Masonry Magazine December 1998 Page. 10
Generally, however, employers are cited for violation of an OSHA standard. Standards affecting the General Industry can be found in 29 CFR (Code of Federal Regulations) Part 1910. Construction standards are in Part 1926. These standards must be developed in accordance with the procedures set forth in the Act. They may be "promulgated, modified or revoked based on information submitted to the Secretary in writing by an interested person, a representative of any organization of employers or employees, a nationally recognized standards-producing organization, the Secretary of Health, Education, and Welfare, the National Institute for Occupational Safety and Health, or a State or political subdivision...." Once action is initiated, OSHA seeks input from industry and refers the concern to advisory committees established under the Act.
Construction standards are reviewed by the Advisory Committee for Construction Safety and Health. It establishes workgroups, inviting participants to analyze and comment. The Committee submits a recommendation on the standard to OSHA. OSHA will review the comments but is not obligated to follow them. A proposed rule will be published in the Federal Register. Time is allowed for public comment and hearings before a final rule is promulgated.
Two hazards in the masonry industry are in the midst of this process, which may result in revised and/or new standards, silica and wall bracing. MCAA along with other concrete masonry groups are reviewing criteria to define the current provision for "adequately braced" (walls) in Part 1926.706 Requirements for Masonry Construction. OSHA has been involved and will investigate the need for revision. A NIOSH Alert, an OSHA Special Emphasis Program, and a public campaign by OSHA, the American Lung Association and the Department of Health and Human Services for the prevention of silicosis may lead to the development of a comprehensive standard on silica.
OSHA has already reported to the Construction Advisory Committee that a silica standard may become part of their agenda as early as the year 2000. Until that time, part of our original mystery can be solved. The standard 1926.55 Gases, fumes, vapors, dust and mists requires employers to use controls to reduce exposure to toxic substances including silica.
This hazard is applicable in all states. In a separate section of the Act, OSHA encourages and provides for States to manage their own safety and health programs. States who choose this option receive funding based on the establishment of a plan, which promulgates regulations at least as effective as the Federal Standards. State OSHA must be consulted in those states with an approved plan (see Figure 1.)
Inspections and Fines
With respect to the fine and OSHA's presence on site, the Act gives OSHA the authority to enter your workplace, inspect, and investigate conditions that may affect employee safety. Your company's selection for inspection depends on a priority list established by OSHA that includes imminent danger, complaints and referrals, accident investigations, special emphasis programs and programmed inspections. Special emphasis programs are inspections targeted at hazards present in a particular industry, such as silica in the masonry industry. A special list is prepared of sites where the hazard may exist. Programmed inspection sites are selected from a list randomly generated. Employers in high risk industries are inspected more frequently. Construction receives the majority of inspections even though they represent only about 35% of industry.
Once selected the inspection may be performed during regular business hours or other reasonable times. OSHA must show their credentials and may not enter without your consent or a warrant. During the inspection both the employer and employees are guaranteed representation under the Act. If a violation is identified, OSHA may issue a citation accompanied by a penalty.
In 1990, Congress amended the Act to increase penalties. Violations were classified in the Act with fines based on the gravity of the violation. The greater the potential of injury and/or severity, the greater the fine (see Figure 2.) Congress, also, proposed discounts for small business and employer safety and health efforts. Penalties can be adjusted downward based on good faith, business size and history of violations. OSHA customary penalty adjustment factors allow up to a 95% reduction.
Adjustment factors by Company Size
0-25 employees = 60% reduction
26-100 employees = 40% reduction
101-250 employees = 20% reduction
250 or more none
Good Faith 25% Reduction
Employers will receive a 25% reduction of the penalty for Good Faith if they have shown a strong effort to attend to safety.
Continued on page 12
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10 MASONRY NOVEMBER/DECEMBER, 1998