Comments on Occupational Exposure to Respirable Crystalline Silica; Proposed Rule; 78 Fed. Reg. 56,274 (Sept. 12, 2013)

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1 Uploaded to Docket ID No. OSHA U.S. Department of Labor Occupational Safety and Health Administration Room N Constitution Avenue NW. Washington, DC Re: Comments on Occupational Exposure to Respirable Crystalline Silica; Proposed Rule; 78 Fed. Reg. 56,274 (Sept. 12, 2013) Ladies and Gentlemen: The American Iron and Steel Institute ( AISI ) is pleased to submit comments on the proposed Occupational Exposure to Respirable Crystalline Silica; Proposed Rule. 1 AISI serves as the voice of the North American steel industry in the public policy arena and advances the case for steel in the marketplace as the preferred material of choice. AISI also plays a lead role in the development and application of new steels and steelmaking technology. AISI is comprised of 23 member companies, including integrated and electric furnace steelmakers, and approximately 125 associate members who are suppliers to or customers of the steel industry. AISI s member companies represent over three quarters of both U.S. and North American steel capacity. For every one of the steel industry s 152,900 direct jobs, the steel sector generates seven jobs in upstream and downstream industries, adding more than 1,000,000 jobs to the economy. While labor productivity in our industry has seen a five-fold increase since the early 1980s, AISI members are committed to continuous improvement in safety and health and to achieving an injury-free workplace. While AISI appreciates that the Occupational Health and Safety Administration (OSHA) has attempted to develop a regulation that would protect workers health in general industry from the dangers of exposure to elevated levels of respirable crystalline silica, AISI members believe lowering the current Permissible Exposure Level (PEL) is unnecessary to achieve this end. Further, the proposed rule creates too much uncertainty for the current worker protection standards in the steel industry and imposes significant added costs without comparable added benefits towards worker safety. Accordingly we offer the following comments summarized and detailed below Fed. Reg. 56,274 (Sept. 12, 2013)

2 Page 2 SUMMARY The existing OSHA crystalline silica PEL of 100 micrograms per cubic meter of air (µg/m 3 ) should be maintained and fully enforced for general industry. The prohibition of dry sweeping and compressed air in lieu of wet control methods creates safety hazards in the steel industry through the potential for steam explosions. As proposed, it is unclear which employees must receive training on crystalline silica exposure. The proposed standard is duplicative to existing standards for metallurgical coking operations and such operations should be exempt from the proposed rule. The proposed PEL creates confusion with the existing coal dust PEL in how OSHA will apply both standards in coal processing and handling areas. The steel industry has experienced difficulty in accurately measuring silica exposure down the proposed Action Level of 25 µg/m 3 due to graphite interference and requests OSHA guidance in such situations. OSHA has not considered the precedential effect and associated added costs the lowered PEL will have with other agencies. OSHA s Current Exposure Level for Silica is Sufficient to Protect Workers When Fully Enforced Before moving to a lowered PEL, OSHA should consider the alternative of improved enforcement of and expanded outreach for the existing PEL of 100 µg/m 3 for general industry. OSHA s own numbers show that between 1997 and 2002 under its Special Emphasis Program (SEP) for silica exposure in the workplace, 34 percent of general industry was not in compliance with the existing PEL. 2 Furthermore, between 2003 and 2009 under the National Emphasis Program (NEP), some 30 percent of general industry was not in compliance with the PEL. 3 By simply cutting the existing PEL for general industry in half, the agency will not ensure greater compliance, but will make it even more likely that the 70 percent of general industry that was in good standing will now find themselves in noncompliance Fed. Reg. at 56, Id. at 56,294.

