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Construction Association Files Suit to Block Silica Ruling

April 4, 2016

A new rule from OSHA takes aim at exposure to crystalline silica. Crystalline silica exposure is a serious health hazard affecting approximately 2 million construction workers and 300,000 general industry workers in the U.S., according to estimates by the Occupational Safety and Health Administration.

Crystalline silica exposure occurs when construction workers drill, cut, crush, or grind silica-containing materials such as concrete and stone. Workers are also exposed to silica dust in general industry operations such as brick manufacturing, foundries, and hydraulic fracturing. Breathing silica dust is linked to an increased risk of developing lung cancer, silicosis, chronic obstructive pulmonary disease and kidney disease.

On March 24, OSHA announced a final ruling on occupational exposure to respirable crystalline silica. The original standards were set in 1971 and in 2013 a review was initiated to bring them up to date.

The rule sets a new permissible exposure limit (PEL) for respirable crystalline silica of 50 micrograms per cubic meter of air calculated as an eight-hour time-weighted average (TWA). The level is the same for all workplaces covered by the standard (general industry/maritime and construction), and is roughly 50 percent of the previous PEL for general industry, and roughly 20 percent of the previous PEL for construction and shipyards.

Employers will be required to use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.

The ruling is effective as of June 23, 2016 with construction companies having one year to comply with requirements and general industry and maritime employers two years.

AGC Files Challenge To Rule

The Louisiana chapter of the Associated General Contractors of America has filed a challenge to the OSHA ruling in the U.S. Court of Appeals for the Fifth Circuit, joining other local industry partners to voice their concerns about its impact on the construction industry.

“Our members are deeply committed to taking every possible step to provide a safe construction environment including reducing silica exposure,” said Stephen E. Sandherr, the national association’s chief executive officer. “However, we have significant concerns about whether this new rule is technically feasible, given that the agency’s final permissible exposure limit is beyond the capacity of existing dust filtration and removal technology.”

Sandherr added that while the administration did make a number of the changes to the final rule, including dropping requirements for contractors to establish regulated areas that would block access to parts of construction sites where dust is being generated, the association continues to feel that this final rule is not acceptable.

He added that the association has long urged federal officials to craft measures that would allow the roughly 25 percent of firms not meeting the prior standard to comply. Given the tremendous reductions in silicosis within the construction industry that has taken place since that standard was put in place, even more lives could be saved by getting greater compliance with that standard, the association executive noted.

Filing the petition starts what is likely to be a lengthy legal challenge to this measure, Sandherr added. But he cautioned that as flawed as the new Silica rule is, victory in court is far from certain. That is why he said the association would continue to work with Congress and the next presidential administration to seek measures to improve this flawed rule in a way that truly benefits the health and safety of our workforce.