Episode 4: Hierarchy of Controls
James Nevin: Hello everyone. Welcome back to another episode of From Dust to Verdict. I'm your host, James Nevin, a partner at the law firm of Brayton Purcell LLP. This podcast is dedicated to the epidemic of accelerated silicosis in artificial stone countertop fabrication workers. In each episode, we explore important topics and issues about this occupational health epidemic as well as the associated lawsuits.
Today in episode four, we will discuss the hierarchy of controls, how those work, or in this case, do not work to prevent silicosis in artificial stone fabrication workers. In our last episode, we discussed the California Department of Public Health. They have an online engineered stone silicosis surveillance dashboard.
At that point in time in our last episode, they had documented 336 cases of artificial stone silicosis among these workers. Just this week, they've updated their dashboard to 358 workers. Just between our two episodes, there was a significant increase in artificial stone workers. In this episode, we're going to discuss exactly why this is happening, and again in our last episode, we discussed the extensive body of published peer-reviewed literature showing a high incidence of artificial stone silicosis among fabrication workers, including as high as 50%.
And we discussed that our own internal data show that these numbers may be as high as 80%, meaning 50 to 80% of all artificial stone workers is going to develop silicosis, or they already have. Whether a fabrication shop is an incredibly unsophisticated, dusty, dry shop, or whether it's a more sophisticated wet shop.
The issue is: is the worker breathing silica from artificial stone? And so in order to understand how a worker can be kept safe from silicosis, or really any other type of toxin or carcinogen in the workplace, we need to understand the hierarchy of controls.
The hierarchy controls is developed by the various health authorities, and this is the hierarchy of controls from NIOSH, which is the scientific wing of OSHA, the Occupational Safety and Health Administration.
At the top of the inverse pyramid, the number one most efficient, best method to prevent workers from disease, and in this case, to protect artificial stone workers from silicosis and similar diseases is elimination. What do we mean by that? Elimination of the hazardous substance. So in this case, with artificial stone, eliminate the high content, high silica content, nano size, silica, and other toxins and carcinogens that accompany artificial stone.
So, for example, the best way to eliminate that would be, for example, to use natural stone that would eliminate the nano-sized high content silica coated with other carcinogens and toxins that the workers are breathing in when fabricating stone. In order to do that, the manufacturers and suppliers of the artificial stone slabs have to stop including this product and what they're selling.
The second best method is similar to the first method, and that is simply substitution. So rather than manufacture and distribute artificial stone with high content silica, that's coated with other toxins and carcinogens, include something else in the product. So for example, several manufacturers and distributors have developed so-called low silica, artificial stone.
And somehow developed so-called no silica artificial stone. And if those products turn out to be safer, after they're studied by science, and so it's too soon to know if they truly will be safer. But if they turn out to be safer, then those would be effective methods of elimination and substitution to protect fabrication workers in the workplace.
The third level of protection in the hierarchy of controls is called engineering controls, and that's followed by administrative controls. And those two methods go hand in hand. And these are methods that can be done in the workplace by the fabrication shop employer or hire. The best example of engineering and administrative controls would simply be no dry cutting.
If you can't eliminate or substitute the hazard -- so if you, if you are still using high content, silica, artificial stone -- the most important engineering and administrative control method is to not do dry cutting. Dry cutting releases the most amount of dust that is going to cause workers to get disease on the fastest pace.
The next important method is to use wet equipment: wet sawing, wet polishing, and other wet equipment. The next method is to use local exhaust ventilation. So this is simply whatever method is being used to actually do the activity -- so in this case, sawing and in this case, wet sawing -- to also add local exhaust ventilation to try to remove any of the dust that is released.
Because the problem with using wet equipment, according to numerous published, peer-reviewed studies from NIOSH and others, is that even when using wet equipment, the level of artificial stone silica released is still far too high, still far above the permissible exposure levels. The permissible exposure levels are not intended to be safe levels, but rather are intended to be regulatory levels, where if the workplace is above that level, well then OSHA can issue a citation.
But OSHA and NIOSH still expect to find high levels of disease such as silicosis and cancer in workers who are even operating at levels that are below the PEL. So again, first method was no dry cutting. Second method was use wet equipment. Third is to use exhaust ventilation. So if we go back to the hierarchy of controls, the final step and the least effective method is PPE, personal protective equipment.
In this case, when we're talking about PPE, we mean various types of respiratory devices. So the first most important thing when it comes to PPE is to wear it. So even if the worker is outside, to wear no mask at all is the absolute least safe method. Even if the worker is inside and even if the worker is using we equipment, a mask is still very much necessary.
So a worker using wet equipment inside with no mask at all is still very much unsafe. Now when it comes to what type of mask to wear, this is important as well. So a typical N95 mask, like we all became familiar with during COVID, is not effective at preventing silicosis. The silica particles that are released into the air are going to go right through an N95 mask. It's not going to be protective at all.
