Consistency and predictability in regulatory matters are good for employers. OSHA seems to have met that standard in issuing its Inspection Procedures on June 25, 2020. (Directive Number: CPL-02-02-080). This is in part due to the prior releases by OSHA of its Construction Industry Frequently Asked Questions issued on 8/22/2018 and General Industry Frequently Asked Questions issued on 1/23/2019. Many of OSHA’s statements noted in the Inspection Procedures refer to the FAQs documents. The one caveat to the above statements is that OSHA’s Request for Information issued on 8/9/2019 regarding the effectiveness of engineering controls and what else should be included in Table 1 have not been addressed by OSHA. My sense of what might come from OSHA based on the language in the RFI and the comments filed would only facilitate the implementation of the silica standard for both construction and general industry.
Having paid OSHA a compliment for its efforts, I would like to note several items that employers need to be aware of.
· The obligation for general industry employers to make available medical surveillance is now triggered by exposure above the Action Level for 30 days or more in a year rather than the Permissible Exposure Limit. This obligation became effective on 6/23/2020.
· The obligation for the hydraulic fracking operations in the oil and gas industries to implement engineering and work practice controls will become enforceable on 6/23/2021.
· OSHA goes into greater detail on the inquiry CSHOs should make during an inspection. OSHA stresses numerous times that the CSHO should question employees in detail including work tasks that may generate RCS, their knowledge of the Exposure Control Plans, the training they received, their knowledge of respirator use, and on and on. If a CSHO receives inadequate responses, the employer will be cited for a training violation.
· OSHA confirms the use of operator rotation as an administrative control.
· With all the technical requirements the silica standard imposes, employers must have processes in place for the retention of records for medical surveillance opinions and exposure assessments. This often-forgotten obligation will lead to citations.
· OSHA also notes that citations that could lead to overexposure will generally be cited as Serious.
In summary, employers can take some comfort from the certainty the Inspection Procedures provide. In addition to complying with the technical requirements of the silica standard (e.g., engineering controls, exposure control plans), employers should also ensure that employees can demonstrate their knowledge of the silica standard and its requirements when a CSHO questions them. In this regard, our firm has presented over 100 webinars and training classes reaching thousands of employers. We have also conducted many dozens of exposure assessments and drafted exposure control plans to assist employers in fully and properly implementing the silica standard.
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