Enforcement of OSHA's silica in construction standard begins under interim enforcement memorandum

Full enforcement of the Occupation Safety and Health Administration’s (OSHA) new Respirable Crystalline Silica in Construction Standard for the construction industry began last Monday, Oct. 23, 2017. The new standard significantly lowers the permissible exposure limit of silica dust (respirable crystalline silica) by employees and substantially impacts contractors that engage in activities that create silica dust by cutting, grinding, or blasting materials like concrete, stone and brick. You can find general information about OSHA’s new standard in our previous alert on the subject – OSHA’s new silica safety standard imposes additional burdens on contractors.

THE INTERIM ENFORCEMENT GUIDANCE MEMORANDUM

On Oct. 19, 2017, OSHA issued a memorandum to OSHA Regional Administrators providing interim enforcement guidance for Compliance Safety and Health Officers (CSHOs) commencing enforcement on October 23. The memorandum serves as interim enforcement guidance and expires when the standard’s companion compliance directive becomes effective and available to the field.

The memorandum outlines inspection guidance for CSHOs for both methods of compliance – Specific Exposure Control Methods (Table 1) and Alternative Exposure Control Methods (Performance and Scheduled Monitoring Operations). During an inspection or investigation, CSHOs will:

• Collect personal breathing zone samples when controls for tasks listed in Table 1 are not being fully and properly implemented.
• Review the employer’s written silica Exposure Control Plan (ECP) and other relevant programs (Respiratory Protection Program, Hazard Communication Program, etc.).
• Interview affected employees, including the competent person designated by the contractor, as part of the overall assessment of the employer's implementation of its ECP. 

The memorandum clarifies enforcement of the new standard’s housekeeping provisions and approves the use of sweeping compounds (e.g., non-grit, oil, or waxed-based) as a permissible housekeeping method. The memorandum also clarifies the medical examination requirements for certain employees provided in the new standard.

The memorandum does not include specific guidance on required employee information and training (paragraph (i)(2) of the standard). However, contractors should continue to ensure that employees covered by the standard are trained in accordance with the provisions outlined in the standard.

THE TABLE 1 SAFE HARBOR

The memorandum’s guidance to CSHOs regarding inspection of contractors using the specific exposure control methods provided in Table 1 further shows why contractors should utilize the safe harbors provided by Table 1. Specifically, CSHOs will not cite a contractor for any permissible exposure limit violation so long as the contractor has “fully and properly implemented the engineering controls, work practices and respiratory protections specified in Table 1.” 

FULL ENFORCEMENT PENDING LITIGATION

The Associated General Contractors of America (and other industry groups) remain engaged in litigation against the new standard in federal court, but a final decision is not anticipated until 2018. In the meantime, contractors must abide by the new standard and OSHA’s recent memorandum provides additional insight on how CHSOs will be investigating potential violations and enforcing the new standard.

The hydraulic fracturing industry will also become subject to OSHA’s new silica standard on June 23, 2018, for all requirements except Engineering Controls. The Hydraulic Fracturing Engineering Controls requirements will become enforceable June 23, 2021.

For additional information regarding OSHA’s new silica rule, please contact one of the attorneys listed below.