Silica Rule Clears Up Jurisdictional Dust Cloud Surrounding Construction-Like Activities

05/05/2016

A guest blog post by Frank Skiba, Implementation Consultant at VelocityEHS.

In the complicated world of safety management, simply knowing which regulations you have to follow is half the battle. While that sounds straight forward, unfortunately that’s not always an easy question to answer. When does a pipe become a pipeline? When does exploration become mining? And perhaps the most commonly encountered question – when does maintenance become construction? Not being familiar with these important distinctions can put your company at risk of violation, but often there is no clear definition. OSHA addresses some of these important jurisdictional questions in its recently finalized rule aimed at protecting workers from exposure to respirable silica, and takes a unique approach intended to simplify the question of what requirements apply when work is construction-like in nature.

In this article, we’ll first go over some examples where the line between construction and general industry work is difficult to determine. Next, we’ll explore how the regulations define construction work, as well as the general principles OSHA applies in making this distinction. Finally, we’ll walk through the unique way that OSHA intends to reduce uncertainty regarding tasks covered by the new silica rule that straddle the line between construction and general industry work.

In the final regulatory summary published in the Federal Register on March 25 (81 FR 16285), the agency presents the issue like this:

“OSHA recognizes that in some circumstances, general industry activities and conditions in workplaces where general industry tasks are performed may be indistinguishable from those found in construction work. In some cases, employers whose primary business is classified as general industry may have some employees who perform construction work, and employers whose primary business is classified as construction may have some employees who perform general industry work. Given the wide variety of tasks performed in the workplace, it is inevitable that questions will arise regarding the classification of certain activities….”

Consider the following examples:

• An employee using a portable masonry saw to cut brick to patch a section of an existing brick wall, which is typically maintenance, would require the same tools and controls as an employee cutting brick while building a new brick wall, which is construction work.

• Installing new power lines is commonly understood to be construction, while the repair or maintenance of existing power lines is covered by the general industry standard even though the process and tools for mounting hardware are exactly the same.

• Concrete truck drivers frequently travel to more than one work location and may work at many different construction sites on any given day. These workers are typically covered by the general industry standard. However, they may work at construction sites and perform certain tasks that could be classified as construction work.

According to OSHA regulations, “construction” means “work for construction, alteration, and/or repair, including painting and decorating.” If you’re new to this question, you’ll quickly notice some odd things about this definition. First, the definition uses the word it is attempting to define (i.e. construction). Second, the other words “alteration” and “repair” are not defined, and no further guidance is provided within the regulation. Third, “maintenance” is also not defined within the regulation. Instead, OSHA has issued numerous interpretations over the years explaining the classification of activities as either general industry or construction work. This means employers can apply general principles from previous determinations, but whether work qualifies as “construction” remains a case-by-case determination.

One of the main factors OSHA focuses on when distinguishing between construction and general industry work is whether the work constitutes “improvement” or is meant to keep a worksite in its existing state. OSHA explains that "maintenance activities" are commonly defined as making or keeping a structure, fixture or foundation in proper condition in a routine, scheduled, or anticipated fashion. One-for-one replacements are also typically considered maintenance. OSHA also focuses on where the work is performed. For example, OSHA notes that construction work is frequently performed outside. Construction work is typically also transient meaning that it is not performed regularly in the same environment and conditions, whereas general industry work is performed in a relatively stable and predictable environment. The project’s scale and complexity are also relevant. This includes considerations of the amount of time and material required to complete the job. OSHA has ruled that when a situation is too close to call and cannot be neatly classified as construction or maintenance when measured against all other factors, the activity should be classified so as to allow application of the more protective standard, depending on the hazard.

Recognizing that employers face confusion about what standard applies to certain tasks, the Silica Rule takes a rather unique approach to give employers additional certainty for general industry tasks that are indistinguishable from construction. Under the regulation, OSHA will treat full compliance with the construction standard as full compliance with the general industry standard when such tasks are indistinguishable from construction work. In other words, OSHA has, to a degree, removed the case-by-case element for a list of tasks that are inherently construction-like. Specifically, 29 CFR 1910.1053(a)(3) allows employers to follow the construction standard rather than the general industry and maritime standard when the task performed is indistinguishable from a construction task listed in the construction standard, and the task will not be performed regularly in the same environment and conditions.

OSHA gives the following example:

The installation of new power lines is considered a construction activity, while the repair or maintenance of existing power lines is considered a general industry task, even though a handheld drill may be used to drill a hole in concrete during both activities. In this situation, if the employer complies with the exposure control requirements in the construction standard for handheld and stand-mounted drills (29 CFR 1926 (c)(1)(vii)), along with all other applicable provisions of the construction standard (e.g., a written exposure control plan), the employer would not be obligated under the general industry and maritime standard to perform an exposure assessment for the employees engaged in the drilling task, or be subject to citation for failure to meet the permissible exposure limit. Instead, the employer would have the same accommodation that the construction standard affords a construction employer doing that same task.

It’s still too soon to tell whether employers will view this added flexibility and certainty as beneficial, just as it’s too soon to tell the long-term impact of the rule on worker safety. What will employers think about this approach, and could it be helpful for interpreting other rules where regulated activities straddle this jurisdictional border?  Considering all of the issues the Silica Rule addresses, as well as the challenges it poses for employers as they adapt to these new requirements, it’s worth noting that OSHA took time to highlight a persistent question that employers struggle with on a daily basis, and attempts to resolve it in a unique way.

About the Author

Frank Skiba joined VelocityEHS as Implementation Consultant in 2015.  He holds a B.A. from Wabash College, and a J.D. from Vermont Law School. Frank has several years of experience advising businesses on compliance with environmental laws and sustainability requirements, and helping them design innovative technical solutions to ensure compliance and improve EHS performance. With his extensive knowledge of U.S. environmental and natural resource laws, regulatory programs, and sustainability policies, Frank is a valuable asset to the VelocityEHS team. In his free time he enjoys fishing, biking, and hiking and is preparing for a backpacking trek across the Grand Canyon later this year.