Cal/OSHA Advisory Committee Takes Up Proposed Emergency Regulation on Respirable Crystalline Silica Exposure

On August 9, 2023, the California Division of Occupational Safety and Health (Cal/OSHA) convened an advisory committee to provide input on proposed emergency changes to Title 8, section 5204, Occupational Exposures to Respirable Crystalline Silica, of the California Code of Regulations. The Cal/OSHA Standards Board previously received public comments regarding the proposal on July 20, 2023.

Quick Hits

• Cal/OSHA convened an advisory committee on proposed emergency changes to the regulations on occupational exposures to respirable crystalline silica.
• The advisory committee is composed of forty-six members with representatives from various federal, state, and local government agencies, higher education institutions, labor unions, and private employers.
• The proposed changes aim to prevent or mitigate the risk of silicosis, an occupational hazard in the engineered stone fabricating industry.
• The advisory committee hopes to finalize its draft of the proposed provisions by the end of August 2023.

Background and Public Comments at Standards Board Hearing

California currently regulates occupational exposure to respirable crystalline silica through Title 8, section 5204, of the California Code of Regulations. The existing regulation includes provisions regarding the permissible exposure limit, exposure assessment methods, regulated areas, compliance methods, respiratory protection measures, housekeeping, medical surveillance means, communication of silica hazards to employees, recordkeeping of air monitoring data, objective data, and medical surveillance data. The regulation has been in effect since October 2016.

On February 15, 2023, the Western Occupational and Environmental Medical Association (WOEMA) filed Petition File No. 597 with the Standards Board. In it, WOEMA urged the Standards Board to address the hazards of airborne silica dust in shops that fabricate engineered stone—more commonly known as “artificial stone”—through an emergency temporary standard (ETS) to Title 8, section 5204. The petition stated that “engineered slabs appear to pose a significantly increased risk of silicosis,” often among workers between thirty to forty years old, because the slabs have a higher percentage of silica (up to 95 percent) compared to other stones, such as granite, quartz, or marble. The petition proposed eight changes to section 5204, such as expanding the regulation’s applicability to workplaces using engineered stone with a high silica content (greater than 50 percent), prohibiting fabrication without the use of water to suppress dust, requiring airline respirators or power air-purifying respirators for all work involving fabrication, increasing the penalty structure to classify all violations as serious, and mandating that physicians and other licensed healthcare professionals inform Cal/OSHA of any moderate or severe silicosis diagnoses.

The Standards Board held a meeting on July 20, 2023, to receive public comments on the petition. At the meeting, individuals and representatives from both employee- and employer-side organizations expressed their support for, and concerns about, the proposed changes. After receiving public comments, the Standards Board granted the petition but required Cal/OSHA to propose necessary amendments to the current regulation.

Proposed Changes to the Respirable Crystalline Silica Regulation

Cal/OSHA unveiled its proposed amendments at the August 9, 2023, advisory committee meeting. Some of the major proposals include:

• Expanding the scope and application of section 5204 to cover “[h]igh-exposure trigger tasks … regardless of employee exposures, exposure assessments, or objective data”
• Definitions for “artificial stone,” “confirmed silicosis,” “high-exposure trigger task,” “negative pressure enclosure (NPE),” “supervising physician,” “suspected silicosis,” and “wet methods”
• A requirement of continued monitoring, to be “repeated at least every 12 months or more frequently,” of high-exposure trigger tasks
• A requirement that “[a]ll high-exposure trigger tasks … be conducted within a regulated area regardless of employee exposures, exposure assessments, or other objective data”
• Mandatory compliance methods, including engineering controls and work practices, such as effective wet methods; prompt and proper cleanup of “[w]astes, dusts, residues, debris, or other materials that are generated from high-exposure trigger tasks … and [placement] into leak-tight containers, bags, or equivalent”; enclosure or isolation in negative pressure enclosures of “[a]ll processes producing respirable crystalline silica”; and proper ventilation
• Prohibiting certain practices for high-exposure trigger tasks, such as using “abrasive disc saws, grinders, sanders, polishers, or other equipment that are not equipped with local exhaust ventilation and a HEPA filtered dust collection system”; using compressed air on respirable crystalline silica and on “waste, dust, debris, residue, and other materials that may contain respirable crystalline silica”; dry sweeping, shoveling, disturbing, or other dry clean-up methods; and using “employee rotation as a means of reducing employee exposure to respirable crystalline silica”
• Mandating that written exposure control plans in workplaces where high-exposure trigger tasks occur contain “[a] record of exposure measurements to demonstrate that wet methods and other engineering controls continuously maintain exposure levels below the action level”; “[a] weekly record of measurements or tests to confirm that regulated areas are under negative pressure”; “[w]ritten procedures for the proper donning and doffing of personal protective equipment”; “[d]ocumentation of proper registration with [Cal/OSHA]”; and “[d]ocumentation of an agreement with the Supervising Physician who will perform or oversee medical surveillance exams”
• Requiring employers to provide, for respiratory protection, either a “full face, tight-fitting powered air-purifying respirator (PAPR) equipped with a HEPA filter and organic vapor cartridge” or a “full face, tight-fitting supplied-air respirator in pressure-demand or other positive pressure mode” for employees performing high-exposure trigger tasks or working within the regulated area
• Requiring employers to ensure that all required medical examinations and procedures are “performed under the direction of the Supervising Physician” at workplaces where high-exposure trigger tasks occur
• Requiring employers to “ensure that employees who perform high-exposure trigger tasks or who work within the regulated areas receive a medical examination every 12 months or more frequently”
• Requiring that a licensed health care professional’s or supervising physician’s written medical opinion for the employer address additional subject areas for opinion and recommendation
• Requiring employers to provide further information and training for employees regarding respirable crystalline silica health hazards, as well as specific tasks in the workplace—including high-exposure trigger tasks—that “could result in exposure to respirable crystalline silica”

At the recent advisory committee meeting, Cal/OSHA expressed its intention to finalize the proposed amendments by the end of August 2023.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments concerning proposed amendments to California’s existing occupational exposures to respirable crystalline silica regulation and provide updates on the firm’s California and Workplace Safety and Health blogs as additional information becomes available.

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