Monthly Archives: February 2014
America's workforce is becoming increasingly diverse in both gender and ethnicity. In 2010, women represented 47 percent of the U.S. labor force, according to the U.S. Department of Labor, and they are expected to account for 51 percent of the increase in total labor force growth between 2008 and 2018. Furthermore, the U.S. Bureau of Labor Statistics projects that the share of Hispanics in the U.S. workforce will more than double from 11 percent in 2000 to 24 percent in 2050, as will the share of Asians, from 5 percent to 11 percent in the same period.
As the trend in workforce diversification continues, attention should be paid to providing the personal protective equipment that fits individuals properly for the best protection and performance. For most types of PPE, including gloves, clothes, or boots, selecting from traditional sizing is sufficient. However, due to the significant variances in facial structure among men and women across various ethnicities, safety eyewear is one of the hardest types of PPE to fit--and few safety managers are trained in fitting it properly.
The risks of providing workers with ill-fitting eyewear are significant. Gaps in coverage allow debris to enter the eyes, while slipping, fogging, and soreness contribute to worker distraction, loss of productivity, and even the removal of eyewear. Considering that approximately 90 percent of eye injuries are preventable through the use of proper protective eyewear, it is important not to underestimate the value of achieving the best possible fit for each individual worker. This article looks at new ways safety eyewear is delivering improved fit to support safety eyewear compliance and reduce the more than 700,000 recordable eye injuries that occur in our nation annually.
One Size Does Not Necessarily Fit All While advances in both national safety standards and the manufacture of safety eyewear have had a positive impact on accident rates, much room for improvement remains. Awareness about the impact of ill-fitting eyewear is growing, and in recent years special attention has been given to addressing the fitting requirements of today’s diverse workforce. In-depth research and development have led to refined eyewear designs that take into account differences in the height, width, or location of cheekbones, nose bridges, and ears, as well as overall head size and shape.
Especially in high-hazard workplaces, safety managers recognize the importance of providing gap-free eye protection. But, remember, a style that provides a snug, gap-free fit for one worker may be an ill-fitting and hazardous choice for another. If your workforce includes a mix of men and women from different ethnic backgrounds, one size or style of eyewear may not keep everyone safe. New designs in eyewear based on in-depth research of facial profiles have led to cutting-edge styles that fit up to 85 percent of workers right out of the box, with no adjustments required. For the rest of the workforce, follow the tips below to find the style and size that are right for each individual.
Finding the Proper Fit Sizable gaps between an individual’s face and eyewear, which allow debris to enter the eye area, are a leading cause of eye injuries. Many employers wait until eye injuries reach an unacceptable level before making changes to their safety eyewear policy. Progressive employers, however, recognize the value of ensuring the best-fitting eyewear for each individual from the start. Personal fit testing across the workforce is an effective way to ensure that the maximum allowable gap is not exceeded.
Once fit testing has been conducted, a good place to start is by considering eyewear with adjustability features. Adjustments at the temples can help to close facial gaps and provide a customizable fit. Some ratcheting temples also can adjust the lens angle for optimal coverage and air circulation. New hybrid eyewear designs offer interchangeable temples, headbands, and sealed options for increased, gap-free performance similar to that of a goggle.
Other alternatives for improved fit include styles with advanced materials or designs. For instance, eyewear with a flexible or fingered nosepiece can conform to various nasal profiles to help fit an array of nose bridge sizes. To eliminate sore spots and slipping, look for padded temples that provide ideal tension and flex, as well as cushioning delicate areas around the ears. If eyewear is to be worn in combination with other forms of PPE, a thin temple profile will cut down on bulk and sore spots underneath hard hats. Another design option to consider is a flexible brow bar atop floating lenses, which can ensure an accurate, gap-free fit without compromising peripheral optics.
Despite the fact that women comprise nearly half of the labor force, they remain an underserved segment of the protective eyewear market. To meet the unique fit requirements of female workers, whose heads tend to be smaller and narrower than men's, look for styles that are available in slim or small sizes. Adjustability and flexibility features also will help women achieve a more secure, gap-free fit for all-day protection and comfort.
Ventilation and Coatings Contribute to Fog-Free Vision While a secure, gap-free fit is optimal for keeping debris out, it can lead to fogging. Fogging commonly occurs when an individual's body generates heat from exertion, when transitioning between extreme temperatures, or simply from working in humid environments. When a worker's vision is blurred by fog, he or she is vulnerable to injury. Furthermore, to combat fogging, a worker may temporarily remove eyewear to wipe it dry or, worse yet, choose to leave it off to avoid obscured vision.
