On June 23, 2018, the Department of Labor will begin enforcing a new crystalline silica standard that was originally proposed on June 23, 2016. Construction employers have been required to comply with the crystalline silica standard since 2017, and now the Department of Labor will roll out the standard more broadly to general industry and maritime employers.
Before the crystalline silica standard was announced, the Occupational Safety and Health Administration’s (OSHA) permissible exposure limit (PEL) for respirable crystalline silica was not assigned a particular value. The PEL could only be determined through a formula found deep within OSHA’s catch-all air contaminants standard in 29 C.F.R. 1910.1000. The Department of Labor has now assigned a specific regulation to address respirable crystalline silica, because OSHA believes that exposure to this material is particularly responsible for lung cancer, silicosis, kidney disease and chronic obstructive pulmonary disease. OSHA estimates that about 2.3 million people are exposed to crystalline silica at work, and that the new regulation will save over 600 lives each year.
Crystalline silica is commonly found in sand, stone, concrete and mortar. The new standalone regulation is focused on respirable crystalline silica, which is created when those materials are subject to cutting, sawing, drilling, grinding or crushing and become at least 100 times smaller than ordinary sand. Businesses most affected by the new regulation include manufacturers of pottery and glass, foundries, and employers in hydraulic fracturing (fracking) and asphalt roofing.
The new regulation requires employers to ensure that no employee is exposed to respirable crystalline silica in excess of the new PEL of 50 micrograms per cubic meter. Employers must also assess the exposure of each employee who “is or may reasonably be expected to be exposed to respirable crystalline silica at or above the action level” of 25 micrograms per cubic meter. Employers with employee exposure in excess of the PEL must implement engineering controls and safer work methods to limit exposure. Where these methods are insufficient, the employer must provide respirators to employees. The requirement to implement engineering controls is effective June 23, 2018 − except for hydraulic fracking operations, which have until June 23, 2021, to comply.
Once the regulation is implemented, affected employers must establish a written exposure control plan. The plan must identify tasks that expose workers to silica dust and corresponding methods to control that exposure. Workers must also be trained on silica exposure, including activities that may expose them to the dust, ways to limit that exposure and the effects of silica dust. These requirements will be enforced beginning June 23, 2018.
The regulation also imposes requirements to provide no-cost medical surveillance to employees who will be occupationally exposed to respirable crystalline silica for 30 or more days per year. The deadline to comply with the medical surveillance requirement varies based on whether exposure exceeds the action level of 25 micrograms per cubic meter or the PEL of 50 micrograms per cubic meter. If exposure exceeds the action level, employers have until June 23, 2020, to comply with the medical surveillance requirement. If exposure exceeds the PEL, employers must provide medical surveillance beginning June 23, 2018.
The full text of the new regulation is located at 29 C.F.R. 1910.1053. While enforcement officially begins June 23, 2018, OSHA has announced that it will allow employers a 30-day grace period, during which citations will not be issued so long as the employer is making good faith efforts to comply with the regulation. Nevertheless, the regulated community must now implement measures to ensure compliance with the respirable crystalline silica standard.