NSW

NSW WHS Regulations applying to Crystalline Silica

The following is a summary of the new Chapter 8A – Crystalline Silica of the NSW Work Health and safety Regulation 2017.

 

What is a Crystalline Silica Substance?

A crystalline silica substance (CSS) is defined as material that contains 1% or more crystalline silica.

(clause 529A(2))

 

What is Engineered Stone?

Engineered stone (ES) is a type of CSS and for the purposes of the ban is defined as a CSS that is an artificial product, is created by combining natural stone materials with other chemical constituents such as water, resins or pigments, and becomes hardened.

(Clause 529A(4)(a))

 

Excluded products

The definition of engineered stone does not include:

(i) concrete and cement products;

(ii) bricks, pavers and other similar blocks;

(iii) ceramic wall and floor tiles;

(iv) grout, mortar and render;

(v) plasterboard;

(vi) porcelain products;

(vii) sintered stone;

(viii) roof tiles.

(Clause 529A(4)(b))

 

(NB Porcelain products and sintered stone are defined as products that do not contain resin (clause 5))

 

What is Processing?

processing in relation to a CSS means:

(a) 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; or

(b) the use of roadheaders to excavate material that is a CSS; or

(c) the quarrying of a material that is a CSS; or

(d) mechanical screening involving a material that is a CSS; or

(e) tunnelling through a material that is a CSS; or

(f) a process that exposes, or is reasonably likely to expose, a person to respirable crystalline silica during the manufacture or handling of a CSS.

(Clause 529A(1))

 

 

What work does the engineered stone ban apply to?

The prohibition applies to the supply, manufacture, processing and installation of engineered stone benchtops, panels and slabs.

(Clause 529D)

Although not specifically spelt out in the regulations the prohibition does not apply to finished engineered stone products such as garden ornaments, sculptures and kitchen sinks.

Other exceptions to the ban include:

• The supply and installation of ES benchtops, panels or slabs if the work is for:

(a) for genuine research and analysis; or

(b) to sample and identify engineered stone

(clause 529E)

• The processing of ES benchtops, panels or slabs if the work:

(a) is carried out:

(i) for genuine research and analysis; or

(ii) to sample and identify engineered stone; or

(iii) to remove, repair or make minor modifications to installed engineered stone; or

(iv) to dispose of the engineered stone, whether it is installed or not; and

(b) is controlled.

(Clause 529F)

 

Processing of CSS must be controlled

A PCBU must not carry out, or direct or allow a worker to carry out, processing of a CSS unless the processing is controlled.

(clause 529C)

 

Transition Period applying to the Ban

In NSW, there is a transition period for engineered stone contracts that were entered into before 31 December 2023 and include installation prior to 31 December 2024. (note that the transition period does not apply in QLD, VIC and the ACT)

 

What does “controlled” mean?

Work involving the processing of a CSS is controlled if:

(a) control measures to eliminate or minimise risks arising from the processing are implemented so far as is reasonably practicable; and

(b) at least 1 of the following systems is used during processing:

(i)  the isolation of a person from dust exposure,

(ii)  a fully enclosed operator cabin fitted with a high-efficiency air filtration system,

(iii)  an effective wet dust suppression method,

(iv)  an effective on-tool extraction system,

(v)  an effective local exhaust ventilation system, and

 

(c)  a person still at risk of being exposed to respirable crystalline silica after 1 or more of the measures in paragraph (b) are used—

(i)  is provided with respiratory protective equipment, and

(ii)  wears the respiratory protective equipment while the work is carried out.

(clause 529B(1), see also Clause 351 – Management of risks to health or safety)

If the measures in (b) are not reasonably practicable, the processing of a CSS is controlled if the person is provided with respiratory protective equipment and wears it while the work is carried out.

(Clause 529B(2))

 

What is respiratory protective equipment?

Clause 529B(3) sets out the meaning of respirable protective equipment. It means personal protective equipment that:

(a) is designed to prevent a person wearing the equipment from inhaling airborne contaminants; and

(b) complies with:

(i) AS/NZS 1716:2012 (Respiratory protective devices); and

(ii) AS/NZS 1715:2009 (Selection, use and maintenance of respiratory protective equipment).

 

Identifying processing of CSS that is high risk

A person conducting a business or undertaking at a workplace must assess the processing of a CSS carried out by the business or undertaking at the workplace to determine if the processing is high risk.

