It has been well over a year now since the Occupational Safety and Health Administration (“OSHA”) issued its final rule on exposure to respirable crystalline silica in the workplace. The final rule represented the culmination of decades of work by OSHA to promulgate a comprehensive health standard designed to reduce exposures to silica in construction, general industry, and maritime workplaces. The rule is one of the most significant health standards ever issued by the Agency and will have a profound impact on the construction industry generally, and mason contractors specifically.
Shortly after the final rule was promulgated, numerous groups filed challenges to the standard in the federal courts of appeals, citing concerns over OSHA’s health effects and risk analyses, technological and economic feasibility analyses, and the reasonableness of several ancillary provisions in the rule such as medical surveillance and the prohibition on dry sweeping and dry brushing. Those challenges were consolidated for review and they are still pending before the U.S. Court of Appeals for the District of Columbia Circuit.
OSHA originally established June 23, 2017, as the date that all construction employers must be in compliance with the requirements of the new rule, except for requirements for laboratory evaluation of exposure samples. These requirements take effect on June 23, 2018. However, earlier this year OSHA announced that it would delay enforcement of the standard for the construction industry by 90 days, until September 23, 2017. For mason contractors operating in federal OSHA states, that is currently the date that should be targeted for full compliance. Most states operating their own state-OSHA programs have also delayed enforcement of the standard or have yet to fully adopt the rule. Contractors operating in OSHA state-plan states should contact their respective state enforcement agencies to inquire as to the enforcement deadlines adopted.
While there is still some degree of uncertainty regarding the future of the rule, as well as the deadline for compliance in various states, contractors should be aggressively taking steps now to attempt to comply with the standard. There is no guarantee that federal OSHA will further push back enforcement of the rule. Contractors should be very familiar with the rule at this point and be developing their plan of action for compliance.
Requirements of the Standard
The respirable crystalline silica rule is a comprehensive health standard. It significantly reduces the Permissible Exposure Limit (“PEL”) for crystalline silica and requires construction employers to implement engineering and work practice controls and follow several other ancillary provisions, such as medical surveillance, a written exposure control plan, and housekeeping practices.
The standard sets a PEL of 50 μg/m3 (from the previous PEL of approximately 250 μg/m3) measured as an eight-hour time- weighted average (“TWA”). If workers are exposed to crystalline silica above the new PEL, employers must implement engineering controls to reduce exposures to below that level, before using respiratory protection. In other words, if workers are exposed above the PEL, employers must investigate and implement engineering solutions (such as wet methods, vacuums, shrouds, enclosures, or cabs) to reach levels below the PEL. Employers are not permitted to rely on respiratory protection to protect employees.
In addition to compliance with the PEL, under the rule all construction employers must:
- Establish and implement a written exposure control plan that identifies the tasks that can result in silica exposure, the engineering controls, work practices, and respiratory protection that will be used to protect workers, and the procedures to restrict access to work areas where high exposures may occur.
- Designate a competent person to implement the written exposure control plan by making frequent and regular inspections of job sites, materials, and equipment.
- Prohibit dry sweeping and dry brushing where such activities could contribute to employee exposure to respirable crystalline silica unless wet sweeping, HEPA-filtered vacuuming or other methods that minimize the likelihood of exposure are not feasible.
- Offer medical examinations at no charge to employees—including chest X-rays and lung function tests—initially (if not received within the last three years by another employer) and every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
In the standard, OSHA is also restricting the information that employers are permitted to receive regarding an employee’s medical condition. Unless the employer receives written authorization from an employee, the employer is only allowed to receive information regarding a medical examination that includes the date of the examination, a statement that the examination complied with the requirements of the standard, and any recommended limitations on the employee’s use of respiratory protection.
