One More Step Toward Aggressive Enforcement of OSHA’s Construction Silica Standard.

OSHA Publishes New Construction Industry Silica Frequently Asked Questions (FAQs).

With no fanfare whatsoever, OSHA supposedly began enforcing the new Silica Standard on July 23. Compliance with most of the Standard’s requirements actually began on June 23, 2018. However, in a memo issued by OSHA’s Acting Deputy Assistant Secretary, Galen Blanton, OSHA’s regional administrators were informed that for the first 30 days, OSHA was to assist employers that were making good-faith efforts to meet the new standard’s requirements. In other words, in those circumstances, citations were unlikely to be issued for noncompliance. And indeed, so far, we have seen minimal OSHA focus on silica.

Realistically, one assumes that OSHA is awaiting the final Silica “Directive” to replace the October 19, 2017 Interim Enforcement Guidance for the Respirable Crystalline Silica in Construction Standard before aggressively enforcing the new Standard.

We moved a bit closer to aggressive enforcement with OSHA’s publication of the new Silica Frequently Asked Questions (FAQ). Construction employers should immediately review the whopping 53 Frequently Asked Questions (FAQs) which provide guidance to employers and employees regarding OSHA’s respirable crystalline silica standard for construction.

Through the Construction Industry Safety Coalition (CISC), the Associated General Contractors of America (AGC) and other groups were heavily involved in the formulation of these FAQs.  The development of the FAQs stemmed from litigation filed against OSHA by numerous construction industry trade associations challenging the legality of OSHA’s rule.

OSHA has also agreed to issue a Request for Information (RFI) on Table 1 to revise the Table to improve its utility.  AGC will continue to look for ways to work with OSHA to improve the workability of this significant rule.

The FAQs are extensive and organized by topic.  A short introductory paragraph is included for each group of questions and answers to provide background information about the underlying regulatory requirements.  A  four-page document with some of the clarifications and a PDF version of all the FAQs has also been created.

These useful FAQs follow OSHA’s recent release of six Construction Silica training videos for Table 1 Tasks:

Controlling Silica Dust in Construction Videos for Table 1 Tasks

An impressive number of contractors have been proactive and have been investigating Table 1 and other tasks, and have found challenges. The key is for employers to not await OSHA citations but to build justification for its approach at each job. — Fisher Phillips

OSHA Adds New Silica Compliance Materials – Slides, Videos, And FAQ

Need training materials and background information for your construction workforce on OSHA’s new silica rule? The agency recently added to its web site a number of materials that may come in handy, particularly for those in the construction industry.

Though extremely controversial, the silica rule largely took effect in the construction industry last year and took effect for most other employers a few weeks ago. Smaller companies especially may have limited resources to prepare compliance and training materials. The materials OSHA recently posted and announced for the construction industry include:

—  Avi Meyerstein, Husch Blackwell LLP

Respirable Crystalline Silica Rule discussions create positive results

Several conference seminars and forums addressed the OSHA Respirable Crystalline Silica Rule and how it affects the tile industry at the Coverings Trade Show held recently in Atlanta. At Total Solutions Plus, taking place October 27th-30th in Grapevine, Texas, we will continue these lively and productive discussions. This is the best way we at NTCA know how to effectively lead, by facilitating group discussions from leaders from the entire industry to help us better interpret the rule and to address best practices in order to help our members stay in compliance.  

NTCA has supported the Tile Council of North America’s (TCNA) efforts to understand the silica issue as it relates to the tile industry by helping to provide the contractor perspective and to assist their research in field testing for their reports. A new report from TCNA addressing California Proposition 65 will be released later this summer.  

In TileLetter’s June issue of Tech Talk (pages 62-70), we covered topics addressed during a Coverings sponsored forum on the OSHA’s Respirable Crystalline Silica Rule. In our coverage, we correctly outlined the real concern that exists if workers do not follow best practices in the tile industry as it relates to respirable crystalline silica exposure. We followed that with specific examples of installation best practices and products being developed to assist in compliance. 

The most important point to understand about respirable crystalline silica as it concerns the tile industry was not pointed out or stated emphatically enough in this article. Here is the bottom line – When tile installers cut ceramic tile with either a snap cutter or a wet saw, the risk level has been proven to be very low. If there is one message that should be shouted from the rooftops to every installer in the field, it is the following: Do not dry cut tile using motorized equipment. Only dry cut tile with a snap cutter. 

