The ICPI and CISC sent a letter to the Acting Secretary of Labor, Edward C. Hugler on March 8th requesting a one year delay on implementation of the silica rule for construction. The rule enforcement is scheduled to commence on June 23, 2017. The letter outlines that CISC member companies are experiencing significant difficulties in attempting to comply with the rule.
“ These challenges are compounded by OSHA’s failure to issue meaningful guidance on several key aspects of the standard. The delay is necessary to protect construction industry employers from citation based upon a standard that is infeasible and unworkable in the industry. The rule imposes burdensome ancillary requirements regarding exposure assessment, respiratory protection, medical surveillance, hazard communication, recordkeeping, and housekeeping.
OSHA adopted in the final rule what it thought would be a workable compliance option for meeting the PEL in construction – “Table 1.” Table 1 sets forth 18 specific construction “equipment/tasks” and describes the engineering and work practice control methods and respiratory protection required for those tasks. When employers follow the procedures exactly as they are outlined in Table 1, OSHA asserts that they do not have to comply with the PEL or follow the exposure monitoring requirements.
Construction employers are facing an extremely challenging compliance problem. They cannot use Table 1 for many tasks, and thus have to follow the traditional method of measuring exposure and implementing the hierarchy of controls to achieve compliance. This is almost impossible, however, considering the myriad of exposure environments involved in construction and that laboratories may not be in compliance with the analytical requirements of the standard until 2018, in addition to the uncertainty and delays described above. OSHA is in effect requiring construction employers to “guess” as to the effectiveness of controls and “hope” that they meet an unattainable PEL.
OSHA has also not developed important guidance on how it will interpret and enforce key provisions of the rule. In particular, OSHA has not indicated how it would conduct enforcement actions in construction given the significant exposure variability that is present. Numerous commenters to the rulemaking record testified that in order to ensure a PEL of 50 µg/m3 is met in construction activities, a construction employer would need to target 25 µg/m3 or even significantly below that due to exposure variability. Failure to do so would open an employer to citation because on any given day exposures may be higher and that could be the day that OSHA is on site and conducts sampling.
For these, and other reasons, the CISC respectfully requests that OSHA delay for one year any enforcement of the standard in construction. The compliance deadline is fast approaching and the industry is seeking immediate relief from compliance with the rule that is – as expected – completely unworkable. As you know, OSHA has in the past granted similar delays to enforcement to allow affected stakeholders additional time to understand and implement a rule.”
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