On March 25, 2016, the Occupational Safety & Health Administration (OSHA) published its long-awaited final rule (606 pgs) establishing a stand-alone standard governing occupational exposure to respirable crystalline silica (RCS) in construction, general industry, and maritime workplaces. This brings to a close a 2-decade effort to update and expand the current standard, set in 1971, which had a Permissible Exposure Limit (PEL) of 250 ug/m3 for RCS in the construction sector and maritime sectors, and a 100 ug/m3 PEL in general industry, but no other employer requirements or protections for workers. All that is about to change in a big way.
THE NEW RULE
The new rule lowers the PEL to 50 ug/m3 for all industry sectors, with an Action Level (AL) of 25 ug/m3 that serves as the trigger for certain requirements of the rule. While most industries have an extended period for compliance, the construction industry was singled out for a quicker timeline, and will have to implement the rule by June 23, 2017. General industry and maritime have until June 23, 2018, to comply and until June 23, 2020, to offer medical surveillance to employees who are exposed between the AL and the PEL for more than 30+ days per year. The hydraulic fracturing (fracking) industry has until June 23, 2021, to fully comply.
Most employers will need to conduct exposure monitoring of workers using personal samples initially and at certain intervals (as explained below). Depending upon exposures and duration of exposures, medical surveillance of workers may be required, as well as implementation of engineering and work practice controls, and use of personal protective equipment (appropriately rated respirators) after all feasible engineering and administrative controls have been implemented and the RCS level still cannot be brought below the new PEL. Employers will also have to develop a written exposure control plan, and construction employers must designate a competent person to develop and implement the control plan.
HEALTH EFFECTS OF EXPOSURE
In publishing the final rule, OSHA made certain findings concerning the health effects of occupational exposure to RCS: It found that it is a human carcinogen that can result in lung cancer, that it causes silicosis at high exposures and/or for long exposure periods, that it can lead to development of chronic obstructive pulmonary disease (COPD), and that it can also trigger renal (kidney) disease. It is suggested that silica exposure can also be associated with development of autoimmune disorders.
All workers will have to be trained on these health effects (the purpose of the rule), what steps the employer is taking to reduce RCS exposures, what PPE must be used, the aspects of the written exposure control plan, and any regulated areas where workers should not enter except when properly protected and only for work-related reasons. Training must be documented under both the hazard communication standard (reviewing the SDS for silica-containing products) and under the distinct silica standard.
Employers will need to make medical surveillance available at no cost to each employee who is exposed to RCS at or above the Action Level of 25 ug/m3 for 30+ days per year. The exams must be done by a licensed health care professional initially and then every 3 years (or more if the health care professional recommends it).
Records of employees’ exposure monitoring results and medical surveillance information will have to be retained and made available to OSHA inspectors (and employees) for duration of employment plus 30 years, pursuant to 29 CFR 1910.1020. Employers should be aware that this information, particularly if it documents overexposures or gradual development of respiratory impairment, can be used in litigation down the road in workers’ compensation proceedings or third-party tort actions (by temporary employees, contingent workers, and subcontractors who subsequently become ill) to show a causal relationship between occupational exposures and disease development.
Because some of these silica-associated conditions, particularly lung and kidney cancer and silicosis, have long latency periods, health claims against the employer may be dormant for as long as 20-40 years. Most states allow health claims to be brought once the claimant becomes aware that they are ill, so the statute of limitations on workers’ compensation and tort actions would be “tolled” until such time as the disease becomes symptomatic.
OSHA provided “Table 1” listing 18 construction tasks/equipment and specified engineering, work practice, and respiratory protection specifications for each. If the employer follows these exactly, no citation will be issued even if the PEL is exceeded, and no exposure monitoring for that task is required. However, if the employer deviates from what is specified or wishes to protect workers in a different manner, then the air sampling will be required at the intervals set forth in the rule.
FINAL RULE BEING CHALLENGED
No sooner was the rule published than the lawsuits were filed. Currently, most major associations have challenged the rule in court, including: ABC, AGC, ARTBA, MCAA, NAHB, and NAM. They claim that the rule is based on bad science, that the PEL and AL cannot feasibly be attained (economically or technologically), that costs were underestimated, that the Regulatory Flexibility Act was violated, and that OSHA cannot reliably sample down to the PEL and AL for enforcement purposes. Meanwhile, the AFL-CIO has sued OSHA, claiming that a 25 ug/m3 PEL should have been adopted. Although the rule’s ultimate fate will be decided by the court, it is unlikely that implementation will be stayed and so construction employers need to get ready now … June 2017 is not far away and there is a lot of work to be done. ■
About The Author: 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 employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions – April 2016
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