Last week, OSHA began a potential rulemaking process to expand what some might consider exceptions to the 2016 silica rule in construction. Here’s what we know…
On July 29th, OSHA submitted to the Office of Information and Regulatory Affairs (OIRA) what likely will be a future public request for information (RFI) that deals with respirable crystalline silica. Based on what OSHA has said in the recent past, the RFI may focus on gathering information about which dust control measures and construction tasks could be added to the construction rule’s “Table 1.”
Table 1 in many ways works like a safe harbor provision. It lists effective dust control methods for particular construction tasks. Employers who use the methods in Table 1 are not subject to the permissible exposure limit and do not have to measure workers’ exposures to silica. It is a straightforward way for employers to know they are protecting employees without having to follow the complicated provisions of the silica rule.
OSHA suggested in its Spring 2019 regulatory agenda that its future RFI would look for information about both additional control measures for tasks already listed on Table 1, as well as additional tasks that could be added. It wrote, “OSHA intends to evaluate the available information to determine if revisions to Table 1 may be appropriate.”
OIRA often conducts its reviews within 60 days, but it is not required to finish in that time. During the process, it often manages an interagency review, which may solicit input from other agencies, including NIOSH and MSHA. Expanding the tasks and controls on Table 1 may be the easiest way for the current administration to reduce or loosen the requirements of the silica rule. During the prior administration, the rule survived despite a lengthy rulemaking process, thousands of comments, and a court challenge.
