OSHA’s long-awaited proposed standard to limit exposure to respirable crystalline silica in general industry, construction, and maritime operations was published in the September 12, 2013, Federal Register. OSHA has already announced that public hearings on the proposed rule will start on March 4, 2014. Anyone wishing to testify must notify OSHA by November 11, 2013. The deadline for written comments is December 11, 2013.
The proposal actually encompasses two standards, one that would cover general industry and maritime, and the other that would cover construction. OSHA also seeks comment on whether the “best practices” of voluntary consensus standard ASTM E2625-09 (silica in construction) should be referenced by the agency in the final rule.
Both standards would dramatically cut the permissible exposure limit (PEL) to respirable crystalline silica. The current limit for general industry translates to a PEL of 100 µg/m3 (micrograms per cubic meter of air) for an 8-hour time weighted average (TWA), while the current limit for construction is 250 µg/m3 for 8-hour TWA. Under the proposed rule, both standards would include a PEL of 50 µg/m3 for an 8-hour TWA, and an “action level” of 25 µg/m3. OSHA estimates that keeping exposures at or below the PEL will be infeasible for some construction tasks, such as abrasive blasting, tuckpointing, and grinding, in which case respiratory protection must be used by all exposed workers.
The construction standard would require employers to assess the exposure of workers who “are or may reasonably be expected to be” exposed to respirable crystalline silica at or above the action level. Such assessments would be made by taking breathing zone air samples but the proposal allows taking representative sampling where several workers do similar work, as long as sampling includes the employee(s) with the highest expected exposure.
When exposure is found to exceed the PEL, the employer must use engineering and work practice controls (other than job rotation) to reduce the exposure below the PEL. Worker rotation may be used as for reasons other than reducing silica exposure, such as for crosstraining or to allow workers to alternate physically demanding operations with less arduous ones. If engineering or work controls are not feasible, then the employer can rely on respirators to provide employee protection, but only after bringing exposure levels as low as possible first. Use of respirators also triggers the requirements of OSHA’s respiratory protection standard, such as fit testing and medical evaluations.
Another issue in the rulemaking process will be the accuracy of laboratory results for respirable crystalline silica levels as low as the action level, since the designated OSHA sampling/analytical method has precision only down to 50 µg/m3. If the exposures are above the action level but below the PEL, additional assessments must be conducted every 6 months. If exposure is above the PEL, assessments must be conducted every 3 months. In both cases, assessments must continue until two successive assessments show exposures are below the action level. In addition, assessments must be conducted whenever changes in production, process, equipment, personnel, or work practices could affect exposures.
For some types of construction work, those requirements would mean nearly endless exposure assessments. Therefore, OSHA proposes that an alternative be available, and lists 13 construction operations for which an employer could institute controls that are specified in the standard. If the employer institutes the specified controls, the employer would be relieved of the obligation to conduct exposure assessments, and the engineering controls, work practices, and respiratory protection specified for each operation would constitute compliance with the controls otherwise required by the standard.
OSHA has stated that the “task based control strategies” alternatives were the result of comments and suggestions made by the construction industry and by small business representatives and, as compared to the endless exposure assessments that might otherwise be required for certain operations to comply with the proposed standard, it does appear to be a preferable approach. However, there are a couple of catches. The proposal states that “For the purposes of complying with all other requirements of this section, the employer must presume that each employee performing an operation listed [in Table 1 of the proposal] that requires a respirator is exposed above the PEL, unless the employer can demonstrate otherwise.” Nearly all of the operations listed include use of a respirator if the operation lasts for more than 4 hours. Thus, it would be presumed that employee exposure is above the PEL for these work activities.
Under the proposed standard, any exposure above the PEL requires the establishment of either a “regulated area” or a written access control plan to limit access and entry to the area in which exposure is expected to be at or over the PEL. Persons entering the area would be required to wear a respirator. In addition, the employer may need to provide protective clothing for anyone entering the protected area.
In addition, the proposed standard requires that medical surveillance be provided for workers exposed to respirable crystalline silica above the PEL for 30 days or more per year, affecting construction workers predominantly. Medical surveillance includes an initial examination and periodic examinations at least every 3 years. Medical records, as well as any exposure records, must be retained by the employer for 30 years and made available to employees and unions.
OSHA has estimated that the proposed standard would cost construction employers about $500 million per year in compliance costs, and prevent about 1,000 cases of silicosis per year, plus reduce cancer risk, renal disease, and autoimmune disorders. Construction employers are advised to both participate in the rulemaking process and implement best practices now to prevent potentially harmful exposures. ■
About the Authors:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employers in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. Gary Visscher is “Of Counsel” at the Law Office of Adele L. Abrams PC, and is former Deputy Assistant Secretary of Labor, OSHA. For more information, visit www.safety-law.com.
Modern Contractor Solutions, October 2013
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