OSHA also has implemented a unique, alternative approach to compliance with the revised PEL and exposure monitoring requirements for construction employers. Construction industry employers are exempt from meeting the PEL and performing exposure monitoring to crystalline silica if they comply with the specific engineering controls, work practices and respirator use outlined in “Table 1” of the standard. Table 1 identifies 18 construction tasks that could generate exposures to respirable crystalline silica and for each task, specifies engineering controls, work practice controls, and respiratory protection to protect workers. The identified “Table 1” tasks include the use of the following tools of particular importance to masonry contractors:
- Stationary masonry saws
- Handheld power saws (any blade diameter)
- Handheld power saws for cutting fiber-cement board (with blade diameter of 8 inches or less)
- Handheld and stand-mounted drills (including impact and rotary hammer drills)
- Jackhammers and handheld powered chipping tools
- Handheld grinders for mortar removal (i.e., tuckpointing)
- Handheld grinders for uses other than mortar removal
To illustrate just one of these tasks, under Table 1 an employer is in compliance with the PEL and exposure monitoring provisions when using a stationary masonry saw, if the employer is using a saw equipped with an integrated water delivery system that continuously feeds water to the blade and the saw is operated and maintained in accordance with the manufacturers’ instructions to minimize dust emissions. For this task, an employer can only use an integrated water delivery system to be in compliance with Table 1. Should the employer choose to use a different method to control exposure or for some reason cannot use an integrated water delivery system to control exposure, the employer cannot rely on Table 1 for compliance. Instead, the employer must follow the PEL and exposure monitoring provisions described above.
Training is another key requirement under the new standard. Construction employers are required to communicate and train employees on the hazards associated with crystalline silica under the Hazard Communication Standard and ensure that each employee has access to labels on containers of crystalline silica and safety data sheets. In addition, the employer must ensure that each employee covered by the standard can demonstrate knowledge and understanding of the following:
- the health hazards associated with exposure to respirable crystalline silica;
- specific tasks in the workplace that could result in exposure to respirable crystalline silica;
- specific measures the employer has implemented to protect employees from exposure to respirable crystalline silica, including engineering controls, work practices, and respirators to be used;
- the contents of the standard;
- the identity of the competent person designated by the employer; and
- the purpose and a description of the medical surveillance program.
Plan of Action
Because of the significant costs and rigorous requirements of the new standard, employers must aggressively take steps to be in compliance with the new requirements. Employers should review their silica-producing tasks now and develop a timeline for meeting the compliance obligations under the new standard. A proposed plan of action should consider the following:
- Review the standard and other compliance assistance materials with key stakeholders in your organization to understand its application in the range of anticipated exposures.
- Review Table 1 tasks and determine if your operations can fit neatly within the enumerated tasks, and if adoption of Table 1 is feasible, paying close attention to the work practice controls discussed. Determine if there are certain tasks that you cannot reliably follow in Table 1 given the variety of circumstances that your employees face.
- Review any existing equipment to determine whether it can be retrofitted with local exhaust ventilation (e.g., vacuums), a water delivery system or some other control, or whether new equipment will need to be found and purchased.
- Communicate with tool manufacturers on available tools that comply with Table 1.
- Draft your written exposure control plan and any necessary forms that will be used for each project after you have determined the engineering controls, work practice controls and respirators that you need to implement.
- Designate your competent person(s) to implement the written exposure control plan and consider whether they need additional training on the hazards of silica, identifying silica exposure and inspecting for compliance.
- Review the standard’s housekeeping requirements, including the restriction on dry sweeping and dry brushing, to ensure you can feasibly comply.
- Coordinate with an occupational health medical partner (or find one if you do not already have a partner in place) to assist you in meeting the medical examination requirements.
- Revise your safety manual to reflect the new requirements.
- Update your training materials and ensure that you have covered the necessary components of the rule and have methods in place for documenting the knowledge and understanding of employees.
To help contractors and MCAA members to comply with the new rule, the MCAA has developed a silica “train-the-trainer” program, along with a template Written Exposure Control Plan. MCAA also has developed a template written silica program. There resources are excellent places for mason contractors to start their compliance efforts.
Ready or not, OSHA’s silica standard is here and the compliance date is getting closer. Contractors must begin taking steps to ensure full compliance with the new requirements.
Words: Bradford T. Hammock, Office Managing Principal, Washington, D.C. Region