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On April 6, 2017, OSHA issued a press release that delayed enforcement of the new Silica Rule in construction for 90 days, until September 23, 2017. Originally the compliance date for construction was established as June 23, 2017, one year from the effective date of the standard. In the press release OSHA indicates that “additional time is needed to conduct outreach and provide educational materials and guidance to employers”. OSHA has indicated that due to the unique nature of the requirements in the construction standard, additional guidance is necessary. This press release accompanies a memo from the Deputy Assistant Secretary to OSHA Regional Administrators informing them of the delay and indicating that additional educational materials that will be made available “shortly”. The memo also indicates that this additional time will be used for training compliance officers.
It is important to note that this action only affects the construction standard (1926.1153).
And not the General Industry version (1910.1053), which currently maintains an initial compliance date of June 23, 2018. Questions have been swirling as to whether this standard will be pulled back, for both General Industry and Construction. To date there have been no actions on this front. A memo issued by the White House January 20, 2017, implemented a freeze on “pending” regulations until they were been reviewed and further action approved. Silica was not impacted by this memo as the standard was already effective June 23, 2016.
There are other approaches that could be potentially employed to rescind this action. Congress could inactivate the rule through mechanisms used in the past such as a rider to an appropriations bill prohibiting any funding for activity or enforcement on silica. The silica rule was submitted in time to preclude rescinding the silica rule by the current congress through the Congressional Review Act (CRA). However there was discussion earlier this year about amending the CRA that might make the silica rule vulnerable. To date this has not happened and at this time Congress’ intentions with respect to silica are unknown.
On another front, the construction rule continues to be challenged by the National Association of Home Builders (NAHB) and members of the Construction Industry Safety Coalition (CISC).
Following the announcement of the delay in construction the CISC released this statement:
“The Construction Industry Safety Coalition is pleased that OSHA has recognized the need to develop guidance material for the construction industry before enforcing the silica rule, and we remain committed to working with the agency to create a feasible standard that promotes safe and healthy jobsites. While the CISC appreciates the 90-day delay in enforcement, the CISC remains concerned about the overall feasibility of the standard in construction and has requested that the agency delay enforcement for a year.”
Some have even suggested that the new administration at the Labor Department may take action to roll back some of the recently issued labor rules. Silica has not been mentioned (to my knowledge) in this context, however others that have include aspects of the Severe Violators Program and the new rule on Electronic Reporting of Injuries and Illnesses.
As always, stay tuned, as the OSHA landscape may change significantly in the coming days and I am sure we have not heard the last regarding challenges to the silica rule. To keep up, check links and additional information available on the OSHA website at their Silica page: www.osha.gov/silica/. If you need help deciphering what this all means, how it applies to your specific situation, or would like assistance in crafting a compliance plan, EI’s professional staff has extensive experience in dealing with this age old contaminant and would be happy to help! Give us a call at 1-800-717-3472.