by David McGill, CIH, CSP, CHMM


OSHA 29 CFR 1926.1153 Breakdown: A Review of “Scope and Definitions”

We’re continuing to move forward with silica.  I’m focusing on the construction standard first because it’s being implemented the soonest (June 23, 2017).

The OSHA construction silica standard (29 CFR 1926.1153) is divided into four sections:

  • Scope and Definitions
  • Table 1
  • Exposure Assessment – if you don’t or can’t use Table 1
  • Additional Requirements

The Scope

For silica, OSHA changed the scope from their usual language.  For the silica scope, it reads:

“(a) Scope and application.  This section applies to all occupational exposures to respirable crystalline silica …, except where employee exposure will remain below 25 micrograms per cubic meter of air … under any foreseeable conditions.”


The Scope – Any Foreseeable Condition

Unfortunately, “any foreseeable condition” isn’t defined in the text of the Standard.  To get clarification on that, we have to go to the preamble of the silica Standard.   In the preamble, OSHA says that “any foreseeable condition” is one that can reasonably be anticipated, and failure of engineering controls is a foreseeable condition.

For example, OSHA won’t let you say that since you are using wet methods (an engineering control) to keep exposures below 25 micrograms, you don’t need to implement the other requirements.  If your wet methods fail (e.g., water shuts off, water freezes, etc.), then your workers could be exposed above 25 micrograms.

If you can ensure your workers’ silica exposure will be below 25 micrograms under any conditions (i.e., any foreseeable conditions), then you don’t need to do anything else.

Definitions – Competent Person 

OSHA added a little more responsibility to the definition of competent person.  For silica, a competent person must be familiar with the written exposure control plan; must have access to the written exposure control plan; and must make frequent and regular inspections of the job sites, materials, and equipment to implement the exposure control plan.

OSHA was very clear that a competent person does not need to be supervisor, foreman, or a professional safety person.  A competent person can be anyone on the job site, and there can be several competent persons on a job site.  But the competent person(s) must be familiar with the exposure control plan and have the ability and authority to recognize and make changes if it isn’t being implemented correctly.

The way I read this, a competent person must be on the job site when silica tasks are being completed.  One last thing, the employer designates the competent person(s), and there are no specific certification or training requirements.  However, the competent person(s) must be knowledgeable about the exposure control plan AND be able to enforce it.

The Wrap-Up

That’s enough of the scope and definitions for now.  The remainder of the definitions are relatively routine and don’t really need any further clarification.

We all figured this new silica standard was going to be big.  OSHA sure didn’t disappoint us.

Next:  Table 1.

Return to Part 2


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Plumber died after passing car struck him

iStock_000018615925SmallPHILADELPHIA – Had his employer properly created a work zone, a passing car on Philadelphia’s 63rd Street might not have struck and killed a 27-year-old plumber working to repair an underground leak on a mid-November night in 2015.

Employed by Best Choice Plumbing, Inc., the worker died after a vehicle whose driver could not see him hit him as he worked in the middle of the street. An investigation of the incident by OSHA identified 10 serious violations. OSHA found the company failed to:

  • Develop and implement a traffic control program to address, recognize, evaluate and control traffic hazards.
  • Ensure that a competent person implemented and inspected the traffic control plan.
  • Instruct employees in recognizing, eliminating or controlling hazards in an active roadway.
  • Provide advanced warning to drivers, and other road users that work was underway.
  • Designate flagmen to control traffic on the adjacent shoulder or in a barricaded lane.

“Best Choice Plumbing could have prevented this tragic incident by developing a proper traffic control plan that included signs, cones, barrels and barriers. Drivers, workers on foot and pedestrians must be able to see and understand the proper routes,” said Nicholas DeJesse, director of OSHA’s Philadelphia area office. “Employers have a legal responsibility to protect workers from safety hazards, and will be held accountable when they fail to do so.”

OSHA has fined the company $42,960 for the hazards, which has 15 business days from receipt of its citations and proposed penalties to comply, request a conference with OSHA’s area director, or contest the findings before the Occupational Safety and Health Review Commission.

