by Henry Chajet, Jackson Lewis Safety and Health Law Group
The OSHA regulatory train is gaining speed, potentially unloading billions in costs on industries that produce, use, or transport silica based products, and ultimately on the consumer. The OSHA bureaucracy has promised and intends to deliver. In October, 2015, Assistant Secretary of Labor for OSHA, David Michaels, testified in Congress that: “We have made significant progress in protecting workers from exposure to silica dust….. Our current standards are over 40 years old and the overwhelming weight of science has shown these antiquated standards to endanger workers’ health. OSHA held three weeks of public hearings … last year… This critical update to the current standards will better protect workers and modernize inadequately protective, antiquated and difficult-to-use rules.”
As counsel to the industry witness panel of 10, independent and leading scientific and medical experts that opposed the OSHA rule, I am amazed that OSHA continues to ignore their evidence, and CDC evidence, summarized in the attached graph, showing that silica related mortality is vanishing, even with high exposures over the last 30 years (OSHA samples show 30% exceed the current exposure limit). While even one silica related illness is one too many and must be prevented, the facts and data confirm Dr. Michaels’ first conclusion that “we have made significant progress in protecting workers,” but also demonstrate why the OSHA bureaucracy should prevent the regulatory train wreck.
The new OSHA silica rules, if adopted, would include a steep reduction in the exposure limit to a minuscule amount that cannot be prevented nor accurately measured. In fact, we are convinced that OSHA lab measurements of silica at or below the current exposure limit, are highly inaccurate, forming the basis to defend against OSHA citations that mandate significant abatement costs and will become more costly over time as penalties increase and OSHA further targets silica enforcement.
The new OSHA rule also will mandate medical monitoring, air monitoring, respirator use, restricted work areas, protective clothing, engineering controls, clean lunch rooms, training, recordkeeping, and a refusal to credit effective and comfortable personnel protective equipment as a primary control for exposures.
Not only is the anticipated OSHA rule unnecessary, it is counter-productive because it will transfer limited safety resources away from where they can improve conditions and prevent injuries and illnesses.
While OSHA should prevent the train wreck, industry should prepare well in advance by auditing records, tightening controls and policies, training personnel, and considering challenging current OSHA silica enforcement actions that will be used to target companies for future, more aggressive enforcement, and by plaintiffs’ lawyers to allege willful conduct and seek damages beyond workers compensation. We and our expert, technical consultants are available to companies that would like to examine their programs and records and create a strategy to minimize the anticipated impact of these new regulations.