OSHA to Focus on Crystalline Silica, Confined Spaces and I2P2
The Department of Labor (DOL) on July 3 released its spring regulatory agenda outlining the activities of its sub-agencies for the remainder of 2013, including OSHA. The regulatory agenda lists the priorities of the administration and the rulemakings they expect to release this year; however, OSHA is not required to adhere to the timeline.
Crystalline Silica Exposure: OSHA continues to move forward with a proposed rule which would alter the permissible exposure limits for crystalline silica dust. The proposed rule not only would lower the exposure limits, but also set new requirements on engineering controls and regulated areas. The agenda lists the proposed rule for July; it has been under review at the Office of Management and Budget (OMB) since Feb. 11, 2011.
ABC and the construction industry continue to express concerns about the economic and technological feasibility of compliance with such changes and the possibility of inconsistency or conflict with other federal regulatory requirements.
Confined Spaces: A final rule on confined spaces in construction is expected to be released in December, which is a change from the previous agenda which listed a release date of July. In the early 1990s, OSHA issued a rule to protect employees who enter confined spaces for general industry, but did not extend it to construction because of the unique characteristics of the industry’s worksites. A 2007 settlement then caused OSHA to issue a separate proposed rule for construction workers in confined spaces.
In 2008, ABC testified at an informal hearing, asking OSHA to incorporate existing standards instead of choosing to adopt an entirely new standard.
Injury and Illness Prevention Program (I2P2): According to OSHA’s agenda, a proposed rule on I2P2 will be issued by January 2014. The proposed rule would require employers to implement internal safety programs that “find and fix” workplace hazards on a rolling basis under penalty of enforcement. The I2P2 proposal could result in significant costs and compliance burdens and could lead to “double-dip” citations (once under existing rules and once under the new requirements).
Before a proposed rule can be issued, OSHA must first conduct a Small Business Regulatory Enforcement Fairness Act Small Business Advocacy Review Panel of I2P2. On the previous agenda a panel was listed to convene in January, however, no steps have been taken to conduct the panel and no alternate date was issued in the spring agenda. The review process, which is intended to gather information from small businesses about the impact of the rule, takes 90 days to complete.
Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602