3 Page 3 Moving towards full compliance with the existing PEL will also lower the health risks workers face from crystalline silica exposure, as more facilities would actually achieve the 100 µg/m 3 or need to take the necessary control measures, such as respirator use and medical surveillance, if they were unable to meet the standard. AISI, therefore recommends that OSHA carefully study the effects of full compliance with the existing PEL on reducing the health risks of exposed workers and continue employer outreach programs, such as SEP and NEP, coupled with better enforcement of the existing standard. This approach will give the agency a better picture of the level of worker protection under the existing PEL rather than forcing a new stricter standard that will be more complex and technical to implement with the false hope of appreciably reducing health risks and driving greater compliance. Prohibition on Dry Sweeping and Compressed Air Presents a Significant Safety Hazard for Steel Making Facilities In its new standard, OSHA proposes specific engineering controls as methods of complying with the lowered PEL. One of the proposed amendments prescribes the cleaning methods allowed to ensure there is not an accumulation of crystalline silica in the workplace, including wet sweeping and use of HEPA-filter vacuums. 4 This amendment goes on to add 29 CFR Section (f)(3) that specifically prohibits the use compressed air and dry sweeping as acceptable cleaning methods. Compressed air, dry sweeping, and dry brushing shall not be used to clean clothing or surfaces contaminated with crystalline silica where such activities could contribute to employee exposure to respirable crystalline silica that exceeds the PEL. 5 In areas of steel making facilities where molten metal is present, the use of dry sweeping has been the industry practice for controlling crystalline silica and other dust accumulation. Wetting methods for dust control in these areas present the potential for steam explosions, a significant and immediate safety hazard for any workers in these areas of the facility. Further, the alternative of HEPA-filter vacuuming for such large areas is both cost prohibitive and logistically difficult. AISI, therefore requests that OSHA allow flexibility in the choice of cleaning methods for work areas where wet controls present a greater danger to worker safety than established dry sweeping methods and where vacuuming is not practical. Training Requirements for Employees Needs Clarification 4 Id. at 56, See id.

4 Page 4 Employers covered by the proposed rule will be required under 29 CFR Section (i) to ensure each employee is trained in accordance with the HCS [Hazard Communication Standard] and paragraph (i)(2) of Section (emphasis added). Paragraph (i)(2) of the proposed regulation goes on to require that the employer shall ensure that each affected employee can demonstrate knowledge of operations that could result in exposure to respirable crystalline silica, procedure implemented to protect employees, the contents of the proposed rule, and the purpose and contents of the medical surveillance program (emphasis added). The proposed employee training requirements use the terms each employee and each affected employee interchangeably. Clarification is needed on whether OSHA intends all employees at a facility to receive the training required under the proposed rule or if only affected employees must go through proper training. In the preamble affected employee is defined as any employee who may be exposed to respirable crystalline silica under normal conditions of use or in a foreseeable emergency. 6 While this definition provides some clarity as to the class of employees the training requirements target, ambiguity still exists. Does the definition contemplate training any employee that could foreseeably be exposed to any level of silica or only those employees that could be exposed at the Action Level of 25 µg/m 3 or at the proposed PEL of 50 µg/m 3 that Section (i)(2) expressly calls out? AISI requests that OSHA amend the definition of affected employee to only those foreseeably exposed at the PEL and use this term throughout to provide certainty that only affected employees need to receive the required training on potential crystalline silica exposure in their specific work areas. The Proposed Rule is Duplicative of Existing Steel Industry Standards and Potentially Conflicts with the Coal Dust PEL The proposed silica regulation is duplicative of OSHA s existing Coke Oven Emissions (COE) standard. 7 The COE standard protects employees working in the regulated area around metallurgical coke ovens and metallurgical coke oven batteries where exposure to emissions are of greatest concern. The COE standard sets a PEL of 150 µg/m 3 of metallurgical coke oven emissions that an affected employee may be exposed. Beyond this PEL, the standard requires engineering controls, including respiratory protection and detailed medical surveillance for exposed workers. AISI believes that workers covered by OSHA s COE standard are therefore already protected 6 Id. at 56, See 29 CFR (establishing detailed respiratory protections and medical examination requirements for workers in the regulated area).

