New OSHA Rule On Respirable Crystalline Silica will Affect Construction Employers.

By: Don Benson and Crighton Allen

OSHA is proposing a new construction standard to protect workers from exposure to respirable crystalline silica. The proposed Regulation has been forwarded by OSHA to the Office of Management and Budget for final review. OSHA’s proposal, generally, is to lower the existing permissible exposure limits (adopted in 1971) by about 50%.
Among their many changes, the new OSHA rules will now require construction employers to:

• Measure the amount of silica that workers are exposed to if it may be at or above an action level of 25 μg/m3 (micrograms of silica per cubic meter of air), averaged over an 8-hour day;

• Protect workers from respirable crystalline silica exposures above the PEL of 50 μg/m3, averaged over an 8-hour day;

• Limit workers’ access to areas where they could be exposed above the PEL;

• Use dust controls to protect workers from silica exposures above the PEL;

• Provide respirators to workers when dust controls cannot limit exposures to the PEL;

• Offer medical exams—including chest X-rays and lung function tests—every three years for workers exposed above the PEL for 30 or more days per year;

• Train workers on work operations that result in silica exposure and ways to limit exposure;

• Keep records of workers’ silica exposure and medical exams.

OSHA estimates its proposed silica rules would impact 486,000 different construction entities employing more than 1.8 million workers. The regulator further estimates that about only 14 percent of the workers in construction actually engage in activities involving silica exposure. The proposed rule requires construction employers to implement engineering and work practice controls as the primary means to reduce exposure to the PEL or to the lowest feasible level above the PEL. In situations where engineering and work practice controls are not sufficient to reduce exposures to or below the PEL, construction employers are required to supplement these controls with respiratory protection, according to the requirements of paragraph (g) of the proposed rule.

Where controlling the amount of silica that will be released is not feasible, employers may be required to provide their employees with respirators. However, to be effective, respirators must be individually selected; fitted and periodically refitted; conscientiously and properly worn; regularly maintained; and replaced as necessary. In many workplaces, these conditions for effective respirator use are difficult to achieve. The absence of any one of these conditions can reduce or eliminate the protection the respirator provides to some or all of the works that that use it. For example, certain types of respirators require the user to be clean shaven to achieve an effective seal where the respirator contacts the worker’s skin. Failure to ensure a tight seal due to the presence of facial hair compromises the effectiveness of the respirator. In an constriction environment especially, which are already hot and dusty places, one can understand how the prospect of wearing a respirator might be unappealing to many workers.

OSHA has regulated workers’ exposure to crystalline silica for over 40 years, through its so-called permissible exposure limit, or “PEL” rules. In 2013, however, OSHA decided its regulations in this area were outdated and published comprehensive proposals to lower significantly the PEL, and related provisions intended, in the agency’s opinion, to further protect workers. After a period of public review and comment, OSHA sent its proposed rules to the OMB for final review on December 21, 2015. The proposals are broken down into two categories, one targeted at the construction industry and the other at general industry and maritime.

OSHA projects the new proposals will provide average net benefits of about $2.8 to $4.7 billion annually over the next 60 years, and estimates the average cost of compliance for a business falling into in the general industry category would be about $2,600 per year, and for construction, about $1,000. For those interested in further information, OSHA has published fact sheets on its crystalline silica regulations, available here and here.