Commentary and news surrounding the new silica dust rule show the construction industry has a lot of fear about it. Unfortunately too, there is plenty of misinformation floating around to keep the fear rolling, and to simply stir contention.
Here are the basics of the new rule telling what the goal is and what it requires.
- It reduces the permissible exposure limit (PEL) for respirable crystalline silica to 50 micrograms per cubic meter of air, averaged over an 8-hour shift
- It requires employers to: use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures
- It provides medical exams to monitor highly exposed workers and gives them information about their lung health
- It provides flexibility to help employers — especially small businesses — protect workers from silica exposure
One way employers have flexibility, is in the time available to comply. Construction employers have to comply by June 23, 2017, except for “certain requirements for laboratory analysis” which has a compliance date of June 23, 2018. OSHA also offers on-site consultations, technical assistance, and training and education.
Employers in states with their own OSHA-approved State Plans should check with their state plans for compliance details. These states, and territories, include: Alaska, Hawaii, California, Arizona, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, North Carolina, Nevada, New Mexico, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming.
Ways To Comply
If you want to know what you have to do to comply with this new rule, it takes a little bit of common sense and some readily available controls. Plus, your best efforts will also count for something.
There is much more behind rules and regulations than simply the wording. There is also the spirit and intent, and when it comes to protecting workers from the dangers of silica dust even the regulators understand the difficulties.
OSHA acknowledged in the rule that:
“Some day-to-day variability in silica exposure measurements may remain, despite an employer’s conscientious application and maintenance of all feasible engineering and work practice controls.” The agency also wrote that full compliance with the control methods, “will eliminate the risk that an employer will be subject to citation for exposures above the PEL, even when the employer has instituted all feasible controls that normally or typically maintain exposures below the PEL.”
After hearing the comments from the construction industry, and others, OSHA revised the new rule to emphasize using control methods over focusing on trying to hit a particular PEL.
Best Efforts Count
“Unlike in the proposed rule, employers who fully and properly implement the controls listed on Table 1 are not separately required to comply with the PEL, and are not subject to provisions for exposure assessment and methods of compliance. The entries on Table 1 have also been revised extensively.”
Silica Dust Dangers
The dangers of silica dust are recently well documented scientifically, and have been known anecdotally for centuries. International reports dating back to 1986 have concluded that exposure to silica dust is carcinogenic. Literature studies in the U.S. have concluded the same since at least 1991. Other effects of silica dust inhalation include nonmalignant lung diseases, kidney damage and immune system damage.
The Silica Dust Rule Making Process
There were 14 days of public hearings, during which more than 200 stakeholders presented testimony, and submitted over 2,000 comments. Then, OSHA made substantial changes to the proposed rule, including more flexibility for employers in how they choose to reduce levels of crystalline silica, while maintaining or improving worker protection.
Before all that , OSHA completed a review of the literature and epidemiological studies on the health risks of inhaling silica. A panel of scientific experts reviewed OSHA’s report and found it was thorough and that it was reasonable in its interpretations. The reviewers questioned and commented on aspects of the OSHA review, which OSHA then addressed in the final proposed rule. The reviewers said OSHA had adequately considered their comments, and then after the rule making hearing, the reviewers made more comments which OSHA addressed in the preamble to the final rule.
There was the usual public comment period on the rule which was extended three times to accommodate stakeholders. And, this is far from the first time that regulators have tried to raise attention to the dangers of silica dust in the workplace. The National Institute for Occupational Safety and Health recommended in 1974 that crystalline silica be controlled so that no worker is exposed to free silica greater than the 50 mcg per cubic meter (the limit in the new rule). In 1992, OSHA’s earlier attempt to set air quality standards for more than 400 substances was struck down by the Eleventh Circuit Court of Appeals. The court said OSHA didn’t provide enough evidence for the PELs. Silica was one of the substances listed in that air quality standard.
According to the U.S. federal air quality standard for exposure to crystalline silica, anything more than 12 mcg per cubic meter inhaled over the course of a year exceeds the standard for long term exposure, for the general population. The short term exposure limit is 150 mcg per cubic meter over 24 hours.
Isn’t Dust, Dust? Well, Not Exactly.
Some comments during the comment period exaggerated the rule’s requirements, saying it would be impossible to eliminate dust since it occurs naturally, everywhere.
There have been efforts to find out just how much crystalline silica is naturally in the air. After all, there’s sand everywhere, and human activities are always creating new sources of silica dust. The EPA reported the ambient levels of crystalline silica in U.S. air go as high as 8 mcg per cubic meter, with urban concentrations much lower at about 1.9 mcg per cubic meter. Quite a bit lower than the 50 mcg required under the new rule.
And, there’s a difference between silica dust from cutting and grinding activities, and the silica that occurs naturally.
The particle sizes of the crystalline silica that come from grinding, cutting, sandblasting and other industrial processes are significantly smaller than those coming from natural sources. And, that’s a problem, according to the studies, because it is the smaller particles, the ones 3 mcg and smaller that lodge deeply in the lungs.
