Final Silica Rule Released

April 6, 2016

pic-construction-dirtThe U.S. Department of Labor (DOL) released its final silica rule on March 31, exempting employers in the construction industry provided they comply with certain control measures. Silica is basically sand (most commonly quartz) that comes in a variety of forms and conditions and is used in a wide range of applications across a host of industries. Exposure to respirable crystalline silica (which consists of very small particles that are able to penetrate into the lungs) has been linked to silicosis, lung cancer, and other diseases.

The new 1,772-page regulation reduces the permissible exposure limit (PEL) for respirable crystalline silica to 50 micrograms per cubic meter of air, over an eight-hour period. As proposed, the rule required all employers in the construction industry to comply with the new limit. As modified in the final version, however, the rule exempts construction companies that “fully and properly implement the exposure control methods” that the rule outlines.

According to the Occupational Safety and Health Administration (OSHA), approximately 2.3 million workers are exposed to respirable crystalline silica, primarily construction workers who drill and cut concrete and stone. Workers in brick factories, foundries and hydraulic fracturing also are exposed to this harmful dust. OSHA estimates the rule will save 600 lives a year, and prevent more than 900 new cases of silicosis annually.

Other key provisions in the final rule include:

  • 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.
  • Provides medical exams to monitor highly exposed workers and gives them information about their lung health.
  • Provides flexibility to help employers — especially small businesses — protect workers from silica exposure and does not require the use of protective clothing, instead allowing for additional methods for cleaning up silica-contaminated areas.

In addition, unlike the proposed rule, the final rule will not cover industries that process certain types of clays used for cat litter and landfill. OSHA reviewed the “geology and the chemistry” involved in processing so-called “sorptive clays” and found they did not share the same characteristics as the other industries covered in the final rule.

The final rule also extends the amount of time employers have to comply with the new standards. Both standards contained in the final rule take effect on June 23, 2016, after which industries have one to five years to comply with most requirements, based on the following schedule:

Construction – June 23, 2017, one year after the effective date.

General Industry and Maritime – June 23, 2018, two years after the effective date.

Hydraulic Fracturing – June 23, 2018, two years after the effective date for all provisions except Engineering Controls, which have compliance date of June 23, 2021.

OSHA calculates that its silica rule’s cost to all of industry will be $637-657 million, which NSBA believes will certainly have a significant impact on the economy and jobs. It has been nearly 13 years since OSHA convened a Small Business Advocacy Review panel to examine the regulation and the impact of a proposed silica rule on small entities. At that time—in 2003—NSBA provided advice and recommendations to the panel, and generally opposed lowering the PEL and recommended that OSHA enforce the existing limits and focus on compliance assistance. NSBA supports worker protection and safety, but fears that since this final rule creates new standards and requirements for small businesses in the construction, manufacturing, foundry, hydraulic fracturing and many other industries, it will place a substantial financial and regulatory burden on these industry specific small-business owners.