The Occupational Safety and Health Administration (OSHA) has published new worksite inspection guidelines for its staff regarding enforcement of the respirable crystalline silica standard, which at the same time gives employers a good look into what to expect when the agency’s inspectors show up at your door.
In recent years, OSHA has extended employer regulations aimed at preventing workers from contracting silicosis in a wide range of industries. These regulations include mandating new and sometimes very detailed abatement standards that employers are expected to follow, dealing with everything from maintaining clean worksites, testing for exposure to the mineral and providing effective personal protective equipment (PPE)
Two new expanded health standards—for general industry/maritime and the construction industry—were published in 2016. These regulations significantly lowered the permissible exposure limit (PEL) to 50 micrograms of respirable crystalline silica per cubic meter of air over an eight-hour time-weighted average.
Beginning in June 2017, construction industry employers had to offer medical surveillance to employees exposed above the 50-PEL for 30 or more days a year. One year later, general industry and maritime employers had to meet the same requirements. On June 23, 2020, this requirement expanded to include all employees who would be exposed at or above the action level for 30 or more days a year.
In addition, the obligation to implement engineering controls to limit exposures in hydraulic fracking operations in the oil and gas industry to the new PEL is not scheduled to begin until June 23, 2021. Until that time, employers must still provide employees exposed to silica in hydraulic fracking operations with respiratory protection and ensure its use if employee exposures exceed the PEL.
As you might well imagine, the agency also committed to an aggressive program of enforcement resulting in increased penalties if the rules are not followed. Because employers can’t expect to be cut any slack by OSHA inspectors, it’s a good idea to take a close look at the playbook the agency recently handed them.
This new 124-page manual, titled Inspection Procedures for the Respirable Crystalline Silica Standards, went into effect on June 25.
What Inspectors Are Told
The checklists at Appendix F in the procedures manual may offer employers the best measure of compliance assurance, according to attorneys John F. Martin and Phillip Russell of the law firm of Ogletree, Deakins, Nash, Smoak & Stewart. “Employers may want to print copies of these checklists and utilize them to enforce their compliance efforts.”
There are two compliance checklists—one for the construction industry and one for general industry and maritime. Each checklist contains specific step-by-step checkboxes for all topics covered in the inspection procedures.
Employers also may want to incorporate the checklists into their safety compliance programs and have their internal EHS personnel use them and the inspection guidelines to simulate OSHA inspections of their own worksites and take any appropriate corrective action, the attorneys recommend.
One thing to keep in mind is that OSHA inspectors are expected to conduct and collect personal breathing zone samples on the first day of the inspection. If no silica-generating work is being performed at that time, the procedures state that the inspector should ask the employer for the next available time when such work will resume.
Inspectors also are instructed to request and review standard documentation, including the employer’s written exposure control plan and exposure records (such as air monitoring records) or other data the employer used to assess exposure levels before workers enter the work area. This also includes laboratory analytical results or chain of custody sample forms.
For construction employers in particular, if the employer is not fully and properly implementing the specified controls for a Table 1 (Specified Exposure Control Methods When Working With Materials Containing Crystalline Silica) operation or task, or is performing a task or using equipment not listed in Table 1, inspectors are instructed to assess the employer’s efforts to obtain compliance with the PEL.
If the construction employer is fully and properly implementing the Table 1 controls, the inspector who is onsite does not need to collect personal air samples, according to the OSHA guidelines.
OSHA also says that an inspector generally should avoid a regulated area or other areas at a construction worksite where anticipated exposures are above the PEL, unless there is an absolute need to do so, the inspector is wearing proper PPE, and has discussed the need with his or her area director or supervisor prior to entering a regulated area.
When it comes to citation guidance, the procedures say general industry and maritime employers can receive citations if the samples collected show employee exposure above the PEL of 50. On the other hand, if the employer has instituted all feasible engineering and work practice controls and employees are adequately protected by an effective respiratory protection program, then OSHA says there is no PEL violation to be found.
Construction and Fracking
For the construction industry, where an employer has fully and properly implemented the engineering controls, work practices and respiratory protection specified in Table 1, then OSHA also says there is no PEL violation. However, citations should be forthcoming where the employer has not implemented the Table 1 engineering controls, work practices and respiratory protection, and the sampling finds exposure over the PEL.
However, the attorneys note that in practice most inspectors conducting construction inspections do not appear to have been conducting any sampling. Instead, they observed the workplace and determined if the employer was following Table 1 and if not, the inspectors would recommend a violation.
Now OSHA is advising inspectors to also cite employers with a violation for exceeding the PEL. But if the inspector never conducts sampling, OSHA has no evidence that the employer was actually exceeding the PEL at the time of the inspection. “The updated procedures suggest inspectors should now always conduct sampling at all construction sites,” the attorneys conclude.
In addition, Martin and Russell point out that the agency’s silica standards removed proposed prohibitions against the use of employee rotation after it received criticism from the stakeholder community, the attorneys explain. “But now OSHA is stating that ‘this practice is discouraged,’ and warns employers it may potentially increase the number of employees subject to the medical surveillance requirements.”
The procedures also contain a primer on inspections of fracking operations. OSHA instructs its inspectors to determine what kind of proppant is used in the process—silica sand being the most common. Inspectors must then evaluate the fracking employer’s exposure assessment materials and evaluate all the onsite regulated areas.
Next, inspectors must review the engineering controls on location, with a focus on the local exhaust ventilation unit, proppant loading and moving equipment, the efficiency of heating, ventilation and air conditioning (HVAC) filtration systems in mobile equipment, change trailers, and work trailers.
The fracking guidelines also require evaluation of employer use of administrative controls, such as ensuring employees are not standing around or working close to silica dust sources when they are not engaged in a silica task. OSHA tells inspectors to pay heed to equipment maintenance, which also can greatly reduce sources of silica dust emissions. Inspectors also are expected to review fugitive dust controls and the fracking employer’s written exposure control plan, respiratory protection program and general housekeeping practices.
The inspector guide clears up several issues for employers, but it also raises more questions in some areas, Martin and Russell believe. “For example, OSHA’s interpretation of ‘under any foreseeable conditions’ appears to render the ‘objective data’ exception to silica compliance moot and effectively reads it out of the standard.”
Employers in general industry and maritime industries are exempt from the silica standard if they possess objective data demonstrating that employee exposures to respirable crystalline silica will remain below the action level “under any foreseeable conditions.” OSHA then interprets “under any foreseeable conditions” to include “failure of most controls.” The attorneys ask, “But if that never happens in practice, how can it be a foreseeable condition? Technology is constantly improving. Engineering controls and their reliability are getting better, not worse.”
OSHA also suggests that any objective data proffered by employers should reflect “worst case conditions.” But industry surveys are typically conducted under common and representative conditions.
“What's a ‘worst case’ scenario?” Martin and Russell ask. “The answer is largely left to the imagination of the inspector, who may envision an unlikely parade of horribles to call into question and reject the employer’s objective data. This would force all employers, large and small, to conduct exhaustive air sampling for each worksite, something OSHA insisted the silica standards would not require.”