OSHA's Silica Rule: Risk Management and Best Practices

Highlights from a presentation by Adele L. Abrams, Esq., CMSP

Ms. Abrams is an attorney, Certified Mine Safety Professional and trainer. Contact her at safetylawyer@gmail.com

The most common form of crystalline silica is quartz. Silica is found in virtually all construction materials except wood and rubber, including: brick, block, concrete and mortar, slate, dimensional stone (granite, sandstone), engineered stone products (countertops etc.), stone aggregate, tile, asphalt filler, roofing granules, plastic composites, soils, wallboard joint compounds, paint, plaster, caulking and putty.

Tiny particles of silica (known as “respirable” particles) can travel deep into workers’ lungs and cause silicosis, lung cancer, other potentially debilitating respiratory diseases such as chronic obstructive pulmonary disease, as well as kidney disease and auto-immune disorders.

In most cases, these diseases occur after years of exposure. Silicosis, for example, has up to a 20 year latency period, so lawsuits can be brought many years after exposure. Workers compensation cases are increasing, and OSHA citations now carry a maximum penalty of $132,598 per affected worker.

OSHA requires employers to limit workers’ exposure to respirable crystalline silica and to take appropriate steps to protect workers whose exposure reaches certain thresholds. Medical surveillance and a Written Exposure Control Plan (WECP) may be required, in addition to use of respiratory protective equipment. We recommend beginning Medical Surveillance when you bring a worker on board, so you have baseline data.

For professional workers—like architects and engineers—who spend limited amounts of time at construction sites, exposure to silica should be treated like exposure to other toxic substances such as asbestos. Meet with the general contractor and ask for their exposure plan, as guidance, but understand that you are responsible for knowing each of your own employees’ exposures, and if any exceed the “action level” of 25 ug/m3 for an eight-hour average, then these positions must be included in a WECP specific to your company and to the worksite.

The future:

• OSHA published a Request for Information on expansion of Table 1 and offering that option for general industry, as well as other potential changes including a new requirement for medical removal of workers suffering adverse health effects. The comment period closed on October 15, 2019, and the next step will be a proposed rule with a separate comment period.
• OSHA will issue a new NEP (National Emphasis Program) for respirable silica dust exposure in 2020, but details are still under review by OSHA
  • OSHA had a silica emphasis program for several years, but it expired after the 2016 final rule issued
• Expect more robust enforcement data, now that general industry and maritime rules are in effect, but the most cited provisions concern exposure monitoring and development/availability of the WECP
  • In FY 2018, Federal OSHA issued 573 construction silica citations in 208 inspections, penalties > $768,000
  • Federal OSHA issued 39 general industry silica citations in 14 inspections, penalties > $50,000 (MN issued 7 citations in 1 general industry inspection in FY 2018)

For more information, consult Adele L. Abrams, Esq., CMSP

Law Office of Adele L. Abrams PC 301-595-3520

safetylawyer@gmail.com

www.safety-law.com

For a Fact Sheet on the basics of OSHA’s Respirable Crystalline Silica Standard for Construction go to https://www.osha.gov/Publications/OSHA3681.pdf

Also see

• 8/18 FAQ interpretative guidance (53 FAQ): https://www.osha.gov/dsg/topics/silicacrystalline/additional_info_silica.html
• 1/19 FAQ interpretative guidance for general industry (64 FAQ): https://www.osha.gov/dsg/topics/silicacrystalline/generalindustry_info_silica.html

These highlights from Ms. Abrams’ presentation represent her knowledge and considered recommendations, rather than those of The Coleman Law Firm. Note that this is not a comprehensive summary of the law. Legal counsel should be consulted for questions on how these points apply to specific situations.