Australia imposes strict safety duties on crystalline silica substance processing

The changes to the model Work Health and Safety Regulations (WHS regulations) which recently came into effect, relates to materials containing at least 1% crystalline silica. This includes asphalt, sandstone, cement products, concrete, bricks, blocks, pavers, natural rocks, sands and clays or engineered stone – to name a few. When these materials are processed, a fine dust is released into the air which, if inhaled, can result in serious health issues such as silicosis.

The new safeguards complement the current ban on the manufacture, supply, processing, and installation of engineered stone benchtops, panels and slabs containing at least 1% crystalline silica, which came into effect on 1 July. The legislative changes have been adopted at the federal level as well as by New South Wales, Queensland, South Australia, Tasmania, the Northern Territory and Western Australia.

Following these changes taking effect, the federal government has also recently announced importation restrictions on engineered stone. As a result, the importation of engineered stone benchtops, slabs and panels with silica content of more than 1% will be banned from 1 January. The ban aims to reduce the availability of engineered stone products to help prevent silicosis.

The regulations’ definition of ‘processing’

Under the new regulations, ‘processing’ in relation to CSS covers:

• the use of power tools or mechanical plant to carry out an activity involving the crushing, cutting, grinding, trimming, sanding, abrasive polishing or drilling of a CSS;
• the use of roadheaders to excavate material that is a CSS;
• the quarrying of a material that is a CSS;
• mechanical screening involving a material that is a CSS;
• tunnelling through a material that is a CSS; and
• any process that exposes, or is reasonably likely to expose, a person to respirable crystalline silica (RCS) during the manufacture or handling of a CSS.

Some examples of work that typically involve the processing of CSS include excavation, earth moving and drilling plant operations; road construction and tunnelling; and brick, concrete or stone cutting.

If an organisation’s work involves a naturally occurring material, the best way to determine how much and what forms of crystalline silica are present is to undertake scientific testing of the material using an accredited laboratory.

Practical implications for organisations

As a result of the new legislation having taken effect, when an organisation undertakes work that involves processing a CSS, they have additional specific duties to consider. These duties relate to the management of the risks associated with the generation of RCS from processing a CSS.

New specific duties

Firstly, processing must be controlled, using a hierarchy of controls. The use of respiratory protective equipment is insufficient unless higher order controls are not available. Organisations must eliminate or minimise risks so far as is reasonably practicable and use at least one of the following isolation and engineering controls:

• the isolation of workers from dust exposure;
• a fully enclosed operator cabin fitted with a high-efficiency air filtration system;
• an effective wet dust suppression method;
• an effective on-tool extraction system;
• an effective local exhaust ventilation system.

If the worker is still at risk of being exposed to RCS after one or more of these measures are used, they must be provided with respiratory protective equipment and wear it while work is carried out.

Following this, organisations must conduct an assessment to determine whether processing the CSS is high risk. If the organisation is unsure, they must assume it is high risk.

If found to be not high risk, organisations must implement procedures to ensure that the processing is controlled in accordance with the WHS Regulations.

If found to be high risk, in addition to controlling the risk, organisations must:

• develop a silica risk control plan, ensure that processing is carried out in accordance with the control plan and provide the control plan to all workers prior to work commencing;
• provide crystalline silica training to any worker the organisation reasonably believes may be involved in processing that is high risk or be at risk of exposure to RCS and keep records of that training;
• provide air monitoring to RCS in accordance with the relevant state or territory’s WHS regulations and provide air monitoring results to the regulator as soon as is reasonably practicable if it exceeds workplace exposure standard; and
• provide health monitoring for all workers carrying out the processing of a CSS that is high risk in accordance with the relevant state or territory’s WHS regulations.

Co-written by Laura Slocombe of Pinsent Masons.