For employers concerned about how the Occupational Safety and Health Administration (OSHA) has been enforcing its Respirable Crystalline Silica Standard for General Industry, the agency’s enforcement data for the standard’s first 18 months provides some insight. From July 2018 to December 31, 2019, OSHA and state plan states issued 720 violations based on 29 C.F.R. Section 1926.1053, for a collective penalty total of over $1.5 million. The total number is based on the date of issuance of the citation(s), not the date an inspection was opened or closed.
Top Five Violations
The number one violation cited a lack of, or inadequate, exposure assessment. Unlike the Respirable Crystalline Silica in Construction Standard, employers subject to the general industry standard generally cannot, except for certain intermittent tasks, rely upon a “Table 1” that instructs an employer on the precise engineering, work practice, and respiratory protection controls it must follow when conducting certain tasks, such as using a masonry saw. Instead, general industry employers must conduct exposure assessments, which generally entail air sampling or relying on objective data to determine employee exposure to silica. If an employer cannot provide an inspector with records of air sampling data, or the objective data it relied on to determine exposure, OSHA will issue a violation under Section 1910.1053(d)(1).
The second most common violation concerned a lack of a (or an inadequate) written exposure control plan. A mistake sometimes occurs when employers rely on “global” exposure control plans for all work sites without offering detail on local work sites. While a global plan may serve as a basic framework, many employers seeking to comply with the standard nevertheless evaluate potential silica exposure at local sites to determine if any additions or revisions should be made to their plans.
The third most-common violation involved a citation for exposing employees to respirable crystalline silica in excess of the standard’s permissible exposure limit (PEL). This means that the OSHA inspector (an industrial hygienist, most likely) conducted air sampling of the work site and the lab results for those samples came back in excess of the PEL. When OSHA issued the final rule on the standard, it emphasized the need for employers to strive to achieve exposure levels below the PEL. Section 1910.1053(c) makes the fact of an employee’s working in an environment in excess of the PEL a violation in and of itself.
The number four violation addressed hazard communication, which is generally a failure of an employer to incorporate the subject of respirable crystalline silica into the company’s hazard communication program. An OSHA inspector commonly will ask for a safety data sheet (SDS) related to silica or quiz employees about silica. If an SDS is not provided, or an employee’s responses indicate a complete lack of awareness about silica, the employer may face a violation under Section 1910.1053(j)(1).
Rounding out the top five list is Section 1910.1053(f)(1): engineering and work practice controls. During the rulemaking process for the respirable crystalline silica standard and in the first 18 months of the standard’s enforcement, OSHA emphasized that employers could not simply put employees in respirators and expect automatically to achieve compliance with the standard’s requirements. Section 1910.1053(f)(1) requires employers to follow the hierarchy of controls and implement feasible engineering and work practice controls to achieve levels of exposure below the PEL. What is unclear without going through the inspection files for each violation is whether, despite an employer’s implementation of engineering and work practice controls, the agency is issuing violations because an inspector believes the employer could be doing more.