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The New OSHA Silica Standard - Not Strong Enough

Silica exposure was the catalyst that brought occupational diseases in the state workers’ compensation acts in the 1950’s. 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. Silica exposures continue today, especially in counter-top workers, The new silica exposure standard announced by OSHA has still fallen short to protect 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 benefits in the form of both disability and medical benefits. Sharp v. Paterson Monument Co., 9 N.J.Super. 476, 75 A.2d 480 (Co.1950).
The U.S. Department of Labor’s Occupational Safety and Health Administration (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 with their standard as of September 23, 2017, and general industry and maritime employers were required to begin complying with their standard as of June 23, 2018.
Knowledgeable experts have remarked that the new OSHA standard is not strong enough. Jordan Barab, former OSHA Deputy Asst Secretary 2009-2017, expressed his concerns about the new silica standard, “Finally, but, No special emphasis on manufactured counter-top workers who have contracted serious cases of silicosis. 4 years after the standard was issued & 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 (µg/m3) as an 8-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 this NEP, but they are not required to develop and implement corresponding regional or local emphasis programs; and 
  • State Plans must participate because of the nationwide exposures 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 silica particles that are generated by cutting, sawing, grinding, drilling, and crushing materials such as stone, rock, concrete, brick, block, and mortar. Inhaling the dust created during these operations can cause silicosis, an incurable lung disease, lung cancer, and chronic obstructive pulmonary disease. 
Engineered-type 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 continuing epidemic of silicosis in the workplace. 

Related articles:

Workers Are Falling Ill, Even Dying, After Making Kitchen Countertops NPR 10-2-2019

Better Chemistry Through Regulation 12/5/19

Making Workplaces Safer 5/10/18

Preventing Occupational Disease: NJ Governor Murphy Supports a Fracking Ban 2/28/18

Silica: New US DOL Rule to Protect Workers 3/27/16

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman1.973.696.7900 has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation 
Twitter: jongelman 
LinkedIn: JonGelman 
LinkedIn Group: Injured Workers Law & Advocacy Group 
Author: "Workers' Compensation Law" West-Thomson-Reuters


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