On March 25, 2016, the federal Occupational Safety and Health Administration (OSHA) finalized its new crystalline silica rule. Despite a court challenge, and over the objections of Cal/OSHA’s construction industry, the Occupational Safety and Health Standards Board (OSHSB) has adopted federal OSHA’s silica rules.
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Here’s what has changed, what construction employers objected to most, and how the OSHSB plans to address their objections.
New Rules, Broader Coverage
Fed/OSHA’s new rule is actually two rules—29 CFR 1910.1053 covers crystalline silica exposures in the maritime and general industries, and 29 CFR 1926.1153 covers construction employers.
California doesn’t have a specific standard for general industry employers addressing employee exposure to respirable crystalline silica. General Industry Safety Orders (GISO) Section 5155, Airborne Contaminants, and GISO Section 3203, Injury and Illness Prevention Program, require employers to protect employees from crystalline silica exposure in general terms but lack the specificity of the new federal rule.
Another existing Cal/OSHA standard, Construction Safety Orders (CSO) Section 1530.1, Control of Employee Exposures from Dust-Generating Operations Conducted on Concrete or Masonry Materials, addresses dust exposure resulting from the use of powered tools or equipment on concrete or masonry materials.
This state standard differs from the new federal standard in scope and application, permissible exposure limit (PEL), and several other major elements. It also lacks requirements for medical surveillance and a written exposure control plan. The state, therefore, couldn’t make a case that its own rules provided equivalent protection to the federal standards.
As a result, once the federal standards were adopted, California had 6 months to bring its own rules in-line. The OSHSB adopted the federal final rule for construction in new CSO Section 1532.3 and the final rule for general industry and maritime in new GISO Section 5204 and existing GISO Section 5155. It did so using its Horcher adoption process, which allows the state to adopt federal rules with only clerical changes without going through its regular rulemaking process.
The OSHSB did allow a public comment period and public hearing, although these are not required by the Horcher rule. And affected employers did have a few things to say.
Construction’s Objections
Some construction employers that were covered by Section 1530.1 voiced strong objections to the adoption of the federal rule. For example, the California Professional Association of Specialty Contractors (CPASC) called the new rule “overbroad.”
It asked the OSHSB to retain the limitations and exceptions in the existing rule for certain types of work. Alternatively, the CPASC asked the OSHSB to delay implementation of the new rules by 15 months so its members could have more time to come into compliance.
Construction employers are also concerned about the federal standard’s requirement that employers use wet methods when cutting materials that can release crystalline silica. Employers argue that they have been effectively using dry dust-collection systems since Cal/OSHA’s existing rule took effect in 2008 and that it provides as-good-as or better protection than water-based systems—while avoiding the problems of electrical hazards and slurry that wet systems create.
The OSHSB adopted the rules unchanged but has offered to work to resolve the issues using its advisory committee process. Industry advocates, naturally, aren’t completely pleased with this solution—or with the fact that they will have only until June 23, 2017, to come into compliance with the new rule.
The New Requirements
The most significant change in the new rules is a substantial reduction in the PEL, from the current Cal/OSHA PEL of 100 micrograms per cubic meter (mcg/m3) of air to 50 mcg/m3, averaged over an 8-hour shift.
Job tasks in which the airborne concentrations of crystalline silica won’t at any time exceed the action level of 25 mcg/m3 at all times are exempt from coverage. The maritime/general industry standard also exempts exposures that result from the processing of sorptive clays.
The construction standard includes a table with specific exposure control methods listed for specific tasks and types of equipment. This differs substantially from other federal and Cal/OSHA standards. Employers that comply with these alternative exposure control methods are exempted from the standard’s other exposure monitoring, engineering, and work practice control requirements.
The new rules are structured much like OSHA’s other substance-specific standards. They include requirements for exposure assessments, regulated areas, engineering controls and work practice controls, written exposure control plans, respiratory protection programs, housekeeping, medical surveillance, hazard communication, and recordkeeping.