In hot and humid conditions, look for safety eyewear with built-in ventilation to combat condensation. Some styles incorporate air vents as an integral part of the frame; this can help to promote air flow and reduce fogging while still maintaining a secure fit. Advanced anti-fog coatings are also effective at promoting clear vision even in extreme environments, while anti-fog wipes are a good option for on-the-spot fog removal. Remember, the less often workers are distracted by their PPE, the more productive they can be.
Less is Not More Skimping on the cost of safety eyewear may appear to save money up front. When it comes to eye safety, however, paying a little extra for high-quality preventive measures can save a company from substantial, unplanned, and usually preventable costs. Statistics from injury and illness reports filed with OSHA show that companies that establish safety and health management systems can expect reductions in injury and illness costs by 20 to 40 percent and see a return of $4 to $6 for every dollar invested. That small investment can go a long way toward supporting a healthy eye protection program.
Also worth considering is the hypothetical example from the International Safety Equipment Association that illustrates how an eye injury that cost a company nearly $1 million could have been prevented with a $5 pair of safety spectacles or a $10 pair of goggles. Once an employer considers the cost of properly protecting workers’ eyes versus paying for a workplace eye injury, the decision to purchase high-performing safety eyewear becomes an easy one to make.
The Importance of Style Style should not be overlooked as a leading factor in safety eyewear compliance. Studies show that workers who are not comfortable with the style of their eyewear are more likely to remove it, even in the presence of hazards. Furthermore, when workers are allowed to select their own safety eyewear without the proper guidance, they are likely to make their selection based on style over safety or fit, which can lead to serious performance problems.
Given the leading role style plays, look for modern, lightweight options, such as sports-inspired wraparound frames, floating lenses, or sophisticated metal frames. Many safety eyewear styles--including Rx frames--are fashioned after popular recreational sunglass designs, and some manufacturers offer licensed styles to promote adoption. The goal is to find safety eyewear that workers are willing to wear even when a safety manager isn't looking. By first offering safety eyewear that is best suited to workers' safety needs, followed closely by style, employers can support a stronger culture of acceptance and compliance.
In America's increasingly diverse workforce, it is more important than ever to outfit individuals with properly fitting safety eyewear. Employers should beware of the one-size-fits-all approach that has plagued the workforce for decades and instead should consider the advanced materials, customizable features, and modern styles that deliver the fit and protection every individual deserves. By making informed eyewear selections, employers not only improve employee comfort, productivity and safety, but they also significantly reduce the risk of costly eye injuries. That's a winning strategy that works for everyone.
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Roy Wright, FEMA's deputy associate administrator for mitigation, explains how and why new flood maps are created in an infographic featured in a new blog post from the agency.
He writes that helping homeowners and communities be prepared for disasters is "one of our top priorities at FEMA. When you know your risk, you can prepare for the worst, take steps to mitigate against hazards, and protect yourself, your family and your property."
And floods are the most expensive disaster in the United States every year, he writes: "Flood maps play a vital role in helping us prepare for flooding by informing communities about the local flood risk. Flood maps help communities to incorporate flood risk into their planning. They're also the basis for flood insurance rates through the National Flood Insurance Program, which FEMA administers at the direction of Congress. By law, you may be required to get flood insurance if you live in the highest risk areas. But flooding can happen anywhere -- about 20 percent of all the flood claims come from areas with lower risk. And you don't have to live close to water to be at risk."
Updating a flood map can take 3-5 years or more. FEMA's Risk MAP program develops them "using the best available science [and] analyzed by some of the leading engineering firms in the field. The mapping standards are published, vetted, have been peer reviewed, and are updated continuously to ensure they are aligned with current best practices," he writes.
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Six practical tips and strategies for employers in virtually any industry
As many employers know, OSHA penalties can be costly. For this and many other reasons, upon receiving an OSHA citation, employers should consider their rights and resist any temptation to simply pay the citation and move on to “more important” things.
But many employers never even receive an OSHA citation. Why is this? Is it luck? Or is it because the employer implemented well-thought and planned systems and strategies specifically designed to promote the health and safety of its workers while, at the same, minimizing if not entirely eliminating OSHA liability and exposure? This article asserts it is likely the latter — and provides six practical tips and strategies that employers in virtually any industry may implement.
