March 14, 2019

A Concrete Law: The Implications of the New OSHA Silica Standards in the Construction Field

Matthew Arvin, Nashville, Tennessee, Lee Industrial Contracting, Division 6

Construction workers are constantly working around concrete.  However, when construction workers cut, drill, or grind concrete, dangerous silica particles become airborne that could cause silicosis or lung cancer if inhaled at a certain rate.  This undoubtedly is why the construction silica respiratory standards have been the law for almost fifty years.  However, as with any law, sometimes the law becomes ineffective over time and needs modification.  This is exactly what OSHA did after finding that the previous silica standards, which were created in 1971, were not effectively protecting workers. 

September 23, 2018 marked the one-year anniversary of the enforcement date of OSHA’s new respirable crystalline silica standards for construction work (29 CFR 1926.1153).  However, even a year after the implementation date, construction employees and employers are still getting familiar with these new and radically different silica standards. 

Previously, the permissible exposure limit for silica was 100 micrograms per cubic meter of air during an 8-hour time-weighted average.  Now, the permissible exposure limit shall not exceed 50 micrograms per cubic meters.  As you can see, the legal exposure limit was cut in half with this new standard. 

The single most important silica standard for the construction industry to know, understand, and follow is 29 CFR 1926.1153(c)(1).  This standard says that “for each employee engaged in a task identified on Table 1, the employer shall fully and properly implement the engineering controls, work practices, and respiratory protection specified for the task on Table 1, unless the employer assesses and limits the exposure of the employee to respirable crystalline silica.”

Table 1 gives a list of eighteen different tasks that may create airborne silica.  With each of those tasks, a control measure is given as well as any respiratory protection that is required to eliminate the risk of breathing in silica.

The most common control measures in this table are: (1) using equipment with a commercially available shroud and dust collection system, (2) using equipment with integrated water delivery system that continuously feeds water to the blade, and (3) operating equipment while within an enclosed cab. 

Before this standard was created, construction workers would be compliant if they either held a vacuum next to the drill and sucked up the dust as it was created or applied their own water to their blade to keep the dust from becoming airborne.  Now, construction workers must use the expensive equipment that OSHA is mandating in Table 1.  For example, the Hilti brand makes a drill bit for their rotary drill with an enclosure around the entire bit that prevents dust from escaping into the atmosphere.  The drill is attached to  a hose that sends the dust directly into a vacuum with a HEPA filter.  These vacuums generally cost between $500 and $1000 per drill being used.  

It is important for employers and employees to understand that using a respirator is not a substitute for the required control measures.  Any respirator requirements in the standards must be used in conjunction with any required control measures.  Additionally, it is not enough to simply provide the employees with respirators.  Employers shall also fit test employees before the work commences.  A proper fit test includes: ensuring workers are clean shaven so that the respirator fits snugly on the face, testing the employees’ lung capacity, and testing the respirator’s seal with an noxious irritant being emitted outside of the respirator.  Fit tests can be done by the employer, union halls, or a hired outside party so long as testing is effective and proper records are maintained.  Fit testing is a costly expense that must be borne by the employer.

Another new addition to the silica standard is the required medical check-up standard.  29 CFR 1926.1153(h)(1)(i) requires employers to “make medical surveillance available at no cost to the employee, and at a reasonable time and place, for each employee who will be required under this section to use a respirator for 30 or more days per year.” Further, 29 CFR 1926.1153(h)(1)(ii) requires “[t]he employer [to] ensure that all medical examinations and procedures required by this section are performed by a [Physician or other licensed health care professional].”  This is yet another additional cost to employers. 

Finally, OSHA allows employers to bypass both the respiratory protection and the work practice controls requirements if the employers can assess the area and can prove that the work area is under the permissible exposure limit.  29 CFR 1926.1153(d)(2)(iii)(A) outlines the initial monitoring requirements:

The employer shall perform initial monitoring to assess the 8-hour TWA exposure for each employee on the basis of one or more personal breathing zone air samples that reflect the exposures of employees on each shift, for each job classification, in each work area. Where several employees perform the same tasks on the same shift and in the same work area, the employer may sample a representative fraction of these employees in order to meet this requirement. In representative sampling, the employer shall sample the employee(s) who are expected to have the highest exposure to respirable crystalline silica.

The employer, under 29 CFR1926.1153(d)(2)(v), must then send the air samples to be “evaluated by a laboratory that analyzes air samples for respirable crystalline silica in accordance with the procedures” outlined by OSHA.  And, under 29 CFR 1926.1153(d)(2)(iii)(B), “If initial monitoring indicates that employee exposures are below the action level, the employer may discontinue monitoring for those employees whose exposures are represented by such monitoring.” 

While the burdens and costs of these new silica standards are high for employees and employers alike, OSHA firmly believes that all these measures will save an untold number of lives in the future.  So, while these standards may be demanding, the ends will most likely justify the means.