Employers that are worried about whether their new or upgraded programs for silica protection will pass regulatory muster under the Occupational Safety and Health Administration’s (OSHA) general industry standard for respirable crsytalline silica, for which enforcement begins on Saturday, June 23, 2018, can breathe a small sigh of relief. On June 7, 2018, OSHA issued an enforcement memorandum to all regional administrators, directing them to “assist employers that are making good faith efforts to meet the new standard's requirements” during the first 30 days of enforcement (until Monday, July 23, 2018). In other words, if an inspector believes an employer is making an earnest attempt at compliance, he or she is to work with the employer on achieving compliance during this 30-day “grace period” of sorts.
On the other hand, if “an employer is not making any efforts to comply,” inspectors are to put on the white gloves and conduct a complete silica inspection. “[C]ompliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard.” Any citations that inspectors recommend for issuance must be reviewed and approved by OSHA’s national office.
The memorandum begs the question of what, exactly, are “good faith efforts” to meet the silica standard’s requirements. Suppose the employer is relying on objective data to show it will be under the standard’s permissible exposure limit (PEL) and action level (AL) but the inspector disputes the objectivity of the “objective data.” Does the inspector then instruct the employer to find better objective data or launch a full inspection? What if the inspector believes the employer is not utilizing enough engineering or work practice controls to minimize silica exposure and believes the employer is too reliant on dust masks and other personal protective equipment? Is that a good faith effort at compliance?
The answer is, it depends on the inspector’s subjective point of view. While that could be a reason for employer alarm, OSHA put a big check on the inspector’s ability to recommend citations; the national office must review and approve any citations recommended for issuance under the silica standard for general industry during the 30-day grace period. Most inspectors likely won’t go to the trouble of conducting a silica inspection unless a worksite is in terrible condition and the employer is making virtually no effort at compliance. The alternative is the inspector spends significant time and effort conducting an inspection, as well as writing up the inspection report and recommendations for citations, which will likely be reviewed by his or her assistant area director, area director, and regional director before allowing the national office to have a look. Having at least up to four levels of review for any silica citations means that only the worst-of-the-worst worksites will likely be considered for citations until July 23, 2018.