ST. PAUL, Minn. — On September 20, 2017, the federal Occupational Safety and Health Administration (OSHA) sent a memo to Regional Administrators regarding enforcement of the new construction silica regulation 29 CFR 1926.1153. This new rule, originally issued in March 2016, has already been delayed once in terms of the enforcement date going into effect. It was moved from June 23, 2017 to September 23, 2017 on April 6, 2017.
This new memo does not appear to extend the enforcement deadline, which is now in effect. It only grants a 30-day grace period where OSHA will take into consideration if employers show a good-faith effort that they are trying to take steps to comply with the new silica regulation.
What Does the 30-Day Good Faith Grace Period Mean for Silica Enforcement?
This newest memo, written by Thomas Galassi, the agency’s acting deputy assistant secretary, states that for the first 30 days of enforcement, “OSHA will carefully evaluate good faith efforts by employers in their attempts to meet the new construction silica standard.” OSHA goes on to say if it appears the employer has not made efforts to comply, worker exposure assessment may be conducted and the issuance of citations may be considered.
This does not appear to be a delay of enforcement, only an explanation of how enforcement will begin to occur for these first 30 days only.
Some States Adopt Their Own Silica Enforcement Deadlines and Standards
Employers should also be aware that federal OSHA actions regarding enforcement may or may not be followed by states that have OSHA approved State Plans. For instance, Virginia OSHA has been enforcing the silica construction regulation since June of this year. They did not to follow the 90-day delay federal OSHA issued on April 6, 2017 that moved the enforcement date to September 23, 2017.
Moreover, there are several states that have state-specific silica regulations in effect (e.g. New Jersey and California) that are independent of the federal regulations.
Current Legal Challenges to Silica Regulation 29 CFR 1926.1153
The new silica regulation is also being challenged in court by a group of employers who say the rule sets too strict of a standard, is too costly, and is technologically unfeasible to meet. Arguments on that case, in the U.S. Court of Appeals District of Columbia Circuit, began Sept. 26. However, how and when this current legal challenge to the silica regulation by the court will be decided is unclear.
What Should You Do Now to Comply with Silica Regulations?
3M suggests that contractors and employers continue with their efforts to comply with 29 CFR 1926.1153. According to 3M technical specialist Don Garvey, CIH, CSP, “If changes do occur in regard to enforcement, contractors should be sure they understand how enforcement may work in the specific state they will be working in.” There are several general construction regulations that can be applied to silica.
Still have questions about how your business is affected and how to comply with this new regulation? Check out our silica resource center to help you achieve compliance. We also encourage you to contact a 3M technical specialist at 1-800-243-4630, who can help answer your questions and provide you with helpful solutions, including training, education and products.