The First Six Months: How OSHA Is Currently Enforcing the Silica Standard in Construction
By John Martin of Ogeltree, Deakins, Nash, Smoke and Stewart, P.C.
For construction employers facing uncertainty on exactly how the Occupational Safety and Health Administration (OSHA) is enforcing the new silica standard in Construction, we now have a little bit of data that helps shed some light on this mystery. OSHA began enforcing the silica rule in construction on October 23, 2017. As of April 23, 2017, OSHA and State Plans that have adopted the silica rule (a few have not yet done so) have issued 117 violations. OSHA appears to rarely cite violations of the silica standard by themselves; citations are usually accompanied by violations of other standards, such as the fall protection standards. Here are some interesting statistics on OSHA’s first six months of enforcement of the silica standard in construction.
The Big Three
The most common violations of the silica standard thus far are the following:
- 35 cited violations of 29 C.F.R. § 1926.1153(d)(2)(i) for failure to conduct an exposure assessment of worker exposure to respirable crystalline silica; and
- 31 cited violations of 29 C.F.R. § 1926.1153(c)(1) for failing to adhere to the Table 1 list of equipment/tasks and OSHA’s required engineering and work control methods and respiratory protection.
- 20 cited violations of 29 C.F.R. § 1926.1153(g)(1) for lack of a written exposure control plan. OSHA did not provide a breakdown describing which elements were not in compliance or whether employers simply lacked written plans.
Federal OSHA and State Plans classified approximately 80 percent of the 117 cited violations as “Serious.”
The most commonly-cited violation, failure to comply with § 1926.1153(d)(2)(i), is no surprise. As with any health standard, OSHA’s first and foremost concern is with employer compliance with the permissible exposure limits (PEL) and proper exposure assessment. If an OSHA inspector comes out to location and learns an employer has not done an exposure assessment, then one can expect the agency to recommend and issue a citation. (This requirement only applies, however, to construction employers that fail to follow the requirements set out in Table 1.)
The second most commonly-cited type of violation, the “Table 1” violation, is a bit of a surprise. Table 1 requirements are not mandatory. If a construction employer opts not to follow the controls and respiratory protections for the equipment/tasks identified in Table 1, then it must follow the alternative exposure control methods in section 1926.1153(d), including conducting an exposure assessment.
The third most commonly-cited violations are violations for nonexistent or noncompliant written exposure control plans. Written exposure control plans must contain four minimum elements:
(a) a description of the tasks in the workplace that involve exposure to silica;
(b) a description of the engineering controls, work practices, and respiratory protection used to limit employee exposure to silica for each task (i.e., the employer’s custom-tailored “Table 1” for their unique tasks);
(c) a description of housekeeping measures used to limit employee exposure to silica; and
(d) a description of the procedures used to restrict access to work areas, when necessary, to minimize the number of employees exposed to silica.
These “big three” violations suggest that OSHA inspectors are perhaps inconsistently enforcing the silica standard for construction. Without access to the raw data (the actual citations themselves), it is difficult to say for sure, but it appears there may be two enforcement approaches at play. It appears one group of inspectors may conduct inspections with a “Table 1” focus. They examine workplaces with the Table 1 list first and foremost on their minds and, if they notice a discrepancy (say, a driveable saw not being used with a water delivery system), they cite the employer under section 1926.1153(c)(1) for not adhering to Table 1, which is the second most common violation to date.
The other group of inspectors likely takes what appears to be a more expected approach. They arrive on location, and if they see a that construction employer is not adhering to Table 1, then they move on to section 1153(d) and start asking employers for exposure assessment data, written exposure control plans, and the like. If there is no exposure assessment data, it results in a citation; if there is no written exposure control plan (or an inadequate plan), it results in a citation. This would explain the first and third most common violations.
The data released by OSHA does not reveal how many inspections under the silica in construction standard were conducted, how often employers were in compliance, or whether inspectors may be citing employers for violations of both Table 1 and alternative exposure control methods in one inspection. The data does reveal that employers have a way to go toward coming into full compliance with the silica in construction standard.
Thank you to Bruce Rolfsen, reporter for Bloomberg Environment, for his article, “Silica Safety Enforcement Ramps Up at Construction Sites,” which collected the statistics on OSHA’s first six months of enforcement of the silica standard in construction.