Tyler Allwood, Eagle Roofing Products, Director of Technical Services
The stated purpose of the Occupational Safety and Health Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.”1 It is with this mission in mind that OSHA creates rules related to worker safety and health. Contractors are very familiar with OSHA, and understand well how the many
provisions of the OSHA construction standard play a role in worker safety and their daily business operations.
Despite overwhelming opposition, a new rule concerning occupational exposure to respirable silica became effective on June 23, 2016. The compliance date for the construction industry standard of the rule was set a year out - at June 23, 2017. As was evident
during the hearings that preceded the rule, it is very unpopular with business groups throughout the country. These groups are extremely concerned about the rule’s potentially depressive effects on the building industry and the economy as a whole.
As the compliance date quickly approaches, it is important to understand OSHA’s rationale for the rule, what is expected of companies to comply as of June 23, and what the industry is doing to challenge the rule. It is also necessary to consider the role the Trump administration may play in the future of this OSHA action.
In the final version of the Respirable Crystalline Silica Rule, OSHA states that there are multiple health risks that have been linked to respirable silica, including: silicosis, lung cancer, other non-malignant respiratory diseases and renal and autoimmune effects. These effects have been understood for some time, and OSHA addressed them previously by setting a permissible exposure level (PEL) of 250 micrograms per cubic meter for construction. This PEL is considered a success by many. According to the Centers for Disease Control and Prevention, there was a 93 percent drop in silica-related deaths between 1968 and 2007. In its Frequently Asked Questions: Respirable Crystalline Silica Rule, OSHA even points to the fact that “the number of silicosis cases has declined over the past several decades.”2
The new rule lowers the PEL to 50 micrograms per cubic meter, averaged over an eight-hour day. This is an 80 percent decrease from the previous PEL and changes, considerably, the construction practices necessary to meet the new levels. Despite factual data showing decreases in deaths due to silica exposure under the existing PEL, OSHA believes that the new rule and lower PEL will prevent 600 silica-related deaths per year across all industries. OSHA does not specify how many deaths the rule will prevent in the roofing industry. In actuality, there are no records of deaths related to exposure to respirable silica involved in roofing activities.
While OSHA considers worker safety in its rule-making process, it must also consider the economic and technological feasibility involved in implementing the rule. In creating this rule, OSHA commissioned a cost study that showed the overall annual costs to all affected industries to be just over $1 billion. These costs were limited to: engineering controls, respirators, exposure assessment, medical surveillance, familiarization and training, establishment of regulated areas and written exposure control plans.
OSHA’s economic feasibility study does not give consideration to the cost of the effects that the rule will have on employment and business operations. In a letter to the Trump administration, Congressmen Bill Shuster (R-PA), Bill Huizenga (R-MI) and over 80 cosigners (1/25/17), states that “OSHA’s rule is not technologically or economically feasible - installing the control systems OSHA requires will cost hundreds of millions of dollars, that most employers, and certainly small businesses, will not be able to afford.” The Construction Industry Safety Coalition (CISC), a group of more than twenty trade organizations, estimates that the actual costs for the construction industry alone could be $5 billion annually.
In addition, OSHA’s cost study appears to be based on estimates that are less than accurate. They contend that this rule will cost the average compliant employer’s facility $1,242 per year. Their estimate for small employers with fewer than 20 employees is approximately $550. A review of the requirements of the rule shows that these numbers are low. The CISC reports that compliance expenditures by the construction industry will total $3.9 billion per year with another $1.05 billion per year in increased prices for construction materials. However, OSHA says that the rule will not have an impact on total U.S. employment.
While many may disagree with the rationale for the rule, it is vitally important to understand how roofing contractors are expected to comply as of June 23, 2017. Contractors who have employees involved in activities that expose them to crystalline silica must take steps to prepare for the new PEL. While the final rule is very complex, OSHA has provided several tools to understand compliance in the construction industry. On the OSHA website (www.osha.gov), there is a page dedicated to silica. This page has a link to the rule, as well as links to easy-to-understand fact sheets.
According to OSHA, there are two paths to compliance:
1. Use an engineering control method from Table 1 in the rule, or
2. Measure worker exposure and choose the best dust control method for the job.
In either case, OSHA requires that the employer:
■ Establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers, including procedures to restrict access to work areas where high exposures may occur.
