By Rod Smith, Chuck Newcom, Pat Miller, and Matt Morrison

OSHA’s much-anticipated rule to regulate employee exposure to crystalline silica was published last Friday, March 25th. The new rule takes effect June 23, 2016. Depending on the industry involved, staggered compliance deadlines have been established:

• Construction – June 23, 2017
• General Industry and Maritime – June 23, 2018
• Hydraulic Fracturing – June 23, 2018

Within each industry group, other deadlines have been set as to select portions of the rule. For example, while the overall compliance date for hydraulic fracturing is June 23, 2018, employers in this group have until June 23, 2021, to implement engineering controls. States with OSHA-approved state plans are expected to adopt identical or similar rules in the near future. Crystalline silica is a common material found in many workplace operations such as cutting, sawing, drilling or crushing of concrete, brick or stone, or operations using sand products such as sandblasting and hydraulic fracturing. Among the industries most likely to be affected are:

• Construction
• Glass and pottery products
• Concrete products
• Ready mix concrete
• Cut stone and stone products
• Abrasive blasting
• Oil and gas operations

The new rule is extremely complex and detailed. The General Industry standard alone is over 30 pages and the Federal Register comments supporting the entire rule encompass over 1100. For now, OSHA’s new Crystalline Silica web page provides a good source of information, including a copy of the final rule and various overviews. We suggest you start with the overviews. The most challenging change posed by the new rule is a significant reduction in the Permissible Exposure Limit (PEL) to 50 micrograms of respirable crystalline silica per cubic meter of air (50 µg/m³) averaged over an eight hour day. This is a large reduction from the current PEL’s which have been in place for many years. Once the rule becomes effective employers will be required to maintain, through engineering controls or respiratory protection, exposures below the 50 µg/m³ PEL. This is a very challenging task in many industries, especially construction. Given the economic impact and other issues posed by the new rule, it is likely that several court challenges, seeking to vacate or modify the rule, will be filed. For now, employers with silica or potential silica exposures in their workplaces should start to familiarize themselves with the new rule well in advance of the compliance deadlines. In the coming months, various safety-related organizations – including Sherman & Howard – will offer additional information, details, and further developments.

Rod Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard’s Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard L.L.C. has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2016 Sherman & Howard L.L.C.                                                                                               March 28, 2016