Plan of Action for Implementing OSHA’s Final Rule on Crystalline Silica Exposure
On March 25, 2016, the Occupational Safety and Health Administration, OSHA, issued its final rule on exposure to crystalline silica in the workplace.
The final rule is decades in the making, and has seen many stumbling blocks along the way, but Dr. David Michaels, Assistant Secretary of OSHA, saw the new standards as one of OSHA’s biggest priorities under his leadership and was determined to see them released.
The new standards are expected to have a significant impact on both the general and construction industries and cost employers nearly one billion dollars to implement, although many groups conclude that the costs are significantly greater. Since its release, several legal challenges have been filed against the new standard. It is too early to say what impact those challenges will have on the final rule.
Currently, construction employers must comply with all requirements of the standard by June 23, 2017, except requirements for laboratory evaluation of exposure samples, which are given until June 23, 2018.bBecause of the short amount of time to implement the rule, which is one year less than general industry was given to come into compliance, construction employers should review the standard’s requirements and develop a plan of action for meeting this deadline.
Silica Standard Requirement
OSHA’s new standards significantly reduce the Permissible Exposure Limit (“PEL”) for crystalline silica and require construction employers to implement engineering and work practice controls and follow several “ancillary” provisions, such as medical surveillance, a written exposure control plan and housekeeping practices.
- More specifically, the new standards set a PEL of 50 μg/m3 (from the previous PEL of approximately 250 μg/ m3) measured as an eight-hour time-weighted average (“TWA”). If workers are exposed to crystalline silica above the new PEL, all construction employers must implement engineering controls by using local exhaust ventilation (e.g., vacuums) or a water delivery system. All construction employers also must: Establish and implement a written exposure control plan that identifies the tasks that can result in silica exposure, the engineering controls, work practices, and respiratory protection that will be used to protect workers, and the procedures to restrict access to work areas where high exposures may occur.
- Designate a competent person to implement the written exposure control plan by making frequent and regular inspections of job sites, materials, and equipment.
- Restrict dry sweeping or dry brushing where such activity could contribute to employee exposure to respirable crystalline silica unless wet sweeping, HEPA-filtered vacuuming or other methods that minimize the likelihood of exposure are not feasible.
- Offer medical exams at no charge to the worker—including chest X-rays and lung function tests— initially (if not received within the last three years by another employer) and every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
OSHA also has implemented a unique approach to compliance with the revised PEL and exposure monitoring requirements for construction employers. Construction industry employers are exempt from meeting the PEL and performing exposure monitoring to crystalline silica if they comply with specific engineering controls, work practices and respirator use discussed in the new standards, as outlined in Table 1. Table 1 identifies 18 construction tasks that could generate exposures to respirable crystalline silica and for each task, specifies engineering controls, work practices, and respiratory protection to protect workers.
The identified “Table 1” tasks include:
- Stationary masonry saws
- Handheld power saws (any blade diameter)
- Handheld power saws for cutting fiber-cement board (with blade diameter of 8 inches or less)
- Walk-behind saws
- Drivable saws
- Rig-mounted core saws or drills
- Handheld and stand-mounted drills (including impact and rotary hammer drills)
- Dowel drilling rigs for concrete
- Vehicle-mounted drilling rigs for rock and concrete
- Jackhammers and handheld powered chipping tools
- Handheld grinders for mortar removal (i.e., tuckpointing)
- Handheld grinders for uses other than mortar removal
- Walk-behind milling machines and floor grinders
- Small drivable milling machines (less than half-lane)
- Large drivable milling machines (half-lane and larger)
- Crushing machines
- Heavy equipment and utility vehicles used to abrade or fracture silica-containing materials (e.g., hoe-ramming, rock ripping) or used during demolition activities involving silica-containing materials
- Heavy equipment and utility vehicles used for tasks such as grading and excavating but not including: demolishing, abrading, or fracturing silica- containing materials
For those employers who cannot or choose not to follow Table 1, they will be required to ensure that no employee is exposed to respirable crystalline silica in excess of 50 μg/m3, calculated as an 8-hour TWA. Construction employers will be required to use engineering and work practice controls to reduce and maintain employee exposure to or below the PEL and perform exposure monitoring of employees who are or may reasonably be expected to be exposed to respirable crystalline silica at or above 25μg/m3.
Training is another key requirement under the new standard. Construction employers are required to communicate and train employees on the hazards associated with crystalline silica under the Hazard Communication Standard and ensure that each employee has access to labels on containers of crystalline silica and safety data sheets. Training must address the hazards of cancer, lung effects, immune system effects, and kidney effects from exposure to respirable silica. Employers also must ensure that employees can demonstrate knowledge and understanding of:
- The health hazards associated with exposure to respirable crystalline silica;
- The specific tasks in the workplace that could result in exposure to respirable crystalline silica;
- The specific measures the employer has implemented to protect employees from exposure to respirable crystalline silica, including engineering controls, work practices, and respirators to be used;
- The contents of the new standard; • The identity of the competent person; and
- The purpose and a description of the medical surveillance program.
Plan of Action
Because of the significant costs and rigorous requirements of the new standard, employers should review their silica program now and develop a timeline for meeting the compliance obligations under the new standard. A proposed plan of action should consider the following:
- Review any existing equipment to determine whether it can be retrofitted with local exhaust ventilation (e.g., vacuums), a water delivery system or some other control, or whether new equipment will need to be found and purchased. Take an accounting of both.
- Research vendors and the costs to retrofit or purchase new equipment. Determine the overall costs and unit price for making upgrades or purchasing new equipment and develop a purchasing plan that spreads costs over the next 13 months. Coordinate with your occupational health medical partner (or find one if you do not already have a partner in place) to assist you in meeting the medical examination requirements. They can help you understand the medical requirements and come up with a program to ensure that the requirements are completed in the most cost effective manner possible.
- Develop records or procedures to ensure that you are able to keep track of which employees have received a medical examination and when medical examinations are due.
- Review Table 1 tasks and determine if your operations can fit neatly within the enumerated tasks, and if adoption of Table 1 is feasible, paying close attention to the work practice controls discussed.
- If unable to adopt Table 1, consider the exposure level of your employees and whether their exposure to respirable crystalline silica is reasonably expected to be at or above the action level of 25μg/m3 (the answer will usually be yes in light of how low the action level is).
- Locate a vendor who can perform exposure monitoring, or consider whether you should hire an industrial hygienist or other individual with training on correctly performing exposure monitoring as part of your full-time staff. If frequent monitoring is necessary due to the various types of jobs or variable nature of the work, hiring someone trained on this task may be a more cost effective approach.
- Draft your written exposure control plan and any necessary forms that will be used for each project after you have determined the engineering controls, work practice controls and respirators that you need to implement.
- Designate your competent person(s) to implement the written exposure control plan and consider whether they need additional training on the hazards of silica, identifying silica exposure and inspecting for compliance.
- Revise your safety manual to reflect the new requirements.
- Update your training materials and ensure that you have covered the necessary components of the rule and have methods in place for documenting the knowledge and understanding of employees.
- Consult an attorney or a safety health professional if you have questions or need assistance!
ABOUT THE AUTHOR
Nickole Winnett is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. and is a member of the Employment Litigation practice group and the Workplace Safety and Health practice group. She routinely advises clients regarding all aspects of the employment relationship, including safety and health counseling in the construction and manufacturing industry. She may be reached by email at nickole.winnett@jacksonlewis.com.