Tip 1: Perform a Self-Assessment
It may seem obvious, but the first step to minimize any future OSHA liability is to focus your attention on what OSHA cares about: safety. Take an in-depth look at your organization and assess how you are doing in terms of workplace safety. For example, have you received any OSHA citations? What have you done to prevent future citations? Do you have a comprehensive written safety and health program, and is the program effective? In other words, have your safety policies and procedures been communicated to your employees, and are your employees following them? Has there been an increase or decrease in workplace injuries, if any? These are all critical questions. This is the starting point.
Tip 2: Create and Implement an Effective Safety and Health Program
It is critical that you create an effective written safety program, one that addresses (at a minimum) the safety hazards your employees are most likely to face on a daily basis. Also important is communicating the program policies and procedures to your employees, providing employees with safety training, conducting workplace inspections to ensure compliance, and disciplining employees for any misconduct. Moreover, everything must be in writing, documented, and records must be maintained. This would include, for example, distributing all work rules to employees in writing, maintaining any sign-in sheets generated in connection with any safety training, and maintaining all disciplinary records. Be of the mindset: if it is not written down, it did not happen.
OSHA’s “Safety and Health Program Management Guidelines” (published in 1989) provide further guidance on creating an effective safety plan. In addition, OSHA makes examples of different safety plans, applicable to different types of workplaces, available to the public.
Tip 3: Be Prepared for an Inspection
OSHA inspections are conducted by a compliance safety and health officer (CSHO) and are usually not conducted with any advance warning to the employer. Prior to showing up, the CSHO will have already researched the inspection history of the particular site and reviewed the operations and processes in use and the standards most likely to apply. In short, the CSHO will be prepared — to the extent you can, you need to be prepared too. One way to do this is to designate one employee (most likely, a safety employee) to be the company representative for the inspection. This person will accompany the inspector wherever he or she goes. As a result, there will be one consistent “voice” on behalf of the employer.
Having a good representative is critical, especially considering that anything the representative tells the inspector may later be used as evidence against the company. It is also important to know and exercise your right to duplicate any tests conducted by the inspector during the inspection and/or to take your own photographs and/or measurements. Also, it is important to take down detailed notes during the inspection, because they may prove critical during negotiation as well as in developing safety programs to avoid potential violations in the future.
Finally, OSHA requires that all employers maintain certain types of records. Make sure these records are in fact maintained and easily accessible.
Tip 4: Know Your Rights and the Process
Having a basic understanding of the OSHA process is critical since many of your rights may be lost if you fail to comply with certain rigid time deadlines. For example, if you decide to contest a citation, you must submit a Notice of Intent to Contest (often called a “Notice to Contest”) in writing to the OSHA area office within 15 working days of your receipt of the citation. The Notice to Contest must clearly state what is being contested (e.g., the citation, the penalty, and/or the abatement date) and must be made in good faith. If you do not comply with this time deadline, your right to contest the citation will be lost — the citation will be final.
Another important right upon receipt of a citation is to request an informal conference with the OSHA area director. An informal conference must be held within 15 working days of your receipt of the citation. (This is the same deadline as for contesting a citation.) It is important to keep in mind that requesting and/or appearing at an informal conference will not extend the time you have to contest the citation.
Informal conferences are popular and may be extremely useful because they present an opportunity at an early stage of the process to negotiate a penalty reduction, extension of abatement dates, deletion of violations, and/or reclassification of violations. Reclassification of a violation to a less severe violation can impact not only on the amount you currently pay in penalties, but also on any future penalties. For example, if you later receive another citation for the same initial violation, you will not receive a “repeat” violation (which could cause higher penalties). While it is still technically possible that reclassification of violations may still occur without an informal conference, the informal conference is the most efficient, and often preferred, way to negotiate this.
Tip 5: Evaluate Potential Defenses
It is also important to have at least a basic understanding of certain procedural and substantive defenses to citations. Indeed, some popular defenses include: (1) the wrong employer was cited; (2) unpreventable employee misconduct; (3) vagueness of the standard; (4) no hazard exists; (5) duplicative citations; (6) greater hazard posed by compliance; (7) impossibility/infeasibility of compliance; (8) allocation of responsibility by contract; (9) violation not within the scope of employment; and (10) new citation not “substantially similar” to prior citation (if cited for a “repeat” citation).
The unpreventable employee misconduct defense warrants special discussion. Indeed, if you can establish that an employee’s violative conduct was unknown to the employer and in violation of an adequate work rule which was effectively communicated and uniformly enforced, then no citation should be issued. This underscores the importance of not only establishing a comprehensive and effective safety plan, but also communicating the plan to employees and inspecting the site and enforcing the plan.
