A group of construction industry organizations are challenging the Occupational Safety and Health Administration’s (OSHA) final rule on occupational exposure to respirable crystalline silica On Monday, April 4, 2015, less than two weeks after the final rule was issued, a petition for review was filed with the 5th Circuit U.S. Court of Appeals.
The eight petitioners 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 the Texas Association of Builders.
The Manufacturers’ Center for Legal Action, which represents the National Association of Manufacturers, joined the American Foundry Association and filed a separate petition for review with the 5th Circuit U.S. Court of Appeals.
Under the Occupational Safety and Health Act of 1970, anyone adversely affected by a standard can file a petition challenging the validity of the standard within 60 days of being issued. The petition must be filed in the U.S. court of appeals in the circuit where they live or have their principal place of business. The petition does not prevent or postpone the new rule from going into effect.
The eight construction industry groups will be joined by their affiliated national organizations. That group includes the American Road and Transportation Builders Association, American Subcontractors Association, Associated Builders and Contractors, the Associated General Contractors of America, Mason Contractors Association of America, Mechanical Contractors Association of America and National Association of Home Builders. The National Demolition Association have also stated they will be joining the group in their petition.
Those eight national organizations, along with 17 other national construction trade groups, are all members of the Construction Industry Safety Coalition (CISC). The CISC was formed to oppose the silica shortly after OSHA announced the proposed rule back in August 2013, but before it was officially released. The CISC claims that OSHA did not address many of the concerns raised by the construction industry when the final rule was being promulgated. They also claim that evidence they provided to OSHA proves that the new permissible exposure limits (PELs) are technologically and economically infeasible. It isn’t known if other members of the CISC will join the petition.
For the construction industry standard, the PELs have been reduced from 250 micrograms per cubic meter of air (μg/m3), averaged over an eight-hour shift to 50 μg/m3. The construction standard also established 18 specified exposure control methods for certain tasks that require an employer to implement engineering controls, work practices, and respiratory protection established for those tasks.
For example, when using a stationary masonry saw the saw must be equipped with an integrated water delivery system that continuously feeds water to the blade. The saw must also be operated and maintained in accordance with the manufacturer’s instructions to minimize dust emissions. No respiratory protection is required. Check out our previous article OSHA Issues Controversial Final Rule on Silica Dust Exposure for more information on the construction industry standard.
Not all trade organizations are opposed to OSHA’s new rule. The International Union of Bricklayers and Allied Craftworkers, Laborers’ International Union of North America, and the North America’s Building Trades Unions have all come out in support of the final rule.
The North America’s Building Trades Unions released the following statement after the new standards were released:
North America’s Building Trades Unions is pleased OSHA has issued the final silica standard. We believe that the agency has been diligent in its efforts to hear and consider all stakeholder input, and done a great job in getting the rule out. We look forward to reading it in detail. For twenty years, NABTU and our affiliates have been urging OSHA and the DOL to finalize this rule because reducing silica exposures will have a significant positive impact on the working conditions for all American construction workers. It is beyond debate that silica exposure kills construction workers. It causes silicosis — a deadly lung disease — lung cancer, and other diseases. Silica-related diseases cannot be cured, but they can be prevented. Put simply, the OSHA silica standard will protect construction workers from getting sick or dying due to silica dust exposure.
The American Public Health Association and the American Thoracic Society have also come out in support of the new rule.
This probably isn’t the last we will hear about the silica dust rule. There is still time for other organizations and business owners to join the existing petitions or file separate petitions in other circuit courts. It will be interesting to see what, if any, changes are made to the final rule when the dust finally settles.