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After a relatively quiet first term on the regulatory front, OSHA is quickly ramping up its rulemaking agenda. No potential rule is poised to impact the construction industry more than OSHA’s proposal to comprehensively regulate crystalline silica. If adopted, the rule would significantly reduce the permissible exposure limit (PEL) for crystalline silica and require contractors to implement engineering controls and follow several “ancillary” provisions, such as exposure monitoring, medical surveillance and the establishment of regulated areas.

Crystalline silica is the second most common mineral in the Earth’s crust and is a major component of many building materials. Silica is ubiquitous on jobsites and occupational exposure can occur in a number of construction activities.

Inhalation of respirable crystalline silica has been linked to silicosis, a lung disease that results in fibrous or scar tissue formations in the lungs that reduce the ability to extract oxygen from the air. According to the Centers for Disease Control, the silicosis mortality rate in the U.S. declined 93 percent from 1968 to 2007—falling from 1,157 deaths to about 150.

While any silica-related death is one too many, the data indicates mortality from the disease is vanishing under the current PEL, calculated as an eight-hour, time-weighted average of 250 micrograms per meter (µg/m³) in construction. Despite this information, the proposed rule would reduce the PEL for construction to 50µg/m³with an Action Level of 25µg/m³.

Following are other requirements of OSHA’s proposal.
  • Monitor employees who are, or may reasonably be, expected to be exposed to respirable crystalline silica at or above the Action Level of 25µg/m³. Notify each affected employee in writing of the results of the monitoring or post the results in a location accessible to all affected employees. Whenever exposure is above the PEL, employers must describe the corrective action being taken to reduce employee exposure to or below the PEL.
  • Establish and implement either a regulated area or a written access control plan whenever an employee’s exposure to respirable crystalline silica is, or can reasonably be expected to be, in excess of the PEL.
  • Provide appropriate protective clothing such as coveralls or similar full-bodied clothing, or any other means to remove excessive silica dust from contaminated clothing, if there is a potential for employees’ work clothing to become grossly contaminated with crystalline silica.
  • Provide respiratory protection where exposures exceed the PEL during periods necessary to install or implement feasible engineering and work practice controls; where exposures exceed the PEL during work operations for which engineering and work practice controls are not feasible; during work operations for which an employer has implemented all feasible engineering and work practice controls and such controls are not sufficient to reduce exposures to or below the PEL; and during periods when the employee is in a regulated area or when an access control requires use of a respirator.
  • Provide medical surveillance (at no cost to the employee) for each employee who will be occupationally exposed to respirable crystalline silica above the PEL for 30 or more days per year. Medical surveillance includes an initial medical examination within 30 days after initial assignment, unless the employee has received a medical examination that meets the requirement within the last three years, and periodic medical examinations at least every three years.
  • 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. 
The proposal also puts forth a somewhat unique approach to compliance for construction employers. OSHA has designed a “Table 1” for contractors that includes specific job tasks, engineering controls and respiratory protection that, if followed, would constitute compliance with the proposed PEL and the standard’s exposure monitoring requirements. Employers following Table 1 would still need to comply with the ancillary provisions in the rule. This specific option is designed to ease compliance for construction employers; however, many stakeholders contend its obligations are ambiguous and difficult to achieve.

Construction employers should stay tuned to this important rule, as OSHA is expected to move quickly to finalize the proposal now that the comment period has closed.

Nickole Winnettand Bradford Hammock are attorneys in the Washington, D.C., region, office of Jackson Lewis, P.C. For more information, visit www.jacksonlewis.com or www.oshalawblog.com.

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