After a three month delay, the Occupational Health and Safety Administration finally began enforcing its final rule on respirable crystalline silica in construction during September 2017.
Due to the delay in implementing the rule, and a continuing challenge to it in federal court, many businesses impacted by the rule have implemented a delay of their own, postponing necessary operational updates until the last possible moment. Indeed, with total industry cost estimates ranging between $659 million (OSHA’s calculation) and $4.7 billion (Environomics Inc. analysis) per year, compliance with the new silica standards appears to carry a hefty price tag.
The burden of compliance may be dwarfed, however, by the cost of litigation or a regulatory enforcement action. Now is the time for businesses affected by the final rule to upgrade both their equipment and training program in order to protect their employees and bottom line.
Let’s start with the basic facts about OSHA’s new silica standards:
What Is Silica?
Silica, also called silicon dioxide, is an abundant substance with a broad range of uses and applications across industries. From sand casting to cement production to optical fiber manufacture, silica can be found in innumerable processes and materials. Stone, brick, sand, concrete, and other building materials typically contain silica.
As one might imagine, there are many ways that people are exposed to silica. Any operation that involves drilling, cutting, or grinding something may result in exposure to the substance in its crystalline, powdery form.
These fine particles pose a significant health hazard. Over the years, workers who routinely inhale silica dust may develop silicosis: a form of lung inflammation that causes scarring and may lead to increased risk of lung cancer, kidney disease, autoimmune diseases, and rheumatoid arthritis.
How Does the Rule Change Silica Standards?
According to OSHA, the final rule is not only decades overdue, but aligns with current technological standards in construction:
“OSHA’s current permissible exposure limits for silica are more than 40 years old. They are based on research from the 1960s and earlier that do not reflect more recent scientific evidence. Many employers are already implementing the necessary measures to protect their workers from silica exposure. The technology for most employers to meet the new standards is widely available and affordable.”
The new standards introduce a number of controls, changes, and requirements for employers. Here are a few highlights:
- OSHA has reduced the permissible exposure limit (PEL) for respirable crystalline silica during an 8-hour shift to 50 micrograms per cubic meter of air.
- Employers must use water, vacuum systems, or similar engineering controls to ensure that workers do not exceed PEL, or otherwise provide workers with respirators.
- Workers who experience high rates of exposure should be continually monitored and informed about their lung health.
- Employers should have in place written control plans, training programs, and medical exam procedures centered on minimizing silica exposure and mitigating its associated risks.
In the next article in this series, I will explore three key areas of OSHA silica compliance in further depth. Until then, I welcome you to contact me with any questions you may have about your obligations under the final rule. The attorneys at Offit Kurman’s Construction Law and Commercial Claims Practice Group have years of experience representing construction clients in state and federal courts, and we can tailor a compliance plan to your business’s individual needs —contact us today.
ABOUT ADAM BROWNSTEIN
Adam R. Brownstein is a principal attorney and member of the Construction Law and Commercial Claims Practice Group concentrating his practice in civil litigation and trademark matters. Mr. Brownstein regularly represents clients in state and federal courts. His most frequent matters include tort defense, commercial, insurance coverage, and trademark infringement matters. He has experience with products liability, multidistrict litigation including matters involving pharmaceuticals, and the defense of several defendants in state and federal courts as part of the Vioxx® litigation. Mr. Brownstein has substantial experience in administrative law, having represented clients before the Federal Communications Commission, Federal Trade Commission, and United States Patent & Trademark Office, in addition to state agencies. He regularly files and prosecutes trademark applications before the United States Patent & Trademark Office and equivalent state agencies. Mr. Brownstein is proud to have served as pro bono counsel to Philadelphia-area nonprofit organizations, including Greater Philadelphia Cares and the Children’s Aid Society of Pennsylvania.
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