Two other activities that every tile contractor must follow in order to be in compliance are:

1) mix dry powder products in accordance with the manufacturer’s instructions; 

2) provide approved dust collection equipment when grinding or mechanically disturbing concrete surfaces. 

It is important to be realistic in understanding this issue. It does not make a lot of sense to regularly dry cut tile or use angle grinders without utilizing a sponge or shroud to control the dust. So to think that installers are going to have to completely change the way they work is just not true. However, the information we are garnering from this study can be shared with tile contractors to help them create a safer workplace environment and to remove all concerns that the exposure levels of respirable crystalline silica are a risk to our valued installers.  

The NTCA will work with industry leaders to draft a statement that can be used to help tile contractors and affiliates in the industry to communicate inquiries related to OSHA compliance so that others will understand that tile setting is not a health hazard. 

OSHA Silica Rule Takes Effect June 23, 2018 With 30-Day Grace Period

OSHA’s new final silica rule that dramatically reduces allowable exposures to respirable crystalline silica takes effect this week for most employers. In particular, the rule kicks in on June 23, 2018 for employers in general industry, maritime companies, and hydraulic fracturing (“fracking”) in the oil and gas industry (for fracking, engineering controls still do not take effect until June 2021).

OSHA says it will still give these employers some time to adjust to the new rule, however. In a June 7, 2018 memorandum, OSHA announced a 30-day enforcement grace period. During this first month, OSHA says that it will assist employers that make a good faith effort to comply with the requirements under the new standard. However, if OSHA finds that an employer fails to make any effort to comply, the employer will be subject to air monitoring procedures and citations for non-compliance.

In their efforts to comply, employers should take advantage of available compliance assistance materials. As an introduction, OSHA published an overview of the new silica standard in a Small Entity Compliance Guide to help small businesses comply.

What does the rule require?

Generally, the new standard requires employers to:

  • Determine whether workers are or may reasonably be exposed to silica at or above an action level of 25 micrograms per cubic meter of air averaged over an 8-hour day.
  • Protect workers from respirable crystalline silica exposure above a PEL of 50 micrograms per cubic meter of air averaged over an 8-hour day.
  • Follow the hierarchy of controls by first employing engineering controls (such as reducing airborne dust using water or removing dust with ventilation) to reduce exposure as much as possible. Only then can employers rely on respirators to protect workers.
  • Limit employee access to areas with exposure levels above the PEL and offer medical exams to highly exposed workers.
  • Develop a written exposure control plan.
  • Train workers on the health risks related to silica exposure and methods to reduce the risks.
  • Maintain records of workers’ silica exposure and medical exams.

OSHA says that it has developed interim inspection and citation guidance to ensure compliance and uniform enforcement of the new standard. The agency says it intends to release these materials in the near future.

Although employers must now comply with the rule’s exposure limits, only some employers must comply this year with the rule’s requirements to offer medical surveillance exams to employees. Where employees will be exposed at or above the PEL for 30 or more days per year, medical surveillance must begin when the rule takes effect this week. However, where employees will only be exposed at or above the action level for 30 or more days a year, employers have two more years to comply. In those cases, they must offer medical surveillance exams beginning on June 23, 2020.

OSHA issues RFI to consider expansion of construction tasks and silica control measures

In a recent article concerning the lack of leadership for OSHA as nominee Scott Mugno awaits Senate confirmation, authors Leah Kaiser and Avi Meyerstein of Husch Blackwell LLP reported that OSHA has moved ahead with its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions, outlining the current status of both pending and anticipated rulemaking efforts. OSHA looks as though it will have its hands full with twenty agenda items, up from fourteen on the Spring 2017 list.

In a new request for information, OSHA wants to determine if it should expand its list of construction tasks and associated control measures that construction workers can use to comply with its 2016 silica rule for construction. Table 1 of the rule listed dust control methods that employers could use for common construction tasks.

The purpose of the table is to provide a clear path for compliance. It spares construction employers from verifying exposure levels (with data and monitoring) if they employ accepted methods for controlling silica dust. Per OSHA: “Employers who fully and properly implement the engineering controls, work practices, and respiratory protection specified for a task on Table 1 are not required to measure respirable crystalline silica exposures to verify that levels are at or below the PEL for workers engaged in the Table 1 task.”

