WHAT YOU NEED TO DO
RENTAL MANAGEMENT – September 2017 – By James Waite, Esq.
Question: I keep hearing all these dire warnings about silica dust, and I understand new OSHA rules are coming out, but I can’t seem to find anything that tells me what I need to do to comply. So, do I actually have to do anything? If so, what? What if I don’t comply?
Answers: Yes, you need to do several things:
Be Sure to Post Signs and Label Your Equipment
1. For Your Employees: The new standard creates a threshold of 25 micrograms per cubic meter of air of average exposure (25 μg/m3) over a single 8-hour shift (the “Action Level”), after which, monitoring is required. If “under any foreseeable conditions” an employee might be exposed to respirable crystalline silica exceeding the Action Level:
a. Post Signs: You MUST Post Signs at all Entry Points to all areas where exposure is likely to exceed 50 μg/m3 (the “Permissible Exposure Limit” or “PEL”) such as areas where returned equipment is cleaned (“Regulated areas”). The new standard for General Industry legally requires you to post signs that include specific language appearing in the statute; and
b. Exposed Individuals: For those who have employees regularly working with equipment that generates silica dust:
I. Table 1 Compliance: The standard for construction activities includes “Table 1” (a table included in the body of the statute which specifies exposure control methods for 18 items/practices). The specified exposure control methods effectively serve as safe harbors for limiting exposure. So, if your employees are engaging only in activities set forth in Table 1 (e.g., using saws, drills, jackhammers, grinders, milling machines, excavators, etc.), complying with Table 1 is going to be the simplest and most reliable means of complying with the standard.
II. Alternative Compliance: If the Table 1 standards are not followed (doing so may not be feasible, or you may have employees performing tasks not specified on Table 1, such as cleaning of silica-contaminated equipment), you must follow the “alternative exposure control methods” approach, and in doing so:
(a) Signs: Post signs at all entry points to regulated areas as prescribed above, and limit access;
(b) Communication: Communicate the potential hazards of silica dust exposure to all employees;
(c) Air Quality: Assess the air quality either by: (i) monitoring air quality on a scheduled basis (samples must be analyzed by an OSHA-compliant lab); or (ii) conducting an exposure assessment before the work begins (by, for example, using surveys, historical data and/or direct measuring instruments), and then reassess exposure levels whenever the work being performed changes;
(d) Notification: Notify all employees undergoing exposure assessment of the results of such assessment within 5 working days of completing it (including any necessary corrective actions);
(e) Housekeeping: Restrict housekeeping and equipment cleaning/ decontamination practices whenever doing so can further limit employees’ exposure to silica dust;
(f) PPE: Ensure that all employees exposed to respirable crystalline silica exceeding the Action Level use personal protective equipment (“PPE”) such as masks and/or respirators (usually APF 10 or 25, depending on the exposure level: Note: You must also make certain they fit properly as well);
(g) Exposure Limits: Ensure that no employee is exposed to silica levels exceeding the PEL;
(h) Exposure Control Plan: Create a written Exposure Control Plan and designate a “competent person” to oversee it;
(i) Medical Exams: Offer medical exams to all employees who are exposed to levels of silica dust exceeding the Action Level more than 30 days in any year, commencing no more than 30 days after the initial assignment, and no more than every 3 years thereafter (more frequently if required by a licensed health care provider); and
(j) Records: Maintain records of employee exposure to silica dust (generally, for at least 30 years).
2. For Your Customers:
a. Signs: Post a sign on or near each rental counter notifying customers of the fact that certain items create the potential for exposure to silica dust, the associated dangers, the means of limiting or eliminating such dangers, and the means of obtaining additional relevant information (I generally include references to asbestos as well, as the liabilities and means of exposure often parallel one another);
b. Labels: Affix warning labels to all items that generate or collect silica dust (e.g., the Table 1 items discussed above), notifying customers of the fact that use of the item entails potential generation of, and exposure to silica dust, the associated dangers, and sources of additional information (Note: Warnings are critical, as they are the primary means of avoiding “products liability” lawsuits based on “failure to warn” of potential hazards);
c. PPE: Make available to your customers any required personal protective equipment (“PPE”) such as masks and/or respirators;
d. Contract Obligations: Update your rental contract to, among other things, require that customers refrain from exposing your equipment to hazardous materials to the extent possible, return your equipment free of contamination, and indemnify and defend you in the event of any failure to comply with such requirements (remember, an indemnity obligation may save you hundreds of thousands of dollars if/when applied to an OSHA fine);
e. Monitoring: Monitor and carefully inspect your equipment upon departure from and return to your facility; and
f. Silica Addendum: Have your customers sign a warning and acknowledgement of: (i) the associated dangers; (ii) the need to use PPE; (iii) the fact that information regarding the risks and available options has been made available to them, and (iv) their agreement to indemnify you for any and all associated claims and damages.
3. Failure to Comply: It’s hard to think of a worse idea than ignoring the new requirements or willfully failing to comply with them. Penalties for non-compliance have been increased from $7,000.00 per serious violation to $12,741.00 (Caution: Penalties may be assessed “per day” for failures to abate). Importantly, the penalty may also be increased to $124,709.00 for willful or repeated violations.
OSHA already appears to be stepping up enforcement and penalty assessments. Following are some recent examples:
a. $459,918.00 (Texas): OSHA fined an Austin area manufacturer $459,918.00 for a long list of health and safety violations.
b. $62,370.00 (Wisconsin): In May of 2016, a citation of $62,370.00 was leveled against a Wisconsin company that “overexposed three workers to silica.” According to OSHA, “One employee’s exposure was determined to be more than twice the recommended time-weight allowance.”
c. $56,950.00 (Wisconsin): In August of 2016, a different Wisconsin company was hit with $56,950.00 in proposed penalties for overexposing employees to respirable crystalline silica, noise and carbon monoxide, and for failing to implement an appropriate training program.
d. $159,631.00 (Ohio): In November of 2016, OSHA found workers exposed to air contaminants such as silica, noise and other hazards, for which a penalty of $159,631.00 was proposed.
e. $80,741.00 (California): OSHA found that a California company exposed workers to fall hazards and allowed them to apply stucco without adequate personal protective equipment. The company faces $80,741.00 in proposed penalties.
4. Resources: The new standards appear at: 29 U.S.C. §§ 1910.1053 and 1926.1153. OSHA has also made available “Fact Sheets” for both construction (see: https://www.osha.gov/ Publications/OSHA3681.pdf) and general industry and maritime (see: https://www.osha.gov/ Publications/OSHA3682.pdf). I strongly recommend reviewing them.
Legal Exposure: Beyond the increases in regulation and OSHA scrutiny, rental companies will likely face more and larger negligence-based and/or “products liability” lawsuits if they fail to warn customers of the potential hazards associated with exposure to silica dust or fail to make available appropriate PPE. Like the (asbestos-related) asbestosis and mesothelioma lawsuits of the past, silica dust generating equipment can be expected to be fertile ground for plaintiffs’ lawyers seeking new targets.
THUS, SILICA DUST GENERATION CREATES POTENTIAL LIABILITY FOR CIVIL JUDGEMENTS (LAWSUITS) AND CRIMINAL PENALTIES (FINES AND EVEN JAIL TIME).
Compliance with the new regulatory requirements (OSHA’s first update of the applicable exposure limits in 45 years) won’t be easy, but failure could be devastating, particularly if OSHA continues on its current enforcement path. However, local OSHA authorities have, in fact, been working to help rental operators interpret the regulations and actually avoid fines – a fact that may make contacting your local OSHA office for guidance prudent. Regardless, this is not something to be ignored or trivialized. Feel free to contact us if we can help.
About the Author:
James R. Waite is a business lawyer with over 20 years in the equipment rental industry. He authored the American Rental Association’s book on rental contracts, and represents equipment lessors throughout North America on a wide range of issues, including corporate law, employment issues, negotiating and drafting rental contracts, purchase options and other rental-related agreements, as well as buying, selling and financing rental companies and their equipment. He is a veteran of the United States Air Force, has a BBA in Finance from the University of Texas at San Antonio, a Juris Doctor from St. Mary’s University, and an MBA from Northwestern University. He can be reached at (866) 582-2586, or via email at firstname.lastname@example.org.