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  • Writer's pictureMichael Peelish, Esq.

OIG Makes Harsh Findings on OSHA’s Protection of Workers from Exposure to Silica

The Office of Inspector General (OIG) issued its findings on September 29, 2021 to the simple question: To what extent has OSHA protected workers from exposure to respirable crystalline silica?

The simple answer is not so good since the new silica standard became enforceable on September 23, 2017 for construction and June 23, 2018 for general industry and maritime. What the OIG found is that silica inspections went from 2,108 in 2016 and 2017 to 880 in 2018 and 2019, a more than 50% reduction. The OIG attributes this reduction to the cancellation of the National Emphasis Program that had been in effect since January 2008 and a Special Emphasis Program that became effective May 1996 which required 2% of all inspections be silica-related inspections. The OIG found that notwithstanding the new standard and the purported OSHA outreach, with the enforcement obligation evaporating, OSHA “did not effectively mitigate risks to works exposed to silica.” The recommendation for OSHA is to issue an agency policy that requires implementation of future emphasis programs such that an enforcement lapse does not occur between canceled, revised, or new programs. OSHA did reissue its latest NEP for Silica during February 2020 so inspections are required again.

Further, the OIG noted that the OSHA-provided silica inspection and violation data was inconsistent with publicly available data, however the explanations and final recommendations call for more transparency which sounds like a canned solution.

Another big miss was the outreach program to workers. OSHA noted that most of its inspections were complaint-based inspections following the rule. OSHA had estimated that 2.3 million workers are at risk annually for exposure to silica. OSHA had provided activity reports which suggested that 1.3 million workers attended outreach programs which included some OSHA extrapolation.

OSHA issued its response to the report which essentially stated:

  • Regarding prioritizing resources, OSHA has discretion on how it allocates its resources and one agency of the government should stay out of another agencies’ business when it comes to allocating resources. Also, OSHA doubled down by claiming that the lapse in enforcement was to give the industry time to implement the controls and programs and other aspects of the new rule.

  • Regarding data inconsistencies, it is complicated and it is not worth the time to give OIG access to OSHA’s internal systems and train them on the systems when publicly available information exists. Further, OIG auditors and analysts change so frequently that the time training is lost.

  • Characterizing outreach efforts, OSHA noted that establishing metrics and goals is a good idea. However, it claims that the OIG mischaracterizes the audience and the scope of its outreach and that the report did not take into consideration the “trickle down” effect of the training to other workers at the work site.

Well, I came out of industry where I worked for 28 years, half those years as an executive. If I ever walked into an executive meeting or a board meeting and gave these kinds of responses to legitimate questions, I am not sure I would have been working in that company much longer. The one thing I found in industry is that it is okay to admit failure (or as some people like to say, “it did not go as planned”) as long as you have a plan to recover or eliminate the identified risk in the future. To argue as OSHA did that their actions were fine, then improvement is not possible. Industry is asked to self-reflect all the time on how it does work safely. Maybe OSHA should take some guidance from industry and do the same.

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