LABOR CABINET

Department of Workplace Standards

Division of Occupational Safety and Health Compliance

Division of Occupational Safety and Health Education and Training

(Amendment)

 

      803 KAR 2:425. Toxic and hazardous substances.

 

      RELATES TO: 29 C.F.R. 1926.1101-1926.1153[1926.1152]

      STATUTORY AUTHORITY: KRS 338.051(3), 338.061

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to adopt and promulgate occupational safety and health administrative regulations. 29 C.F.R. 1926.1101 to 1926.1153[1926.1152] establish the federal requirements relating to toxic and hazardous substances. This administrative regulation establishes the general standards to be enforced by the Department of Workplace Standards in the construction industry.

 

      Section 1. Definitions. (1) "Assistant secretary" means Secretary, Labor Cabinet or Commissioner, Department of Workplace Standards, Labor Cabinet.

      (2) "Director" means Director, Division of Occupational Safety and Health Compliance, Kentucky Labor Cabinet.

      (3) "U.S. Department of Labor" means Kentucky Labor Cabinet or U.S. Department of Labor.

 

      Section 2. Except as modified by the definitions in Section 1 of this administrative regulation, the construction industry shall comply with the following federal regulations published by the Office of the Federal Register, National Archives and Records Services, General Services Administration:

      (1) 29 C.F.R. 1926.1101 through 1926.1153[1926.1152], revised as of July 1, 2015[2012]; and

      (2) The amendments to 29 C.F.R. 1926 Subpart Z as published in the March 25, 2016 Federal Register, Volume 81, Number 58[The amendments to Subpart Z of 29 C.F.R. 1926 as published in the February 8, 2013 Federal Register, Volume 78, Number 27].

 

As approved by the Kentucky Occupational Safety and Health Standards Board.

 

DERRICK RAMSEY, Chairman

      APPROVED BY AGENCY: May 10, 2016

      FILED WITH LRC: May 13, 2016 at 11 a.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on June 22, 2016 at 10:30 A.M. (EDT) at the Labor Cabinet, 1047 US HWY 127 South, Suite 4, Frankfort, Kentucky. Individuals interested in being heard at this hearing shall notify this agency in writing five (5) working days prior to the hearing of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted through June 30, 2016. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: Kristi Redmon, OSH Standards Specialist, Kentucky Department of Workplace Standards, 1047 U.S. HWY 127 South, Suite 4, Frankfort, Kentucky 40601, phone (502) 564-3504, fax (502) 564-1682.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact person: Kristi Redmon

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation, in Section 1, defines terms not found in the federal standard. Section 2 requires employers to comply with the requirements of 29 C.F.R. 1926.1101-.1153. Section 2 also updates the C.F.R. to July 2015 and establishes the amendments to Subpart Z of 1926 published in the March 25, 2016 Federal Register, Volume 81, Number 58. The Kentucky OSH Standards Board adopted this amendment on May 10, 2016. As a result of the adoption of the aforementioned this final rule, 803 KAR 2:425 must be amended to include the adopted changes. With the March 25, 2016 final rule, OSHA is adding additional requirements where employees may be exposed to silica. This rule greatly expands upon the previous requirement which only limited an employee’s exposure through the permissible exposure limit (PEL). After much research and the continuing exposure of workers to silica, OSHA decided that the current PEL for respirable silica was not sufficient to protect the safety and health of workers. This final rule revises the old PEL and requires that employers use engineering controls to reduce workers’ exposure to silica. The new PEL is set at 50 micrograms per meter cubed, which is approximately half of the former PEL in general industry and is a 20 % reduction of the construction industry PEL. Even with this cut in the PEL, OSHA believes a significant risk to employees remains; however, OSHA considers this PEL to be the lowest that can reasonably be achieved in most affected industries.

In addition to the revised PEL, OSHA is requiring the implementation of engineering controls to include wetting the work operations or using ventilation before the use of respirators. The new standard requires the employer to evaluate employee exposures and then based on exposure levels the employer must implement engineering controls and/or work practices. In the construction industry, OSHA has provided a table of construction work practices that employers and required engineering controls or respiratory protection that an employer may use in lieu of determining actual workplace exposures. Work practices that may be necessary, based on employee exposures, include creating a regulated area (general industry only), ensuring the presence of a competent person, conducting medical surveillance and training employees on the hazards of silica. OSHA believes that approximately 676,000 workplaces will be affected across the construction, general, and maritime industries. This will include approximately 2.3 million workers, the majority of which are in the construction industry. OSHA estimates the net benefit of the rule to be between 3.8 and 7.7 billion dollars. This amendment also updates this administrative regulation to meet KRS Chapter 13A considerations.

