Contracting firms that can demonstrate they are attempting to comply with a new federal Occupational Safety and Health Administration limit on silica dust levels in construction workplaces will have a 30-day grace period before they are hit with penalties.

OSHA did begin enforcing the construction silica regulation on Sept. 23. But Thomas Galassi, Labor Dept. acting deputy assistant secretary, said in a Sept. 20 memo to regional OSHA administrators that, for 30 days, the agency’s compliance officers will not issue penalties to employers that demonstrate a “good faith effort” to meet the new requirements.

Companies that do not appear to be taking steps to comply, however, may receive citations, Galassi said. [View OSHA construction compliance fact sheet here.]

A coalition of construction industry groups has challenged the rule in federal court, saying it is not technically or economically feasible and does not take into consideration the constantly changing nature of construction work.

The coalition, which includes the Associated General Contractors of America, the Associated Builders and Contractors, and the National Association of Home Builders, has asked OSHA to withdraw the rule and work with industry to develop a new standard.

A three-judge panel from the U.S. Court of Appeals for the District of Columbia heard oral arguments in the case on Sept. 26.

Labor unions and worker advocates say that exposure to silica dust causes a host of illnesses, including silicosis and lung cancer, and that technologies to protect workers are available and inexpensive.

OSHA says that the rule will save more than 600 lives and prevent more than 900 new cases of silicosis each year.

The standard, finalized in March, establishes a new eight-hour, time-weighted average permissible exposure limit of 50 µg/m³   , approximately one-fifth the previous maximum.

Under the new standard, employers also must develop a written exposure-control plan that identifies tasks that might be expose workers to silica dust and methods used to protect workers.

Additionally, companies must train employees to limit exposures and keep records of workers’ silica exposure and medical exams. The regulation provides flexibility for small businesses, through a table that lists a variety of paths to achieve lower silica exposures.

Industry reaction

Kevin Cannon, AGC’s senior director of safety and health services, says that, although the 30-day extension gives employers more time to better understand how to comply, he is disappointed that it falls short of what industry has been asking for. 

“I still think the industry needs more time,” says Cannon, who adds that the new standard “is very complex.” Moreover, OSHA’s compliance assistance seems to be limited to site visits. But “that will only be a few people” to cover the many employers that will need guidance, he says. Cannon adds that AGC has sought to find out the criteria OSHA will use to determine what a “good faith” effort is. But, “at this point, I don’t think they’ve identified what it means to make a good faith effort,” he says, noting that contractors that do nothing can still be cited.

Daniel Anna, a senior industrial hygienist and past president of the American Industrial Hygiene Association, says that though AIHA supports the rule and is eager to see it go into effect, 30 more days to help employers understand how to comply could be helpful in the long run.

Anna says, “If they see that a company is making an attempt that is in line with the expectations [of the rule], but falling short, if their goal is compliance assistance and helping those employers be able to do a better job in the long term of protecting workers, that seems reasonable.”

He notes, however, that “it is unfortunate that there is that pushback from employers” that say the rule is difficult to comply with because “we’ve known since the 1930s that silica causes silicosis…and a lot of the same technologies that we were talking about then are the same ones we are talking about now.”

The text of this article was updated on Oct. 3, 2017 to reflect new information. Story corrected on Oct. 20, 2017, with correct surname for Daniel Anna of the American Industrial Hygiene Association.