Tip 6: Take Advantage of OSHA Programs
OSHA offers a number of different programs that may be helpful. For example, participation in a Voluntary Protection Program (VPP) may lead to a decline in injury and illness rates, which may lead to lower Workers’ Compensation premiums and insurance rates. In addition, OSHA’s On-site Consultation Program offers free and confidential advice to small and medium-sized businesses. These services are separate from enforcement and do not result in penalties or citations. Indeed, consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with OSHA standards, and assist in establishing injury and illness prevention programs. No citations are issued and your identity is confidential. However, you will be obligated to correct any serious job safety and health hazards that may exist. Other programs also exist and may be investigated.
As the above should make clear, when it comes to OSHA, it is of critical importance to provide for more than “an ounce of prevention.” By seeking to incorporate the above strategies, the dual purpose of promoting safety and minimizing exposure will be served, all to your benefit and the benefit of your employees.
Michael Rubin is special counsel in the OSHA and Worksite Safety Practice Group at the law firm Goldberg Segalla. He has defended clients in a wide variety of general liability matters, including construction site accidents and environmental claims. A speaker on OSHA compliance, he has completed the Department of Labor’s OSHA-10 construction training. He may be reached at email@example.com.
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Rule "probably not entirely technologically feasible" for all employers
January 31, 2014
The Honorable David Michaels Assistant Secretary Occupational Safety and Health Administration U. S. Department of Labor 200 Constitution Avenue, NW Washington, DC 20210
RE: ASSE Comment on the OSHA Proposed Rule Occupational Exposure to Crystalline Silica (Docket No. OSHA-2010-0034)
Dear Assistant Secretary Michaels:
The American Society of Safety Engineers (ASSE) is pleased to submit the following comments concerning the Occupational Safety and Health Administration’s (OSHA) Proposed Rule Occupational Exposure to Crystalline Silica published in the September 12, 2013, Federal Register (78 Fed. Reg. 56273). This is an issue that will significantly impact the ability of workers to return home from work each day healthy, of employers to be able to reasonably carry out their business without unnecessary burdens, and of safety, health and environmental (SH&E) professionals to be able effectively to assist both in achieving effective protections from crystalline silica risks.
As you know, ASSE is the oldest and largest society of safety professionals in the world. Founded in 1911, ASSE represents over 35,000 dedicated safety, health, and environmental (SHE) professionals. Our members are experts in managing workplace safety and health issues in every industry, in every state and across the globe. They belong to one or more of ASSE's 20 practice specialties, many of which will be affected by this rulemaking. ASSE is also the Secretariat for various voluntary consensus standards related to best practices in occupational safety and health, including the Z10 standard for Safety and Health Management Systems.
Silica dangers known since the time of the ancient Greeks
ASSE commends OSHA for addressing this issue through rulemaking in an effort to further reduce the incidences of occupational illnesses such as silicosis and cancer in general industry, maritime and construction work. While some may debate the science underlying the findings set forth in the proposed rule, overexposure to crystalline silica has been linked to occupational illness since the time of the ancient Greeks, and reduction of the current permissible exposure limit (PEL) to that recommended for years by the National Institute for Occupational Safety and Health (NIOSH) is long overdue. In 2011, ASSE formally requested to the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) that it release the pending silica proposal for public comment so that all stakeholders could participate in the discussion about appropriate rulemaking, including safety and health professionals who are already working with employers to protect workers from silica risks in cost-effective, practicable ways.
In short, requiring implementation of feasible engineering and administrative controls, improved medical surveillance and proactive exposure monitoring in situations where exposures above the PEL can be anticipated is a reasonable approach and is generally consistent with the recommended best practices established in the ASTM E1132 Standard Practice for Health Requirements Relating to Occupational Exposure to Respirable Crystalline Silica, (general industry) and the ASTM E2625 Standard Practice for Controlling Occupational Exposure to Respirable Crystalline Silica for Construction and Demolition Activities.
ASSE supports the goals
ASSE supports the goals for this rulemaking and will remain involved throughout the hearing and post-hearing period when further technical comments may be offered. In this, our initial submission, ASSE provides specific comments that we urge OSHA to take into consideration in drafting a final rule. The agency has posed nearly ninety questions for commenters to consider, and many of these are beyond the scope of ASSE’s ability to respond because they seek site-specific information and data that only can be provided by individual employers or employee representatives.
