OSHA Silica Regulations: Shifting Sands
It has now been slightly over two years since the Construction respirable silica regulation became enforceable by OSHA and about a year and a half since the General Industry regulation followed suit (September 17, 2017 and June 23, 2018, respectively). It was clear to many of us from the beginning that the regulations were leaving many unanswered questions regarding acceptable work practices and required safeguards for employees.
As a brief recap, the Construction Industry (29 CFR1926.1153) has Table 1 to help employers determine proper engineering and work practice controls for different types of activities. When implementing all of the controls, the table will indicate what type of respiratory protection may be needed for either less than four (4) hours or greater than four (4) hours of work.
On the other hand, General Industry’s regulation (29 CFR 1910.1053) only allows Table 1 to apply if the activity is a construction activity and the employer follows all the engineering and work practice controls. Most importantly, though “The task will not be performed regularly in the same environment and conditions.” (29 CFR 1910.1053(a)(3)(ii)).
If the employer’s activities did not meet these criteria, the only options were to rely on “objective data” from the employer’s industry or conduct air sampling as prescribed in the standard. These samples could either determine that the activities resulted in exposures below the Action Level (25 micrograms/m3), above the Action level but below the Permissible Exposure Limit (PEL), or above the PEL.
Depending on the test results, employers might be able to determine that no additional sampling was necessary or that they may have to do more sampling at varying intervals. Results of all sampling needs to be made available to all affected employees.
Flash forward to November 2019 and we now have some further guidance from OSHA regarding the regulations. That guidance comes in the form of “Frequently Asked Questions” documents for both Construction and General Industry and several Standard Letters of Interpretation.
While all the Construction questions are relevant to Construction activities, a standard interpretation letter from July 25, 2019 asks “Does the standard cover employees who perform silica generating tasks for only 15 minutes or less a day?” Paraphrasing their answer, OSHA believes that it would be nearly impossible to exceed the Action Level of 25 micrograms/m3 for an eight (8) hour workday, if the employee conducts no other activities that may expose him/her to silica for the remainder of that day.
Standard Interpretations also include questions regarding omissions from the Construction Table 1 such as concrete formwork and drywall/sheetrock activities with trace amounts of respirable silica. In all circumstances OSHA reiterates that there are no exemptions for activities that potentially contain respirable crystalline silica.
Another resource available from OSHA is a memorandum written for OSHA Regional Administrators that gives interim guidance to OSHA personnel as to how they should enforce the new regulations. This document contains a flow chart for the compliance officers and is a great resource for employers.
If you remain confused, you are not alone. While a few questions have been answered, many remain for employers and will continue to arise until further OSHA guidance is received. To help determine how these regulations may apply to your workplace, MEMIC policyholders can contact MEMIC loss control for further guidance.
