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OSHA Announces Proposed Silica Rule, Lowering PEL, Ending Lengthy OMB Review

Thursday, September 5, 2013

By Stephen Lee and Robert Iafolla  

 

Federal efforts to protect workers from silica exposure entered a new phase Aug. 23 when the Occupational Safety and Health Administration finally announced its proposal for regulating silica dust.

OSHA's proposed rule would set a permissible exposure limit (PEL) of 50 micrograms of respirable crystalline silica per cubic meter of air. The current levels have not been updated since they were adopted in 1971.

The current PEL for general industry is approximately 100 micrograms per cubic meter of air. For construction and shipyards, it is about 250 micrograms. The existing silica standard uses equations to determine the exposure limits. Those equations would be scrapped in the new standard in favor of a single PEL.

In addition to the lower PEL, the proposal includes provisions for measuring silica exposure, using effective methods to reduce exposure, providing medical exams to workers with high exposures, and training workers about silica hazards.

The announcement brings to a close a review of a draft proposal by the White House Office of Management and Budget that stretched to two and a half years, well in excess of OMB's maximum allowable 120-day review period. As the delay continued, it increasingly drew the ire of unions, worker advocates, and members of Congress who portrayed the old standard as woefully out of date.

Lower PEL 'Absolutely Necessary.'

Industry has vigorously opposed a new standard, especially lowering the PEL, arguing that the agency should focus on enforcing the current limit rather than setting a lower level.

But extensive peer-reviewed risk assessments show that workers are at risk for silicosis and lung cancer from exposure to silica even at levels under the 100 microgram exposure limit, OSHA chief David Michaels said in an Aug. 23 conference call with reporters.

“It's absolutely necessary to go below the current PEL,” Michaels said.

OSHA has estimated that the proposed rule would save nearly 700 lives per year and prevent 1,600 new cases of silicosis per year.

The agency says 2.2 million workers are exposed to respirable silica in their workplaces, 1.85 million of whom work in construction. The proposal includes two separate regulatory texts, one for the general industry and maritime sectors and one for construction.

The notice of proposed rulemaking included a preamble, containing analyses and explanations, that stretches for nearly 700 pages.

OSHA did not develop regulations for agricultural workers, citing insufficient data to determine if the new PEL would be feasible in agricultural operations.

Costs, Benefits

OSHA estimated the proposed rule would provide $2.8 billion to $4.7 billion in average net benefits per year. Those benefits are calculated by assigning a dollar value to each anticipated life saved and illness avoided. (See related story.)

The agency pegged the rule's cost at $637 million annually, averaging to $1,242 per workplace. Companies with fewer than 20 workers will incur average costs of $550, OSHA said. The proposal's estimated costs includes $330 million for engineering controls, $91 million for respirators, $76 million for medical surveillance, and $73 million for exposure assessments.

Business interests have raised concerns about the proposal's price tag, with some disputing the agency's estimates.

“The OSHA cost estimate is a joke,” Henry Chajet, a partner at Jackson Lewis LLP who represents employers, told Bloomberg BNA. “I'm really surprised, given the [OMB] delay, there wasn't an improved cost estimate.”

The American Chemistry Council estimated in 2011 that lowering the PEL and adding ancillary provisions to the silica standard would cost $5.1 billion per year, eight times greater than OSHA's estimate.

Marc Freedman, executive director of labor policy at the U.S. Chamber of Commerce, told Bloomberg BNA that the proposed rule “will definitely have significant impacts on a wide array of industries and workplaces, including the fracking industry, which has yielded enormous benefits in terms of energy development and job creation.”

'Solid Proposal.'

Labor groups and worker safety advocates commended the proposed rule, calling it a long-overdue improvement to outdated worker protection regulations.

“Basically, we think it's a solid proposal,” Peg Seminario, director of safety and health for the AFL-CIO, told Bloomberg BNA. The overall reaction from unions has been favorable, even as they continue to examine the rule for potential weaknesses, she said.

In addition to the potential benefits of the regulations themselves, OSHA's rulemaking effort renews the workplace focus on the hazards of silica exposure, said Barbara Rahke, director of the Philadelphia Area Project on Occupational Safety and Health. That renewed focus could result in more worker awareness and employer compliance, she told Bloomberg BNA.

OSHA treated silica like other regulated hazardous substances, such as asbestos and benzene, by including an array of new requirements in its proposal. As per the hierarchy of controls, the proposed rule mandates that companies use engineering and work-practice controls as the primary means to reduce exposure. When those controls are not sufficient, respirators are required.

Air Monitoring

Under the proposed rule, employers would be obligated to monitor the airborne concentration of silica in the workplace, unless they can objectively demonstrate there is no silica released above the action level--set at 25 micrograms per cubic meter of air.

After the initial monitoring, the rule would allow businesses to choose between retesting the air on a fixed schedule or using the so-called performance option, which calls for assessing exposure based on “any combination of air monitoring data or objective data sufficient to accurately characterize employee exposures” to silica.

