(From left to right Ed Brady, Jen Herschkowitz, James Melius, and Henry Chajet)
(From left to right Ed Brady, Jen Herschkowitz, James Melius, and Henry Chajet)

The House Subcommittee on Workforce Protections held a hearing on April 19, to address the updated OSHA rule on silica dust exposure. The hearing was attended by: Ed Brady, chairman of the National Association of Home Builders; Janis Herschkowitz on behalf of the American Foundry Society; Dr. James Melius, research director of Laborers Health and Safety Fund of North America; and Henry Chajet from the U.S. Chamber of Commerce. The hearing addressed the many complexities and controversies surrounding the OSHA silica rule.

Here are five takeaways from the hearing:

1. OSHA Is Making Up for Past Mistakes Due to of Lack of Enforcement on Existing Rule
In his opening statement, subcommittee chairman Rep. Tim Walberg (R-Mich.) questioned whether OSHA’s new silica rule was simply a way for OSHA to compensate for not adequately enforcing existing silica dust exposure standards. “The department’s first priority should have been enforcing existing standards,” Walberg said. “If OSHA is unable—or unwilling—to enforce the current limit for silica exposure, why should we expect the results under these new standards to be any different?”

The NAHB's Brady repeated this sentiment throughout the 90-minute hearing, saying that OSHA has consistently failed to address many of the industry's concerns, and that the final rule reflected a “fundamental lack of understanding of construction and is technologically and economically unfeasible.” Brady went on to say that OSHA had “concocted an aggressive compliance regime that in many cases cannot be applied in residential construction.”

2. Existing Silica Standard Wasn’t Good Enough
Speaking third on the panel, Melius contended that the issue wasn’t over enforcement, but rather that the standard to begin with wasn’t good enough. Even if properly enforced, Melius said, the standard “is not adequate enough to prevent most silica related illnesses. We need to replace the standard; it has gone on for far too long.”

High levels of silica dust exposure can lead to pulmonary heart disease, cancer, silicosis, and even death. The new rule limits the amount of permissible exposure limits from 250 micrograms per cubic meter down to 50 micrograms per cubic meter, an 80% reduction. Melius also noted during his testimony that we most likely don’t know how many people have died of silicosis, as on most death certificates silicosis isn’t cited as the cause of the death.

3. Ruling Will Impact Millions of Workers
On behalf of the U.S. Chamber of Commerce, Chajet said that the new silica rule puts immense pressure on businesses, noting that the 606-page rule is filled with pages of explanation that are “going to be an impossibility for small or medium sized business to comprehend," he said. “We have this regulation that is based on a series of fantasies.” Chajet went on to say that the practices by OSHA to come to this new allowable permissible exposure limit (PEL) come from an inaccurate sampling and analysis method.

Instead of OSHA’s attention on silica dust exposure, Chajet said that the administration should focus more attention on drug and alcohol use as that is more prone to causing worker fatalities on the job site.

In her five-minute time, Rep. Elma Adams (D-N.C.) contended that the rule will have a positive impact on combating racial health disparities in the country. Adams asked a question on the impact the rule would have on low-wage workers and minority groups who are disproportionately affected by silica-related illnesses; in response, Melius cited a University of Michigan study that concluded that low-wage workers and minority groups are often at a higher risk of silicosis because they “tend to work the dirty jobs, jobs with the highest exposure.”

Silica dust photo courtesy of Creative Commons License
Silica dust photo courtesy of Creative Commons License

4. OSHA Did Not Listen to Industry Leaders During the Rulemaking Process
Brady, Herschkowitz, and Chajet argued that the final rule did not take into account the comments and concerns made by industry leaders during the rule making process. During his allotted five-minute questioning time, Rep. Todd Rokita (R-Ind.) took aim at OSHA, saying, “We got a rule based with some kind of proceeding, sounds like a kangaroo court, based on untruths, half truths, lack of transparency, facts that were not allowed to come into evidence, and testimony that was literally cut off. Is that accurate?” Chajet responded with an emphatic yes as he proceeded to be critical of how OSHA went about their rulemaking process, saying, “This was not legitimate rule making.” Chajet says that OSHA purposefully has held back data that questions the final rule.

Furthermore, Brady said that the question at hand wasn’t whether or not silica dust exposure poses a credible threat, but that the new rule will be difficult for businesses to enforce.

5. Table 1 Is Not Adequate and Is Set Up for Failure
In addressing concerns from the remodeling industry, Brady pointed to Table 1 in the OSHA silica rule and how the table does little to answer many of the questions remodelers have in order to adequately comply with the rule. He pointed to the requirement of wetting areas, which he said are not feasible for indoor remodeling projects or projects during the colder months. Brady said that the rule requires remodelers to default to the “very constrictive compliance issues because they cannot comply with throwing water into a home when they demolish a wall … This rule sets our builders, remodelers, associates, and other members across the country for failure because technologically we will not be able to comply with this rule."

See the full hearing, by viewing the video below.