In March 2016, OSHA published its standards for respirable crystalline silica in general industry/maritime (29 C.F.R. § 1910.1053) and in construction (§ 1926.1153), both of which have been phased in. OSHA has been enforcing the construction standard for about a year (since September 23, 2017), and this summer the standard for general industry/maritime became enforceable (as of June 23, 2018). Employees in general industry can be exposed to small silica particles during manufacturing (e.g., glass, pottery, ceramics, brick, concrete, and artificial stone) and during other non-construction activities that use sand (e.g., abrasive blasting and foundry operations). Employers who are involved in such activities, or in construction work, may be affected by the silica standards.
Consequences of noncompliance are serious for employers, not only in terms of potential health risks to their employees, but also risks of enforcement actions by OSHA (and states with OSHA-approved programs). OSHA has been conservative and generally modest in penalties issued to date, but that is likely to change. For example, in August 2018, a construction company was cited for violations of the silica construction standard, with a proposed penalty of over $300,000. Employers in construction and, now, general industry, should heed this warning as a sign of things to come.
Although the two silica standards differ in certain respects, both generally require employers to develop a written exposure control plan, perform an exposure assessment and periodic monitoring, implement feasible engineering and work practice controls, ensure respiratory protection and medical surveillance where necessary, comply with housekeeping measures, and maintain recordkeeping. The general industry standard also requires demarcation of regulated areas. It is important that silica hazards are incorporated into an employer’s hazard communication program, as the OSHA Hazard Communication Standard is also incorporated by reference and expanded upon in the silica standards.
Both standards are now subject to enforcement, except for some general industry/maritime requirements for employees exposed at or above the action level, and some requirements for hydraulic fracturing operations in the oil and gas industry. For enforcement of the general industry/maritime standard, OSHA gave employers an additional 30-day grace period (until July 23, 2018), as long as they were making good-faith efforts to comply. But the time has come for compliance, inspections, and enforcement.
Employers should be prepared accordingly, consider how to handle an inspection, and consult OSHA’s guidance. OSHA recently issued various compliance materials on its general industry/maritime webpage, including interim enforcement guidance. Additional resources added by OSHA to its construction work webpage include a slide presentation for training construction workers, a five-minute video on protecting workers, a series of short videos for various construction tasks, and an FAQ page.
Even with these compliance materials, the silica standards can be complex and difficult to implement in a practical manner. Employers should consult professionals to ensure compliance and mitigate any enforcement actions that may arise.
