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OSHA Silica Standard & Disparate Protection Issues

Brian S. Yellin, Esq., MS, CIH, CSP and Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams, P.C.
Feb 22, 2018

Section 16 of the Occupational Safety and Health Act of 1970 permits states to operate and maintain their own occupational safety and health enforcement programs as long as their standards are at least as effective as the standards promulgated by the Secretary of Labor “which relate to the same issues.”

Federal OSHA enforces occupational safety and health standards (and the general duty clause) for the private sector and federal employees in 29 states while 21 states (and the Commonwealth of Puerto Rico) have opted to maintain their own safety and health enforcement programs covering private and public sector employees.

Because states may adopt safety and health standards promulgated by federal OSHA without having to resort to the onerous standard promulgation process prescribed by Section 6 of the OSH Act, the Administrative Procedure Act (5 USC 551 et seq.) and other statutory requirements, many of the state plan states (e.g., Virginia) have adopted most federal OSHA standards for the general industry and construction sectors in full (see Virginia Administrative Code, 16-25-90; 16-25-175).

OSHA published its Final Rule for Occupational Exposure to Respirable Crystalline Quartz in the March 25, 2016, Federal Register, which covers the general industry, maritime, and construction sectors, 29 CFR 1910.1053, 29 CFR 1915.1053, and 29 CFR 1926.1153. The rule reduced the permissible exposure limit (PEL) to 50 ug/m3 for all OSHA-regulated worksites, which reflects a 50 percent reduction for general industry and an 80 percent reduction for construction and maritime operations.

In addition, the rule requires the silica reductions to be accomplished primarily through engineering and work practice controls, and respiratory protection is to be a last resort, after all other control options have been exhausted and exposures remain above the PEL. Affected employers must have written exposure control plans, many will need to conduct regular sampling on an ongoing basis, and workers must be afforded medical surveillance and provided with training on the health hazards of silica and the control methodologies used by the employer for each specific worksite.

All  State Plan States indicated their intent to enact a standard to protect workers from exposure to respirable crystalline quartz, and all but two State Plans (Oregon and Washington) expressed their intent to adopt the identical Final Rule. However, six of these states have not yet notified OSHA of their Final Rule’s effective dates: AZ, HI, MD, UT, WA and WY. Updated information on state adoption of the silica rule is posted on the OSHA website.

The failure of some states to be in sync with the federal requirements, or those of other state plans, poses a compliance dilemma for employers and their safety and health consultant-advisors whose workplaces are subject to both federal OSHA and multiple state plan enforcement activities. In addition, some companies have both OSHA and MSHA-regulated worksites that have activities with occupational exposure to high levels of respirable crystalline silica.

The Mine Safety & Health Administration (MSHA) currently has a PEL that is equivalent to 100 ug/m3, the same as the now-outdated OSHA general industry rule and twice that of the new OSHA PEL. During a recent MSHA oversight hearing before the US House of Representatives, MSHA Assistant Secretary David Zatezalo suggested there would be reluctance to adopt the OSHA rule, noting that this might not be workable at mines. MSHA has regulatory jurisdiction over all surface and underground mines, including stone quarries, sand and gravel pits and cement plant that have many silica-exposed job classifications.

The current situation can lead to disparate protections, and legal liabilities, because one set of workers may have exposures limited to 50 ug/m3 for an eight-hour TWA under the new rule, while similarly situated employees in another sector of the same company may be subject to exposure of up to 100 ug/m3 in MSHA-regulated worksites, or up to 250 ug/m3 for construction and maritime operations – at least until the Federal OSHA rule is eventually adopted by all states and/or by MSHA.

Nowhere is this compliance dilemma more apparent in the mid-Atlantic region where the District of Columbia is subject to federal OSHA jurisdiction while Maryland and Virginia maintain their own State Plans.  Virginia established its Final Rule effective date of December 1, 2016, and began enforcement of the construction portion of the standard on the original effective date (June 23, 2017), even ahead of Federal OSHA. However, Maryland has yet to establish a Final Rule effective date, despite the fact that federal rule took effect for construction on September 23, 2017, and has announced a June 23, 2018, effective date for the general industry and maritime sectors.

Thus, thousands of employers with worksites within these three jurisdictions (not to mention the Federal OSHA states of Pennsylvania, Delaware and West Virginia, which abut the DC/MD/VA corridor), and the hundreds of certified industrial hygienists (CIHs) and certified safety professionals (CSPs) located within this region, must contend with two sets of respirable crystalline silica-related standards and their conflicting permissible exposure limits (PELs).

Employers with worksites in multiple jurisdictions need to be aware of the disparity in the different occupational exposure levels, and afford all workers comparable protections when dealing with crystalline silica, a Group One Human Carcinogen that is also causally connected with the development of silicosis pneumoconiosis, COPD, renal disease and auto-immune disorders, according to OSHA.

CIHs, CSPs and other safety and health professionals must use their professional skill and judgment to competently advise their companies or clients of this discontinuity between occupational exposure levels between the enforceable Federal OSHA standard and those currently in effect in other jurisdictions, and should afford workers the best protections feasible, benchmarking their performance against the most stringent exposure limits.

Originally published Feb. 22, 2018.

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