Similarly, although OSHA has provided a great deal of scientific and epidemiological information on the potential health effects of overexposure to crystalline silica, we will not be commenting at this time on the validity of these studies. While commenters on both sides will no doubt argue about which studies should be given more or less weight, it is indisputable that overexposure to respirable crystalline silica presents risks of silicosis. In 1997, the International Agency for Research on Cancer (IARC) classified silica as a Group One human carcinogen. Despite ongoing emphasis inspection programs conducted by OSHA since that time, and education of workers through the hazard Communication Standard (29 CFR 1910.1200), employees are still being diagnosed with silica-related occupational illnesses and overexposures to the current 100 µg/m3 limit continue to occur with disturbing frequency. More is needed to protect the health of our nation's workers.
Two million workers covered
The proposed rule would lower the PEL to 50 micrograms per cubic meter of air (µg/m3), which is 50% of the current PEL and consistent with the NIOSH REL. OSHA has also proposed an action level of 25 µg/m3, which is consistent with the Threshold Limit Value (TLV) set by the American Conference of Governmental Industrial Hygienists (ACGIH). The proposed rule covers the three forms of crystalline silica – quartz, cristobalite, and tridymite – and applies to general industry, maritime, and construction. According to the OSHA proposed rule, the final rule would affect over 2 million workers, and the agency’s risk assessment links overexposure to respirable crystalline silica to health conditions that include lung cancer, silicosis, chronic obstructive pulmonary disease, and autoimmune disorders.
What the rule would require
The proposed rule not only aims to enforce significantly lowered action and permissible exposure levels (PEL) but also places on operators increased requirements for administrative and engineering controls as well as exposure monitoring, medical surveillance, and implementation of “best practices.” A key issue surrounds currently utilized sampling methods, which may not have precision down to the 25 µg/m3 action level – the level that triggers many of the rule’s requirements – but OSHA indicated that the standard is intended to be “technology forcing.” We support OSHA's position of providing some lead time for laboratories to obtain necessary accreditation. Doing so will help ensure the accuracy of the sampling and analysis of silica samples that will be used to benchmark compliance and trigger some of the rule’s requirements. A failure in this area could leave the rule susceptible to legal challenge and could result in further delays in worker protections.
Under the proposed standard for general industry, employers must perform initial monitoring of employees “who are, or may reasonably be expected to be” exposed to crystalline silica at or above the action level of 25 µg/m3. For those general industry operators already testing for crystalline silica exposure, the previous testing may suffice for the proposed initial monitoring proposed above, and we agree with this approach. The requirement for initial monitoring is satisfied if the employer has monitored employee exposures in the twelve months before the standard’s effective date or has “objective data” that demonstrates that respirable silica “is not capable of being released at or above the action level under any expected conditions of processing, use or handling.” “Objective data” is defined as “monitoring data from industry-wide surveys or calculations based on the composition or chemical or physical properties of a substance.”
However, where the initial monitoring shows that exposure is above the action level but below the PEL, the monitoring must be repeated every six months. If the initial monitoring shows exposures above the PEL, repeat monitoring must be done every three months until two consecutive tests show exposure below the action level. Additional assessments are required “whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional exposures at or above the action level.” This is a reasonable approach, consistent with sound industrial hygiene practices.
Alternative approach for construction industry
The proposal for construction provides for a similar assessment of employee exposure but provides an alternative approach – “task based control strategies” – for certain operations that ASSE believes should similarly be allowed in general industry. For these operations, the employer, instead of assessing employee exposure, may implement specified equipment safeguards and work practices. If the equipment and work practices are implemented, the employer is not required to assess employee exposure. ASSE urges OSHA to consider taking a similar approach, perhaps in a non-mandatory appendix, for common job classifications in general industry and maritime that are known to have historically high silica exposures so that smaller employers can be guided as to what types of controls will be most efficacious.
In the proposal, OSHA proposes a hierarchy of mandating engineering and workplace controls over simply providing personal protective equipment (PPE) such as respirators, and it specifically bars job rotation as a method of attaining compliance. For tasks that involve some levels of silica exposure but are performed in an infrequent basis, job rotation may be warranted as an alternative to other, more burdensome, engineering or administrative controls. We urge OSHA to reconsider this issue, especially given the fact that every person on earth is exposed to some degree to crystalline silica as a main constituent of the planet's crust and due to its presence in so many construction materials. While ASSE appreciates the goal of limiting the number of employees exposed to toxic chemicals generally, crystalline silica provides a unique situation when compared to chemicals such as benzene and toluene.
