick, or stone — or use sand in applications like sandblasting, glassmaking and foundry work — they’re exposed to microscopic crystalline silica particles 100 times smaller than ordinary sand. Inhaled over time, these particles can cause crippling and fatal lung diseases like silicosis, pulmonary tuberculosis, chronic bronchitis, emphysema, and lung cancer.

Image from a 1996 campaign against silicosis by the U.S. Department of Labor.
Image from a 1996 campaign against silicosis by the U.S. Department of Labor.

In 1971, the newly formed Occupational Safety and Health Administration (OSHA) set an exposure limit for silica dust, but as early as 1974, industrial hygienists realized the rule didn’t go far enough to protect workers. Decades have passed since then, with no improvement in the OSHA regulation. States like California and New Jersey moved ahead with their own regulations, requiring employers to use water or ventilation to keep down the dust, or where that’s not feasible, personal protective equipment like respirators to keep workers from inhaling it.

The Obama Administration declared a similar OSHA rule on silica to be one of its regulatory priorities — back in 2009. But it took OSHA until 2011 to put together a “draft silica proposed standard.” Then the rule was held up for “review” by the White House — for two-and-a-half years. [See Obama Administration quietly smothers rule to protect workers in the April 19, 2013 issue of the Labor Press.]

Worker advocates grew impatient. National AFL-CIO President Richard Trumka — a former mineworkers official — denounced the Administration for the “inexcusable and heartless” delay. Labor allies in Congress demanded action.

Finally, the White House completed its review, and on Aug. 23, 2013, OSHA released the proposed rule.

The proposed rule would set a lower limit for exposure to microscopic crystalline silica. Employers in industries where workers are exposed would be required to monitor air and use effective measures to reduce exposure — like wetting down the area to reduce dust, or using a vacuum, or enclosing the area. If none of those methods are practical, they’d have to provide respirators or other protective gear. They’d also be responsible for providing periodic medical checkups to test for exposure, and for training workers on how to reduce risk.

OSHA estimates the proposed rule will save nearly 700 lives a year, and prevent 1,600 new cases of silicosis annually.

Trumka urged the Obama Administration to move the rule forward without delay. “To protect the health and lives of American workers,” Trumka said, “the final silica rule should be issued as fast as humanly possible.”


Too fast for business, too slow for labor

OSHA announced a 90-day period for the public to submit written comments. That wasn’t enough time, said a group of Republican U.S. senators, led by Lamar Alexander of Tennessee. So OSHA extended the period an additional 47 days, then another 15 days.

This new rule could prove to be burdensome enough to financially cripple all businesses found in the construction sector.” —National Electrical Contractors Association

In all that time, about 1,600 written comments were received — many of them identical and part of mass letter campaigns for and against the rule.

Labor unions from AFSCME to Teamsters, to Operating Engineers, Laborers and Roofers supported the rule, and so did medical and scientific researchers.

Businesses and business groups wrote in by the hundreds. Representatives of a few businesses, like Dow Chemical, wrote in with constructive suggestions. Most, like the executives of the nonunion Esco foundry in Portland, argued that compliance will be unfeasible, burdensome and expensive, or that there’s not enough scientific evidence to justify it (after 40 years of study!)

“This new rule could prove to be burdensome enough to financially cripple all businesses found in the construction sector,” said Michael Johnston, executive director of standards and safety at the National Electrical Contractors Association (NECA).

[OSHA estimates the rule will cover an estimated 1.85 million construction workers in 477,000 establishments, and that compliance will cost $495 million a year, or about $1,037 per employer. The rule would also cover about 320,000 industrial and maritime workers in 57,000 establishments, at a total cost to employers of about $169 million.]

Near the end of the comment period, the U.S. Chamber of Commerce wrote in to say that — given that it took OSHA over a decade to develop the rule and the White House two and a half years to review it — the comment period ought to be extended some more, and the hearings postponed, and held around the country.

OSHA declined to take the Chamber up on the suggestion.

The agency closed public comment, held hearings from March 18 to April 4, 2014, and announced that hearing participants will have an opportunity to submit additional evidence and comments through June 3, and final briefs, arguments, and summations by July 18.

Then, at long last, OSHA will make a determination whether to proceed with the final rule.

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