OSHA Issues Silica Enforcement Memo

 

By Jackson Lewis P.C.

The silica standard for construction came into effect last year, on September 23, 2017, whereas most provisions of the silica rule as it pertains to general industry and maritime (29 CFR § 1910.1053) take effect this month, on June 23, 2018. The new standard for general industry and maritime imposes stricter permissible exposure limits (PELs) by establishing “a new 8-hour time-weighted average (TWA) permissible exposure limit (PEL) of 50 µg/m3, an action level (AL) of 25 µg/m3, and associated ancillary requirements.”

According to a June 8thmemorandum from OSHA, “OSHA will assist employers that are making good faith efforts to meet the new standard’s requirements.”  The Agency indicates that those employers will be treated more leniently than employers in situations where “it appears an employer is not making any efforts to comply.”

“If upon inspection, it appears an employer is not making any efforts to comply, compliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard.

The determination as to whether an employer is or is not making a good faith effort to comply seems to be open to interpretation by the individual OSHA investigator.  The Agency appears to acknowledge this when it mentions yet-to-be-released “interim inspection and citation guidance” and refers to “effective implementation and uniform enforcement of the new standard.” (emphasis added)  This may in part be the reason why during the first 30 days of enforcement, any proposed citations for inspections carried out during this time period, will first have to go to OSHA’s National Office for review and approval before citations are actually issued.

A couple of publications produced by OSHA on the silica standard for general industry and maritime which may provide useful information are as follows: