On July 3, 2013, the U.S. Department of Labor released the regulatory agenda for the Occupational Safety and Health Administration (OSHA). While much of the agenda was anticipated, some time frames have shifted and there are a number of items that will pose new compliance challenges for the construction industry and the contractors working within it.
The first of these regulations to likely see the light of day is OSHA’s highly contentious crystalline silica standard, which applies to both general industry and construction activities. Crystalline silica, or quartz, is a ubiquitous mineral, making up the majority of the earth’s crust, and under normal exposures is not hazardous but when it is mined or milled to a fine consistency in construction materials or earthmoving operations, the respirable fraction can be hazardous or even deadly. Silicosis is the most common outcome of excessive silica exposure, and can be acute (e.g., in sandblasting operations with high exposures, death can occur within months) or chronic (e.g., routine construction or mining operations with exposures at or above the current limits can result in silicosis after a long latency period of 10 to 30 years). Silica has also been associated with immune system disorders.
In 1996, crystalline silica was classified as a “group one” carcinogen by the International Agency for Research on Cancer and OSHA commenced a National Emphasis Program on silica exposures and put the substance on its rulemaking agenda. A draft rule was released in 2003 and comments were obtained from a small business panel through the “SBREFA” process. At that time, options under consideration ranged from keeping the current permissible exposure limit (PEL) that equates to 100 ug/m3, cutting the PEL to 75 or 50 ug/m3, and adding other requirements for medical surveillance, exposure monitoring, and implementation of engineering controls and “best practices,” as well as possible heightened requirements for respiratory protection. However, since that time, the American Conference of Governmental Industrial Hygienists (ACGIH) has lowered its recommended exposure limit to 25 ug/m3, which would be quite difficult for most construction operations to satisfy. The most likely PEL that OSHA will select is 50 ug/m3, which is also the level recommended by the National Institute for Occupational Safety and Health.
Under the July 2013 agenda, OSHA plans to release the proposed silica rule for comment in July 2013, and public hearings are likely as well. In addition, ASTM International (an international consensus standard organization) has adopted two standards addressing best practices in managing occupational crystalline silica exposure—E1132 is for general industry and E2625 is for construction—and these are available now through www.astm.org. Under laws passed by Congress in 1995, OSHA must consider adoption of consensus standards that are applicable when doing a new rulemaking, so the ASTM information may give advance notice of what to expect in the OSHA final rule.
Another forthcoming standard is the “Confined Spaces in Construction” rulemaking, which will result in a final rule by the end of 2013. OSHA has had a general industry confined space standard since 1993, 29 CFR 1910.146, but it had never been extended to cover construction because of the unique characteristics of those worksites. However, based on discussions with the United Steelworkers union, OSHA embarked on a separate industry-specific rule, and it is anticipated that the rule will be protective but not as complex as the original standard. Again, there is a consensus standard that may help in preparing for the new rule—the ANSI Z117 standard (www.ansi.org).
OTHER FINAL RULE MATTERS
Another final rule is the electric power transmission and distribution standard, which will apply to both general industry and construction. Electrical hazards are a major cause of occupational death and the current construction industry standard is nearly 40 years old. OSHA’s revision will update the standard, bring the general industry and construction rules more into alignment, and address issues such as electrical protective equipment and fall protection when working in aerial lifts on electrical installations. The final rule is also scheduled for July 2013.
OSHA also plans to propose amendments to its relatively new “Cranes and Derricks in Construction” rule, which will correct references dealing with power line voltage; broaden the exclusion for forklift carrying loads under the forks from a winch or hook to also include loads connected with a boom or jib, wire rope or other means of attachment; and clarify that body belts can only be used for fall restraint, not fall arrest. A proposed rule with the amendments is due in September 2013.
The final key rule of interest is the “I2P2” standard (injury and illness prevention program). This rule has been the centerpiece of OSHA’s regulatory agenda but has been delayed repeatedly long after stakeholder meeting concluded. The next step is a small business impact panel, and that is now scheduled to occur this fall, with a proposal rule slated for January 2014. The standard would require all employers (regardless of size) to develop, implement, and evaluate the effectiveness of a safety and health management program that is adequate to address and control all hazards in the workplace, including ergonomic risk factors.
Some have speculated that, once I2P2 becomes law, OSHA will never need to develop another rule because all emerging risks could be cited under the I2P2 rule. There has been much discussion about whether the “five guys and a truck” type employer in construction could handle a complicated program requirement. OSHA’s response has been that California has had a similar rule in effect for years (as have few other OSHA “state plan states”) and it has not put companies out of business. For a preview of I2P2, check out Cal-OSHA’s website on I2P2 (www.dir.ca.gov/DOSH/etools/09-031/index.htm) or the national consensus standard, ANSI Z10. ■
About The Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employers in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, August 2013
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