Silica Rule Released: MCAA Has Serious Concerns Over the New PEL

Silica Rule Released: MCAA Has Serious Concerns Over the New PEL

The new silica rule was recently released from OSHA. As expected, the rule was not a workable solution for the issue of silicosis. The MCAA has been a part of an industry group called the Construction Industry Safety Coalition (CISC). The CISC drafted thousands of pages of documents and support material during the comment period of the initial rule including economic impact studies that were much different than OSHA’s study and much of our concern over the technological feasibility of the rule. The MCAA and the coalition continues to have serious concerns over the new PEL and the action level.

That being said, there were changes from the proposed rule versus the new rule. Many of the changes were positive changes that the CISC requested. In particular, the new rule drafted two separate rules – one for general industry and one for construction. That was a huge issue for the CISC as the original rule had everyone lumped together. In a OSHA fact Sheet on the construction rule, OSHA specifically states that the rule does not apply where exposures will remain low under any foreseeable conditions; for example, when only performing tasks such as mixing mortar. In addition, the new rule has changed table 1. Most significantly, table 1 exposure controls will now exempt employers from monitoring and complying with the new PEL and action level. It specifically states, “that employers who follow table 1 are not required to measure worker’s exposure to silica and not subject to the new PEL”. This is a difference the coalition also pushed for, as the proposed rule did not grant that exemption. OSHA goes on in a question and answer segment of the new rule to state that, “OSHA expects most construction employers to implement the specified exposure control methods in table 1 and will not be required to conduct exposure assessments (air monitoring).” This was their rationale for implementing the start date for the construction year one full year earlier than that of general industry.

Everyone regardless of whether they utilize table 1 or not will have to implement two brand new items that were released in the new rule and not part of the proposed rule. They are: establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers, including procedures to restrict access to work areas where exposures may occur. The second addition is to designate a competent person to implement the written exposure control plan. The MCAA is working to draft a solution for contractors to these two new provisions, which are not required by the new rule to be implemented until June 23, 2017. Look for this solution early this fall.

The MCAA and its coalition have filed a complaint and appeal of the new rule in Federal Court and will have it’s case heard in the Washington DC circuit court of appeals. There were positive steps to improve the rule, but there are still fundamental flaws and issues with the rule that need to be addressed. The construction rule will begin to be enforced on June 23, 2017 except for requirements that require laboratory evaluation of exposure samples, which begin June 27, 2018 (if you do not use table 1).

The MCAA will be offering a free webinar on May 10, 2016, which will be conducted by Jackson Lewis, the MCAA and coalition law firm that has handled the silica rule and will be handling the appeal of the rule. The webinar is intended to let contractors know what the new rule means to them. A full description is below:

The Occupational Safety and Health Administration (OSHA) has just issued its long-awaited final rule regulating respirable crystalline silica. The rule is one of the largest in OSHA’s history and will have a profound impact on mason contractors across the country. The rule becomes effective on June 23, 2016, although a phase-in schedule gives construction until June 23, 2017 to be fully compliant. The rule significantly reduces the permissible exposure limit (PEL) in construction and imposes other ancillary requirements such as medical surveillance, hazard communication and training, and recordkeeping. While OSHA has given construction employers a year to come into compliance, employers should start preparing now to ensure their controls and work practices meet the new standard.

This webinar will examine the new rule and help contractors understand and meet their compliance obligations.

We would highly recommend every mason contractor register for the webinar today. Visit to register for free.

Look for more information and compliance assistance from the MCAA in coming months. The costs to help fight the new silica rule will be an expensive one. If you would like to support the MCAA’s pursuit of changes to the rule, please consider giving to that effort today. You can do so at the link below:

Jeff Buczkiewicz is the President and CEO of the Mason Contractors Association of America. Jeff has worked in the masonry industry for several years as the Executive Vice President of the Building Stone Institute and the Director of Marketing and Membership for the Mason Contractors Association of America. Jeff has also served as Secretary on the Board of the Natural Stone Council and is a former Board Member of the StonExpo Federation.

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