A federal proposal to limit worker exposure to crystalline silica has been in the works for years, but construction employers say they still need more time to review it.
More than a dozen industry organizations that oppose the Occupational Safety and Health Administration's Proposed Rule on Occupational Exposure to Respirable Crystalline Silica are seeking to double the time allowed for comments—and commensurate extensions for the rest of the rulemaking process.
The current Dec. 11 deadline for public comments is “virtually impossible” to meet, says the new Construction Industry Safety Coalition, the National Association of Manufacturers, and the National Industrial Sand Association.
Those groups have requested that OSHA extend the 90-day comment period by 90 days.
Construction associations say meeting OSHA's 90-day comment period on the proposed rule for exposure to respirable crystalline silica is "virtually impossible."
The coalition, formed recently in opposition to the rule, is made up of 18 trade associations representing a variety of construction employers.
The coalition says it aims "to encourage OSHA to develop better choices for compliance with the construction-specific silica rule: alternatives that also address costs, consistency with existing federal regulations, and do not overly burden small businesses."
The coalition says the silica rule is too complex to address in the allotted time.
OSHA's economic and technical feasibility analyses "are so voluminous that simply reviewing the material alone will take the vast majority of the initial 90-day comment period," according to the Associated Builders and Contractors Inc., a member organization of the coalition.
The proposal, which reduces the existing permissible exposure limit for respirable silica in the construction industry, was published Sept. 12 in the Federal Register but has been expected for years.
OSHA has warned of the dangers of silica exposure for more than 70 years, and the rule's pre-publication release Aug. 23 followed a two-and-a-half-year Office of Management and Budget review that was supposed to have taken 90 days.
Announcement of the rule drew immediate employer opposition.
Coatings, Blasting Impact
The rule will have a widespread impact on the coatings, construction and abrasive blasting industries.
Workers are exposed to airborne respirable silica dust particles through cutting, sawing, drilling and crushing of concrete, brick, block and other stone products and in operations using sand products, such as in glass manufacturing, foundries and abrasive blasting.
The new rule would limit worker exposure to a PEL of 50 micrograms of respirable crystalline silica per cubic meter of air (µg/m3), averaged over an eight-hour day.
The proposed rulemaking includes two separate standards—one for general industry and maritime employment, and one for construction—and includes a new uniform exposure limit for crystalline silica. It details methods for controlling worker exposure, conducting medical surveillance, training workers about silica-related hazards, and recordkeeping measures.
Multiple Changes Requested
The employers' letter said OSHA had not given stakeholders enough time to provide data that may be useful for analyzing the need for, and effects of, the proposed rule. The letter asks that all other dates in the rulemaking process, including the public hearing, be pushed back commensurately with a 90-day comment extension.
According to the letter, more than 1,700 documents now on the docket support the proposed rule; reviewing those and submitting comments within 90 days is "virtually impossible," the coalition said. The group also noted that it took more than two years for OMB's Office of Information and Regulatory Affairs to conduct its review.
In addition to the new deadline, ABC also asked OSHA to consider:
Revising the format of the public hearing planned;
Additional venues for the hearing outside of the Washington, D.C., area; and
Scheduling separate hearings for the construction and general industry "in order to elicit the most relevant feedback and facilitate the best discussions."
Hearings on the proposed rule are scheduled to begin March 4, 2014, at the Department of Labor’s Frances Perkins Building in Washington, D.C. Members of the public who wish to participate in public hearings must submit a notice of intention to appear by Nov. 12, 2013.
NJ Department of Health via OSHA
The proposed rule would cut the permissible exposure limit for respirable crystalline silica to 50 µg/m3 averaged over an eight-hour day.
The National Industrial Sand Association also opposes reducing the current exposure limit and favors an extension of the process.
"[A]fter carefully reviewing the proposed rule, we believe that the volume of information presented in the proposal, the analysis it requires and the time necessary to craft thoughtful consensus comments and testimony renders it impossible to deliver a complete and meaningful response in a mere 90 days ..." NISA president Mark G. Ellis said in a statement, according to Occupational Health & Safety online.
Ellis called a deadline extension a "modest request," saying OSHA started working on the rulemaking "almost 40 years ago" and "has been been working in earnest for more than a dozen years."
The proposed rule updates PELs that have been in place for more than 40 years.
Cost vs. Safety
According to OSHA, the new regulation will save 700 lives and prevent 1,600 cases of the lung disease silicosis each year. OSHA says about 2.2 million workers are exposed to respirable crystalline silica in their workplaces.
However, Geoff Burr, ABC's Vice President of Government Affairs, contends: "OSHA still has not explained how a lowered PEL will be effective at reducing the number of silica-related illnesses, particularly when the agency has admitted its failure to properly enforce the existing standard."
"The agency clearly missed an opportunity to take a cost-effective approach while still improving compliance and worker safety," Burr added.
On the other side of the silica debate, labor unions have called the proposed rule long overdue and are working toward swift implementation, saying that delays are deadly for workers.
The AFL-CIO, representing 57 unions and 12 million members, says a final silica rule "should be issued as fast as humanly possible, to protect the health and lives of American workers."
"Workers exposed to silica dust will only be protected when a final rule is issued," AFL-CIO President Richard Trumka said in a statement.
"Some industry groups are certain to attack the rule and try to stop it in its tracks. The AFL-CIO will do everything we can to see that this does not happen," Trumka said.
OSHA says the regulation would affect about 470,000 small businesses or government offices at an annual cost of $637 million. According to ABC, independent studies have estimated compliance with similar provisions to cost $1 billion to $2 billion annually.
The American Composites Manufacturers Association said the proposed rule would require employers to conduct exposure assessments for employees potentially exposed to silica. Those assessments must be performed by trained technicians and can cost up to $5,000, the group said.
The congressional budget impasse could also stall OSHA's ability to analyze comments and hold the spring 2014 hearings as quickly as outlined in the proposed rule. As of Friday (Oct. 4), OSHA had furloughed 90 percent of its personnel and suspended most of its operations.