(OSHA) OSHA proposal is causing a bit of a dustup: Administration says silica regulations are outdated, but some businesses disagree

The U.S. Occupational Safety and Health Administration is looking to update its 43-year-old regulations on how much of a particular type of dangerous dust employees can be exposed to in a traditional workday.

But opponents, including some in Ohio, are raising concerns about the cost any changes would add for companies to carry out the proposal and whether there's even a need for stricter standards at all.

OSHA says respirable crystalline silica — created when products like metal-casting molds are grinded or roadways are cut — can lead to lung diseases such as silicosis, lung cancer and chronic obstructive pulmonary disease.

In a fact sheet about the proposal, OSHA says the current regulations are outdated, difficult to understand and inconsistent across industries. The proposal, which first was introduced in August 2013, would lower the allowable levels of crystalline silica across the board, standardize the calculation and require medical monitoring for employees exposed to high levels.

The amount employees are subjected to can be mitigated by measures such as increasing ventilation or using water while cutting materials. OSHA estimates the new regulations would prevent 688 deaths and 1,585 silica-related illnesses every year.

But not everyone agrees with OSHA's assertion — or that the current levels are even problematic.

Clearing the air

Russ Murray, executive director of the Columbus-based Ohio Cast Metals Association, said his industry has spent “tens of millions of dollars cleaning up foundries” since the 1960s.

He thinks most meet the current levels, but they have to work hard at it. He's concerned the proposed regulations could devastate foundries financially, as the plan puts an emphasis on engineered solutions — such as ventilation systems — over the use of personal safety equipment. In areas where respirable crystalline silica creation is most prevalent in foundries, like a cleaning room where workers are grinding a mold, companies turn to products like respirators, he said.

“It's not pristine,” Murray said of the foundry industry, “and it never will be.”

Crystalline silica can be found in processes used in a variety of industries, from construction to metal casting to concrete, brick and glass production, all of which would be subject to the proposal.

According to a Bureau of Labor Statistics report from May 2013, Ohio had 161,190 construction employees and 485,370 production workers, although not all would be affected. Some that could be are the 1,790 foundry mold and coremakers, the 1,120 dental laboratory technicians and the 2,930 brickmasons and blockmasons listed.

The proposal would lower the permissible exposure limits, measured in micrograms of silica per cubic meter of air (µg/m3), for crystalline silica in construction, maritime and general industries.

Currently, the limit for quartz, which OSHA calls the most common type of crystalline silica, is set at the equivalent of 250 µg/m3 for the construction and shipyard industries and 100 µg/m3 for general industry in an eight-hour work day.

Two other types of silica, cristobalite and tridymite, have limits that are half of that. The proposed rule drastically would cut the allowable limit to 50 µg/m3 for all of the above groups and materials, averaged across an eight-hour day. That's the lowest level that OSHA believes is technologically feasible. Companies would be required to begin monitoring the levels once they reached 25 µg/m3.

Vincent Norwillo, a partner with Gonzalez, Saggio & Harlan LLP in Cleveland, said OSHA and employers and contractors want to protect workers, but he's heard concerns about the proposed levels.

“Employers are saying, "You haven't shown us there's any magic to the 50,'” he said. He said he thinks it will be difficult for employers to reach those levels, that the costs have been “grossly underestimated” and that the science behind the level hasn't been made clear.

Focus on enforcement

Joseph Brennan, an associate attorney with Fisher & Phillips LLP's Cleveland office, said that overall, people are asking why the proposal is coming up now. Since 1968, the rate of lung diseases related to silica has dropped by 90%, he said. He questioned whether a stronger standard would help with the remaining cases or if stronger enforcement of the current standard is what's needed.

The enforcement question is critical. Ken Kudela, director for the Ohio-Kentucky Administrative District Council of Bricklayers and Allied Craftworkers in Hudson, believes a stricter standard is necessary. He knows it will add extra costs or burdens to contractors, but said something needs to be done to stem the deaths from diseases like silicosis.

But even Kudela notes that enforcement of the levels is the key. Fred Hubbard Sr., secretary treasurer for the council, said OSHA has a lot of standards, but they seem to only go after the biggest contractors. If a measure is going to impose a lot of costs onto work sites, it needs to be enforced across the board, he said.

And some employers think that cost could be significant.

Bradley Belden, director of support services at the Belden Brick Co. in Canton, estimates that the proposed regulations would cost the 425-employee company hundreds of thousands of dollars to meet the new regulations. The company already takes care to reduce the levels of crystalline silica employees are exposed to, using dust collection methods to keep its plants in Sugarcreek clean and by having employees use dust masks in the areas where the methods can't be used.

“We just don't think it's going to be a cost-effective solution to a problem we don't even think exists,” Belden said.

When the dust settles

Both the Ohio Cast Metals Association and Belden Brick submitted formal comments to the federal government sharing their concerns on the proposal.

They're not alone. As of April 9, there were close to 2,000 comments received on the docket. Public commenting closed in February, and OSHA wrapped up public hearings on the proposal on April 4 after about two and a half weeks of scheduled hearings.

OSHA is still accepting final comments from those who signed up to testify at the hearings. Typically, OSHA will then analyze the written comments and testimony, update its proposal and get any necessary government approvals. A timeline for this proposal was not available on OSHA's website, but information on its rulemaking process suggests a final decision would be at least two years out.

While OSHA estimates that the cost could be significant overall at $637 million annually, the majority of which would be incurred by construction-related companies, it expects that average employers would spend just about $1,242 each year to meet the regulations.

Murray of the Ohio Cast Metal Association doesn't agree with those estimates. While he declined to name the company, he shared that a large, local foundry had spent about $1 million to meet the current guidelines.

“This thousand dollar number is infuriating because it's so absurd,” he said.

Source: Craines Cleveland