The proposed rule states that “the employer shall use engineering and work practice controls to reduce and maintain employee exposure … to or below the PEL unless the employer can demonstrate that such controls are not feasible.” The employer is responsible for implementing the controls to reduce exposure to the “lowest feasible level” and supplementing with use of respiratory protection. In addition, both the general industry and construction standards require that, whenever an employee’s exposure “is or can reasonably expected to be in excess of the PEL,” the employer must establish either a “regulated area” or have a “written access control plan” to limit persons who may enter, and require certain protections (e.g., respirators, protective clothing or removal of dust from contaminated clothing) for any persons who do enter the restricted area. While ASSE generally supports this concept, there will be practical issues with implementation on small short-term construction worksites, and ASSE urges OSHA to take into consideration the comments of construction employers in determining how best to address this issue.
Medical monitoring requirements
OSHA has included in the proposed rule medical monitoring requirements for any worker exposed to heightened levels of crystalline silica. The proposed rule states that medical surveillance must be provided for each employee who will be exposed above the PEL for 30 days or more per year at no cost to the employee. The surveillance program includes an initial baseline exam within thirty days of initial assignment and repeat exams every three years or more frequently if recommended by a health care provider. ASSE supports this requirement but urges the agency to address in a final rule how this requirement addresses contingent workers who may move from one job to another, never staying for a full 30 days, but consistently having silica exposure.
The proposed rule stipulates requirements and provisions regarding laboratory testing and record keeping of exposure data. The proposed rule requires operators to retain accredited laboratories to analyze samples. Additionally, operators will also be required to maintain complete records and materials such as samples, reports, and medical surveillance records related to respirable crystalline silica exposure. This is appropriate, and exposure and surveillance data should be readily available to workers and, where applicable, to employee representatives. Records should be permitted to be stored electronically to ease paperwork burdens.
The rule’s preamble makes quite frequent reference to the American Society for Testing and Materials (ASTM) standards for general industry (E1132) and construction (E2625), which dictate best practices but do not include an occupational exposure level. It may be beneficial to incorporate by reference one or both of these consensus standards, consistent with the OMB Circular A119 and the Technology Transfer Act of 1995, or at least include relevant portions in OSHA guidance information.
To the specific questions OSHA poses in the Proposed Rule, ASSE provides the following comments:
To the specific questions OSHA poses in the Proposed Rule, ASSE provides the following comments:
Has OSHA adequately identified and documented all critical health impairments associated with occupational exposure to respirable crystalline silica?
OSHA has done a thorough job of compiling and reviewing key studies as part of its risk assessment, and identifying potential health effects related to occupational exposure to respirable crystalline silica, but it is clear that more research will be needed to scrutinize the correlation in some areas (e.g., the link between silica and autoimmune disorders). Because NIOSH is designated in the Occupational Safety and Health Act of 1970 as the agency to conduct research on occupational health to guide OSHA’s regulatory decisions, this would be the logical governmental entity to conduct further studies in this area. Adequate funding should be made available to NIOSH for this purpose.
17. Is the proposed rule technologically feasible?
As written, the proposed rule is probably not entirely technologically feasible for all employers. OSHA itself admits that even following the steps in Table 1 may not result in construction exposures below the rule's limits. Given the number of employers who currently do not meet the 100 ug/m3 PEL, many will likely have trouble complying with the new PEL, much less the action level, from an economic standpoint as well. However, given that the proposed rule is viewed as a technology forcing standard, OSHA should continue to monitor new technological advances to determine ultimately this issue. Technological and economic infeasibility is likely to be the subject of many affirmative defenses to silica citations in the future.
23. Are there particular outreach materials that would make compliance easier?
Including non-mandatory appendices in the final rule will be useful in providing guidance for employers on subjects such as exposure monitoring and medical surveillance, but more will be needed. OSHA has done a commendable job so far in its outreach efforts for the GHS/HazCom final rule, and this same approach can be used for silica. Web-based materials in a number of languages will be needed, but written collateral materials (also multi-lingual) also will be needed to reach and assist the smallest employers who may not have ready access to electronic technology, particularly in the construction sector. Outreach alliance partners should be actively sought by OSHA in advance of promulgating the final rule.
26. Do you believe that improved outreach and enforcement of the existing PELs would be sufficient to reduce significant risks of material health impairment in workers exposed to respirable crystalline silica?
ASSE is aware that there is a line of argument that the incidence of disease is due to employers’ failure to comply with current PELs and/or OSHA’s failure to enforce these limits. The issue is further complicated by the long latency period of chronic silicosis and lung cancer, which suggests that current cases predate many of the existing and common control methodologies now in use to lower exposures. ASSE believes that the body of scientific literature lends support for reducing the PEL to the proposed limit. However, during the years to come as this rule is finalized, potentially adjudicated and phased in, OSHA should continue educational outreach and reasonably considered enforcement through ongoing silica-based emphasis programs for affected industry sectors.
