Silica Standard Update: What You Need to Know
By Robert T. Lahey, Contributor
On March 25, 2016, the Occupational Safety and Health Administration (OSHA) released the final rules for Occupational Exposure to Respirable Crystalline Silica, 29 CFR 1910.1053 (General Industry & Maritime) and 29 CFR 1926.1153 (Construction Industry). Since the release and subsequent implementation date in construction of September 23, 2017, there have been three key aspects of note that may impact the rule going forward.
The first stems from the petitions to review the rule made by both labor and industry in 2016. The U.S. Court of Appeals for the District of Columbia Circuit decision on December 22, 2017, upheld only one of labor’s petitions regarding the absence of medical removal protection (MRP) within the medical surveillance requirements of the standard, rejecting all others from labor and industry. This was remanded back to OSHA for further consideration. An advanced notice of proposed rulemaking (ANPR) was issued in March of 2022, indicating that OSHA is about to begin looking into the feasibility of implementing MRP for silica (https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1218-AD31).
Medical removal protections have been included in other OSHA health standards, such as for occupational exposures to benzene, cadmium, cotton dust, formaldehyde, lead, methylene chloride, methylenedianiline, and vinyl chloride. In these health standards, biological monitoring of the blood and/or urine or pulmonary function testing of employees is required when airborne exposures exceed the action level for the standard. If measured results exceed a trigger level, the employee must be removed from exposure and monitored until it is determined that they can return to work or be permanently removed from further exposure to that chemical. While the worker is recovering, they may work at an unexposed job or be compensated at their normal pay while additional medical testing is performed to determine when or if they may return to work. If the employee files a worker compensation claim, their pay during the removal protection period is reduced by any award from that claim. In essence, they must maintain the earnings, seniority, and other employment rights and benefits as though the employee had not been removed from the job or otherwise medically limited for the specified period during recovering. That specified time varies depending on the regulation (e.g., from six months to up to 18 months). In addition, there are specific recordkeeping requirements for medical removal under 29 CFR 1904.9, and record retention requirements for the medical evaluations under 29 CFR 1910.1020 (29 CFR 1926.33) of duration of employment plus 30 years.
For respirable crystalline silica, the health effects that the medical surveillance requirements address are silicosis, chronic obstructive pulmonary disease (COPD), lung cancer, tuberculosis (TB), and kidney disease. The medical tests that are required include pulmonary function testing (PFT), chest X-ray (read by a B Reader) and TB skin testing. Standard urinalysis is performed as part of the required physical and may show signs of kidney disease. Of these diseases caused by exposure to respirable crystalline silica, TB is treatable with drug therapy for six to twelve months and would not require removal from work. However, it would be recordable under 29 CFR 1904.11. If the PFT indicates restriction (silicosis) or obstruction (COPD) of the lungs, the severity may require MRP similar to those found in the Cotton Dust standard, 29 CFR 1910.1043. If silicosis or lung cancer is discovered by X-ray, MRP may also be required. And lastly, urinalysis indicating kidney disease may require MRP, as well. Depending on severity, these may require permanent removal from silica exposure for silicosis, COPD, lung cancer, and kidney disease diagnoses.
The next key potential change in the construction standard is the update to Table 1. The respirable crystalline silica standard for construction is unique in that it affords contractors the ability to utilize a table in lieu of performing exposure assessments (i.e., air sampling) for common tasks that are performed which may result in exposures exceeding the Action Level (AL) of 25 µg/m3. When the standard was developed, 18 common construction tasks were listed along with available engineering controls to be used. If the use of those controls were not sufficient to reduce exposures below the Permissible Exposure Limit (PEL) of 50 µg/m3, the use of respirators to achieve that protection are listed in the third column of the table, depending on how long the task is performed (<4 hours or ≥4 Hours), and whether the task is performed indoors/in an enclosed area or outdoors. Some common tasks with potential exposures exceeding the AL in construction such as mortar mixing, and finish sanding of drywall joint compound were excluded. In addition, since the rule was promulgated, new advances in engineering controls not listed in the table have been developed. For those reasons, a Request for Information (RFI) was issued by OSHA on August 15, 2019. The comment period ended on October 15, 2019 and an ANPR will likely be issued this summer (https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1218-AD18).
The last aspect is enforcement. On February 4, 2020, OSHA issued a compliance directive, CPL 03-00-023 – National Emphasis Program – Respirable Crystalline Silica (https://www.osha.gov/sites/default/files/enforcement/directives/CPL_03-00-023.pdf). Due to the pandemic, the enforcement was delayed. However, in fiscal year 2021, the most frequently cited serious violations in Subpart Z, Toxic and Hazardous Substances, were all for respirable crystalline silica (https://www.osha.gov/sites/default/files/MFC_Construction_FY21.pdf). Area offices are to target enforcement in construction based on North American Industry Classification System (NAICS) codes, randomly assigning numbers to contractors to determine who is visited and when. As this is OSHA’s fourth priority for inspection, following imminent danger, fatalities and catastrophes and employee complaints/referrals, they will be including silica on their list of high hazard inspections comprising an estimated 2% of their inspections in each Federal Region.
In their 2018 to 2022 Strategic Plan, the U.S. Department of Labor is targeting high risk industries. They estimate that roughly 1,100,000 construction workers are exposed above the AL and roughly 850,000 are exposed above the PEL each year. They also recognize that the PEL should not be considered a “safe level.” This is evident by other federal agencies, such as the U.S. Department of Energy, requiring contractors to control respirable crystalline silica exposures to 25 µg/m3. These potential changes and the current enforcement focus will hopefully better protect workers and further reduce their health risks. CS
Robert T. Lahey is the President & CEO of Chicagoland Construction Safety Council (www.buildsafe.org).
