As of October 23, 2017, the Occupational Safety and Health Administration (“OSHA”) began full enforcement of the Respirable Crystalline Silica in Construction Standard, 29 C.F.R. 1926.1153 (the “Silica Standard”). This Silica Standard requires employers in the construction industry to protect employees from occupational exposure to silica dust that rises above prescribed limits. Any construction company that routinely – or even periodically – encounters silica should consult the Silica Standard.
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. OSHA has estimated that approximately two million construction workers encounter silica dust as part of their jobs. When inhaled, silica dust may cause or contribute to a variety of serious health conditions, including silicosis, lung cancer, and kidney disease. It is estimated that 840,000 of these construction workers are exposed to levels that exceed the permissible exposure limits. Because of these serious health risks due to overexposure silica dust, OSHA has endeavored to protect employees that are exposed to more than 25 micrograms per cubic meter of air (25 µg/m3) of silica dust, averaged over an eight-hour day.
When potential exposure to silica dust exceeds 25 µg/m3, averaged over an eight-hour day, the Silica Standard obligates covered employers to take action. An employer must take one of two courses of action. The employer may implement specified engineering controls, work practices, and respiratory protections listed in OSHA’s Table 1 at 29 C.F.R. 1926.1153. Or, if the type of work performed is not listed in Table 1 or the employer cannot or will not comply with protective measures listed in Table 1, the employer must measure and assess the exposure levels of silica dust and implement alternative exposure control methods.
Table 1 lists eighteen common construction tasks that result in exposure to silica dust, such as using jackhammers and handheld powered chipping tools or using dowel drilling rigs for concrete. Next to each construction task in Table 1 is a listing of specific engineering and work practice control methods employers must use to protect against overexposure to silica dust. For example, when an employee is using a rig-mounted core saw or drill, the employer must require the employee to use equipment that has an integrated water delivery system that supplies water to the cutting surface and to operate and maintain the equipment per manufacturer’s instructions to minimize dust emissions. Table 1 might also require the employee performing the task to wear certain specified respiratory protective equipment. By referring to Table 1, an employer must confirm four things: (1) its employees perform one of the enumerated eighteen construction tasks, (2) potential exposure to silica dust exceeds 25 µg/m3, averaged over an eight-hour day, (3) the employee follows the prescribed engineering and work practice control methods, and (4) the employee wears any required respiratory protective equipment. Upon doing this, OSHA deems that the employer will be compliant with the Silica Standard.
Alternatively, if the construction task is not listed in Table 1 or the employer cannot or will not comply with the prescribed protections in Table 1, an employer must independently measure levels of silica dust and identify the appropriate exposure control method. Under this alternative, an employer must use dust control measures 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. Per this alternative action plan, the employer must take care to follow the prescribed “exposure assessment” with proper use of laboratory analysis, notification of the results to employees, and opportunities for employees to observe employee monitoring. Along with the exposure assessment, the employer must take the following courses of action: (a) create and implement a written exposure control plan, and designate a competent person to implement the plan; (b) limit housekeeping work that exposes workers to silica dust when feasible alternatives exist; (c) offer medical exams to workers under certain circumstances; (d) educate workers on activities that result in exposure to silica dust and provide training on methods to limit exposure; and (e) maintain records of exposure and medical exams for each worker.
While the Silica Standard endeavors to protect the health and safety of construction workers, the Silica Standard will likely require employers to spend money to achieve compliance. For example, the Silica Standard 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 Silica Standard already faces legal challenges. Shortly after OSHA published notice of the final version of Silica Standard in March 2016, industry groups took immediate action and filed lawsuits in numerous federal circuits, arguing the Silica Standard is not technologically and economically feasible for the construction industry. This multi-district litigation is presently being reviewed and litigated in the D.C. Circuit. While these lawsuits may impact the long-term viability of the Silica Standard, they have not prevented the Silica Standard from taking effect or postponing the enforcement of the Silica Standard. Some predict that a version of the Silica Standard will survive the legal battle. Employers in the construction industry should review the requirements of the Silica Standard, take steps to ensure compliance, and monitor the pending legal challenges with their legal counsel.
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