To view the citations:

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Retailer faces $88k in fines for repeated hazard

iStock_000017378933XSmallTARRYTOWN, N.Y. – Responding to complaints, OSHA inspectors found access to emergency exits at two New Rochelle CVS stores blocked by merchandise, boxes and other objects. As a result, OSHA is citing the retailer for two repeated violations of workplace safety standards and proposing a total of $88,000 in fines.

“Blocked or obstructed exits are dangerous. They can prevent workers from leaving their store swiftly and safely in a fire or other emergency. This is an easily preventable hazard that we encounter all too frequently in retail stores,” said Diana Cortez, OSHA’s area director in Tarrytown.

In New Rochelle, the exit door in the receiving and stock room at the 16 Weyman Avenue store was blocked by containers of merchandise, boxes, and carts and the exit route was obstructed by boxes and crates stored in aisles; the stock room exit route at the 625 North Avenue store was blocked by boxes and totes filled with merchandise. Between 2010 and 2016, OSHA had cited CVS stores in Brooklyn, Garden City, Ozone Park and Troy, New York, and Bridgeport and Orange, Connecticut, for similar hazards.

“Particularly disturbing is the recurring nature of this hazard. This is not the first time OSHA has cited CVS stores for obstructed exit routes, but it should be the last. CVS needs to take effective action to eliminate and prevent this hazard at all its locations for the safety and well-being of its employees,” said Cortez.

The citations can be viewed here.

Woonsocket, R.I.-based CVS Health is the largest pharmacy health care provider in the U.S., with 9,600 pharmacy stores and more than 243,000 employees in 49 states, the District of Columbia and Puerto Rico.

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Recall - Digital Clamp MetersRecall date:  May 19, 2016

Recall number:  16-167

Name of product: Digital clamp meters

Hazard: The meters can fail to give an accurate voltage reading, resulting in the operator falsely believing the electrical power is off, posing shock, electrocution and burn hazards.

Recall - Digital Clamp Meters (2)Description:  This recall involves Klein Tools digital clamp meters used to detect electrical current in wiring. Model numbers CL110, CL210, CL310 and CL110KIT with date codes 0815U-A1, 1015U-A1, 1115U-A1, 1215U-A1, 0116U-A1, 0216U-A1 and 0316U-A1 are included in this recall. “Klein Tools” and the model number are printed on the front of the clamp meters. The date code is printed on the back. The meters are black with a backlit LCD display and an orange trigger and clamp mechanism. The meters are rated CAT III 600 volts and measure voltage up to 600 volts and alternating current up to 400 amps. Only the meter in the CL110KIT is included in the recall.

Incidents/Injuries:  None reported

Remedy:  Consumers should immediately stop using the recalled digital clamp meters and contact Klein Tools to receive postage paid labels to return the clamp meters for free replacement units.

Consumer Contact:  Klein Tools at 800-527-3099 from 7 a.m. to 6 p.m. CT Monday through Friday, online at and click on “Safety Recall Information” at the bottom of the page for more information or email

Sold at:  Home Depot and other hardware stores, industrial distributors and electrical wholesalers nationwide from November 2015 through April 2016 for between $55 and $75.

Importer(s):  Klein Tools, of Lincolnshire, Illinois

Manufactured in:  China

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by Dwayne Towles

Money & PoliticsOSHA has not increased their civil penalties for OSHA citations since 1990, but not for lack of trying.  However, hidden within the Bipartisan Budget Act of 2015 signed by President Obama in November 2015 is a provision called the “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015” which requires OSHA to significantly increase its civil penalties.  Under the Act, there is a one-time “Catch Up Adjustment” that will occur this year resulting in a penalty increase of approximately 80%. Yearly increases, based on the Consumer Price Index, will occur each following year.

To implement these changes, OSHA is expected to adjust the civil monetary penalties through an Interim Final Rule sometime soon. By law, the increased penalty adjustment must come into effect by August 1st of this year.  Although OSHA is not required to take advantage of the full penalty increase, many are speculating that it will.   This means that the current penalty cap on serious violations of $7,000 would grow to $12,600, and the penalty limit on willful and repeat violations would increase from $70,000 to $126,000.

