OSHA recently issued a final rule on crystalline silica exposure. (§1926.1153). Beginning in June 2017 for the construction industry and June 2018 for the maritime and general industry, employers that engage in silica generating applications, such as cutting, grinding, drilling or breaking concrete and/or masonry, must fully comply with the new standard and have a written exposure plan on file. This rule impacts 2 million construction workers and 300,000 workers in general industry operations such as brick manufacturing, foundries and hydraulic fracturing. OSHA estimates the total annualized cost of the rule to be just over $1 billion. However, OSHA also estimates approximately $8.7 billion per year in monetized benefits due to preventing fatal cancers and other diseases caused by silica exposure.
Currently, OSHA’s permissible exposure limit (PEL) for respirable crystalline silica is based on a formula which estimates employees’ exposure based on the silica percentage found in an air monitoring sample. However, the new rule changes the PEL from a formula to a specific number, which is significantly more stringent than the prior standard. The new PEL is 50 µg/m3 with an action level of 25 µg/m3. The new rule also requires employers to use engineering controls to limit worker exposure to the PEL by providing respirators when engineering controls cannot adequately limit exposure, limit worker access to high exposure areas, develop a written exposure control plan, offer medical exams to highly exposed workers and train workers on silica risks and how to limit exposure.
Alternatively, for employers in the construction industry, OSHA is providing what it describes as “flexible alternatives.” These employers may follow specific exposure control methods as outlined for specific tasks in what OSHA refers to as “Table 1,” which you may view here. Employers that follow Table 1 are not required to measure workers’ exposure to silica and are not subject to the PEL.
Employers who have previously conducted air monitoring as to all forms of crystalline silica, may have their safety managers or experts review the prior reports and reinterpret the lab results to determine if the results comply with the new limits. However, employers who have not previously conducted air monitoring will need to perform an initial assessment or performance based option. If the initial assessment reveals results below the action level (25 µg/m3), no additional monitoring is necessary. If the results exceed the action level, but are below the PEL (50 µg/m3), then the employer must repeat the assessment every six months. If the results exceed the PEL, then the employer must repeat the assessment every three months.
As this new rule has yet to take effect, we have not seen OSHA issue any fines for violations of this new rule yet. However, we expect such fines will be significant.
While we have not seen any cases addressing OSHA’s new rule, a number of appellate decisions address silica exposure in the context of the Illinois Occupational Disease Act. For example, in Shelton v. Indus. Comm’n, 267 Ill. App. 3d 211 (1994), the arbitrator held that Petitioner’s coal workers’ pneuomoconiosis was related to his exposure to coal dust, including silica, and his work as a welder.
Numerous industry trade groups filed legal challenges to the new rule’s validity, which have been consolidated in the D.C. Circuit. OSHA argues that the rule is necessary to help reduce lung cancer, silicosis and other chronic diseases in workers by limiting their exposure to silica. However, some of the rule’s opponents argue that the new rule is unnecessary as compliance with the existing standard fully protects workers and OSHA’s justification for the rule is not based on sound science. Specifically, they argue that there are no added health benefits to reducing the current PEL and point out that mortality rates from silicosis have declined more than 90% between 1968 and 2010. Additionally, they argue that OSHA ignored concerns about technological and economic feasibility of compliance. The petition for review with the D.C. Circuit is due to be fully briefed by the end of March 2017.
While these challenges remain pending, employers are subject to comply with the new rule as set forth above. Depending on the outcome of these legal challenges, the Trump administration may revise the new rule or challenge OSHA’s interpretation of the rule.
Practice Tips: Given the exposure for being assessed significant fines by OSHA, employers should begin planning how they will comply with this new rule now:
- Construction employers should review “Table 1” (as referenced above) and determine whether they will follow the procedures outlined in that table or measure and comply with the new PEL.
All employers should:
- Establish a written exposure control plan, identifying methods to protect workers from silica exposure;
- Train workers regarding silica exposure reduction;
- Document their efforts to comply with the new rule;
- Identify high exposure workers to whom they must offer medical exams.