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OSHA standards should be met despite delays

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Employer representatives hope that delays in the enforcement dates of U.S. Occupational Safety and Health Administration regulations issued over the past year are accompanied by better compliance guidance.

But the delays do not mean employers can rest on their laurels, with legal and loss control experts firmly advocating that they continue to work to comply with these regulations as they currently stand, in spite of President Donald Trump’s deregulation efforts, which include an executive order requiring agencies to repeal two existing rules for each new regulation it puts in place.

OSHA announced in early April that it would delay enforcement of its silica standard for the construction industry to Sept. 23 because of the need to provide additional guidance on the silica rule’s requirements. The Occupational Exposure to Respirable Crystalline Silica rule reduces the permissible exposure limit for crystalline silica over an eight-hour shift to 50 micrograms per cubic meter of air for the construction industry, one-fifth of the previous maximum.

This followed the U.S. Department of Labor’s March announcement that it would delay enforcement of its beryllium rule to May 20 to allow it to further review law and policy questions, but the proposed extension will not affect its compliance dates, with employers required to comply with most of the obligations by March 12, 2018, according to the department.

“With respect to the silica and beryllium rules, the important thing is the rules and the enforcement of rules are not stayed,” said Erin Brooks, a St. Louis-based associate with law firm Bryan Cave L.L.P.

“They’re only delayed, so employers should continue to work toward compliance, understanding that there may be additional compliance guidelines in the pipeline.” Beryllium is used in the aerospace, electronics, energy, telecommunication, medical and defense industries, but it is highly toxic when beryllium-containing materials are processed in a way that releases airborne beryllium dust, fumes or mist into workplace air that can be then inhaled by workers, potentially damaging their lungs, according to OSHA. The final rule will reduce the eight-hour permissible exposure limit to 0.2 micrograms per cubic meter from the previous level of 2.0 micrograms per cubic meter.

“Beryllium seems to be one of the rules that is being held in abeyance for further review based on Trump’s recent order,” said Michael Sterling, managing partner of law firm Vandeventer Black L.L.P. based in Norfolk, Virginia. “The silica rule, on the other hand, seems to be a more generic delay where OSHA is trying to make sure they’ve given all the right guidance out to employers.”

Employers could use additional help to comply with the complex, highly technical silica standard for construction, experts say.

“A lot of construction employers are not misrepresenting the facts when they say compliance with the new standard will not be feasible in some, potentially many, settings,” said Howard Mavity, an Atlanta-based partner at law firm Fisher & Phillips L.L.P., noting that these concerns previously have been rejected by OSHA and union representatives.

“I’ve watched good-faith research and experimentation by different universities working with forward-thinking construction companies that want to do the right thing, and they are finding in numerous settings that they can’t comply.” One challenge for employers will be to identify how to manage silica exposures in situations where multiple trades are working in one area and one firm is creating a silica hazard that exposes others, said Andy Giza, assistant vice president and senior loss control consultant with Lockton Cos. L.L.C. in Scottsdale, Arizona.

“From what I see with our clients, they are already actively looking at what these exposures are and understanding that even though rule is not enforceable yet, it’s still in the best interest to control these hazards to protect their workers,” he said.

The silica standard requires employers to either come into compliance with the new permissible exposure limit or implement specific dust controls for certain operations as provided in Table 1 of the standard, which refers to guidance outlining exposure control methods for selected construction operations. Employers who follow these methods are not required to measure workers’ exposure and not subject to the permissible exposure limit.

“Some employers have said, ‘It’s not that big a deal as long as I can meet Table 1,’” Mr. Mavity said. “The problem is it doesn’t cover everything. The second problem is they’re going to find it difficult to comply with some of the requirements to fit within that safe harbor. Many, many construction employers underestimate that.”

OSHA may be able to publish better guidance on what employers can do in specific scenarios, Mr. Sterling said.

But extensive guidance or changes to the silica standard would be challenging because OSHA would have to conduct a new rule-making process to pursue major changes or overturn the rule, and unions and other groups are likely to sue if the standard is not implemented, Mr. Mavity said. “The administration does not have the power to ignore the new exposure limits,” he said.