April 19, 2016

Industry Urges Congress To Block Silica Rule To Force New OSHA Review

The National Association of Homebuilders (NAHB) is urging Congress to block OSHA’s silica rule until the agency has reconsidered the measure’s impacts on small businesses, a call that at least one key Republican lawmaker signaled he is prepared to support.

“I urge Congress to consider ways to forestall the implementation of this deeply flawed rule until such time as OSHA has revisited the potential burden this rule will set upon small businesses,” Ed Brady, a homebuilder from Texas, told the House workforce protections subcommittee April 19 in testimony on behalf of NAHB.

He said he is calling on Congress to take such a step because he does not expect OSHA to heed the group’s call to “re-examine and reassess how its final rule will harm the construction industry, job growth, consumers and the economy while doing little to improve the health and safety of industry workers.”

Because the agency is unlikely to change course, we believe “that Congress must take the lead and move swiftly to craft legislation that will keep this fundamentally flawed rule from taking effect.”

Rep. Tim Walberg (R-MI), chairman of the House Education and the Workforce Committee’s workforce protections subcommittee, signaled support for NAHB’s call though he stopped short of endorsing any particular legislative strategy to address the issue.

“I hope we will see OSHA step back and say ‘we might want to listen to some of these [industry concerns] more carefully. We might have a better way to protect individuals in the work place’,” he said.

In his opening statement, Walberg also criticized OSHA for adopting a tough new standard even though it has not been able to fully enforce existing requirements.

“The department’s first priority should have been enforcing existing standards. If OSHA is unable–or unwilling–to enforce the current limit for silica exposure, why should we expect the results under these new standards to be any different?” he said.

The April 19 hearing was intended to review OSHA’s recent rule strengthening its long-time silica standard. Key among the changes is the agency’s decision to strengthen the current permissible exposure limits (PEL) for crystalline silica dust, which is blamed for silicosis and other illnesses following chronic exposures, from 250 micrograms per cubic meter (ug/m^3) to 50 ug/m^3 over eight hours.

The agency also proposed an action level of 25 ug/m^3 that triggers numerous regulatory requirements, including monitoring requirements.

The rule set two standards, one for the construction sector and another for maritime and general industry, such as brick manufacturing, foundries, and hydraulic fracturing.

According to OSHA, the rule generally requires employers 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.

Industry Challenges

NAHB and other industry groups are already challenging the rule in a federal appellate court where they are expected to petition for a stay pending judicial review on the merits.

NAHB’s call for lawmakers to block the rule’s implementation appears to add to their upcoming efforts to stay the rule in court, where they are expected to argue the measure is technically and economically infeasible.

Industry witnesses used the hearing to reiterate their legal arguments.

Brady, for example, argued in his testimony that some of the silica control methods the rule will require homebuilders to adopt — such as increased use of water to control dust — are impractical. He said it is unsafe for roofers in Midwestern states to use water to control dust in colder months, when freezing could create additional risks of slipping.

“Imagine installing tiles on a slippery, wet roof. This practice would also create quality-control issues by introducing water to areas of the roof not designed for moisture,” he said.

Similarly, many builders may not have water sources available on job sites. Nor is it possible for renovators to use water to control dust in indoor environments, Brady added.

In a similar vein, Janis Herschkowitz, president of PRL Inc. who testified on behalf of the American Foundry Society (AFS), told the hearing that using water as a dust control method could prove fatal in foundries, where water causes molten steel to combust.

Walberg later endorsed her point, noting that a US Steel foundry where he worked had incurred such an incident when he worked at the plant. “You don’t want to mess around with water around molten steel. OSHA needs to take that into consideration,” he said.

Herschkowitz and Brady, as well as Henry Chajet, a lawyer at Jackson Lewis testifying on behalf of the U.S. Chamber of Commerce, all pressed the case that OSHA had significantly underestimated the rule’s costs. “OSHA estimates that the new silica rule will cost only about $1 billion. However, the estimate is wildly speculative and inaccurate, using low implementation cost forecasts, that in reality will add up to multiple billions of dollars,” Chajet said in his testimony.

Chajet also charged that OSHA had not justified the need for the standard. He said the agency had not yet met the Supreme Court’s legal standard — derived from litigation that vacated the agency’s benzene standard — that requires a threshold finding “that a place of employment is unsafe — in the sense that significant risks are present and can be eliminated or lessened by a change in practices.”

He said that while the chamber is not challenging whether exposure to crystalline silica presents a hazard, “current data undermine OSHA’s conclusion that a significant risk is present in contemporary workplaces.” As a result, he said “the first question Congress should examine is why OSHA believes such a sweeping revision to the PEL for [silica] is warranted in light of the success of existing limits, and what accounts for this success.”

But Democrats and labor union representatives strongly resisted industry and GOP concerns over the need for the rule and its potential costs to industry, citing significant health and economic benefits. For example, James Melius, research director of the Laborers’ Health and Safety Fund of North America and administrator of the New York State Laborers’ Health and Safety Trust Fund, said in his testimony that the rule would significantly reduce cases of silica, lung cancer and other adverse effects from silica exposure.

He argued this would result in health care and other savings, including reduced hospital visits, health insurance and workman’s compensation claims, as well as increased worker retention and productivity.

Melius also sought to make the point that some industries had been able to get ahead of the rule, resulting in regulatory benefits. For example, he noted that the asphalt paving industry, together with labor unions, had been able to jointly develop control technologies that OSHA eventually endorsed in the rule, resulting in the industry backing the rule.


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