July 14, 2020

Volume X, Number 196

July 13, 2020

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OSHA Enforcement for Respirable Crystalline Silica in Construction Standard, 2018-2019: By the Numbers

For construction employers anxious over how the Occupational Safety and Health Administration (OSHA) and state plan states are enforcing the Respirable Crystalline Silica in Construction Standard, the last two calendar years of enforcement data provided by the agency offers some insight. In 2019, OSHA and state plan states issued 973 violations under 29 C.F.R. Section 1926.1153, the Respirable Crystalline Silica standard for construction. This represents a 15.4 percent increase from the 843 violations under Section 1926.1153 issued in 2018. (According to OSHA, 28 states have OSHA-approved state plans. These plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements.)

The table below presents the five most common violations of the silica standard in construction. The numbers refer to the total number of violations issued in each calendar year, based on the date of issuance.

Top Five Violations

Calendar Year 2018 Calendar Year 2019
Standard No. of violations issued Standard No. of violations issued
§ 1926.1153(d)(2)(i)

 

Exposure assessment

185 § 1926.1153(c)(1)

 

Table 1

222
§ 1926.1153(c)(1)

 

Table 1

179 § 1926.1153(d)(2)(i)

 

Exposure assessment

189
§ 1926.1153(g)(1)

 

Written ECP

161 § 1926.1153(g)(1)

 

Written ECP

173
§ 1926.1153(i)(1)

 

HazCom

78 § 1926.1153(i)(1)

 

HazCom

91
§ 1926.1153(i)(2)(i)

 

Employee information and training

33 § 1926.1153(i)(2)(i)

 

Employee information and training

68

 

The data is consistent with our analysis in June 2018 when OSHA began enforcing the Respirable Crystalline Silica in Construction Standard and appears to show that inspectors are following one of two enforcement approaches. In Approach One, the inspector takes a “Table 1 First” attitude and focuses on the employer’s adherence to Table 1. If a shortcoming is found (say, not using a saw with an integrated water delivery system, or not following Table 1’s respiratory protection requirements), then the inspector issues a violation of Table 1, Section 1926.1153(c)(1). In Approach Two, the inspector sees that the employer is not following Table 1, and then focuses attention on the employer’s exposure assessment efforts. If the employer has failed to perform an exposure assessment (or has, but the inspector deems it inadequate), then the inspector issues a violation under the exposure assessment requirement, Section 1926.1153(d)(2)(i). Inspectors seemed evenly divided on the two approaches in 2018, but gave Approach Two a slight preference in 2019.

Is an employer better off under one enforcement approach or the other? It depends. Under Approach One, inspectors issued Serious classifications most of the time (approximately 81 percent in 2018 and 74 percent in 2019) and heftier fines ($3,979.23 per violation on average in 2018, $2,624.38 in 2019). Under Approach Two, inspectors also issued Serious classifications most of the time (roughly 73 percent in both 2018 and 2019), but lower penalties ($955.21 in 2018, and $896.29 in 2019). If the employer’s primary concern is penalty amount, then Approach Two may be the better option. But if the employer’s concern is the classification of the violation, neither approach appears to show an appreciable difference.

Rounding out the Top Five most commonly cited violations are: the lack of a (or an inadequate) written exposure control plan; failure to incorporate respirable crystalline silica into the company’s hazard communication program; and failure to train or inadequate training on silica hazards. A common shortcoming of written exposure control plans is having a “global” exposure control plan for all of an employer’s work sites, with no detail on the local work site. Another common violation is the failure to designate a competent person on location (cited under Section 1926.1153(g)(4) 23 times in 2018, and 42 times in 2019).

For hazard communication and training issues, inspectors will commonly ask to see training records and a safety data sheet (SDS) for silica. If none is provided, then one can expect an inspector to issue citations under Sections 1926.1153(i)(1) and (i)(2)(i). Keep in mind that inspectors will likely also quiz employees, asking them about what they know about silica. If the employees appear to have no clue as to what the inspector is talking about, then the inspector may conclude that the company’s hazard communication and training programs are inadequate, and issue citations accordingly.

What is OSHA not citing employers for under the Respirable Crystalline Silica in construction standard? Under Section 1926.1153(j), covering recordkeeping, there were only two violations issued in two years. Housekeeping violations are also uncommon. For example, under the general ban on dry sweeping in Section 1926.1153(f)(1), OSHA issued 18 violations in 2018 and 14 in 2019. Under the general ban on use of compressed air, OSHA issued eight violations in 2018, and only one in 2019.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 62

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About this Author

John Martin, Ogletree Deakins Law Firm, Employment Law and Energy Litigation Attorney
Shareholder

John Martin focuses his practice on occupational safety and health compliance and litigation. He serves as national OSHA counsel for three publicly-traded companies, and has over 15 years of experience in defending employers in federal court and before the Occupational Safety and Health Review Commission (OSHRC). John has defended clients in 18 states and counsels clients on developing safety programs to eliminate and reduce workplace injuries.

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