5 Page 5 adequately from the dangers of crystalline silica exposure and such operations should be exempt from the proposed rule. AISI requests that OSHA provide specific guidance to coal handling facilities that operate under an existing coal dust PEL. 8 For general industry, the standard for coal dust is regulated as a separate substance, and the PEL for coal dust containing greater than 5 percent amorphous silica (non-crystalline silica or SiO 2 ) is a calculated value of 2.4 mg/m 3. Guidance is needed on how OSHA proposes to apply the existing coal dust PEL when crystalline silica is also present and how the agency would apply the proposed crystalline silica standard in coal handling and processing areas. Graphite Interference has Affected Exposure Monitoring in Steel Shops AISI members have begun assessing the potential exposure values for crystalline silica in various areas of their facilities in anticipation of the amended standard and its lower PEL and Action Level. In conducting these initial assessments using the National Institute for Occupational Safety and Health (NIOSH) Method 7500 X-ray Diffraction, some steel shops have experienced difficulty in accurately measuring crystalline silica exposure down the proposed action level of 25 µg/m 3 due to graphite interference. Graphite exhibits x-ray diffraction peaks that correspond in position to the major peaks for silica at the primary angle. If the primary diffraction peak is used and a material that interferes with the major silica peak is present, false positives for silica are possible. Where graphite interference occurs, laboratories use and report secondary peaks at the secondary angle, but this comes with a commensurate decrease in sensitivity. The analytical reporting limit when using secondary peaks is 25 µg/m 3 versus 10 µg/m 3 for primary, which creates difficulty in measuring silica accurately down to the proposed Action Level. AISI therefore requests that OSHA provide guidance in situations where equipment sensitivity challenges a regulated employer s ability to accurately measure crystalline silica exposure down to the low exposure Action Level anticipated in the proposed rule. The Proposed Rule Will Have Precedential Effect in Other Sectors Many of AISI s members own and operate mining facilities and are therefore regulated by the Mine Safety and Health Administration (MSHA), with some members regulated by both OSHA and MSHA. By June 2014, MSHA has indicated that it also intends to revisit its own regulation on occupational exposure to respirable crystalline silica. 9 Although no proposal is available, MSHA will likely harmonize its own PEL 8 29 CFR , Table Z3. 9 Department of Labor, MSHA, Fall 2013 Regulatory Agenda, RIN 1219-AB36: Proposed Rule, Respirable Crystalline Silica (Nov. 26, 2013).

6 Page 6 with that of OSHA s, which will add another layer of compliance costs for AISI s member companies that were not accounted for in OSHA s proposed rule. AISI therefore again recommends OSHA fully implement the existing 100 µg/m 3 PEL as means of reducing health risks for workers, rather than proposing a lower PEL that would add compliance costs without appreciable gains in worker health and that would then likely be used as a model for other agencies. Conclusion In conclusion, AISI strongly urges OSHA to consider these comments. Specifically, we urge the agency to fully implement and enforce the existing general industry crystalline silica PEL of 100 µg/m 3 before adopting and implementing a new standard that will be more complex and require more technical control than the existing standard. If OSHA decides to proceed with the proposed lower PEL, AISI requests the agency address the steel industry specific issues it has raised concerning hazards inherent with wet cleaning methods, the ambiguous employee training requirements, duplication of existing standards around metallurgical coke oven operations, guidance on the existing coal dust PEL, issues that arise with accurate monitoring due to graphite interference and the precedential effect on other agencies. We appreciate the opportunity to offer our comments and look forward to working with the agency to address the remaining issues. If OSHA staff has any questions or comments, please contact Brett Smith at bsmith@steel.org or (202) Sincerely, Brett S. Smith Brett S. Smith Senior Director, Government Relations American Iron and Steel Institute 25 Massachusetts Avenue, NW Washington, DC 20036