Federal enforcement of OSHA’s new crystalline silica standard for construction commenced on September 23, 2017, and already details are emerging about enforcement trends. While about 120 citations were issued since the new rule took effect, this only captures data from federal state enforcement, and some state plan states started later or have yet to issue citations under the new rule.

Federal OSHA enforcement of its requirements for general industry and maritime under the new silica rule started on June 23, 2018. However, on June 7, 2018, OSHA issued a memorandum to its regional administrators concerning general industry/maritime enforcement. It states that:

• OSHA will assist employers that are making good-faith efforts to meet the new standard’s requirements during the first 30 days of enforcement.
• If an employer is not making efforts to comply, OSHA officers will conduct air monitoring according to agency procedures.
• Officers will also consider citations for noncompliance with the applicable sections of the new standard.
• During the first 30 days of enforcement, any proposed citations related to silica inspections will undergo national office review.

Meanwhile, the range of subsections cited by OSHA for the construction industry reveals that intense scrutiny of employer efforts to conform with the complex rule is underway. The most commonly cited provision concerns inadequate (or absent) air monitoring: 28 percent of all citations issued to date fell into this category. This is significant, because exposure monitoring is the linchpin to all other aspects of regulatory compliance.

In addition, the high percentage of citations for air monitoring suggest that construction employers have relied on Table 1 improperly, and so did not realize that they had to perform their independent sampling where all aspects of Table 1 are not adhered to completely. Other contractors may have inaccurately thought their work was covered by Table 1 when their task did not meet the criteria.

In essence, if your sampling is flawed, it will be “garbage in, garbage out” when it comes to development of the mandated written exposure control plan (WECP) needed for all workplaces where employee exposures to silica exceed 25 ug/m³ (the “action level”) for a workshift. Accurate exposure monitoring is required to know which job classifications, tasks or equipment must be included in the WECP, as well as which employees must be trained on silica hazards and controls, which workers must wear respiratory protection (and undergo medical evaluation and fit testing for respirator use), and which employees are covered by the employer’s medical surveillance program.

OSHA is considering all aspects of exposure monitoring, from equipment calibration and placement, to whether tasks were manipulated by the employer to limit exposures or to intentionally skew the data. If such activities are discovered, OSHA can issue willful citations against the employer whose workers are overexposed, and there can also be ramifications for the general contractor or host employer whose subcontractors fail to follow the rule. If OSHA’s data reveal an overexposure and the employer has sampled but their data reveal lower exposures, OSHA will generally resample to determine which party’s samples are outliers. If OSHA finds a second overexposure, it will issue citations.

With abundant problems discovered in employer exposure monitoring programs, it is not surprising that the second most cited area concerns inadequate or absent written exposure control plans. The construction standard requires a site-specific plan, with a designated competent person (who must remain at the work site) who is qualified to implement the program and withdraw employees who may be at risk of overexposures. Approximately 21 percent of silica citations under 29 CFR 1926.1153 fell into this category. While construction employers may largely follow Table 1 if their work falls within the 18 enumerated categories of tasks and equipment, there is still a requirement to have the control plan on site and available for inspection by workers and by OSHA.

Affected workers (those anticipated to be exposed above the action level of 25 ug/m3) must also receive training, in a language and vocabulary they can understand, on the health effects of silica exposure, the employer’s specific WECP, the medical surveillance program, the specific controls to protect them, and housekeeping methods in use. If they use silica containing products, training must also be provided under the OSHA Hazard Communication Standard, 29 CFR 1910.1200, and duplicate citations can be issued under each standard if no training at all is provided. In addition, for those workers who must wear respiratory protection under the employer’s WECP (or Table 1), respiratory protection training must be provided, along with fit testing and medical evaluation to ensure that the worker can safely wear the assigned respirator.

OSHA data for September 2017 to April 2018 reveal that training violations made up 16 percent of all OSHA silica citations, while respiratory protection lapses constituted 6 percent of all violations. Finally, 3 percent of the citations related to the medical surveillance program, and 2 percent addressed violations of the housekeeping provisions (dry brushing and dry sweeping, as well as most uses of compressed air for cleanup are now prohibited).

OSHA’s silica citations are generally classified as “serious” in nature, because overexposures to respirable crystalline silica at levels above the new permissible exposure limit of 50 ug/m³ (for an 8-hour time-weighted-average) are linked by OSHA with conditions ranging from silicosis and COPD to lung cancer, and even renal disease and auto-immune disorders.

The maximum OSHA civil penalty rose to $129,336 on Jan. 2, 2018, and OSHA can issue separate citation items and penalties for each section of the new silica standard that is violated, although it has discretion to group violations with a single penalty, particularly where a single abatement action will resolve all noncompliance issues. However, OSHA also has discretion to cite an employer as an "egregious violator,” which means that separate citation items and separate penalties can be issued for each affected worker (such as each worker whose overexposure is documented by OSHA sampling).

OSHA is continuing to develop compliance assistance on the rule’s enforcement and you can find interim enforcement guidance here. Additional enforcement guidance is expected later this year.

OSHA’s latest regulatory agenda also revealed plans to reopen the rule to expand Table 1 in the construction rule, and to consider adding a similar approach for common high-exposure tasks in general industry and maritime. In December 2017, the U.S. Court of Appeals, DC Circuit, rejected the industry challenges to the final rule, but did accept the union challenge concerning OSHA’s decision to eliminate medical removal provisions from the final rule. Therefore, inclusion of a medical removal component may be part of any updated rule in the future. OSHA will publish any proposed changes in the Federal Register for stakeholder comment.

Adele L. Abrams, Esq., CMSP, is president of the Law Office of Adele L. Abrams P.C., and ASSP’s federal representative. Abrams is co-author of three ASSP books: The Safety Professional’s Handbook, Construction Safety Management and Engineering and Consultants Business Development Guide.