OSHA has lobbied for years to increase the civil penalties they can impose when an employer is cited for a violation.  On October 7, 2015, Assistant Secretary of Labor for OSHA, Dr. David Michaels, told a House subcommittee that the “most serious obstacle to effective OSHA enforcement of the law is the very low level of civil penalties allowed under our law, as well as weak criminal sanctions,” and that “OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.”

This law does not automatically apply to states regulated by State Plans, but since State Plan programs must be at least as effective as Federal OSHA, many are of the opinion that Federal OSHA is likely to push for state plans to increase civil penalties as well.  It will be interesting to see how this plays out over the next year or two.

Either way, this is good time for employers to take a look at their current safety programs and:

  • Ensure that your safety programs are comprehensive and up to date;
  • Ensure that employees receive all necessary safety training, can demonstrate understanding of the training, and that all training is well-documented;
  • Conduct routine hazard assessments of your workplace and mitigate any identified hazards as quickly as possible; and
  • If you haven’t already, consider integrating one of the recognized Safety Management Systems into your organization’s operational process.


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Recall - Bosch Small Angle GrinderRecall date:  May 11, 2016

Recall number:  16-158

Name of product: Bosch small angle grinders

Hazard: The grinder can overheat while in use, causing the brush covers to melt and expose the end of the brush holder, posing a risk of burns to the consumer.

Description:  This recall involves Bosch 1380 Slim small, 4.5-inch angle grinders with date codes 502 through 511. The model number and date codes are located on the name plate affixed to the underside of the grinder. The grinders are blue and silver with a black label and black and red control buttons. “BOSCH” is printed in red on the side of the product.

Incidents/Injuries:  The firm has received four reports of the grinders overheating. No injuries have been reported.

Remedy:  Consumers should immediately stop using the recalled grinders and contact the firm to obtain a free repair.

Consumer Contact:  Robert Bosch Tool toll-free at 844-552-6724 Monday through Friday between 7 a.m. and 7 p.m. CT, or online at and then click on Important Product Recalls at the bottom of the page for more information.

Sold at:  Lowe’s, Menards, The Home Depot and other home improvement, hardware stores nationwide and online at,, and from March 2015 through November 2015 for between $50 and $200, depending on the model and whether it was sold in a combination package with other tools.

Importer(s):  Robert Bosch Tool Corporation of Mount Prospect, Illinois

Distributor(s):  Robert Bosch Tool Corporation of Mount Prospect, Illinois

Manufactured in:  China

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Hand InjuryScenario: You have an employee who sustained an injury when his hand was caught between two objects. After receiving treatment for the injury, the employee was immediately given a post-accident drug and alcohol test. The results of the test indicated the employee was intoxicated from alcohol. The employee’s injury was caused by an event at work, and it meets at least one of the general recording criteria in Section 1904.7.

Question: Does this injury meet the exemption in Section 1904.5(b)(2)(vi), given the worker was self-medicating with alcohol for his non-work related condition of alcoholism and is therefore not recordable?

OSHA InspectorOSHA’s Response: In a letter of Interpretation dated March 21, 2016 to Mr. Leary Jones of Balfour Beatty Construction Services OSHA says “No. OSHA’s regulation at Section 1904.5(b)(2)(vi) states “You are not required to record injuries and illnesses if the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.” Under this exception, an employee’s negative reactions to a medication brought from home to treat a non-work-related condition would not be considered a work-related illness, even though it first manifested at work. See, the preamble to the final rule revising OSHA’s recordkeeping regulation, 66 Federal Register 5951, January 19, 2001.”

“In analyzing this question, we consulted with physicians from OSHA’s Office of Occupational Medicine and Nursing. The physicians concluded that the intake of alcohol does not treat the disorder of alcoholism. Instead, drinking alcohol is a manifestation of the disorder. Accordingly, the injury described in the scenario above does not meet the exception in Section 1904.5(b)(2)(vi) for self-medication”.

