How Will the Presence of Silica in Building Materials Affect My Commercial Real Estate Transaction?

Recently, I received a request from a client wanting a Phase I Environmental Site Assessment (ESA) for a building they were considering purchasing. The ESA they wanted included the normal list of hazardous contaminants that I’ve grown accustomed to seeing over the years: asbestos, lead paint, and radon. However, this list also included a hazardous material I hadn’t seen in a Phase I ESA list before: silica. Silica is contained in hundreds of building products that we’re exposed to in our everyday lives, like concrete, bricks, mortar, ceramic tiles, grout, paints, etc. Although the presence of silica in building products is unlikely to present a concern for current commercial real estate transactions, recent regulation changes and potential future changes could affect future transactions. Therefore, it is in the best interest of commercial real estate stakeholders to become familiar with silica, the hazards associated with it, and how recent regulation changes might affect their business in the future.

Silica is a naturally-occurring mineral contained in rocks, soils, and sands around the world. It is one of the most abundant minerals on the planet, comprising more than ninety percent of the earth’s crust. Because silica is so prevalent in the environment it has attained prolific, multi-purpose use in our everyday lives. It is found in many household cleaners, clay and ceramic dishes, talcum powders, cosmetics, and is a common filler used in paints, plastics, and rubbers. It is also contained in common building materials such as gravel, concrete, bricks, mortar, grouts, ceramic tiles, roof tiles, stuccos, etc. Disturbing these materials during construction or renovation activities may generate dusts laden with silica particles, thereby presenting a potential exposure concern to construction workers and/or employees in the surrounding areas.

Repeated overexposure to respirable silica dust can cause a host of different diseases; the most common is silicosis, a progressive, incurable, debilitating lung disease. Silicosis is most common in occupations where exposures to silica are extremely high such as sand blasting, mining, tunneling, foundries, and concrete/masonry work. Prolonged overexposure to respirable silica in the workplace has also been linked to lung cancer, kidney disease, and chronic obstructive pulmonary disease.

Currently, silica is only regulated in the United States by the Occupational Safety and Health Administration (OSHA). OSHA recently updated its silica standard by significantly reducing the level of airborne silica that workers can be exposed to. The changes will drastically affect how many employers and employees work with, and are exposed to, materials containing silica. Workplace practices such as water misting procedures or local exhaust ventilation to reduce dust during drilling, cutting, and grinding, etc. will become commonplace. If these control methods cannot reduce exposures, the use of respirators may become mandatory. These changes will affect the cost of construction and/or renovation projects, thus the largest burden associated with silica exposures will fall onto the contractors. This increased cost will inevitably be passed on to the building owner. Therefore, construction and renovation projects have the possibility of becoming become more expensive down the road. For the time being, due diligence inspections for silica in building materials do not appear to be on the horizon.