When It Comes to New Silica Rules, Contractors Should Implement Safety Controls Now, says attorney

By Martha Perkins posted 11-26-2018 05:27 PM


Jeanne Harrison, an associate with the Atlanta office of the construction law firm Smith Currie, has a message for the construction industry: Don’t underestimate the coming wave of respirable crystalline silica lawsuits.


Harrison, pictured, believes exposure to crystalline silica, the characteristic dust generated by drilling stone and brick, will be the source of innumerable lawsuits by victims of silicosis, a lung disease caused by breathing in silica. Harrison explains the ins and outs of silica regulations to construction industry owner-operators. She predicts that silica-related silicosis claims will be her generation’s version of the asbestos-spawned mesothelioma cases familiar from plaintiff-lawyer TV commercials today.

“I train people and teach them the regulations, and then I help them develop their written control plans,” Harrison said. “Once they have control plans and once the lawsuits start, I will defend them in the lawsuits.”

Regulations promulgated in March 2016 took effect in September 2017, after the federal courts upheld the new rules over challenges by industry and labor.

In 1971, Occupational Safety and Health Administration (OSHA) regulations set exposure of 100 micrograms per cubic meter in general industry and 250 per cubic meter micrograms at construction sites. Regulations that took effect in September 2017 set 50-microgram limits for all covered industries. Employers are required to take engineering steps to limit exposure, and if that doesn’t do the job, then respirators are mandated for workers.

But Harrison said the new regulations are vague and have confused contractors. So how can bond producers help their clients navigate the new regulatory environment?

Making contractor clients aware of the recent release of frequently asked questions published by OSHA is a good starting place. Also bond producers can suggest clients review what OSHA calls Table 1—Specified Exposure Control Methods When Working With Materials Containing Crystalline Silica.

Harrison said the goal is to limit dust in the air generated while working with materials like stone, brick, and concrete. Water is often used for this purpose. For example, construction workers can mitigate silica exposure when drilling into a wall by first penetrating a wet sponge.

A major issue with interpreting the regulations relates to when construction operations are required to deploy costly and cumbersome respiration equipment to protect workers. Harrison says that Table 1 advises following directions in the manuals that accompany construction equipment. Many equipment manuals instruct users to use a respirator when using the equipment, but Table 1 may not require this.

Table 1 also says follow Table 1 when Table 1 and the instruction manual are in conflict,” Harrison said.

Harrison said limiting legal and regulatory exposure depends on two actions: mitigating the dust kicked up in the normal course of construction work to keep employees safe, and then documenting those mitigation efforts to protect the company from lawsuits or government penalties. These steps will ease the pain for contractors when dealing with OSHA inspectors and from litigators bearing subpoenas.

Harrison said OSHA enforcement varies by state. Some offices inspect work sites on a random basis; some might send inspectors in response to an employee complaint. Others might actively search out construction sites with plentiful dust.

Harrison noted statistics indicating that from September 23, 2017, through April 23, 2018—the first six months the regulations were in force—117 different companies or sites were cited for violations of silica regulations. Of these, 80 percent are classified as serious OSHA violations. OSHA violations can result in fines of up to $12,934 per violation, Harrison said.

She said the biggest problem she has seen while advising construction contractors is that some want to take a calculated business risk. They chose to ignore the new regulations because it will be costly, taking the chance that OSHA will not inspect their work sites for compliance.

“There are two aspects of risk: OSHA fines and civil litigation from employees who experience negative health impacts, who sue because the proper procedures were not put in place to protect their health,” Harrison said. “That goes back to my initial No. 1 thing that I see with contractors—ignoring this. Just because OSHA doesn’t bust you doesn’t mean that an employee is prohibited from bringing civil litigation against you.”