Maryland Refuses to Protect Construction Workers From Deadly Silica Dust

silicaInhaling silica dust can cause silicosis, lung cancer, chronic obstructive pulmonary disease and kidney disease. OSHA’s 45 year old standards were antiquated and did not protect workers, which is why in 2016, OSHA issued two new respirable crystalline silica standards: one for construction, and the other for general industry and maritime.  About 2.3 million workers are exposed to silica in their workplaces, including 2 million construction workers and OSHA estimated that the new standards will save over 600 lives and prevent more than 900 new cases of silicosis each year.

But at this point, the new OSHA Standard is not protecting construction workers in Maryland from exposure to silica.  Why should Maryland construction workers be exposed to more hazardous silica dust than construction workers across the border in Pennsylvania or New Jersey?   Despite a federal regulations that give states six months after OSHA promulgates a new standard to issue their own standard that is “at least as effective” as the federal standard, Maryland OSHA is dragging its feet, refusing to adopt the new standard and subjecting thousands of construction workers to silica exposure far above what is required for workers in the rest of the country.

Background

OSHA is a somewhat bifurcated agency: Federal OSHA enforces the law for the private sector in 29 states while 21 states and Puerto Rico enforce the law for their private sector and public sector workers. An additional five states (and the Virgin Islands) cover their public sector employees, while the feds enforce the law for the private sector employees in those states. Underlying this system is the legal obligation for the state plans to run programs that are “at least as effective as” the federal program. That means that within 6 months of federal OSHA promulgating a standard, the state plans must adopt the identical standard — or they can issue standard more effective than the federal standard. The point is to ensure that workers in, say, Baltimore or Takoma Park, Maryland receive the same — or better — protection than workers in Philadelphia, Pennsylvania or Cleveland, Ohio.

Maryland OSHA is refusing to issue the new standard and subjecting thousands of construction workers to silica exposure far above what is required for workers in the rest of the country.

One benefit of allowing states to run their own programs is the opportunity for the states to innovate — to find better, or more effective ways of protecting workers than the federal government. While most states just adopt identical standards to federal OSHA’s, CalOSHA proved (again) this week, with the issuance of its new standard on Hotel Housekeeping Musculoskeletal Injury Prevention, that state plans have the ability to do things that federal OSHA is unable to do. California now has a workplace violence standard, a heat standard, a general ergonomics standard, and an ergonomics standard for hotel housekeepers — all protections that federal OSHA lacks. OSHA’s ergonomics standard, issued in 2000, was repealed by George W. Bush and his Republican Congress and is unlikely to see the light of day again anytime soon.

But state plans have not been problem free. One of the problems with state plans is that they don’t always live up to their commitment to be “at least as effective as” the federal program.  At the beginning of the Obama Administration, for example, Nevada OSHA was facing serious problems after a series of fatalities on a major construction job on the Las Vegas strip.  In 2009, OSHA launched a special study of the Nevada program which found serious deficiencies. OSHA went on to take a closer look at all of the other state programs and launched a number of initiatives to ensure that they were operating in a manner at least as effective as the federal program. OSHA was also forced to confront Arizona which refused to update its residential fall protection requirements, South Carolina which proposed to eliminate its whistleblower program and Hawaii, which required help to reconstruct its program after a previous Governor had catastrophically underfunded the program. OSHA also ordered state plans to adopt National Emphasis Programs and struggled —  with mixed success — to ensure that state plans’ lower penalty levels were increased to approximate the level of federal OSHA penalties.

The Silica Standard and Maryland Construction Workers

OSHA issued the federal silica standard on March 23, 2016. That started the six-month clock for states to adopt an identical, or more effective standard.  The common practice, with very rare exceptions (and none that I know of with silica), is for states to simply adopt identical OSHA standards. Generally it’s a relatively quick process, although it often takes states longer than 6 months (and much longer if a state decides to issue a different standard.) OSHA regulations therefore allow a state to extend that 6-month period as long as the state “makes a timely demonstration that good cause exists for extending the time limitation.” 

Employers in federal states were required to comply with OSHA’s silica standard for construction by June 23, 2017, although the Trump administration extended the federal enforcement date until September 23, 2017.  So for the last four months, employers in the federal states have been required to protect workers from silica exposure under the terms of the new standard.  Most state plans followed those dates as well. In fact, as of the end of June 2017, most states had completed adoption of the silica standard and most commenced enforcement on or before September 23. Several other states are still in the process of adopting and for a few states (AK, HI and UT) I don’t have up-to-date information.    

