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Gelman: New OSHA Silica Standard Not Strong Enough

By Jon L. Gelman

Monday, February 10, 2020 | 716 | 0 | min read

Silica exposure was the catalyst that brought occupational diseases in the state workers’ compensation acts in the 1950s. In an effort to shield employers from civil liability, silicosis was incorporated as a compensable condition under the capped damage system of state workers’ compensation programs.

Jon L. Gelman

Jon L. Gelman

Silica exposure continues today, especially in countertop workers, The new silica standard announced by the Occupational Safety and Health Administration falls short of protecting workers from this deadly occupational exposure.

Workers’ compensation systems have awarded benefits for silica-based exposures. A sandblaster who was required to use several 100-pound bags of silica each day and who, as a result of the inhalation of silica dust, developed silicosis was awarded compensation in the form of both disability and medical benefits.

The U.S. Department of Labor’s OSHA has established a revised national emphasis program (NEP) to identify and reduce or eliminate worker exposures to respirable crystalline silica (RCS) in general industry, maritime and construction. 

The NEP targets specific industries expected to have the highest numbers of workers exposed to silica and focuses on enforcement of the new silica standards, one for general industry and maritime (29 CFR § 1910.1053) and one for construction (29 CFR § 1926.1153).

These standards became effective in June 2016 and construction employers were required to begin complying as of Sept. 23, 2017. General industry and maritime employers were required to begin complying with the standard as of June 23, 2018.

Knowledgeable experts have remarked that the new OSHA standard is not strong enough. Jordan Barab, former OSHA deputy assistant secretary from 2009-2017, expressed his concerns about the new silica standard: “Finally, but, no special emphasis on manufactured countertop workers who have contracted serious cases of silicosis. Four years after the standard was issued and several years after it became effective, employers still need 90 days of compliance assistance?”

What changes were made to the NEP? 

  • Revised application to the lower permissible exposure limit for respirable crystalline silica to 50 micrograms per cubic meter as an eight-hour, time-weighted average in general industry, maritime and construction.
  • Updated list of target industries, as listed in the appendix of the NEP; from this list, area offices will develop randomized establishment lists of employers in their local jurisdictions for targeted inspections.
  • Compliance safety and health officers will refer to current enforcement guidance for RCS inspection procedures. 
  • All OSHA regional and area offices must comply with the NEP, but they are not required to develop and implement corresponding regional or local emphasis programs.
  • State plans must participate because of the nationwide exposure to silica. 

OSHA will conduct 90 days of compliance assistance for stakeholders prior to beginning programmed inspections for the NEP.

Respirable crystalline silica consists of small particles that are generated by cutting, sawing, grinding, drilling and crushing materials such as stone, rock, concrete, brick, block and mortar. Inhaling the dust can cause silicosis, an incurable lung disease; lung cancer; and chronic obstructive pulmonary disease. 

Engineered stone is now becoming trendy in the marketplace, and as a result silica exposure continues as an emerging problem. OSHA needs to do better to remedy the epidemic of silicosis in the workplace. 

Claimants' attorney Jon L. Gelman is the author of "New Jersey Workers’ Compensation Law" and co-author of the national treatise "Modern Workers’ Compensation Law." He is based in Wayne, New Jersey. This blog post is republished with permission.

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