31. Should OSHA modify the scope to limit the construction standard to specific construction operations, as opposed to covering all occupational exposures in construction work?
ASSE supports the proposal to cover all silica exposures in construction work rather than limiting compliance to specific operations.
35. Should there be specific requirements for training of a competent person relating to establishment of an access control plan?
ASSE urges the development of specific competent person training for persons who design and implement an access control plan that exempts prior relevant training (e.g, an OSHA 30-hour course) or persons holding nationally accredited occupational safety and health certifications such as the Certified Safety Professional (CSP) or Certified Industrial Hygienist (CIH).
38. Is the proposed PEL appropriate, given that it will reduce but not eliminate significant risk of material health impairment?
Yes, as this is the lowest limit currently feasible for enforcement purposes.
40. Is the action level of 25 ug/m3 appropriate to be included in the final rule?
43. Has OSHA defined "objective data" sufficiently for an employer to know which data can be used?
The qualitative data that employers should be able to use to meet the "objective data" criterion, should include: information from manufacturer/distributor Safety Data Sheets (SDSs) for the silica-containing product or material; prior sampling information for the affected job classifications; likelihood of dust generation in light of the processes used and environmental factors (wind strength and direction, etc.); proximity of airborne dust to the workers; and the nature of the industrial process, and whether it is wet or dry. In some cases, an employer should be permitted to use historical aggregated sampling data throughout the company for pertinent job classifications where there is a commonality in terms of processes and equipment. Where such objective data indicate that a risk of overexposure is present, sampling of tasks or representative worker exposures should be conducted.
44. Should periodic exposure assessment be done on a fixed schedule or should it be performance-based?
Periodic exposure assessment should be performance-based to avoid imposing added expenses for what might be unnecessary testing on a fixed schedule.
50. How would the regulated areas and access control provisions apply at multi-employer worksites?
The host employer or general contractor should have primary responsibility for ensuring compliance with these provisions. If a subcontractor is solely responsible for generating silica exposures that trigger these requirements, that employer must notify the host employer or general contractor in advance of commencing work of the need for regulated areas or access control so that both employers can work cooperatively to ensure compliance and also to notify any other employers on site whose employees may be affected by these requirements.
51. Is protective clothing needed for silica exposures?
No special clothing should be required as crystalline silica does not present a chemical hazard when applied to the skin. Only respiration or inhalation of crystalline silica is a significant health concern. However, employers need to implement programs to assure employees whose clothing is contaminated with crystalline silica do not create exposure issues off the job.
53. Should OSHA require employers to develop and implement written exposure control plans, and what should be in those plans?
Employers with suspected or documented exposures above the PEL should be required to have written exposure control plans, preferably developed by a Certified Safety Professional (CSP) or Certified Industrial Hygienist (CIH). The plan should implement engineering and administrative controls to reduce silica exposures to below the PEL. A root cause analysis should be part of the plan to identify the sources/causes of overexposures. Follow up sampling to ensure the efficacy of further controls should be required.
54. Is the approach taken in Table 1 for construction appropriate and should changes be made?
This is an effective approach and should also be considered for the general industry/maritime standard for commonly performed tasks involving high levels of silica exposure. See also, Tables 1 through 5 in ASTM E2625-09 and Tables 2-6 of ASTM E1132-13 as examples.
56. Should construction employers who comply with table 1 be viewed as in compliance even if they do not ensure compliance with the PEL?
Yes, because following the protective measures in this table can be viewed as akin to implementing all technologically feasible controls and employers who do this should not be cited if exposures remain above the PEL, as OSHA predicts may be the case for tasks such as tuck pointing. In such cases, employee rotation should be permitted to further reduce exposures once the other controls and PPE are utilized.
66. Should the use of compressed air and dry sweeping for cleaning of surfaces and clothing be prohibited?
Generally yes, except where dry sweeping is the only option available. OSHA should also be aware of mobile air shower technology developed for the mining and oil/gas industry in conjunction with NIOSH that is designed to permit safely the use of compressed air for cleaning of employee clothing. Such emergent technology should be deemed compliant in the future under this rule rather than requiring a variance.
68. Should employee rotation be prohibited as a means of achieving compliance with the PEL?
No. See our comments supra.
