By Pat Miller, Rod Smith, Chuck Newcom, Matt Morrison and Alyssa Levy

On October 19, 2017, OSHA’s Acting Deputy Assistant Secretary issued interim guidance to Regional Administrators on the new Respirable Crystalline Silica in Construction Standard. In this guidance, OSHA explains that as of October 23, 2017, the Agency will fully enforce provisions of the Silica in Construction Standard. The guidance provides flow charts to assist employers in the decision-making process for silica exposure protections. While the guidance highlights some of the requirements of the Silica in Construction Standard, it does not provide guidance on all of the standard’s provisions. OSHA states that a more complete compliance directive on the new standard will be forthcoming.

This standard became effective September 23, 2017. However, OSHA provided a 30-day grace period of sorts as set out in the Agency’s September 20, 2017 memorandum. Now that this 30-day period has passed, employers in construction must fully comply with the requirements of the silica standard and can be cited regardless of whether they are taking reasonable steps to comply.

The final rule on Occupational Exposure to Respirable Crystalline Silica, published on March 25, 2016, establishes a new PEL of 50 µg/m3 for all covered industries. It also outlines requirements for performing exposure assessments, using exposure control methods and respiratory protection, offering medical surveillance, developing hazard communication information, and keeping silica-related records. The rule includes two standards: one for Construction and one for General Industry and Maritime, both of which became effective on June 23, 2016. While the enforcement date of the construction standard is now October 23, 2017, as of now, the compliance deadline for General Industry, Maritime, and Hydraulic Fracturing remains June 23, 2018.

There are a few noteworthy statements in the interim guidance. Among them are the statement that OSHA makes regarding the use of “Table 1,” a table for construction employers to use for certain tasks that, if followed, negate the need to provide exposure assessments or comply with the PEL. OSHA states numerous times that employers who take advantage of Table 1 must “fully and properly” implement the engineering controls, work practices, and respiratory protection listed in that Table in order to be exempt from the standard’s exposure assessment and PEL provisions. This indicates that OSHA will closely scrutinize employers who are relying on this Table. Employers who do not follow Table 1 requirements to the letter can expect OSHA to then require compliance with the exposure assessment and PEL requirements. Because employers who are utilizing Table 1 may not be undertaking such assessments, noncompliance with the Table could expose such employers to a risk of citation.

Other statements of note in the interim guidance include:

• Directing Compliance Officers to collect breathing zone samples on the first day of an inspection;
• Opining that the employer has the burden of demonstrating that it is complying with the requirements of the “performance option” of exposure assessments, which allows employers to rely on air monitoring or objective data in their analysis;
• Directing Compliance Officers to compare their sampling results with the employer’s exposure data to determine “whether the employer’s data are representative.” To be representative, an employer’s samples “must have been obtained under conditions that closely resemble or have a higher exposure potential than CSHO samples.” This could lead to arguments over whose samples are more “representative,” the employer’s or OSHA’s.

As always, construction employers are encouraged to review the silica standard and make sure that they are in compliance with its requirements. Now that enforcement will be taking place, employers can expect OSHA to closely scrutinize all activities involving exposure to respirable crystalline silica.

Rod Smith, Pat Miller, Chuck Newcom, Matt Morrison and Alyssa Levy are part of Sherman & Howard’s Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2017 Sherman & Howard L.L.C.                                                                                       October 23, 2017