OSHA Provides Final Rule on Silicia – Major Changes Likely Ahead for the Construction Industry

By Michael R. Bosse, Shareholder, Bernstein Shur

On March 24, 2016, the Occupational Safety and Health Administration issued its final rule on crystalline silica. As many know, everyone has been waiting for this OSHA final rule on silica to come out, and now major portions of the construction industry will have to grapple with it. The new rule will have consequences for the construction industry going forward, and measures that will have to be put in place during the next year for construction companies.  The construction attorneys at Bernstein Shur are studying the rule and its implications and will assist clients through the upcoming compliance process.

Crystalline silica is a common mineral that is found in materials that we see every days in roads, buildings and sidewalks.  It is a common component of sand, stone, concrete, brick, block and mortar. Silica exposure can occur from construction activities such as cutting, sawing, drilling, and crushing of concrete, brick, block, rock and stone products and operations that use sand products such as sand blasting and hydraulic fracturing.  Silica also is carcinogenic and has been linked to silicosis, lung cancer and kidney disease.

OSHA acted to change silica exposure limits that had been in place for over 40 years and were based on research from the 1960s.  OSHA estimated that currently, more than 840,000 construction workers are exposed annually to unreasonable levels of silica. The new rule sets a permissible exposure limit that exposure to airborne crystalline silica cannot exceed 50 micrograms per cubic meter of air for an average eight hour day. The new rule could impact between half a million and a million workplaces and will require employers in a broad range of industries, including construction, to put in place new procedures to reduce the possible exposure of workers to silica.

Employers also are going to have additional obligations in complying with the final rule. For instance, they will have to implement procedures so that the silica amounts can be measured to determine if the 50 PEL limit is being hit. Companies will have to ensure that work practices exist such that silica dust is wetted down or vacuumed up before workers can breathe it in.  Additionally, companies will have to develop a written exposure control plan, train workers on silica’s dangers and how to limit exposure to silica.  Under certain circumstances, employers may have to offer continuing medical exams, such as chest x-rays and lung function tests, to those workers who are exposed to silica. Each company will have to have a competent person who implements the written exposure control plan.  Finally, employers may also have to provide workers with respirators or limit work areas where there is a potential high exposure of silica.    OSHA’s estimate is that the new rule will cost $511 million each year on the implementation cost just for the construction industry. Employers, of course, believe that the cost may be much greater than OSHA’s estimate.

Construction employers must comply with the requirements of the final rule by June 23, 2017, except for requirements for laboratory evaluation of samples, which begin on June 23, 2018.  That means that only one construction season exists before implementation must occur.

Original article published on April 26, 2016 in The Construction Advantage, http://www.bernsteinshur.com/what/publications/the-construction-advantage-7/#ledcor  

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