72. Is the requirement for latent TB testing appropriate?
The requirement for latent TB testing is appropriate, given OSHA's role as a public health agency and considering the potential benefits from early diagnosis and treatment of TB and its impact on the spread of this contagious disease. This requirement is also appropriate given the studies that suggest an increased risk of adverse health effects from silica exposure to workers with TB.
73. Is the requirement for pulmonary function testing initially and at three-year intervals appropriate?
Yes, this requirement is consistent with most credible occupational health programs related to respirable crystalline silica exposure.
74. Is the requirement for chest x-rays initially and at three-year intervals appropriate?
Yes. However, OSHA should also consider what will constitute a finding that is recordable or reportable to the agency as constituting a diagnosis of silicosis. The Mine Safety and Health Administration (MSHA) requires reporting of a 1/0 reading by a B-reader to be a presumptive diagnosis, although the employer can get a second opinion at its own expense.
77. Is exposure for 30 days from initial assignment, at or above the PEL, the appropriate number of days to trigger medical surveillance?
For stable workforces, this would be appropriate. However, ASSE is concerned that many contingent or temporary workers as well as workers misclassified as contractors may be deprived of full protection under such a system.
80. Should there be medical removal provisions in the final rule?
No, we agree with OSHA's position that this would provide little benefit.
81/82. Should additional training beyond HazCom training be required for those working with respirable crystalline silica? Should warning labels be changed?
No, full compliance with the newly revised GHS/HazCom rule should be adequate.
84. Are the record keeping requirements for air monitoring, objective data, and medical surveillance appropriate?
ASSE supports consistency with the ASTM silica standards, which provide for retaining these records for at least 40 years or for the duration of employment plus 20 years, whichever is longer, due to the long latency periods of some silica-related illnesses.
Finally, ASSE appreciates the opportunity to comment on this proposed rule. We look forward to continued participation in the process that we hope, in the end, can result in a standard that is consistent with the success our member safety and health professionals have had in helping employers protect workers from respirable silica risks so that all employees can enjoy the same protections.
Kathy A. Seabrook CSP, CMIOSH, EurOSHM President
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Falls are a persistent hazard found in all occupational settings. A fall can occur during the simple acts of walking or climbing a ladder to change a light fixture or as a result of a complex series of events affecting an ironworker 80 feet above the ground. According to the 2009 data from the Bureau of Labor Statistics, 605 workers were killed and an estimated 212,760 workers were seriously injured by falls to the same or lower level.
The highest frequency of fall-related fatalities was experienced by the construction industry, while the highest counts of nonfatal fall injuries continue to be associated with the health services and the wholesale and retail industries. Healthcare support, building cleaning and maintenance, transportation and material moving, and construction and extraction occupations are particularly at risk of fall injuries.
Circumstances associated with fall incidents in the work environment frequently involve slippery, cluttered, or unstable walking/working surfaces; unprotected edges; floor holes and wall openings; unsafely positioned ladders; and misused fall protection. Federal regulations and industry consensus standards provide specific measures and performance-based recommendations for fall prevention and protection. However, persistent unsafe practices and low safety culture across many industries define steady fall injury rates year after year.
Fall injuries constitute a considerable financial burden: workers’ compensation and medical costs associated with occupational fall incidents have been estimated at approximately $70 billion annually in the United Sates [NSC 2002]. Many countries are facing the same challenges as the United States on fall injury in the workplace. The international public health community has a strong interest in developing strategies to reduce the toll of fall injuries.
Successful reduction of fall injury and fatality rates requires continued concerted efforts of regulators and industry leaders, professional associations and labor unions, employers and employees, safety professionals and researchers in enhancing the work environment, implementing new effective fall prevention and protection technologies, and improving the work safety culture through continuous education of the workforce. NIOSH, as the leader in occupational safety research, plays a key role in these complex fall-injury prevention efforts.
Reference: NSC . Report on injuries in America 2002. Itasca, IL: National Safety Council.
Fall-Related Research and Development Activities at NIOSH
Planning and Guidance of Fall-Related Research at NIOSH
The NIOSH fall-injury prevention research strategic planning and goal setting is structured throughout industry sector and cross-sector programs, and takes into consideration the magnitude or emergence of the problem as evidenced by data, immediacy of need expressed by critical stakeholders, current resources and expertise in the goal area, current research, strength of partnerships in current research, and status and momentum on the course of research-to-practice. The strategic planning process has been recently enhanced with input from the National Academy of Sciences program review.
Program contact: Hongwei Hsiao, Ph.D. Protective Technology Branch (304) 285-5910; HHsiao@cdc.gov
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