OSHA intends to use the additional information it gains in response to the RFI to revise Table 1 if deemed appropriate. OSHA currently classifies this rulemaking agenda item as “substantive, nonsignificant,” so it is unclear whether we should expect substantial movement in the near future.

OSHA Issues Silica Enforcement Memo

 

By Jackson Lewis P.C.

The silica standard for construction came into effect last year, on September 23, 2017, whereas most provisions of the silica rule as it pertains to general industry and maritime (29 CFR § 1910.1053) take effect this month, on June 23, 2018. The new standard for general industry and maritime imposes stricter permissible exposure limits (PELs) by establishing “a new 8-hour time-weighted average (TWA) permissible exposure limit (PEL) of 50 µg/m3, an action level (AL) of 25 µg/m3, and associated ancillary requirements.”

According to a June 8thmemorandum from OSHA, “OSHA will assist employers that are making good faith efforts to meet the new standard’s requirements.”  The Agency indicates that those employers will be treated more leniently than employers in situations where “it appears an employer is not making any efforts to comply.”

“If upon inspection, it appears an employer is not making any efforts to comply, compliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard.

The determination as to whether an employer is or is not making a good faith effort to comply seems to be open to interpretation by the individual OSHA investigator.  The Agency appears to acknowledge this when it mentions yet-to-be-released “interim inspection and citation guidance” and refers to “effective implementation and uniform enforcement of the new standard.” (emphasis added)  This may in part be the reason why during the first 30 days of enforcement, any proposed citations for inspections carried out during this time period, will first have to go to OSHA’s National Office for review and approval before citations are actually issued.

A couple of publications produced by OSHA on the silica standard for general industry and maritime which may provide useful information are as follows:

The First Six Months: How OSHA Is Currently Enforcing the Silica Standard in Construction

By John Martin of Ogeltree, Deakins, Nash, Smoke and Stewart, P.C.

For construction employers facing uncertainty on exactly how the Occupational Safety and Health Administration (OSHA) is enforcing the new silica standard in Construction, we now have a little bit of data that helps shed some light on this mystery. OSHA began enforcing the silica rule in construction on October 23, 2017. As of April 23, 2017, OSHA and State Plans that have adopted the silica rule (a few have not yet done so) have issued 117 violations. OSHA appears to rarely cite violations of the silica standard by themselves; citations are usually accompanied by violations of other standards, such as the fall protection standards. Here are some interesting statistics on OSHA’s first six months of enforcement of the silica standard in construction.

The Big Three

The most common violations of the silica standard thus far are the following:

  • 35 cited violations of 29 C.F.R. § 1926.1153(d)(2)(i) for failure to conduct an exposure assessment of worker exposure to respirable crystalline silica; and
  • 31 cited violations of 29 C.F.R. § 1926.1153(c)(1) for failing to adhere to the Table 1 list of equipment/tasks and OSHA’s required engineering and work control methods and respiratory protection.
  • 20 cited violations of 29 C.F.R. § 1926.1153(g)(1) for lack of a written exposure control plan. OSHA did not provide a breakdown describing which elements were not in compliance or whether employers simply lacked written plans.

Federal OSHA and State Plans classified approximately 80 percent of the 117 cited violations as “Serious.”

Takeaways

The most commonly-cited violation, failure to comply with § 1926.1153(d)(2)(i), is no surprise. As with any health standard, OSHA’s first and foremost concern is with employer compliance with the permissible exposure limits (PEL) and proper exposure assessment. If an OSHA inspector comes out to location and learns an employer has not done an exposure assessment, then one can expect the agency to recommend and issue a citation. (This requirement only applies, however, to construction employers that fail to follow the requirements set out in Table 1.)

The second most commonly-cited type of violation, the “Table 1” violation, is a bit of a surprise. Table 1 requirements are not mandatory. If a construction employer opts not to follow the controls and respiratory protections for the equipment/tasks identified in Table 1, then it must follow the alternative exposure control methods in section 1926.1153(d), including conducting an exposure assessment.

