On March 23, 2016, the Occupational Safety and Health Administration (“OSHA”) published its final rule concerning occupational exposure to silica dust. See Occupational Exposure to Respirable Crystalline Silica, 81 Fed. Reg. 16,285 (March 23, 2016) (to be codified at 29 C.F.R. pts. 1910, 1915, & 1926) (the “Rule”). The Rule includes construction-specific requirements that obligate employers, in certain circumstances, to take steps to protect workers from exposure to silica dust. Any construction company that routinely – or even periodically – encounters silica should consult the Rule.
The Rule will take effect on June 23, 2016, and employers in the construction industry must achieve compliance with the Rule by June 23, 2017. The following paragraphs describe the purpose of the Rule, outline the general compliance requirements, and identify certain implications for the construction industry.
The Context of the Rule
Silica is a component of concrete, brick, stone, sand, and mortar, among other common construction materials. Common construction activities involving these materials (such as cutting, sawing, and drilling) often release silica dust into the air. When inhaled, silica dust may cause or contribute to a variety of serious health conditions, including silicosis, lung cancer, and kidney disease.
The Compliance Requirements
In light of the serious health risks posed by these typical construction activities, OSHA has strengthened the rules governing exposure to silica dust. When potential exposure exceeds 25 µg/m3, averaged over an eight-hour day, the Rule obligates covered employers to take a two-pronged approach to protect workers by (1) limiting workers’ exposure to the dust and (2) undertaking other efforts to maintain worker safety.
The Rule offers two alternatives with respect to limiting exposure. First, an employer may simply comply with the exposure control methods in Table 1 of the Rule, which enumerates eighteen common construction tasks and mandates certain control methods according to factors such as duration and location of exposure. Alternatively, an employer may independently measure levels of silica dust and identify the appropriate exposure control method. Under this alternative, an employer must use dust controls to ensure that exposure to workers does not exceed 50 µg/m3, averaged over an eight-hour day or, when dust controls are ineffective, provide respirators to workers to mitigate exposure.
The prescribed actions with respect to the second prong include (a) creating and implementing a written exposure control plan, and designating a competent person to implement the plan; (b) limiting housekeeping work that exposes workers to silica dust when feasible alternatives exist; (c) offering medical exams to workers under certain circumstances; (d) educating workers on activities that result in exposure to silica dust and providing training on methods to limit exposure; and (e) maintaining records of exposure and medical exams for each worker.
The Implications for the Construction Industry
OSHA has estimated that approximately two million construction workers encounter silica dust as part of their jobs. It is estimated that 840,000 of these workers are exposed to levels that exceed the permissible exposure limits. The Rule is intended to reduce the health risks and costs related to these workers.
On the other hand, the Rule will likely require employers to spend money to achieve compliance. For example, the Rule may require some employers to purchase respirators or other equipment to achieve compliance with exposure limits. Likewise, some employers may incur administrative costs to provide medical exams, train workers, and maintain records. Of course, fines or penalties for noncompliance will result in other costs.
Unsurprisingly, the Rule already faces legal challenges. By April 2016, industry groups had initiated two separate legal actions contesting the Rule in the Fifth Circuit Court of Appeals. The petitions allege that the Rule imposes economically and technologically infeasible requirements on the construction industry. While these lawsuits may impact the long-term viability of the Rule, they do not prevent the Rule from taking effect or postpone the Rule’s requirements.
OSHA has identified silica dust exposure as a serious threat to worker safety and has decided to take action. Without question, the Rule imposes burdens and obligations on employers in the name of worker safety. While these interests are certainly worth pursuing, the costs and other impacts – as well as the legality – of the Rule remain in question. To ensure compliance, a potentially impacted employer should review the requirements of the Rule, take steps to ensure compliance, and monitor the pending legal challenges with its legal counsel.
If you have any questions or need assistance, please contact one of Woods Aitken’s Construction Attorneys. For additional construction news, tips, and updates, we encourage you to view our Construction E-Brief archives.