Silica Enforcement: OSHA Provides 30-Day Transition for General Industry

Occasionally, when OSHA issues new or revised standards, there are two dates of importance for employers subject to those standards. The first is the date OSHA will make compliance mandatory. The second is the date OSHA states it will begin enforcing noncompliance. In some cases, the two dates may be the same. But with standards that may pose unusual compliance challenges to businesses, and particularly small businesses, OSHA may allow a short transition period after the compliance date during which the agency will assist employers that are falling short but making good-faith efforts to meet the requirements.

That’s the case with OSHA’s Respirable Crystalline Silica Standard for General Industry and Maritime (March 25, 2016, Federal Register (FR)).  Compliance with most of the standard’s requirements is mandatory beginning June 23, 2018. However, in a memo issued by OSHA’s Acting Deputy Assistant Secretary, Galen Blanton, OSHA’s regional administrators were informed that for the first 30 days, OSHA will assist employers that are making good-faith efforts to meet the new standard’s requirements. In other words, in these circumstances, citations will likely not be issued for noncompliance.

Requirements of the Standard

The March 2016 final rule comprised two parts: one for construction and one for general industry and maritime. For construction, compliance obligations commenced 1 year after the effective date, apart from certain requirements for laboratory analysis, which commence 2 years after the effective date.

The standard for general industry and maritime (29 CFR 1910.1053) requires employers to:

• Determine the amount of silica that workers are exposed to if it is, or may reasonably be expected to be, at or above the action level of 25 micrograms of silica per cubic meter of air (µg/m³) averaged over an 8-hour day.
• Protect workers from respirable crystalline silica exposures above the permissible exposure limit (PEL) of 50 µg/m³, averaged over an 8-hour day.
• Limit access to areas where workers could be exposed above the PEL.
• Use dust controls and safer work methods to protect workers from silica exposures above the PEL.
• Provide respirators to workers when dust controls and safer work methods cannot limit exposures to the PEL.
• Establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers.
• Restrict housekeeping practices that expose workers to silica, such as use of compressed air without a ventilation system to capture the dust and dry sweeping, where effective, safe alternatives are available.
• Offer medical exams—including chest X-rays and lung function tests—every 3 years to workers exposed at or above the action level for 30 or more days per year.
• Train workers on the health effects of silica exposure, workplace tasks that can expose them to silica, and ways to limit exposure.
• Keep records of workers’ silica exposure and medical exams.

There are two exceptions to the June 23, 2018, compliance date:

• Medical surveillance must be offered to employees who will be exposed at or above the action level for 30 or more days a year starting on June 23, 2020. (Medical surveillance must be offered to employees who will be exposed above the PEL for 30 or more days a year starting on June 23, 2018.)
• Hydraulic fracturing operations in the oil and gas industry must implement dust controls to limit exposures to the new PEL by June 23, 2021.

National Office to Review Citations

In his June 8, 2018, memo, Blanton states:

“During the first 30 days of enforcement, OSHA will assist employers that are making good faith efforts to meet the new standard’s requirements. If upon inspection, it appears an employer is not making any efforts to comply, compliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard. Any proposed citations related to inspections conducted in this 30-day time period will require National Office review prior to issuance.

“Additionally, to ensure effective implementation and uniform enforcement of the new standard, OSHA has developed interim inspection and citation guidance to be released in the coming weeks.”