OSHA Begins Enforcement of Respirable Crystalline Silica in Construction Standards

by Wendel, Rosen, Black & Dean LLP

On October 23, 2017, the U.S. Occupational Safety and Health Administration (OSHA) began enforcement of its Respirable Crystalline Silica in Construction Standard (Construction Silica Standard). OSHA enforcement of its Construction Silica Standard actually began on September 23, 2017, but for a period of 30 days, OSHA offered compliance assistance in lieu of enforcement for employers who were making good faith efforts to comply with the Construction Silica Standard.

California’s Occupational Safety and Health Administration (Cal/OSHA) has a nearly identical construction silica standard that requires employers to limit worker exposure to respirable crystalline silica above 25 micrograms per cubic meter of air (25 μg/m3) as an 8-hour time-weighted average (TWA) under any foreseeable condition.

What is Crystalline Silica?

Crystalline silica is a common mineral found in the earth’s crust. Materials like sand, stone, concrete, and mortar contain crystalline silica. It is also used to make products such as glass, pottery, ceramics, bricks, and artificial stone. Respirable crystalline silica – very small particles at least 100 times smaller than ordinary sand  – is created when cutting, sawing, grinding, drilling, and crushing stone, rock, concrete, brick, block, and mortar. Workers who inhale these very small crystalline silica particles are at increased risk of developing serious silica-related diseases, including:

  • Silicosis, an incurable lung disease that can lead to disability and death;
  • Lung cancer;
  • Chronic obstructive pulmonary disease (COPD); and
  • Kidney disease.

What is the Construction Silica Standard?

There are actually two new federal respirable crystalline silica standards: one for construction and the other for general industry and maritime. OSHA began enforcing most provisions of the standard for construction on September 23, 2017, and will begin enforcing most provisions of the standard for general industry and maritime on June 23, 2018. Cal/OSHA has indicated that it will be enforcing its construction silica standard at the same time.

The Construction Silica Standard requires employers to limit worker exposure to respirable crystalline silica and provides two compliance alternatives:

  1. Control Method: A “control method” in which employers implement engineering controls, work practices and respiratory protection specific to certain tasks and equipment; and
  2. Assessment Method: An “assessment method” in which employers assess and monitor the exposure of employees who are or may reasonably be expected to be exposed to respirable crystalline silica above an action level (AL) of 25 μg/m3 as an 8-hour TWA.

What does the “control method” require?

The “control method” is set forth under Table 1 of the federal regulations and lists 18 different tasks and equipment, such as stationary masonry saws and handheld power saws used for cutting fiber-cement board, engineering and work practice controls, such as perfuming tasks outdoors only, and respiratory protection requirements broken down into shifts of less than 4 hours and more than 4 hours. An example of Table 1 is below:

What does the “assessment method” require?

The “assessment method” applies to tasks not listed in Table 1, or where an employer does not fully and properly implement the engineering controls, work practices and respiratory protection listed in Table 1. Under the “assessment method”:

  1. Permissible Exposure Limit: Employers must ensure that no employee is exposed to respirable crystalline silica in excess of a permissible exposure limit (“PEL”) of 50 μg/m3 as an 8-hour TWA.
  2. Exposure Assessment: Employers are required to assess the exposure of each employee who is or may reasonably be expected to be exposed to respirable crystalline silica at or above the AL of 25 μg/m3 as an 8-hour TWA through either: (a) any combination of air monitoring data or objective data sufficient to accurately characterize employee exposure to respirable crystalline silica (performance option); or (2) perform initial monitoring on the basis of one or more personal breathing zone air samples on each shift, for each job classification, in each work area (scheduled monitoring option).
  3. Scheduled Monitoring Option: If initial monitoring indicates employee exposures are below the AL, the employer may discontinue monitoring for those employees. If monitoring indicates that employee exposures are at or above the AL but at or below the PEL, the employer is required to repeat monitoring within six (6) months of the most recent monitoring. If monitoring indicates that employee exposures are above the PEL, the employer is required to repeat monitoring within three (3)  months of the most recent monitoring. If non-initial monitoring indicates employee exposures are below the AL, the employer is required to repeat monitoring within six months of the most recent monitoring until two (2) consecutive measurements, taken seven (7) or more days apart are below the action level, at which time the employer may discontinue monitoring. Employers are required to reassess exposures whenever a change in the “production, process, control equipment, personnel, or work practices” may reasonably be expected to result in new or additional exposures at or above the AL.
  4. Employee Notification and Right to Observe: Employers are required to notify each employee in writing of the results of an exposure assessment within five (5) working days after completing an assessment. If an exposure assessment indicates that employee exposure is above the PEL, the employer is required to describe in the written notification the corrective action being taken to reduce employee exposure to or below the PEL. Employers are required to provide employees or their designated representatives with an opportunity to observe any monitoring of respirable crystalline silica.

Are there other employer requirements other than the “control method” and “assessment method”?

Yes. Regardless of which exposure control method is used, all construction employers covered by the standard are required to:

  • Establish and implement a written exposure control plan that identifies tasks that can result in silica exposure, the engineering controls, work practices, and respiratory protection that will be used to protect workers, and the procedures to restrict access to work areas where high exposures may occur.
  • Designate a competent person to implement the written exposure control plan by making frequent and regular inspections of job sites, materials and equipment.
  • Prohibit dry sweeping and dry brushing where such activities could expose workers to silica, unless wet sweeping, HEPA-filtered vacuuming, or other methods that minimize the likelihood of exposure are not feasible.
  • Offer medical exams—including chest X-rays and lung function tests—initially (if not received within the last three years by another employer) and every three years for workers who are required by the standard to wear a respirator for at least thirty (30) days a year.

Are there other resources to help me comply with the Construction Silica Standard?

Yes. OSHA has published the OSHA Small Entity Compliance Guide for Construction, a summary of the Construction Silica Standard, and frequently asked questions regarding the Construction Silica Standard.

Photo credit:  Chance_R._Keiter, distributed under a CC-BY 2.0 license.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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