By Adam R. Young

Seyfarth Synopsis: Cal/OSHA’s Standards Board approved the Division’s revisions to the silica standard on an emergency basis, requiring a regulated area, PPE, and air monitoring for any workplace with a stone or tile cutting task. The regulations go into effect on December 29, 2023.

Recent stories from the LA Times have noted California occupational silicosis cases linked to small stone fabrication shops that cut natural stone (e.g. granite, marble) and “engineered” stone products (e.g. engineered quartz). Related studies and sworn testimony have linked each of the silicosis cases to workplaces that fail to use exclusively industry-standard “wet” methods to cut, grind, and polish stone. The use of outdated “dry” methods for cutting stone at small fabrication shops (like those pictured here) has been the primary source of the health hazard.

In response to a petition for an emergency temporary standard, the California Occupational Safety and Health Standards Board (OSHSB) approved for the Division to propose amendments on the existing General Industry Silica Standard on an emergency basis. Throughout the regulatory process, industry worked closely with Cal/OSHA to try to target new regulations to effectively address the airborne crystalline silica hazard.

On Thursday December 14, 2023, the Board voted unanimously to adopt the Division’s draft emergency regulations. Many industry representatives and Seyfarth Partner Adam R. Young spoke in favor of Cal/OSHA’s proposed ban on dry cutting and proposed requirement for effective wet methods for fabricating stone in the draft revised regulations. But industry objected to the draft regulations’ task-based regulatory scheme – requiring regulated areas and PPE (e.g. forced air or N100 respirators) regardless of the abatement of the hazard through effective wet methods. Industry instead advocated for a health-based approach consistent with the regulation of carcinogens through permissible exposure limits (PELs).

The onerous new requirements apply to General Industry employer with so-called High-Exposure Trigger Tasks, defined to include machining, crushing, cutting, drilling, abrading, abrasive blasting, grinding, chiseling, carving, gouging, polishing, buffing, fracturing, intentional breaking, or intentional chipping of artificial stone with .1% or more silica or natural stone with 10% or more silica. Artificial stone is broadly defined to include porcelain tile. The regulations ban all dry processes, requiring wet-cutting and wet housekeeping. Worksites that engage in those tasks are required to conduct air monitoring and perform the tasks in a regulated area (regardless of the airborne hazard in those areas). The regulated area must be cordoned off with specific signage and all workers who enter the regulated area for any reason must wear intense respirators (e.g. forced air respirators fed from outside the regulated area or N100 respirators). Employees must prohibit walking or moving equipment through dry dust and ensure frequent cleanup.  Employees much enhance their written exposure control plant with air monitoring, procedures, and training.

Beginning December 29, 2023, non-compliance with some of the emergency regulations will be designated an “imminent hazard” that can trigger an immediate Cal/OSHA inspection, Cal/OSHA citations, and even a shutdown order (called an Order Prohibiting Use).

The draft regulations have been approved by the Board and likely will be submitted today to the Office of Administrative Law (OAL). OAL will have ten calendar days to review and potentially approve, and file the new regulations with the Secretary of State.  The regulations will be law for 180 days. This will allow time for a permanent rule-making or an extension of emergency regulations.

Employers who cut stone or tile in any context are struggling to ensure that they comply with these new onerous requirements in the next ten days.  As we previously blogged federal OSHA has increased enforcement on this issue as well.

For more information on this or any related topic, please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.