OSHA publishes final silica rule, faces pushback from businesses

May 17th, 2016 by Dakota Software Staff Industry News

The Occupational Safety and Health Administration's decision to release a revised final rule on silica exposure in the workplace marks the first update to that safety standard since shortly after the organization's formation in the early 1970s.

The new rule lowers allowable exposure limits by half for general industry and five times for those in the construction field, Safety + Health magazine said, setting a standard eight-hour shift total of 50 micrograms per cubic meter of air across all industries. That change falls in line with a National Institute for Occupational Safety and Health recommendation first provided in 1974. OSHA believes the reduction will result in approximately 600 fewer deaths and a significant reduction in the number of silicosis cases, about 900 fewer overall, on an annual basis.

Despite the many years OSHA spent dealing with the politics of implementing the new rule - the latest push began in 2003 - the release of the final rule in late March may not be the end of concerns and pushback. Operational risk and management news source Business Insurance said an effort spearheaded by interests in the construction industry believe the change won't hold up in court.

A contentious beginning for the new silica rule

• Business Insurance said a group of trade associations filed a suit with the U.S. Court of Appeals in New Orleans challenging OSHA's final silica rule in early April. The associations believe the federal health and safety regulator ignored or didn't properly account for various financial, operational and technological concerns when developing the specific measures used in the new regulations. OSHA recognized the added cost to employers when it made statements and provided supplementary information about the new rule, but the discrepancies between presumed costs on the part of the regulator and industry groups are wide.

While OSHA believes the necessary technological and operational improvements would cost the construction industry approximately $659 million on a yearly basis, industry estimates are much higher. One analysis cited by the trade associations places the total figure at $4.9 billion per year. That number includes direct costs for increased protective measures and employee training as well as indirect costs, such as higher prices for construction materials using different components to reduce the presence of silica. While it's hard to say which figure is a better representation of the costs these businesses will incur, the wide gulf between them is indicative of the distance between the two parties when it comes to the new rule.

Legal opinions split
Thus far, there hasn't been a consensus in terms of legal opinions about the new rule. Secretary of Labor Thomas Perez said a major potential argument against the increased silica limits, that OSHA moved too quickly, would be disproved in a court of law.

"I guarantee that if and when someone files a lawsuit - and I'm confident that if that happens we will prevail - one of the arguments they're going to make is we went too fast," Perez said, according to Safety + Health. "And the record will show we were very deliberate and considered every comment, left no stone unturned and came down with a result that respects the science, mirrors the science, and is the product of a very inclusive process."

Business Insurance reported differing opinions directly from firms as well. Holland & Hart, LLP, based in Denver, believes OSHA has the necessary powers to enact such changes and courts generally defer to the organization. Jackson Lewis PC, which represents the trade associations in the current suit, has an opposite opinion. That group feels the significant risk threshold, a major determiner in OSHA's ability to set new regulations, won't stand up to scrutiny because of Centers for Disease Control and Prevention findings that show a 90 percent-plus drop in silicosis from the late 1960s through the early 2000s.