United States: OSHA’s Crystalline Silica Rule: Compliance Clock Ticks While Legal Challenges Mount

Last Updated: April 19 2016

Article by Louis J. Thorson

The Occupational Safety and Health Administration (OSHA) published its final rule on “Occupational Exposure to Respirable Crystalline Silica” (the “Silica Rule”) on March 25, 2016, and as expected numerous manufacturing industry trade groups and others have filed legal challenges to the rule’s validity. With the outcome of these challenges uncertain, manufacturers and other affected industries are currently subject to the compliance deadlines established in the Silica Rule—June 23, 2017 for the construction industry and June 23, 2018 for general industry and maritime. Given the potential costs of compliance and penalties for noncompliance, manufacturers and other regulated industries should consider starting their compliance planning process now, while also following the progress of legal challenges to the Silica Rule to help avoid unnecessary cost in the event it is overturned.

OSHA estimates that the rule will save over 600 lives and prevent more than 900 new cases of silicosis each year, once its effects are fully realized. The Final Rule is projected to provide net benefits of about $7.7 billion, annually.

About 2.3 million workers are exposed to respirable crystalline silica in their workplaces, including 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone, and 300,000 workers in general industry operations such as brick manufacturing, foundries, and hydraulic fracturing, also known as fracking. Responsible employers have been protecting workers from harmful exposure to respirable crystalline silica for years, using widely-available equipment that controls dust with water or a vacuum system.

Key Provisions

Reduces the permissible exposure limit (PEL) for respirable crystalline silica to 50 micrograms per cubic meter of air, averaged over an 8-hour shift.

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.

Compliance Schedule

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 a compliance date of June 23, 2021.

As of this writing there were at least seven different challenges filed in six different U.S. federal courts of appeals across the country, all of which OSHA is seeking to consolidate into a single case. Regardless of whether the cases are consolidated, it is possible the challengers will request that the Silica Rule be stayed while the legal proceedings run their course. For that reason, manufacturers and other regulated entities should follow these proceedings closely, as their outcome may impact compliance planning and related business considerations.

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