Quartz Fabrication Ban Push to Test Cal/OSHA’s Legal Limits

California’s workplace safety agency recently deemed that the process for cutting and shaping a material commonly used for kitchen countertops cannot be safely regulated and moved to become the first in the US to ban the process.

The only problem: the California Division of Occupational Safety and Health isn’t allowed to create a standard that can’t be reasonably followed even if people are being harmed, attorneys say. The agency is hamstrung by state laws that limit it to creating standards that must be economically and technologically feasible for industries.

This pits engineered stone manufacturers warning of industry disruption against Cal/OSHA and public health officials, who argue there are safer alternatives. A ban on fabricating what’s commonly known as quartz countertop will trigger legal challenges.

“If the Board were permitted to sidestep this limitation by imposing a ban and asserting alternative materials are available, the Board would have the power to ban products and put whole industries out of business,” Lawrence P. Halprin, a partner at Keller & Heckman, said in an email.

California’s Occupational Safety and Health Standards Board, which sets standards for Cal/OSHA, started the process of prohibiting the fabrication and installation of artificial stone products containing more than 1% crystalline silica. The move is aimed at stemming a growing wave of cases of a chronic lung disease among countertop fabricators in California.

Major manufacturers of engineered stone, Caesarstone USA Inc., Cambria Co. LLC and Cosentino Group, declined to comment.

Legal Hurdles

A legal challenge to the proposed ban would center on whether Cal/OSHA properly considered the economic and technological feasibility, attorneys say. Challengers would argue blocking the fabrication of engineered stone to make exposure levels zero isn’t viable and exceeds the agency’s powers.

A ban of the fabrication process would be a de facto ban on the product itself, Halprin said.

Members of the Western Occupational and Environmental Medicine Association, the organization who petitioned the Board, say the state’s own enforcement record supports aggressive intervention. Cal/OSHA has issued more than 900 silica-related citations totaling about $1.9 million in proposed penalties and conducted over 460 workplace consultations under its special emphasis program that has reach more than 27,600 employees.

“Anywhere people are building or remodeling kitchens and bathrooms, there are workers who are being exposed to unacceptable risks,” Robert Blink, a former president of WOEMA who contributed to the organization’s petition.

Joseph M. Alioto, the chair for Cal/OSHA Standards Board, raised concerns around potential legal challenges during the hearing last month, pointing to attacks on regulatory bodies since the US Supreme Court’s decision in Loper Bright Enterprises v. Raimondo—which reined in federal agency power. He said this motivates him to create an advisory committee for fact finding purposes before establishing a standard to halt fabrication of engineered stone in California.

“If we make decisions based on facts that are not established in the record, then that decision can be readily attacked in the courts as arbitrary and capricious,” said Alioto. “It is my obligation as the chair and as a member of this commission to make sure that whatever decision we end up making, it is protected as much as we possible can.”

The board did not make Alioto available for comment.

Silica Advisory Committee

The Cal/OSHA Standards Board moved to create an advisory committee that would evaluate the feasibility of a standard to protect fabricators.

Rachel Conn, a Conn Maciel Carey partner and chair of the firm’s California practice, said employers in the engineered stone industry should participate in those advisory committees, saying it is a great opportunity to address the practical concerns as regulators move towards establishing an emergency standard.

“The Standards Board only knows what is provided to them either in a rulemaking package or through public comment,” said Conn. “The more that industry is engaged in those areas, the more information that the Standards Board will have access to.”

The new panels will outline several possible road maps to phase out the use of quartz slabs with more than 1% crystalline silica to allow the industry to work through its current inventory while sourcing alternative products.

The action follows the petition submitted by WOEMA and comes amid increasing concern among public health officials about an epidemic of silicosis cases linked to engineered stone fabrication shops.

The board concluded engineered stone with greater than 1% silica is inherently dangerous, highly toxic, and harmful to workers. California has identified at least 567 cases of confirmed silicosis associated with engineered stone, with at least 31 deaths and 58 lung transplants.

Emergency Standard Process

The board’s vote started the emergency rulemaking process, which requires California regulators to provide sufficient evidence of its urgency and undergo an abbreviated public comment period.

Cal/OSHA will now draft proposed text for the emergency rule that the board will vote to either adopt or deny.

“It’s hard to say what’s going to fall in and out of their authority at this point until we actually see what the language Cal/OSHA comes up with,” said Conn.

The state agency must justify why efforts to protect workers from silicosis fall into the category of an emergency regulation.

Business groups have previously challenged Cal/OSHA’s emergency temporary standards. During the Covid-19 pandemic, for example, they arguedemergency requirements such as mandating companies cover Covid-19 testing for its workers and establishing paid exclusion from work exceeded Cal/OSHA’s legal authority and imposed significant financial burdens.

A state court ultimately sided with Cal/OSHA, concluding that the agency had the authority to promulgate that ETS because the spread of Covid-19 had created an emergency.

Attorneys expect similar arguments will emerge if Cal/OSHA pursues restrictions that engineered stone manufacturers see as economically infeasible.

“It’s going to be very limiting for companies to sell those products if there’s a ban on people being able to do the work on the products,” said Conn. “If it is incredibly restrictive, I would anticipate we would see challenges around that.”