Legal Issues Pertaining to Sweeping

Overview of OSHA's Upcoming Respirable Crystalline Silica Rule

by Abby Ferri and Ranger Kidwell-Ross
Posted November, 2016

OSHA's Respirable Crystalline Silica Rule, which began for construction-related work (with companies with 10 employees or more) on September June 23, 2017, is projected to have a significant impact on the power sweeping industry.

This article is adapted from the podcast interview with Abby Ferri, a national safety consultant and principal for The Ferri Group LLC. You will find the podcast linked at the bottom of the article. Ferri offers a snapshot of the legislation and how it may impact the sweeping and pavement maintenance industry. We begin the article with an overview of the OSHA requirements.

Overview of the Upcoming OSHA Requirements

The Occupational Safety and Health Administration (OSHA), which is part of the U.S. Department of Labor, has issued a final rule to curb lung cancer, silicosis, chronic obstructive pulmonary disease and kidney disease in America's workers by limiting their exposure to respirable crystalline silica. The rule is comprised of two standards, one for Construction and one for General Industry and Maritime.

OSHA estimates that the rule will save over 600 lives and prevent more than 900 new cases of silicosis each year, once its effects are fully realized. The Final Rule is projected to provide net benefits of about $7.7 billion, annually.

About 2.3 million workers are exposed to respirable crystalline silica in their workplaces, including 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone, and 300,000 workers in general industry operations such as brick manufacturing, foundries, and hydraulic fracturing, also known as fracking. Responsible employers have been protecting workers from harmful exposure to respirable crystalline silica for years, using widely-available equipment that controls dust with water or a vacuum system.

Key Provisions

• Reduces the permissible exposure limit (PEL) for respirable crystalline silica to 50 micrograms per cubic meter of air, averaged over an 8-hour shift.
• Requires employers to: use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.
• Provides medical exams to monitor highly exposed workers and gives them information about their lung health.
• Provides flexibility to help employers – especially small businesses – protect workers from silica exposure.

Abby Ferri: Thanks for having me. It's always nice to talk to people in a proactive manner about safety. I am a safety consultant with the bulk of my business conducted in heavy industrial types of settings – mostly in construction – and we have also done work with manufacturing and heavy, civil-type engineering projects. I have seen a lot of exposure by workers to respirable crystal and silica exposure. As far as how the new OSHA standard applies to power sweeping, there are definitely some pertinent aspects to talk about.

First, readers should know that this new OSHA regulation actually took effect on June 31st of 2016. However, the construction industry had one year after that date to comply, so construction is looking at a June 23, 2017 compliance date (note that this date was later extended to September 23, 2017). That's when the rule becomes fully enforceable regarding construction employers and their projects. The categories of general industry, hydraulic fracturing and maritime are getting two years for full implementation, i.e., enforcement will begin on June 23, 2018.

WorldSweeper: In addition to sweeping, many of the people that will read/listen to this (whether they are in public works or on the contractor side) will be involved with paving, seal coating, grinding of pavement and similar kinds of activities. First, please tell us, in your own words, what the rule is going to mean and the kinds of activities that might be found on a parking lot or roadway that could come into contact with this new rule by OSHA.

Abby Ferri: The biggest new thing with the upcoming standard is that the permissible exposure limit for respirable crystal and silica (RCS) will become "50 micrograms per cubic meter of air, over an 8-hour shift." That is to say, an "8-hour time-waited average." My biggest advice to anyone that has, or might suspect that they have, some of this respirable crystal and silica exposure at their work site is to actually monitor for it.

In order to try and understand what your exposure level is you could rely on information you may have from the past or historical information from similar contractors or employers that do the same type of work. There could be monitoring that's been done in the past at some of your current or past work sites. The cool thing about the OSHA standard is the Agency will allow you to take into account information that you've gathered in the past. By using objective data that may already be available, you won't have to necessarily run out to do new monitoring and get new samples.

50 micrograms per cubic meter is a pretty small figure. Another piece to the air monitoring puzzle is that a lot of the industrial hygienist equipment that's used to sample the air for respirable crystal and silica don't yet have the needed tolerances. The technology is trying to keep pace with the OSHA standard, so we can have data that actually gets down to the required level.

