Our latest episode welcomes Jack Fearing, CPEA and managing partner of Fearing International Group, LLC, to the CoatingsPro Interview Series.
Topics discussed on the podcast include the new beryllium rule and revised silica standards from the U.S. Occupational Safety and Health Administration (OSHA); recent regulatory changes in 2020 due to COVID-19; and available compliance resources for coatings contractors. A complete transcript of the episode is available below.
For more information, contact: Fearing International Group, (908) 303-8359, www.fearing-international.com
[This podcast was recorded in October 2020.]
Ben DuBose: Jack, good afternoon. How are you?
Jack Fearing: Thanks, Ben. I’m doing fine. It’s certainly a pleasure to be here with you today.
BD: I’m glad to have you on. For anyone who’s not aware, we’ve had Jack as a contributor to CoatingsPro in the past. We rely on his knowledge of safety and health compliance as it pertains to coatings contractors. That’s what we’re going to be talking about today. Before we get into specific coatings issues, tell our audience a little more about yourself, Jack, as well as Fearing International Group. What’s your background and expertise as it pertains to the regulation side of the coatings industry?
JF: Thanks, Ben. To begin with, as you mentioned, I’ve been doing this for over 30 years. When I say that, it makes me feel old, but I try to shrug that off. I actually began my career in safety while I was in the military as an aviation safety officer at an Army aviation unit. That required several months of training, then monitoring both Army regulations on the flight line and applicable OSHA standards in the hangar.
When I got off active duty, I pursued a career in occupational and aviation safety after graduate school, and I’ve worked in various industries over the years, including manufacturing, chemical, pharmaceutical, and the Department of Defense. My responsibilities have also included training, contractor safety and management, audits. That was both domestic and international. I had the pleasure of traveling quite a bit during my career as a member of corporate America in various management positions.
Prior to starting Fearing International Group in 2013, I was a director of safety for a defense contractor, providing direct employee support for LOGCAP IV in the Middle East to the military. We had over 15,000 employees, including over 200 safety professionals. Our core support for the military during that period, primarily in Afghanistan, was construction management of various things — the infrastructure, as you can imagine, had been pretty well destroyed, that which existed to begin with — and aviation maintenance. We provided not only aviation maintenance for the military but also some of the host countries that we operated in. FIG is a veteran-owned small business located in New Jersey, and we provide management, consulting, training, specifically OSHA-10 and 30 courses, and inspection services to a variety to clients in the Tri-State area, primarily. But we do have national clients and a couple of multinationals as well. This includes, as I mentioned, OSHA-10 and 30 training and management systems, affectionately known now as ISO 45001.
BD: In this CoatingsPro Interview Series, what we typically do on these podcasts, we look at some of the big news stories of the day and we try to break down what they mean for coatings contractors. Within health and safety these days, one obvious story line is the new beryllium rule from the U.S. Occupational Safety and Health Administration, otherwise known as OSHA, as Jack just referred to. The most recent rule has taken effect as of September 30. Jack, let’s start there. What’s the new OSHA rule, and what does it mean for coatings contractors?
JF: That’s a great question and a good place to start. The thing about the beryllium standard that I think is important to note is that OSHA often phases standards in, particularly those that are very rigorous.
The reality is that the beryllium standard was a final rule in January of 2017. At that time, it primarily covered exposure, both an 8-hour exposure to employees who were exposed to beryllium and also short-term exposure. They had developed guidance on what that should be. Then the standard also included not only exposure but what they call ancillary provisions. Those were things like medical surveillance, exposure control, personal protective equipment, HASCOM — which we all refer to that hazard communication, chemical safety, and of course recordkeeping. Recordkeeping when we’re dealing with exposures such as beryllium is very important, and we’ll circle back on that a little bit.
