The first full year of OSHA’s enforcement of its new crystalline silica standard has been completed for the construction sector, and data is now available to indicate how the standard is being enforced by both federal OSHA and the state plan states that run their own programs. The FY 2018 data is also available for enforcement in general industry and maritime, but few citations have been noted yet because that rule only took effect June 23, 2018, and FY 2018 ended on September 30, 2018.
SILICA FINAL RULE
The final rule for construction took effect in September 2017, and requires employers to keep respirable crystalline silica exposures below the permissible exposure limit (PEL) of 50 ug/m3 for an 8-hour shift, but tasks involving exposures at the action limit of 25 ug/m3 or higher are all covered by the rule. Construction employers can opt to follow “Table 1” in the rule, if they are performing one of the 18 enumerated tasks and adhering to the OSHA specifications in the table, and this exempts them from conducting exposure monitoring for that task and will immunize them from overexposure citations if OSHA finds they exceed the PEL. There are significant challenges in attaining the new PEL, which is 20 percent of the previous OSHA construction PEL for silica, which was 250 ug/m3.
For the many construction activities that are not included in Table 1, employers must perform personal sampling frequently or else rely on properly compiled objective data. Other provisions of the rule include employee training, enrollment of most workers in a medical surveillance program, development of written exposure control plans, designation of a competent person to oversee implementation of the site-specific plan, and recordkeeping.
CITATIONS ADD UP
Federal OSHA: The agency issued 523 citations during 189 inspections with total assessed penalties of $800,982. There was no data on how many of these citations are still pending due to litigation, and how many citations were accepted without contest. Of the citations issued under the construction rule (29 CFR 1926.1153), the majority (493) were issued during construction worksite inspections.
Most of the state plan states have adopted the federal rule “as is,” but some states recodify their standards and they are permitted to have rules more stringent than the federal government. The following are the data currently available from OSHA. In all, 640 citations were issued between federal and state OSHA covering primarily the construction sector. The breakout on enforcement is as follows:
However, other industry sectors may be found to have workers who perform construction, work when their activities go beyond maintenance tasks. In addition, general industry employers can be cited under the construction rules if they have construction contractors/subcontractors performing tasks falling under Part 1926 in their workplaces. The non-construction sectors receiving silica citations under Part 1926 (most likely as the host employer where subcontractors generated respirable crystalline silica) included: waste management and remediation services; public administration; arts, entertainment, and recreation; real estate and rental leasing; agriculture, forestry, fishing, and hunting; retail trade; and health care and social assistance.
OSHA’s authority to cite employers redundantly under its multi-employer doctrine was recently affirmed by the US Court of Appeals (5th Cir.) in the Hensel Phelps case, so companies can be cited if they control the workplace, create the silica hazard (even if they have no exposed workers), have exposed workers (even if another contractor creates the silica hazard), or if they are responsible for abatement of the condition either by contract or in practice. Therefore, on construction worksites, it is especially critical to stage work to minimize silica exposure to all workers to the extent feasible and to anticipate overexposure situations so that appropriate controls—such as water trucks—can be in place before work begins.
So far, only one federal OSHA citation was issued during FY 2018 under the general industry rule (29 CFR 1910.1053), and this was in the retail trade sector. A $685 penalty was proposed, suggesting that this may have been for a paperwork violation classified as “other than serious.” The current maximum OSHA penalty for serious and OTS violations is $12,934, while the top penalty for repeat and willful citations is now $129,336. These penalties may increase again in 2019 as they are indexed for annual adjustment.
Limited state plan enforcement data is also now available, as some states waited more than 6 months before adopting the federal construction rule. Other states are just coming on line to enforce their general industry and maritime rules.
TARGETED SEGMENTS
The key rule segments targeted by OSHA for citation purposes are: exposure monitoring (either not done when required because “Table 1” is not followed, or performed incorrectly or relied on improper objective data), lack of an appropriate written exposure control plan, and training inadequacies. As reflected in the enforcement data, when an employer is inspected and cited under the silica standard, it is commonly issued multiple citations rather than having the compliance elements grouped into a single violation.
Moreover, when mandated worker training under the rule is not provided, OSHA may cite the employer under both the silica rule, and also under the Hazard Communication Standard (29 CFR 1910.1200), with separate penalties for each. The silica rule requires training on the employer’s site-specific program and controls for their task, the medical surveillance program, the health hazards of silica, how to maintain engineering controls, perform housekeeping, and use tools according to the manufacturer specifications, and on the OSHA rule’s other requirements. Training must be conducted in a language and vocabulary that workers can understand. If an employer is utilizing temporary workers, or day laborers, they will have to provide training for those individuals as well as protecting them in the same manner as their own permanent employees.
If silica exposures are found to exceed the permissible exposure limit, or if respiratory protection is mandated under “Table 1” of the rule and respirators are not provided or used properly, OSHA policy also calls for issuing citations under its unique respiratory protection standards. Those “redundant” citations, issued concurrently and related to silica but under other OSHA standards, are not reflected in the chart.
EXPECT TABLE 1 EXPANSION
OSHA has issued new guidance on its enforcement of the rule, and additional changes are forthcoming as the US Court of Appeals ordered OSHA to reopen the rule and consider addition of medical removal provisions. This rulemaking is also expected to result in expansion of Table 1 to include additional tasks.
About the author:
For more information on the crystalline silica rule’s requirements, or best practices for effective training, IH work, and controls, contact Adele Abrams, Law Office of Adele L. Abrams PC, at safetylawyer@gmail.com.
Modern Contractor Solutions, January 2019
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