- On December 14, 2023, the Cal/OSHA Standards Board approved an emergency temporary standard to enhance existing standards regarding the hazards of respirable crystalline silica. The ETS became effective on December 29, 2023.
- The ETS is of interest to all employers insofar as it marks the fifth time in only three years that Cal/OSHA has approved a rule using its emergency powers.
On December 14, 2023, California’s Occupational Safety and Health Standards Board approved an emergency temporary standard (ETS) intended to enhance protection of workers from the hazards of respirable crystalline silica (RCS). The ETS became effective on December 29, 2023 and will be in effect for one year. Covered employers with operations within the scope of the enhanced requirements – which are detailed below – should immediately prepare for compliance.
The rapid development and adoption of this new regulatory measure is of interest to all employers regardless of whether their current operations are covered by this ETS. The ETS illustrates a fast-track Cal/OSHA regulatory response premised on government powers that can only be invoked on the basis of an emergency linked to workplace exposure. Yet this is the fifth ETS Cal/OSHA has adopted in just three years. This is noteworthy as the emergency rulemaking process does not contain certain procedural rulemaking hurdles that the Agency must satisfy when it goes through the standard non-emergency rulemaking process.
Dramatic rise in silicosis cases cited as basis for an Emergency Temporary Standard
Cal/OSHA initiated steps earlier this year to undertake emergency rulemaking to address the growing number of reported cases of advanced silicosis among workers exposed to RCS in engineered stone fabrication shops. Silicosis is an incurable, progressive disease that causes serious and fatal health effects and can be caused by breathing in RCS particles. Cal/OSHA’s efforts were fueled by data published by the California Department of Public Health identifying 95 cases of workers who developed silicosis since 2019, 10 of whom had died from the disease. The approval of the Cal/OSHA ETS comes on the heels of Australia’s landmark announcement that it will ban engineered stone due to an alarming risk in silicosis among workers exposed to RCS material.
During public discussion of the proposed ETS, all parties recognized the serious and deadly health consequences of RCS exposure. However, representatives of the engineered stone industry asserted that increased enforcement by Cal/OSHA against stone fabricating companies that continually fail to comply with existing regulations may be a more effective way to address the recent rise in reported cases. Representatives posited that requiring additional measures via the “emergency basis” process could result in unintended consequences, such as inflated operating costs that could force compliant employers to shut down operations in California while incentivizing non-compliant employers to continue operating in an unsafe matter. This position was supported by Cal/OSHA’s own data collected in 2019-2020 indicating that more than 70% of countertop manufacturing employers simply did not comply with existing silica regulations. Further, a Cal/OSHA Staff Analysis completed in June 2023 concluded that the ETS would impose additional burdens on compliant employers in the industry “without necessarily producing better safety and health outcomes.” Despite these findings, the Standards Board unanimously adopted the ETS.
Which employers are covered by the ETS and what does it require?
Although the ETS generally applies to all California employers,1 it is targeted at those in the engineered stone industry whose employees are engaged in high-exposure trigger tasks (cutting, grinding, polishing, clean up, etc.) involving artificial stone2 and natural stone containing more than 10% crystalline silica. The ETS establishes the following protections when an employee is engaged in a high-exposure trigger task.
Employee Exposure Control Precautions
Employers will need to implement additional control precautions where high-exposure trigger tasks are being performed, including the following:
- Implementing initial exposure monitoring and then continued monitoring at least every 12 months to assess the effectiveness of exposure controls.
- Using wet methods when performing trigger tasks without exception to reduce airborne dust exposure.
- Performing trigger tasks and other tasks that exceed, or are expected to exceed, the Permissible Exposure Limit (PEL) only in regulated areas that are demarcated and identified by proper warning signs, which must be written in both English and Spanish.
New housekeeping methods will be required as well, including prompt and proper dust cleanup, and readily available washing facilities, amongst others.
In addition, certain practices are prohibited on materials, surfaces, or equipment containing RCS, such as dry sweeping, use of compressed air, employee rotation to reduce exposure to RCS, and walking or moving equipment through dry dust.
Respiratory Protection
Employers will need to provide and ensure that employees are using full-face, tight-fitting powered air-purifying respirators (PAPRs) or an equally protective alternative, except in limited circumstances where a positive pressure supplied air respirator must be used instead. These respirators must be used in accordance with Cal/OSHA’s Respiratory Protection Standard.3
Employee Communication and Training
Employers will need to provide additional training related to RCS hazards, including the symptoms of RCS exposure, how to use the required dust control measures to prevent exposure, and the importance of seeking medical attention if employees experience RCS exposure symptoms. This training must be provided to employees in a language they understand and appropriate for their education level and literacy.
Reporting Silicosis and Cancer Cases
Employees must be encouraged to report symptoms of RCS exposure without fear of retaliation. Furthermore, employers must report, within 24 hours, any confirmed RCS exposure-related silicosis or cancer case to the California Department of Health and Cal/OSHA. Likewise, healthcare providers who have been contracted by employers to evaluate their employees must report confirmed silicosis cases to Cal/OSHA.
Written Exposure Control Plan
Employers will need to expand their written exposure control plans to incorporate many of the elements discussed above, including a record of employee exposure monitoring efforts, procedures for the proper use of personal protective equipment, documentation that workplace crystalline silica use has been properly reported to Cal/OSHA, and training procedures showing employees are trained to prevent RCS exposure from occurring.
Enforcement
The ETS permits Cal/OSHA to issue an Order Prohibiting Use4 (OPU) without conducting air sampling to establish that silica exposures at a worksite exceed the PEL. More specifically, the ETS authorizes Cal/OSHA to issue an OPU any time dry operations are observed, as well as any time violations related to prohibited activities, respiratory protection, reporting of silicosis, and carcinogen reporting are found.
What’s next?
The ETS went into effect on December 29, 2023, and will be effective for one year. However, Cal/OSHA has signaled its objective to make the ETS a permanent standard before its expiration date, and it plans to include additional measures in the permanent regulation. As such, employers whose operations are within its scope should work towards compliance. — written by David Dixon, Melissa Peters and Charles Trowbridge of Littler Labor & Employment Law Solutions
Footnotes
1 The ETS applies to California workers occupationally exposed to RCS covered by California Code of Regulations, Title 8, section 5204. This does not include construction work covered under section 1532.3, agricultural operations covered under section 3436, and exposures that result from the processing of sorptive clays.
2 The ETS defines “artificial stone” as any reconstituted, artificial, synthetic, composite, engineered, or manufactured stone, porcelain, or quartz typically within a binding material. Artificial stone contains approximately 93% or greater crystalline silica.
3 See California Code of Regulation, Title 8, Section 5144.
4 An Order Prohibiting Use (OPU) allows Cal/OSHA to stop a hazardous process or close a facility when an imminent hazard that cannot be immediately eliminated is observed. If an OPU is issued, an employer may not commence or continue operations until the alleged hazard has been abated.