The other key part with this standard is that OSHA is really guiding you through how to properly work through the hierarchy of safety controls. You may have already heard about or discussed this topic in your current safety training. The hierarchy of safety in this area starts with engineering controls. When a hazard is identified, we first try to think of ways to engineer out that hazard.

With the hazard of respirable crystal and silica, we think of things like water – for example implementation of sweepers' water-based dust suppression systems. For some of the other pavement-based examples you cited, it may be implementing wet cutting methods where before cutting was done without water. Anytime there can be dust, especially visible dust, you want to try to control that dust before it can be breathed, whether that is done through water, ventilation or some other way. Water and ventilation are the two main engineering controls that could be used to limit worker exposure to that permissible exposure level of "50 micrograms per cubic meter."

Next we get into things like respirators, where respirators are spelled out in the new standard, which is what should be used when you are trying to implement any controls. I.e., if whoever is setting up your ventilation or water system controls may be exposed to respirable crystal and silica they would have to wear a respirator. Basically, in cases where the exposure level cannot be brought down any further through the use of engineering controls, then the engineering controls plus the respirator should be used to keep the worker exposure down lower.

By the way, there is a separate standard for construction and also a separate standard for general industry and one for maritime. So, depending on the type of work you do, you would need to follow the regulation that applies to you.

Another key point to note is that OSHA is requiring a written exposure control plan. There are some very specific items that have to go into that plan, which OSHA spells out in the new standard. Part of that is medical monitoring. If it is found that a particular type of worker must wear a respirator for 30 days or more throughout a calendar year, because of their exposure level, then they must be in a medical monitoring program for respirable crystal and silica. If that applies, there is a another part of the standard that provides information on how to implement the medical monitoring program properly.

Another key point to note is that OSHA is requiring a written exposure control plan. Part of that is medical monitoring.

The last piece is increased training. Regardless of the potentially affected industry you're in, training for understanding these respirable crystal and silica hazards is really important. Something that I've brought up in every training I've done on this topic so far is that OSHA has actually concluded, or "preliminarily concluded and opined" that respirable crystal and silica exposure plus cigarette smoking cause a synergistic – more serious – impact. In the preamble, and then also in the appendix to the Final Rule, there are actually suggestions and best practices for training employees that smoking cessation – quitting smoking – is highly recommended for workers who have significant exposure to respirable crystal and silica.

A lot of the science that was used to back up the new standard are data that has been around since late 90's, early 2000's, when OSHA was focusing on silica in their special emphasis program. So, this regulation is not being based on super-new information; rather, it's more how the long-known information is being packaged and regulated in the new regulation.

WorldSweeper: Regarding requesting that workers cease smoking, that's a tough call. Even after receiving warnings, I suspect there are any number of workers that might say "Okay, I'll quit" in order to save their job, then will keep on smoking. Can somebody be fired for not quitting smoking if they are in a situation where they have a lot of exposure to silica?

Abby Ferri: We don't know that yet. And, as was the case in the confined space standard as it pertains to the construction industry, there have also been some legal actions taken on behalf of industry against OSHA. At this point we do not know what the outcome will be of the different legal actions that have been filed in relation to this rule. However, I would imagine that, because OSHA so explicitly called out "smoking," there might be some questions like you ask where clarification will be needed.

For example, if an employer has employees wearing respirators for 30 days or more throughout a year, and thus has to participate in the medical surveillance program, that's where the smoking would definitely come up. This would probably occur in the setting of the employee having one-on-one coversations with whatever medical or licensed health care provider that's doing their initial and other timeline exams.

During these types of exams, medical personnel are required to document both a medical and a work history. This includes looking at the employee's prior work history as far as what other types of employers they have worked for. The intent is to find out where they might have been exposed to respirable crystal and silica. When the employer sends them to this first required medical exam the doctor is supposed to ask questions designed to discover if this their first chance of having exposure to the respirable crystal and silica in a workplace setting.

In workers' comp language we call it "apportionment:" That's where different employers might end up sharing costs in a claim if there is a claim situation for an employee for an illness related to silica exposure. As part of the medical history questioning, topics like history of tuberculosis, shortness of breath, caughing, wheezing, etc. will be raised. If workers have been found to need to wear a respirator to perform their job functions, there will also be a fit-test exam and/or pulmonary function tests where this kind of information is going to come out.

