OSHA's Crystalline Silica Rule for Construction OSHA's Crystalline Silica Rule for Construction

OSHA's Crystalline Silica Rule for Construction

The United States Department of Labor issued on March 24, 2016 its controversial new rule that dramatically reduces the allowed exposure limits to silica dust in the construction and manufacturing industries. Respirable crystalline silica dust may be created when concrete and stone are drilled, crushed, cut or ground. The rule is written as two standards: one for the construction sector and one for general industry.
The new standard for construction reduces the permissible exposure level for airborne silica to 50 micrograms of respirable crystalline silica per cubic meter of air, averaged over an eight hour day. OSHA is excluding exposures in construction where employee exposure to respirable crystalline silica will remain below 25 micrograms per cubic meter of air as an eight hour time weighted average under any foreseeable conditions. The rule includes requirements for exposure assessment, methods of controlling exposure, respiratory protection, medical surveillance, hazard communication and recordkeeping. Medical surveillance will be required for construction employees who are required by the rule to use respirators for 30 or more days per year.
Companies will be required to have a plan for procedures to restrict access to work areas, when necessary, to minimize the number of employees exposed to respirable crystalline silica.  The employer will be required to communicate the hazards of respirable crystalline silica to its employees. Training on ways to limit exposure in operations that result in silica exposure will be required as well as offering medical examinations to highly exposed workers. 
OSHA has created a Table 1 for the new standard that sets forth the specified exposure control methods for specific construction tasks. For example, if a worker is using a hand-held power saw that continuously feeds water to the blade outdoors for four hours or less per day, no respirator would be required. If the worker uses the saw for more than four hours outdoors, the workers would need to use a respirator with an assigned protection factor of at least 10. Companies that fully and properly implement the controls set forth in Table 1 are not separately required to measure the dust exposure to verify that levels are at or below the permissible exposure level for workers engaged in the Table 1 operation. 
Construction sector employers will be required to develop a written exposure control plan and to have a competent person (a designated individual who is capable of identifying crystalline silica hazards in the workplace and who possesses the authority to take corrective measures) to implement the written exposure control plan. 
Under the new rule, construction companies will have until June 23, 2017 to put protections in place. The rule will take effect 90 days after March 25, 2016.
It is likely that the rule will face numerous legal challenges, particularly on whether the rule is technologically and economically feasible.
If you have any questions about the new rule, contact Patrick A. Devine or a member of our Construction Law Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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