Thank you to my colleague Bob Melvin for his contributions to the post below. Bob is a partner in the Environmental & Utilities Practice Group whose practice focuses on representing manufacturers with enforcement, compliance, and permitting issues.

On March 25, 2016, the Occupational Safety and Health Administration (“OSHA”) issued its final rule cutting in half the Permissible Exposure Limit (“PEL”) for respirable crystalline silica down to 50 micrograms per cubic meter (μg/m3) of air, averaged over an 8-hour shift. If upheld, the rule will require Construction and General Industry and Maritime employers to:

  • Perform exposure assessments and inform employees or post the results;
  • Repeat air sampling and commence worker medical surveillance if the assessment identifies levels above either the new Action Level of 25 μg/m3 or the revised PEL of 50 μg/m3;
  • Use engineering controls and work practices (such as special equipment and methods utilizing water or ventilation) to limit worker exposure to concentrations above the PEL;
  • Provide respirators when such measures can’t achieve those exposure levels;
  • Designate and limit worker access to high exposure areas;
  • Develop and update written exposure control plans;
  • Train workers on silica risks and exposure limitation methods;
  • Provide more highly exposed workers with medical exams, monitoring and lung health information; and
  • Make changes to hazard communication programs and recordkeeping systems.

OSHA developed its new crystalline silica rule following a series of studies, proposals, and debate, resulting in 14 days of public hearings and 34,000 pages of comments. OSHA estimates that the total annualized cost of the new rule will be more than $1 billion. Despite this high cost, OSHA asserts that, because the rule potentially affects 2.3 million workers and 676,000 establishments, the costs are spread over a large number of establishments and workers. OSHA projects that the rule could “save over 600 lives and prevent more than 900 cases of silicosis each year, once its effects are fully realized,” producing annual net benefits of $3.8 to $7.7 billion over the next 60 years.

But industry associations like the U.S. Chamber of Commerce point out that silica-related mortality has already declined by 93 percent since 1968 and argue that “the remaining cases are due to long term exposures above the current OSHA limit, not because the exposure limit was set too high.” The U.S. Chamber notes that silica is “one of the most common materials on earth (e.g. sand)” and “a critical component in construction, manufacturing, and transportation.”

OSHA responds to these concerns by emphasizing that its rule will regulate respirable crystalline silica comprised of “very small particles typically at least 100 times smaller than ordinary sand found on beaches or playgrounds” and “generated by high-energy operations like cutting, sawing, grinding, drilling and crushing stone, rock, concrete, brick, block and mortar” or “when using industrial sand.” OSHA adds that respirable dust is generated by activities such as: “abrasive blasting with sand; sawing brick or concrete; sanding or drilling into concrete walls; grinding mortar; manufacturing brick, concrete blocks, or ceramic products; and cutting or crushing stone.”

The rule is being challenged as too stringent by construction and manufacturing interests and too lenient by labor interests. Six petitions for review have been consolidated in the D.C. Circuit of the U.S. Court of Appeals. As of now, the rule becomes effective on June 23, 2016. Unless the wave of litigation undermines OSHA’s remodeled silica program, employers in the Construction sector will have an additional year (until June 23, 2017) and those in General Industry and Maritime will have two additional years (until June 23, 2018) to comply with most of the revised PEL requirements.  Hydraulic fracturing operations (aka “fracking”) will have five additional years (until June 23, 2021) to develop and implement the engineering controls required to limit exposures to the new PEL.