OSHA Ruling on Toxic Silica Dust Is Decades in the Making

by Sokolove Law

Last month, the U.S. Occupational Safety and Health Administration (OSHA) approved a rule that could save the lives of thousands of working Americans — that is, if it can survive the industry-led campaign to block it.

The regulations concern something called silica dust — a carcinogenic cloud of crystalline particles that gets kicked up when construction workers saw, blast, and drill into rock, brick, or cement. As you can imagine, this is a pretty common activity, so the risk of exposure is quite high for road workers, builders, frackers, and machine operators.

Silica dust is blamed for hundreds of deaths in the U.S. each year, and its effects have been known for decades. So why has it taken so long to put a law in place to control it, and why are so many trade organizations lobbying to keep things the way they are?

Invisible Glass

Silica dust might more fittingly be described as microscopic shards of glass: tiny particles that are able to pass right through the body’s filtering mechanisms. Over time, such particles can build up in the lungs and cause fatal respiratory diseases like silicosis and even lung cancer.

Each year, hundreds of Americans die as a result of these illnesses, and thousands more develop complications that makes breathing itself difficult and painful. While the overall death rate from silicosis and silica-linked lung cancer has fallen in recent decades — mostly due to job site precautions — there has been virtually no effort on the part of regulators to require those precautions absolutely. Nor has there been an effort to determine how much silica can be considered “safe.”

OSHA’s March ruling on silica dust is a huge step forward in tackling this public health crisis, and it may have implications for how regulators handle other toxic-yet-legal substances like asbestos.

A Benchmark Ruling?

The new rules require employers to contain silica dust using vacuums or water, or to limit exposure through the use of air respirators. It also establishes a “permissible” exposure limit for silica dust.

When you think about it, that’s a pretty common sense bit of regulation. It’s no surprise then that labor groups have been fighting for it since at least the 1970s, when OSHA last updated its definition of “safe” exposure levels. But in the decades since, the agency has been thwarted by the heavy-handed lobbying tactics of chemical conglomerates, construction giants, and even the U.S. Chamber of Commerce.

While the OSHA law is set to go into effect on June 23, it’s already facing a tide of judicial and legislative opposition. Construction groups have filed suit against the order, claiming the proposed permissible exposure limit is “technologically and economically infeasible,” according to the National Law Review. All the while, preventable diseases continue to afflict U.S. construction workers, many of whom might have been saved had the industry simply adopted the OSHA ruling decades ago.

In an interview with the Northwest Labor Press, Peg Seminario, a workplace health expert for the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), called the new OSHA ruling one of the most significant labor regulations since the 1980s, when authorities got serious about controlling asbestos.

While the Environmental Protection Agency (EPA) banned most asbestos-containing products in a 1989 order, that law was eventually overturned by a 1991 appeals court. Unfortunately, that turn of events, which is the reason why asbestos is still legal in the U.S., may serve as a warning for OSHA’s forthcoming legal challenges.

In addition to industry lawsuits, the OSHA ruling on silica dust may face opposition from the favorite tool of Big Business: the GOP-controlled Congress.

“We know they’re up on the Hill asking their Republican friends to put riders in appropriations bills, ordering OSHA not to enforce it,” Seminario told the Northwest Labor Press.

The Asbestos Precedent

Unlike the fate of the EPA’s 1989 asbestos order, OSHA’s silica ruling has the benefit of a labor-friendly executive-in-chief. President Obama has vowed to veto any attempts to overturn the rule. Furthermore, the very law that created OSHA in 1970 is pretty clear about the agency’s authority when it comes to protecting workers’ health. For that reason alone, experts are confident it will hold up in court.

What remains to be seen is how the rule may inspire attempts to reign in other workplace or occupational toxins. Efforts to ban asbestos, for example, have been largely dormant since the 1991 appeals court ruling, which all but authorized the use of the naturally occurring mineral. Could the success of the OSHA ruling point to a more formidable regulatory agency when it comes to workplace poisons?

Unfortunately, that doesn’t seem all that likely. According to the Natural Resource Defense Council (NRDC), more than 80,000 chemicals currently used in the U.S. have not even been tested for their health effects — and the pending Chemical Safety Improvement Act (CSIA) would allow for the “assessment” of a mere 25 of them. Asbestos and silica dust are known carcinogens, and look how difficult it’s been to regulate them.

The OSHA ruling is a tremendous step in the right direction, but given the level of obstruction it’s endured, it’s hard to imagine similar progress when it comes to asbestos and some of the other toxins that continue to haunt our workplaces.

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