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CONSTRUCTION NEWS: "DUST IN THE WIND" - NEW SILICA EXPOSURE STANDARDS

By Spike Cutler

After a seemingly-endless period of study, hearings, and public comment, the United States Occupational Safety And Health Administration (OSHA) has issued its Final Rule dealing with exposure of workers to silica in industry, including a very substantial portion focused directly at the con- struction industry. The general consensus is, it ain't pretty.

OSHA's new rule is, as published, massive and detailed, and (as is customary with federal rulemaking) includes a mountain of findings and "evidence" to support the rule.

When OSHA originally revealed the proposed Rule and opened the public comment period, a massive outpouring of industry commentary was submitted, especially by the construction industry. Virtually every interest group in the construction industry weighed-in on the Rule, with groups such as the National Concrete Masonry Association, the Masonry Contractors' Association of America, the Mechanical Contractors Association and the Associated General Contractors offering detailed and rational commentary as to the effectiveness of the existing exposure standards, the impracticality of the new rule (especially, the dramatically-reduced exposure standard) and the economic impact the new standards will have on industry (an impact which was substantially-understated in the findings associated with the Rule).

Having received a mountain of comments, well-supported by science and reason, your government published the rule pretty much as originally written. As a result, absent inter- vening change, the construction industry as a whole will be subject to the new silica exposure rules as of June 23, 2016, with one year to comply with most requirements (hence, by June 23, 2017). The construction industry has by far the shortest phase-in period for the new rules.

The new rules reduce the Permissible Exposure Limit (PEL) for respirable crystalline silica to 50 mcg/m3 of air, averaged over an 8-hour shift; require employers to: use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan and offer medical examinations to highly-exposed workers, and to train workers on silica risks.

Industry leaders believe the new standard, especially in the context of commercial construction in fields like masonry and concrete, will be very difficult to consistently achieve, and will dramatically increase the cost of construction. In addition, there is great concern as to whether the putative negative effects of silica, at the exposure level which is now routine (significantly lower than in the historic past) are even significant enough to merit further costly measures. Employers are also concerned about unintended consequences, as well; for example, the introduction of significant additional risk of injury associated with the excessive use of wet-sawing.

Plaintiffs' lawyers are already licking their chops at the potential for more lucrative lawsuits at the expense of industry; some of you may recall the effort, over a decade ago, to certify a substantial class-action of plaintiffs claiming severe silicosis had resulted from exposure to construction sites; many of the class attorneys were the same ones who had windfalls in asbestosis cases, and they tried to draw a par- allel between the effects of asbestos and the effects of silica on the lungs of workers. Their efforts failed, in large measure because (1) the claimed health effects simply did not exist, and (2) it was glaringly obvious that much of the "research" and "evidence" used to support the attempted class action was simply repurposed from prior lawsuits in the asbestos arena. Burdened with a new silica exposure standard, however, construction industry business owners can anticipate, in the long-term, efforts by the plaintiffs’ bar to use silica expo- sure as a vehicle for costly class action lawsuits, which will inevitably lead to higher insurance costs.

A coalition of industry groups has filed a Petition for Review with the 5th Circuit Court of Appeals in New Orleans; the Texas Masonry Council is among the groups participating in the Petition for Review, and we can hope for some success in getting the new rule's implementation suspended, and better attention paid to legitimate evidence in drawing the rule.

THE ICE CONTINUES TO ROLL
You may recall, in a prior column, my warning that the United States Department Of Homeland Security, Immigrations and Customs Enforcement (ICE) was conducting special-focus audits of immigration and employment eligibility documentation maintained by employers. Since that time, it is become increasingly apparent that, while there is a special emphasis on the hospitality, food service and construction industries in general, the masonry contracting industry in Texas is the subject of a laser focus. Bottom line: if you haven't been audited yet, there's a pretty good chance you will be soon.

These audits have been directed at identifying both improper paperwork and record-keeping practices, and ferreting out employees whose eligibility to work in the United States is not properly documented. ICE has been aggressive in assessing fines and demanding termination of employees, and has further been twisting arms to try to force employers into opting in to the E-verify system (with limited exceptions, use of E-Verify is voluntary).

Employers in our marketplace must be diligent in ensuring that their practices in documenting employment eligi- bility of new hires and maintaining files relating to that documentation are "up to snuff." We have been assisting our construction-industry clients by conducting mock audits so that employers could identify and correct any areas of weakness. It's always a good idea to have well-maintained records, and this
recent spate of audits, along with the industry focus by ICE, should motivate you to take extra precautions in this important area.

If you’d like further information on the new Silica Exposure Rules, or about preparing for ICE audits, feel free to drop a line to the author at scutler@cutler-smith.com

Attorney Spike Cutler, and the firm of Cutler-Smith, P.C., are staunch advocates for the rights and interests of construction trade contractors. Cutler provides legal counsel to a number of trade organizations, including the Independent Electrical Contractors (IEC) of Texas, IEC- Dallas, IEC– Fort Worth, the Subcontractors Association of the Metroplex ("SAM"), the Texas Masonry Council, the United Masonry Contractors Association of DFW, and the North Texas Stone Fabricators Association. He is also a member of the Attorneys Council of the National Subcontractors Alliance.

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