The next level of mask protection would be a cartridge respirator. Now a cartridge respirator is still problematic as well, and for several different reasons. First off the worker has to undergo a health screening, which includes a pulmonary function test, another screening to make sure that they are essentially healthy enough to wear a mask.
The next step is it has to be fit tested, so the mask has to fit their face. Some people have larger faces, some people have smaller faces. If you have a mask that doesn't fit your face, it's not going to be effective.
The next issue is the worker cannot have any sort of beard or even stubble because the hair on the face would prevent a tight seal and thus the silica particles can get right through the cartridge respirator. So in my case, for example, a cartridge, respirator would not help me at all because of my beard.
Next, the filter has to be a P100 filter, which is designed to be used with artificial stone. So for example, you could have a mask, it could be fit tested, you could be clean shaven, but if you have a wrong filter, it's not going to be effective at preventing the silica particles from artificial stone from getting in.
Now, this mask is actually pretty effective for natural stone, but again, remember the natural stone has silica particles that are one, much less in content, there's much less of them, and two, they're much larger in size. So a typical mask with a typical filter is going to stop most of the silica from natural stone.
Unfortunately, it's not going to completely stop the silica particles from artificial stone. Finally, assuming you have the mask and it's fit tested and you pass the health test to wear it, and you don't have a beard and you have the right filter, you still have to change the filter often enough.
These filters, particularly in dustier environments become clogged very fast, and then the filter is no longer effective, the mask is no longer effective. So the next level of respiratory protection or PPE is called a powered air purifying respirator. This is essentially a full helmet that goes completely, you know, over the entire head that is attached to a filtered mechanism so that the air that is breathing in is completely filtered.
And again, that filter has to be the correct filter designed for artificial stone, and has to be frequently changed because it gets overloaded. If it's the wrong type of filter or it's not frequently changed, then even the powered air purifying respirator is ineffective.
The problem with every type of PPE, even the powered air purifying respirator, is when it comes to artificial stone, it's still not completely effective at protecting the worker from the silicosis particles. Such that the best method would be a complete NASA style moon suit where the worker is completely protected from head to toe from the artificial stone particles and they're connected to an actual oxygen line so that the air that they're breathing is perfect.
And other than the worker completely protected, everything else is robotic equipment. So effectively the only way to completely protect workers from artificial stone when fabricating it has been demonstrated by numerous published peer reviewed studies from NIOSH, from OSHA, from Safe Work Australia, from Georgia Tech, from many others, is essentially to not have humans involved with fabrication of artificial stone.
And that's why if we go back to the hierarchy of controls and we start at the bottom of the controls this time, we see that PPE or personal protective equipment, respiratory protection, whether it's a N95 or cartridge respirator or powered earth powered air purifying respirator, are the least effective mechanisms.
If we go continue to go up the pyramid, administrative controls and engineering controls, such as using wet equipment, using exhaust ventilation and using other engineering methods that can be quite expensive, are still not completely effective. But the most effective method to protect fabrication workers from silicosis and other diseases would be substitution and elimination of the high content, nano size, artificial stone silica, and the other toxins and carcinogens that are in that product.
And that is something that only the manufacturers and suppliers of the artificial stone can do. The manufacturer and supplier artificial stone slab defendants claim it's the process, not their product. But the reality is that stone fabrication to make countertops is not new. It's been around for many, many, many decades.
What's new is the artificial stone product that was introduced into the existing fabrication market or industry or process. And the artificial stone, as shown by numerous published peer-reviewed studies, is so significantly different than natural stone in that it has high content silica, nano size silica, and a whole bunch of other toxins and carcinogens mixed in with that nano-sized high content silica.
That the traditional hierarchy of controls starting at the bottom with PPE or personal protection doesn't work, and the next level of controls with administrative and engineering controls, such as wet equipment and exhaust ventilation don't work. That leaves us pointing the finger back at the artificial stone manufacturers and suppliers saying “You need to substitute or eliminate the high content, nano size, silica and other carcinogens and toxins from your product. And you know how to do this because you already make and sell low silica, artificial stone, and no silica, artificial stone and natural stone.”
And so when we look at the traditional NIOSH, OSHA hierarchy controls, it's you, the manufacturers and suppliers of artificial stone that can keep workers safe and you're choosing not to.
Thank you for tuning into this episode of From Dust to Verdict. I'm your host, James Nevin from the law firm of Brayton Purcell LLP. Remember to like and subscribe, and for anyone that speaks Spanish, I encourage you to check out the Spanish language version of this podcast, hosted by my good friend, Charlie Velasco Orso.
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Findings that are a result of diligent research, fact checking and analysis of publicly available material, including news reports, public records, interviews. Personal research experiences published peer reviewed medical and scientific literature, published governmental health authority regulations and findings, and other accessible sources.
