On August 23, 2013, the U.S. Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking to adopt a new permissible exposure limit (PEL) for respirable crystalline silica and to impose other requirements limiting employee exposure to silica in the workplace. Crystalline silica is found in materials such as concrete, tile, masonry and rock and used in many industries, including  foundries, construction and hydraulic fracturing (fracking) of oil and gas wells. Long-term exposure, and even some short-term exposure depending on individual sensitivity, can lead to conditions such as lung cancer and chronic obstructive pulmonary disease (COPD).

The amendment would take the form of two new standards, one for general industry and another for construction. There currently is no stand-alone standard for workplace silica; the present PEL appears in Table Z-1 of 29 C.F.R. 1910.1000 (general industry) and in Table A to 29 C.F.R. 1926.55 (construction). The new standards would reduce the current PEL by 50 percent, from an 8-hour average of 100 micrograms per cubic meter of air (100 µg/m³) to an 8-hour average of 50 micrograms per cubic meter of air (50 µg/m³). The new PEL and other terms of the proposed standards would apply to all workplaces in general industry, construction and maritime. The Mine Safety and Health Administration (MSHA) is likely to adopt a similar standard applicable to mines once OSHA has completed its rulemaking.

The new standards also would set an “action level” of 25 micrograms per cubic meter of air (25 µg/m3). If employees would be, or reasonably might be, exposed to respirable crystalline silica at or above that level as a result of their work, the employer would have to conduct workplace assessments via air sampling every six months until two consecutive assessments produced measurements below the action level.

One of the more challenging aspects of the proposed standards would require the employer to establish a “regulated area” or a “written access control plan.” A regulated area would set boundaries separating the exposure area from other areas in the workplace and limit access to the regulated area. In addition, the employer would have to provide appropriate personal protective equipment (including respirators) and clothing as well as provide free medical exams at least every three years to employees who were, or might be, exposed to respirable crystalline silica above the PEL for 30 days or more per year.

Employers in the construction industry would be provided options regarding exposure control program implementation. If construction employers can demonstrate compliance by showing implementation of and adherence to the engineering and work practice controls as specified in the table to the proposed construction standard, they would not be required to assess employee exposure. However, construction employers would still be allowed to assess employee exposure and create an exposure control program if they preferred to do so.

Neither method of compliance would excuse a construction employer from ensuring its employees were not exposed to respirable crystalline silica in excess of the PEL. In addition, if any employees were exposed at or above the action level, the employer would have to comply with the requirements to assess the exposure level every six months.

The notice of proposed rulemaking originally provided for a comment period ending on December 11, 2013. On October 25, 2013, however, the Agency extended that period by 47 days to January 27, 2014 based upon requests from various industry constituents and several congressional offices. The deadline for notifying OSHA of an intention to appear at the public hearings on the proposed rule was also extended by 30 days to December 12, 2013. Those hearings are scheduled to begin March 18, 2014.

The current PEL for respirable crystalline silica was adopted in 1971. OSHA claims the PEL is grossly outdated and fails to reflect more recent scientific research. According to the Agency, the proposed rule would affect more than 2.1 million workers and 534,000 businesses, costing $640 million annually for compliance (an average of $1,242 per business). Industry members and representatives believe those figures to be grossly understated. The fracking industry, which includes approximately 200 companies with more than 25,000 employees, would be most affected by the rule.

OSHA has not provided a timetable for publication of the final rules; however, the final rules would go into effect 180 days after their publication date. In their draft form, the new rules would give employers one year to implement required engineering controls and laboratories two years to meet the accreditation requirements established by the rules.

On September 12, 2013, in an unexpected twist, OSHA published a notice in the Federal Register requesting, though not requiring, parties submitting comments on the proposed new standards disclose their financial supporters or funding sources and their sponsoring organizations, as well as any financial relationships they have with organizations vested in the outcome of the rulemaking. In pursuit of further transparency, the notice also requested commenters disclose the extent to which the comments being submitted were reviewed by any such interested organization prior to submission.

Industry’s concern is that any study submitted by an organization or individual supported by an interested entity will be viewed by OSHA with bias, either positive or negative, depending on the identity of the interested entity. As observed by Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, the mere fact that a study was financed by a particular organization does not invalidate or call into question the study’s findings.

Criticisms of the proposed standards are numerous and include:

• Ambiguity, particularly surrounding the provisions requiring and allowing for engineering and work practice controls that would establish compliance.

• Infeasibility of compliance, especially but not exclusively for small companies.

• Complying with the new PEL would be nearly impossible, and staying below the action level would be absolutely impossible for any employer whose employees are exposed to silica of any degree.

• A lack of accredited laboratories to handle the volume of samples that will require analysis.

• An employer would be permitted to rely on respirators or administrative controls (i.e. employee rotation) only if it were able to demonstrate that engineering and work practice controls are infeasible (a very difficult standard for an employer to meet by evidence).

Revisions to OSHA’s silica exposure standards were not initiated under the Obama Administration but the Administration is determined to see the proposed rules published as final. Industry critics of the Agency and the proposal, therefore, suspect the many comments certain to be submitted are unlikely to be considered in any detail given the short time frame. As a result, the likelihood of legal challenges to any ultimately final rule is very high.