I am writing to update you on the status of ongoing discussions with DOL regarding potential resolution of the concerns of the CISC with OSHA’s respirable crystalline silica rule. As the steering committee has indicated in previous communications, while we have been vigorously challenging the rule in court, we have also continued to discuss with DOL potential resolution of our issues through settlement. Those discussions have advanced to the point where we need to decide whether to enter into more formal “settlement negotiations” with DOL. The parameters of settlement are set forth below. This would, of course, be the starting point for settlement – not a final offer – but this is the potential framework for resolution. The steering committee supports moving forward into formal settlement negotiations with DOL under the parameters set forth below
· DOL would issue a Request for Information (“RFI”) seeking data, comment, and evidence to change Table 1, potentially adding other control measures or tasks
. We have received strong indications from DOL that OSHA is truly interesting in improving Table 1 and is committed to doing so through rulemaking if necessary.
· DOL would issue a temporary enforcement policy that would provide that construction employers would not be cited for violations of the new standard, provided they can show that they are making good faith efforts to comply
. This is similar to what the Agency has done previously for confined space in residential construction and for the implementation of OSHA’s fall protection guidance in residential construction. Our experience has been that this enforcement policy has worked well for contractors and few, if any, have ever received citations under this approach.
· DOL would issue another temporary enforcement policy that would allow contractors who are trying to use Table 1 but cannot do so (generally because wet methods cannot be used) to use alternative control measures (e.g., vacuums and shrouds) with respirators and still be considered to be in compliance with the Table, PEL, and exposure monitoring provisions
. This would, in effect, expand Table 1 immediately to involve the use of additional, common control measures on construction worksites.
· DOL and the CISC would draft jointly several frequently asked questions to interpret provisions of the rule regarding exposure monitoring, written exposure control plan, and medical surveillance, in a manner that eases compliance for contractors
. This may involve the development of additional compliance assistance or guidance on enforcement. This allows the CISC to have a “seat at the table” and work with the Agency to draft and develop guidance to help our members.
This approach provides – potentially – short term and long term relief for our members. Please note, as well, that under this approach we are in discussions with DOL to jointly move to stay the litigation pending the outcome of the settlement negotiations/RFI. There is some uncertainty to that, but at the staff level of DOL that would be the preferred approach.
Given the upcoming oral argument date (September 26) and current enforcement deadline (September 23), this is very fast moving. The steering committee would like to get buy-in or concerns ASAP. As a result, we are proposing a call for tomorrow at 3 ET to discuss. We hope everyone can make it – or alternatively please feel free to send me an email with thoughts/concerns. The call-in number is 1-866-625-3098; passcode 2426782. Lesley will also send around a calendar invite in the morning.
Thanks in advance and I look forward to speaking to everyone soon.
Attorney at Law
AIHCE 2014 Evaluation of Particle Release from Drywall