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October 4, 2017Client Alert

OSHA Begins Enforcing New Respirable Silica Rules in Construction Industry

The Occupational Safety and Health Administration (OSHA) began enforcing its respirable crystalline silica rule for the construction industry on Friday, September 23, 2017.

Originally set to go into effect in June, the Department of Labor (DOL) and OSHA delayed enforcement of the rule by 90 days. The delay was intended to provide DOL and OSHA additional time to issue guidance to industry regarding compliance.  

Respirable crystalline silica is airborne particles containing quartz, cristobalite or tridymite that meet certain size specifications. OSHA estimates that about 1.85 million workers in construction workplaces are exposed to respirable silica dust during activities such as grinding, cutting or crushing brick, concrete, stone and other masonry materials. The construction silica rule is a companion to OSHA’s general industry silica rule that is enforceable beginning June 23, 2018.

In a memorandum to regional OSHA administrators, Acting Deputy Assistant Secretary of Labor for OSHA Thomas Galassi said that OSHA will evaluate good faith efforts taken by employers to comply with the new standard during the first thirty days of enforcement. However, if an employer makes no effort to comply, OSHA may inspect, collect air samples and consider employers for citation. General contractors should collaborate with subcontractors to ensure that all personnel on their sites are taking steps to achieve compliance.

The rule significantly lowers the permissible exposure limit (PEL) for respirable silica dust in the construction industry, imposing a 50 microgram per cubic meter (μg/m3) exposure limit, calculated as an eight-hour time-weighted average (TWA). This new uniform numeric-value standard replaces a prior formula-based standard that varied depending on the composition of silica present and often permitted higher exposures.

Employers subject to the construction rule may comply in one of two ways. First, for certain listed tasks involving materials containing crystalline silica, the employer may comply by fully and properly implementing required engineering and work practice controls and respiratory protection as prescribed by Table 1 of the rule. Thus, an employer may be able to fully comply with the rule by implementing dust control measures such as water dust suppression or vacuum dust collection meeting the particular requirements for the activity.

In the alternative, an employer may comply by completing “exposure assessments,” of employees above the action level of 25 micrograms per cubic meter, expressed as an eight-hour TWA.

Employers choosing the “exposure assessment” option may meet their obligations by (1) using air monitoring data or objective data to characterize and monitor employee exposures to ensure compliance or (2) adopting a scheduled monitoring procedure to identify and periodically evaluate the exposure of employees who may be above the action limit of 25 micrograms per cubic meter when measured as an eight-hour TWA. Based on the results of the exposure assessments, the employer must implement engineering and work practice controls to limit exposures to or below the PEL, where feasible. If attaining employee exposure levels below the PEL is not feasible, the employer must implement controls to reduce respirable silica to the lowest feasible level and provide employees with respirators compliant with federal regulations.

The rule also contains several ancillary requirements. Under the rule, employers must:

  • Make medical screening available to employees who are required to use a respirator more than 30 or more days per year;
  • Develop a written exposure control plan;
  • Maintain certain records; and
  • Comply with certain limitations on housekeeping practices, such as using wet sweeping, HEPA-filtered vacuuming, or other methods designed to reduce employee exposure when feasible.

OSHA’s enforcement approach means that employers need not solve respirable silica problems overnight, but immediate good faith efforts are necessary to avoid potential citations. If you are digging, breaking up, or cutting pavement or other hard structures, drilling rock/wells, mixing concrete, tunneling, repairing/relining rotary kilns or cupola furnaces where dust is airborne, and of course if you are sand blasting, action is necessary now.  If OSHA inspectors observe airborne dust in connection with these activities, they will ask what you have done to address silica issues.  It’s best not to approach silica issues by burying your head in the sand.  Start by evaluating exposure, followed by evaluating engineering and other controls, and utilize proper respiratory protection until you are satisfied employee exposure is below OSHA limits.  Put the plan to do this in writing this month with target dates, and then follow the plan.

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