On August 23, 2013 the U.S. Department of Labor announced proposed rules aimed at curbing lung cancer, silicosis, chronic obstructive pulmonary disease and kidney disease resulting from worker exposure to crystalline silica. According to the Occupational Safety and Health Administration (OSHA), which is part of the Department of Labor, silica exposure kills hundreds of workers and sickens thousands more each year. The public has 90 days to submit written comments on the proposed new rules. The proposed rules will also be the subject of public hearings expected to begin in March 2014.

According to OSHA, the proposed rules should save nearly 700 lives and prevent 1,600 new cases of silicosis annually. OSHA estimates that approximately 2.2 million individuals are exposed to respirable silica in their workplaces, with 1.85 million of those working in construction.

Crystalline silica, tiny particles no more than one-hundredth the size of a grain of sand, are created during work with stone, concrete, brick or mortar. Exposure can occur from sawing, grinding and drilling and is common in construction, glass manufacturing, foundries and sand blasting. Reportedly, one government study found that workers engaged in hydraulic fracturing, known as fracking, were exposed to 10 times the permissible level of silica as found in current OSHA regulations.

Currently, OSHA enforces 40-year-old permissible exposure limits (PELs) for crystalline silica in general industry, construction and shipyards. OSHA contends that these exposure limits are outdated and inconsistent within industries and do not adequately protect workers. The proposed rules would include new exposure limits for crystalline silica and detail methods for controlling worker exposure including medical surveillance, training workers about silica-related hazards and recordkeeping measures.

The proposed new rules would set PELs for crystalline silica at 50 micrograms per cubic meter of air, averaged over an eight-hour day. For general industry and maritime, OSHA’s current PEL is 100 micrograms per cubic meter of air. For the construction industry, OSHA’s current PEL is 250 micrograms per cubic meter of air. Thus, the new proposed limits of 50 micrograms per cubic meter of air are significant reductions from current PELs for silica.

OSHA’s proposed new rules will require businesses to measure periodically for silica and to offer medical testing every three years, including chest X-rays and lung function tests, for workers exposed to permissible limits 30 days or more a year. Under the proposed new rules, the steps companies might take to reduce silica particles include using a vacuum or water hose when using saws that produce silica. For businesses that do extensive grinding, the grinding apparatus might be placed inside an airtight housing with a vacuum that draws away the particles. Measures are also proposed to reduce exposure by keeping the material wet, so the silica dust does not become airborne.

OSHA estimates that its proposal will provide approximately $2.8 billion to $4.7 billion in average net benefits per year over the next 60 years. The new measures are estimated by OSHA to cost an average of $1,242 per workplace per year, and companies with fewer than 20 workers will incur average costs of approximately $550 per year.

It is anticipated that there will be objections to OSHA’s proposed new rules as some contend that the current PELs are adequate for protecting workers from silica exposure. The U.S. Chamber of Commerce reports that the rates of silicosis fell by 93 percent from 1968 through 2002. The American Chemistry Council issued a statement saying the current exposure limit is “appropriate to protect against silica-related disease, provided it is adhered to strictly.” It contends that because the mortality rate from silicosis has dropped more than 90 percent since 1968, “[t]he cases of silicosis that still occur result from noncompliance with the current” limit.

If you have questions about OSHA’s proposed new rules or are interested in having your comments heard when public hearings are held before new formal rules are implemented, you may wish to contact legal counsel. At the public hearings, both the proposed PELs and the means and methods by which employers should be required to test and prevent silica exposure as contained within OSHA’s proposed new rules will be considered.