New Construction Products August 2017 - Page 13

until June 23, 2018, to comply and until June 23, 2020, to offer medical surveillance to employees who are exposed between the AL and the PEL for more than 30+ days per year. The hydraulic fracturing (fracking) industry has until June 23, 2021, to fully comply with engineering control re- quirements. Although the rule is still in litigation in the U.S. Court of Appeals, the court refused requests from industry to stay the implementation pending a decision. Similarly, while a group of construction industry associations peti- tioned OSHA in May 2017 to reopen the silica rulemaking, no response has been forthcoming other than the three- month compliance date extension. The rule is anticipated to have more than a $1 billion annu- al economic impact, and will affect 2 million construction workers and 300,000 general industry/maritime sector employees. OSHA claims the new standard will prevent 600 deaths per year, and eliminate 900 new silicosis cases as well. Significantly, the rule contains health findings which state that exposures above the newly adopted PEL are linked with occupational cases of silicosis, pneumoco- niosis, chronic obstructive pulmonary disease, lung cancer, renal disease and certain auto-immune disorders. As a result, employers are already facing new workers’ compensation claims filed by retired workers, who now assert that their work in silica-containing work environ- ments caused the diseases that have manifested years lat- er. They now can point to the OSHA health effect findings in the Federal Register as evidence of causation, particu- larly where there is documented evidence of on-the-job exposures to respirable crystalline silica above 50 ug/m 3 . Courts in personal injury or wrongful death cases (brought by third party workers such as temporary workers, day laborers and subcontractors) and workers’ compensation hearing boards can take judicial notice of OSHA’s pub- lished final rule. Crystalline silica is a component of many construction ma- terials, including brick and mortar, concrete, slate, granite, engineered stone products, tile, asphalt filler, roofing mate- rials, plastic composites, soil, wallboard joint compounds, paint, plaster, caulking and putty. It is also generated when silica-containing materials are milled, cut or crushed, or when building demolition occurs. Even before the silica rule took effect, employers already had to train workers on the hazardous effects of exposure under the OSHA Hazard Communication Standard, and advise them of the personal protective equipment and other precautionary measures needed. This obligation continues regardless of the ultimate outcome of the OSHA rule litigation. All workers will have now also need training under the silica rule, concerning the health effects, what steps the employer is taking to reduce silica exposures, what specific types of respiratory protection must be used, the aspects of the written exposure control plan, housekeeping pro- cedures, and any regulated areas where workers should not enter expect when properly protected and only for work-related reasons. Training must be documented under both the hazard communication standard (reviewing the Safety Data Sheets for silica-containing products) and under the distinct silica standard. There are a number of actions that construction sector employers need to take quickly to prepare for enforcement of the new rule. While all general industry employers in silica-containing environments will need to conduct exposure monitoring (personal silica samples) of workers initially and at certain intervals, for construction, this must be done only if the employer opts out of “Table One” or is using equipment or performing tasks not listed in that table. Following Table One does have a big benefit: if ad- hered to completely, if OSHA conducts sampling and finds exposures exceed 50 ug/m 3 , the employer will not be cited. If you develop your own system and exposures exceed this limit, and OSHA finds that there were additional controls that could be used, the employer will be cited even if the worker is wearing appropriate respiratory protection. Now is the time to develop a sampling strategy for those tasks and equipment that fall outside of the 18 enumerat- ed items on Table One of the rule. Even if a task falls within Table One, employers will need to sample unless they are prepared to follow all of the actions 100 percent (e.g., using a power saw with a water-integrated system, rather than using a hose to wet the work item, and then using an APF 10 respirator for all indoor work and for outdoor work lasting more than 4 hours). If a company has been doing a great deal of silica sampling historically, it may be possible to develop a body of objective data in lieu of repeated ongoing exposure monitoring, for common tasks that are routinely done under similar work conditions.