Respirable Crystalline Silica Exposure at Work

 

Yes, we are talking about it…again

 

Ever since OSHA officially announced its rule change to the silica standard in March 2016, most employers have been doing one of four things: Testing workers and workplaces for silica; challenging the rule and its stringent requirements; looking for ways around the rule; or, simply avoiding the standard altogether and hoping that the OSHA inspector never shows up. The last action, or lack thereof, of that sequence is sort of like tax evasion, which always ends well, right?

After a 90-day delay on enforcement, a 30-day good faith grace period, and various industry challenges (including the most recent which ended up in the U.S. Court of Appeals for the District of Columbia last December), we’ve found one thing to be very, very true: the new silica standard is here to stay.

 

(Related Article: Silica Rule For Workers Updated By OSHA After 40 Years)

 

So far, the construction industry, which is far and away the most affected by the rule change, is in full-on enforcement mode. That means that, if your company doesn’t comply and OSHA shows up, you’ll be cited, possibly shut down, and scrambling to find a way to fix the issue within a small time frame. Considering that most medical surveillance clinics are being booked months in advance because of the demand for silica testing, you’ll be in a bad place. And, that demand is only going to be amplified over the next few months because General Industry, Maritime, and Hydraulic Fracturing all need to comply by September 2018.

Still not concerned? Well, that’s all well and good, but don’t say we didn’t warn you. In fact, we’ve got three very solid reasons why it’s best for business to stay ahead of OSHA, especially when it comes to the new silica rule.

1) You’ll be Fined, and they will Find you

 

In January, OSHA increased maximum penalties per violation to $12,934 for other-than-serious and failure to abate, and to a staggering $129,336 per willful or repeated infraction. Additionally, the administration removed any statue of limitations on an employer’s history. What does all of this mean for you? Let’s say that you have 30 employees and OSHA levies the maximum penalty for each violation – 30 in total. Your company will be facing fines totaling over $388,000 for other-than-serious and, if it’s a failure to abate, you’re looking at a per-day penalty. So, if you’re ten days past on abatement, then that total will be closer to $4 million…yikes. Now, let’s say that the OSHA inspector believes you knowingly failed to comply, or that you were tagged with a silica violation 15 years ago. If we’re using the same 30-employee example, then you’re likely to be looking at $3,888,000 in fines. And, on top of that, you’ll have to spend the money for testing anyway. It’s probably safe to assume that shelling out that kind of money isn’t exactly part of your company’s game plan.

Alright, let’s circle back to this whole “roll the dice with OSHA” idea. At this point, you already know that willful violations are more than detrimental to your bottom line. However, some employers believe that they aren’t on OSHA’s radar and that there are bigger fish to fry, so to speak. Being that it took the administration over 40 years to propose a new silica rule, and over 18 months to enforce it for the construction industry, it’s likely that OSHA wants to make examples out of companies that still refuse to comply. If one of your employees or, in the case of a Milwaukee refurbishing plant, a safety consultant with a tape recorder decides to blow the whistle on you and you’re out of compliance, then your company will become bulletin board material across the country as an example of what not to do. My advice on this one is to err on the side of caution, because OSHA inspectors are out to find you.

 

2) You’ll Become Famous For All of The Wrong Reasons

 

Let’s face it, the silica standard is a hot topic, so a lot of people are interested in learning everything they can about it. In fact, in the eyes of many, respirable crystalline silica is being considered as the modern day asbestos. When OSHA updated the asbestos rule in the late 1970s, employers ran into very similar problems and handled them in one of the four ways mentioned at the beginning of this article. It’s been over four decades, and we are still seeing a steady stream of multi-million dollar lawsuits against companies that exposed their employees to asbestos, which resulted in Mesothelioma. Just a few weeks back, six South African companies set aside the equivalent of $420 million each after coal miners contracted silicosis and filed class action lawsuits. With over 2.3 million workers exposed to respirable crystalline silica in their workplaces, it’s entirely feasible that silicosis lawsuits will dominate the U.S. court system over the next several decades.

 

(Related Article: Is Silica the New Asbestos?)

 

As if lawsuits aren’t bad enough, last October the Center for Progressive Reform (CPR) launched the Crimes Against Workers Database, which contains detailed information on criminal cases against employers. Furthermore, in November 2017, OSHA began to ramp up its production of press releases by publishing 12 in one month – only 20 were published in the previous nine months. A major piece to each press release is the naming of employers responsible for serious violations. And, while the CPR and OSHA are really pushing the issue of unearthing violators, Jordan Barab, OSHA’s former deputy assistant of labor, is driving the point home by outing these companies via his website.

If you want your company to become famous for all of the wrong reasons, and my guess is that you don’t, then avoid complying with OSHA’s silica rule at all costs.

 

3) Your Workers Will Get Sick, And That’s On You

 

 

I saved the most important reason to comply for last, and for good reason. There is a human element to all OSHA standards that is often lost on employers because all too many are consumed by citations, shutdowns, and lawsuits … or, in one simple term: Money. Now, I am not saying that you’re in that class, and I hope that you’re not. However, in my experience with silica testing, I’ve found that the number one reason employers are refusing to test is the overall cost. Quite honestly, when you consider everything else that we’ve discussed, that’s small potatoes. You can’t put a price on peace of mind. Not for you, and not for your team.

 

(Related Article: WV Man Diagnosed with Mesothelioma After Asbestos Exposure)

 

If and when someone contracts silicosis, lung cancer, or COPD, the responsibility lands on the employer if that employee was not properly trained and tested, and if silica exposure was not controlled. It might not come back to you next week, next year, or even 10 years from now but, eventually, it will. Losing money is one thing; losing lives is another.

 

Silica Exposure Testing

 

We’ve covered the “why,” so now it’s time to cover the “how.” First and foremost, you need to control silica exposure. The permissible amount of silica exposure allowed my OSHA is 840 micrograms averaged over an 8-hour workday. Imagine cutting into a standard paver, and watching the release of dust. That single cut releases 9 million micrograms. No, you didn’t read that wrong … 9 million. The stringent nature of OSHA’s new silica rule is probably starting to make a bit more sense now, right? So, how is it even possible to control that small of an amount? Well, OSHA details that part very well with Table 1 and a few other options for construction, and with example dust control methods for general industry and maritime.

 

No matter the control method you choose, there are three things that are absolutely required to go along with it. You need to: Establish and implement a written exposure control plan and have it spearheaded by a competent person; train your workers on the health effects of silica exposure, tasks that may cause it, and ways to limit it; then, you need to offer medical exams. Those medical exams, which are listed HERE, must be accompanied by records of each employee’s level of silica exposure, as well as his/her medical exam results. And, if your employees are wearing respirators, they’ll also need to complete a respirator medical clearance questionnaire and get fit-tested as part of OSHA’s respiratory standard.

 

(Related Article: Are You Forgetting This Key Part to the Respiratory Standard?)

 

Are You in Compliance?

 

You’re going to continue to hear more and more about respirable crystalline silica exposure…that’s not going to change. But, you can and should do something about it before it’s too late. You’ve got the information you need, and the know-how to make adjustments to your operation, if necessary. Now, it’s time to get started.

Are You in Compliance?