OSHA's Respirable Silica Rules Now Apply to Maritime Industry

To protect workers from dangers associated with exposure to breathable silica dust, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has developed "Respirable Crystalline Silica" standards. These standards are applicable to all employers and employees subject to OSHA.

In addition to federal OSHA, there are also 28 OSHA-approved state plans. States are allowed to implement their own, statewide occupational safety and health programs pursuant to written agreements with the U.S. Department of Labor. State Plans are required to have standards and enforcement programs that are as least as effective as OSHA's, although they may have different or more stringent requirements.

Compliance with a silica standard was originally limited to the construction industry, which required employers to meet the requirements of the standard as of September 23, 2017. However, as of June 23 of this year, a respirable crystalline silica standard has been adopted to cover all employers in the maritime and general industries in addition to the standard adopted for employers in the construction industry.

Crystalline silica is a common mineral found in such materials as sand, stone, concrete, brick, and mortar. Certain common industrial or construction activities, such as using saws, drills, or grinders, can release silica dust into the air. In the maritime industry, the principal source of crystalline silica is the use of sand for abrasive blasting.

Workers exposed to respirable crystalline silica are at an increased risk for developing lung cancer, silicosis, and chronic obstructive pulmonary disease. Silicosis is a currently incurable lung disease.

The new application of standards requires all covered maritime and general industry employers to first assess employee exposure to silica. Employers must determine if any employee is exposed to silica dust at or above the "action level," which is defined as any exposure to 25 micrograms of silica per cubic meter of air averaged over an 8-hour day. If there is silica dust in the workplace, the employer must take steps to protect workers from exposure in excess of the permissible exposure limit (PEL) of 50 micrograms of silica per cubic meter of air averaged over an 8-hour day.

Employers are required to limit access to areas where silica is at or above the PEL.

To limit workplace silica dust to below the PEL, employers are required to undertake housekeeping measures to reduce airborne dust. If housekeeping measures are unsuccessful in limiting silica exposure to below the PEL, employers must provide respirators to their exposed workers.

The methods adopted by the employer to reduce or eliminate worker exposure to silica dust must be set forth in a written exposure control plan. The written plan must identify the methods used to protect workers. The written plan must identify the specific tasks, and the identity of those responsible for each task, that involve exposure to silica dust in the workplace.

Of equal importance, every worker must receive training on work operations that result in silica exposure as well as ways to limit such exposure. In addition to the written exposure control plan, employers must keep records of exposure measurements, object data, and employee medical exams, which must be offered to every employee who will be exposed above the PEL for 30 or more days per year.

This medical exam must be provided to each exposed employee every three years. These exams must include chest x-rays and lung function tests.

Compliance with the silica standard does not exempt an employer from the duty to comply with all other applicable OSHA standards.

For example, OSHA specifically requires maritime employers engaged in abrasive blasting operations (using crystalline silica-containing blasting agents) to comply with several additional standards, including ventilation and mechanical paint removers. Maritime and general industry employers now covered by respirable crystalline silica standards should immediately conduct a review of their written safety program(s). These programs, and accompanying employee training, should be updated as necessary to meet the requirements of the silica standard.

Employers in the maritime and general industries may, under certain circumstances, opt to utilize the silica standard adopted for the construction industry instead of the general industry and maritime standard.

Tom Davis is a partner in Poyner Spruill LLP’s litigation section and has more than 25 years of experience in the litigation and arbitration of complex cases. He regularly represents property owners, design professionals and construction contractors on construction related issues, including contract negotiation, claims analysis and presentation, labor and OSHA disputes, professional licensing disputes, and land condemnation.