Then we have my state, Maryland, which seems to be holding out until……hard to say.   In response to an inquiry last September from former Laborer’s health and safety director Scott Schneider about the state’s progress in adopting the standard, Matthew Helminiak, Commissioner of Labor and Industry, responded that Maryland OSHA was waiting to see if federal OSHA would be forced to modify the standard based on the outcome of the legal challenges that the construction industry and others had brought against the standard.

This is a rather dubious excuse to leave workers unprotected. There is nothing in the law or regulations that allow states to delay new standards because of pending legal challenges.  Indeed, legal challenges can go on for years, sometimes up to the Supreme Court; but unless the court stays the standard in the meantime, it is still in effect during that period.

Every day that Maryland OSHA delays adopting and enforcing the Silica standard, more Maryland construction workers will be exposed to the deadly dust.

In any case, the industry’s legal challenges were dismissed by the court last December. But now Maryland seems to have another excuse. In a response to state delegate David Moon’s request for information about the state’s progress in adopting the new standard, the state has come up with a new excuse based on the court’s order to OSHA to more adequately explain the agency’s decision not to include medical removal protection (MRP) in the standard. Medical removal protection is a procedure in several OSHA standards that requires employers to keep workers from exposure when medical findings determine that the employee’s health will be further harmed by continued exposure. The employee maintains the right to his or her “normal earnings as well as all other employee rights and benefits.”

Maryland Secretary of Labor Kelly M. Schulz told Moon that based on the court’s “remand”of medical removal protection, the state will continue to hold off:

Maryland Occupational Safety and Health (MOSH) is still awaiting a final rule from OSHA before adopting a new rule. Once approved, MOSH will begin the process of adopting the new OSHA standard . Final regulations are expected to be published in the Maryland Register within six months of federal enforcement, which is the normal timeline for revising federal standards.  Until new regulations are issued, the existing silica standard is still in effect across Maryland and MOSH stands ready to assist contractors to remain in compliance and enforce any violations. (emphasis added.)

First, there is no final rule to await. OSHA issued a final rule in March 2016 — almost two years ago.  And the six month “normal timeline” is long gone. Based on the court’s order, OSHA must now go back and improve its justification for not including MRP, or the agency can decide that MRP is needed, and begin new rulemaking.  It could be many months before OSHA issues a new justification for not including MRP, and it would be many years before the standard is modified if the agency decides to propose inclusion of MRP.  Neither of these options, however, legally justifies Maryland OSHA’s failure to issue a new standard to protect construction workers for the months or years it may for federal OSHA to act on the court’s instruction.

States are required to issue a new standard based on the issuance date of a new OSHA standard, not on any pending court decision or possible future changes in the standard. Should OSHA issue a modified standard many years in the future, Maryland — and all of the other state plan states — would then have six months to adopt that same change. But meanwhile workers would be protected under the standard that is in effect.

What Is To Be Done?

Every day that Maryland OSHA delays adopting and enforcing the Silica standard, more Maryland construction workers will be exposed to the deadly dust. Clearly, if Maryland doesn’t begin the process of adopting a standard, OSHA needs to take action to protect construction workers in Maryland.

Unfortunately, OSHA has limited options to force recalcitrant states to follow the law and it is not yet clear whether this administration will take the same hard-line approach to problem states that the Obama administration did.

One option that OSHA has is the “death penalty,” to rescind the state’s authority to operate a state program, a difficult and costly process. During the Obama administration, federal OSHA convinced South Carolina not to eliminate it whistleblower program by reminding them that the whistleblower program was required if they were to continue running a state program. When Arizona passed a law rejecting OSHA’s new residential fall protection requirements, OSHA threatened to take over the state’s construction sector. Arizona backed down at the last minute.  These take-over options are effective where the threat is credible.  Although OSHA has threatened, the agency has never been forced to rescind a state’s program. Such an action would be costly because federal OSHA would then have to take over enforcement in that state — presumably without additional resources from Congress.

Obama’s OSHA also made heavy use of the “bully pulpit”  — ensuring that the media and friendly politicians were aware when a state’s inaction was endangering workers.

And then there is the fact that Maryland is a very blue state whose Governor, Larry Hogan, is a Republican up for re-election next November.

And then there is the fact that Maryland is a very blue state whose Governor, Larry Hogan, is a Republican up for re-election next November.  That fact provides fertile ground for construction workers, unions and concerned citizens to ask Hogan why he continues to let Maryland construction workers get sick and die.

The bottom line is that silica kills and Maryland workers — in violation of federal law — are continuing to be exposed. Federal OSHA must act. And if it doesn’t, we need to make sure that the media and Maryland voters know that construction workers in the state are going to get sick and die.

But this is more than a Maryland issue. If Maryland gets away with its refusal to issue a silica standard, other states will take advantage of federal OSHA’s weakness in the future. This is an issue that all Americans — not just citizens of Maryland — need to remember next November.

 

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