August Mack Newsletter | July, 2018

Be Ready for a Crystalline Silica Inspection
by Thomas R. Giffin

What is the Interim Enforcement Guidance?

As stated in previous articles, the Occupation Safety and Health Administration (OSHA) published a standard to regulate employee exposure to respirable crystalline silica (henceforth referred to as silica) on March 25, 2016. The standard lowered the Permissible Exposure Limit (PEL) to 50 micrograms per cubic meter, established an Action Level of 25 micrograms per cubic meter, and established ancillary requirements. The standard gave general industry until June 23, 2018 before enforcement of the new obligations would commence.  OSHA will offer compliance assistance in lieu of enforcement for the first 30 days for employers who are making good faith efforts to comply with the new standard’s requirements.

Facilities that must comply with the standard had many questions about how to comply as some of the clauses of the regulation could be interpreted multiple ways. So how will the new rule be enforced? On June 25, 2018, federal OSHA published the Interim Enforcement Guidance (guidance) to provide instructions for OSHA inspectors in the field to enforce the standard. We can glean some important insights about how the standard will be enforced from this guidance.

In this article, we will not conduct a detailed breakdown of the silica regulation. For those not familiar with the provisions of the silica regulation, please read this article first. We will, however, discuss how the Interim Enforcement Guidance instructs OSHA inspectors to enforce the regulation.

Before we can dive into insights from the guidance, we need to understand limitations of the document. First and foremost, the guidance is interim. By definition, the guidance is in place until more comprehensive guidance supersedes it. Additionally, the guidance is from federal OSHA. Many states have their own state OSHA enforcement agencies, which may or may not adopt the federal enforcement guidance. Also, remember that if you are in a state with an OSHA state plan, the state plan may take a few months to initiate enforcement of the silica regulation.

What can I expect during an OSHA inspection for silica?

The first items most employers can expect is for OSHA inspectors to request are the written Exposure Control Plan (ECP) and exposure assessment(s). Based on the inspection guidance document, OSHA will base most of its inspection on these two documents. Much of the inspection guidance refers back to the employer’s ECP and exposure assessment. With that information in mind, OSHA will conduct a rather detailed review of both your ECP and exposure assessment, likely issuing citations for any deficiencies. Therefore, a detailed ECP written to comply with the standard is of the utmost importance.

OSHA will also plan to collect its own samples while onsite. For the collection, facilities should verify the exposure assessment that was conducted characterizes the worst case employee exposure. If OSHA’s samples come back significantly higher than your own, the quality of your exposure assessment will be called into question.

To summarize, OSHA will request your written ECP and exposure assessment, so make sure they are both rock solid. If you have yet to prepare a written ECP or conduct an exposure assessment, do so as soon as possible.

How will OSHA evaluate my exposure assessment?

After requesting your exposure assessment, OSHA will likely take their own samples from a few of the most exposed employees and compare your exposure assessment against the tasks identified in your ECP to ensure you have sampled all tasks. If your previous exposure assessment had employees above the PEL or Action Level, OSHA will verify you are conducting routine monitoring, which is required every three months for employees exposed above the PEL and six months for employees above the Action Level.

OSHA may call the quality of your exposure assessment into question if your assessment indicates much lower exposure than the samples they collect. OSHA will examine your sampling strategy in detail, and guidance specifically identifies the following sampling strategies for citation:

  • Using area samples instead of personal samples;
  • Not covering the entire exposure period; and,
  • Not sampling representative employees expected to have the highest exposure.
 

The guidance is replete with citation recommendations for an inadequate exposure assessment.

To summarize, ensure your sampling has been conducted to capture the worst case of exposure for each task. Also, confirm there is no reason the quality of your exposure assessment could be called into question. Lastly, verify the tasks identified in your ECP match the tasks you sampled as part of the exposure assessment.

How will OSHA inspect regulated areas?

If there is an area in your facility where exposures are known to be above the PEL, you must mark those off as regulated areas and prohibit entry by personnel who are not protected by a respirator. OSHA will ensure that you have marked off these areas and posted appropriate signage. OSHA will observe the regulated area to find out if employees are entering without a respirator, and may also interview employees as to why they enter a regulated area as part of this determination.

You should verify that you are keeping personnel who don’t belong in a regulated area out of that area and ensure respirators worn in the area sufficiently protect employees.

How will OSHA enforce the requirement to use engineering controls?

One of the largest hurdles created by the silica regulation was the requirement to use feasible engineering controls to lower employee exposure. Respirators may be used, but only while developing engineering controls, and only beyond this if the controls were insufficient.

If your facility has employees exposed above the PEL, OSHA will inspect your engineering controls to see if you have implemented all feasible control options. When checking for “feasible” controls, OSHA will accept the following evidence:

  • Results of past control efforts;
  • Evidence of the use of widely-recognized control measures; or,
  • Air monitoring results from before and after controls were implemented.
 

If requested, facilities should provide evidence that the feasible engineering controls have been implemented.

OSHA will also check to see if the controls are being maintained and used properly, and may issue citations if these conditions are not met.

In summary, prepare evidence demonstrating the engineering controls you have adopted are feasible. The best evidence is sampling data showing a reduction in employee exposure after implementation. If you have not yet established engineering controls to lower employee exposure to below the PEL, initiate this process as soon as possible.

How will OSHA inspect housekeeping protocols?

In effort to reduce employee exposure to silica due to housekeeping activities, silica regulation prohibited the practice of dry sweeping and brushing, as well as the use of compressed air for housekeeping. Alternative practices, such as wet cleaning and HEPA vacuuming, are encouraged.

Compounding the importance of preparing a quality ECP, OSHA inspectors are instructed to first ensure housekeeping protocols are documented in the employer’s ECP. OSHA will also interview employees about the housekeeping methods they use. It will be important to ensure employees are not using dry cleaning methods or compressed air for housekeeping. All of the alternative housekeeping practices adopted should be documented in the ECP.

Where do I go from here?

The silica regulation is now enforceable at the federal level. Based on the guidance provided to inspectors, the ECP and exposure assessment will be under intense scrutiny. Employers should be 100% confident in the quality of their ECP and exposure assessment. Also, employers will need to have evidence the engineering controls in place to lower exposure to below the PEL are feasible. Air sampling data from before and after control implementation appears to be the most reliable method to provide this evidence.

To reiterate: if your facility has not yet prepared an ECP or conducted an exposure assessment, do so without delay. The quality of these documents will heavily influence the results of an inspection.


Thomas R. Giffin is a Compliance Manager at August Mack Environmental, Inc. in the Indianapolis, Indiana office. He offers industry experience in OSHA compliance including safety auditing, program development, training, and ergonomic assessment, as well as environmental compliance assistance such as SARA 312 (Tier II) reporting. Thomas is a Certified MODAPTS Practitioner, and earned a Bachelor’s Degree in Natural Resources and Environmental Management from Ball State University. Thomas can be reached at 317.721.0699 or via email at tgiffin@augustmack.com.


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