In assessing whether the processing of a CSS is high risk, the person must have regard to the following—

(a)  the specific processing that will be undertaken,

(b)  the form or forms of crystalline silica present in the CSS,

(c)  the proportion of crystalline silica contained in the CSS, determined as a weight/weight (w/w) concentration,

(d)  the hazards associated with the work, including the likely frequency and duration that a person will be exposed to respirable crystalline silica,

(e)  whether the airborne concentration of respirable crystalline silica that is present at the workplace is reasonably likely to exceed half the workplace exposure standard,

(f)  any relevant air and health monitoring results previously undertaken at the workplace,

(g)  any previous incidents, illnesses or diseases associated with exposure to respirable crystalline silica at the workplace.

 

In making the assessment the person must not rely on the control measures implemented under 529B(1) and must not have regard to the use of personal protective equipment and administrative controls.

The risk assessment must be recorded in writing.

If the PCBU is unable to determine whether the processing of a CSS at a workplace is high risk, the processing is taken to be high risk until the person determines it is not high risk.

(Clause 529CA)

 

Silica risk control plan required for processing of CSS that is high risk

Before the commencement of processing of a CSS that is high risk, a PCBU must ensure that a silica risk control plan is prepared or has already been prepared by another person.

(2) A silica risk control plan must—

(a)  identify all the processing of a CSS carried out at the workplace that is high risk, and

(b)  include the risk assessment undertaken under clause 529CA for all processing of a CSS that is high risk, and

(c)  document what control measures will be used to control the risks associated with the processing that is high risk and how the measures will be implemented, monitored and reviewed, and

(d)  be set out and expressed in a way that is readily accessible and understandable to persons who use it.

(3) A silica risk control plan is not required to be prepared before the processing of a CSS that is high risk commences if—

(a)  the processing that is high risk is also high risk construction work, and

(b)  a safe work method statement is prepared, or has already been prepared by another person, before the processing commences, and

(c)  the safe work method statement satisfies the requirements in subclause (2) above.

(Clause 529CB)

 

Compliance with silica risk control plan

(1)  A person conducting a business or undertaking carrying out the processing of a CSS that is high risk must put in place arrangements for ensuring that the processing is carried out in accordance with the silica risk control plan, including by ensuring that the silica risk control plan is—

(a)  available to all workers, and

(b)  provided to all workers before they commence the processing.

 

(2)  If the processing of a CSS that is high risk is not carried out in accordance with the silica risk control plan that applies to the processing, the person must ensure that the processing is—

(a)  stopped immediately or as soon as it is safe to do so, and

(b)  resumed only in accordance with the silica risk control plan.

 

(3)  A person conducting a business or undertaking must ensure that a silica risk control plan is reviewed and as necessary revised if relevant control measures are revised.

(Clause 529CC)

 

Duty to train workers about risks of crystalline silica

(1)  A person conducting a business or undertaking must ensure that a worker receives crystalline silica training if the person reasonably believes that the worker may be—

(a)  involved in the processing of a CSS that is high risk, or

(b)  at risk of exposure to respirable crystalline silica because of the processing of a CSS that is high risk.

(2)  The person must ensure that a record is kept of the training undertaken by the worker—

(a)  while the worker is carrying out the processing of a CSS that is high risk, and

(b)  for 5 years after the day the worker ceases working for the person.

crystalline silica training means training that is accredited, or training approved by the regulator, in relation to the following—

(a)  the health risks associated with exposure to respirable crystalline silica,

(b)  the need for, and proper use of, any risk control measures required by this regulation.

(Clause 529CD)

 

Monitoring in relation to processing of CSS that is high risk

A person conducting a business or undertaking that is carrying out, or directing or allowing a worker to carry out, the processing of a CSS that is high risk must—

(a)  undertake air monitoring for respirable crystalline silica in accordance with clause 50, and

(b)  provide air monitoring results to the regulator, in a form approved by the regulator, if the airborne concentration of respirable crystalline silica has exceeded the workplace exposure standard as soon as reasonably practicable and no more than 14 days from the date that the air monitoring result was reported to the person conducting the business or undertaking, and

(c)  provide health monitoring for all workers carrying out the processing of a CSS that is high risk.

(Clause 529CE)

 

Additional notification requirements for processing of Engineered Stone

(Clause 529G – Notification of  particular processing of engineered stone)

This regulation requires PCBUs  to give the regulator written notice before the work is carried out if the work involves processing ES benchtops, panel or slabs:

(a) to remove, repair or make minor modifications to installed engineered stone; or

(b) to dispose of the engineered stone, whether it is installed or not.

 

The written notification should:

(a) State the work being carried out; and

(b) describe the type of work being carried out; and

(c) state the frequency and duration of the work; and

(d) State the other information in relation to the work required by the approved form, if any.

(Note that Reg 529G(s) gives a PCBU relief if they do not know or could not reasonably be expected to know before the work is caried out that it involves the process of ES benchtops, panel or slabs.)