The proposal mandates that companies have silica samples analyzed by laboratories that meet specified accreditation criteria. OSHA proposed a two-year startup period to give laboratories time to meet accreditation requirements in recognition that the monitoring obligations will increase the demand for analysis.

Control Methods in Construction

Construction companies can avoid the monitoring requirements by using specific engineering and work-practice control methods for 13 specific tasks, such as jackhammer operation, drywall finishing, and rock crushing. The use of water to control airborne dust is a common method.

But the National Association of Home Builders criticized the control measures in an Aug. 28 statement, calling them “one-size-fits-all measures that contradict existing safety and quality assurance practices for different types of contractors.”

For example, NAHB said using water to control dust can be practical in some projects, but it can cause mold inside a house or endanger workers who are cutting shingles on a roof in cold weather.

OSHA did not propose prohibiting the use of silica in abrasive blasting. But using water to control dust is not always feasible, said Sidney Freedman, director of architectural precast concrete services at the Precast/Prestressed Concrete Institute.

“We are selling aesthetics and you can't sandblast one area deeper than another because the appearance changes,” Freedman told Bloomberg BNA. “Using water gets mud on the surface and you can't see what you're doing. To go that way as an engineering control doesn't work for us.”

Medical Surveillance.

The proposed rule requires medical surveillance for workers exposed to silica at or above the PEL for at least 30 days per year. Surveillance includes an initial examination with an emphasis on the respiratory system.

Tee Guidotti, a member of the American Thoracic Society's environmental health policy committee, said exposure at the 25 microgram action level would be a preferable trigger for medical surveillance, but the 30-day exposure trigger represents a reasonable compromise.

“It doesn't allow for over exposure to proceed long enough to make a significant impact on health,” Guidotti told Bloomberg BNA.

Unlike other industry groups, the National Industrial Sand Association supports mandating exposure monitoring and medical surveillance. NISA president Mark Ellis told Bloomberg BNA the combination of those two requirements would adequately protect workers, so the agency should not lower the PEL.

Other Provisions

The proposed rule contains a number of other provisions that:

 

• limit worker exposure by creating regulated areas with limited access or establishing written access-control plans,

• prohibit dry sweeping or using compressed air to clean silica and mandate wet methods or HEPA-filter vacuuming,

• prohibit rotating employees to different jobs to comply with the PEL,

• require employers to include silica in their hazard communication program,

• require worker training on operations that could result in exposure and on protective methods,

• require recordkeeping of air monitoring, medical surveillance, and other data.

 

The proposed rule does not require a written exposure control program, which is part of the American Society for Testing and Materials's general industry and construction standard for silica.

Exposure control plans provide clear, systematic information for workers, said Keith Wrightson, Public Citizen's worker safety and health advocate. Such plans are especially effective when they are written in workers' native tongues--a particular concern in the construction industry, where many workers are not native English speakers, Wrightson told Bloomberg BNA.

Hygiene Protocols

OSHA backed off from a provision that would have mandated a series of hygiene protocols for silica-contaminated clothing, such as requiring employers to provide changing rooms and shower facilities, as well as requiring employers to launder workers' clothes.

The agency included the hygeine protocols in the 2003 draft rule that was examined by a small business review panel, but replaced them with more flexible requirements for work areas where employees' clothes could be “grossly contaminated” with silica.

In general, the 2013 proposed rule closely tracks the 2003 draft, according to a list of panel recommendations and OSHA responses in the preamble to the proposal, as well as a comparison of the proposal with a copy of the draft general industry rule obtained by Bloomberg BNA.

OMB Delay

OSHA's original silica proposal was sent to OMB Feb. 14, 2011.

When asked about the two-and-a-half-year OMB review, OSHA administrator Michaels attributed the delay to extensive underlying analyses OSHA had to conduct. Detailed economic analyses and technical feasibility analyses had to be performed for every industry and sub-industry that falls under OSHA's jurisdiction, Michaels said.

Still, the agency had to submit those analyses to OMB along with the original proposal, sources with expertise in the rulemaking process told Bloomberg BNA.

OSHA said it needed to do additional analysis on how a new standard would impact hydraulic fracturing. The agency estimated roughly 25,000 workers and 200 businesses involved in fracking would be affected by the proposed standard.

Next Steps

The agency has yet to officially publish the notice of proposed rulemaking in the Federal Register. Once it is published--OSHA has not yet announced a date--the agency will embark on a final rulemaking process that will almost certainly stretch for years.

The next step for the agency is to solicit written comments. Publication will open a 90-day comment period.

OSHA plans to hold a public hearing in early March 2014. Michaels said the information-gathering process will continue for “many months.”

 


OSHA's notice of proposed rulemaking is available at https://www.osha.gov/silica/nprm.pdf.

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