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The Occupational Safety and Health Administration's final silica rule will be expensive and difficult for employers to meet and ignores the benefits of respiratory devices in reducing silica dust exposure, according to employer representatives.
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, despite industry contention that the lower limit is unattainable.
“There's definitely concern that there's not going to be a way to get to this limit, either technologically or economically…,” said Matthew Linton, of counsel at Holland & Hart L.L.P. in Denver. “Obviously, OSHA disagreed and moved the rule forward anyway.”
The rule aims to curtail silicosis — a preventable occupational lung disease caused by the inhalation of respirable crystalline silica dust that can progress to respiratory failure and death, according to the Centers for Disease Control and Prevention. The number of deaths from silicosis declined to 165 in 2004 from 1,065 in 1968, but about 2 million U.S. workers remain potentially exposed to respirable crystalline silica, according to a CDC study published in February 2015.
“Silica is one of the most significant rulemaking proceedings since OSHA began developing its own standard and regulations because of the breadth in which the rule applies, meaning silica is everywhere,” said Michael Taylor, the OSHA practice team leader for Baker & Hostetler L.L.P. in Washington. “They lowered the permissible exposure level to something that's prevalent everywhere. It's a major economic impact on employers in a broad range of industries and particularly on a handful of industries like the oil and gas well industry for fracking and the construction industry.”
OSHA estimated the rule would provide average net benefits of about $2.8 billion to $4.7 billion annually over the next 60 years and would cost $1,242 a year for the average workplace. However, a study last year by the Construction Industry Safety Coalition pegged the cost of the silica rule on the U.S. construction industry at $5 billion per year compared to the agency's $511 million estimate.
“It's hard to argue with the science, but it's the feasibility, the economic impact it will have, that is the argument,” said Patrick Devine, a partner with the construction law group of Ice Miller L.L.P. in Columbus, Ohio.
New controls required
Employers will also be required to use engineering controls such as wetting down work operations or using local exhaust ventilation to keep exposures below the limit and work practice controls such as wetting down dust before sweeping it before turning to respirators. This is another point of contention for some employer advocates, who say putting engineering controls first ignores improvements in respiratory technology that show these devices would be more effective in reducing silica dust exposure. However, respirators are not as protective as engineering controls and not always practical as they need to be fitted and refitted for each individual employee, according to OSHA.
“Most workers don't like working with respirators,” Mr. Linton said. “They're heavy. They're not pleasant to use. There's an elevated level of supervision when it comes to people using respirators consistently.”
The rule can be challenged for 60 days after its March 25 publication in the Federal Register in a federal appeals court or an employer cited under the rule could challenge its validity via the Occupational Safety and Health Review Commission process, Mr. Taylor said.
“From a practical standpoint, it may be better for the regulated community to do it now rather than wait until OSHA enforces the rule,” he said.
The National Institute of Occupational Safety and Health and the Occupational Safety and Health Administration are putting employers in the oil and gas industry on notice about a risk that has led to the deaths of nine workers over a five-year period.