Federal OSHA has published their long-awaited regulations for Crystalline Silica. The rules are now published in the Federal register, and are in effect as of June of this year. However, the obligations to comply with most sections don’t begin until June of 2017 and some requirements of the regulations won’t take effect until after that.
Here are the most important things to know about the new requirements. Please note, this article will only deal with the requirements that apply to CONSTRUCTION employers. For information on the general industry regulation, you can see my blog entry from last week.
- There’s not one new regulation. There are two.
Initially, several sources were reporting that OSHA was issuing identical rules for general industry, and construction. In reality, there are two new rules, which are similar, but definitely not identical. The construction rule (29 CFR 1926.1153) and the general industry rule (29 CFR 1910.1053) are very similar in terms of requirements, formatting, etc., but still quite different with regard to approach and language. Again, this article addresses the construction regulation only.
2. This is OSHA’s first comprehensive silica regulation.
Some employers are under the incorrect impression that OSHA has “rewritten” the silica requirements. But until now, there was no regulation to rewrite. OSHA’s only mechanism for controlling exposures has been the enforcement of an outdated and confusing PEL. The new regulation is comprehensive and has requirements that go far beyond the PEL. There are requirements for exposure assessments, housekeeping, training, recordkeeping, medical assessments, etc. All of this is in addition to a new PEL (see below).
3. Who will be most affected?
While enforcement of the new rules will focus primarily on the oil/gas fracking, construction, foundry, glass manufacturing, and other such industries, it can be applied anywhere an exposure to silica is reasonably likely to occur. Exposures that result from processing of sorptive clays are excluded.
4. The Permissible Exposure Limit has been cut in half and there’s a new Action Limit
The new OSHA regulation is very different than other OSHA regulations with regard to assessing employees’ exposures to hazardous substances. In the past OSHA has required employers to assess exposures through air sampling and implement various controls, such as respiratory protection, when sampling results indicated a problem.
However, the silica regulation takes a different approach. It contains a table which identifies 18 common construction activities, such as operating a stationary masonry saw, and the controls which are required for those activities, along with requirements for respiratory protection. I’m not aware of any other OSHA regulation that uses this approach.
In some cases though, air sampling by a qualified person will still be appropriate. Requirements for sampling and analysis of samples are included in the body of the regulation, as well as Appendix A of the regulation.
The purpose of the exposure assessment is to quantify the employees’ exposure to Crystalline Silica and to ensure they don’t exceed the PEL and/or Action Limit.
Which brings us to the topic of the new PEL for Crystalline Silica. It has been cut in half. Until now, the PEL for respirable silica varies from state to state, and industry to industry. Under the new rule, the PEL for crystalline silica has been reduced to 0.05 mg/m3 (or 50 ug/m3).
The new regulation also introduces a new “Action Limit” of 0.025 mg/m3 (or 25 ug/m3). Employers whose employees have exposures exceeding the action limit, but not equaling or exceeding the PEL, will be required to comply with certain parts of the regulation.
5. Engineering and work practice controls will be required
Whenever feasible, the employer will be required to implement feasible engineering and work practice controls to reduce employees’ exposures to acceptable levels.
The table described above will identify many of the required engineering controls, such as the use of wet cutting methods. The regulation also contains several requirements for cabs or booths that are intended to protect the employee from silica dust.
Appropriate respirators will be required whenever controls aren’t feasible, or when they fail to reduce exposures to acceptable levels, and while the controls are being implemented. Any use of respirators must comply with the respiratory protection regulation (29 CFR 1910.134), and as such, a written respiratory protection program will be required, along with training, medical evaluations, fit testing, etc.
6. Employers will be required to develop a written exposure control plan
All employers covered by the rule will also be required to develop a written exposure control plan, which explains how exposures will be minimized. There are specific requirements for the content of the program which I won’t get into here. The control plan must be reviewed at least annually and updated as needed. All employees, their designated representatives, and OSHA representatives must be granted access to the program.
7. “Frequent and regular inspections” by a competent person are required
Employers will be required to designate a competent person to make frequent and regular inspections of job sites, materials, equipment, etc. to ensure that the exposure control plan (see above) is being properly implemented and complied with. Be sure you’re familiar with the definition of a “competent person” and what types of qualifications and authority he/she must have. Depending on several factors, it could be said that a competent person must be an employee of the company and not an external party such as a consultant.
8. Special housekeeping methods will be required
Dry sweeping and dry brushing of floors and contaminated work areas will not be permitted if it contributes to employees’ exposures to Crystalline Silica, unless the employer can demonstrate that safer methods such as wet sweeping or use of HEPA-filtered vacuums are not feasible.
Using compressed air for cleaning is also not permitted except in certain circumstances.
9. Comprehensive medical exams will be required for employees
The new regulation includes some confusing requirements for providing medical surveillance of some employees. There is some question in my mind about which employees are covered by this requirement. As currently written, the regulation requires employees who wear respirators more than 30 days per year, to be included in a medical surveillance program. But this is entirely inconsistent with several other OSHA regulations, and therefore, I’m under the impression that this could be a mistake in the regulation which will require clarification/correction. I’ve already written to OSHA about this. More to come on this.
At a minimum the surveillance program must consist of an initial examination by a Physician or Licensed Health Care Professional (PLHCP), within 30 days of initial assignment to a job covered by the regulation. Minimally, the initial exam must include a medical and work history, a physical exam, a chest x-ray, a pulmonary function test, latent TB testing, and any other test deemed appropriate by the PLHCP. Note that these requirements go far beyond the medical evaluations under the respiratory protection program, and it’s doubtful that the mobile testing services you may have been using for years will be able to provide services like X-rays.
In addition to the initial exam, periodic examinations must be provided at least every three years, or more frequently if recommended by the PLHCP. The periodic exams must include all of the procedures and tests included in the initial exam, except for the TB test.
Additional examinations by a specialist are required if recommended by the PLHCP.
10. Hazards of crystalline silica must be communicated to employees via training and other means
Any employer covered by the rule must include Crystalline Silica in their written Hazard Communication program (see 29 CFR 1910.1200) and related training. Training must be provided at the time of initial assignment to an area where exposure is possible. In some states, including MN, annual refreshers will be required.
This is also one of the few OSHA training requirements which requires employers to ensure that all employees can demonstrate knowledge and understanding of the information communicated in training. In the case of silica, this knowledge must include specific tasks in the workplace that can result in exposure, specific measures to protect employees, the contents of the OSHA regulation, and the purpose of the medical surveillance program.
11. Record keeping will be critical
The regulation requires that adequate records of training, medical examinations, exposures assessments, etc. be maintained.
If you have questions about the new regulation, or need help with exposure assessments, training, development of the exposure control program, or anything else, please call Paul at (612)597-6463 or email email@example.com