OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction

Seyfarth Shaw LLP

Seyfarth Synopsis: OSHA announced a thirty day phase-in for enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153.  The new rule will be fully effective by Monday, October 23, 2017.

OSHA’s new crystalline silica rule is wide-reaching and, for that reason, the rulemaking has been contentious. We have blogged about crystalline silica many times: OSHA Proposes Silica Worker Exposure Hazards Rule, OSHA Extends the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule, New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries, and Senators Ask OSHA to Consider the Fracking Industry Economy and to More Fully Extend the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule.

Crystalline silica is a staple of modern society. Crystalline silica is a common mineral found in many naturally occurring materials and used in many industrial products and at construction sites. Materials such as sand, concrete, stone, and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone. Industrial sand containing crystalline silica is also used in certain foundry work and hydraulic fracturing (fracking) operations.

OSHA estimates that 2.3 million workers are potentially exposed to crystalline silica on the job, and that nearly 676,000 workplaces will be affected by the crystalline silica rule, including in construction and in general industry and maritime. The rule was expected to result in annual costs of $1,524 for the average workplace covered by the rule. The total cost of compliance with the rule was estimated at “just over $1 billion” (per year).

In an effort to remedy some of the difficulties that have arisen to come into compliance with the construction portion of the new rule, the Agency had previously decided to delay enforcement of the standard from June 23, 2017, until September 23, 2017.

Now that September 23 has passed, the Agency issued a standard interpretation letter for the Launch of Enforcement of the Respirable Crystalline Silica in Construction Standard, 29 CFR § 1926.1153.  The new rule will be fully effective on Monday, October 23, 2017.  Specifically the interpretation states that:

During the first 30 days of enforcement, OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard. OSHA will render compliance assistance and outreach to assure that covered employers are fully and properly complying with its requirements. Given the novelty of the Table 1 approach, OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table. OSHA will assist employers who are making good faith efforts to meet the new requirements to assure understanding and compliance.

If, upon inspection, it appears an employer is not making any efforts to comply, OSHA’s inspection will not only include collection of exposure air monitoring performed in accordance with Agency procedures, but those employers may also be considered for citation. Any proposed citations related to inspections conducted in this time period will require National Office review.

For employers in these industries, it is important to note that this phase in period provides little additional time to come into compliance with the new rule. Due to the complexity of the rule, we recommend you contact your occupational safety and health attorney as soon as possible to discuss a path to compliance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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