Employment Law Daily 20-year OSHA rulemaking on silica dust finalized to improve worker protections
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Monday, March 28, 2016

20-year OSHA rulemaking on silica dust finalized to improve worker protections

By Pamela Wolf, J.D. OSHA has released its long-awaited final rule to improve protections for workers exposed to respirable silica dust. The standard has not been updated since 1971. Published in the Federal Register on March 25, the final rule is aimed at curbing lung cancer, silicosis, chronic obstructive pulmonary disease, and kidney disease in workers by limiting their exposure to respirable crystalline silica. “While we are disappointed that the silica rule has taken so long to complete, we commend OSHA for its hard work in finalizing this rule while facing extensive industry opposition,” Lisa Gilbert, director of Public Citizen’s Congress Watch division, said in a statement. “This revised standard will be critical in protecting workers from silica dust, a dangerous carcinogen and health hazard.” 20-year rulemaking. The updated standard was nearly 20 years in the making. This current round of rulemaking on the silica standard began in 1997, during the Clinton administration, when OSHA put the item on its regulatory agenda. George W. Bush’s White House declared the proposed silica rule a priority in 2002, but delays continued. Like its predecessors, the Obama administration put silica at the top of its agenda in 2009. The proposed silica rule was submitted to the Office of Management and Budget (OMB) in February 2011. But the proposed rule still stalled. Public Citizen said that corporate lobbyists meeting with OMB officials consistently outnumbered the labor and public health advocates calling for the higher standard. Long-known hazards. The hazards posed by silica dust were identified many decades ago. Current Labor Secretary Thomas Perez observed that more than 80 years ago, Labor Secretary Frances Perkins identified silica dust as a deadly hazard and pressed employers to fully protect workers. “This rule will save lives. It will enable workers to earn a living without sacrificing their health,” Perez said. “It builds upon decades of research and a lengthy stakeholder engagement process—including the consideration of thousands of public comments—to finally give workers the kind of protection they deserve and that Frances Perkins had hoped for them.” Who will be affected? Workers are exposed to crystalline silica dust in general industry, construction, and maritime industries. Among the many industries that could be particularly affected by the final rule are: foundries, industries that have abrasive blasting operations, paint manufacture, glass and concrete product manufacture, brick making, china and pottery manufacture, manufacture of plumbing fixtures, and many construction activities including highway repair, masonry, concrete work, rock drilling, and tuckpointing. According to OSHA, approximately 2.3 million men and women face exposure to respirable crystalline silica in their workplaces, including two million construction workers who drill and cut silica-containing materials such as concrete and stone, and 300,000 workers in operations such as brick manufacturing, foundries and hydraulic fracturing. The health and safety agency said that most employers can limit harmful dust exposure by using equipment that is widely available—generally using water to keep dust from getting into the air or a ventilation system to capture dust where it is created. Worker protection improvements. OSHA pointed to several ways in which the final rule improves worker protections:
  • Reduces the permissible exposure limit for crystalline silica to 50 micrograms per cubic meter of air, averaged over an eight-hour shift.
  • Requires employers to use engineering controls (such as water or ventilation) and work practices to limit worker exposure; provide respiratory protection when controls are not able to limit exposures to the permissible level; limit access to high exposure areas; train workers; and provide medical exams to highly exposed workers.
  • Provides greater certainty and ease of compliance to construction employers—including many small employers—by including a table of specified controls they can follow to be in compliance, without having to monitor exposures.
  • Staggers compliance dates to ensure employers have sufficient time to meet the requirements, e.g., extra time for the hydraulic fracturing (fracking) industry to install new engineering controls, and for all general industry employers to offer medical surveillance to employees exposed between the PEL and 50 micrograms per cubic meter and the action level of 25 micrograms per cubic meter.
OSHA has posted additional information about the final rule on its website. Compliance dates. The final rule has two standards, one for construction and one for general industry and maritime. Under the construction standard, employers have until June 23, 2017, to comply with most requirements. Under the general industry and maritime standard, employers have until June 23, 2018, to comply with most requirements; additional time is provided to offer medical exams to some workers and for hydraulic fracturing employers to install dust controls to meet the new exposure limit. Effective date. The final rule is effective 90 days after publication in the Federal Register.

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