On March 24, 2016, the Occupational Safety and Health Administration (“OSHA”) issued its final rule related to admissible exposure to respirable crystalline silica. The new rule, which dramatically reduces the permissible exposure limit (“PEL”) of respirable crystalline silica from 250 micrograms per cubic meter of air to 50 micrograms per cubic meter of air (an 80% reduction), has not been without controversy. Opponents argue that the new rule was not needed, that better enforcement of the old rule would accomplish OSHA’s goals, and that the costs of the new rule far outweigh its benefits. Some of these opponents have indicated that they will turn to Congress or perhaps even the courts in response.[i]
Crystalline silica is a component of soil, sand, granite, and other minerals. It becomes respirable when workers drill, grind, or cut objects that contain it. In the construction industry, exposure can occur during many different activities, including abrasive (sand) blasting, jack hammering, rock drilling, concrete mixing and drilling, and brick and concrete cutting, to name a few. Crystalline silica is classified as a carcinogen and breathing silica dust can cause silicosis, marked by inflammation and scarring of the lungs, which affects the lungs’ ability to absorb oxygen. According to OSHA, the new rule was designed to address these occupational hazards and protect human life.
The new silica rule, which becomes effective on June 23, 2016, is actually composed of two rules, one for the construction industry and one for general industry and maritime. Pertaining to the construction industry, the rule allows employers two compliance alternatives. The employer can measure workers’ exposure to silica and then determine the most appropriate methods of control to best limit exposure to comply with the new PELs, or employers can consult what is referred to as “Table 1,” which matches certain construction tasks with specific dust control measures. In addition, employers are required to establish and implement a written exposure and control plan, assign a competent person to implement that plan, restrict housekeeping practices that expose workers to silica, offer medical exams (including chest X-rays and lung function tests) to certain affected employees, train workers on silica exposure, and keep records of exposure and medical exams.[ii] The construction industry must be in compliance by June 23, 2017. For more information on the final rule, visit.
Some commentators estimate that the new rule will affect approximately 900,000 small-business owners, will cost between $3 billion and $4 billion nationally in lost personal income, and will eliminate between 60,000 and 130,000 jobs. Much of this impact will be felt in the construction industry.[iii] Certainly, the new rule, with its requisite control measures, could increase the cost and duration of individual projects. These increased costs and potential delays must be considered when bidding the particular project and developing any critical path scheduling. Considering the effects of the new rule sooner rather than later will put contractors, owners, and project managers ahead of the game for projects that will begin or be in progress after the compliance date of June 23, 2017.
[iii] Bruce D. Phillips, National Federation of Independent Business, OSHA’s Proposed Crystalline Silica Rule Will Cost More Than $3 Billion and Over 100,000 Jobs, (last visited Apr. 1, 2016).