OSHA Seeks Comments On New Proposed Standards For Control Of Workplace Exposure To Crystalline Silica

by Pepper Hamilton LLP

On August 23, 2013, the federal Occupational Safety and Health Administration (OSHA) announced a proposed rule regarding workplace exposure to crystalline silica. In fact, two separate rulemakings are anticipated: one that will apply to general industry and maritime, and a second applying to the construction industry. Existing permissible exposure limits (PELs) were established by OSHA more than 40 years ago, in 1971, and have never been updated. OSHA now believes that the PELs, as well as the industry requirements for managing worker exposure to silica dust, are outdated. The rules are expected to be published soon in the Federal Register, and the regulated community will have 90 days to submit comments – although it appears that the long-awaited rulemaking could drag on for some time to come, as the proposal by OSHA invites the public to not only submit comments but to propose other alternatives to those contemplated by the agency.

Crystalline silica dust is generated in activities such as cutting, sawing, and drilling of concrete, brick, block and other stone products and in operations using sand products, such as in glass manufacturing, foundries and sand blasting. OSHA has determined that exposure to respirable crystalline silica creates an elevated risk of lung cancer, silicosis, non-malignant respiratory disease (NMRD), chronic obstructive pulmonary disease (COPD) and autoimmune and renal diseases. This risk is created by inhalation of very small, airborne particles of crystalline silica dust, which embed themselves in the lungs and cause inflammation and scarring. OSHA estimates that, once fully implemented, the new rules, each year, will save nearly 700 lives and prevent 1,600 new cases of silicosis.

The proposed rule eliminates the formula currently required to calculate the applicable permissible exposure limit (PEL) and replaces it with a single PEL applicable to all regulated industries – 50 micrograms per cubic meter of air (ug/m3). The rule will also create an “action level” of 25 ug/m3 (averaged over an eight-hour day). While OSHA plans to create two parallel but distinct standards (one for general industry/maritime and one for construction), the single PEL is currently proposed for all affected industries. If workers will be exposed to crystalline silica above the PEL, such exposure must be limited and dust control methods must be implemented. Dust control methods may include wetting the material and/or vacuum dust collection and ventilation systems. The rule will also require use of respirators where dust control measures are not effective, exposure assessments and monitoring, medical exams for workers, training, hazard communication and recordkeeping requirements. Notably, OSHA has indicated that, even if engineering controls and/or work practices are insufficient, employers will still be required to implement them – and then supplement them with a respiratory protection program. In spite of the numerous requirements imposed by the rule, OSHA estimates that compliance will cost only about $1,240 annually for the average workplace and $550 annually for workplaces with fewer than 20 employees.

A number of issues are clearly far from resolved, and even OSHA is encouraging the regulated community to propose alternatives to almost every facet of the proposed rule. There will be a 90-day window for public comment after the rule is published in the Federal Register. Depending upon the volume and nature of comments, OSHA could elect to extend the comment period. However, those who will be affected by this rule are encouraged to become educated about the rule and participate in the comment period.

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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