Enforcement Dates for OSHA’s Silica Rule Coming Fast!

• Construction: September 23, 2017
• General Industry: June 23, 2018

As with any new standard that the agency implements, the closer the date comes, the more buzz we hear in the hive.  Nobody likes the Federal Government reaching further into our lives.  However, with OSHA’s Silica Rule, there seems to be an inordinate amount of mis-information along with an equally disturbing amount of mis-aligned focus.

While each of these concerns have some validity, they need to be placed in a logical order.  They also cannot be allowed to be blown up to an inappropriate size and placed in the way of what really matters. It’s time to take closer look at the these concerns and gain a healthy perspective on what really matters most. Once the myths are debunked, we can get working in a productive manner.

Myth 1:  OSHA has inflated the impact and under-estimated the cost.

This argument has certainly been circulated and may have some real validity.  However, even if it does, you cannot dispense with the documented fact that Silica poses a significant health risk to workers in the U.S.  You also cannot reasonably argue that the old regulations on Silica have been followed in a widespread fashion across industries in the U.S.  More can and should be done to protect our most valuable resource: workers.

Across multiple industries and groups, there is a significant amount of time being spent arguing the points.  There are plenty of lobbyists, lawyers and politicians spending their time and breath arguing in courtrooms in DC.

If you are someone who is responsible for a workforce, either in construction or industry, a proper perspective is to leave that argument to them.  If we get caught up in arguing those points with them, who is left to lead and protect our workforce?

Can you imagine what a failure in your role it would be to spend all your time arguing alongside them only to have the effort fail?  Enforcement would begin and you would be in a very vulnerable position.

Myth 2:  Congress will de-fund enforcement efforts so OSHA cannot enforce the new regulation.

While there is rumored to be a bill that will attempt to this, it is largely immaterial and should not allow us to be distracted.  For it to pass would require congress to agree on something.  That alone would “take an act of congress”, pardon the pun.  In addition, it would have little to no effect on us at the industry level.

The standard already exists.  So, if OSHA visits a construction site after September 23, 2017 (or industrial plant after June 23, 2018) and you are either over the PEL or cannot prove that you have an exposure control plan, engineering controls, and are under the PEL, you will be cited under this new standard.  It’s just the same as before but with a new lower level and more detailed requirements.

All it takes for OSHA to open an inspection is for them to drive by a jobsite and see a white cloud of dust.  Or, in the case of industry, for an amputation or hospitalization to occur.  This would cause OSHA to visit your plant to do an investigation.  If it’s in plain sight, OSHA could immediately stop and open an inspection for silica exposure.

Myth 3:  OSHA might change the enforcement date.

The key word in that sentence is “Might”.  How close do we have to get to the date before you decide that it is close enough to act?

Here at Optimum, we are using a minimum six-month timeline for industrial plants to comply.  This gives the plant ample time to; assess their exposures, build a plan, implement engineering controls, do testing, write control plans then equip, medically clear and train their workers.  You’ll see an outline of the timeline below. Each step corresponds to an activity on this self-assessment. Some plants have started down this road already so that they are ready ahead of time and are not subject to fine.  Others haven’t even begun preparing for OSHA’s Silica Rule.

We are receiving panicked calls now, less than two weeks away from the construction compliance date, from companies who have barely begun.  Speaking with Area Offices for Federal OSHA, they are ready to begin citing contractors with four citations totaling up to $50,000 in penalties if they have no measures in place.  The contractor will pay the fines and still implement the same steps they should have before.  Don’t wait and put yourself in this “double-jeopardy” situation.

Myth 4:  OSHA might change the permissible exposure level (PEL) or action Level.

Our experience is showing us that when a pro-active employer implements good engineering controls, the PEL is achievable.  Also, it is often not as costly as the employer first thought.  Further, the engineering controls are having paybacks in other areas such as overall cleanliness and safety of the entire plant.  We have plenty of examples to back this up.

Myth 5:  I’m in a state that runs its own OSHA program so I will have time to get on board later.

This is a very flawed viewpoint.  State OSHA plans must abide by the Federal standards as a minimum, including enforcement deadlines.  We have heard reports of several states who began enforcement in June of 2017 which was the original date published by Federal OSHA.  When the original delay was published, these states decided to move ahead on the original schedule.

Myth 6:  General Contractors want things beyond the OSHA requirements and we are not going to do it.

There is a long history of GC’s who will sometimes set requirements tighter than OSHA minimums for safety.  This can be because; they are very proactive, they are afraid of being cited by OSHA themselves or, they have an inexperienced safety professional who doesn’t understand the standards or what is really achievable.  No matter the cause, we must understand that this is their prerogative.

That said, there are still a few options we have:

• Go along with what they say and meet their requirements. This may be difficult, costly or seemingly impossible.
• Ask them about their concerns and open a dialogue aimed at meeting on some common ground. You must be willing to give somewhat.  Doing it like we have always done it will not work in these situations.
• Choose not to work for this General Contractor. This is probably not a good option.  Especially if they are a valued customer.

So, there you have it.  The myths are debunked. Now what?

Get started!  Remember that OSHA does not have a huge enforcement team.  While they will be trained soon, if not already, they must see an exposure to open an inspection.  So, get to work leading your workforce through the steps.  Reducing exposures is the way to limit your exposure to citations and penalties with OSHA’s Silica Rule.

Need help knowing where to begin?  Take the self-assessment found here. It will help you understand where you are today and give you guidance on how to proceed.  You will also find other resources on this page like a complete webinar on the standard.  Need further help?  Give us a call.  We’re here to help!