The third most commonly-cited violations are violations for nonexistent or noncompliant written exposure control plans. Written exposure control plans must contain four minimum elements:

(a)   a description of the tasks in the workplace that involve exposure to silica;

(b)   a description of the engineering controls, work practices, and respiratory protection used to limit employee exposure to silica for each task (i.e., the employer’s custom-tailored “Table 1” for their unique tasks);

(c)   a description of housekeeping measures used to limit employee exposure to silica; and

(d)   a description of the procedures used to restrict access to work areas, when necessary, to minimize the number of employees exposed to silica.

These “big three” violations suggest that OSHA inspectors are perhaps inconsistently enforcing the silica standard for construction. Without access to the raw data (the actual citations themselves), it is difficult to say for sure, but it appears there may be two enforcement approaches at play. It appears one group of inspectors may conduct inspections with a “Table 1” focus. They examine workplaces with the Table 1 list first and foremost on their minds and, if they notice a discrepancy (say, a driveable saw not being used with a water delivery system), they cite the employer under section 1926.1153(c)(1) for not adhering to Table 1, which is the second most common violation to date.

The other group of inspectors likely takes what appears to be a more expected approach. They arrive on location, and if they see a that construction employer is not adhering to Table 1, then they move on to section 1153(d) and start asking employers for exposure assessment data, written exposure control plans, and the like. If there is no exposure assessment data, it results in a citation; if there is no written exposure control plan (or an inadequate plan), it results in a citation. This would explain the first and third most common violations.

The data released by OSHA does not reveal how many inspections under the silica in construction standard were conducted, how often employers were in compliance, or whether inspectors may be citing employers for violations of both Table 1 and alternative exposure control methods in one inspection. The data does reveal that employers have a way to go toward coming into full compliance with the silica in construction standard.

Thank you to Bruce Rolfsen, reporter for Bloomberg Environment, for his article, “Silica Safety Enforcement Ramps Up at Construction Sites,” which collected the statistics on OSHA’s first six months of enforcement of the silica standard in construction.

iQ POWER TOOLS CUTS TO THE CHASE ​at COVERINGS ‘18, including talk on new OSHA Silica Standard

Coverings 2018 is approaching (May 8-11th), and iQ Power Tools is preparing for a number of exciting events found only at this world-class exposition. The largest ceramic tile and natural stone trade exposition in the United States, featuring exhibitors from more than 40 countries, Coverings sets the stage for introducing the most innovative tile and stone products ​worldwide​. These include iQ Power Tools’ iQTS244, the World’s First Dry-Cut Tile Saw with Integrated Dust Collection.

The iQ team will be in full force at this year’s expo. Here is a look at where, when and how iQ Power Tools will be participating:

Exhibit Booth #7912 in the TCNA Hall

Located in the Tile Council of North America’s Hall, #7912, ​visitors will learn about iQTS244 Dry-Cut Tile Saw and its three-key accessories including: Miter Attachment, Extension Table and Vacuum Port. ​Most importantly, they’ll be able see the world’s first dry cut tile saw in action.

Location: Hall C, Booth 7201- Live Installation Demonstrations on Tuesday, May 8th at 12:50pm

A major feature at Coverings, ​live “how-to” classes ​are ​offered to attendees for an up-close look at how ​the top​ pros handle a variety of challenging tile installations. Attendees will see ​ways to​ install new products and learn techniques to make tile and stone installation more successful and financially rewarding.​ See how iQ Power Tool’s Dry-Cut Saw works in “real-world”.

Location: B314 – What the Tile Industry Needs to Know about the New OSHA Silica Standard, Wednesday, May 9th from 3 pm to 4:30 pm

iQ Power Tools’ President, Joel Guth will make a presentation on the hazards of silica and how to understand the OSHA Silica PEL.

Guth will be joined by fellow panelists, Martin Howard, Executive Vice President – Operations Tile, Stone and Pre-Construction at David Allen Company (Raleigh, NC) and Jim Olson, Assistant Executive Director of the National Tile Contractors Association (Jackson, MS).

Learning Objectives for this FREE one hour presentation include:

  •           Know the Hazard: Learn and understand the hazard and risks associated with silica exposure.
  •           Know the Standard: Learn and understand the OSHA PEL and what it means to you and your business.
  •           Know your Exposure: Learn and understand how to use air monitoring to measure silica exposure levels and understand the results.
  •           Know your Options: Learn and understand your options, including tools, work practices and educational resources for controlling silica exposure on your job sites

Register to win a FREE iQ Power Tools Dry-Cut Tile Saw and Blade

From the show’s opening on May 8th ​through May 11th, attendees participating in a live saw demonstration at the iQ Booth #7912 will receive one entry to win iQ’s Dry-Cut Tile Saw with stand and blade ($1,740 value). Entries (attendee’s business card) must be validated by an iQ Representative. The first 100 entries will receive an iQ Tee-Shirt. The first 50 attendees completing the OSHA Silica Standard Presentation will receive an additional entry and an iQ Tee-Shirt.