■ Designate a competent person to implement the written exposure control plan.
■ Restrict housekeeping practices that expose workers to silica where feasible alternatives are available.
■ Offer medical exams—including chest X-rays and lung function tests—every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
■ Train workers on work operations that result in silica exposure and ways to limit exposure.
■ Keep records of workers’ silica exposure and medical exams.3
Given that most contractor employers will choose engineering controls, it is important to understand Table 1. The excerpt from the Table that is included in the Fact Sheet succinctly explains that OSHA considers the definitive control to be cutting with a wet saw outdoors for less than four hours per day. If this method is used, no other controls are necessary. If the wet cutting activities extend beyond four hours, or if the cutting happens indoors, an APF 10 half-face respirator becomes necessary. At that point, other tenants of the rule may come into effect, such as medical exams, fit-testing, training and record keeping. Dry cutting activities are greatly
discouraged in the rule and would require an APF 50 full-face respirator.
It is easy to see how these new requirements will lead to costs for individual employers that go beyond OSHA’s estimates. It is, however, difficult to rationalize these controls given the lack of evidence of deaths due to silica exposure during roofing activities. In fact, it is possible that these new control methods may cause more fall deaths. Contractors are left to figure out how they should safely introduce wet saws on steep-slope roofs. Their options are likely limited to creating slippery surfaces for workers to navigate, or to increasing trips up and down ladders to make wet cuts on the ground.
These safety contradictions as well as the economic effects of the rule have led industry organizations to take a multi-pronged approach to fighting its implementation. From the time the rule was announced to present, roofing industry groups, in conjunction with other construction industry organizations, have advocated for contractor employers, their employees and the construction industry as a whole.
During the public hearing process in the lead-up to the rule, Rick Olson, President of the Tile Roofing Institute (TRI), and Bill Good of the National Roofing Contractors Association (NRCA), testified jointly to establish roofing industry opposition. While this did not lead to any roofing exceptions, small changes were made to the rule, including the removal of the requirement that a half-face respirator be used for all wet cutting activities.
Currently, the Construction Industry Safety Coalition is leading the charge to change the course of the rule. As part of a lawsuit filed last year, the CISC is challenging OSHA’s Final Economic Analysis for the rule and the feasibility analysis and engineering controls for
construction in Table 1. The CISC legal team will be participating with other industry petitioners in a briefing scheduled before a three-judge panel of the DC Circuit Court of Appeals later this month.
Additionally, the CISC has been garnering support in the House and Senate to either delay the compliance date or defund the rule entirely. A sign of this growing support was the Shuster-Huizenga Letter that was sent to the White House in January.
The TRI and the NRCA are also working jointly on a study to understand the air monitoring process for such low levels of silica dust. Bill Good from the NRCA argued in an article for the Buffalo Law Journal that, “the new exposure limit of 50 micrograms per cubic
meter — measured on an eight-hour, time-weighted average basis — is so low that it is virtually impossible to take measurements on a construction job site that will be accurate.”4 The TRI is also working closely with tool manufacturers to determine if it is possible to create saws with vacuum attachments that can reduce the amount of dust below the new PEL.
While industry groups press on in opposition to the rule, there is a lot of hope among them that the new administration will be sympathetic to their cause. Many feel that once in office, the Trump Administration’s nominee for Secretary of Labor, Alex Acosta, and his team will take steps to delay the construction implementation date. In the meantime, the CISC has sent a request to the Acting Secretary of Labor requesting that the silica rule be delayed.
Understanding the rationale for the rule and the burden it places on small businesses around the country, one can understand how a contractor employer might feel discouraged or disheartened about the road ahead. However, roofing industry groups have stepped up to the plate and with their combined effort, and the outlook of the new administration, there are reasons to be optimistic.
Tyler Allwood is the Director of Technical Services and Systems for Eagle Roofing Products. Tyler was a roofing contractor in Florida prior to joining Eagle and served as President of the Sarasota/Manatee affiliate of the FRSA. He is also an active member of FRSA Codes and Regulatory Compliance Committee and the Roof Tile Committee, as well as a member of TRI.
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