      (b) The necessity of this administrative regulation: The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. 29 C.F.R. 1953.5 requires state implementation of the new federal standard, or a more stringent amendment, within six (6) months of the March 25, 2016 final rule. Kentucky does not have an effective alternative to the final rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by September 25, 2016.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the content of the authorizing statutes of KRS Chapter 338.051 and 338.061.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will promote worker health and safety throughout Kentucky and keep the state program as effective as the federal program.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of: (a) How the amendment will change this existing administrative regulation. Section 2 updates the C.F.R. to July 2015 and establishes the amendments to Subpart Z of 1926 published in the March 25, 2015 Federal Register, Volume 81, Number 58. The Kentucky OSH Standards Board adopted this amendment on May 10, 2016. As a result of the adoption of the aforementioned this final rule 803 KAR 2:425 must be amended to include the adopted changes. This specific amendment adopts the entire federal silica rule as applicable to the construction industry including the requirements to determine employee exposures and implement all necessary/applicable engineering controls and work practices. This amendment also updates this administrative regulation to meet KRS Chapter 13A considerations.

      (b) The necessity of the amendment to this administrative regulation: The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. 29 C.F.R. 1953.5 requires state implementation of the new federal standard, or a more stringent amendment, within six (6) months of the March 25, 2016 final rule. Kentucky does not have an effective alternative to the final rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by September 25, 2016.

      (c) How the amendment conforms to the content of the authorizing statutes: This amendment conforms to the content of the authorizing statutes of KRS Chapter 338.051 and 338.061.

      (d) How the amendment will assist in the effective administration of the statutes: This amendment maintains consistency with the federal requirements, providing all a clear understanding of the requirements. This amendment promotes worker health and safety throughout Kentucky and keeps the state program as effective as the federal program.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation affects all employers in the Commonwealth engaged in construction industry activities covered by KRS Chapter 338.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including: (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Approximately 676,000 workplaces in the nation are expected to be affected by this final rule which requires employers to implement engineering controls and work practices where employees are exposed to respirable crystalline silica. Engineering controls may include the use of wet work practices or local exhaust ventilation. Work practices may include the designation of a regulated area, use of personal protective equipment, medical surveillance of exposed employees, and hazard training.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): The annualized cost of the rule is around 1 billion dollars with the net benefits of the rule around 3.8 -7.7 billion.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3):

Improved employee protection is likely to result from the promulgation of this amendment, due to the consistency with the federal requirement, providing all a clear understanding of the requirements.

      (5) Provide an estimate of how much it will cost to implement this administrative regulation: (a) Initially: There is no cost to the OSH Program to implement this administrative regulation.

      (b) On a continuing basis: There is no continuing cost to the Program to implement this administrative regulation.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Current state and federal funding.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new or by the change if it is an amendment: There is neither an increase in fees nor an increase in funding necessary to implement these revisions.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: This administrative regulation neither establishes any fees nor directly or indirectly increases any fees.

      (9) TIERING: Is tiering applied? Tiering is not applied. All employers covered by KRS Chapter 338 are treated equally.

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

      1. Federal statute or regulation constituting the federal mandate.

Public Law 91-596, the Occupational Safety and Health Act of 1970, Section 18; 29 C.F.R. Part 1952; 29 C.F.R. Part 1953

      2. State compliance standards. The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. 29 C.F.R. 1953.5 requires state implementation of the new federal standard, or a more stringent amendment, within six (6) months of the March 25, 2016 final rule. Kentucky does not have an effective alternative to the final rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by September 25, 2016.

      3. Minimum or uniform standards contained in the federal mandate. The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. 29 C.F.R. 1953.5 requires state implementation of the new federal standard, or a more stringent amendment, within six (6) months of the March 25, 2016 final rule. Kentucky does not have an effective alternative to the final rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by September 25, 2016.

      4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? The amendments to the regulation do not impose stricter requirements than those required by the federal mandate.

      5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. The amendments to the regulation do not impose stricter requirements than those required by the federal mandate.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation will affect any unit, part, or division of local government covered by KRS 338 and engaged in construction industry activities.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 338.051, KRS 338.061, Public Law 91-596 84 STAT. 1590, 29 C.F.R. Parts 1952 and 1953.

      3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? None.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? None.

      (c) How much will it cost to administer this program for the first year? OSHA expects the rule to result in annual costs of approximately 1,500 dollars to the average workplace covered by the rule. The economic impact of this rule on most affected firms is expected to be minor.

      (d) How much will it cost to administer this program for subsequent years? OSHA expects the rule to result in annual cost of approximately 1,500 dollars to the average workplace covered by the rule. The economic impact of this rule on most affected firms is expected to be minor.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-): Unknown.

      Expenditures (+/-): Unknown.

      Other explanation: No information was specific to local governments, but estimated expenditures of about 560 dollars were given for smaller firms affected by the regulation.