Regulation of Silica: Will Lowering the Exposure Level Cost Jobs or Improve Public Health?

28 Pages Posted: 1 Nov 2017 Last revised: 30 Aug 2018

Date Written: October 31, 2017

Abstract

Public understanding of the dangers of silica dust began in West Virginia in Gauley Bridge when Union Carbide and the New Kanawa Power Company embarked on construction of the Hawk’s Nest Tunnel from 1930 to 1934 in order to bring power to Appalachia. In 1935, both the West Virginia state legislature and the federal government began investigating ways to protect workers and neighboring communities from exposure to silica dust because of an understanding that silica exposure could lead to silicosis, lung cancer, chronic obstructive pulmonary disease, kidney disease and other associated health ailments. West Virginia responded to the Hawk’s Nest tragedy by amending workers compensation laws to allow compensation for silicosis. By 1938, 46 states followed the West Virginia examples.

While almost all states now allow Workers’ Compensation for actual job-related damages to health, initiatives persist to prevent silicosis rather than just provide compensation to those who contract the disease from work related exposure.

Efforts to enhance federal silica protection for workers began in 1938 with testimony from Frances Perkins. Despite early understanding of the danger of silica exposure, federal regulation of silicosis did not exist at all until 1971 when the newly created OSHA established standards that most agreed were inadequate to protect workers from health damage. Last year, OSHA revised the silica rules -- 45 years after the first proposal for revisions to the standard. Industry immediately filed a lawsuit challenging the legality of new OSHA silica rule. Unions also filed a law suit alleging the silica rule did not go far enough to protect worker health.

Notwithstanding the change in administration, on September 20, 2017 OSHA announced it would begin enforcement and compliance assistance of the new silica construction standard beginning September 23, 2017. But the OSHA silica standard remains controversial—especially in Appalachia.

Residents of Appalachia debate the balance between need for jobs and need for regulations to reduce silica exposure and protect health on the job. While it is not uncommon for common jobs like construction to lead to exposure to silica dust, certain industries (like sand mining, mountain top coal mining, and shale oil and gas extraction) that are well paid and particular to Appalachia have extremely high silica exposure levels because of the geological formations in the region. West Virginia and other parts of Appalachia continue to have among the highest rates of silicosis in the United States.

This paper explores the recent OSHA silica regulations. The paper begins with a history of silicosis in the United States, a description of the health impacts and the federal regulatory response outlined in 29 CFR §1926.1153. Next the paper examines arguments of labor unions favoring the rule and of industry in Appalachia (including the West Virginia Manufacturers Association) opposing implementation of the new regulations. Finally, the paper examines the economic cost/benefit analysis of the silica rules to the region and makes recommendations on how the controversy of silica begun in the 1930s should be resolved to ensure both good health and economic prosperity in Appalachia.

Suggested Citation

Geltman, Elizabeth, Regulation of Silica: Will Lowering the Exposure Level Cost Jobs or Improve Public Health? (October 31, 2017). Forthcoming in West Virginia Law Review, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=3062848

Elizabeth Geltman (Contact Author)

CUNY School of Public Health ( email )

55 W 125th St
New York, NY 10027
United States

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