As summer arrives, temperatures will rise and workers will be tempted to open windows while operating equipment and lower masks for more fresh air.
While both of these seem innocent enough while outdoors, depending on what task workers perform, the potential risk of exposure to respirable crystalline silica (RCS) – and the company’s likelihood of getting a citation – may significantly increase by simply getting some fresh air.
Before COVID-19 dominated workplace safety, 2020 was gearing up to be a significant year with respect to RCS regulation by the Mine Safety & Health Administration (MSHA) and Occupational Safety & Health Administration (OSHA). Now, even as we prepare for the imminently expected OSHA Emergency Temporary Standards for COVID-19, workplaces are normalizing to pre-pandemic conditions and priorities – including agency enforcement priorities.
This slow return to normalcy, coupled with an administration that has ties to when OSHA passed its revised RCS regulation and MSHA planned to adopt similar exposure limits, points to RCS regaining its place as a priority.
Will MSHA issue a proposed rule?
Those regulated by MSHA have likely heard for years about the agency’s plans to issue a new rule regarding RCS – or, in MSHA’s regulation, respirable quartz.
When OSHA finalized its new RCS standard in 2016, it seemed a foregone conclusion that MSHA would issue a proposed rule of its own based on the OSHA standard. But, as 2016 ended, MSHA reprioritized its rulemaking agenda to push through the updated metal/nonmetal workplace exam rule.
Under the Trump administration, MSHA was consistently under pressure to revisit the rulemaking on RCS. While it was expected that a proposed rule would be published in 2020, it never came. So an updated RCS/respirable quartz rule remains on MSHA’s agenda.
Currently, the existing MSHA threshold limit value for respirable quartz in the mining industry persists. MSHA currently limits exposure at a level that roughly equates to 100 micrograms per cubic meter (µg/m3) of silica. Yet, it is not absolute to that limit, as the percentage of quartz in the sample is taken into consideration during the shift.
Still, MSHA’s level is double the OSHA permissible exposure level (50 µg/m3) and quadruple the OSHA action level (25 µg/m3). So pressure is mounting on MSHA to match OSHA.
It would be surprising if we do not see MSHA publish a proposed rule on RCS in the next four years.
OSHA program
A month before the U.S. locked down with COVID-19 restrictions, OSHA updated and extended a National Emphasis Program for RCS.
Last June, OSHA revised inspection procedures for RCS standards. These indicate that when resources are available again, OSHA will focus enforcement attention on RCS in the nation’s workplaces.
Unlike the vague MSHA regulation for RCS, the 2016 OSHA standard contains specific obligations for employers along with an updated permissible exposure level (PEL) and action level.
In the current OSHA regulation, the PEL is 50 µg/m3, with an action level of 25 µg/m3. For the construction industry, this was a major reduction in PEL. Previously, the PEL for an eight-hour shift in the construction industry was 250 µg/m3.
Also, to lower the permissible limits, OSHA’s standard outlines compliance obligations for testing and medical monitoring for employees exposed at or above the action level, implementing engineering source control for RCS exposure, the development and implementation of a written silica exposure control plan, and recordkeeping. While the construction industry is provided with a table outlining specific work practices, employers still need to ensure their workforces adhere to work practices.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.
Featured photo: iStock.com/gobalink