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On March 25, 2016, OSHA published new rules that will impact the way employers handle silica exposure in the workplace. One rule covers General Industry and Maritime and the other covers Construction. Both rules go into effect 90 days after publication- June 23, 2016. Employers that perform abrasive blasting, sandblasting, brick/block/concrete cutting, hydraulic fracturing, asphalt paving, demolition, shipbuilding, stonework, tile cutting, cutting asphalt roofing materials, and paint removal, to name a few activities, will be impacted as these industries perform work that routinely causes the release of respirable silica dust. In part, these new rules arise out of the association between respirable silica exposure, silicosis, lung cancer, tuberculosis, and several other diseases, of which new cases continue to be reported each year.

Compliance with all sections for General Industry and Maritime begins June 23, 2018. Medical monitoring for employees who will be exposed to respirable silica at or above the Permissible Exposure Level (PEL) for 30 or more days per year commences on June 23, 2018 and on June 23, 2020 for those exposed at or above the Action Level (AL) for 30 or more days per year. (AL is defined as 25 micrograms per cubic meter and PEL is 50 micrograms per cubic meter). One slight difference for hydraulic fracturing in the oil and gas industry gives those employers, engaged in that activity, through June 23, 2021 to implement engineering controls. Compliance with all sections, other than methods of sample analysis, for Construction commences on June 23, 2017. Methods of sample analysis, more accurately described as laboratory analysis of air samples, for Construction commences on June 23, 2018- due to the lack of approved laboratories to perform this analysis.

These proposed changes carry potential costs of compliance that may well run in the tens of thousands of dollars for even small companies. Using 2012 dollars, OSHA estimates the annual cost of compliance for all of General Industry and Maritime to be $370,810,530 and the cost of compliance for Construction to be $658,971,248. Most current personal protective equipment practices will be deemed insufficient under these new rules and will require significant and expensive changes as set forth below.

Significant Changes under the Proposed New Rules:

  • The Permissible Exposure Limit (PEL) is reduced to 50 micrograms per cubic meter of air (a 50% reduction for General Industry and Maritime and an 80% reduction for construction).
  • Engineering controls and/or work practice changes are emphasized over respiratory protection.
  • Written exposure control plans must be created whenever employee exposure to respirable silica dust is expected.
  • Employers must perform pre-work assessments to determine the employee’s exposure level and act according to the exposure level.
  • Employers are required to establish “regulated” or “controlled-access areas” when silica dust producing activities are undertaken and must exclude those not authorized to perform the work.
  • Employers are required to establish respiratory protection programs, in addition to employee training and information programs.
  • Medical surveillance is required for employees who work in areas where the amount of respirable silica dust exceeds the action level (one-half the PEL) for more than 30 days in a year.
  • Medical surveillance records are subject to a new level of confidentiality that allows employers only a limited amount of access to the results of the medical examination under the new rules.
  • New record-keeping requirements require maintenance of records relating to air monitoring data, “objective data,” and medical surveillance.

These new rules, though enforcement will be delayed for at least one year, will require substantial investment of monetary resources and create significant paperwork burdens on affected employers. Additionally, particularly for small employers, the new rules create burdens relative to health and safety that many will be unable to achieve as a result of their lacking the requisite knowledge or sophistication to perform the obligations required of those employers.