United States: OSHA Announces Long-Awaited Final Rule To Limit Employee Exposure To Silica And Adopts New Standards That Are "Among The Broadest That OSHA Has Issued"

On March 24, 2016, after a 45-year effort, the Occupational Safety and Health Administration ("OSHA") issued a final rule intended to limit workers' exposure to respirable crystalline silica, a carcinogenic dust pervasive in nearly every industry, including construction, foundries, and fracking, and a cause of lung cancer and kidney disease. Under the new rule, the permissible exposure limit ("PEL") that workers can be exposed to for airborne crystalline silica has been lowered to 50 micrograms per cubic meter of air (50 µg/m3) averaged over an eight-hour day – a sharp reduction of previous PELs. The Department of Labor has declared the new regulations "among the broadest that OSHA has issued, in terms of the number of industry sectors and establishments potentially affected," and the new rules are expected to impact more than 675,000 workplaces. To reduce the risk of receiving OSHA citations for exposing employees to high silica levels, employers in a broad range of industries will have to implement new procedures to reduce worker exposure to silica dust.

OSHA first created standards addressing silica in 1971, during the agency's initial year of existence. Under the previous standard, general industries could not expose their workers to a PEL greater than 100 µg/m3, while the construction industry could not expose workers to a PEL greater than 250 µg/m3. Since the standard was adopted in 1971, the government has repeatedly attempted to lower the PELs but has not been successful due to silica's ubiquitous nature – it is present almost everywhere. Silica is found in roads, buildings, and sidewalks, and in substances such as sand, stone, rock, concrete, brick, block, and mortar. As such, exposure to silica occurs in a wide array of workplace operations, including cutting, sawing, drilling, and crushing of concrete, brick, block, rock, and stone products (such as in construction tasks), and operations using sand products (such as in glass manufacturing, foundries, sand blasting, and hydraulic fracturing). After nearly 45 years of regulatory inaction, OSHA has finally succeeded in lowering PELs to 50 µg/m3 – representing half the previous PEL for general industries and an 80 percent reduction of the previous PEL for the construction industry. These new limits will impact hundreds of thousands of workers, with OSHA estimating that of the 1.85 million construction workers exposed to silica, over 640,000 will be exposed to levels that exceed the new PEL. For maritime and general industry workers, including those in oil and gas operations, jobs involving concrete, and jobs at foundries and railroads, OSHA has estimated that more than 125,000 workers will face exposure levels higher than are permissible under the new rule. Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels has noted that the new regulations "will have a bigger impact than any regulation that OSHA has issued in the last 20 years in terms of saving lives and preventing illnesses."

In addition to reducing the PEL to 50 µg/m3 for an average eight-hour day, the rules impose additional obligations on employers, such as a requirement to implement procedures to measure silica amounts that workers are potentially exposed to if those amounts may be at an action level of 25 µg/m3. Furthermore, in a shift from traditional OSHA procedures, the regulations now require that employers first use engineering controls to limit worker exposure to silica dust, a new direction for OSHA. If engineering controls cannot adequately limit exposure, companies must provide workers with respirators or limit worker access to high-exposure areas. Moreover, employers are required to develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures. Employers are also required to provide medical exams to monitor highly exposed workers and give information regarding their lung health.

The new final rule marks only the second time in 15 years that there has been a new, comprehensive health standard promulgated by OSHA, and the news media is already calling the silica regulation "the most significant change in workplace health law" during the current administration. News organizations have noted that the long delay in announcing changes to the silica standard is a result of the rule "imposing enormous costs on business." It is anticipated that employers will have to purchase updated equipment to implement methods that will help reduce exposure to silica, including isolating silica-generating activity to less-populated areas, applying appropriate liquids to work areas to reduce the ability of the toxic dust to enter the air, and utilizing vacuums to collect the silica before workers are exposed to the dust. To implement such procedures, OSHA has conservatively estimated that the new rule will cost $511 million annually to implement for the construction industry alone. Employers estimate that the actual cost of compliance will be about 10 times greater, reaching $5 billion annually.

It is expected that the regulatory community will challenge the new cost-prohibitive requirements discussed in the final rule and the lower PELs. Employers should consult a team well versed in OSHA law that can help implement new cost-effective procedures to ensure compliance with the new standards and minimize employer liability.

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