OSHA goes on to say “Please note that during the 2001 rulemaking to revise the recordkeeping regulation, several commenters suggested a work-related exception for employees engaged in illegal activities, horseplay, or failure to follow established work rules or procedures. However, in the preamble to the final rule, OSHA explained that it would not adopt this exception because excluding these injuries and illnesses would be inconsistent with OSHA’s longstanding reliance on the geographic presumption to establish work-relatedness. Furthermore, the Agency believes that many of the working conditions pointed to in these comments involve occupational factors, such the effectiveness of disciplinary policies and supervision. Thus, recording such incidents may serve to alert both the employer and employees to workplace safety and health issues. See, 66 Federal Register 5958.”


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New Federal requirements take effect August 10, 2016

OSHA Form 300WASHINGTON – The U.S. Department of Labor’s Occupational Safety and Health Administration today issued a final rule to modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards.

OSHA requires many employers to keep a record of injuries and illnesses to help these employers and their employees identify hazards, fix problems and prevent additional injuries and illnesses. The Bureau of Labor Statistics reports more than three million workers suffer a workplace injury or illness every year. Currently, little or no information about worker injuries and illnesses at individual employers is made public or available to OSHA. Under the new rule, employers in high-hazard industries will send OSHA injury and illness data that the employers are already required to collect, for posting on the agency’s website.

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable ‘big data’ researchers to apply their skills to making workplaces safer.”

To ensure that the injury data on OSHA logs are accurate and complete, the final rule also promotes an employee’s right to report injuries and illnesses without fear of retaliation, and clarifies that an employer must have a reasonable procedure for reporting work-related injuries that does not discourage employees from reporting. This aspect of the rule targets employer programs and policies that, while nominally promoting safety, have the effect of discouraging workers from reporting injuries and, in turn leading to incomplete or inaccurate records of workplace hazards.

Using data collected under the new rule, OSHA will create the largest publicly available data set on work injuries and illnesses, enabling researchers to better study injury causation, identify new workplace safety hazards before they become widespread and evaluate the effectiveness of injury and illness prevention activities. OSHA will remove all personally identifiable information associated with the data before it is publicly accessible.

Under the new rule, all establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301. Establishments with 20-249 employees in certain industries must electronically submit information from OSHA Form 300A only.

The new requirements take effect August 10, 2016, with phased in data submissions beginning in 2017. These requirements do not add to or change an employer’s obligation to complete and retain injury and illness records under the Recording and Reporting Occupational Injuries and Illnesses regulation.

The final rule is available on Federal Register at:

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Fourth time tank cleaner failed to address dangerous confined space hazards

DSC00040An air quality test and harnesses properly tethered to a lifeline for rescue might have prevented tragedy for three workers overcome by a lack of oxygen inside a rail tanker in October 2015 in New Orleans, federal workplace safety and health investigators have determined.

The U.S. Department of Labor’s Occupational Safety and Health Administration found Dedicated TCS LLC failed to test the atmosphere inside the tanker before the three employers entered the tank and to mandate that the workers attach a lifeline to their harnesses to allow a rescue. One of the workers died and other two were hospitalized in the incident.

OSHA has cited Dedicated TCS for the same confined space violations three times before at its locations in Illinois. In April 2012, the agency issued eight serious violations at the company’s location in Channahon. In May 2012, inspectors found nine serious and two willful violations at its Lansing location. In July 2014, an investigation in Channahon found four serious and seven repeat violations.

Dedicated TCS LLC, a tank cleaning service with about 55 employees in Louisiana and Illinois, faces $226,310 in fines for two willful, three repeat, and four serious violations for exposing workers to hazardous health conditions in New Orleans.

Willful violations include failing to test atmospheric conditions within a confined space before allowing workers to enter and failing to evaluate a rescuer’s ability to respond in a timely manner and function appropriately while rescuing entrants from confined spaces.

Serious violations include failing to have a complete respiratory protection program and to medically evaluate and fit test employees before allowing them to use respirators.

