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Enforcement Has Begun for OSHA’s Silica Dust Rule. Are You Compliant?

September 25, 2017

Silica dustAfter several delays, OSHA’s new silica dust standard became enforceable on September 23. But, there’s a caveat, at least for the construction industry.

Last week, the agency announced a 30-day period of light enforcement, during which they consider “good faith efforts” toward compliance. The agency cites the “novelty of the Table 1 approach” as the reason behind the newest semi-delay and stresses that inspections for the first 30 days will focus on “assisting employers in fully and properly implementing the controls in the table.” By the end of this introductory period, OSHA will finalize its official compliance directive.

To learn more about the Table 1 approach and the impact of the standard on the construction industry, we spoke with Abby Ferri, an independent safety consultant and President of The Ferri Group.

Ferri has been in the safety and health industry for more than 14 years. The bulk of her background is in construction, but she has also worked as a risk control consultant for large insurance carriers. Today, The Ferri Group provides consulting services for a wide variety of industries, from construction and manufacturing to retail and craft brewing.

Why was the standard delayed? What is Table 1?

OSHA issued two silica dust standards — one for general industry and maritime (which goes into enforcement on June 23, 2018) and one for construction. The original enforcement date for construction was June 23 of this year, but it was delayed until September 23, no doubt to the relief of many companies that weren’t prepared to implement new processes right before the busy summer construction season.

The delay was in part because of feedback from the industry over the feasibility of meeting the new, much stricter requirements. In particular, Ferri notes that construction companies were concerned about their ability to:

  • meet the new permissible exposure limit (PEL), which is roughly 20% of what was previously allowed,
  • perform measurements and air sampling to the required level, and
  • apply the appropriate controls.

To help employers accomplish these goals, OSHA came out with Table 1, which identifies common construction tasks that lead to silica exposure and lists engineering and work practice control methods to protect workers.

While Table 1 is helpful in spelling out exactly what employers need to do, Ferri says that it also caused concern because “initially people thought it was too prescriptive, and people saw dollar signs.” For example, the table calls for tools to be equipped with integrated water delivery systems and HEPA vacuums. “Manufacturers have these tools available, but people weren’t buying them,” she says. “As a result, they have tools and equipment that have been on job sites for years, but aren’t equipped with the equipment required by Table 1.”

Another area of concern is the HazCom and respiratory protection provisions of the standard standards, which Ferri describes as “common respiratory protection on steroids.” Specifically, the standard states that if you’re doing a task on Table 1 that requires PPE for 30 or more days per year, you need to be in a medical surveillance program. “It’s not hard to find a task on Table 1 that requires a respirator and that a worker could conceivably do for 30 days a year,” Ferri says.

The final piece is worker training. “This is what the delay impacted the most,” Ferri says. With enforcement comes the requirement for training to ensure that all workers understand the standard, Table 1, and any medical monitoring programs they will need to participate in.

What will OSHA inspectors be looking for?

Silica dust has been an OSHA National Emphasis Program for many years, so it has always been a focus of OSHA inspections. But, now, Ferri says, “it will be scrutinized even more.”

The challenge is that, without a compliance directive in place, it’s unclear what OSHA compliance officers will zero in on. For example, Ferri notes a recent LinkedIn conversation about using a sweeping compound for drywall and dust. “The standard calls for limiting dry sweeping as much as possible,” she says. “But it doesn’t talk about sweeping compounds specifically. When enforcement begins, it will be interesting to see how this is being looked at. The standard calls for employers to minimize dry sweeping, but how much is minimal? What level of training will the officers be looking for? Is an extended tailgate meeting appropriate?”

Another area that Ferri thinks will be interesting is how inspectors handle the multi-employer aspect of it. For example, who’s responsible in an area where one subcontractor is creating dust and there are other contractors around? She has already seen general contractors who are well versed in the standard updating their contract language to require that subcontractors provide their own written silica exposure control plans to protect their workers and others at the job site.

These questions will be answered over the next month as inspectors start fanning out to job sites.

What can employers do?

Even with some things still up in the air, the best way employers can ensure they’re prepared is by providing worker training. “This is where the citations will come from,” Ferri says. “The inspections will happen and there will be dust. The compliance officer will take this opportunity to interview workers. They’ll ask if they know what’s in the dust and the health hazards of silica. They’ll ask when was the last time they received training. And, if they’re wearing a respirator, they’ll ask how often they have to do the task and about the last time they received training.”

Over the next few weeks, satisfactory answers to these questions might be sufficient evidence of “good faith efforts.”

What if you haven’t started your compliance journey yet?

Hopefully, you’re already well on your way to compliance. But many employers might not be. Based on conversations with general contractors, Bloomberg BNA speculated last week that while large contractors were ready last year, soon after the rule was released, many smaller contractors are likely waiting until enforcement begins before investing in new tools and equipment.

However, Ferri doesn’t expect OSHA will be giving much leeway. “It’s not like we all just learned about this,” she says. “Compliance officers were ready in June.”

If you’re just starting out in the industry or you still have a ways to go in your compliance journey, here are Ferri’s recommendations for how to get started:

  • Spend some time on the OSHA website. There, you’ll find the standard (including Table 1), as well as fact sheets and other free resources.
  • Contact industry groups and associations. Groups like Associated General Contractors, the National Association of Homebuilders, and your local building contractors association will be able to provide more information about the standard and how it impacts you.
  • Read OSHA’s Small Entity Compliance Guide. Although it was written for small entities, Ferri notes that this document provides good information for companies of all sizes. It was also recently revised, so make sure you’re up to date.
  • Identify the tasks your workers do that have the potential for silica dust exposure and compare those tasks to Table 1. Table 1 tells you how to comply. If you can’t comply for some reason, or if you have tasks that aren’t on Table 1, you’ll need to perform air monitoring to determine your risk.
  • Develop your silica written exposure control program. Technology to the rescue! CPWR has a Control the Dust planning tool to help you create your own silica program. The upside is that it’s free. The downside is that the pdf it creates isn’t editable. Alternatively, The Ferri Group offers a downloadable template. It’s not free, but it’s much easier to work with.

If you have been waiting, now’s the time to get moving. While there are undoubtedly costs associated with compliance, they are by far less than the costs of not taking the required action.

What does the future of workplace safety look like?

Aside from silica dust, we asked Ferri to speculate on what might be coming down the road for safety.

She thinks that, in the future, the field will rely more on technology. She’s interested in how devices might assist with new hire orientation or to enable faster on-site communication. For example, she notes that there is still a lot of solo work and that wearable technology might enable managers to keep in better touch with their workers. However, she cautions that technology for the sake of technology won’t get us anywhere. “Gadgets need to be tools to make someone’s job easier,” she says.

As a final note, whatever happens with regulations and technology, Ferri urges employers and safety professionals to keep their focus. “We need to make sure we stick to the basics and fundamentals of worker safety and hazard analysis,” she says. “ We need to make it easily digestible so that people understand what we’re talking about when we talk about worker safety. If a worker can’t understand training or do their tasks right if someone isn’t watching, then we’ve failed.”

To learn more about Ferri and the services she provides, check out The Ferri Group website. There, you’ll find several downloadable resources for safety professionals. To learn more, claim your spot for our Oct. 17 webinar Construction Industry: Understanding the Requirements for Silica Dust Compliance, featuring Abby Ferri.

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