Winner will be drawn at @12pm on Friday, May11th by one of the National Tile Contractors Association’s Regional Directors (Region 6) and  Five Star Contractor, Mr. Bradford Denny of Nichols Tile & Terrazzo Co., Joelton, TN.

For more information, contact Sarah Hurtado, Marketing Communications Manager | [email protected]

 

OSHA Considering Changes to Silica Rule

OSHA may soon make it easier for employers to comply with the agency’s Respirable Crystalline Silica in Construction Standard. The standard, which OSHA announced in 2016 and began to fully enforce last fall, seeks to protect workers who may inhale silica dust.  A variety of construction operations may expose workers to silica dust including, for example, abrasive sandblasting and cutting bricks, stone, or concrete.

The silica standard is extremely detailed and complex. It contains requirements for assessing workers’ silica exposure, for using exposure control methods and respiratory protection, for offering medical surveillance, and for keeping silica-related records.  Fortunately, “Table 1” of the standard makes compliance with standard easier, at least in some situations.  The Table describes engineering controls, work practices, and respiratory protection requirements that may be implemented by an employer when performing certain construction-related tasks, thereby exempting the tasks from the standard’s exposure assessment provisions and permissible exposure limits.

Last week, during the mid-winter meeting of the American Bar Association’s Occupational Safety and Health Law Committee, a Department of Labor official announced that OSHA is considering changes to the silica standard for construction. According to Ann Rosenthal, the Department’s Associate Solicitor for Occupational Safety and Health, OSHA is currently working with members of the construction community to add more tasks to Table 1.

News that OSHA is considering an expansion of Table 1 comes after a recent federal court ruling that rejected several challenges to the standard by employer groups. The U.S. Court of the Appeals for the District of Columbia Circuit, in an order issued last December, rejected arguments from employer groups challenging the standard’s lower permissible exposure limit and, among other things, the feasibility of compliance with standard

Written by authors Alyssa Levy, Patrick Miller, Matthew Morrison, and Dana Svendsen at Sherman & Howard, L.L.C.

D.C. Circuit Court Upholds Silica Standard

As reported by Sherman & Howard (www.shermanhoward.com) attorneys Pat Miller, Rod Smith, Chuck Newcom, Matt Morrison and Alyssa Levy, on December 22, 2017, the United States Court of Appeals for the D.C. Circuit issued a long-awaited opinion in a case involving numerous challenges to OSHA’s silica in construction standard. The opinion deals a blow to industry challenges and largely upholds the standard. Industry challenges focused on issues such as whether there was substantial evidence to support the rule’s finding that the new exposure limits will reduce health risks, whether there was substantial evidence to find that compliance with the standard is technologically and economically feasible, and whether OSHA violated the Administrative Procedure Act in promulgating the standard. There were also challenges to specific parts of the standard such as confidentiality of medical examinations and the prohibition against dry cleaning methods. The court rejected all of these challenges in a lengthy and detailed opinion.

Union groups also challenged certain aspects of the standard, such as the requirement to only provide for medical examinations in cases where employees are required to wear a respirator for 30 days or more per year and the absence of medical removal protections. The court rejected the challenge to the 30-day trigger for examinations. However, it did conclude that OSHA did not adequately explain why it omitted medical removal protections from the standard. More specifically, the court ruled that OSHA acted arbitrarily in declining to require medical removal for some period in cases where a doctor recommends permanent removal, when a doctor recommends temporary removal due to COPD symptoms, and when a doctor recommends removal pending a specialist’s determination. The court remanded the matter to OSHA to reconsider or further explain these issues.

This decision means that pending an additional requirement for medical removal, OSHA’s silica in construction standard will remain in effect as written. Employers are again encouraged to make sure that they are in compliance with the rule, which is now in effect. Sherman & Howard will continue to monitor new developments with the standard.

1 2 3