OSHA’s Silica Rule
Robert Grupe / April 2017
Q: Can you give an update on the OSHA silica ruling?
A: The OSHA standard on occupational exposure to airborne crystalline silica is not new. It’s a significant amendment to the original ruling that has been in place for many years. The current schedule for the implementation of the revised ruling is June 23, 2017. But that launch date may be in jeopardy for several reasons: a moratorium on all new federal policies by the new administration, the logistics of undertaking all the new required laboratory work that will be required, and current litigation.
Many organizations have filed suit against the ruling, and the court process is such that a final decision is doubtful by June. The general consensus is that there may be three options for the court to follow. The first is to deny the ruling in its entirety. The second is to approve the ruling in its entirety, which leaves the third option as simply allowing only certain portions of the ruling to proceed.
During a recent presentation from the American Contractors Association, “OSHA’s Crystalline Rule: Application for Subcontractors,” Gary Visscher, Esq., suggested that contractors should plan on the rule being implemented June 23. He further stated that it would be wise to prepare the contracting firm for changes that must occur in the office and the job site because even with all the uncertainty on when the ruling commences, it will eventually go forward.
The first step in learning the new requirements is to download a recently published guide for contractors, “Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for Construction.” The 100-page guideline provides an overview of the new ruling and focuses on those tasks specific to contractor activities. For construction, there is a task oriented component that is prescriptive by design. The tasks that are considered to be a high risk for silica exposure are tabulated in “Table 1” of the ruling. If the contractor follows the guidelines in Table 1 for the specific task that is to be undertaken, then no further action (such as monitoring the air) is required.
Have a Plan
For a contractor to get prepared for the ruling, it is important to understand some key points that make the ruling more than just compliance to Table 1. Every contractor must draft what is termed a “written exposure control plan” specific to each project. Not having the plan is subject to a violation and fine.
The control plan will list the tasks specific to a project and that pose a threat of exposure to silica. The plan will also list the equipment that will be used long with the engineering controls and work practices that will be employed to control exposure. (The guideline does provide samples of an acceptable plan.)
Each contractor shall have a competent person on the project. This person is trained on the ruling and all it implies. This person is also empowered to take action should an issue of compliance emerge.
Beyond Table 1
Common practices on how a contractor keeps a workplace clean and safe will be observed. Dry sweeping a floor will no longer be acceptable. Also, the use of compressed air to disperse dirt and dust is prohibited. Visscher mentioned that simply following the tasks outlined in Table 1 may not be sufficient. Maintenance of the equipment that is used in the task is vitally important. Should the dust in a work placed be deemed as excessive, the contractor could be in violation of the ruling. The assumption is when there is too much dust, the equipment is not properly maintained.
Medical exams and surveillance are required for workers who are at a higher risk of exposure. The threshold for these exams are when a worker has to wear a respirator based on the silica ruling for more than 30 days in the course of a year.
The last item that is beyond Table 1 is training and record keeping. The content for the training is provided in the guideline. Documentation is extremely important, and there are special requirements on record keeping.
Visscher finished his presentation discussing the potential problem of “fugitive dust.” Job sites are typically a little dirty and dusty. Questions may come up about who generated the dust and, ultimately, who the likely responsible party is. The best advice is to become proactive and cover that contingency in the contract. Key points that should be considered for contract language include that the general contractor is ultimately responsible. The subcontractor has the right to stop a project should a potential problem arise. Finally, the subcontractor is not responsible if due diligence was followed and compliance practices were met.
The OSHA silica ruling will be a reality, the only question is when. A contractor should not be lulled into a false sense of security in thinking that all their work is covered in Table 1; there are many more components of compliance that must be met. Also, contractors should consider managing their risk by working with their legal advisers and draft contract language that protects the firm.
Robert Grupe is AWCI’s director of technical services. Send your questions to firstname.lastname@example.org, or call him at (703) 538.1611.