Is a Death Really a Death?
According to the record, some comments claimed the basis for assessing the rate of occupational deaths was flawed because it assumed workers were employed by one employer for longer times than is typical. However, information supplied with the comments didn’t support the contention, and in some cases actually refuted it. Several other comments did supply data showing the basis used for the rule was accurate, and that it represented typical employment tenures accurately.
It’s Not Technologically Feasible
Use this link to see the technologies you need to use to comply. In many cases simply using, and maintaining equipment and systems is all that’s required.
It Will Cost Too Much
During public commenting, either the rationale or numbers used by commenters were inaccurate, and they admitted as much, or OSHA agreed with their reasoning and adjusted its rationale or numbers to match.
What’s So Hard About Finding Solutions to Health Issues Caused by Business?
Opponents to the PEL in the new rule contend that if enforcement isn’t working at the current PEL then why make the standard more stringent.
Rather than being about enforcement, maybe it’s about effectiveness. Evidence shows the current PEL is not protective enough. Why make it a rule? Because otherwise nobody will pay attention. The industry, and the verticals that serve it, have had at least 40 years to figure out how to reduce silica dust to an imperceptible level when people are working. After all, why wouldn’t they want to do that? Yet, today, sampled dust levels at construction sites are still higher than the current PEL.
The public record shows that the industries where silica has been a perennial problem have not fully managed to hold worker exposure to an acceptable level even with plenty of time, and lots of help, beginning at least as far back as 1996.
Based on the recommendations of a planning committee of safety and health experts, OSHA made enforcement of crystalline silica standards a special interest item in 1996.
Just Trying to Help
OSHA did extensive outreach, developed training programs, and started public education campaigns. There was a joint silicosis prevention effort with the Mine Safety and Health Association, NIOSH, and the American Lung Association that culminated in the National Conference to Eliminate Silicosis, held in Washington, DC, which brought together about 650 participants from labor, business, government, and the health and safety professions to exchange ideas and share solutions regarding the goal of eliminating silicosis.
Here’s Some More Help
OSHA held a series of stakeholder meetings in 1999 and 2000 to get input on making a silica dust rule. Stakeholder meetings for all industry sectors were held in Washington, Chicago, and San Francisco. A separate stakeholder meeting for the construction sector was held in Atlanta.
There was a Small Business Regulatory Enforcement Fairness Act (SBREFA) proceeding in 2003, seeking the advice of small business representatives on the proposed rule.
Let’s Help Small Business Too
The SBREFA panel, including representatives from OSHA, the Small Business Administration’s Office of Advocacy, and the Office of Management and Budget (OMB), was convened on October 20, 2003. The panel conferred with small entity representatives (SERs) from general industry, maritime, and construction on November 10 and 12, 2003, and delivered its final report, which included comments from the SERs and recommendations to OSHA for the proposed rule, to OSHA’s Assistant Secretary on December 19, 2003 (Document ID 0937).
All that Help, But For What?
Then, OSHA studied its inspection and enforcement efforts during the first 5 years of the special interest program and found even with all the special programs, educational efforts, and efforts to get industry involved, silica remained a big problem.
The agency found that almost a quarter of the samples taken at construction sites from 1997 through 2002 were at least three times over the permissible exposure level (then 250 mcg per cubic meter for construction and shipyards). For other industries, 13% of sites had rates at least three times above the PEL (then 100 mcg per cubic meter).
Self Enforcement Beats Regulation
Proponents of the rule argue that at some point, if industries don’t address the health problems they create on their own, then it falls to government to regulate and enforce. Why wait for government to specify workplace safety? Shouldn’t the industry own that?
Perhaps a more constructive approach is to move beyond regulation and compliance. If industry focused its efforts on maintaining healthy work places, and did its own policing, regulations could be minimal.
Think of the Opportunities
For all the anxious press about this rule, there is very little creative thinking about how it can offer benefits beyond healthier workers. Consider the innovation and creativity it can inspire
- Machine and tool manufacturers have the incentive to create new products that help workers stay healthier.
- Manufacturers of protective equipment and controls have opportunities to create new products that detect and protect.
- The cement and drywall industries have the opportunity to create the next generation of products that are safer to use and handle.
- Contractors have the incentive to improve their job sites, something that will benefit their employees, the subcontractors, and the community.
- Owners have the incentive to reduce the chances that someone’s life isn’t going to get cut short just so their project can live.
The new rule is already facing court challenges, and so once again an effort to make work places more healthy, might not survive. But if that’s the case, perhaps over the next 40 years the industries that mechanically create silica dust can figure out how to simultaneously reduce the health hazard while also ensuring compliance with an effective standard that addresses silica dust dangers. Then, regulation could be unnecessary.
Or, they might just go on ignoring the chance to improve work site safety and taking responsibility for it, while continuing to spend millions fighting regulations.
Other Sources of Information on the New Silica Dust Rule