How Are Your Construction Activities Regulated under OSHA’s Final Silica Rule?

By Barry M. Hartman, K&L Gates, Washington, D.C. and Stephen J. Matzura, K&L Gates, Harrisburg

On March 24, 2016, OSHA issued the prepublication version of the final rule regarding occupational exposure to respirable crystalline silica, including one standard for the general industry and maritime, and another standard for construction work (“Final Rule”). The rule applicable to construction work will be codified at 29 C.F.R. § 1926.1153. It becomes effective June 23, with compliance obligations beginning at least a year later (June 23, 2017). The more stringent permissible exposure limit (“PEL”) of 50 μg/m³ and the “action level” of 25 μg/m³ are the same as in the proposed rule that OSHA issued in 2013.

The Final Rule essentially creates three categories of construction activities that are regulated differently depending on levels of exposure to respirable silica: (1) activities excluded from regulation; (2) activities listed in Table 1 that are afforded a “safe harbor” from the requirement to conduct an exposure assessment; and (3) activities that require an exposure assessment. Any employers that perform “construction work” – which may also include employers outside of the construction industry – must consider where their activities fall within the construction standard for silica.

1. Activities Excluded from All Compliance Obligations
OSHA entirely excluded from all obligations in the standard any employee exposures that remain below 25 μg/m³ (without a respirator) under any foreseeable conditions. Activities involving such minimal exposures to respirable crystalline silica do not fall within the scope of the standard. Tasks performed in isolation from others that generate significant exposures to respirable crystalline silica may qualify, including mixing mortar; pouring concrete footers, slab foundation, and foundation walls; and removal of concrete formwork.

2. Safe Harbor for Construction Tasks Listed in Table 1
OSHA lists several construction tasks that are presumed to be below the PEL where employers maintain compliance with the specified engineering and work practice controls. This means that employers need not conduct a more-burdensome and costly exposure assessment, as long as they comply with Table 1. In the Final Rule, OSHA removed the entry for drywall finishing, revised other entries, and added several more. Some of the additional tasks that OSHA included in Table 1 in the Final Rule include:

• Handheld power saws for cutting fiber-cement board (with blade diameter of 8 inches or less)
• Rig-mounted core saws and drills
• Dowel drilling rigs for concrete
• Small drivable milling machines (less than half-lane)
• Large drivable milling machines (half-lane and larger for cuts of any depth on asphalt only and for cuts of four inches in depth or less on any other substrate)
• Heavy equipment and utility vehicles used to abrade or fracture silica-containing materials (e.g., hoe-ramming, rock ripping) or used during demolition activities involving silica-containing materials
• Heavy equipment and utility vehicles for tasks such as grading and excavating but not including: demolishing, abrading, or fracturing silica-containing materials

Employers should carefully check Table 1 to determine whether their silica-generating activities fall within the safe harbor. Employers will need to closely follow equipment manufacturers’ instructions to ensure compliance with Table 1. Those who comply with the specified controls when conducting activities listed in Table 1 are not required to conduct an exposure assessment, or implement other controls aside from those specified. They are, however, required to follow some other portions of the rule highlighted below. The following are some of the significant changes to the standard since the proposed rule:

• Written Control Plan. The proposed rule did not require a written exposure control plan. The Final Rule requires a “competent person” to implement this plan to describe the controls used to limit employee exposures, including procedures used to restrict access to work areas when necessary. The competent person must be qualified to implement the plan, be capable of identifying existing and foreseeable respirable crystalline silica hazards in the workplace, and have authorization to take prompt corrective measures to eliminate or minimize them. The plan must be reviewed and updated annually and made available to employees and OSHA upon request.
• Hazard Communication and Training. The standard requires employers to provide training to each employee on the hazards of silica in the same manner as in the proposed rule, but now requires identification of the “competent person” described above. The Final Rule also incorporates compliance with the Hazard Communication Standard (“HCS”) by reference for silica exposures in the workplace. Since the proposed rule, new requirements under OSHA’s HCS have become effective. Employers should be aware that another deadline for compliance with the HCS is approaching in June 2016 (before the compliance obligations under the Final Rule become effective). Compliance with the HCS will be critical to compliance with the silica standard, including Table 1, because safety data sheets and labels from product manufacturers should specify information about potential exposures.
• Housekeeping. Unlike the proposed rule, the Final Rule allows compressed air for cleanup purposes in certain limited circumstances. But the circumstances under which dry sweeping and compressed air may be used for cleanup are very limited.
• Personal Protective Equipment (“PPE”). The Final Rule does not require use of PPE, as the proposed rule did.

3. Activities Not Within the Safe Harbor of Table 1 Requiring an Exposure Assessment
In addition to the requirements above, exposures that do not fall within the safe harbor of Table 1 require an exposure assessment to determine if the action level is reached. Exposure assessments may entail use of objective data (such as industry-wide studies), or initial monitoring of employees. Additional engineering and work practice controls will be required to ensure compliance with the PEL. Depending on results of the initial exposure assessment, more-stringent requirements such as respiratory protection and medical surveillance may be required. The Final Rule revised several aspects of the proposed medical surveillance requirements. The recordkeeping requirements are substantively the same as those in the proposed rule. They mandate records of data related to exposure assessments to be maintained for at least 30 years.