It will be up to the doctor to counsel the employee on a variety of topics, just one of which is smoking. That topic is always included during respirator exams and related medical questionnaires. Usually it's just a red flag that comes up, which is when the health care provider will say to the employee "Hey, you should quit smoking!" Then, they can check off the box that indicates the topic of smoking has been discussed.

To date, people have continued to have personal choice; in areas like smoking, everyone takes on certain risks or doesn't take on certain risks. What OSHA is putting in their new standards is a responsibility to get respiratory information to the workers so they understand and perhaps make better choices as far as how smoking or not smoking will interact with their exposure to the types of contaminants they're exposed to at work.

For example, the second related link on OSHA's landing page for silicosis is the American Lung Association's web page on silicosis. That said, I've dealt with lung cancer in my family that has occurred to people who have never smoked. To me, that shows there is definitely an occupational exposure that's out there even to people who do not smoke. The training that's required with this new standard I call "hazard communication on steroids" because, along with going through a full hazard communication training on silica you are also talking about how it can impact lungs, kidneys and other types of body effects that can happen with respiratory crystal and silica exposure.

WorldSweeper: Many of the sweeping professionals reading this are no doubt thinking: "How will this OSHA regulation affect me?" Let's put this into terms of the sweeping industry, taking street and construction sweeping as our example: These types of sweeping are both done sometimes during the day as well as at night. Construction sweeping is often done on jobsites where there are other crews; street sweeping not so much, except for pedestrians in an area or nearby vehicles with open windows.

Typically, sweepers use water for dust suppression, which is more or less effective depending on a number of factors. Where dust is created, the dust cloud is left in the air behind the sweeper as it moves. There is often some amount of cloud that is surrounding the sweeper, a little like the Pigpen character in the old Charlie Brown cartoons. How do we determine if the amount of dust generated by the sweeper is significant? Will the cabs on the standard-production chassis that sweepers are mounted on going to need to be positively pressurized? Today, like with any standard chassis, cabin air for a sweeper operator is drawn from the outside of the machine.

When sweeping on construction sites there are often construction workers around the machine, as well as the operator who is moving pretty slowly all the while sitting in a cloud of dust. On roadway milling jobs, too, sweeping contractors are often generating a significant amount of dust that will be breathed by other workers on the jobsite. Is it easy to see that the above scenarios would come under the rule or is that still not enough exposure to trigger taking action?

Abby Ferri: In the OSHA standard it brings up housekeeping. Under the housekeeping mention in the standard, they address sweeping specifically by saying "the employer shall not allow dry sweeping or dry brushing," where there could be a respiratory crystal and silica exposure, unless they are using wet sweeping or HEPA-filtered vacuuming to limit that exposure.

Editor's Note: HEPA is short for 'High-Efficiency Particle Arrestance,' which Wikipedia defines as the following: "HEPA filters, as defined by the United States Department of Energy (DOE) standard adopted by most American industries, remove at least 99.97% of airborne particles 0.3 micrometers (µm) in diameter."

There is another piece of the standard called "Table 1," which contains 18 specific instances that relate to construction. In Table 1, OSHA has called out 18 specific activities, naming the equipment and/or the task or activity affected. They specify engineering and work practice control methods; required respiratory protection; and, the minimum assigned protection factor for the respiratory equipment.

Much of it is about sawing, drilling and milling; different types of drilling; vehicle-mounted drilling; use of hand-held equipment, jackhammers and chippers, things like that. Although the information included in Table One does not specifically include sweeping, as I said previously it is specifically mentioned in the standard about housekeeping and not doing any dry sweeping or dry brushing.

WorldSweeper: The admonishment to not dry sweep is actually a large factor. For one, there are a number of sweeper models that brush material off to the side and do not currently even offer a dust suppression system. It sounds as though that practice, along with the equipment to do it, will have to be modified significantly.

Today, management might allow a sweeper operator to make a decision as to whether s/he might sweep without the water on for a while, or complete a sweeping operation even though the sweeper may have run out of dust suppression water. However, it would appear that next June that will actually become illegal under OSHA standards unless you have a HEPA-filtered sweeper designed to sweep dry.

