The silica standard for construction came into effect last year, on September 23, 2017, whereas most provisions of the silica rule as it pertains to general industry and maritime (29 CFR § 1910.1053) take effect this month, on June 23, 2018. The new standard for general industry and maritime imposes stricter permissible exposure limits (PELs) by establishing “a new 8-hour time-weighted average (TWA) permissible exposure limit (PEL) of 50 µg/m3, an action level (AL) of 25 µg/m3, and associated ancillary requirements.”

According to a June 8th memorandum from OSHA, “OSHA will assist employers that are making good faith efforts to meet the new standard’s requirements.”  The Agency indicates that those employers will be treated more leniently than employers in situations where “it appears an employer is not making any efforts to comply.”

If upon inspection, it appears an employer is not making any efforts to comply, compliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard.

The determination as to whether an employer is or is not making a good faith effort to comply seems to be open to interpretation by the individual OSHA investigator.  The Agency appears to acknowledge this when it mentions yet-to-be-released “interim inspection and citation guidance” and refers to “effective implementation and uniform enforcement of the new standard.” (emphasis added)  This may in part be the reason why during the first 30 days of enforcement, any proposed citations for inspections carried out during this time period, will first have to go to OSHA’s National Office for review and approval before citations are actually issued.

A couple of publications produced by OSHA on the silica standard for general industry and maritime which may provide useful information are as follows:

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.

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