Making major construction safety headlines at the end of March, the Occupational Safety and Health Administration finalized its new rule mandating tighter levels of worker silica exposure.
If a company's specific niche in the construction industry doesn’t include activities like cutting, chipping or sawing silica-containing materials such as concrete or stone — or buying materials or services from those who do — then this new regulation won’t create a major impact. However, if a firm's work does include such activities, then chances are compliance will cost in both time and money — but the exact amount varies between sources.
This week, eight major construction industry groups — including affiliates of the Associated General Contractors of America, Associated Builders and Contractors and the National Association of Home Builders — have filed a legal challenge against the final rule. According to the construction organizations, OSHA failed to sufficiently address their concerns, especially regarding the significantly reduced permissible exposure limit, claiming it is "technologically and economically infeasible."
Why has this new regulation caused such extreme pushback from the industry, and what possible positive and negative consequences can the rule create for construction companies?
When OSHA refers to silica in terms of the new rule, it means "respirable crystalline silica," a form of silica that is 100 times smaller than sand that is released into the air by cutting and grinding operations on certain materials, according to the agency. Prolonged breathing of silica dust is linked to diseases like silicosis, lung cancer, tuberculosis and other respiratory conditions, according to the Centers for Disease Control. The CDC also said there is a possibility that occupational exposure to silica may be behind some autoimmune conditions, as well as chronic kidney illnesses.
While there have been OSHA silica exposure rules and limits on the books since the 1970s, the agency said the decades-old rule does not reflect the latest scientific research. Now is the time to lower exposure limits and increase employee medical and monitoring requirements in order to save an estimated 600 worker lives per year, as well as prevent approximately 900 new cases of silica-related illnesses, according to OSHA.
Inside the new rule
So what exactly about silica exposure and monitoring has OSHA changed that will protect an estimated two million construction workers?
First of all, the rule reduces workers' permissible exposure limits from 250 micrograms per cubic meter of air over an average of eight hours — the typical work shift — to 50 micrograms.
Secondly, the new silica regulation requires that employers use engineering controls like water or ventilation to comply with the limits, or otherwise provide personal protective equipment like respirators. Employers are also required to generally limit workers’ exposure, develop a written exposure control plan, provide medical exams and lung health information for those workers who are exposed to high levels of silica, and implement a training program for workers about the ramifications of breathing silica and how to reduce exposure.
The Construction Industry Safety Coalition, comprised of such groups as the ABC and AGC, maintains that the new standard will cost the construction industry nearly $5 billion per year — significantly higher than OSHA's estimate of approximately $500 million for industry-wide implementation. The difference in the price tag, according to a letter from the CISC to OSHA, is that the CISC includes indirect costs, such as increased material prices, as well as direct costs for "additional equipment, labor, productivity losses, monitoring, respirators, medical surveillance and record keeping."
"It’s a general industry regulation update as well, so the cost of stone, the cost of brick, the cost of concrete could potentially increase a significant amount just for the raw material," said Philip Casto, vice president of risk at insurance broker HUB International.
Chris Trahan, deputy director of the Center for Construction Research and Training in Maryland, commenting on behalf of the North America’s Building Trade Unions (NABTU) position on the new rule, said, "NABTU does not agree with the cost estimates put forth by CISC during and after the rulemaking for a number of reasons. Many assumptions were made in their costs estimates that are not based on actual conditions in the industry to artificially and dramatically inflate their estimates."
Trahan added, "Their allegations of the costs being severely underestimated are meant to mislead the contractors they supposedly represent, as well as to create opposition to this rule in forums outside of the OSHA rulemaking process in order to try to undercut the rule, and, subsequently, continue to needlessly expose American construction workers to a very severe health hazard."
However, Casto said that OSHA has somewhat of a history of low-balling cost estimates, like it did with the recent changes to its injury reporting requirements. "They basically created thousands of additional hours of work for their own compliance officers, and, about 30 to 60 days after that law went into effect, they said, 'We’ve got to streamline this process,'" Casto said.
Casto said there are some elements of the rule that will be easier than others for contractors to implement. However, he said, the program also includes silica as a hazard communication standard. "It’s really an update of two regulations that are now much more stringent for the construction industry," he said.
Also, in a statement from the AGC after the rule was passed, the organization said the new standard is "unattainable," another industry assertion Trahan disputes. Trahan said the technology that OSHA used to come up with its figures is two years old and that many manufacturers are creating tools with integrated dust controls that work even better. Both the AGC and Trahan noted that OSHA did do away with some of the more stringent provisions in the original rule, like the "no visible dust" requirement, which most parties agree would have been impossible to achieve.
Ironing out the details
Trahan, along with Casto, added that the medical surveillance portion of the rule could create future employment practice issues for contractors and employees, or, at the very least, confusion. "Do you require employees to now bring a chest X-ray before they start working?" Casto asked. Regardless, he said, employers typically can’t discriminate against hiring someone because of an existing illness, but OSHA provides no guidance on that in the new silica rule.
"While (the standard) requires medical surveillance for employees exposed to silica above the permissible exposure limit, the trigger for providing that surveillance will be difficult to implement in the construction industry and may result in workers facing discriminatory employment practices. We are concerned about this," Trahan said.
Casto added, "Part of this new regulation also says there has to be a tuberculosis test as part of the medical evaluation. What they don’t say is what the employer is supposed to do if someone is positive for tuberculosis. What is that employer then supposed to do with that employee if he or she is a relatively new hire?… What if the employee says it’s workers’ comp? It will create more headaches."
While these details get ironed out, perhaps even through legal challenges, experts said the positive side of the controversy is that many in the industry and regulatory side of government are trying to create safer work conditions for employees.
However, Trahan said she doesn't understand the extreme pushback from the construction industry. "Exposure can be prevented easily in almost every construction task, and lives can by saved by doing this," she said. "It is baffling how so many great contractors out there are supporting the fight against this standard when they have already implemented the controls and know that it is not hard to do."