EDITOR’S
NOTE: Regulating silica dust has been a prime concern of local Westerly and Charleston neighbors of the infamous Copar quarry site in Bradford. They have
argued their families are exposed to silica blown off the granite dust piles.
The Trump regime’s unwillingness to enforce stronger standards is bad news not
just for workers but for communities exposed to large and regular doses of
silica dust. – Will Collette
You won’t see it in a press release, but on September 19 the Occupational Safety and Health Administration
announced another 30-day delay in full enforcement of the
silica standard for many employers. Acting Deputy Assistant
Secretary Tom Galassi sent a memo to regional administrators outlining
the policy that will take effect on Sept. 23:
During the first 30 days of enforcement, OSHA will carefully
evaluate good faith efforts taken by employers in their attempts to meet the
new construction silica standard. OSHA will render compliance assistance and
outreach to assure that covered employers are fully and properly complying with
its requirements. Given the novelty of the Table 1 approach, OSHA will pay
particular attention to assisting employers in fully and properly implementing
the controls in the table. OSHA will assist employers who are making good faith
efforts to meet the new requirements to assure understanding and compliance.
(Editor’s Note: Inhaling silica dust is known to cause cancer, silicosis, chronic obstructive pulmonary disease
and kidney disease.)
If, upon inspection, it appears an employer is not making any efforts to comply, OSHA’s inspection will not only include collection of exposure air monitoring performed in accordance with Agency procedures, but those employers may also be considered for citation. Any proposed citations related to inspections conducted in this time period will require National Office review.
To ensure effective implementation of the new standard, OSHA has
developed interim inspection and citation guidance to be released prior to
termination of this memorandum. The compliance directive will be finalized
thereafter.
So far, OSHA hasn’t issued a press release announcing this
policy. You’d have to search for it on OSHA’s web page, or read a
newsletter from Jackson-Lewis law firm, which apparently was
notified before anyone else.
The
Silica Standard was Already In Effect
Last April, OSHA announced a 90-day delay in enforcement
of the silica standard for all employers, from June 23, 2017, to Sept. 23,
2017. Tuesday’s announcement essentially extends that enforcement delay,
although limits it only to those employers who, in “good faith” are trying to
comply with the requirements of the standard but are unable to reduce exposures
below the new permissible exposure limit or are unable to fully comply with
“Table 1” that provides more simple instruction about how to comply.
In other words, only if OSHA inspectors can prove that an
employer is not meeting the requirements of the standard and is
not acting in good faith to meet those requirements, a citation may be
issued—but even then, only with National Office review.
Note that the requirements of the standard have been in effect
since June 23; only enforcement has been delayed. That means that for the past
three months, employers were required to comply with the requirements of the
standard.
OSHA’s April 6 Press Release, announcing the original delay, stated that even though there would be no enforcement, “OSHA expects employers in the construction industry to continue to take steps either to come into compliance with the new permissible exposure limit, or to implement specific dust controls for certain operations as provided in Table 1 of the standard. Construction employers should also continue to prepare to implement the standard’s other requirements, including exposure assessment, medical surveillance and employee training.”
OSHA’s April 6 Press Release, announcing the original delay, stated that even though there would be no enforcement, “OSHA expects employers in the construction industry to continue to take steps either to come into compliance with the new permissible exposure limit, or to implement specific dust controls for certain operations as provided in Table 1 of the standard. Construction employers should also continue to prepare to implement the standard’s other requirements, including exposure assessment, medical surveillance and employee training.”
Is There
Precedent for This?
Conducting an enforcement program limited only to those
employers not acting in good faith is not unprecedented. OSHA, under the Obama
administration, issued similar policies on more than one occasion, for example
when implementing its new residential fall protection requirements in
2011.
The difference here is that there have already been three months with no enforcement whatsoever. One would have thought that in the past three months, when employers were legally required to comply with the standard, those good faith criteria would have already been in place.
The difference here is that there have already been three months with no enforcement whatsoever. One would have thought that in the past three months, when employers were legally required to comply with the standard, those good faith criteria would have already been in place.
Note that in other cases, such as the residential fall
protection “good faith” enforcement policy, the policy did not apply “in cases
of a fatality, catastrophe, or serious injury resulting from a fall during
residential construction activities.” That was a good thing, but with a
health hazard like silica, where the most severe effects may not be apparent
for years or decades, it’s hard to ensure that employees aren’t being exposed
to equally deadly—if delayed—exposures.
Generally, OSHA inspectors hate these good faith exemptions
because it is difficult to prove that an employer was not acting in good faith.
The residential fall protection enforcement delay, unlike the current
silica delay, laid out specific criteria for inspectors to use to determine
whether an employer was acting in “good faith,” such as “requesting and
scheduling an On-site Consultation visit, ordering protective fall equipment
for its employees, or performing a documented evaluation of feasible means of
abatement.” No such criteria appear in Galassi’s memo.
The bottom line is that except for some hard-to-prove “bad
faith” exemptions, what we’re seeing here is simply another 30-day delay in
enforcement of the silica standard. Hopefully, this will be the last one.
Meanwhile, as we mentioned yesterday, the good news is
that despite this further delay and the lawsuit pushed by the ideologues
at the Chamber of Commerce and various business associations, BNA reports
that the actual construction industry is ready to
protect workers. And I suppose we should be happy that OSHA is not engaged in
attempting to weaken the standard as they’re doing with Beryllium.
Meanwhile, let’s hope that most construction employees work for
these “good faith” employers and that OSHA’s further delay doesn’t just give
too many “bad faith” employers another 30 days to sicken and kill their
workers. Lives depend on it.