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OSHA's Comprehensive Silica Proposed Rule Expected Soon

  • July 19, 2013

The Occupational Safety and Health Administration’s proposal to comprehensively regulate silica (quartz) in general industry, maritime, and construction is anticipated by Labor Day. Publication of the proposal to extensively regulate one of the most common minerals on Earth, like arsenic and lead, will trigger a public comment period and hearings. 

The proposed rule, which could be one of the most significant rulemakings in OSHA’s history, is expected to cut in half the permissible exposure limit (PEL) for respirable silica dust and require a wide range of ancillary protective measures, including engineering controls, air and medical monitoring, restricted work areas, housekeeping mandates, respirator use, warnings, training and recordkeeping. 

The current silica exposure limit is the equivalent of 0.10 mg/m3 of air. The proposed rule is expected to limit silica to the recommended National Institute for Occupational Safety and Health limit of .05mg/m3 and possibly add an “action level” of .025 mg/m3 that would trigger certain ancillary requirements. 

OSHA Deputy Assistant Secretary of Labor for Occupational Safety and Health Jordan Barab reportedly confirmed in a January 2013 meeting with business groups that the proposed rule will include a section on hydraulic fracturing (or fracking).

Given the ubiquity of silica on jobsites, the proposed rule is expected to affect employers significantly. Silica, or quartz, a component of the Earth’s crust, is one of the most common minerals. It is used in building materials, energy production, manufacturing, and in commercial and industrial products. In construction, silica is found in cement, concrete, asphalt, roofing tiles, masonry board, dimension stone (i.e., sandstone, limestone and granite), building facings, gypsum board, bricks, stone, aggregate, paint, and the basic earth and rock that are shaped for a building site. Products and materials containing silica are used in residential, commercial, industrial, road and bridge construction by brick masons, concrete finishers, laborers, roofers, framers, stone cutters, foundation workers, painters and just about any other tradesman. 

Other end-products and applications of silica are glass, ceramics, porcelain, fine china, plastics, rubber, paper, fertilizer, batteries, alloys, infrared optics, fiber optics, semiconductors, etc. Metal castings used by foundries to make such items as plumbing fixtures, car wheels and aerospace parts rely on silica. Agriculture not only relies on silica in many products, but also produces silica dust in earth-moving operations.

If, as expected, OSHA proposes to regulate silica like asbestos, reducing the exposure limit by 50 percent or more (to a level that cannot be measured accurately), widespread mandates for the installation of new engineering controls, medical monitoring, respirator use, segregated work areas, employee transfers or workplace rotations, recordkeeping, and new warnings, are in the offing. Both the economic and technical feasibility of these mandates are suspect, however, based on reviews already conducted by affected industries and the Small Business panel that reviewed it earlier. 

Perhaps as troubling, OSHA’s proposed rule may trigger a resurgence of a silica lawsuit epidemic, which largely ended years ago with the disclosure of massive fraudulent claims made in a Texas federal court. New federal mandates can be a boon for plaintiffs’ lawyers. 

OSHA currently prohibits exposure to respirable silica dust in excess of a PEL of 0.10 mg/m3 of air, a very small amount. This limit is one of the lowest in the world, and the U.S. has almost eliminated silica-related disease mortality. The Centers for Disease Control and Prevention and the NIOSH have reported a dramatic decrease in deaths attributed to silica disease between 1968 (1,800) and the present (fewer than 170). While even one silica-related death is too many, CDC indicates that silica disease mortality is vanishing. When the data is viewed in the context of OSHA-compliance data showing that 30 percent of OSHA silica samples exceed the current exposure limit, it makes a strong case that the current rule is protective, and if there is a remaining risk, it can be solved by enforcement of current OSHA rules, rather than by unnecessary and costly new regulations.

For years, OSHA has conducted a silica “special emphasis” program and found many worksites safe. OSHA should provide compliance assistance to those establishments that need it and increase enforcement for those employers that do not respond to cooperative efforts. 

For further information or if you have any questions about this or other workplace developments affecting your business, please contact the Jackson Lewis attorney with whom you regularly work. 

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