We recently posted an article about whether silica exposure claims might emerge as the next toxic tort. A particular focus of that article was the Occupational Safety and Health Administration’s (OSHA) clearly increasing interest in the possibility of silica exposure, and its growing focus on related workplace safety initiatives. Concerned that OSHA’s heightened interest level was manifesting itself in proposed regulations that would be unduly burdensome on homebuilders if enacted, the National Association of Home Builders (NAHB) on Tuesday asked OSHA to rescind a proposed rule that would substantially reduce the permissible exposure limit (PEL) of crystalline silica for the construction industry. The reduction, if brought into effect, would require curtailment of PEL by 80%.

Among the more cumbersome and potentially costly aspects of the proposed rule are its requirements for extensive medical surveillance of construction industry workers, restrictions on certain construction site work practices (restrictions that run counter to existing safety procedures), and calls for enhanced record-keeping procedures.

Rule Would Be Economically and Technologically Unfeasible For Homebuilder Industry

By contrast, NAHB is recommending that OSHA use the existing PEL for silica in construction, at least until a comprehensive study conclusively demonstrates that the PEL must be made lower for important health reasons. NAHB has also advised OSHA to focus its mandated controls on tasks that have been established to be “silica-generating” by silica exposure monitoring data. The key, according to NAHB, is whether such tasks are generating high levels of silica exposure above the existing PEL.

NAHB believes that compliance with the proposed rule would be economically and technologically unfeasible. OSHA has estimated that the rule would cost the industry approximately $511 million to implement. Economic analysts estimate the cost to be closer to $2.2 billion per year, and likely to increase given the present state of the economy.

We will continue to monitor this skirmish between NAHB and OSHA, one with profound implications for the homebuilding industry.