OSHA’s new final silica rule that dramatically reduces allowable exposures to respirable crystalline silica takes effect this week for most employers. In particular, the rule kicks in on June 23, 2018 for employers in general industry, maritime companies, and hydraulic fracturing (“fracking”) in the oil and gas industry (for fracking, engineering controls still do not take effect until June 2021).
OSHA says it will still give these employers some time to adjust to the new rule, however. In a June 7, 2018 memorandum, OSHA announced a 30-day enforcement grace period. During this first month, OSHA says that it will assist employers that make a good faith effort to comply with the requirements under the new standard. However, if OSHA finds that an employer fails to make any effort to comply, the employer will be subject to air monitoring procedures and citations for non-compliance.
In their efforts to comply, employers should take advantage of available compliance assistance materials. As an introduction, OSHA published an overview of the new silica standard in a Small Entity Compliance Guide to help small businesses comply.
What does the rule require?
Generally, the new standard requires employers to:
- Determine whether workers are or may reasonably be exposed to silica at or above an action level of 25 micrograms per cubic meter of air averaged over an 8-hour day.
- Protect workers from respirable crystalline silica exposure above a PEL of 50 micrograms per cubic meter of air averaged over an 8-hour day.
- Follow the hierarchy of controls by first employing engineering controls (such as reducing airborne dust using water or removing dust with ventilation) to reduce exposure as much as possible. Only then can employers rely on respirators to protect workers.
- Limit employee access to areas with exposure levels above the PEL and offer medical exams to highly exposed workers.
- Develop a written exposure control plan.
- Train workers on the health risks related to silica exposure and methods to reduce the risks.
- Maintain records of workers’ silica exposure and medical exams.
OSHA says that it has developed interim inspection and citation guidance to ensure compliance and uniform enforcement of the new standard. The agency says it intends to release these materials in the near future.
Although employers must now comply with the rule’s exposure limits, only some employers must comply this year with the rule’s requirements to offer medical surveillance exams to employees. Where employees will be exposed at or above the PEL for 30 or more days per year, medical surveillance must begin when the rule takes effect this week. However, where employees will only be exposed at or above the action level for 30 or more days a year, employers have two more years to comply. In those cases, they must offer medical surveillance exams beginning on June 23, 2020.
Avi Meyerstein is a Partner at Husch Blackwell.
Avi focuses his practice on workplace safety and health matters, litigation and appellate law and represents clients on OSHA, MSHA, CSB and other safety agency compliance, investigations, enforcement actions and appeals.