The Department of Labor recently issued a compliance directive to “ensure uniform enforcement” of OSHA’s silica standard among compliance safety and health officers. This directive comes shortly after OSHA announced a National Emphasis Program for silica in February.
For construction contractors that are familiar with the silica standard, this new compliance directive will likely not appear to be any different from the requirements of the standard. While the Department of Labor chose to present the directive as ensuring uniform compliance, it can also be seen as a reminder of the steps employers need to take.
Since the early days of the standard going into effect, construction contractors have complained that they were unsure of how to comply with the rule. They didn’t understand what to do with non-Table 1 activities (e.g., mortar mixing). They didn’t know whether non-integrated tools (e.g., a bucket of water with a hole to tamp down dust generated by a tool) would be acceptable for Table 1. In my view, this new compliance directive answered what the LHSFNA’s OSH Division has already been helping LIUNA signatory contractors to understand for the last four years. Table 1 needs to be followed fully and properly with all of the required engineering controls, work practice controls and personal protective equipment (PPE) being used. Failure to do so was already likely to invite scrutiny and sampling by OSHA compliance officers. Based on the standard, it was also clear that dust-generating tasks not listed on Table 1 needed an exposure assessment before being performed. In the case of mortar mixing, for example, contractors needed to sample operations and protect workers accordingly.
In short, DOL’s new compliance directive makes it clear that compliance officers will be looking for full and proper compliance with Table 1. When that is not being done, the compliance officer will sample for compliance with the PEL. The same is true for non-Table 1 activities; it doesn’t matter if the employer has sampling data – the compliance officer can still sample the operation to determine compliance. This new compliance directive clears up any gray areas and sets the expectations of compliance officers.
While the compliance directive should eliminate any lingering confusion for contractors over the importance of compliance with Table 1, it also highlights a missed opportunity for contractors to share data or practices in non-Table 1 compliance. As many contractors have pointed out, there are many operations, tasks or conditions that Table 1 does not cover or where following Table 1 is not feasible. In these instances, contractors resort to job-built controls that feature water or vacuums but that are not integrated into the tools generating the dust. In many cases, these controls are effective at reducing silica exposure, but are often not supported with site-specific or objective sampling data. The silica standard offers employers an alternate option to sampling – objective data.
OSHA defines objective data as “information, such as air monitoring data from industry-wide surveys or calculations demonstrating employee exposure to silica associated with a particular product or material or a specific process, task or activity.” The standard allows companies, contractors and organizations to freely share this data. Unfortunately, this is the sticking point stopping this option from being a viable choice for contractors – a lack of available data. Many contractors are conducting sampling but few are sharing data. Some organizations have developed databases to collect data anonymously, but have made little data public. Smaller contractors without the resources to conduct constant sampling – the same contractors more likely to resort to job-built controls for the same reasons – would benefit greatly from the sharing of objective data.
The recently released directive provides clarity on major topics, such as alternative exposure control methods, variability in sampling, multiemployer situations and temporary workers. However, the glaring hole is the lack of any data sharing that would assist contractors with good faith efforts to adequately protect workers from harmful silica dust.