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Construction trade groups take first legal shot at OSHA silica rule

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A coalition of trade associations has filed a legal challenge against the Occupational Safety and Health Administration's final silica rule.

The anticipated challenge to the controversial regulation, which will lower the amount of silica dust workers can be exposed to and mandate certain controls to limit exposure, was filed Monday afternoon in the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

Eight construction industry organizations filed the legal challenge to the rule, issued by OSHA March 24, amid concerns about its technological and economic feasibility.

The Occupational Exposure to Respirable Crystalline Silica rule will reduce the permissible exposure for crystalline silica to 50 micrograms per cubic meter of air, averaged over an eight-hour shift, from the current 100 micrograms per cubic meter of air standard for general industry and the 250 micrograms for the construction industry.

“OSHA's silica regulation is based on flawed science, flawed economic data and flawed logic,” Pete Ruane, president of the American Road & Transportation Builders Association in Washington, said in a statement. “The unintended consequence of the proposal is that it will actually expose road workers to greater risk by diverting resources.”

The rule is also based on outdated health data, according to opponents who cite a Centers for Disease Control and Prevention study that showed that the number of deaths from silicosis has declined 93% to 165 in 2004 from 1,065 in 1968.

“This is a public health success story being turned into a tort case,” said Henry Chajet, Washington-based of counsel for Jackson Lewis P.C., which is representing the associations in the challenge.

While OSHA estimates the rule will cost the construction industry about $659 million per year, a March 2015 economic analysis conducted by Bethesda, Maryland-based Environomics Inc. showed it will cost the industry nearly $4.9 billion per year, with $3.9 billion attributable to direct compliance expenditures such additional equipment, monitoring and respirators and more than $1 billion in indirect costs such as higher prices for construction materials and building products.

The groups filing the petition are the Mississippi Road Builders' Association, American Subcontractors Association of Texas, Pelican Chapter of Associated Builders and Contractors, Louisiana Associated General Contractors, Associated Masonry Contractors of Texas, Distribution Contractors Association, Mechanical Contractors Associations of Texas and Texas Association of Builders, with their national organizations also joining the petition.