OSHA announced this afternoon that it was delaying enforcement of its silica standard in the construction industry for 90 days. Originally scheduled to begin June 23, 2017, enforcement will now begin Sept. 23, 2017. Employers are still required to comply with the standard, but so that the agency can “conduct additional outreach and provide educational materials and guidance for employers.”
OSHA expects employers in the construction industry to continue to take steps either to come into compliance with the new permissible exposure limit, or to implement specific dust controls for certain operations as provided in Table 1 of the standard. Construction employers should also continue to prepare to implement the standard’s o
ther requirements, including exposure assessment, medical surveillance and employee training.
Former OSHA Assistant Secretary David Michaels stated that:
We have known for decades that silica standards needed to be improved to protect workers. Delaying enforcement of OSHA’s silica standard is a lose-lose proposition. The cost will be paid by workers, in hundreds of preventable cases if cancer, destroyed lungs, and shortened lives. This action also hurts those responsible employers who have already invested in life-saving equipment that will reduce silica-exposure. Why should they be put at a disadvantage competing with employers who have taken low-road?
About 2.3 million workers are exposed to silica in their workplaces, including 2 million construction workers. Occupational exposures to respirable crystalline silica are associated with the development of silicosis, lung cancer, pulmonary tuberculosis, and airways diseases. These exposures may also be related to the development of autoimmune disorders, chronic renal disease, and other adverse health effects. OSHA’s Silica standard, which updated a 1971 standard, was issued over a year ago and will save over 600 lives and prevent more than 900 new cases of silicosis each year. The final protections, were estimated to provide net benefits of about $7.7 billion, annually. OSHA had been working on the standards since the late 1990’s. The Department of Labor had been concerned about silica exposure since the 1930s, and the National Institute for Occupational Safety and Health recommended reducing the exposure limits to the current level in 1974.
The cost will be paid by workers, in hundreds of preventable cases if cancer, destroyed lungs, and shortened lives. — Dr. David Michaels
AFL-CIO President Richard Trumka responded to OSHA’s announcement:
The labor movement has fought for decades to win this lifesaving rule, and any further delay is unacceptable. The longer the Trump administration delays, the more workers will suffer and die. This action alone will lead to an additional 160 worker deaths. We will do everything possible to make sure this commonsense rule is not taken away. Workers’ lives are at stake.
Unique Requirements of the Construction Standard
According to the press release, “The agency has determined that additional guidance is necessary due to the unique nature of the requirements in the construction standard.” Apparently, what OSHA is referring to as “the unique nature of the requirements” is Table 1 of the construction standard that tells employers specifically what dust control methods they can use to avoid having to measure workers’ exposure to silica. If they use Table 1, employers are not required to prove that they are under the Permissible Exposure Limit. As OSHA describes, “The dust control measures listed in the table include methods known to be effective, like using water to keep dust from getting into the air or using ventilation to capture dust. In some operations, respirators may also be needed”
OSHA’s action came in partial response to a March 10, 2017 letter from the Construction Industry Safety Coalition (CISC), a group of 25 construction associations led by the Associated Builders & Contractors, to Acting Secretary of Labor Ed Hugler, requesting a one-year delay in enforcement of the standard. The CISC didn’t justify its request just on needing more educational materials, but also because “CISC member companies are experiencing significant difficulties in attempting to comply with the rule.” CISC called the standard “infeasible and unworkable.” The industry letter, however, raises no new issues that weren’t exhaustively discussed during the comment period and hearings, and considered in the rulemaking process. They are also the same issues raised in their legal challenge to the rule. According to agency materials, OSHA held 14 days of public hearings, during which more than 200 stakeholders presented testimony, and accepted over 2,000 comments, amounting to about 34,000 pages of material.
Long History of Industry Opposition to OSHA Regulatory Protections
The industry’s letter continues a long tradition of regulated industries claiming that OSHA standards would put them out of business, kill jobs and wreak havoc on the American economy. Regulated industries always claim that OSHA regulations will the costs will be much larger than OSHA predicted, the benefits fewer and the requirements impossible to comply with.
And they’re always wrong.
A 1995 study by the Office of Technology Assessment (OTA) of the accuracy of the cost-benefit analysis conducted on several OSHA regulations looked at several OSHA standards that had been in effect for a number of years to determine the accuracy of cost and benefit estimates conducted by OSHA and the regulated industries. The study showed that not only does industry grossly overestimate expected costs (big surprise), but even OSHA routinely overestimated the costs and underestimated the benefits of standards. OTA found that part of the reason that OSHA overestimates costs is that the agency fails to take into account the ingenuity of American industry. American businesses have been particularly good at developing new technologies that are much more cost effective and efficient than OSHA had predicted.