On March 24, 2016, OSHA published its new silica regulation (“Rule”). Twenty years in the making, the new Rule is found at 29 C.F.R. §1926.1153. The intent of the Rule is to curb the incidents of silicosis, a disabling and sometimes fatal lung disease, caused by long-term exposure to respirable crystalline silica. Crystalline silica is a common mineral found in materials used to construct roads, buildings, and sidewalks. It is a common component of sand, stone, rock, concrete, ready-mix, brick, block, mortar, clay products, and roofing materials. Exposure to crystalline silica dust occurs in common workplace tasks, such as, cutting, sawing, drilling, and crushing of concrete, brick, block, rock, and stone products.

The Rule has separate requirements for general, maritime, and construction industry employers. Although the Rule becomes effective June 23, 2016, a phase-in schedule gives construction industry employers until June 23, 2017 to comply. Major industry groups and labor unions, including the AGC and the Laborers International Union, have filed, for a wide variety of reasons, lawsuits challenging the Rule. These court challenges have been consolidated in the United States District Court for the District of Columbia. No court action is imminent.

The Rule significantly reduces the permissible exposure limit (“PEL”) to 25 micrograms per cubic meter (ug/m3) of air averaged over an eight (8) hour shift. This PEL is one-fifth, or 20%, of the current PEL applicable to the construction industry. OSHA describes the new limit as “the lowest level feasible for all affected industries.” A key compliance feature of the Rule is Table 1, which identifies common trigger tasks and minimum means of compliance. 29 C.F.R. §1926.1153 (c).

Generally, the Rule requires an employer to:

• Establish and implement a written exposure control plan, 29 C.F.R. §1926.1153 (g);
• Designate and train a competent person to implement the written exposure plan;
• Train workers on work operations that may result in silica exposure and means and methods to limit exposure;
• Include respirable crystalline silica in its hazard communication standard (“HCS”) program, and to comply with this Rule’s and the HCS’s detailed requirements.
• Implement engineering controls to reduce or eliminate silica;
• Implement administrative controls when engineering controls do not reduce silica below the PEL;
• Either comply with the exposure control methods identified in Table 1 or establish a specific alternative exposure control method. Table 1 identifies trigger tasks, engineering and workplace control methods, the required respiratory protection, and the minimum respiratory protection factors. Equipment and trigger tasks include, but are not limited to, use of stationary masonry saws, handheld power saws, walk-behind saws, drivable saws, jackhammers, grinders, crushing machines, and heavy equipment and utility vehicles used to abrade or fracture silica containing materials used during demolition, grading, and excavation. If an employer complies with Table 1, it is in compliance and it is otherwise relieved from repetitive testing and recordkeeping.
• Alternative exposure control methods would require an initial exposure assessment, 29 C.F.R. §1926.1153 (d) and recordkeeping, 29 C.F.R. §1926.1153 (j);
• Implement respiratory protection as required by 29 C.F.R. §1926.1153 (e) and 29 C.F.R. §1910.134;
• Housekeeping. No dry sweeping or dry brushing unless wet sweeping, HEPA-filtered vacuuming or other methods that may minimize the likelihood of exposure are not feasible. Compressed air to clean clothing or surfaces unless there is an affective ventilation system or no alternative method is feasible, 29 C.F.R. §1926.1153 (f);
• Medical surveillance. The employer shall make available but is not required to provide an initial or baseline medical examination within 30-days after initial assignment. In addition, an employer must provide medical surveillance, at no cost to employees, for each employee who is required to use a respirator for thirty (30) or more days per year, 29 C.F.R. §1926.1153 (h).

This article merely outlines basic requirements of the Rule. Although compliance is not required until June 23, 2017, contractors should immediately begin planning on how they intend to comply. Contractors should discuss compliance with safety officers, safety consultants, insurers, and legal counsel. Start early. Be prepared.

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