They didn’t really start enforcing all the provisions, as you just mentioned, until September 30 of this past month. The standard’s been out there in various forms with various types of compliance responsibilities. In the meantime, now that it’s being enforced, OSHA is going to use what’s called good faith of the employees over the first 45 days. Again, not unusual, where they will monitor what they’re doing, they’ll collect samples of employees who were exposed, and so forth. What they’ve also done, because of the potential severity of excessive exposure to beryllium is they’ve listed beryllium as a carcinogen. That’s a very important thing to know because of the exposure. What we’ve learned and what we know is that it does cause — or certainly can cause — what we call chronic beryllium disease, which is lung cancer. As a result of that, there’s a lot of rigor in terms of what employers who use beryllium should be aware of.
First of all, when we talk about what is beryllium, it’s a very strong metal that’s used in a variety of industries. It’s often used, particularly in the construction industry, in the coatings industry, for operations that require a great deal of heat, such as welding, generating slag, and so forth. There’s a lot of provisions to the standard, as I mentioned, in terms of the ancillary provisions that are cited in the standard.
The main thing is that the whole program that OSHA’s developed has been designed to protect employees. In the scheme of compliance, beryllium is probably a pretty small population compared to, say, hazard communication, personal protective equipment, and many other lockout/tagout, material handling. OSHA estimates there are probably less than 100,000 employees in that work segment or community, if you will. Employers are very much encouraged, and required obviously, to provide a great deal of exposure limiting activities when using beryllium.
As a result of that requirement, they are required to have a written exposure control plan, which provides all of the activities that they’re doing to control the exposure, including the training. It also includes, as I mentioned, various medical surveillance. Medical surveillance is a key part of the beryllium standard compliance. One of the things that I would caution those of you who are using beryllium is the recordkeeping requirements. Any time you're doing medical surveillance on a carcinogen, in particular, but any activity that requires it in the standard, the recordkeeping requirements are quite onerous.
They are a two-part requirement. Number one, for the duration of an employee’s career with your company, however long or short that might be, plus 30 years. Thirty years is a long time. As I mentioned, because beryllium is a known carcinogen, there is a latency activity there, a period, and as a result of that, medical records must be maintained for a very long period of time in order to satisfy that requirement of the standard.
BD: Let’s switch gears and talk about what’s going on with regard to silica, because that’s another pretty pertinent issue for coatings contractors. What’s the latest on the silica front with OSHA?
JF: That’s another good question because that’s another hot topic. It is certainly a different breed of cat from beryllium. When we talk about exposure, Ben, typically when we are talking about beryllium and the heat generation of the carcinogen, we’re talking about fumes. On the other hand, even though the standard is very much as rigorous, the reality is that we’re now talking about inhalation of solids.
Silica — or crystalline silica, as it’s referred to — is found in a variety of construction and coating materials that use sand, stone, bricks, mortar, those kinds of things. It’s very difficult because the respiratory elements of crystalline silica are 100 times smaller than the average grain of sand. So if we put that in perspective, the respiratory requirements are very rigorous in terms of what the employer’s supposed to do in order to protect the employees through the use of appropriate personal protective equipment. There are a variety of different tasks that are cited in the crystalline silica standard, everything from stationary masonry saws, grinders, dowel drilling through concrete, vehicle-mounted drilling rigs, small drivable milling machines — a variety of different equipment that’s used throughout the coatings and construction industry. All of those things can generate possible exposure. Once again, crystalline silica is in fact a carcinogen. As a result, it has a lot of very rigorous requirements, and they are cited in the standard.
It’s very important to understand that, once again, in order to be in compliance with the standard, employers who generate that sort of hazard for their employees — and it’s a much larger population than beryllium, I might add, as you can imagine — must have a written exposure control plan. One of the unique things about silica that’s important, Ben, is you have to have a competent person. A competent person must be designated, and that competent person doesn’t necessarily have to be a safety professional, but it has to be somebody who is very familiar with the hazards associated with exposure to silica and what the control measures are, and also has the responsibility to correct hazards or other noncompliance issues as they are identified. That’s a very important person in the compliance program.
