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Regulators will consider good-faith efforts as silica rule takes effect

Posted On: Sep. 27, 2017 6:59 AM CST

Regulators will consider good-faith efforts as silica rule takes effect

Construction employers should utilize the “grace period” that they are receiving to comply with the U.S. Occupational Safety and Health Administration’s silica regulation to review their programs and make sure they are taking the necessary steps to come into compliance, according to experts.

Construction employers making good-faith efforts to comply with OSHA’s silica regulation could avoid citations during the first 30 days after the agency begins enforcing the rule, which began Sept. 23. The Occupational Exposure to Respirable Crystalline Silica rule reduces the permissible exposure limit for crystalline silica over an eight-hour shift to 50 micrograms per cubic meter of air for the construction industry, one-fifth of the previous maximum, as well as for general industry and the maritime industry, half of the previous maximum.

“During the initial days of enforcement, if we do get reports or we are at a site where there’s potential silica exposures, we are going to look at that employer’s good faith effort to protect their employees from that,” Patrick Kapust, OSHA’s deputy director of the Directorate of Enforcement Programs, said at the 2017 National Safety Council Congress & Expo on Monday in Indianapolis. “We’re hoping within 30 days or so to get out some interim enforcement guidance as well. But right now, this is how we’re going to deal with it.”

The agency has previously given employers making good faith efforts to comply with regulations additional time to do so, Mr. Kapust said, citing an OSHA policy that required oil and gas employers to provide flame-resistant clothing for their employees. The demand for such clothing was “too great” at the time so the agency evaluated their good-faith efforts to comply by checking for elements such as a purchase order, the timeframe for receiving the clothing and what protections were in effect in the meantime.

“This model isn’t necessarily different than models that we have used in the past when we kick off enforcement … to give employers extra time,” Mr. Kapust said.

“It’s not that uncommon to have this grace period,” said Matthew Linton, Denver-based of counsel with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. “Certainly, the rule is happening. It is indeed going to get enforced. The grace period is the last cookie to dangle to give employers a little more time to at least do something in good faith to try to comply in those first 30 days.”

The agency did not specify in the memorandum how it would evaluate whether an employer is acting in good faith to comply with the silica rule.

“A lot of that is going to be on a case-by-case basis, looking at what the employer has been doing and what they are continuing to do,” Mr. Kapust said. “Do they have their folks in respiratory protection? Were they trying to comply with the old standard? But it is going to be very case specific.”

OSHA will be looking for good-faith efforts such as employers having a written exposure control plan in place and a designated person to implement it and will partner with employers in the sense that it will work with them to answer questions before issuing any potential citations, said Erin Brooks, a St. Louis-based associate with Bryan Cave.

“That said, I also read the memo to take a fairly strong position that if an employer is not making any good-faith effort to comply with the standard, OSHA will exercise its enforcement discretion against such employers,” she said.

OSHA’s memo stated that 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, according to the memo. Ms. Brooks said this provision is “pretty significant” in light of the increase in OSHA’s maximum penalty structure, with the agency able to assess penalties for willful or repeat violations of up to $126,749.

“It’s probably an unlikely situation for a citation for the first 30 days, but not entirely improbable,” she said.

But it would be a “mistake” for employers to assume that they will receive additional time to comply beyond the 30 days, Mr. Linton said. 

“If OSHA’s learning that people are having significant issues complying, I wouldn’t be surprised if you saw some lighter enforcement, but I think this is the last step before reality sets in — this (enforcement) is going to happen,” he said.

“Because it’s a new standard, we might see some activity with OSHA,” Ms. Brooks said. “I don’t see it as an area of heightened enforcement activity, though, particularly during the rollout period. Past 30 days, OSHA’s patience to allow an employer to come into compliance might be thinner, but I also think OSHA’s resources to enforce will also be thinner.”

Meanwhile, oral arguments were heard on Tuesday by the D.C. Circuit Court of Appeals, which is overseeing consolidated litigation challenges to the silica rule.