Abby Ferri: That would appear to be correct. I would say that sweeping with the use of dust suppression water is a best practice; not just related to this standard, but from my work in the insurance industry to sweep without water will become a general liability issue. To do so could easily become a liability issue if your work is public-facing; i.e., if there are third party individuals present that aren't part of the work going on at the site like members of the general public, children, people just walking by.

Today we're in the age where, when people see something like a cloud of dust, they are grabbing their cell phones, taking a picture, seeing who the contractor or agency is, etc. In certain states – for example, in California where I have done work – you need to post a sign that says: "If you see dust coming from this site, call this number."

Dust suppression for the sake of the new respirable crystal and silica rule is one thing; however, any other standards are still at play where we've had to suppress the dust in the past. I also think that the housekeeping part of the standard should be clarified, because a lot of people in my industry, when we first read this standard were thinking: "a laborer and a broom."

We were thinking more of dry sweeping and dry brushing by laborers, not so much thinking of larger sweepers like those in the power sweeping industry. So, that's something that potentially, as members of your group, you could get clarification on from OSHA.

WorldSweeper: It appears there may be potential liability for sweeper owners just by operating the vehicle. For example, let's say that a sweeper goes by sweeping the city streets; there's a cloud of dust that a bystander on the sidewalk breaths, then starts coughing. Are the owner and/or operator of the sweeper potentially liable? I guess until there's a rule of law made in some legal decisions, we wouldn't know?

Abby Ferri: It depends upon if it is a worker or is it a member of the general public. If it's a member of the general public, anything goes.

I would think that someone could potentially say: "Hey, I've got an issue, because I work outside doing security and this sweeping is going on every day. I can't leave my post and I'm coughing and hacking all day." A sweeping company definitely might be named in some kind of claim in a situation like that. Now, is it something that could easily be thrown out, defended or settled? I don't know. However, as far as workers, we are just concerned with "Are we keeping the exposure below the new permissible exposure level?"

WorldSweeper: The typical situation with construction sweeping is that the site contractor calls the sweeping company and says "Can you come out and clean up our site?" Let's discuss that situation in light of liability under the new OSHA regulations next year.

The sweeping company can probably be portrayed as acting as a subcontractor to a prime (who also is oftentimes a subcontractor, as well). The sweeping company dispatches a sweeper and operator. The sweeper does its job but there is typically some dust generated. Is the contractor that hired the sweeping company responsible to make sure that the people on the ground have the correct respirators, have been notified about the risks to dust inhalation and so forth? Is the sweeping contractor potentially liable in that regard? Whose responsibility is that?

Is it the responsibility of the sweeping contractor to make sure that everybody on the ground has respirators when he sees he's kicking up X-amount of dust, or is it the responsibility of the organization that hired the sweeper? Must the sweeper-operator be trained, if he's got people on the ground without respirators, to go to the foreman of the jobsite and say, "Here's the situation, what should I do?"

Abby Ferri: Although the exposure issue is coming to light because of the OSHA standard, the standard might not have anything to do with how we'd solve this at the jobsite level. That would go back to any written contracts or purchase order. There would be some language in there that says something like: "Our employees are operating in an environment safe from dust. If sweeping of the material on your jobsite causes our sweeper to generate dust, it is your responsibility to schedule any personnel who might be in the immediate sweeping area of the street sweeping to be in a different area at the time of the sweeping." (Note: Nothing in this article should be construed as legal advice. For that, you should consult an attorney licensed to practice in your state(s) of operation.) There may also be other types of administrative controls that would limit dust exposure.

I would definitely advise to look at contracts and purchase orders and see what they do say, if anything, about your responsibility. As always, if there's something you don't like you should push back, even if you're pushing back to the general contractor, in order to work through it. You'd also want to discuss the situation with legal your company trusts. Make sure you've got the right hold-harmless clauses and removal of that type of liability language in your contracts. Work with your insurance company to make sure that you are covered. It's definitely not within the scope of a sweeping company to provide respirators, or to even look on the jobsite to identify who is in a respirator and who doesn't have one. That sort of thing needs to be taken care of in contract language before you even get to the site.

WorldSweeper: That makes perfect sense. Where would someone go to obtain monitors for dust exposure? Are there names you want to drop?

Abby Ferri: You can rent them from United Rentals and similar rental agencies; I've rented that type of equipment from them. However, air monitoring and air sampling for the silica are going to be such fine-tuned efforts that you are going to want to use an expert. To get that type of expert, kind-of on the cheap, I suggest arranging for an OSHA consultation.