Repeat violations include failing to take all necessary steps to guarantee safe entry into a confined space, failing to provide fixed points or mechanical devices for retrieving workers from a permit-required space, and failing to verify and check appropriate entry conditions on a permit before letting workers enter a confined space.

“Dedicated TCS continues to ignore crucial safety procedures for . This is the fourth time OSHA has found this employer in violation of federal safety standards,” said Dorinda Folse, OSHA’s area director in Baton Rouge. “Sadly, the company’s inaction has cost a man his life.”

Link to citations for Dedicated TCS:*


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by David McGill, CIH, CSP, CHMM

Previously, we discussed silica as a mineral – where it’s found and the industries most likely to be affected by the new OSHA silica standard.  As a quick review, we discussed that silica is a naturally-occurring mineral commonly found in quartz, sand, and sand-type products including mortar, grout, and cement.  We also said that the real hazard with silica is the fine particles – the ones you can’t see.  These fine particles can get into your lungs and cause damage.

Before we get into specifics about the new silica standard, let’s answer some basic questions – sort of a silica FAQ.

Q:  Where do we usually find the silica that has the harmful dust?

A:  Mostly in concrete and masonry applications where there can be a lot of dust generated – mixing, sawing, drilling, hammering, etc.  It’s these types of activities that break down larger pieces into smaller particles (the fine dusts), and it’s these smaller particles that can get into the lungs and be harmful.  Additionally, these activities are common to construction which is why the new silica standard is targeted more to construction applications than general industry.

Q:  How do I know if my dry concrete or dry grout masonry mix contains silica?

A:  Silica will be listed as an ingredient on the Safety Data Sheet.  Additionally, the bag label should list silica on the label and have the warning symbol indicating a respiratory hazard.

silica warning symbol

Q:  If the concrete or grout contains silica, does that mean my employees are overexposed to silica?

A:  Not necessarily.  The truth is, there’s no way to correlate the amount of silica in a concrete mix or grout mixture with airborne silica exposure.  The amount of silica that’s in the air depends on how the powder is handled, how long it’s handled, the percentage of silica in the mix, etc.  However, we can say that if the concrete or grout mix contains silica, your workers could be overexposed.  The only way to absolutely determine if your workers are not overexposed is to conduct an exposure assessment.

Q:  If my concrete or grout does not list silica as an ingredient, does that mean that there’s no silica in it?

A:  Not necessarily.  It may mean that the amount of silica contained in the concrete or grout is below what is considered to be hazardous levels (0.1%) or the manufacturer may not know that the mixture contains silica, and consequently did not list silica on the Safety Data Sheet.

Q:  If I have silica in my mixes, do I need to do an exposure assessment?

A:  No.  You do not need to do an exposure assessment.  The new construction standard contains information (Table 1) which identifies specific tasks that, when completed according to the guidelines, will keep you in compliance without doing an assessment.

Q:  Is there a similar Table 1 for general industry?

A:  No.  But if you can obtain objective information (e.g., other exposure assessments), you may not need to conduct exposure assessments.

Q: If I have silica in my mixes and I want to do an exposure assessment, can I do this exposure assessment myself or do I need to have a professional do it?

A: Yes and No.  The sampling is relatively easy and you can do the sampling yourself, but you will need to send the samples to a laboratory for analysis.  There are lots of laboratories that can do silica analysis.

Q:  What is the cost for a silica analysis?

A: The cost for analysis is about $125 per sample, depending on the lab you use.  I’d recommend that you take at least two samples for comparison (more if possible – 6 samples is ideal).

In summary, if you are using anything that has concrete, grout, or cement-like material, you probably need to be thinking silica potential.  If you know you’re using silica-containing materials, then you probably need to be thinking exposure assessment or exposure control (Table 1 – Construction).  OSHA has published a fact sheet on the new silica rule for Construction and a separate fact sheet for General Industry.  Click HERE to view the Construction Fact Sheet and HERE for the General Industry Fact Sheet.

Next:  The OSHA Standard

Return to Part 1

Jump to Part 3



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