Once again, because of the dust that’s generated, as I mentioned, as a result of the various operations that are used to generate silica airborne and cause the respiratory issues, housekeeping is a very big issue in the use of silica, particularly when it comes to things like compressed air. We know there are very specific standards on using compressed air, particularly to clean yourself. OSHA does not allow that when using silica. They do allow you to clean the work surfaces, but not to clean it off yourself because of potential for contamination. Then of course, the medical examination, as I mentioned. Because it has the potential for creating lung cancer, you can imagine that x-rays are involved, pulmonary function tests, usual suspects, if you will. Then of course, the records, the retention period is extensive. And then training.
OSHA recently, Ben, has come up with a term called an “authorized” training. That’s different from a competent person and so forth. The authorized trainer is not just anybody that a company can select to conduct their training. But it’s somebody (1) who has some gravitas — or credentials perhaps is a better word — to conduct training and (2) they have the experience necessary. Hence the term and the utilization of what I like to think of as “train the trainer.” A lot of companies, when they require an authorized trainer, they’re selecting competent people, trained and skilled in the materials that they’re training, and using them to train versus human resources, the training department, security, or even an outside consultant.
BD: Beyond beryllium and silica — because we’ve gotten some great input there, I think — what else is going on with OSHA in 2020? I know that there’s clearly a lot of other issues that they’re considering, certainly in regard to the COVID-19 pandemic and what that means for workers like coatings contractors that physically go out to jobsites these days. Can you share some of the updates, Jack, as far as other things beyond silica and beryllium that OSHA’s working on right now that may pertain to our contractors?
JF: Absolutely. I would start by saying that that’s a very broad question, and I would ask you, Ben, “How much more time do we have?” I’m only kidding. But the reality is that, since March, when things started to heat up, the economy relatively across the board shut down, a lot of industries were closed, they’ve certainly been trying to reopen for a variety of reasons and had a lot of challenges. During that period and ever since, up till today, OSHA has issued many interim or temporary standards, and they are, again, relying on employers to utilize good faith in terms of how they’re trying to comply, particularly where we have a much larger remote workforce now.
Not so much in the coatings industry, perhaps, but certainly across the board we have work-at-home, which has become very prevalent and it’s very difficult, as a result, for OSHA to enforce a lot of the standards that are out there. When we looked at standards that they’ve really started to focus on, obviously, OSHA recordkeeping is one of them. Obviously, prior to March of this year, when it came to recording, reporting, and investigating a COVID-19 case — which by the way is classified as an illness versus an injury, and certainly we can use the same recordkeeping forms — but OSHA has been very, they’ve actually updated their recordkeeping requirements across industry, both general industry and construction, which certainly coatings falls into both of those categories. They’ve updated their OSHA recordkeeping twice. So there’s a lot of changes there, and there’s a lot of judgment that goes with that in terms of recording.
Other changes that have been significant include personal protective equipment, primarily when we talk about respirators. There’s always a lot of discussion, not only in the industry with the regulatory agencies, but even on the news, differentiating between face coverings, surgical masks, and respirators. There is a world of difference between all three of those, to be sure. As a result of that, OSHA has been very specific in terms of when a respirator is required and, if it’s a negative-pressure respirator, if it’s using the right filtration system. Needless to say — if I flash back to beryllium and silica for just a moment — needless to say, you would need a respirator in both cases, but you would need a different filtration system in order to prevent exposure to the employee. Eye and face protection — again, a key component of the social distancing — the right type of eye protection, face protection. As I mentioned, the recordkeeping. Sanitation is another area.
One of the things that OSHA has exercised more than normal as a result of what’s going on is what they call the “General Duty” clause. The General Duty clause, which is affectionately referred to as 5A1, is activated by OSHA when a specific standard or an element of noncompliance doesn’t really have a written requirement. A 5A1 refers to an employer’s responsibility to provide a safe and healthy workplace for all of their employees. That’s how that goes, as I said.