There is a local OSHA office, either federal or state one, located near most of the people reading this information. I suggest you call them and tell them you'd like to do some respirable crystal and silica monitoring. You may well find them receptive to doing the testing for you, because OSHA just wants to keep gathering data. What led up to the new standard was that data-gathering, when silica exposure was part of their special-emphasis program back in the late 90's, early 2000's.

The collected data was enough for them to make a move on putting the standard in place. However, my understanding is that they still want to keep collecting data, especially as people are getting more educated and understanding of what types of controls we need on jobsites. Contacting OSHA is my first recommendation since it would be free.

You don't pay anything extra to have an OSHA consultation officer or OSHA industrial hygienist come out to your site and do the monitoring. You may not get your first pick of scheduling time but you will be able to have such monitoring done. Another option is to contact your insurance carrier or insurance broker. In my experience to date you will find their response will depend on how sophisticated their risk control services are, or how extensive their risk control department is. Some larger insurance carriers that we're probably all familiar with, including Travelers, Zurich and Liberty Mutual, have internal risk control departments that may assign industrial specialists to do monitoring at your jobsites. However, there probably would be some costs associated with that. Or, it may already be part of your service plan.

Another option could be a school. If you have a university nearby, talk to their safety and/or health departments – there are a lot of safety and health academic programs out there and the students need practice on how to do this stuff.

Your approach really just depends on the types or resources that you have available. Even though you can rent the equipment needed to do the sampling, the process for actually doing the sampling, drying out the sampling media, gathering weight information and then conducting the necessary industrial hygiene lab work is not something that I think I would even take on at this point.

The last resort, where you would pay for the whole process, is hiring an independent industrial hygiene firm to come in and do the sampling for you. They would conduct area monitoring at a jobsite area, as well as perform what they call "personnel sampling." For the latter, they actually place a pump on a person so their breathing zone exposure may be sampled. This combination allows them to get very, very precise data numbers for you. Once you have that data and implement appropriate safeguards, you'll know you meet the standard.

The standard has some future sampling timelines that you will need to follow depending on your current exposure levels. For example, let's suppose that OSHA did your sampling and you found that you're way over the permissible exposure level. OSHA standards dictate some frequencies for when you would have to do monitoring again, basically to graduate yourself out of having to monitor anymore if you can show that you have brought the exposure level down.

WorldSweeper: Thank you for the detailed information! Are there any other factors or questions I haven't asked that we should cover or, alternatively, how would you like to wrap up?

Abby Ferri: We covered a lot of ground so here's a recap: I definitely encourage anyone whose company might be affected to look up OSHA's landing page on crystal and silica. Then, take the time needed to read the standard. There is a host of very good information there in its about 20 pages of regulatory text. There are some fact sheets for the construction industry, general industry and maritime on OSHA's landing page, as well.

If you don't already know, find out if your company has had any air quality monitoring done, just to see if you have any previous data. You might also take a look at what your peers are doing, start talking with others in the industry about it in order to see what people are doing as far as developing best practices.

You will also want to make sure that you're training your employees to understand what's required, what to look for and how to make sure equipment is kept in good shape, so that it's providing the needed protection. This is especially true when it comes to HEPA filtration and water systems working properly.

Make sure you do a legal review of your contracts. It's definitely important that at least once a year you make sure your standard contracts contain language that reflects what you do and, at the same time, protects your company.

Utilize outside legal consultants or internal risk management professionals – your insurance carrier and/or insurance broker are other great resources – and it's pretty much the latters' job to advocate and help you out when it comes to contract language for your insurance policies.

Remember that there are three different prongs: The OSHA standard; your contract language; and, finally, the general liability aspect that might occur from the general public.

Abby Ferri, CSP, is a Principal in The Ferri Group LLC. The company's website is www.TheFerriGroup.co. You may also reach Abby by calling 612.670.6793 or sending email to abbyferri@gmail.com.

You may listen to the entire audio podcast with Ms. Ferri by clicking on this link. (Opens into a new browser window.)

Based upon our conversation with Abby Ferri, we contacted Washington State OSHA representative, Larry Gore, with the following questions. These are followed by his answers.

If you have comments or further information on the topic covered in this article, please let us know.

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