The other thing that’s very important when it comes to OSHA is they’ve started to collect data and publish data on what’s been going on. So far, since March, OSHA has issued 28 noncompliance citations to over 30 establishments totaling penalties of over half a million dollars. Those are very COVID-specific violations that they’ve identified in both general industry and construction. A lot of them have to do, as you can imagine, with personal protective equipment. Not all of them. The others, they deal with recording and reporting fatalities related to COVID-19, so the recordkeeping activities and so forth, and as I mentioned, the General Duty clause. Throughout all that, OSHA has indicated that, by their estimation, those activities have protected over a half a million employees from the various COVID-19 hazards that exist in a typical workplace.
BD: So for a contractor that’s listened to all of this over the past 20 minutes or so, and maybe wants to see some of this in writing, they need some resources or they’ve got further questions about compliance, what are some of the places that they can go to? Where are some of the outlets, online or elsewhere, that have resources that can allow them to get this type of detailed and updated information when they need it?
JF: Again, very good question, and I think something that all of our listeners should certainly take note of. I would start by saying the OSHA website. It’s amazing how valuable the information is there. I know a lot of people have a perspective of OSHA that may not be favorable, but the reality is that they provide a tremendous amount of useful information, easy to get, on the website.
For example, for those of you who are interested in a quick and almost daily update, they have a text that comes out called Quick Takes. Quick Takes comes out every day, and it’s got a variety of different compliance activities that are taking place. OSHA has certainly gone a long way. They have a great deal of assistance programs or what they call “on-site consultation programs” for both small and large construction companies that compete in the coatings industry and so forth. You may have heard of SHARP, which is the Safety and Health Achievement Recognition Program. They have an alliance program with trade associations, unions. They have partnerships with various major unions, such as the IBEW, the electric transmission and distribution, construction contractors. Certainly, there are others, particularly for large companies. They have the OSHA Challenge Program, and they have the gold standard, which is the VPP program. So OSHA has a tremendous amount of activities. And by the way, the two topics that we’ve highlighted today, beryllium and crystalline silica, they also have dedicated links on their web page for both of those with a tremendous amount of information.
Beyond OSHA, as I mentioned, depending on the size of your company and the resources available to you, you have your corporate safety or whoever your general contractor is. They may have a safety program or a professional that can certainly help you. Obviously, in addition to corporate safety or that functional responsibility, whatever you call it, you have legal advice and also human resources in terms of how you're managing your program, employees, what type of orientation, training, and so forth they need to protect themselves from the two principal issues we’ve discussed and many others as they relate to COVID.
Then, finally, of course, there’s the third-party consulting folks who specialize in these kinds of things and are typically available on short notice to assist you. Again, the principal area that you want to rely on is the current, updated information that is always available on the OSHA website, and that’s certainly easy to get to: www.OSHA.gov. There’s a whole world of information that will help us not only with the two principal items that we’ve discussed but all the other items, particularly COVID-19 as well.
BD: Good stuff, Jack. Before we sign off, for anyone who has follow-up questions for you specifically or maybe wants to learn more about Fearing International Group, what’s the best way that they can reach out to you or access some of Fearing’s information?
JF: Thanks, Ben. There are several ways to reach me. My office phone is (908) 303-8359. We’re located in western New Jersey. We are available generally on short notice to assist our clients in any way we can and certainly have a great deal of experience in working with OSHA, both in the union and non-union environment. We understand the kinds of things they’re up to. I do have a website as well: www.fearing-international.com. My email is firstname.lastname@example.org. If we can be of any assistance — even guidance, not necessary on site but guidance to help you better understand your program and your responsibilities based on the type of exposure that you may have at your workplace.
BD: Sounds great. I’m sure our listeners will definitely appreciate that. [closing statements]